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[2017] ZAGPJHC 156
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Matsatsela v Road Accident Fund (2016/07258) [2017] ZAGPJHC 156 (20 June 2017)
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Certain
personal/private details of parties or witnesses have been
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IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG LOCAL DIVISION,
JOHANNESBURG)
CASE
NO: 2016/07258
Not
reportable
Not
of interest to other judges
Revised.
20/7/2017
In
the matter between
MATSATSELA
KLEINBOOI
APHANE
PLAINTIFF
And
ROAD ACCIDENT
FUND
DEFENDANT
JUDGMENT
NYATHI
AJ:
A.
INTRODUCTION AND BACKGROUND
(1)
The plaintiff instituted an action against the
Road Accident Fund for damages in the sum of R550 000.00 arising out
of a collision
between a mini bus taxi with registration particulars
[…] GP, there and then being driven by one Sipho Zwane
(insured driver")
and a motor vehicle with registration
particulars […] GP, then and there being driven by the
plaintiff.
(2)
The collision occurred on or about the 29
th
June 2012 at approximately 07h00 at an intersection between
Holfontein and Main Street in Benoni.
(3)
The plaintiff sustained head injuries and multiple
rib fractures as a result of the collision.
(4)
Plaintiff alleges that the Road Accident Fund, a
juristic person established in terms of section 2(1) of the Road
Accident Fund
Act 56 of 1996 ("the Act") as amended, is
liable to compensate him for the aforesaid injuries and subsequent
damages,
due to the negligent driving of a motor vehicle.
(5)
The plaintiff further alleges that the collision
was caused solely by the negligent driving of the insured driver, who
was negligent
in one or more or all of the following respects:
5.1 He was
over-speeding in an area where over-speeding is prohibited.
5.2 He failed to
keep his vehicle under proper control;
5.3 He failed to
apply brakes timeously, adequately or at all;
5.4 He failed to
avoid the collision when, by exercise of reasonable care, he could
and/or should have done so; and
5.5
He failed to keep a proper lookout.
(6)
The parties submitted prior to the commencement of
the trial that only the merits of the matter, i.e. negligence,
remained in dispute
between the parties.
(7)
A paginated trial bundle was handed in by
agreement of the parties in the trial. It contains
inter
alia
police and witness' statements as
well as photographs taken at the scene after the collision. Of these,
the most pertinent to this
case were court exhibit "A" to
"D".
B.
EVIDENCE ON THE MERITS
(8)
Plaintiff testified that on the morning of the
29
th
June 2012 around 6h30 he was driving on Main Road in Daveyton. He
reached a stop sign and came to a standstill. He was about to
turn
right to join Holfontein Road.
(9)
He saw a taxi which came from the right side and
stopped some distance away and dropped off a passenger.
(10)
He saw the taxi's indicators flickering to
the left. The road lane at which the taxi had stopped has a shoulder
that leads to the
left. The plaintiff was then referred to Exhibit
"A". This is a photograph of the accident scene after
the collision.
(11)
As he was entering the intersection the
taxi crossed the yellow "barrier lines" and collided with
the plaintiff's bakkie
on the driver's side.
(12)
The plaintiff lost consciousness. He only
regained consciousness later when he heard the sounds of approaching
sirens.
(13)
Plaintiff describes the layout of
Holfontein road as sloping down towards where his bakkie was struck,
and that the taxi was driven
at a high speed.
(14)
Plaintiff made a statement to the police
the next day. That was admitted as Exhibit "C".
(15)
Exhibit "D" was handed in, it is
a statement made by Morake Bookholane a Metro police officer. He is
an accident investigator,
draughtsman and photographer. The statement
was admitted by consent of both parties. In it the deponent describes
the scene of
collision. He took the photographs. Furthermore, he
gives an opinion that he suspects that the driver of the bakkie did
not stop
at the stop sign.
(16)
That concluded the plaintiff's evidence.
(17)
The plaintiff was cross examined at length
and replied to questions. At some stage he volunteered to draw a
sketch in which he endeavoured
to describe the scene of the
collision, the slipway and the yellow "barrier lines". I
found him to be a reliable witness,
who gave concessions where
necessary. His evidence was satisfactory.
(18)
No witnesses were called to testify on
behalf of the insured driver.
(19)
The court had sight of a photograph at page
57 of the bundle. This depicts the junction and the two vehicles as
they rested after
the collision. The yellow barrier lines are clearly
visible. It is apparent from the position of the two vehicles that
the minibus
taxi could have been driven across the "barrier
lines" prior to the collision. Counsel for the insured could not
comment
on the court's observations.
A.
THE LAW APPLIED TO THE FACTS
(20)
The
law imposes a duty on the driver of a motor vehicle to drive it so as
to avoid causing harm to others.
[1]
He is
obliged
inter
alia
,
to keep a proper lookout and to drive at a reasonable speed.
(21)
In
Rathebe
v. Road Accident Fund
[2]
,
Sithole AJ, held that
"
Keeping
a proper look-out means "more than looking straight ahead - it
includes an awareness of what is happening in one's
immediate
vicinity". He (the driver) should have a view of the whole road
from side to side and in the case of a road passing
through a
built-up area, of the pavement on the side of the road as well. (See
Neuhaus
v Bastion Ins
1968
1 SA 398
(A).) The duty to drive at a reasonable speed and the duty to keep a
proper look-out are, in my view, two sides of the same coin.
"
(22)
Having regard to the plaintiff's version of events, he saw how the
insured taxi pulled off the road to drop off a passenger
and how its
indicators were flickering a left turn.
(23)
The plaintiff could have avoided the collision by carefully observing
the actions of the insured driver as opposed to proceeding
to enter
the junction and turning right assuming that the insured driver would
proceed left on the slipway.
(24)
Having said that, the insured driver
conducted himself in a grossly negligent manner by re-entering
Holfontein Road at a high speed,
crossing through the yellow "barrier
lines" when it was clearly not safe for him to undertake such an
unsafe abrupt maneouvre
without indicating his intentions to turn
right onto Holfontein Road.
(25)
From the photographs depicting the vehicles
after the collision, it is inevitable that a clear application of the
res ipsa loquitur
doctrine bears out the conclusion that the defendant drove at a
disproportionately high speed, crossed the yellow barrier lines
without exercising the requisite care to other road users. The point
of impact and the position of both cars post collision clearly
indicate the direction in which the taxi was travelling.
(26)
There was no evidence led by the defence to
gainsay the plaintiff's version of events.
(27)
Consequently the balances of probabilities
are indicative of the veracity of the plaintiff's version.
(28)
I have thus reached a conclusion that total
causative negligence can be attributed the insured driver on
the day of the collision.
B.
CONCLUSION
(29)
In the premises the following order is
made:
a.
That the insured driver was causally
negligent;
b.
That the defendant is liable for the
plaintiff's damages.
c.
The defendant to pay plaintiff's costs.
____________
JS
Nyathi
Acting
Judge of the High Court
Date
of Hearing:
19
May 2017
Judgment
Delivered:
20 June 2017
APPEARANCES
On
Behalf of the Applicant: Mr N Ndabeni
Instructed
By:
M A Selota Attorneys
208-212
Jeppe Street
17
th
Floor, Marble Towers Building
Johannesburg
011 333
3884
On
Behalf of the Respondent: Adv N Adams
Instructed
By:
Mayat, Nurick Langa Inc
62
Seventh Avenue
Parktown
North
011 442
4250
[1]
R
v. De Swardt 1949 (1) SA 516 (N)
[2]
2013 ZAGPPHC 22 Delivered on 5 February 2013.