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[2017] ZAGPJHC 435
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Mbangula v Road Accident Fund (07999/16) [2017] ZAGPJHC 435 (8 September 2017)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE NO:
07999/16
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED: NO
8
September 2017
In
the matter between:
THANDEKA
FLORENCE MBANGULA
Plaintiff
and
ROAD
ACCIDENT FUND
Defendant
JUDGMENT
STRYDOM
AJ:
Background
[1]
This is a dependant’s claim where the breadwinner died as a
result of a motor vehicle accident. The Plaintiff has not
gone
through the judicial pre-trial process, the merits were contentious
and a separation in terms of Rule 33(4) was therefore
inevitable. The
Defendant admitted the
locus standi
of the Plaintiff as the
wife of the deceased and the fact that the deceased had two children
with the Plaintiff.
[2]
At the start, I wish to express my displeasure with the standard of
the drafting of the Particulars of Claim. It is clear that
the
Particulars were drafted by another firm of attorneys; this however
does not excuse the current attorneys of record and counsel
from
checking and correcting the poorly drafted Particulars of Claim. The
attorney when attending to the drafting of other documents
did so in
accurately and this leads to problems later on in the trial for the
Plaintiff which is not of her making. Attorneys and
counsel should
take more care when drafting particulars and documents as this have a
direct influence on their client’s case.
The evidence
[3]
The first witness called by the Plaintiff was David Mohapi. Mr Mohapi
indicated that he was travelling by taxi from Sterkspruit
to
Johannesburg on the 16
th
of August 2015. He witnessed how
an oncoming taxi veered into their lane to avoid something. They
later established that it was
a pothole. The vehicle in front of
their taxi took evasive action and this caused that vehicle to
overturn.
[4]
He later learnt that someone had died in that accident. The accident
took place in the afternoon at Mageteng Village, Eastern
Cape. He had
reported this incident to an attorney here in Johannesburg.
[5]
The Plaintiff at that stage closed her case. The Defendant did so
similarly. At this stage, the Particulars of Claim read that
the
accident took place on 16 October 2014 at Mateneteng, Eastern Cape
Province. The Plaintiff then requested to reopen her case
to call the
Plaintiff. The Defendant objected to the reopening of the Plaintiff’s
case on the basis that it will not cure
the problem experienced by
the Plaintiff.
[6]
The re-opening was granted as there no other evidence was lead and it
was requested immediately upon realising the problem.
This is a claim
of dependent minors and I am of the view that the Court should not be
overly pedantic. The effect of a refusal
would have resulted in an
absolution from the instance ruling. This would have caused an
unnecessary delay in the finalisation
of the matter. I am of the view
that there is no prejudice for the Defendant.
[7]
The Plaintiff testified that on 16 August 2015 at around 17:30 she
was at her home in Mageteng Village, Eastern when she was
informed
that her husband was in a motor vehicle accident and that he had
passed away. She attended the scene of the accident and
found the
vehicle there.
[8]
She presented the death certificate of her husband, the deceased
which indicated that George Lesiea with identity number [...]
died of
unnatural causes on 16 August 2015 at Sterkfontein. She was
confronted in cross examination with two other documents relating
the
two conflicting dates of the accident. She indicated that at the time
of signing the one document she was admitted to a psychiatric
hospital for treatment and didn’t take notice. It is this type
of problems that arise when attorneys and counsel do not apply
their
minds to the particulars in pleadings and other documents.
[9]
The Plaintiff closed his case and after some discussion requested an
amendment of the Particulars of Claim to bring it in line
with the
evidence given. The amendment was granted so that it is clear that
the deceased died on 16 August 2015 at Mageteng in
the Eastern Cape.
[10]
The Plaintiff requested that the Court finds that the deceased died
on 16 August 2015 in the accident as related by the witness.
It was
argued that it is improbable that there were two accidents around the
same time. The Defendant conceded that if the accident
witnessed by
Mr Mohapi was the one in which the deceased died then it proofs a 1%
negligence by the insured driver. It was further
argued that
absolution from the instance should however be granted.
[11]
The facts before me are that on 16 August 2015 there was an accident
in which a person/s died. This accident was in the afternoon
and more
specifically between 4 – 5 pm. The person who died in the
accident is identified as the husband of the Plaintiff
who had an
identity number [...].
[12]
I find on the probabilities that the deceased, George Lesiea, with
identity number [...] (as identified by his death certificate)
died
as a result of the injuries sustained in the motor vehicle accident
of the 16
th
of August 2015. It was admitted that he was married to the Plaintiff
and that they had two dependant minor children. I am further
satisfied that the Plaintiff showed that the unknown insured driver
was at least 1% negligent.
[13]
I therefore make the following Order:
[13.1] The
issues of liability are separated from the issues of quantum in terms
of Rule 33(4).
[13.2] The
issues of quantum are postponed
sine die
.
[13.3] The
Defendant is to pay 100% of the Plaintiff’s proven damages; and
[13.4] The
Defendant is ordered to pay the costs.
I
STRYDOM
ACTING
JUDGE OF THE HIGH COURT
Date of
Hearing: 1 September 2017
Judgment
Delivered: 8 September 2017
Counsel
for the Plaintiff: Adv Ludidi
Instructed
by: Nompumza Attorneys
Counsel
for the Defendant: Adv Van den Berg
Instructed
by: Shereen Meersing & Associates