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[2010] ZAGPJHC 12
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Kekana v Road Accident Fund (2008/16641) [2010] ZAGPJHC 12 (18 March 2010)
REPUBLIC OF SOUTH AFRICA
SOUTH GAUTENG HIGH COURT, JOHANNESBURG
CASE NO: 2008/16641
In the matter between:
KEKANA,
KGOWAKGOWA JOHANNES
Plaintiff
and
ROAD
ACCIDENT FUND
Defendant
J U D G M E N T
MOSHIDI, J
:
INTRODUCTION
[1] This
trial raises the
issue of the validity of the plaintiff’s claim. The plaintiff
has issued summons against the defendant for damages resulting
from a
motor vehicle accident on 4 July 2007 to 5 July 2007.
[2] At the commencement of the trial, and by agreement between the
parties, the issues of the merits and the quantum of damages
were
separated in terms of Rule 33(4) of the Uniform Rules of Court.
Consequently, the only issue to be determined was the merits
of the
plaintiff’s claim.
THE PLEADINGS
[3] The pertinent allegations contained in paras 4 to 6 of the
particulars of claim read as follows:
“
4. On
the 4
th
July 2007 on a public road known as Beyers Naude and/or Blueberry
Street an accident occurred involving a motor vehicle bearing
registration number JGS 270 GP and a BMW motor vehicle with unknown
registration numbers.
Plaintiff
was a driver of motor vehicle bearing registration number DGS 270 GP
and was injured when he failed to negotiate the
curve having
collided on the side whilst the driver of the BMW vehicle with
unknown registration numbers was forcing him out
of the road.
The collision was caused solely by the driver of the BMW vehicle
with unknown registration who was negligent in one or more of the
following respects:
He
deliberately drove his vehicle recklessly by driving towards the
lane in which Plaintiff was driving.
He deliberately drove his motor vehicle at an excessive speed in
the circumstances.
He failed to keep a proper lookout of other dangers of the road.
He failed
to keep the vehicle driven by him under proper control.
He failed
to avoid the collision by exercise of a reasonable care he could
and should have done so.
He
disobeyed the road traffic rules.
”
[4] In resisting the claim, the defendant filed a plea, the relevant
parts whereof are contained in para 5 of the plea, as follows:
“
5.
AD PARAGRAPHS 4, 5 & 6
5.1
The
Defendant denies each and every allegation contained in these
paragraphs as if specifically traversed and puts the Plaintiff
to the
proof thereof.
5.2
Alternatively
,
and in the event of the above Honourable Court finding that the
collision did occur, which is denied, then and in that event only,
the Defendant pleads that the collision was caused by the sole
negligent driving of the Plaintiff who was negligent in one or more
or all of the following respects:
5.2.1 he failed to have and keep a proper look-out;
5.2.2 he entered the said road at a time and place when it was
dangerous and inopportune to do so;
5.2.3 he
crossed the said insured driver’s path of travel at a time when
it was dangerous and inopportune to do so;
5.2.4 he failed to give adequate warning of his presence to other
road users and more specifically the said insured driver;
5.2.5 he failed to avoid the collision when by the exercise of
reasonable care, he could and should have done so.
5.3
Alternatively
,
and in the event of the above Honourable Court finding that the said
insured driver was negligent as alleged or at all, which
is denied,
the Defendant pleads that such negligence did not cause or contribute
to the collision which was caused solely by the
negligence of the
Plaintiff who was negligent in one or more or all of the respects set
out in paragraph 5.2 above.
5.4
Further
alternatively
,
and in the event of the above Honourable Court finding that the said
insured driver was negligent as alleged or at all and that
such
negligence caused or contributed to the collision, all of which is
denied, the Defendant pleads that the said collision was
caused
partly by the negligence of the said insured driver and partly by the
negligence of the Plaintiff who was negligent in one
or more or all
of the respects set out in paragraph 5.2 above.
”
THE PLAINTIFF’S EVIDENCE
[5] The plaintiff, the only witness in the trial, testified. At the
time of the accident on 4 July 2007 he was about 49 years
old. He
was employed by Nedbank as a Manager since 1996. The plaintiff’s
version regarding the collision with an unidentified
motor vehicle,
was clear and straightforward. The version, which he substantiated
and elaborated upon during his testimony, is
succinctly set out in an
affidavit he made subsequently on 15 November 2007. The affidavit
forms part of Bundle 2 in the trial.
It is convenient to reproduce
the contents of paragraph 2 of the affidavit:
“
2.
On the 4
th
July 2007 at around 23h30 I was driving my Toyota Cressida, bearing
registration number JGS 270 GP along Beyers Naude Drive into
Blueberry Street. The aforesaid road is tarred and I had no
passengers and I was sober and well alert. Whilst driving along the
aforesaid street I noted a red sedan BMW driving behind me. The
lights of the sedan BMW were flicked and I did not stop. The
BMW
then overtook me and immediately stopped in front of me. I
immediately applied my brakes slightly and served on the other
side
and also overtook the said vehicle. A firearm was welded at me and I
sped off and the said BMW gave chase and the driver
thereof was
trying to force me out of the road and whilst negotiating the curve I
lost control of my vehicle and passed out.
”
The plaintiff
testified that during the accident, he was unable to note the
registration numbers of the BMW motor vehicle. He was
alone in his
motor vehicle. However, the plaintiff observed that the BMW motor
vehicle had four occupants who appeared to be white
males. The
accident report compiled by the traffic officer who visited the scene
shortly after the accident, corroborates the
plaintiff’s
version. The same applies to the police docket opened at the
Honeydew Police Station. The plaintiff testified
that he lived in the
area and thus knew the accident area fairly well. His wife was also
employed in the area. Shortly before
the accident the plaintiff had
dropped off a fellow churchgoer in the area. The plaintiff had been
to church that evening. The
plaintiff sustained severe injuries in
the accident. The statement of the traffic officer, W M Mashobane,
states that he arrived
at the accident scene at about 02h15. The
plaintiff was seriously injured. The statement proceeds to state:
“
The
driver
[the
plaintiff]
,
after he was freed from his badly damaged vehicle, ER24 Ambulance
driven by Mr Piet Schoeman removed him to Helen Joseph Hospital
for
medical treatment of his serious injuries.
”
(my insertions)
[6] It is
clear from the plaintiff’s evidence that there was contact
between his motor vehicle and the BMW motor vehicle
shortly before
the plaintiff crashed into the wall of a nearby complex. The
plaintiff was cross-examined intimately. He consistently
stuck to
his
version.
In the accident, the plaintiff suffered a fracture of the right
femur; fracture of the right tibia; fracture of the left
ankle;
injury of the right forearm; fracture of the mandible; and a head
injury with loss of consciousness for about three weeks.
His motor
vehicle was written off. All this was common cause. The plaintiff
testified that some time after his discharge from
hospital, he sought
advice from friends. He eventually landed up with his current
attorney of record who duly instituted the claim
against the
defendant.
THE LAW AND THE ROAD ACCIDENT FUND ACT
[7] It is
trite law that the
onus
is on the plaintiff to prove, on a balance of probabilities, that his
injuries were caused as a result of the negligent driving
of the
unidentified driver of the BMW motor vehicle. He also has to prove
that there was contact between his motor vehicle and
the BMW motor
vehicle. Indeed,
s 17(1)(b)
of the
Road Accident Fund Act 56 of
1996
, provides that:
“
The
Fund or an agent shall –
subject to
any regulation made under
section 26
, in the case of a claim for
compensation under this section arising from the driving of a motor
vehicle where the identity of
neither the owner nor the driver
thereof has been established, be obliged to compensate any person
(the third party) for any
loss or damage which the third party has
suffered as a result of any bodily injury to himself or herself or
the death of or any
bodily injury to any other person, caused by or
arising from the driving of a motor vehicle by any person at any
place within
the Republic, if the injury or death is due to the
negligence or other wrongful act of the driver or of the owner of
the motor
vehicle or of his or her employee in the performance of
the employee’s duties as employee.
”
Regulation
2(d)
, framed under
s 26
of the
Road Accident Fund Act 56 of 1996
,
provides:
“
2(1) In
the case of any claim for compensation referred to in
section
17(1)(d)
of the Act the Fund shall not be liable to compensate any
third party unless –
(d) the
motor vehicle concerned (including anything on, in or attached to it)
came into physical contact with the injured or deceased
person
concerned or with any other person, vehicle or object which caused or
contributed to the bodily injury or death concerned.
”
In determining
the causal
nexus
between the negligent driving of the driver of the insured vehicle
and the injuries sustained by the plaintiff, Van Oosten J, in
Miller
v Road Accident Fund
[1999]
4 All SA 560
(W), at p 565(i), formulated the inquiry as follows:
“
Two
distinct enquiries arise, which were formulated by Corbett CJ in
International Shipping Co (Pty) Ltd v Bentley
1990 (1) SA 680
(A) at 700E–I as follows:
“
The
first is a factual one and relates to the question as to whether
defendant’s wrongful act was a cause of the plaintiff’s
loss. This has been referred to as ‘factual causation’.
The enquiry as to factual causation is generally conducted
by
applying the so-called ‘but-for’ test, which is designed
to determine whether a postulated cause can be identified
as a
causa
sine qua non
of
the loss in question. In order to apply this test one must make a
hypothetical enquiry as to what probably would have happened
but for
the wrongful conduct of the defendant. This enquiry may involve the
mental elimination of the wrongful conduct and the
substitution of a
hypothetical course of lawful conduct and the posing of the question
as to whether upon such an hypothesis plaintiff’s
loss would
have ensued or not. If it would in any event have ensued, then the
wrongful conduct was not a cause of the plaintiff’s
loss;
aliter
,
if it would not so have ensued. If the wrongful act is shown in this
way not to be a
causa
sine qua non
of
the loss suffered, then no legal liability can arise. On the other
hand, demonstration that the wrongful act was a
causa
sine qua non
of
the loss does not necessarily result in legal liability. The second
enquiry then arises viz whether the wrongful act is linked
sufficiently closely or directly to the loss for legal liability to
ensue or whether, as it is said, the loss is too remote. This
is
basically a juridical problem in the solution of which considerations
of policy may play a part. This is sometimes called ‘legal
causation’.”
In
Bezuidenhout
v Road Accident Fund
[2003]
3 All SA 249
(SCA) at para [17], the Vivier JA, said:
“
[17]
In
Prinsloo
(
supra
)
Smalberger JA said at 575C–D that there was good reason for the
requirement of physical contact in unidentified vehicle
cases. He
relied on the judgment in
Mbatha
(
supra
)
at 718J where Harms JA did not mention the requirement of physical
contact but merely stated generally, as I have indicated above,
that
there was good reason for having stricter requirements for
unidentified vehicle cases. Smalberger JA also relied on
Khumalo
v Multilateral Motor Vehicle Accidents Fund
[1997]
2 All SA 341
(N) at 346
f
–
g
where Broome DJP
gave the prevention of fraudulent claims as the reason for the
requirement of physical contact. No other reason
has been suggested
for this requirement and I can think of none. Assuming a case of
well-evidenced and fully proved negligent driving
of an unidentified
vehicle, as one should do in considering the matter. The
undifferentiated imposition of the requirement of physical
contact
may well be regarded as unreasonable. Postulate the case of the
negligent driver of an unidentified vehicle swerving on
to his
incorrect side of the road, his vehicle just scraping one oncoming
car, missing a second one altogether but forcing both
these vehicles
to leave the road in trying to avoid him. To exclude by regulation a
claim for compensation in the one case but
not in the other may well
be said to be such unequal discrimination as to be invalid for
unreasonableness since the intention could
never have been to
authorise it (
S v Mahlangu and others
1986 (1) SA 135
(T) at 144B–145A). It is not, however, necessary for me to
decide this point.
”
I
n
Engelbrecht
v Road Accident Fund and Another
2007 (6) SA 96
(CC), at para [23], Kondile AJ, said:
“
[23]
The applicant's current claim has been created by a statute, namely,
the
Road Accident Fund Act. The
Act can be employed by anyone who is
injured in consequence of the negligent driving of a vehicle in a
hit-and-run situation to
claim compensation for any loss sustained.
The Act is the latest statute in a long line of national legislation
beginning with
the Motor Vehicle Insurance Act 29 of 1942. The stated
primary concern of the Legislature in enacting these statutes is, and
has
always been, 'to give the greatest possible protection . . . to
persons who have suffered loss through a negligent or unlawful act
on
the part of the driver or owner of a motor vehicle'.
”
[8] Although
the defendant’s attitude in resisting the claim as not valid,
and denying that the accident occurred, is understandable
as it has a
duty to guard against fraudulent claims, the duties of the defendant
are succinctly set out in
Madzunye
and Another v Road Accident Fund
2007 (1) SA 165
(SCA). At para [17] of this judgment, Maya JA says:
“
[17]
In an unreported judgment of this Court,
Road
Accident Fund v Roman Klisiewicz
,
case No 192/2001, handed down on 29 May 2002, Howie JA set out the
extent of the respondent's responsibilities, saying in para
[42]:
'The
[Road Accident Fund] exists to administer, in the interests of road
accident victims, the funds it collects from the public.
It has the
duty to effect that administration with integrity and efficiency.
This entails the thorough investigation of claims
and, where
litigation is responsibly contestable, the adoption of reasonable and
timeous steps in advancing its defence. These
are not exacting
requirements.
They must be observed.'
”
[9] In the
present matter,
there
is no doubt at all that the accident occurred as contended for by the
plaintiff. His bodily injuries arose out of the negligent
driving of
the BMW motor vehicle. The plaintiff’s evidence that the BMW
motor vehicle bumped his motor vehicle on the left-hand
side and
caused the plaintiff to lose control of his motor vehicle, is
exceedingly credible and probable. The plaintiff was the
only witness
in the trial. His evidence was not contradicted by any other
opposing evidence, except cross-examination which tentatively
attempted to cast some doubt on the plaintiff’s version. I
could find no well-founded suggestion that the plaintiff was engaged
in a fraudulent claim. Such allegations are indeed extremely serious
and should not be made lightly without a proper basis. He
is a bank
manager for some time with a reasonable salary. The witnesses who
attended the accident scene shortly after the accident,
confirm that
there was an accident as alleged by the plaintiff. The plaintiff was
a hugely impressive witness. He testified in
English throughout.
CONCLUSION
[10] I
conclude that the plaintiff must succeed in his claim. He has
discharged, on a balance of probabilities, the
onus
that rests upon him.
ORDER
[11] In the result the following order is made:
The defendant shall be liable for the plaintiff’s damages
consequent upon the injuries sustained by the plaintiff during
the
accident on 4 July 2007 to 5 July 2007.
The
determination of the plaintiff’s quantum of damages is
postponed
sine
die
.
The defendant is ordered to pay the plaintiff’s costs.
_____________________________
D
S S MOSHIDI
JUDGE OF THE SOUTH GAUTENG
HIGH COURT, JOHANNESBURG
COUNSEL FOR THE PLAINTIFF ADV D SELALA
INSTRUCTED BY B O KHUMALO INC
COUNSEL FOR THE DEFENDANT ADV L ADAMS
INSTRUCTED BY LINDSAY KELLER
DATE OF HEARING 5 MARCH 2010
DATE OF
JUDGMENT 18
MARCH 2010