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[2010] ZAGPPHC 571
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Mogoje and Another v Road Accident Fund (17700/2008) [2010] ZAGPPHC 571 (15 February 2010)
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IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT - PRETORIA)
CASE NO: 17700/2008
DATE: 15 FREBRUARY
2010
NOT REPORTABLE
NOT OF INTEREST TO
OTHER JUDGES
In the matter
between :
MOGOJE
ABEL
............................................................................................................................
First
Plaintiff
MOGOJE
PAULTUKISE
........................................................................................................
Second
Plaintiff
And
ROAD
ACCIDENT
FUND
................................................................................................................
Defendant
JUDGMENT
MATOJANE
J
[1] This is an
action for damages arising out of a motor vehicle accident. The
merits were separated from the quantum by an earlier
court order.
This judgment is accordingly, concerned only with the question
whether the defendant is liable for damages that the
plaintiff may
have suffered as a result of the accident.
[2] It is common
cause that on 12 May 2007 and at Ontdekkers road a white Nissan
bakkie driven by an unknown male collided with
the second plaintiff
who at the time was a pedestrian. The plaintiff has claimed damages
from the defendant in the amount of R1277283.50.
[3] The plaintiff
has no recollection of the accident and it has been agreed by the
parties that he should not testify. An eyewitness,
Miss Johanna
Lehono testified that she was driving along Ondekkers road from east
to west with Westgate Mall on southern side.
It was at about 8hl5 and
the lighting was good. A white Nissan bakkie driving in the same
direction unexpectedly and without warning
swerved from the slow lane
and cut in front of her at a high speed, she swerved to the slow lane
to avoid colliding with it. The
bakkie hit a pedestrian who was about
to complete crossing the road and sped off
She was not able to
avoid the collision, no matter what she may have tried.
[5] The only witness
to testify was the eye-witness. The defendant did not call any
witnesses.
[6] The only
evidence before me is that of the plaintiff's witness. On her
version, the sole cause of the accident was the driver
of the white
bakkie who unexpectedly and without warning swerved from his iane
onto her lane of travel at high speed. On her evidence,
he had
sufficient time to stop his vehicle and avoid the collision, as she
was able to bring her car to a stop timeously and render
assistance
to the plaintiff after the collision. I accept her evidence. The
driver of the bakkie failed in his duty to drive his
car with
reasonable safety and should have seen the plaintiff who was crossing
the road and regulated his driving so as to avoid
the accident.
[7] I find that the
defendant is liable for the damages that the plaintiff has suffered
as a result of the accident.
[8] The following
order is made:
1. The defendant is
liable to compensate the plaintiffs for 100% of their proven or
agreed damages.
2. The defendant
shall pay the plaintiffs' taxed or agreed party and party costs on
the High Court scale up to and including 12
February 2010, subject
thereto that:
2.1 In the event
that the costs are not agreed:
2.1.1 The plaintiffs
shall serve a notice of taxation on the defendant's attorney of
record;
2.1.2 The plaintiffs
shall allow the defendant 7 (SEVEN) court days from date of allocatur
to make payment of the taxed costs;
2.1.3 Should payment
not be effected timeously, the plaintiffs will be entitled to recover
interest at the rate of 15.5% on the
taxed or agreed costs from date
of allocatur to date of final payment.
2.2 Such costs shall
include:
2.2.1 The costs of
counsel on the senior-junior scale;
2.2.2 The costs of
the accident reconstruction report furnished to the defendant;
2.2.3 The
qualifying, preparation and attendance costs, if any, of Prof Gerry
Lemmer, as allowed by the Taxing Master.
3. The amount
referred to in paragraphs 2 shall be paid to the plaintiff's
attorneys, Adams & Adams, by direct transfer
inuc their
trust account, details of which are the following:
Bank : Nedbank,
Pretoria
Branch Code : 1604
4500
Account Number :
1[...]
Reference :
GWW/ren/S2109/07
K E MATOJANE
JUDGE OF THE HIGH
COURT