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[2010] ZAGPPHC 617
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Sehlabane v Road Accident Fund (34797/08) [2010] ZAGPPHC 617 (5 May 2010)
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
(NORTH AND SOUTH GAUTENG HIGH COURT, PRETORIA)
DATE:5 MAY 2010
CASE NO: 34797/08
In the matter
between:
MPUTI
SEHLABANE
......................................................................................................................
PLAINTIFF
AND
ROAD ACCIDENT
FUND
...........................................................................................................
DEFENDANT
JUDGMENT
PHATUDI (J)
[1] The Plaintiff
instituted this action against the defendant for damages sustained as
a result of accident that occurred on 31
March 2007. The Plaintiff
was a pedestrian when knocked off by a motor vehicle bearing
registration number and letters B[...] (insured
motor vehicle) driven
by Dumisane Nzimande (insured driver).
[2] At the
commencement of the trial I ordered separation, in terms of Rule
33(4) of the Uniform Rules of the Court, of the merits
and quantum at
the instance of parties’ agreement.
[3] Mr Kekana,
counsel for the Plaintiff, placed on record that the parties agree,
as a matter of common cause, that (i) the accident
did indeed occur
on 31 March 2007. (ii) The insured motor vehicle was indeed driven by
the insured driver. Mr Knoetze, counsel
for the Defendant confirmed.
He, however, submitted that the Defendant’s version differs
with that of the Plaintiff. He submitted
that the court will have to
determine which of the versions is correct and that the insured
driver was not negligent. He further
submitted that the Defendant
relies on sudden emergency.
[4] The Plaintiff
testified that he went with his brother to a party after having had
some few drinks. A quarrel ensued at the party
between other people
and himself. The person he quarrelled with entered the motor vehicle
and occupied the front passenger seat.
He immediately thereafter left
with his brother for home, leaving the motor vehicle at the party
house. On their way home, while
they were about to cross the tarmac
road, a motor vehicle approached from behind. The motor vehicle
struck him on his left side.
The occupant of the motor vehicle
ferried him with intent to take him to the hospital. He,
surprisingly, was dropped off approximately
350m from the scene of
accident.
[5] The Plaintiff
noted the Defendant’s version with dismay when put to him under
cross examination that (i) he (Plaintiff)
was in the middle of the
road refusing to give way for the motor vehicle. Further that the
Defendant revved the motor vehicle but
to no success and there after
the motor vehicle knocked him and fell underneath the motor vehicle.
[6] On the other
hand, the insured driver testified that at the party one gentleman,
who later appeared to be the Plaintiff, quarrelled
with one of the
people in his company. He managed to calm them down. A group of
people blocked the road preventing them from driving
off. They were
later let off with one Lorraine alighted some few meters ahead of the
main tarmac road (the road from Polokwane
to Burgersfort). Shortly
thereafter, the Plaintiff and his brother, stood in front of his
motor vehicle with stones in their hands.
He estimated their distance
from the motor vehicle at 3
1
/4meters. He then drove slowly
toward them with intent to negotiate with them. At a distance of
about 1(one) metre to the Plaintiff,
he realised that the road was
widening in a V shape. He at that moment accelerated more with the
motor vehicle on its first gear.
Shortly thereafter, the Plaintiff
jumped on the side of the motor vehicle and the motor vehicle struck
him. The motor vehicle struck
him by its left front next to the front
head lamp.
[7]
Mr Kekana submitted that I should find in favour of the Plaintiff
based on the Plaintiffs version. He refers me to
Rv
Du Plessis
1948 (2) SA 302
fC) and R v GISHION
1948 (2) SA 131
(T)
and
submits that the Defendant’s defence of sudden emergency be
rejected on the basis that the insured driver had time to
consider
other alternative actions at that time. He further submits that
sudden emergency is only acceptable if there is no other
alternative
available for the insured driver.
[8]
In rebuttal thereto, Mr Knoetze, the defence counsel, submit that the
principles set out in the cases referred to by counsel
for the
Plaintiff, are Criminal Law principles and are of no force or effect
on this matter. He refers me to
National
Emergency vs. Ganv
1931
AD
187
where
the court held that where there are two (2) conflicting versions, the
court must find in favour of the Defendant. He concedes
that there
were alternative options available at the insured driver’s
disposal. He however, submitted that sudden emergency
is the
Defendant’s defence. He stated that that principle on sudden
emergency is what a reasonable person in the position
of the insured
driver would do in the circumstances. He submits further that the
insured driver was under immediate threat of physical
violence by the
Plaintiff. He finally submit that the court should find in favour of
the Defendant by dismissing the Plaintiff
claim as the Plaintiff
failed to proof its case on a balance of probabilities.
[9]
Sudden emergency is summarised in
Thornton and
Another v
Fismer
1928 AD 398
at 412
as
quoted by Els J in
Ntsala and
others v Mutual & federal Insurance Co Ltd
1996 (2)
SA 184
(T)
at
page 192 as
“
a
man who,... by some unforeseen external contingency, finds himself in
a position of imminent danger, cannot be held guilty of
negligence
merely because in that emergency he does not act in the best way to
avoid the danger.”
[10]
The court further held that
“
a
party to an action can only rely on the doctrine of sudden emergency
if and when the sudden emergency in which he finds himself
is not his
own doing”. It is further stated that
“
if
the insured driver’s action or neglect are the reason or cause
of the sudden emergency, he can for that reason be found
to be
negligent.”
[11]
According to the insured driver, the Plaintiff was standing in the
middle of the gravel road just before the road widens up
toward the
Polokwane- Burgersfort tarmac road. The Plaintiff had stones in his
hand some 3 metre ahead. He thought of alighting
the motor vehicle
with a view to negotiate with the Plaintiff to move away from the
road. He conceded that the Plaintiff did not
throw any stones at his
motor vehicle. He, instead,
“
accelerated
more”
or
revved the motor vehicle more that made a high rev sound. He, at that
moment, thought of swerving towards his right on to the
widening
portion of the road but Plaintiff, as he allege, jumped in front and
was as a consequent, struck by the motor vehicle.
[12] I, in my
evaluation, infer that the insured driver revved the motor vehicle
more to instil fear to the Plaintiff by the high
rev sound with
intend to scare Plaintiff. In my view, the insured driver’s
attitude was, at that moment, that of “you
either give way or I
run you over.”
[13] Accepting that
the Plaintiff had taken some alcohol, he in my view, could have
“jumped off” trying to give way
but could not do so
timeously due to his weak reflexes impaired by alcohol. He thus
failed to judge or ascertain as to which direction
the motor vehicle
was going to turn to. He could not remember what happened to date. He
only because aware that he landed underneath
the motor vehicle when
the defence version was put to him under cross- examination. He eyes
“popped out” when that
version was put to him.
[14]
Counsel for the Defendant submits that the onus of proving the
insured driver’s negligence rest with the Plaintiff. I
indeed
agree with the counsel submissions. This principle has been applied
in Ntsala’s case where the court was
“
satisfied
that the onus rests throughout on the Plaintiff to prove negligence
on the part of the Defendant, the latter must produce
evidence to the
contrary; he must tell the remainder of the story, or take a risk
that judgment be given against him.
(page
190F).
[15] Considering the
Plaintiff’s testimony, an inference can be drawn that the
Defendant was negligent. It is probable, in
my view, for a motor
vehicle, coming from behind the pedestrian, to strike him on the
left. Even though there was no sketch plan
that was drawn for the
convenience of the court, I managed to comprehend exactly how the
accident, on the evidence tendered, could
have happened.
[16] The explanation
the insured driver furnished on the part of his conduct that either
excludes negligence on his party or is
equally consistent with
negligence, he allege that the Plaintiff was standing 1 meter away
from the motor vehicle than in the middle
of the road with the
Plaintiffs left side facing the motor vehicle with stones in his
hands. He conceded that there were no stones
pelted at his motor
vehicle either at the party or by the group that earlier “blocked”
their way. He further conceded
that the group never chased after them
and that there was no threat of throwing the stones at the motor
vehicle. The Plaintiff
only had the stones in his hands.
[17]
In
Msutu v Protea Assurance CO Ltd
1991 (1) SA
583
(C)
where
the insured driver had left his car for the aid of a woman who was
being assaulted by a group of persons, that he himself
was been
assaulted and when passing the group of attackers, they started
throwing stones at the car, some of which hit the motor
vehicle. One
of the stones hit the windscreen, cracking the entire windscreen in
such a manner that it was difficult to see through
it. The driver
ducked his head and drove on to escape. He knocked down the
Plaintiff. The court held that the insured driver was
not negligent
in continuing to drive his car when the windscreen had been smashed
by one of the stone thrown at him, and driving
with his vision
thereby impaired. The court further held that
“
in
the sudden emergency, in which the insured driver found himself, with
his life threatened, he could not be blamed for continuing
to make
his escape and he was not at fault in running the Plaintiff down”.
[18] The insured
driver’s motor vehicle was never pelted with stones at the
party, by the group that “blocked”
their way or by the
Plaintiff at the scene of the accident. The insured driver, who
initially thought of negotiating with the Plaintiff,
was, in my view,
not in a “life threatening” situation at the time the
accident occurred. The sudden emergency the
Defendant alleges to have
found himself in is, in my view, of his own doing by his attitude of
“get of the road or run the
risk of been run over.”
Causing the high sound by revving the motor vehicle higher instilled,
in my view, fear on the part
of Plaintiff whose reflexes and sense of
judgment has been impaired by the intake of alcohol, could have
jumped with intent to
“ give way” to the revved motor
vehicle. He, unfortunately, was run over.
[19] I am further of
the view that a reasonable man, in the position the insured driver
found himself, would have acted differently
by either pursuing the
negotiation process with the Plaintiff with Loraine assisting. I find
the insured driver’s life to
have not being in danger.
[20] I, as a result,
find the insured driver to have been negligent and the Defendant
stands to compensate the Plaintiff’s
proven or agreed damages.
[21] I, thus make
the following order;
1. The Defendant is
liable to compensate the Plaintiff’s proven or agreed damages;
2. Defendant is
ordered to pay Plaintiffs costs of this trial on party and party
scale;
3. The determination
of quantum is postponed sine die.
AML PHATUD1
JUDGE
OF THE NORTH GAUTENG HIGH COURT
Heard
on
:
26 APRIL 2010
For
the Appellant
:
Adv Kekana
Instructed
by
:
Messrs Mphahlele
For
the Respondent
:
Adv Knoetze
Instructed
by
:
Messrs K Mortimer
Date
of Judgment
:
5 MAY 2010