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[2010] ZAGPPHC 630
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Makhubele v Road Accident Fund (3718/2009) [2010] ZAGPPHC 630 (5 May 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
AND SOUTH GAUTENG HIGH COURT, PRETORIA)
DATE: 5 MAY 2010
CASE NO:3718/2009
REPORTABLE
NOT OF INTEREST TO
OTHER JUDGES
In the matter
between:
MAFEMANE NORMAN
MAKHUBELE
..................................................................................
APPLICANT
AND
ROAD ACCIDENT
FUND
.......................................................................................................
RESPONDENT
JUDGMENT
PHATUDI (J1
[1] At the
commencement of the trial, the parties, by agreement,amended
paragraph 3 of the particulars of claim to read;
“
On the 3
rd
November 2007 at Entabeni, Tzaneen, Limpopo Province, within the
jurisdiction of the HonourableCourt, an accident occurred where
a
motor vehicle with registration number and letters presently unknown
to the Plaintiff, then and there driven by Mr Masala Mulaudzi,
alternatively Mrs Sarah Ratombo, knocked down the plaintiff. At the
time of collision the plaintiff was a pedestrian.”
I then ordered to
that effect.
[2] The following
were placed on record as common cause;
[2.1] The Plaintiff
is the person mentioned at paragraph 1 of the Particulars of claim.
[2.2] the accident
occurred on 3 November 2007;
[2.3] the Plaintiff
was injured as a result of the accident;
[2.4] there was
nobody inside the motor vehicle at the time of the accident.
[3] The crux of the
matter is whether Mr Masala Mulaudzi, alternatively Mrs Sarah
Ratombo, can be deemed to have driven the motor
vehicle that injured
the Plaintiff.
[4] Mrs Sarah
Christina Ratombo testified for the Plaintiff that a day before the
accident, Mr Masala Mulaudzi (Mr Mulaudzi) drove
the truck to
Entanbeni for diesel. The following morning, at about 5h00, Mr
Mulaudzi woke her up for work. He handed the Truck
keys over to her.
On her arrival at the truck, she opened, got inside, disengaged the
gear to neutral, inserted the keys and started
the engine. The
engine, despite her second attempt, did not run. She went to call the
Plaintiff for assistance.
[5] She further
testified that on arrival at the truck with Plaintiff, she proceeded
towards the passenger side to “show”
the Plaintiff the
hinge and how to pull it for the cabin to open. She went to the
driver’s side for her to pull the hinge
simultaneously with
that of the Plaintiffs side to open the cabin. The cabin
automatically opens upon pulling the hinge. She heard
a “gudlu”
sound immediately after pulling the hinges. The truck started to
move. She fell on the ground and later pulled
over to the “green
grass” (lawn) by a certain man. She, few minutes later, heard
the Plaintiff scream for help. The
truck was at that moment moving
and pulling the Plaintiff with.
[6] She conceded
under cross-examination that Mr Mulaudzi left the truck being well
parked and on gear. She said she is the one
who disengaged the gear
to neutral. The truck did not move until the pulling of the hinges
for the cabin to open. She further said
that the Plaintiff was not on
duty yet as he would only have been on duty from 7h00.
[7]
Mr De Klerk, counsel for the Plaintiff, submit that the court should
find that the truck is deemed to have been driven by either
Mr
Mulaudzi or Sarah Ratombo and to further find that either of them was
negligent. He referred me to the provisions of Section
20 (1) or (2)
of
Road Accident Fund Act 56 of 1996
to that effect. He further
referred me to
Guardian
National Insurance v Saal
1993 (2) SA 161
(C)
(full
Bench)
where
the court held that the onus is on the Defendant to prove the
contrary.
[8] In rebuttal
thereto, Mr Hugo, counsel for the Defendant, submits that the
Defendant is not liable to compensate the injured
if there was no
driver in the motor vehicle at the time of the accident. He submits
that Mr Mulaudzi safely parked the truck that
never moved until
opened by Mrs Ratombo on the day in question.
[9]
He further submitted that Ms Ratombo can as well not be deemed to
have driven the truck. She only intended to drive the truck.
She does
not qualify to be deemed a driver of the truck on that day and at the
time the accident occurred. The truck moved due
to gravity caused by
the pulling of hinges by both the Plaintiff and Mrs Ratombo. The
truck moved without a driver. The Defendant
is thus not liable. He
refers me to
Petersen v Santam
1961 (1) SA 205
(C) at page 209
G.
[10] He submits that
as a result of Ms Ratombo having failed to start the engine, she
cannot be deemed to be a driver. He submits
that Ms Ratombo planned
to become a driver but did not drive. He lastly submits that
section
20
(1) or (2) can never apply to her.
[11]
Section 17(1)
(a) of the
Road Accident Fund Act: Act
56 of 1996 (RAF Act) provides
that the Fund or an agent shall;
“
(a)
subject to this Act, in the case of a claim for compensation under
this section arising from the driving of a motor vehicle
where the
identity of the owner or the driver thereof has been established;”
Section 20 (1) and
(2) provides;
“
(1)
For the purpose of this Act a motor vehicle which is being propelled
by any mechanical, animal or human power or by gravity
or momentum
shall be deemed to be driven by the person in control of the vehicle.
(2)
For the purpose of this Act a person who has placed or left a motor
vehicle at any place shall be deemed to be driving that
motor vehicle
while it moves from that place as a result of gravity, or while it is
stationary at that place or at a place to which
it moved from the
first-mentioned place as a result of gravity.”
[12]
The “driving” of the motor vehicle is the kernel of
success in claiming compensation under section 17 (1) (a)
1
,
where the driver thereof has been established. The word “driving”
is defined as
“
setting
in motion...”
2
of the motor vehicle”.
3
Prior
to promulgation of RAF ACT,
4
driving
was defined as
“
urging
on and directly of the course of the vehicle while it was in
motion’s. A person’s conduct would then qualify
as
driving only when the vehicle was in motion with the driver or the
person in control manipulated the controls, gears and paddles
that
regulate the speed and direction. The vehicle was required to be in
motion to qualify “driving”. This is the principle
upon
which Mr Hugo basis his submission of: “no driver at the time
of the accident”.
[13]
The challenges that flow with that line of defining driving prompted
the legislature to enact the RAF ACT. Section 20 (1) provides
(for
the purpose of this Act) that a
“
Motor
vehicle which is being propelled... by gravity...
shall
be deemed
to
be driven by the person in control of the vehicle.”
[14]
In
evaluating the said subsection, it is clear that the legislature
intended to extend the meaning of driving only for the purposes
of
this Act to qualify the provisions of Section 17 (1) (a) or even (b).
The words “
shall
be deemed
”
to
be driven,
5
create, in my view, an irrebutable presumption that the motor vehicle
was driven. The motor vehicle which is being propelled by
gravity
shall thus be presumed, irrebutably so, to have been driven. The
section places a person who, at the time of the motor
vehicle being
propelled by gravity, was in control of the motor vehicle to be
irrebutably presumed to have been the driver of the
said motor
vehicle.
[15]
In
ROAD
ACCIDENT FUND V MKHIZE
2005 (3) SA 20
SCA
Conradie
JA held that “ a person who is not [driving], within the
ordinary meaning of the term... but is nevertheless in control
of the
motor vehicle being propelled,,, by gravity..., is in terms of
section 20 (1) of the Act deemed to be the driver of that
vehicle.”
The court further held that
“
a
person who is in control of a vehicle is the one who can make it move
or not as he pleases”
6
It is further thereto held that
“
someone
who is deemed to be the driver of a vehicle is in law, although
perhaps not in fact, the driver of that vehicle and must
be treated
as though he or she were manipulating the controls and making, it
move.”
7
[16]
In evaluating the evidence tendered by the only witness, Ms Ratombo,
I am of the view that she became in control of the motor
vehicle the
moment she accepted the keys from Mr Mulaudzi. She intended
(mens
rea)
.
as
testified, to drive the truck to fetch workers as it being one of her
daily work chores. She further exercised control by opening
the door
of the motor vehicle, inserting the key in the ignition slot,
disengaging the gears and starting the motor vehicle though
the
engine failed to run. I find her state of mind to have been to
control the motor vehicle. I thus find her as
“
the
person in control of the vehicle”
on
the day and time of the accident. She, in my view, is deemed to have
driven the truck that caused Plaintiffs injuries as envisaged
in
terms of section 20(1) of RAF Act.
[17] Section 17 (1 )
of the Act clearly confers on any person who got injured as a result
of the accident, an unlimited claim against
the Road Accident Fund
for loss or damages suffered as a result of bodily injury. This
clearly indicates that there must be negligence
on the part of the
insured driver of the insured motor vehicle in order to establish
liability of the Fund. The slightest degree
of negligence is
sufficient to satisfy the provisions of
section 17
(1) of the
Road
Accident Fund Act.
[18
] Ms Ratombo
testified that she opened the truck, inserted the key, and, most
importantly, disengaged the gear to neutral. She conceded
not to have
put the handbrake on at the time of starting the engine even when she
left the motor vehicle seeking assistance from
Plaintiff. I find Ms
Ratombo to have failed to exercise care legally required of a
reasonable driver of a truck in her position
within the circumstance
as described by her in her testimony, by failing to either pull the
hand brakes on or to re-engage the
gear to its former position prior
to her disengaging it to neutral. I find her (insured driver) to have
been negligent rendering
the Defendant liable in terms of
Section 17
(1).
[19] I perused the
draft order handed in by agreement between the parties in calculating
the damages as well as costs to that effect.
I am satisfied and
intend to incorporate it in my order.
[20] I, thus make
the following order;
[20.1] Defendant is
100% liable for the Plaintiffs proven agreed damages;
[20.2]
The Defendant pays the Plaintiff the sum of
R
468 026.00
which
payment is to be effected on or before 04 June 2010;
[20.3] The Defendant
will not be liable for any interest on this payment on condition that
payment be made timeously;
[20.4] In the event
of the Defendant not making this payment timeously the Defendant will
pay interest at the rate of 15.5% per
annum on the amount then
outstanding as provided for in
section 17
(3) (a) of the
Road
Accident Fund, Act 56 of 1996
.
[20.5] The Defendant
furnish the Plaintiff with an undertaking in terms of
Section 17
(4)
(a) of the
Road Accident Fund, Act 56 of 1996
, for costs of the
future accommodation of the Plaintiff in a hospital or nursing home
or treatment of or rendering of a service
to the Plaintiff or
supplying of goods to the Plaintiff arising out of the injuries
sustained by the Plaintiff in the motor vehicle
collision which
occurred on 3 November 2007 after such costs have been incurred and
upon proof thereof;
[20.6] The defendant
pays the Plaintiffs taxed or agreed party and party on the High Court
Scale which will include;
[20.6.1] The costs
of obtaining the reports of the following expert witnesses and their
reasonable reservation and preparation fees
(if any);
[20.6.1.1] Dr Wessel
Van Rensburg: Orthopaedic Surgeon;
[20.6.1.2]Stacey
Fannin (Zenzela Occupational Therapists): Occupational Therapists
[20.6.1.2.2] Christa
Du Toit; Counselling and Industrial Psychologist;
[20.7] the
fees\costs of Senior -Junior counsel;
[20.8] The costs of
obtaining the actuarial report of I B Kramer of Ivan Kramer CC:
Consulting Actuaries, only
[20.9]In the event
that costs are not agreed the Plaintiff agrees as follows;
[20.9.1] The
Plaintiff shall serve the notice of taxation on the Defendant’s
attorney of record; and
[20.9.2] The
Plaintiff shall allow the Defendant 7 (seven) court days to make
payment of the taxed costs.
AML
PHATUDI
JUDGF
OF THF NORTH GAUTENG HIGH
COURT
Heard
on
:
30 APRIL2010
For
the Appellant
Adv
MCC DE KLERK
Instructed
by
:
Messrs SO RAVELE ATTORNEYS
For
the Respondent
:
Adv M HUGO
Instructed
by
:
Messrs
MAPONYA
ATTORNEYS
Date
of Judgment
:
5 MAY 2010
1
RAf
Act 56 of 1996
2
For
the purpose of this Act a person who has placed or left a motor
vehicle at any place shall be deemed to be driving that motor
vehicle
while it moves from that place as a result of gravity, or while it is
stationary at that place or at a place to which it
moved from the
first-mentioned place as a result of gravity. ”
3
In
casu
4
Promulgated
01 May 1997
5
Section
20 (1)
6
Page
22
7
Page
23