About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Makhanda
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Makhanda
>>
2023
>>
[2023] ZAECMKHC 50
|
|
Y.D obo I.D v Road Accident Fund (3238/2022) [2023] ZAECMKHC 50 (21 April 2023)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, MAKHANDA)
Case
No: 3238/2022
In
the matter between:
Y[...]
D[...] obo I[…] D[…]
Plaintiff
And
ROAD
ACCIDENT FUND
Defendant
JUDGMENT
BESHE J:
[1] Plaintiff
instituted an action for damages on behalf of her minor daughter,
I[...] D[…]
who is 11 years old. The action is
undefended. At the start of the proceedings and at the instance of
plaintiff’s counsel,
Ms Sidlai
, an order was made in
terms of
Rule 33(4)
separating the issue of merits from that
of the determination of the quantum of damages.
[2]
Plaintiff,
Y[...] D[...]
is the only witness who testified in
this matter. Her evidence revealed that her minor child, who was then
8 years old was hit
by a Quantum taxi whilst crossing the R410/R396
road between Lady Frere and Queenstown. According to
Y[...] D[...]
this area where the accident took place is straight without any
curves, with houses located a distance away from the road. The
incident occurred at about 13h30 at the time when her daughter was
being dropped off by a van that transported her to and from
school.
Y[...] D[...]
was herself waiting for a lift on the opposite
side of the road in her home village of Mtsheko, intending to go to
Lady Frere.
It emerged from
Y[...] D[...]’s
evidence
that their home is on the side on which the scholar transport (the
bakkie) had stopped. Upon alighting from the scholar
transport, her
daughter crossed the road and proceeded towards her.
Y[...] D[...]
testified that the child saw her and crossed the toad towards her. It
was at that stage that a Quantum combi appeared at a high
speed. She
testified that both the child and the Quantum driver tried to avoid
the accident but in vain. The Quantum hit the child
and flung her
into a ditch next to the road.
Y[...] D[...]
testified that
the Quantum was driven at an excessive speed resulting in the driver
not being able to keep the motor vehicle under
control. The Quantum
driver took the child to hospital because the ambulance took long to
arrive.
Y[...] D[...]
expressed the view that the scholar
transport driver was also at fault in that she did not supervise the
children and the driver
of the Quantum by driving at an excessive
speed. She could not say at what speed he drove or what the
applicable speed limit was.
According to her, it was safe for her
daughter to cross the road because when she did so the Quantum was
still far. There is however
no evidence that the child looked to see
if there were any cars approaching.
[3] According
to the accident report that was handed in as part of plaintiff’s
evidence, the accident
is said to have occurred in the following
manner:
“
It
is alleged that the driver was travelling towards Queenstown when a
bakkie was offloading school kids. One child jumped out of
the van
and ran across the road towards a shelter and the driver applied
brakes and drove to the other side of the road and accidentally
bumped the child and the child fell into a donga.”
We now know that the shelter referred
to is the one under which
Y[...] D[...]
was standing.
[4] Plaintiff
pleaded that the collision was occasioned solely as a result of the
negligence of the insured
driver. Plaintiff also relied on the fact
that there was screeching of tyres when the Quantum driver applied
brakes and it left
skid marks on the road for saying he was driving
at an excessive speed.
[5] Can it be
said in these circumstances that the collision was solely as a result
of the negligence of
the Quantum driver?
[6] It is
trite that the
Apportionment of Damages Act
does not apply to
children under 7 years of age. In respect of children between 7 years
and puberty, they are presumed to be
doli incapax
. In the
absence of evidence to rebut this presumption, there is no proof of
the child’s accountability. She was 8 years old
at the time of
the accident.
[7] Be that
as it may, the plaintiff correctly pointed out that the scholar
transport driver was at fault.
Had she supervised the children,
including plaintiff’s daughter, when they alighted from the
motor vehicle, this collision
would not have taken place. The child
would not have crossed the road on the face of an oncoming motor
vehicle. It will, however
not be appropriate to apportion the
liability for the accident because it can only be apportioned between
a claimant who is found
to have been partly at fault and the insured
driver in this case. However, for reasons stated earlier, there has
not been any proof
of accountability on the part of the plaintiff’s
daughter or plaintiff. And no fault or negligence can be attributed
to them.
On the other hand, I am satisfied that the evidence that has
not been gainsaid shows that the driver of the insured vehicle was
negligent.
[8]
Accordingly, defendant is ordered to pay to the plaintiff 100% of
such damages as the plaintiff may
in due cause prove. Defendant is
ordered to pay plaintiff’s taxed or agreed costs party and
party costs of suit.
N
G BESHE
JUDGE
OF THE HIGH COURT
APPEARANCES
For
the Plaintiff:
Adv:
A Sidlai
Instructed
by:
MBAMBO
ATTORNEYS INC.
C/o
ZILWA ATTORNEYS
41
African Street
MAKHANDA
Ref:
DJM/sn/MVA373/2021
Tel.:
047 – 531 0356
For
the Defendant:
No
Appearance
Instructed
by:
THE
ROAD ACCIDENT FUND
Corner
of Druly and Caxton Street
EAST
LONDON
Date
Heard: 19 and 20 April 2023
Date
Reserved: 20 April 2023
Date
Delivered: 21 April 2023