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[2023] ZAECMKHC 77
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Roma v Road Accident Fund (2111/2020) [2023] ZAECMKHC 77 (27 June 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, MAKHANDA)
CASE
NO. 2111/2020
In
the matter between:
YANDISWA
YVONNE
ROMA
Plaintiff
and
ROAD
ACCIDENT
FUND
Defendant
JUDGMENT
LAING
J
[1]
This is a claim for damages arising from a motor vehicle accident
that
occurred on 18 July 2019 on the outskirts of Makhanda.
Background
[2]
The plaintiff alleged that a motor vehicle driven by a Ms Asavela
Tebe
had collided with her in Jacob Zuma Drive while she had been on
foot. She alleged that the collision had occurred because of the
sole
negligence of the driver in question, who had been negligent in one
or more of the following respects: the driver had failed
to keep a
proper lookout; she had failed to give the plaintiff a wide enough
berth; she had failed to apply her brakes; she had
failed to keep her
vehicle under proper control; and she had failed to avoid the
collision when she could have done so if she had
exercised reasonable
care and skill. Consequently, the plaintiff had sustained a mid-shaft
fracture of the left tibia and an open
wound to her left leg, for
which she had received medical treatment. She claimed an amount of R
3,880,600 for damages suffered.
[3]
The defendant pleaded no knowledge of the allegations, refused to
admit
same, and put the plaintiff to the proof thereof. Its defence
amounted to a bare denial. No contributory negligence was pleaded.
[4]
The parties proceeded to trial.
Issues
to be decided
[5]
At a pre-trial conference, held in terms of rule 37, the parties
agreed
that it would be convenient for the issues of liability and
quantum to be decided separately. They further agreed to limit the
issue of liability to the determination of the driver’s degree
of negligence.
[6]
The court, at the commencement of trial proceedings, ordered that the
issues in question be separated. Consequently, the only issue for
determination was the negligence of Ms Tebe at the time of the
accident.
[7]
The relevant principles are set out, briefly, in the paragraphs that
follow.
Legal
framework
[8]
The
provisions of section 17(1) of the Road Accident Fund Act 56 of 1996
(‘RAF Act’) stipulate that the defendant is
obliged to
compensate a person for loss or damage suffered because of a bodily
injury caused by or arising from the driving of
a motor vehicle. The
defendant’s liability is conditional upon the injury having
resulted from the negligence or wrongful
act of the driver.
[1]
An evidentiary onus rests on the plaintiff to prove such negligence.
[9]
Contributory negligence on the part of the plaintiff can reduce such
loss
or damage in accordance with the provisions of section 1 of the
Apportionment of Damages Act 34 of 1956 (‘the Apportionment
Act’), which states as follows:
‘
(1)
(a) Where any person suffers
damage which is caused partly
by his own fault and partly by the
fault of any other person, a claim in respect of that damage shall
not be defeated by reason
of the fault of the claimant but the
damages recoverable in respect thereof shall be reduced by the court
to such extent as the
court may deem just and equitable having regard
to the degree in which the claimant was at fault in relation to the
damage.
(b)
Damage shall for the purpose of paragraph (a) be regarded as having
been caused by a person’s
fault notwithstanding the fact that
another person had an opportunity of avoiding the consequences
thereof and negligently failed
to do so.’
[10]
The above principles constitute a basic framework for the
determination of the issue that
lies at the heart of the present
matter. A synopsis of the evidence presented at trial follows.
Evidence
at the trial
[11]
The plaintiff called just a single witness, a Ms Phumela Sintwa. She
testified that, on
the date of the accident, she had been returning
home after taking her children to school. She had been travelling
along Jacob
Zuma Drive, which was a tarred road with single lanes.
There had been other vehicles on the road at the same time but at
some distance
away. The weather had been fair, a clear day with no
rain.
[12]
As she was driving, Ms Sintwa had observed the plaintiff cross the
road from left to right.
The plaintiff had reached the other side of
the road when an oncoming vehicle had swerved to the left and
collided with the plaintiff
between the yellow barrier line and the
gravel strip. Ms Sintwa had halted her vehicle and gone to assist.
She stated that the
driver had shouted at the plaintiff, asking her
why she had crossed the road and complaining that she was late for an
appointment.
[13]
Under cross-examination, Ms Sintwa indicated that the accident had
occurred on an open
stretch of road, adjacent to a field. There were
not many buildings in the immediate vicinity, but she had noticed a
few pedestrians
and cattle. There had been no other vehicles close
by. Ms Sintwa estimated that the width of the road had been
approximately six
or seven metres and she confirmed that the
plaintiff had been struck by the vehicle on the other side of the
yellow barrier line.
[14]
The defendant closed its case without calling any witnesses.
Discussion
[15]
A
s a point of departure, it is helpful to
reiterate a basic principle of evidence. Schwikkard points out that:
‘
In
civil cases the burden of proof is discharged as a matter of
probability. The standard is often expressed as requiring proof
on a
“balance of probabilities” but that should not be
understood as requiring that the probabilities should do no
more than
favour one party in preference to the other. What is required is that
the probabilities in the case be such that, on
a preponderance, it is
probable that the particular state of affairs existed.’
[2]
[16]
The plaintiff in the present matter bears
the onus of discharging the burden of proof regarding the allegation
that the driver,
Ms Tebe, was negligent. Her case was built on the
evidence of a single witness.
[17]
In that regard, Ms Sintwa displayed no
apparent bias and there were no obvious contradictions in her
testimony. Although her court
appearance was brief, her performance
in the stand was cogent and of a good calibre. She had observed the
accident directly and
was an independent witness with a good recall
of the circumstances at the time. Overall, Ms Sintwa was a credible
and reliable
witness. It is probable that the plaintiff had indeed
crossed the road as described and had almost reached the gravel strip
when
she had been struck by Ms Tebe, who had inexplicably swerved
left.
[18]
From the above evidence, the court is
satisfied that the plaintiff has proved that the driver had been
negligent based on one or
more of the grounds pleaded. Ms Tebe had
either failed to keep a proper lookout or to give the plaintiff a
wide enough berth when
she collided with her on the other side of the
yellow barrier line. If she had applied her brakes effectively or
kept her vehicle
under proper control or simply maintained a straight
line of travel, which she did not, then the accident could have been
avoided.
[19]
At this stage, it is necessary to deal with
the defendant’s attempt to allege that there had been
contributory negligence
on the plaintiff’s part. In argument,
the defendant’s legal representative contended that the
plaintiff herself had
failed to keep a proper lookout at the time.
Contributory
negligence
[20]
It was common cause that the defendant had failed
to plead
contributory negligence and apportionment.
Nevertheless, the defendant’s legal representative presumably
had section 1(1)(a)
of the Apportionment Act in mind when she
intimated that the plaintiff’s damages ought to be reduced by
the extent to which
the plaintiff’s alleged negligence had had
a bearing on the accident.
[21]
In
AA
Mutual Insurance Association Ltd v Nomeka
,
[3]
the erstwhile Appellate Division considered the situation where a
defendant had failed to plead apportionment. The plaintiff had
asserted that the defendant was precluded from relying on the
Apportionment Act and the court was prevented from applying the
provisions thereof where it had held that the plaintiff was partly at
fault. Viljoen AJA stated as follows:
‘
The weight of the
decisions is, therefore, that provided the plaintiff’s fault is
put in issue, an apportionment need not
be specifically pleaded or
claimed. This is the correct view, in my opinion.
The Act has become part
of our law of delict. It has supplanted the former all-or-nothing
effect of the common law in this respect.
I agree… that upon a
determination of issues properly raised in the pleadings the Court
must give judgment in accordance
with the imperative direction of
section 1 of the Act.’
[4]
[22]
The
reasoning of the court has been followed in subsequent decisions.
[5]
Counsel for the plaintiff in the present matter referred to
Ndaba
v Purchase
,
[6]
where Hugo J held:
‘…
no
allegation is made that the collision was caused by any negligence on
the part of the Plaintiff. That being so it seems to me
that the case
resolved itself into a so-called one percenter and that no question
of contributing negligence or apportionment of
damages could arise.
That Magistrate in his judgment referred to the case of
AA Mutual
Insurance Association Ltd v Nomeka
1976 (3) SA 45
(AD) but I
think that he misunderstood that case. In that case it was held that
it was not necessary for a Defendant to plead an
apportionment of
damages provided (and this is important),
provided
that the
negligence of the Plaintiff had been placed in issue. In that
particular case the plea in this regard read as follows:
“
(a)
Defendant denies that the said collision was due to any negligent
driving of the insured vehicle by
the said Mrs Holdsworth and denies
that she was negligent in the respects alleged or at all.
(b)
Defendant pleads that the collision was due solely to the negligent
driving of the plaintiff himself
he being negligent and at fault in
one or more of the following respects…”
On that basis and because
of the form of this pleading the Court held that a formal plea in the
apportionment of damages was not
necessary. The crux of the finding
is found in the following passage at page 55:
“
The weight of the
decision is therefore that provided that Plaintiff’s fault is
put in issue an apportionment need not be
specifically pleaded or
claimed. That is the correct view in my opinion.”’
[7]
[23]
From the above, it is incumbent on the
defendant to place in issue the plaintiff’s negligence at the
stage of pleading. This
establishes the basis of the defendant’s
case and outlines the nature of the trial proceedings to follow. If
the defendant
has not pleaded negligence on the plaintiff’s
part, then it cannot subsequently ask the court for the apportionment
of damages.
[24]
Counsel
for the plaintiff in the present matter also referred to
Harwood
v Road Accident Fund
,
[8]
where Van der Schyff AJ held as follows:
‘
It
is trite that in trial proceedings parties must formulate their cases
and the issues on which evidence must be led, in their
pleadings.
[9]
A defendant cannot, at the trial, rely on a defence,
in
casu
sudden emergency, which is not pleaded. Neither can a plea of
apportionment of damages be considered in the absence of specific
allegations concerning the plaintiff’s negligence.’
[10]
[25]
In the present matter, the defendant never pleaded that the plaintiff
failed to keep a
proper lookout. The defendant never pleaded any form
of negligence at all. Consequently, the questions of contributory
negligence
on the plaintiff’s part and the resultant
apportionment of damages in terms of section 1(1)(a) of the
Apportionment Act do
not arise.
[26]
The relief to be afforded to the plaintiff is discussed below.
Relief
and order
[27]
It was necessary for the plaintiff to have proved a bare minimum of
negligence (a so-called
‘1%’) before the provisions of
section 17(1) of the RAF Act could be triggered. The court is
persuaded, based on the
evidence presented by Ms Sintwa, that the
plaintiff has indeed done so successfully.
[28]
There can be no possible apportionment of the damages to be awarded
for the reasons already
discussed. The driver’s sole negligence
was the cause of the accident and the damages that followed.
[29]
Regarding costs, the plaintiff has been entirely successful in
relation to the determination
of liability. There is no reason why
the usual order should not follow.
[30]
In the circumstances, the following order is made:
(a)
the defendant is held liable for payment to the plaintiff of 100% of
her damages, as ordered
or agreed upon by the parties, because of the
injuries suffered by the plaintiff in the motor vehicle accident that
occurred on
18 July 2019, along Jacob Zuma Drive, at Makhanda;
(b)
the defendant is directed to pay the plaintiff’s
party-and-party costs on the High
Court scale, as taxed or agreed
upon by the parties, such costs to include the costs of trial on 1
December 2022 and 29 March 2023;
and
(c)
the defendant is directed to pay interest on the costs described in
(b), above, at the prevailing
legal rate, calculated from the date of
allocatur
until the date of payment.
JGA
LAING
JUDGE
OF THE HIGH COURT
Appearance:
For the plaintiff:
Adv
KD Williams, instructed by Morné Struwig Inc, c/o
Whitesides Attorneys, 53 African Street, Makhanda (ref: Mr G
Barrow / C12593)
For the defendant:
Ms V
Jeram, State Attorney, c/o Yokwana Attorneys, 10 New Street,
Makhanda (ref: ROMA/ Z01 / CJ)
Dates
of hearing:
1
December 2022 and 29 March 2023
Date
of judgment:
27
June 2023
[1]
MP
Olivier, ‘Social Security: Core Elements’,
LAWSA
(LexisNexis, Vol 13(3), 2ed, July 2013), at paragraph 163.
[2]
PJ Schwikkard (et al),
Principles
of Evidence
(Jutastat e-publications,
4
th
Ed, 2016), at ch32-p 628.
[3]
1976
(3) SA 45 (A).
[4]
At
55 D-E.
[5]
See,
for example,
Ndaba
v Purchase
1991 (3) SA 640
(N);
Gibson
v Berkowitz and another
1996 (4) SA 1029
(WLD); and
Harwood
v Road Accident Fund
2019 JDR 1768 (GP). See, too, the discussion in Klopper HB,
The
Law of Collisions in South Africa
(LexisNexis, 8ed, 2012), at 92 and 148; and Harms LTC,
Amler’s
Precedents of Pleadings
(LexisNexis, 9ed, 2018), at 274.
[6]
Referred
to above, n 5.
[7]
At
64.
[8]
Referred to above, n 5.
[9]
Imprefed
(Pty) Ltd v National Transport Commission
1993
(3) SA 94
(A), at 107C-H.
[10]
Harwood
,
referred to above, n 5, a
t
paragraph [6].