About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Mthatha
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Mthatha
>>
2023
>>
[2023] ZAECMHC 28
|
|
Nontsele v Road Accident Fund (474/2022) [2023] ZAECMHC 28 (2 May 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: MTHATHA
Case
No:
474/2022
In
the matter between:
SINTU
THIMNA NONTSELE
Plaintiff
and
ROAD
ACCIDENT FUND
Defendant
JUDGMENT
SAMBUDLA,AJ:
[1]
Sintu Thimna Nontsele, (plaintiff) seeks to recover from the Road
Accident Fund (defendant) damages arising
from a motor vehicle
collision that occurred on 19 February 2019 on N2 National Road, near
Sibangweni, Mthatha.
[2]
On 12 April 2023, by agreement between the parties, merits were
separated from quantum. A formal order to
that effect was made in
terms of Rule 33(4).
[3]
The court was required to determine the issue of negligence and
contributory negligence, as the defendant
conceded liability during
the trial.
[4]
Plaintiff was the only factual witness called to testify and the
defendant failed to call any witness.
[5]
The following facts are common cause and/or at least not in dispute:
At
about 14H30 whilst driving on the N2 National Road on a clear, sunny
day and dry tarred road surface;
1.
Plaintiff was travelling on dual
carriage way road for vehicles en-route to Mthatha from Qumbu
direction;
2.
Plaintiff
overtook an unknown vehicle, driven by an unknown driver (
first
driver
)
[1]
en-route to Mthatha, which had occupied the left slow lane of a dual
carriage way;
3.
Plaintiff moved his vehicle to the fast
lane on his right-hand side, still reserved for vehicle enroute to
Mthatha;
4.
The road is divided by a barrier line from
oncoming vehicles, that is, from Mthatha to Qumbu direction;
5.
The road was curvy and sloppy;
6.
To overtake a slow-moving vehicle on left
lane, the plaintiff moved his Isuzu Bakkie with registration numbers
[….]
to the fast lane; and
7.
Plaintiff did not have to cross the
barrier line and traverse the path of the oncoming traffic when
overtaking the slow moving vehicle
on the slow lane.
[6]
Suddenly, according to plaintiff, an unknown insured driver (
second
driver
)
[2]
left his correct lane of travel, whilst overtaking a truck going
towards the Qumbu direction.
6.1
On the oncoming traffic side, the second
driver, overtook a truck, whilst it was inopportune to do so and
therefore traversed the
plaintiff’s lane of travel;
6.2
To avoid a head-on collision, the plaintiff
swerved his vehicle to the path of the vehicle driven by the first
driver;
6.3
First driver was still occupying the slow
lane, enroute to Mthatha;
6.4
To avoid a head-on collision with the
second driver/vehicle, that was overtaking the truck, plaintiff
swerved his vehicle to the
left-hand side; and
6.5
Plaintiff drove straight into the path of
the first driver/vehicle on the slow lane.
[7]
Plaintiff testified that, he swerved his vehicle into a gap between
his car and the first driver/vehicle.
Plaintiff testified that, the
gap was small and the incident took place quickly and suddenly.
[8]
The first driver/vehicle then collided with the plaintiff’s
motor vehicle from behind. This caused the
plaintiff to lose control
of the vehicle, which veered off the road and rolled.
[9]
Plaintiff lost consciousness which he only regained some five days
after the collision.
[10]
When plaintiff went to report the collision at the Libode Police
Station after his discharge from hospital he was the
only driver to
attend the scene with the police.
[11]
When the sketch plan was drawn and Accident Report (AOR) compiled by
the Libode SAPS member/s, it was the plaintiff who
narrated the
collision to the police.
[12]
In this regard, the plaintiff only recalls advising SAPS member how
the collision occurred and this enabled the SAPS
member to complete
the AOR and Sketch Plan of the collision scene.
[13]
The defendant led no factual witnesses in relation to the collision.
[14]
The defendant’s counsel was content only to cross-examine the
plaintiff regarding contributory negligence.
[15]
In
SAR & H v SA Stevedores Services
Co Ltd
1983(1) SA 1066
(A)
at 1089, it was held that, contributory negligence cannot be raised
as a defence to an action.
[16]
To the extent that, the defendant pleaded contributory negligence, in
my mind, the latter sought only to reduce its liability
and no more.
[17]
Suffices to say, the plaintiff appeared as a credible witness, who
maintained the simplicity of his version regarding
how the collision
occurred.
[18]
Perhaps, to bolster what would later be argued, it was put to the
plaintiff that, on the 19 February 2019, he was able
to avoid the
collision with the first driver/vehicle by taking precautionary and
or preventative measures, in that;
18.1
He could have applied his brakes;
18.2
He could have accelerated his vehicle to
prevent and/or avoid colliding with the first driver/ vehicle; and
18.3
Because of his failure to take
precautionary measures, plaintiff contributed the collision.
[19]
Plaintiff refuted the above assertions maintaining that, he found
himself in a sudden emergency.
[20]
Regard being heard to the second driver, it was put to the plaintiff
that, since it was during the day and the road curvy,
there was no
impediment preventing plaintiff from being able to see the second
driver at a distance.
[21]
This suggestion was once more refuted by the plaintiff and his
response to it that, the second driver/vehicle appeared
suddenly
behind the truck, traversed his path of travel and left him with
little room wherein to manoeuvre.
[22]
Surprisingly, during course of the trial, liability was conceded on
behalf of the defendant and only the apportionment
was left for
determination.
[23]
It is therefore unnecessary to decide on liability. I therefore hold
the defendant liable for the plaintiffs’ proven
damages, save
for the contributory negligence
[24]
In the following paragraphs
I traverse
whether there is any fault attributable to the plaintiff in the form
of contributory negligence and the extent of apportionment
of
damages, if any.
Test
f
or
Negligence
[25]
The test for negligence was aptly stated in
Kruger v Coetzee
1966 (2) SA 428
(A) at 430E-G
,
and I need not repeat herein.
[26]
The plaintiff took a gap where none existed and this resulted in the
first driver colliding with the plaintiff from the
back. Plaintiff
caused a sudden emergency to the first driver in that, the plaintiff
changed lanes when it was not opportune for
him to do so.
[27]
A person cannot be held liable if he has not caused any damaged, see
m
Cubed
International (Pty) Ltd and Another
v
Singer and Others NNo.
[3]
It is important to note that causal nexus is a question of fact and
which must
always be answered in the light of the available evidence and
relevant probabilities, see
Ocean
Accident and Guarantee Corporation Ltd v Koch
.
[4]
Apportionment
of Damages
[28]
Apportionment of damages is a misnomer as it is the fault that is
apportioned in the damages which are concomitantly
reduced.
[29]
Section 1 of the Apportionment of Damages Act 34 of 1956, reads as
follows –
“
Apportionment
of liability in case of contributory negligence
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
j
ust
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.
(2)
Where in any primary effect of the Apportionment of Damages Act, is
now the plaintiff may only recover damage not caused by
his own fault
but by the fault of the wrongdoer. Should plaintiff be at fault in
relation to the causation of his/her damage, his
damages are reduced
proportionally to the fault he heard in the causation of such
damage”.
[30]
What section 1(
a
)
of the Act implies is that the court exercises its discretion in the
determination of the extent of the apportionment. That is
if the
court holds that, there is some fault, which can be attributed to the
plaintiff. With regards to the interpretation of statutes,
see
Cool
Ideas 1186 v Hubbard and Another
2014
(4) SA 474
(CC) at 484E-F and 492A-B and
Natal
Joint Municipal Pension Fund v Endumeni Municipality
2012 (4) SA 593
(SCA) at 603D-604D and 608E-F.
[31]
To be able to find that plaintiff’s claim falls to be reduced
by the application of the Apportionment of Damages
Act. I need first
find that the plaintiff in the prevailing circumstances of this case
was negligent.
[32]
The test for negligence as aptly stated in
Kruger
v Coetzee
, (
supra
).
[33]
Fault is the basis on which damages are reduced relative to the
degree of the fault of the plaintiff and the defendant.
[34]
For a party to rely on contributory negligence this must be
specifically pleaded and appropriate relief in the form of
apportionment of damages must be sought. The defendant must prove
that the plaintiff was negligent and that his negligence was
causally
connected to the loss suffered by the plaintiff in this regard; see
South British Insurance co Ltd v Smit
1962 (3) All SA 548
(A) at page 835H.
[35]
Where the defendant has denied negligence and has made allegations
pointing to the negligence of the plaintiff, the court
may apply
apportionment of damages in consequence of the Apportionment of
Damages Act 34 of 1956, see,
AA Mutual
Insurance Association Ltd v Nomeka
1976
(3) SA 45
(A);
Gibson v Berkowitz and
Another
1996(4)
SA1029 (W).
[36]
The issue of contributory negligence was raised in the defendant’s
plea suggesting that the plaintiff failed to
avoid or take
precautionary steps to avoid the collision.
[37]
The plaintiff’s evidence, at least not contradicted, alludes to
him veering to the left slow lane of the road to
avoid a head-on
collision. In so doing, the plaintiff refutes that he was negligent
and thus contributed to the damages, he ultimately
sustained.
[38]
Without controverting evidence being led by the defendant, the
defendant suggests that plaintiff could have avoided the
collision
with the first and second drivers, if he had taken preventative
measures namely, by applying brakes, and reducing the
acceleration of
his vehicle. As a
result,
plaintiff failed to act reasonable in circumstances.
[39]
Plaintiff maintained that, he veered off to the left lane, in what he
described as sudden emergency, to avoid a head-on collusion.
[40]
Thus, the collision with the first driver is the catalyst, which
ultimately caused the plaintiff to lose control of his
vehicle and
the resultant injuries.
[41]
Mr Niekerk together with Mr Ntikinca who appeared for the plaintiff,
invited the court to make no finding on the apportionment
and this
submission was based on the sudden emergency, which had befallen the
plaintiff.
[42]
Mr. Mzileni, who appeared for the defendant, held a contrary view,
the upshot of which, was that, the plaintiff’s
damages should
be apportioned by 30%.
[43]
It is trite law that with a rear-end collision the driver who
collides with the rear of a vehicle in front of him is
prima
facie
negligent
unless he can give an explanation indicating he was not negligent.
[5]
[44]
Thus, in the absence of evidence to the contrary, it must follow that
negligence of the first driver was the cause of
the damages suffered
by plaintiff. See
Union and South West Africa Insurance Co Ltd v
Bezuidenhout
1982(2) SA 957 (A) at 966A-B.
[45]
The plaintiff’s evidence that he was confronted by a sudden
emergency created by the second insured driver/vehicle
and thereafter
had to take evasive manoeuvres, is not disputed.
[46]
In
Cawood v R
1944 GWLD
50
at 54,
it was held that, “a man who, by another’s want of care,
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”.
[47]
For the submission that, no apportionment should apply Mr. Niekerk
who appeared with Mr Ntikinca, placed reliance on
Hornton and
Another v Fismer
1928 AD 398
at 412, wherein it was held that,
“in judging the action of the motorist or pedestrian faced with
sudden emergency, due allowance
must be made for the possible error
of judgment.”
[48]
Plaintiff testified that, he had over-taken the first driver/vehicle
on the left slow lane. The first driver collided
with the rear-end of
the plaintiff’s vehicle and caused him to lose control.
[49]
This evidence was neither gainsaid nor disputed by the defendant.
[50]
That the second driver overtook the truck when it was not opportune
to do so, in my mind created a sudden emergency for
the plaintiff,
who was driving on his correct and demarcated area.
[51]
Surely, I accept, this would have required the plaintiff to take
immediate action to avoid the imminent danger caused
by the
overtaking second driver without weighing up the consequences of his
actions. See
Goode v SA Mutual Fire & General Insurance Co Ltd
1979 (4) SA 301
(W) at 306G.
[52]
There are two pieces of crucial evidence in the plaintiff’s
testimony which have not been gainsaid by the defendant,
namely, an
oncoming vehicle overtook a truck when it was not opportune to do so,
and thus created a sudden emergency for the plaintiff
and the first
driver collided with the rear-end of the plaintiff’s vehicle,
thus causing him to lose control. In the event,
I am unable to find
the plaintiff was negligent in the collision, let alone any form of
contributory negligence to the damages
plaintiff sustained as a
result of the collision on 19 February 2019.
[53]
From the foregoing, I cannot find that, the plaintiff could have
reasonable forseen the second driver overtaking the
truck. Again and
the extent that the plaintiff pleaded sudden emergency and I am
unable to find any preventative measures or precaution
that the
plaintiff could have taken, other than swerving his vehicle to the
left to avoid the head-on collision.
Costs
[54]
The parties could not find each other regarding the costs of two
counsel and the court was invited to decide that issue.
As starting
point, this is a matter which should not have seen the court’s
doors.
[6]
[55]
Liability was only conceded at the doors of the court. The
interrogatories provided for in the Uniform Rules of Court,
were
considered and resorted to by the defendant. Instead, the matter was
allowed to be certified trial ready without exercising
the settlement
roll option.
[56]
Belatedly, the court is invited to determine the costs of two
counsel. Surely, it has not escaped the parties that, the
issue of
costs falls within the courts judicial discretion.
[57]
In
Internatio
(Pty)
Ltd v Lovemore Bros Transport CC
[7]
it
was held that, in considering whether to award costs of two counsel,
it must first be determined whether this was a “wise
and
reasonable precaution”.
[58]
Whether it was wise and reasonable to employ two counsel is not the
only test, the court will also have regard to the
amount involved and
the nature of the issues in dispute.
[59]
In
De
Naamloze Vennootschap
Alintex
v
Von
Gerlach
[8]
,
it
was held that the important factors to be considered in making an
award for the costs of two counsel were the following, the
length of
the hearing or argument, the importance of the questions of principle
of law involved and the number of legal authorities
quoted.
[60]
In
Keokemoer
v Parity Insurance Co Ltd & Another
[9]
,
where Justice Coleman held that, relevant considerations pertinent to
whether costs of two counsel should be awarded are
―
(a)
the volume of evidence (oral or
written) dealt with by counsel or which he or they could reasonably
have expected to be called upon
to deal with;
(b)
the complexity of the facts or the law
relevant to the case;
(c)
the presence or absence of scientific or technical
problems
,
and their difficulty if they were present;
(d)
any difficulties or obscurities in the
relevant legal principles or in their application to
the facts of the case;
(e)
the
importance of the matter in issue, in so far as that importance may
have added to the burden of responsibility undertaken by
counsel.
[61]
In
Nonkwali
v Road Accident Fund
[10]
,
this Court, per Justice Dawood has had the occasion to pronounce on
the issue of costs occasioned by the engagement of two counsel.
[62]
The parties joint practice note, confirms matter as having set down
for the determination of liability and quantum. For
purposes of
preparation, consultations and trial, plaintiff took precautionary
steps and engaged the services of two counsel.
[63]
Only at the door steps of the trial court, was the plaintiff informed
that:
63.1
The matter will only run on liability;
63.2
The court would be invited to decide
contributory negligence and the apportionment of damages.
[64]
In the exercise of my judicial discretion, my considered view is
that, the engagement of two counsel by the plaintiff
was in the
circumstances of this case wise and reasonable.
[65]
It matters not that, the defendant belatedly conceded liability. It
was unreasonable for the defendant to adopt a passive
attitude and
hope that the plaintiff would also adopt a supine approach and fail
to prepare for the trial.
[
66]
In the result, the following order shall issue:
a)
The defendant is held liable for
100% of the plaintiff’s proven damages as a consequence of the
collision on the 19 February
2019;
b)
The determination of the plaintiff’s
quantum of damages is postponed sine die.
c)
The defendant shall pay plaintiff’s
costs of suit to date, on a party and party scale and such costs
shall include the costs
consequent upon the employment of two
counsel.
L
L SAMBUDLA
ACTING
JUDGE OF THE HIGH COURT
COUNSEL
FOR PLAINTIFF: Mr
Niekerk with
Mr Ntikinca
INSTRUCTED
BY: Z.
Mfiki Inc.
COUNSEL
FOR DEFENNDANT: Mr Mzileni
INSTRUCTED
BY: State
Attorney
HEARD
ON: 12
APRIL 2023
DELIVERED
ON: 02
MAY 2023
[1]
Such
description has been necessitated by the number of vehicles that
were involved in the collision, even though, the plaintiff
had not
fashioned his cause of action against the first driver.
[2]
Plaintiff
seeks to recover damages against the defendant for negligence
premised on the second driver.
[3]
2009
(4) SA 471(SCA)
at 479
⁴
1963(4)
SA 147(A)
[5]
HB
Klopper Law of Collision in South Africa 7 ed (2003) at p 78
[6]
Section
3
of the
Road Accident Fund Act 56 of 1996
, provides for the object
of the Fund and the latter section reads -
“
The
object of the Fund shall be the payment of compensation in
accordance with this Act for loss or damage wrongfully caused by
the
driving of motor vehicles.”
⁷
2000(2)
SA 408 (SE) at 4131.
⁸
1958
(1) SA 13
(T) at 16E
.
⁹
1964
(4) SA 138
(T) at 144H-145A.
¹°
[2009] JOL 23620
(ECM)
.