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[2022] ZAMPMBHC 16
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Monate v Road Accident Fund (3214 / 2019) [2022] ZAMPMBHC 16 (4 April 2022)
THE
HIGH COURT OF SOUTH AFRICA
MPUMALANGA
DIVISION, MBOMBELA MAIN SEAT
CASE
NO: 3214 / 2019
REPORTABLE: NO
OF INTEREST TO OTHER
JUDGES: NO
REVISED.
04 April 2022
In
the matter between:
TSEPO
DAN
MONATE
PLAINTIFF
and
ROAD
ACCIDENT
FUND
DEFENDANT
Delivered:
This judgment was handed down electronically by circulation to the
parties' representatives by email. The date and time
for hand-down is
deemed to be 10H00 on 04 April 2022.
JUDGMENT
RATSHIBVUMO J
[1]
This is a claim for general damages,
medical expenses and loss of earnings totalling R5 100 000.00
by the Plaintiff, against
the Road Accident Fund. The trial proceeded
by way of default as there was non-appearance for the Defendant.
Court ordered the
separation of the quantum from the merits in
accordance with Rule 33(4), at the request by the Plaintiff. The
trial proceeded in
respect of the merits only. The issue relating to
quantum was postponed s
ine die
.
[2]
Tsepo Dan Monate was the only witness who
testified. He is the Plaintiff in this case. He testified that on 03
March 2019, he was
a driver of an Audi A5 motor vehicle driving along
R101 Old Pretoria Road, from Nelsville to Kanyamazane. He was
traveling alone
having left Nelsville at about 18h30. It was already
dark as he had his headlamps on. He was driving at a speed of 80
km/h. Suddenly,
a motor vehicle came from behind and hit his motor
vehicle from behind. After being hit from behind, he lost control of
his motor
vehicle and it rolled to the right side of the road. He was
unconscious for a while but when he regained consciousness, he was
being treated by the paramedics at the scene of the accident. He was
later taken to the hospital where he was admitted for 14 days.
[3]
When he was discharged, he went to the
police station to find out if the police have managed to trace the
driver of the motor vehicle
that drove into his. The police told him
they had not. He was however made aware by the police that the
Accident Report reflected
that it was a single motor vehicle
accident. This was however not true. The police also told him they
could not change the content
of the report. From the bundle of
pleadings there is a report prepared by Dr. Tladi, an Orthopaedic
Surgeon who consulted with
the Plaintiff two years after the
accident. In this report, Dr. Tladi wrote that the Plaintiff said he
was the “restrained
driver of a car that rolled after he lost
control of a car while trying to avoid an animal on the road.”
When asked by the
court to comment on this, the Plaintiff denied
having told this to Dr. Tladi.
[4]
This evidence concluded case for the
Plaintiff.
[5]
In his address, Plaintiff’s Counsel
requested the court to find that the Road Accident Fund was liable as
the injuries were
direct results of negligent driving by the insured
driver whose details were unknown.
[6]
This case has striking resemblances of case
no. 1180/2018 between Nkuna and the RAF, whose judgment is also
handed down today. The
same legal representatives are also involved
in that matter. This should explain the similar judgment handed down.
[7]
I
must emphasise at this stage that the onus to decide whether the
insured driver was negligent and to what extent, rests on the
plaintiff, who must show on a balance of probabilities that the
insured driver was negligent and that the negligence was the cause
of
the collision from which he sustained the bodily injuries. There is
no onus on the Defendant to prove anything.
The
Defendant may have an evidentiary burden to rebut a
prima
facie
case established by the Plaintiff.
[1]
[8]
The
liability of the Road Accident Fund finds its basis and application
from the Road Accident Fund Act
[2]
which provides that the Fund shall
be
obliged to compensate any person (the third party) for any loss or
damage which the third party has suffered as a result of any
bodily
injury to himself or herself or the death of or any bodily injury to
any other person, caused by or arising from the driving
of a motor
vehicle by any person at any place within the Republic, if the injury
or death is due to the negligence or other wrongful
act of the driver
or of the owner of the motor vehicle or of his or her employee in the
performance of the employee's duties as
employee: Provided that the
obligation of the Fund to compensate a third party for non-pecuniary
loss shall be limited to compensation
for a serious injury as
contemplated in subsection (1A) and shall be paid by way of a lump
sum.
[9]
It follows from the above that the
liability of the Fund shall follow the injury sustained by the
Plaintiff only if he is able to
prove on a balance of probabilities
that the injury was caused by the negligent driving of an insured
driver. The Fund’s
liability is excluded where the cause of the
injury cannot be linked to the negligent driving of an insured driver
or where the
cause can be attributed to the Plaintiff alone. It is
trite that the Fund would not be liable in instances where the
claimant is
the driver of a motor vehicle that was involved in an
accident alone without the involvement of another motor vehicle in
any manner
as this would be indicative of sole negligence on the part
of the driver or the claimant.
[10]
The Plaintiff
in
casu
must have been conscious of the
onus on his shoulders the moment it came to his attention that the
Accident Report reflects that
he lost control of the motor vehicle
and it rolled, without any involvement of another motor vehicle. The
details of the officer
who completed the Accident Report were there
in the report. No efforts were done to rectify those contents if they
were not reflective
of what happened. There is no doubt that
rectifying these would not be easy without presenting the police with
evidence that proves
the involvement of another car.
[11]
While the task is obviously not an easy
one, it should however be simple if there was indeed another motor
vehicle involved. Before
there could be a “correction” of
Accident Report, one would expect the Plaintiff to explain where Dr.
Tladi got the
information about him avoiding an animal on the road
from. The consultation between him and Dr. Tladi took place about two
years
after the accident. Dr. Tladi who is one of his expert
witnesses was not called to explain this part of the report which is
very
relevant to the merits of the case. If the statement by Dr.
Tladi is true, then the claim against the Fund would be misplaced as
it should have been directed against the animal owner. The Fund’s
insurance is limited to motor vehicle drivers whose negligence
results in accident that causes human injuries. This will surely not
cover the animals, unless the claim is directed against the
animal
owner.
[12]
Some of the steps that the Plaintiff could
have taken in “rectifying” the “faulty accident
report” would
entail obtaining photographs of the motor vehicle
taken soon after the accident so as to demonstrate the rear damages
and/or paint
of the other motor vehicle in it, if any. It appears
this was not done or no such evidence was presented before me. The
officer
who completed the Accident Report was not called to give
evidence. All these steps were also not undertaken for purposes of
trial.
[13]
It
follows therefore that the Plaintiff failed to show on balance of
probabilities that the injuries he sustained were a direct
result of
negligent driving by the insured driver. The court has sympathy for
the Plaintiff over the injuries sustained in the
accident. As Steyn J
puts it, it would be inappropriate to make an order burdening the
already strained Fund based on sympathy
one has for the Plaintiff.
[3]
For reasons stated above, the claim should fail. There shall be no
costs order as the action was undefended.
[14]
The following order is therefore made:
[14.1] The claim is
dismissed.
[14.2] No cost order is
made.
TV
RATSHIBVUMO
JUDGE
OF THE HIGH COURT
FOR
THE PLAINTIFF
: ADV. MOGAGABE
INSTRUCTED
BY
: MACBETH ATTORNEYS
MBOMBELA
FOR
THE DEFENDANT
: NO APPEARANCE
DATE
HEARD
: 14 FEBRUARY 2022
JUDGMENT
DELIVERED : 04
APRIL 2022
[1]
Ninteretse
v Road Accident Fund
(29586/13) [2018] ZAGPPHC 439 (2 February 2018) per Raulinga J
[2]
See
section 17(1)
of the
Road Accident Fund Act, 56 of 1996
.
[3]
Auret
N.O obo Kieser v Road Accident Fund
(14206/2014)
[2020] ZAWCHC 192
(28 April 2020) at para 62.