About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Mpumalanga High Court, Mbombela
SAFLII
>>
Databases
>>
South Africa: Mpumalanga High Court, Mbombela
>>
2022
>>
[2022] ZAMPMBHC 68
|
|
K.M obo M.M v Road Accident Fund (3135/2019) [2022] ZAMPMBHC 68 (16 August 2022)
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
(MPUMALANGA DIVISION,
MBOMBELA)
CASE NO: 3135/2019
REPORTABLE:NO
OF INTEREST TO OTHER
JUDGES:YES
REVISED: YES
16/08/2022
In the matter between:
K[....]
M[....]2 obo M[....] M[....]2
Plaintiff
and
ROAD
ACCIDENT FUND
Defendant
JUDGMENT
MASHILE J:
[1]
On 18 July 2014, M[....] M[....]2 (“the
minor child”) with id no:[....](“the minor child”)
was a pedestrian
when she allegedly collided with an unknown motor
vehicle at Ormonch (albeit it was at Arnold A according to the
Plaintiff), Bushbuckridge,
Mpumalanga Province. She sustained
lacerations and abrasions on her head and face respectively.
Believing that the collision exposed
the Defendant to liability for
the injuries suffered by the minor child, the Plaintiff, her mother
and natural guardian, instituted
this damages action under the
headings of future medical expenses, loss of earning capacity and
general damages. The action was
initially instituted in the Gauteng
Division, Pretoria but on 1 August 2019 Potterill J directed that the
case be transferred to
the newly established Mpumalanga Division.
[2]
This Court has become familiar with actions against the Defendant
being initially
opposed and later, for some inexplicable reason,
jettisoned with the result that the Defendant often appears without
legal representation
on the date of hearing. This matter is no
exception. Needless to state that the conduct of the Defendant brings
to bear an unconscionable
burden on the presiding officer during the
proceedings in court. The Defendant has defended the claim and went
further to serve
and file a special plea, which to date it has not
withdrawn.
[3]
The special plea is that the Plaintiff has failed to comply with
Regulations 3 (1)(a)
and 3 (c) of the regulations published under the
Road Accident Fund Act No: 56 of 1996
, as amended. Faced with this
special defence, the Plaintiff secured the services of Dr Segwapa, a
neurosurgeon, to complete a serious
injury report as envisaged in the
aforesaid Regulations. The report has since been completed and
delivered but the Defendant has
not withdrawn the special plea.
[4]
The special plea is therefore extant requiring this Court to first
deal with it prior
to proceeding with the consideration of the entire
claim. This is a norm in all matters containing special pleas as,
depending
on whether it is upheld or not, could be dispositive of the
entire case. To the extent that the Plaintiff has submitted a serious
injury report filled in by Dr Segwapa following his medical
examination of the minor child, the Plaintiff has complied with the
Regulations. As such, the special plea ought to have been withdrawn
and insofar as it still subsists, it is dismissed with costs.
[5]
There is no application before this Court in terms of Rule 33(4) of
the Uniform Rules
of Court that the issues of liability and quantum
be treated discretely. The Court is therefore expected to assess both
issues
and make a pronouncement. As stated earlier, the Defendant’s
defence of this action is somewhat half-hearted insofar as it
has not
contested the merits at all. That said, the absence of a different
version on the collision does not absolve the Plaintiff
from proving
that the collision occurred and that it was occasioned by the
negligent driving of the insured driver. The Plaintiff
testified on
the merits, which were not disputed. Various experts witnesses also
took the stand on behalf of the Plaintiff to justify
the amount of
quantum claimed.
EVIDENCE
[6]
The evidence is partly oral and partly contained in documents such
as, Medical Hospital
Records, Medico-Legal Reports, ETC. An Officer’s
Accident Report (“OAR”) apparently compiled by Captain
Molapo
and Constable Mabilo is also present but it was not introduced
as evidence. To the extent that it does not form part of evidence
properly before Court, does not give a description of how the
collision happened, it is not helpful at all. There is no indication
in the OAR of who the source of the information furnished by the two
officers contained in the OAR is. Furthermore, it is also
significant
that the two officers were not called to shed light on where they
obtained information of the hit-and-run motor vehicle
accident.
[7]
The only person who testified on liability is the Plaintiff. Against
that backdrop,
I proceed to describe how the collision happened as
recounted by the Plaintiff. The essence of the evidence of the
Plaintiff in
chief is that the minor child was playing outside of her
home on the side of the road when the unidentified motor vehicle
collided
with her. In answering a question from her Counsel, Ms
Erasmus, if she saw how the motor vehicle actually collided with the
minor
child, she stated in the affirmative. She was not asked about
the make, the colour or registration letters and numbers of the
vehicle.
Her Counsel also did not ask how far from the road the minor
child was playing shortly prior to the collision nor was the estimate
speed at which the vehicle was driving established.
[8]
The other evidence that she gave pertains largely to quantum and due
to the view that
I take of this matter, it is not necessary to
consider it. Following the conclusion of her evidence in chief, the
Court sought
to clarify some of her statements. Asked whether she saw
the accident taking place, she said that she did not. She added that
she
only saw a vehicle driving away from the scene of accident. Some
members of the community, she testified, attempted to stop the
driver
but he did not heed their pleas.
[9]
If she did not witness the accident, enquired the Court, how did she
acquire knowledge
of the incident. In reply she testified that
G[....] of similar age, playing with the minor child at the time,
alerted her. This
time around, she located the scene of accident as
having been a distance away from her house and not in front of the
house as initially
claimed. Significantly, G[....] whom I guess was
approximately fourteen years old at the time of the trial was not
called to give
testimony nor were any member of the community who
witnessed the motor vehicle driving away. This represents the terse
version
of the Plaintiff’s testimony on merits.
ISSUES
[10]
The Plaintiff bears the onus of proving, on a balance of
probabilities, the facts upon which
she claims the accident happened.
The issue is therefore, aside from the fact that the Defendant did
not contest the merits, whether
or not she has established that
firstly, the minor child collided with a motor vehicle and secondly,
that the accident occurred
as a result of the insured driver’s
negligent driving.
LEGAL FRAMEWORK AND
ANALYSIS
[11]
The
locus
classicus
on negligence is set out in the case of
Kruger
v Coetzee
where
[1]
it was stated:
“
For
the purposes of liability culpa arises if –
(a)
A diligens paterfamilias in the position of the
defendant –
(i)
would foresee the reasonable possibility of his conduct
injuring another in his person or
property and causing him patrimonial loss; and
(ii)
would take reasonable steps to guard against such
occurrence; and
(b)
the defendant failed to take such steps.”
[12]
It is alleged in the particulars of claim that the minor child, a
7-year old child at the time,
collided with an unknown motor vehicle
whose driver nor owner could not be identified. It is further averred
that the collision was caused by the
negligent driving of the unidentified driver. The instances of
negligent driving of the unidentified
driver are descried in the
particulars of claim as herein below:
12.1
The driver of the insured vehicle failed to apply his breaks
timeously or at all;
12.2
He drove at an excessive speed under the circumstances and overtook
where it was dangerous to do so;
12.3
He failed to reduce speed when he ought to and could have done so;
12.4
He failed to keep the motor vehicle under proper and effective
control.
[13]
In reply, the Defendant stated that it did not have any knowledge of
the accident and denied
the grounds for negligence. It pleaded that
in the event of this Court holding that an accident occurred on 18
July 2014, which
accident was caused by the negligent driving of the
unknown driver, then the Defendant pleads that such driver was facing
a situation
of sudden emergency. No evidence to support this version
was levied before Court.
[14]
The evidence levied before Court by the Plaintiff does not underpin
the bare averments made in
the particulars of claim. To start with
and at a very basic level, the Plaintiff did not see how the accident
occurred. She could
not even say whether or not it was a motor
vehicle that injured the minor child. All that she observed was a
motor vehicle driving
away from the scene of accident and that some
members of the community were trying to stop the driver but he would
not do so.
[15]
It was evident at the end of the Plaintiff’s case on liability
that the evidence that had
been presented up to that moment was
manifestly insufficient. The minor child was apparently in the
company of her friend, G[....],
playing on the side of the road when
the accident took place but no attempt was made to call him to
strengthen the Plaintiff’s
evidence. Even the minor child
herself, then (date of hearing of the case) aged approximately
fourteen, was not called to testify.
As though that was not enough,
the Plaintiff made reference to members of the community trying to
stop the driver but not even
a single witness among those was called
to take the stand in support of a case for negligent driving on the
part of the insured
driver.
[16]
The evidence of the Plaintiff, on its own, is hopelessly inadequate
to establish a case of negligent
driving in the manner alleged in the
particulars of claim. Thus, further issues that arise at this
juncture become:
16.1
Has the Plaintiff made a case both on the pleadings and evidence
adduced by the Plaintiff that can be consistent with
a decision that
the insured driver drove negligently?
16.2
If the Plaintiff has not, has she nonetheless established a case that
cannot justify the granting of absolution from
the instance?
[17]
I have already answered the first question and that is that the
evidence of the Plaintiff before
Court is not enough to support a
case of negligent driving against the insured driver. The legal
position on the granting or refusal
of absolution is trite. The test
to be applied for absolution, usually at the end of the Plaintiff’s
case, is not whether
or not the evidence levied before
Court by the Plaintiff demonstrates
what would customarily be
necessary to be proved at the conclusion of the case of both parties.
Instead, a Court should ask itself
whether or not there is evidence
upon which a Court, applying its mind reasonably to such evidence,
‘could or might’
and not should, nor ought to’ find
for the Plaintiff were the matter to proceed to finality. See,
Claude
Neon Lights (SA) Ltd v Daniel
[2]
.
[18]
It has been said that the test entails that a Plaintiff has to make
out a
prima
facie
case such that there is evidence relating to all the elements of the
claim to survive absolution because without such evidence
no Court
could find for the Plaintiff. See,
Marine
& Trade Insurance Co Ltd v Van der Schyff
.
[3]
The Plaintiff has made no case of negligence at all such that there
is no evidence upon which a Court, applying its mind reasonably
to
such evidence, ‘could or might’ and not should, nor ought
to’ find for the Plaintiff were the matter to proceed
to
finality. See the
Claude
Neon Lights case supra.
[19]
The Plaintiff has until now failed to make out a
prima
facie
case such that there is no
evidence relating to all the elements of the claim. The element of
fault, whether in the form of intention
or negligence, is
conspicuously absent among the four required to establish of
delictual liability. In the result, I am constrained
to make the
following order:
I grant absolution from
the instance.
B A MASHILE
JUDGE OF THE HIGH
COURT OF SOUTH AFRICA
MPUMALANGA DIVISION,
MBOMBELA
This judgment was
handed down electronically by circulation to the parties and/or
parties’ representatives by email. The date
and time for
hand-down is deemed to be 16 August 2022 at 10:00.
APPEARANCES:
Counsel for the
Plaintiff: Adv
N Erasmus
Instructed
by: Mphokane
Attorneys
Counsel for the
Respondent:
No Appearance
Instructed by:
Date of
Judgment: 16
August 2022
[1]
1966
(2) SA 428
[2]
1976
(4) SA 403 (A)
[3]
1972
(1) SA 26
(A) at 37G - 38A