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[2022] ZANCHC 44
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Sieberhagen N.O obo Riet v Road Accident Fund (590/2019) [2022] ZANCHC 44 (5 August 2022)
SAFLII
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA
(NORTHERN
CAPE DIVISION, KIMBERLEY)
Case
No: 590/2019
Heard:
27 July 2022
Judgment
delivered: 05 August 2022
REPORTABLE:
NO
Circulate
to Judges: NO
Circulate
to Regional Magistrates: NO
Circulate
to Magistrates: YES/NO
In
the matter between:-
ANNA
SOPHIA SIEBERHAGEN N.O. ON BEHALF OF
WIEKUS
EFRIAM RIET
PLAINTIFF
and
THE
ROAD ACCIDENT FUND
DEFENDANT
JUDGMENT:
INTRODUCTION:-
[1]
Mr Wiekus Efraim Riet was injured on 13 May 2018 in a motor vehicle
accident on the
Diamond Park main road at or near Greenpoint,
Kimberley, Northern Cape Province. He was a pedestrian. Mr
Mosala was driving
a white Opel Corsa bakkie with registration number
[....].
[2]
Despite the agreement reached between the parties in the Rule 37
conference that the
merits and the quantum would be adjudicated
separately, the parties at the outset of the hearing applied for a
separation between
the issues of merits and quantum in terms of Rule
33(4) of the Uniform Rules of Court. This application was granted,
and the trial
accordingly proceeded on the merits.
[3]
Mr Riet is duly assisted herein by his appointed
curatrix ad
litem
, Mrs AS Sieberhagen.
[4]
The plaintiff alleged that the accident was caused by the sole
negligence of the Mr
Mosala.
[5]
In its plea, the defendant denied the plaintiff’s allegation
that that was the
sole cause of the accident as alleged. The
defendant’s alternative and conditional pleas are that:-
5.1
the accident was caused by the sole negligence of the plaintiff; or
5.2
the accident was caused by the contributory negligence of the
plaintiff. Accordingly, the defendant prayed
that the plaintiff’s
damages, if proven, should be apportioned in accordance with his
degree of negligence
vis-à-vis
that of the driver.
[6]
The question for determination is whether the
collision
was
caused by negligence on the part of the insured driver;
and, if so, whether Mr Riet’s negligence was a contributory
cause.
[7]
The onus is on the plaintiff on the first issue. If he fails, that
will be the end
of the matter. If he succeeds, he is entitled to his
proven damages in full. The onus on the second issue is on the
defendant.
EVIDENCE:-
[8]
Mr Riet was unable to testify due to his poor memory and Messrs DL
Pieters and I Appie
were called to testify on his behalf.
[9]
Mr DL Pieters testified that:-
9.1
He has been Mr Riet’s caregiver since he was discharged from
hospital on 23 December 2018;
9.2
Mr Riet is unable to testify as he cannot remember the collision or
how he sustained his injuries;
9.3
On 13 May 2018 at approximately 11:00, he and Mr Riet went to Oom
Jan’s tavern where they were met by
Mr Appie and another
friend. Mr Appie took photos of Mr Riet and their friend while
they were standing on the paving at the
side of the road;
9.4
Mr Pieters remained seated on a crate, drinking a Black Label beer,
and he was watching them take the photos;
9.5
Mr Riet crossed the road to buy coal at the tuck shop across from the
tavern;
9.6
He witnessed the insured driver reversing from his yard in the same
street and driving very fast, more than
40/60 km/hour in their
direction;
9.7
The insured driver did not stop at the four-way stop, but kept on
speeding towards them;
9.8
Mr Appie and their friend jumped out of the road;
9.9
The insured driver’s vehicle veered into the right lane and
collided with Mr Riet;
9.10
The insured driver did not apply his brakes or hoot prior to the
collision. He only applied his brakes after the collision;
9.11
Mr Riet was flung through the air and landed some distance away; and
9.12
The insured driver brought his vehicle to a standstill approximately
3 houses further down the road.
[10]
Under cross examination, Mr Pieters persisted with his evidence
without being swayed.
I
do not hesitate to accept his evidence as a credible and reliable
version of the accident. His evidence was not tarnished by any
contradictions.
[11]
Mr Appie’s evidence, although not faultless in that he
experienced problems when questioned
on estimated distances,
corroborated Mr Pieters’s evidence in material respects,
especially with regard to the following:-
11.1
Where Mr Riet, himself and their friend were standing before the
collision;
11.2
The insured driver travelled at high speed;
11.3
The insured driver did not hoot or brake before the collision;
11.4
The insured driver swerved into the wrong lane and collided with Mr
Riet; and
11.5
After the collision, the insured driver brought his vehicle to
standstill approximately 5 or 6 houses away.
[12]
The insured driver, Mr Mosala, testified on behalf of the defendant.
His evidence, when examined
in chief, was that:-
12.1
He stopped at the four-way stop and witnessed people, with beers,
standing in the road in his lane;
12.2
He was travelling at approximately 20/40km per hour;
12.3
He tried to hoot, but the pedestrians did not move away.
12.4
He attempted to swerve to avoid them, but Mr Riet moved into the
right lane where he collided with him.
[13]
Tellingly, however, the insured driver also testified that he could
see everything on the road
before the collision.
[14]
Under cross-examination, he testified that:-
14.1
He lives in the same street where the collision occurred
14.2
He knew that there was a tuck shop and a tavern close to the four-way
stop and that there possibly could be pedestrians
in the vicinity;
14.3
He had already noticed the people in the road when he stopped at the
four-way stop;
14.4
He expected the pedestrians to move away when he hooted;
14.5
It did not cross his mind to slow down or stop as he had already
swerved into the wrong lane to avoid the pedestrians;
14.6
He could not immediately apply his brakes after the collision as he
could not see properly due to the shattered windscreen
and the fact
that Mr Riet was lying on top of the bonnet; and
14.7
He brought his vehicle to stand still approximately 18-20m from the
point of impact.
APPLICABLE
LEGAL PRINCIPLES:-
[15]
It is trite that the plaintiff bears the overall
onus
to prove, on a balance of probabilities, that the insured was driving
negligently at the time of the collision. In
Stacey
v Kent
[1]
,
Kroon J, writing for the majority of the Full Bench, put it in this
way:-
“…
The
enquiry at the conclusion of the case remains whether the plaintiff
has, on a balance of probabilities, discharged the onus
of
establishing that the collision was caused by negligence attributable
to the defendant. In that enquiry the explanation tendered
by the
defendant will be tested by considerations such as probability and
credibility.”
[16]
The application of
the balance of probability test, where there are two factually
different versions before court, has been enunciated
by our courts as
follows:-
“
In
deciding whether the plaintiff has discharged the onus of proof, the
estimate of the credibility of a witness will be inextricably
bound
up with a consideration of the probabilities of the case and, if the
balance of probabilities favour the plaintiff, then
the Court will
accept his version as being probably true. If however the
probabilities are evenly balanced in the sense that
they do not
favour the plaintiff's case any more than they do the defendant's,
the plaintiff can only succeed if the Court
nonetheless
believes him and is satisfied that his evidence is true and that the
defendant's version is false. It is
not desirable for a
Court first to consider the question of the credibility of the
witnesses and then, having concluded that enquiry,
to consider the
probabilities of the case, as though the two aspects constitute
separate fields of enquiry.”
[2]
[17]
The author, WE Cooper
[3]
writes
as follows about a pedestrian’s duty when crossing a road:-
“
A
pedestrian who intends crossing a road should do so at an opportune
moment and he must exercise reasonable care. He must use his
senses
to ascertain whether any motor vehicles are approaching. He should
keep a proper look-out; he should acquaint himself with
the vicinity
and scan the road so as to ascertain whether any motor vehicle on the
road may be an actual or potential risk to his
safety. Usually a
pedestrian will look to left and to right before entering the road.
Once he reaches the centre of the road he
should devote his attention
to motor vehicles approaching from his left.”
[18]
In
Pearce
v Taylor
,
[4]
Pittman J stated as follows about the pedestrian duty:-
“
Obviously
the extent of the pedestrian’s duty must be determined in
accordance with the circumstances, e.g., the nature and
width of the
road, and here the one in question is comparatively narrow, and the
situation unfolded in the evidence rather one
to which the remarks of
the present learned Chief Justice in Baratz v. Johannesburg
Municipality ([1913] T.P.D. at p. 741), should
be applied, viz.: “As
was pointed out in Clark v. Petrie (16 Sc.L.R. pp. 626, 627), there
is no obligation on a foot-passenger
crossing a street to be
constantly looking in all directions. It may be a wise
precaution, but to omit it is not always negligence.
A
foot-passenger must take reasonable precautions to see that at the
moment of crossing he is not in immediate danger of being
run over,
but he need not be constantly looking back to see if he is being
pursued by a tram.”
[19]
WE Cooper comments as follows about the duties of a driver:-
[5]
“
A
driver is required to exercise reasonable care and vigilance not only
towards a pedestrian he sees, or ought reasonably to see,
on or near
the road; he is obliged to exercise the same reasonable care and
vigilance towards an unseen pedestrian whose presence
he should
reasonably foresee or anticipate because, for example, of the
proximity of a school or of a passenger bus.”
ANALYSIS
OF THE EVIDENCE:-
[20]
It is common cause that the collision occurred in the right lane as a
result of the fact that
the insured driver swerved into the incorrect
lane;
[21]
In my view, if the insured driver was indeed travelling slowly, he
would have been able to timeously
brake and/or even come to a
complete standstill before colliding with Mr Riet, who he observed
before the collision.
[22]
Based on the insured driver’s own evidence, the insured driver
should have noticed Mr Riet’s
movement and adjusted his speed
shortly after he reached the four-way stop. He failed to do so.
Moreover, he should
reasonably have foreseen or anticipated the
presence of a pedestrian in the vicinity, on account of his knowledge
of the proximity
of the tavern and tuck shop. In
casu
,
the insured driver failed to exercise reasonable care and vigilance.
[23]
The only reasonable inference that can be drawn from the evidence is
that:-
23.1
The insured driver did not stop at the four-way stop;
23.2
The insured driver was travelling at a high speed;
23.3
The insured driver did not apply his brakes or hooted prior to the
collision; and
23.4
Mr Riet was already on the right side of the road when the insured
driver swerved.
[24]
In view of the credible and logical corroborative evidence of Messrs
Pieters and Appie, I also
find it improbable that Mr Riet jumped into
the right when he saw the insured driver’s vehicle approaching
him.
[25]
In weighing up and testing the plaintiff's
allegations against the
general
probabilities, I am satisfied that the plaintiff’s
version is true and accurate and acceptable, and that the version
advanced
by the defendant is therefore false or mistaken, and falls
to be rejected.
[26]
In this matter, I could detect no negligence in the conduct of the
plaintiff. The evidence
clearly points to the insured driver as
the person exclusively responsible for the accident.
ORDER:
In
the result the following order is made:
[1]
The issues of merits and quantum are separated in terms of Rule 33(4)
of the Uniform
Rules of Court:
[2]
The issue of quantum is postponed
sine die;
[3]
The collision under consideration was caused solely by the negligence
of the insured
driver;
[4]
The defendant is liable for 100% of the plaintiff’s agreed upon
or proven damages;
[5]
The defendant is to bear the costs of this hearing on a party and
party scale.
STANTON,
A
ACTING
JUDGE
On
behalf of the
plaintiff:
Adv. JM Rust
On
behlafof the
defendant:
Mr.
MA Mogano
[1]
1995 (3) SA 344
(ECD) at 352H-I.
[2]
National
Employers' General Insurance Co Ltd v Jagers 1984 (4) SA 437 (E).
[3]
Delictual Liability in Motor Law; See also Beech v Setzkom
1928 CPD
500
on 504
[4]
1934 EDL page 199.
[5]
Supra
,
on page 195.