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[2021] ZAGPPHC 115
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Chauke v Road Accident Fund (75502/18) [2021] ZAGPPHC 115 (26 February 2021)
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
REPUBLIC OF SOUTH AFRICA
IN THE HIGH
COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO: 75502/18
REPORTABLE:
YES/NO
OF
INTEREST TO OTHER JUDGES:YES/NO
REVISED
Date:
26/02/2021
CHAUKE
CEDRIC PLAINTIFF
AND
ROAD ACCIDENT
FUND
DEFENDANT
JUDGMENT
KHUMALO J
Introduction
[1]
This is an action instituted in terms of the Road Accident
Fund Act,
56 Of 1996 (“the Act”) against the Defendant (also
referred to as the Fund), as the body that is responsible
for any
loss suffered arising from the negligent driving of motor vehicles.
The Plaintiff, a 32-year old driver, is suing for damages
he suffered
as a result of a personal injury he sustained in a motor vehicle
accident that occurred on Kromatart Road in Giyani
on 27 October
2016.
[2]
The Plaintiff alleged in his particulars of claim that the collision
occurred
between a motor vehicle with registration number [...]
driven by him and a motor vehicle with registration number [...]
(“the
insured motor vehicle”) whose driver’s sole
negligence was the cause of the collision. All the incidents of duty
of
care that could possibly have been breached by the insured driver
were mentioned as having possibly been the cause of the collision
rendering the Defendant liable for the damages suffered by the
Plaintiff.
[3]
The injury sustained by the Plaintiff was an open fracture elbow and
he
is claiming an amount of R11 000 000, for all the damages arising
therefrom.
[4]
In its Plea, the Defendant denied any liability to the Plaintiff’s
claim and or for any negligence, putting the Plaintiff to the proof
thereof. It pleaded in the alternative that the negligent driving
of
the Plaintiff caused the collision, also stating the catch all
grounds of breach of duty of care. In a further alternative the
Defendant pleaded contributory negligence on the part of the
plaintiff, requesting the court to apportion plaintiff's damages in
terms of the Apportionment of Damages Act, Act 34 of 1956, as
amended. The Defendant also delivered two Special Pleas relating
to
the issue of quantum.
[5]
In terms of the minutes of the parties’ first pre-trial
conference,
held on 5 September 2019 following the closing of the
pleadings, the summary of facts as stated by the Plaintiff was that;
the
motor vehicle accident occurred when the Plaintiff was a driver
in a motor vehicle with registration numbers [...]which lost control
and overturned, notwithstanding the averments in its particulars of
claim. The Defendant’s summary was that the driver (Plaintiff)
was driving along Kromatrat Road in Giyani and lost control of the
motor vehicle and collided with a taxi with registration number
[...].
[6]
In the minutes of their second pre-trial conference held on
11
February 2020, two weeks before the trial, the Plaintiff’s
summary of facts was altered to that “the Plaintiff was
driving
his vehicle along Kromatrat Road when motor vehicle with registration
number [...], driven by Mdaka Brian (herein referred
to as the
“insured driver”) collided into his motor vehicle.”
[7]
A separation of the issue of merits from that of quantum in terms of
Rule
33 (4) of the Uniform Rules of Court (“the Rules”)
was mooted and an order granted accordingly, with the issue of
quantum
postponed
sine die
.
[8]
The issue that was to be decided was whether when the accident
occurred
there was negligence on the part of the insured driver.
[9]
It is common cause that the Plaintiff’s third party claim
duly
submitted as prescribed in terms of s 24 of the Act was repudiated
for the reason that neither in the Accident Report’s
statements
made by both the plaintiff and the insured driver nor in the
Plaintiff’s s 19 (f) Affidavit that was attached
to the third
party claim Form in compliance with s 24, is negligence imputed to
the insured driver.
[10]
The Plaintiff s 19 (f) Affidavit, together with the Accident Report
and the Hospital Records
were discovered by the Plaintiff as part of
the documents the Plaintiff was going to rely upon to prove his claim
at the trial.
[11]
At the commencement of his testimony, the Plaintiff confirmed the
contents of his s 19
(f) Affidavit, stating that he therein explained
in brief, how the accident occurred. He said on 27 October 2016 he
was driving
from Polokwane towards Giyani, when he saw a motor
vehicle which looks like a taxi, driving towards the opposite
direction coming
to his lane. He tried to move away and two of his
left hand side wheels went off the road on to the gravel on the side
of his lane.
It was too late to avoid the oncoming vehicle. It hit
his vehicle on the fan belt. The front right wheel of his vehicle
burst and
his vehicle spun around and faced the direction he was
coming from. He thereafter could not see anything as he was
unconscious.
He regained consciousness in hospital. His travelling
speed was 50 - 54 km/h and was not sure of the speed limit on that
road.
The other vehicle (insured vehicle) hit him head-on. Then he
said it hit his vehicle on the side of the driver where he was
seated.
The collision happened on his lane and after the wheel burst,
his vehicle moved towards the other lane. He refuted his Counsel’s
intimation that the insured vehicle moved into his lane because it
was overtaking. He said the collision occurred because he was
trying
to avoid the insured vehicle from hitting him. He confirmed that
there was nothing else he could have done to avoid the
accident,
taking into consideration all the steps he had taken and the fact
that it happened so quickly.
[12]
According to him he regained consciousness in hospital on the
following day the 28th October
2016. He denied making a statement to
the police whilst in hospital but only after his discharge. It was
after the police had told
him about their own. He recalled that
according to the police statement written in his absence whilst he
was in hospital, he was
guilty of reckless driving. He however
managed to convince the police when they were supposed to be in court
in Giyani that it
was not him who was guilty. After he explained to
them what happened, the matter did not proceed. The police said they
will come
and fetch him to draw another sketch plan. That is when he
enquired as to what happened at the scene. After he did that he was
informed that the matter has been withdrawn. The accident happened
between about 5 - 6 pm.
[13]
During cross examination, Plaintiff confirmed that he is disputing
the contents
of the accident report. He said though he could have
seen the report before, since his English is not good so he could not
argue
with the police, so he was only disputing it now. He disputed
that his vehicle was protruding on to the side of the other lane of
the oncoming vehicles as it was illustrated on the sketch plan and
key of the accident report.
[14]
He also disputed what was stated in the hospital records that he was
fully awake and well
communicating when he was brought in. It was
recorded therein that a 28-year-old male was brought in a stretcher
accompanied by
a private EMS involved in an MVA as a driver and
sustained an injury on the right hand, fully conscious, alert with an
open fracture
bleeding on the right elbow. He said he woke up when he
was already put in bed.
[15]
His comment on the deposition in his s 19 (f) affidavit that he lost
control of the vehicle
and it overturned, was that it is possible
that is what is written, however there might have been a
communication problem with
his attorneys in terms of language. When
his attorneys spoke to him he could understand some issues but it
could have been tough
since he is Tsonga. He did not remember his
attorneys reading his statement back to him but he proceeded to sign
it anyway. He
vehemently disputed that he lost control of his vehicle
as stated in his s 19 (f) Affidavit and the Accident report.
[16]
He said even though it was the insured vehicle that came into his
lane, he ended up in
the other lane because he was hit on the front
side where he was sitting and the front wheel burst. He was then
pushed towards
the back and his vehicle twisted and turned around. At
the time he was no longer in control of his vehicle as he was already
broken.
When he noticed the insured vehicle it was already moving out
of its lane and very close in front of him. If he had seen it whilst
it was still far away he could have been able to avoid it. He was
driving at 50km per hour and the insured vehicle driving straight.
He
was able to swerve but the insured vehicle was already very close.
His two tyres were already on the gravel road when the insured
vehicle collided with him. The sun was setting and slightly dark.
There were no clouds. The Accident Report differs because when
it was
written he was already in hospital.
[17]
On re-examination he said after his vehicle stopped, he attempted to
get out of it and
failed. He bled profusely until he lost
consciousness. Since he disputed the statement the matter did not go
on trial.
[18]
Plaintiff closed his case. The Defendant also closed its case.
[19]
The Plaintiff, in his s 19 (f) Affidavit, only mentioned that he was
the driver of the
vehicle that lost control and overturned. After the
said accident he was taken to Khensani Hospital and treated for an
injury,
open fracture of the right elbow. No mention was made of a
collision with or involvement of another vehicle and being
unconscious.
[20]
Mr Makgopa for the Plaintiff, argued for a 100% concession on the
basis that the Plaintiff
acted reasonably on his right of way trying
to avoid collision but failed. He only discovered about his alleged
statement in the
Accident Report after being discharged from
hospital. He objected to the Accident Report’s admissibility as
evidence. He
submitted that Plaintiff’s testimony is a repeat
of what he said in his s 19 (f) Affidavit.
[21]
The Plaintiff’s testimony obviously differed from his s 19 (f)
Affidavit. In any
case not only did the Plaintiff renounce its
contents, he also alleged to have signed the affidavit without
understanding or the
contents of the Affidavit being read back to him
prior to signing. The renouncement was notwithstanding having
confirmed its contents
in his evidence in chief.
[22]
Ms Swartbooi on the other hand argued that the court must actually
make do with three versions
of the Plaintiff on the collision. The
first one being the one Plaintiff made on 27 October 2016 stating
that he lost control of
his vehicle and to have been the sole cause
of the accident in relation to the other vehicle that was on the
road. He mentioned
for the first time in court, that he lost
consciousness and his position of the vehicle, whilst on his
admission in hospital it
was recorded that he was fully conscious. In
Plaintiff’s s 19 (f) Affidavit which was attached to his claim
to the Defendant
in January 2018, he said he lost control of his
vehicle and it overturned. He never brought it up that there was a
language difficulty
between him and his attorney when he deposed to
the Affidavit or between him and the police when he made his
statement to the police.
Ms Swartbooi argued that the Accident report
was placed on record by the Plaintiff and actually rectified what the
Plaintiff failed
to mention that there was another vehicle and that
he went on the other side of the road. The report must be admissible
as evidence.
She pointed out that when the Defendant repudiated the
claim, it was because according to the Accident report the Plaintiff
lost
control and left his side, colliding with the other vehicle on
its side of the road that was going to the opposite direction. Ms
Swartbooi argued that the Plaintiff did not discharge the onus on him
to put the insured driver to blame for anything.
[23]
The issue that remained to be determined was whether the Plaintiff
has established or proven
on a balance of probabilities the insured
driver’s negligence for which the Defendant was to assume
liability.
Legal
framework
[24]
Section 17 of the RAF Act imposes on the Defendant an obligation ‘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 . . . 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 . . .’.
Where the
identity of the driver or owner has been established (as in the
present case) this obligation is stated in s 17(1)(a)
to be ‘subject
to this Act’.
[25]
The statutory nature of liability is therefore such that the
Defendant is liable to the
third party “for any loss or damage
which the third party has suffered as a result of any bodily injury
to himself …
if the injury … is due to the
negligence or other wrongful act of … the insured driver”
;
see S 17(1) of the Act. The analysis is confined to a personal claim
as in casu.
[26]
Wrongfulness,
in that instance is inferred from the fact that the insured driver
negligently caused the accident
;
see
Minister
van Polisie v Ewels
1975
(3) SA
590
(A);
Minister
of Law and Order v Kadir
[1994] ZASCA 138
;
1995
(1) SA 303.
Thus, once negligence of the insured driver is proven,
wrongfulness, that is liability, is generally assumed. It must then
be shown
that the loss suffered by the claimant is due to the
negligent/wrongful act in issue.
[27]
It is trite that the onus
rests on the plaintiff to prove on a
balance of probabilities the insured driver’s negligence
which
allegedly caused the damages he suffered. For the plaintiff to
succeed in his claim, he has to meet the requirements in terms
of
section 17(1) of the Act of proving negligence for the statutory
liability of the defendant; see
Klopper, H.B The
Law of
Third Party Compensation, (3ed), 2012
at 75, it is indicated that
even the slightest degree of negligence on the part of the driver of
the insured vehicle is sufficient
to satisfy the requirement of
negligence, whilst absence of negligence means wrongfulness does not
arise. The true criterion for
determining negligence is whether, in
the particular circumstances, the conduct complained of fell short of
the standard of the
reasonable person; see
Sea Harvest Corporation
(Pty) Ltd and Another v Duncan Dock Cold Storage (Pty) Ltd and
Another
2000 (1) SA 827
(SCA) [21]. The elements thereof being
(i) duty (ii) breach (iii) causation and (iv) damages.
[28]
Section 24 prescribes the procedure to be followed for a claim for
compensation under section
17(1) that provides for the establishment
of the Fund’s liability at an early stage prior to the
institution of an action,
by requiring the Plaintiff to deliver a
third party claim form 1, duly completed, to the Defendant. In terms
of s 19 (f) of the
Act, s 17 liability of the fund is excluded on
failure by the Plaintiff to deliver the Form with an Affidavit in
which the Plaintiff
sets outs fully, the particulars of the accident
that gave rise to his claim.
[29]
The
approach to adopt when interpreting s 24 (1) (a) of the Act was
stated by Petse JA
in
Pithey
v Road Accident Fund
2014
(4)
SA
112
(SCA)
at
[18] as follows:
“
[18] I
pause to say something about the primary purpose and objectives of
the Act. It has long been recognised in judgments of this
and other
courts that the Act and its predecessors represent ‘social
legislation aimed at the widest possible protection
and compensation
against loss and damages
for
the negligent driving of a motor vehicle
.
Accordingly, in interpreting the provisions of the Act,
courts
are enjoined to bear this factor uppermost in their minds and to give
effect to the laudable objectives of the Act.
But,
as the Full Court correctly pointed out, the Fund which relies
entirely on the fiscus for its funding should be protected against
illegitimate and fraudulent claims.” (my emphasis)
[30]
In
Pithey
, paragraph 20, the SCA quoted with approval what was
said in
Multilateral Motor Vehicle Accident Fund v Radebe
[1995] ZASCA 80
;
1996
(2) SA 145
(SCA);
where Netstadt JA said:
“
It is
true that the object of the Act is to give the widest possible
protection to third parties. On the other hand, the benefit
which the
claim form is designed to give the fund must be borne in mind and
given effect to. The information contained in the claim
form allows
for an assessment of its liability, including the possible early
investigation of the case. In addition, it also promotes
the saving
of the costs of litigation....These various advantages are important
and should not be whittled away. The resources,
both in respect of
money and manpower, of agents and particularly of the fund are
obviously not unlimited.
They
are not to be expected to investigate claims which are inadequately
advanced.
There is no
warrant for casting on them the additional burden of doing what the
regulations require should be done by the claimant
“ (my
emphasis)
[31]
Section 19 (f) of the Act reads:
“
The
Fund or an agent shall not be obliged to compensate any person
in
terms of
section
17 for any loss or damage-
(f)
if the
third party
refuses
or
fails
-
(i)
to submit to the Fund or such agent, together with his or her
claim form
as prescribed or within a reasonable period
thereafter and if he, or she is
in a position to do so,
an
affidavit in which particulars of the accident that gave rise to the
claim concerned are fully set ou
t; or
(ii)
to furnish the Fund or such agent with copies of all statements
and
documents relating to the accident that gave rise
to the claim concerned
, within a reasonable period after
having come into possession thereof.
[32]
The Affidavit therefore that is to be attached to the form is, as
prescribed by s 19 (f)
(i) imperative that it describes or discloses
fully how the accident occurred, for the liability of the Fund to be
determinable.
In
Pithey
at
[17] the SCA held
that:
“
[T]he
affidavit and copies of statements and the documents mentioned in s
19 (f) are required to provide details of how the accident
giving
rise to the claim arose. It is abundantly clear that the purpose of
this provision is, inter alia, to furnish the Fund
with
sufficient information
to
enable it to investigate the claim and determine whether or not it is
legitimate.” (
my
emphasis)
[33]
A claimant is therefore enjoined to give full particularity of the
accident for the affidavit
to fulfill its statutory purposes. It also
goes without saying that the information should be accurate. The Fund
is as a result
excused from liability in the event of non- compliance
with this prerequisite. Since it would not only have been denied of a
valuable
resource for further investigation and establishing the
validity or credibility of the claim, but also of prospects to
curtail
legal proceedings and further incurrence of legal costs.
[34]
The rejection of Plaintiff’s third party claim being common
cause, it is also common
cause that Plaintiff’s s 19 (f)
Affidavit that was attached to the third party claim Form in
compliance with s 24 only mentions
that he was the driver of the
vehicle that lost control and overturned. Not anything is said of a
collision with or involvement
of another vehicle or being on the
wrong lane.
[35]
The Plaintiff renounced the contents of his own affidavit,
notwithstanding having in his evidence in chief, confirmed
and
alleged the contents to be his brief description of how the accident
occurred. During cross examination he disputed the content
in its
entirety although he confirmed signing the Affidavit. He alleged that
there was a language problem with his attorneys who
did not even read
the Affidavit back to him.
[36]
There was obviously inconsistency and contradiction in the
Plaintiff’s version and
an obvious conflict between him and Mr
Makgopa who in his closing argument inexplicably persisted that the
testimony of the Plaintiff
accords with his s 19 (f) Affidavit, when
in essence it was renounced and contradicted by the Plaintiff. Mr
Makgopa failed in rebuttal
to address the obvious conflict and
contradiction. The Plaintiff clearly could not be taken on his word.
It was very difficult
to determine were the truth lies with him.
[37]
However the gist of the matter is that the Plaintiff’s
Affidavit filed
with the claim Form did not meet the requirements of
s 19 (f) as it contained neither a comprehensive or an accurate
explanation
of how the accident occurred. By Plaintiff’s own
admission the Affidavit was brief and its contents incorrect. In the
circumstances
the Plaintiff failed to comply with s 19 (f) and s 24.
It, as a result, does not set out fully the particulars of the
accident.
[38]
In
Road
Accident Fund v Monjane
2010
(3) SA 641
(SCA)
the SCA held at [5] that in certain circumstances s 19 excludes
altogether the liability of the Fund, as contemplated in s
17 of the
Act. Section 19 (f) is one of the relevant subsections that strictly
outlines statutorily determined circumstances where
the liability of
the Fund is altogether excluded. The section
is
therefore peremptory and key to finding liability; See
SA
Eagle Insurance Co Ltd V Pretorius
.
Non-compliance
therewith have the effect of totally absolving the Fund.
[39]
The right to compensation arises only when the provisions of the Act
have been complied
with, which is not the position in casu.
Plaintiff’s claim lacks legitimacy due to incomprehensive and
renounced information
in the Affidavit. Therefore, as much as
Plaintiff’s claim was repudiated on the basis that no insured
driver negligence was
proven it is also rejectable for being
non-compliant with s 19 (f), excusing the Defendant from any
liability.
[40]
The Plaintiff has in the same vein rejected an acknowledgement he
made in the Accident
report, that his own negligence caused the
accident, despite having attached the Accident report to his claim.
He denied the contents
thereof including the sketch and plan which
depicts his vehicle protruding on to the lane of the incoming
vehicles, where his car
was stationery. He then testified that he
spoke to the police about that statement after his discharge from
hospital and managed
to convince them that he was not liable. He did
not say that he made the police understand that an insured driver
caused the accident,
but only that he was not criminally liable.
Under cross examination he admitted to have known about the statement
and alleged not
to have discussed it with the police because of the
language problem and to only disputing it in court. The same excuse
he proffered
for renouncing his s 19 Affidavit. The excuse is in
direct conflict with his testimony in chief that he disputed the
statement
after he was discharged from hospital.
[41]
Plaintiff’s further narration of the accident that the insured
vehicle was travelling
towards the opposite direction, which
coincidentally is also mentioned in the Accident report, when it
moved to his lane and collided
head on with his vehicle, hitting his
vehicle on the fan belt and at the same time on the driver’s
right side, is an unlikely
scenario, as that would mean the insured
driver collided with his vehicle more than once. He alleged his
vehicle to have been pushed
back, that it twisted and turned around.
At the time he was no longer in control of the car as he was already
unconscious. He,
regained consciousness the next day in hospital.
Also that when his vehicle came to a standstill, facing the direction
he came
from, he had lost consciousness. But then again under
re-examination he said after his vehicle stopped, he attempted to get
out
of the vehicle and failed. He then bled profusely until he became
unconscious. There is an incongruity as to when exactly did he
become
unconscious. According to hospital records he was fully awake and
communicating when he was brought to hospital. His unconsciousness
was something that was mentioned for the first time during trial. The
hospital records were therefore, another document that the
Plaintiff
discovered with intention to prove his claim that he disputed its
contents at trial.
[42]
The Plaintiff’s testimony denouncing his statement in the
Accident report is as a
result also brought into question. He alleges
that at the time of the accident he was unconscious and therefore did
not make a
statement to the police, when the hospital records
discovered by him indicate the contrary, not only was he conscious
when he was
wheeled into the hospital, but very alert.
[43]
Whilst it is correct that the plaintiff’s version is the only
version, the argument
that it suffices to uphold the plaintiffs claim
cannot succeed. Plaintiff’s whole evidence was riddled with
incongruences
and inconsistencies, showing the Plaintiff to be an
unreliable witness. The issue for determination is whether the Fund
is obliged
to compensate the plaintiff. He failed to put forward
credible evidence before the court from which the negligence of the
insured
driver could be established.
[44]
The Plaintiff’s legal representatives have also not handled
this matter with the
diligence that it deserves. What was pleaded
differed to the summary of facts later presented at the pretrial
conference. The inconclusiveness
of the Affidavit was obvious and the
insistence by Mr Makgopa that it is consistent with the testimony of
the Plaintiff, disregarding
Plaintiff’s denouncement of his own
Affidavit under cross examination is expressive of the kind of
attention given to the
matter.
[45]
The Plaintiff has not only failed to comply with the provisions of s
19 (f)
of the Act, he has also failed to prove the negligence of the
insured driver, therefore no liability arises against the Fund.
[46]
I accordingly make the following order:
1.
That the Plaintiff’s claim is dismissed with costs.
N
V KHUMALO
JUDGE OF THE
HIGH COURT OF SA
GAUTENG
DIVISION, PRETORIA
For
the Plaintiff: MAKGOPA DL
Instructed
by: Ndaba H E
Incorporated Attorneys
Ref:
HN/RAF/252/17
Email:
precious@ndabainc.co.za
For
the Defendant: SWARTBOOI
Instructed
by: Morare Thobejane Incorporated
Ref:
MAT68932/19/EM-RAF
Tel: 012 343
0492
Email:
:
jp@morarethobejane.co.za