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[2021] ZAMPMBHC 15
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Makamo v Road Accident Fund (2733/2029) [2021] ZAMPMBHC 15 (2 June 2021)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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HIGH COURT OF SOUTH
AFRICA
(MPUMALANGA DIVISION,
MBOMBELA)
(1)
REPORTABLE:NO
(2) OF
INTEREST TO OTHER JUDGES:NO
(3)
REVISED: YES
02/01/2021
CASE
NO: 2733/2029
In the matter between:
FIKILE
MILICEWNT MAKAMO
Plaintiff
and
ROAD
ACCIDENT FUND
Defendant
JUDGMENT
MASHILE J:
[1]
This is a delictual damages action emanating from personal injuries
sustained by the
Plaintiff during a motor vehicle collision on 3
March 2013 at or near Buffelsspruit Bridge, Buffelspruit Trust,
Mpumalanga Province
along the R570 Road. The Plaintiff instituted
this claim for delictual damages in her personal capacity against the
Defendant.
She claims damages under various heads. These are for past
and future
medical expenses, past and
future Loss of earnings and general Damages.
[2]
The Plaintiff was a passenger in motor vehicle with registration
letters and number
[….] (“the insured vehicle”)
driven by Mr. Khethukuthula Panuel Shongwe (“the insured
driver”).
The insured motor vehicle collided with motor vehicle
with registration letters and number [….] against which the
Plaintiff
seeks no damages.
[3]
The insured driver is alleged to have lost control and became
involved in a collision
in the process of which the Plaintiff
suffered bodily injuries. The Plaintiff alleges that the loss of
control of the vehicle was
as a result of the negligent driving of
the insured driver. The case was set down for the hearing of both
merits and quantum.
[4]
Against that backdrop, it will be appropriate to attend to the issue
of liability
first. Thereafter and depending on the outcome to that
question then turn to consider quantum under the various heads. Prior
to
doing so, however, it will be instructive to refer to the relevant
portions of the particulars of claim that are meant to found
this
claim. Those parts are paragraphs 5, 6 and 7, which read as follows:
“
On
or about the 3
rd
day
of March 2013 at or near Buffelspruit bridge along the R570 Road,
Mpumalanga Province wherein the Plaintiff was a passenger
in a motor
vehicle to wit a Toyota Conquest bearing registration number and
letters [….] which was driven by a Constance
Shongwe, and the
said motor vehicle was involved in an accident along the R570 Road at
or near Buffelspruit bridge, Mpumalanga
Province. [SIC]
[5]
The accident happened after the driver of a motor vehicle with
registration letters
and numbers [….] (insured vehicle) lost
control of the vehicle.
[6]
The aforesaid accident was caused solely as a result of the
negligence of the driver
of the insured vehicle who was negligent in
one or more of the following respects:
6.1
She failed to keep
a proper lookout;
6.2
She drove the
insured vehicle in a wanton manner endangering the safety of other
road users, especially the Plaintiff;
6.3
She travels at an
excessive speed; [SIC]
6.4
She encroached in
the oncoming traffic lane’s line of travel;
6.5
She failed to keep
the insured vehicle under proper control;
6.6
She failed to apply
brakes timeously alternatively at all;
6.7
She failed to warn
other road users of her approach;
6.8
She failed to
ensure that the insured vehicle was in a proper roadworthy condition;
6.9
She failed to
exercise the special duty of care required of motorists who ought to
be aware of the presence of other road users
in the vicinity;
6.10
She failed to avoid the collision when, by
exercise of reasonable care, she could and should have done so.”
[7]
The Plaintiff called several witnesses to demonstrate that the
collision occurred
as a result of the insured driver’s
negligent driving. She too testified on her own behalf.
EVIDENCE ON MERITS
[8]
The Plaintiff’s testimony does not sway her case either way.
That is because
she alleges to have been asleep when it happened. She
recalled that she was a backseat passenger, her mother, Constance
Shongwe,
occupied the front passenger seat, her brother, the insured
driver, was behind the wheel while her sister, Eva Shongwe, was
sitting
with her at the back. She relies entirely on the evidence of
her fellow passengers on how the collision occurred.
[9]
The evidence of the insured driver was that he was driving from
Malelane into the
direction of Schoemansdall. He testified that when
he was at the Buffelspruit Bridge, he noticed a Toyota Conquest
approaching
from the opposite direction. The Toyota Conquest being
motor vehicle with registration letters and number [….] was
driving
on the lane of oncoming traffic.
[10]
He told the court that he flickered his head lambs to alert the
driver of the [….] motor vehicle
that he was on the lane of
oncoming traffic. The oncoming motor vehicle would still not move
back to its correct side of the road.
As the two motor vehicles
reduced the space between them, the insured driver hooted. The
approaching motor vehicle stubbornly remained
on the lane of oncoming
vehicles.
[11]
Noting that a head-on collision was likely to ensue, the insured
driver swerved to the right-hand side
of the road. At that critical
stage, the driver of [….] Motor vehicle, also swerved to his
left-hand side resulting in the
two motor vehicles colliding on the
right-hand side of the insured driver.
[12]
Constance Shongwe’s testimony largely corroborates that of the
insured driver. She confirms that
she was in the company of her
children, the Plaintiff, the insured driver, and Evah Shongwe. They
were conveyed in the insured
vehicle driven by the insured driver
from Malalane driving towards their home in Schoemansdaal.
[13]
She testified that when they were next to the Buffelspruit Bridge,
she noticed a vehicle coming from
the opposite direction. The vehicle
was driving on the lane of oncoming traffic. The insured driver
flickered the head lambs and
hooted. She said that the motor vehicle
would not move out of their path of travel. The insured driver then
swerved away to avoid
a head-on collision. The driver of the other
vehicle too, at that moment, turned his vehicle to his left-hand side
as a result
of which a collision followed on the right-hand side of
the road.
[14]
The above was the oral evidence that was levied before court. Other
testimony presented before court
consists in various documents such
as, The OAR, Officer’s Accident Report, comprising statements
of the occupants of the
insured vehicle, two warning statements of
the drivers, one of the insured and the other, of the driver of [….].
[15]
The statement of the driver of [….], Mishack Khoza, supports
the oral evidence presented in
court by the witnesses of the
Plaintiff. In brief, he states that he was driving along R570 Road
into the direction of Buffelspruit
Trust. He was busy changing a
compact disk when he noticed that he was driving on the side of
oncoming traffic and that another
vehicle was coming towards him.
[16]
He turned his vehicle away towards his left-hand side, his correct
side of the road, but at that
moment the driver of the oncoming
traffic had also taken a decision to swerve to his right-hand side.
In consequence, the two vehicles
collided on the lane of motor
vehicles driving into the direction of Buffelspruit and as such,
against the insured driver.
[17]
On the date of hearing, it was contended on behalf of the Plaintiff
that she was a passenger
in one of the motor vehicles involved in the
collision. As such, to succeed with her claim against the Defendant,
she needed no
more than demonstrating that the driver of the insured
vehicle was 1% negligent. Given that attitude, the Plaintiff went
ahead
and lodged a claim against the vehicle in which she was a
passenger. It was further argued that the witnesses corroborated each
other and that the Court should find that the insured driver was 1%
negligent. The Defendant presented no version as no witnesses
testified on its behalf.
ISSUES
[18]
The issue that stands for determination is whether or not the
Plaintiff has demonstrated, as
she ought to, that the insured driver
was 1% negligent in the manner in which he responded to the actions
of the driver of DDR
563 MP. Furthermore, could he have reacted
differently to what unfolded before him to avoid the collision? To
decide these questions,
I need to turn to the guiding legal
principles.
[19]
Insofar as it is alleged that the insured driver was negligent, it
could be instructive to refer
to
S v
BURGER
[1975]
4
All SA 734
(A)
where Holmes JA stated
the following:
“
Culpa
and
foreseeability
are
tested
by
reference
to
the
standard
of
a diligens
paterfamilias ("that notional epitome of reasonable
prudence"-Peri-Urban Areas Health Board v. Munarin,
1965 (3)
S.A. 367
(A.D.) at p. 373F) in the position of the person whose
conduct is in question. One does not expect of a diligens
paterfamilias
any extremes such as Solomonic wisdom, prophetic
foresight, chameleonic caution, headlong
haste,
nervous
timidity,
or
the
trained
reflexes
of
a
racing
driver.
In
short,
a
diligens
paterfamilias treads life's pathway with moderation and prudent
common sense.”
[20]
In the case of
Sedumemanyatela v Road
Accident Fund
(
65678/2012)
(2014) ZAGPPHC 445 (30 MAY 2014)
the
court held that even when an approaching vehicle is on its incorrect
side of the road, a driver on his correct side may assume
that the
former will return timeously to its correct. But this assumption does
not entitle a driver on the correct side of the
road to remain
passive in the face of threatening danger. As soon as the danger of
the collision becomes evident he is under a
duty to take reasonable
steps to avert one.
[21]
It is trite law that every driver bears a duty of care towards other
motorist to keep proper lookout,
to take reasonable steps to avoid
collision. Thus,
Holmes
JA in
Kruger v Coetzee
1966
(2) SA 428
(A)
at 430E - F
,
the issue of negligence itself involves a twofold inquiry. The first
is: was the harm reasonably foreseeable? The second is: would
the
diligence paterfamilias take reasonable steps to guard against such
occurrence and did the defendant fail to take those steps?
The answer
to the second inquiry is frequently expressed in terms of a duty. The
foreseeability requirement is more often than
not assumed and the
inquiry is said to be simply whether the defendant had a duty to take
one or other step, such as... perform
some or other act positive act,
and if so whether the failure on the part of the Defendant to do so
amounted to a breach of that
duty."
[22]
It is the duty of every driver to always remain alert and examine the
road ahead, and to avoid a collision
happening
.
Following
in the footsteps of Kruger
supra
,
the Supreme Court of Appeal in
Road
Accident Fund v Grobler
(96/06)
ZASCA 78; (2007] SCA 78 (RSA);
2007
(6) SA 230
(SCA)
(31 May 2007)
,
considering facts that were substantially akin to the current held
that the proper approach is not to confine the inquiry
into the
negligence to the conduct of the driver from the moment they became
embroiled in an emergency. The inquiry must extend
to cover what
steps a driver took to avoid the impending emergency. If he/she had
an opportunity to take measures ahead of the
emergency to avoid the
accident, and he
i
sted
failed to do what a reasonable person in similar circumstances would
have done, then he /or she would have been negligent.
[23]
In
Ntsala and
others
v
Mutual and Federal Insurance Co Ltd
1996
(2) SA 184
(T)
the
court held that w
here
It must be remembered that with a sudden confrontation of danger a
driver only has a split-second or a second to consider the
pros and
cons before he acts and surely cannot be blamed for exercising the
option which resulted in a collision.
ANALYSIS
[24]
This is the legal background against which the facts that led to the
collision ought to be assessed.
Right from the onset, it is important
to point out that the particulars of claim are inaccurate in some
parts. Firstly, the driver
of the insured vehicle is referred to as
MS Constance Makamu whereas her son, Khethaukuthula Panuel Makamu,
was in fact the driver.
Secondly, the insured driver did not lose
control of the insured vehicle. Instead, he consciously swerved out
of his lane to avoid
what he perceived was likely to result in a
head-on collision with motor vehicle [….] that was driving in
the lane of oncoming
traffic.
[25]
When reading the particulars of claim, one gets the impression that
the collision described therein
is different from the current. There
is no mention of motor vehicle [….], which is the obvious
offending vehicle. I say
this mindful that the Plaintiff’s
assertion is that she needs only establish 1% negligence against the
driver of the vehicle
in which she was a passenger. While that is
correct, it is incumbent upon the Plaintiff to give an honest account
of what had transpired
and not fabricate allegations that the insured
driver lost control.
[26]
The witnesses differ on their description of the precise location of
the collision. The insured driver
states that it happened on the
Buffelspruit Bridge whereas MS Constance Shongwe claims that it was
next to the Buffelspruit Bridge.
The statement of the driver of motor
vehicle [….] is silent on where in relation to the bridge the
collision took place.
Whatever the inconsistencies, it is clear that
it happened at or near the Buffelspruit Bridge.
[27]
The insured driver states that he noticed motor vehicle [….]
driving from the opposite direction
on the incorrect lane. In
consequence, the insured driver flickered his head lambs. Like any
reasonable driver in the position
of the insured driver, he stayed on
his correct side of the road hoping that the driver of motor vehicle
[….] would soon
rectify his mistake. The space between them
narrowed at which point he hooted. Motor vehicle [….]
stubbornly remained on
the incorrect side of the road until it was
unjustifiable to think that the driver of motor vehicle [….]
would correct his
mistake by swerving back to his lane.
[28]
It so happened that at the moment when the insured driver decided to
move to the unoccupied lane of
his oncoming traffic, the driver of
motor vehicle [….] also swerved back to his correct lane. As a
result of this the two
vehicles collided on the side of motor vehicle
that were travelling against the insured driver in the process of
which the Plaintiff
was seriously injured.
[27]
Was the insured driver negligent in the manner he reacted to what was
unfolding before him? According
to him the collision occurred on the
bridge and I have no reason not to trust him because he was the
driver. Confronted with this
emergency, he had to make a decision
whether to swerve to the right-hand or left-hand side of the road. If
I accept, as I do, that
the collision took place on the bridge as
alleged by the insured driver, it would have been suicidal for him to
have swerved to
the left as there would have been nowhere to avoid
the collision.
[29]
The obvious and only election for him was to veer to the right-hand
side where there was no vehicle
approaching. It so happened that at
that time the driver of motor vehicle [….] had resolved to
correct his mistake. Any
reasonable driver faced with similar
circumstances would have responded no differently from the insured
driver. He had nowhere
to swerve but to the right-hand side. Even if
one were to place the accident before the bridge, as MS Constance
Shongwe would seem
to suggest, turning sharply to the left-hand side
might have resulted in the insured vehicle hitting anything and
probably rolling
down to the bottom of the bridge with perilous and
devastating consequences
[30]
Even if I assume that the insured driver was wrong in the action that
he took, Ntsala
supra
says
that
a driver who
finds himself in a situation of imminent danger, not of his own
doing, and reacts thereto and possibly takes the wrong
option, it
cannot be said that he is negligent unless it can be shown that no
reasonable man would so have acted. On the facts
of this case, it is
inescapable to conclude that the insured driver was not negligent at
all, not even a percent so. In fact, the
driver of motor vehicle [….]
was 100% responsible for what transpired. To hold that the insured
driver was 1% negligent
would be to expect ‘solomonic wisdom’,
which Holmes JA discourages in Burger
supra
.
[31]
In the result, the Plaintiff has failed to show on a balance of
probabilities that the insured driver
was 1% to blame for the
collision that occurred. As such, I am constrained to dismiss the
claim. I make the following order:
The
claim is dismissed with costs.
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 02 June 2021 at 10:00.
APPEARANCES:
Counsel
for the Plaintiff:
Adv
Mabaso
Instructed
by:
Bhila
& Thobela Attorneys
Counsel
for the Defendant:
No
appearance
Instructed
by:
Date
of Hearing:
1
December 2020
Date
of Judgment:
02
June 2021