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[2021] ZAMPMBHC 29
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Makamo v Road Accident Fund (2733/2019) [2021] ZAMPMBHC 29 (15 July 2021)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(MPUMALANGA
DIVISION, MBOMBELA)
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED:
YES
CASE
NO: 2733/2019
In the matter
between:
FIKILE
MILLICENT MAKAMO
Applicant
and
ROAD
ACCIDENT FUND
Respondent
JUDGMENT
MASHILE J:
[1]
This is an application for leave to appeal the judgment and order of
this Court dated
2 June 2021 dismissing the claim of the Applicant
against the Respondent. The grounds upon which the Applicant premises
her appeal
are tersely that the Court misdirected itself and erred by
holding that the Applicant had failed to establish on a balance of
probabilities
that the insured driver was 1% the cause of the
collision during the occurrence of which she sustained personal
injuries. The reasons
for the aforesaid grounds are that:
“
1.
The Court did not
completely go through the Plaintiff’s grounds of negligence as
pleaded on the latter’s Particulars
of claim, specifically in
sub-paragraphs 7.2; 7.3;7.5 and more notably 7.6 and 7.10 which
respectively allege that the Insured
driver-:
(i)
Drove the insured vehicle in a manner endangering
the safety of the road users, especially the Plaintiff;
(ii)
Travelled at an excessive speed and failed to
keep the insured vehicle under proper control;
(iii)
Failed to apply breaks timeously or at all; and
(iv)
Failed to avoid the collision when, by the
exercise of reasonable care, could and should have done so.
2.
The Court omitted proper consideration of the
suitable evasive actions available to the Insured Driver in the
circumstances, particularly
the options to slow down the vehicle
and/or ultimately stop and/or otherwise to safely pull over on either
side of the road and
avoid the collision. (
our
emphasis)
3.
The Court erred and misdirected itself in
disregarding the sketch plan attached to the Accident Report and
contained on the indexed
and paginated Bundle “volume 1”
on page 29, which sketch corroborates the evidence of the witnesses
and depicts that
the accident did not happen at the bridge but rather
that the bridge was used as a point of reference of proximity in
relation
to where the accident factually occurred on the R570 road.
4.
The Court further misdirected itself in readily
accepting the Insured driver’s flicking of lights, hooting, and
swerving to
the right as the only and/or relevant evasive actions
reasonable given the depicted scene referred to above.”
[2]
It is correct that I did not comb all the grounds of negligence as
alleged by the
Applicant in her particulars of claim. That said, the
grain of the judgment is that it deals virtually with each and every
ground
of negligence averred by the Applicant albeit that it may not
have been as exhaustively as to satisfy the Applicant. This judgment
must be read against the backdrop that it is trite that the Applicant
had the onus of alleging and proving his case on a balance
of
probabilities. With that general principle in mind, below I turn to
pore over those allegations, which the Applicant claims
were not
methodically considered.
THE INSURED
DRIVER DROVE THE INSURED VEHICLE IN A MANNER ENDANGERING THE SAFETY
OF THE ROAD USERS, ESPECIALLY THE PLAINTIFF
[3]
Other than making this unadorned statement in the particulars of
claim, the Applicant
did not lead any testimony whatsoever to
demonstrate how the insured driver endangered the safety of road
users, in particular
the Applicant. All that this Court heard from
the insured driver was that whilst driving, a vehicle driving into
the opposite direction
entered his path of travel.
[4]
No evidence of what the distance between the two vehicles was when
the insured driver
saw the other vehicle switched lanes to travel on
the incorrect side was levied nor was the Court favoured with
estimations of
the speed at which the insured driver was travelling.
Perhaps I should add here that the Applicant had opportunity to do so
because
the insured driver uncharacteristically testified on the
Applicant’s behalf when technically he should have been a
witness
for the Defendant.
[5]
Instead, the Court was urged to take judicial notice of the grave
injuries sustained
by the Applicant as well as the extent of damage
to the respective vehicles. Again, the Court was implored to do this
in the absence
of evidence of precise location of the impact on the
respective vehicles. Moreover, and assuming that the Applicant as a
backseat
passenger is the only one of four passengers who was
seriously injured, no evidence was levied why the other passengers
did not
sustain as serious injuries as to accord with allegations of
high speed or degree of damage to the vehicles.
[6]
Besides, assuming that it is correct that high speed was involved,
the Court was not
told which of the two vehicles drove at such high
speed. Stripped of all the verbiage, the Applicant failed to prove
the averments
that she has made hoping that the absence of the
Respondent before court would automatically assist her case. I need
to emphasise
that a claimant in the shoes of the Applicant is still
required to allege and prove his or her case notwithstanding
that a respondent
is
not present in court.
THE INSURED
DRIVER TRAVELLED AT AN EXCESSIVE SPEED AND FAILED TO KEEP THE INSURED
VEHICLE UNDER PROPER CONTROL
[7]
I have already touched on the allegation that the insured driver
drove at an excessive
speed. The Applicant led the insured driver but
failed to elicit from him the estimated speed at which he was
driving. That failure
notwithstanding, she expects this Court to make
tenuous conjectures that the vehicles were travelling at excessive
speeds and that
the alleged resultant massive impact on the vehicles
serves as proof. If the Applicant could not, through the assistance
of the
evidence of her two witnesses, demonstrate that the insured or
the other driver or both drove at high speed, she could have engaged
experts to testify on her behalf. Accordingly, this Court is not well
disposed to conclude that either driver or both drove at
highspeed
nor is this Court permitted to find that the damage was extensive in
the absence of evidence to that effect.
[8]
Closely linked to the excessive speed is the allegation that the
insured driver failed
to keep the vehicle he was driving under proper control. The evidence
presented
in court by the insured driver suggests otherwise. His
evidence was that he saw the vehicle approaching him from the
opposite end
but in the incorrect lane. The insured driver kept to
his lane as he expected the other driver to correct his mistake but
when
he could not justify staying on his lane, he decided to swerve
out of the way.
[9]
The court knows that he chose to swing to the right-hand side and not
the left-hand
side. No evidence was elicited from the insured driver
why he elected to swerve to the right-hand side. Strangely, this
Court is
expected not only to assume that the maneuver of swerving
out of the way undertaken by the insured driver constituted loss of
proper
control but that it was also perilous and is what led to the
collision. During his examination in court by the Applicant’s
counsel, the insured driver was never asked why he did not veer to
the left-hand side of the road and that had he done so, he could
have
avoided the collision.
THE INSURED
DRIVER FAILED TO APPLY BRAKES TIMEOUSLY OR AT ALL
[10]
Without the evidence of the speed at which these vehicles were
travelling towards each other, it is
hard to conclude whether
application of brakes was warranted. If
a driver
flickers and hoots to an approaching vehicle and the
oncoming vehicle obdurately remains on his path of travel, what
option would
such a driver have other than to swerve out of the way?
In any event, the insured driver was not asked why he failed to apply
brakes
as a measure that he could have taken to avoid the collision.
Once again, the Court is expected to speculate that his failure to
apply brakes constituted negligent driving. The court could not do
so.
[11]
If he had assumed that the other driver would correct his mistake by
swerving to his correct side of
the road yet nothing of the kind
happened, the insured driver was entitled to avoid the impending
head-on collision by swerving
to the right or left. In this case, he
chose to swerve to the right-hand side and the Court was not placed
in a position to understand
why he did not swerve to the left-hand
side. The Applicant failed to show that there was another option that
the insured driver
could have taken and that his failure to do so was
an act of negligence.
[12]
Much was made of lack of scanning of the road by the insured driver.
I was totally
at loss what this meant in the circumstances of this case. The
insured driver, in my opinion, has demonstrated that he has been
alert to what was happening on the road ahead of him hence he was
able to see that a vehicle had entered his path of travel. If
he was
not, this accident would have taken place without his failed evasive
maneuver having been undertaken.
THE INSURED
DRIVER FAILED TO AVOID THE COLLISION WHEN BY THE EXERCISE OF
REASONABLE CARE, HE SHOULD AND COULD HAVE DONE SO
[13]
In the light of what I have stated above, I do not think that one
could expect more than the insured
driver has done short of solomonic
wisdom or chameleonic caution, which is discouraged by Holmes JA in
S
v BURGER
[1975]
4 All SA 734
(A).
In fact, because of lack of basic
evidence not levied before court on 1 December 2020, there are too
many ‘what ifs’
in this matter to the extent that I even
wondered whether the Applicant ever managed to establish a
prima
facie
case to be
answered by the Defendant.
[14]
I have already demonstrated that slowing down a vehicle depends on
the distance at which the vehicles
were and the speed at which they
were approaching each other. If the distance was sufficiently long,
slowing down and deciding
whether or not to pull to either side of
the road might be a reasonable step to take. However, if the distance
was shorter, there
may just have been enough time to flicker, hoot
and swerve to either side. Unfortunately, the testimony before court
did not explore
all those possibilities. The lack of evidence means
that the Court is disadvantaged to consider the case fully.
[15]
Lack of consideration of the sketch plan could not have spun the case
in favour of the plaintiff as
the Applicant would have this Court
believe. The sketch plan was not presented in court at all. Quite
apart from that, it contradicts
the evidence of the insured driver
who stated that the collision occurred on the bridge. It was argued
on behalf of the Applicant
that ‘at or near the bridge’
was meant to be a point of reference of where in relation to the
bridge the collision
happened. Throughout the proceedings, none of
the witnesses of the Applicant including the insured driver was once
referred to
the sketch that is now supposed to place the collision
before the bridge.
[16]
The Court reads uncertainty in the phrase ‘at or near the
bridge’. If there was certainty on
where it took place, the
insured driver would simply have stated that it happened near the
bridge or approximately so many metres
before or after the bridge.
Similarly, if it occurred as he was approaching the bridge, as argued
during these proceedings, then
such would be in stark conflict with
the documentary evidence before court. The position is simply this –
the Applicant failed
to show the
location of the point of impact.
[17]
It is possibly correct that the Court misdirected itself and erred by
dismissing the claim. Given the
aforegoing, I am of the firm belief
that the correct pronouncement of the Court ought to have been
absolution from the instance.
To the extent that I did not make such
a decree, I agree that reasonable prospects exist that another court
would reach a different
conclusion. For that reason, I grant leave to
appeal to the full court of this Division. In the result, the
following order is
made:
1.
The Applicant is granted leave to appeal to the
full court of this Division; and
2.
Costs hereof will be those in the appeal.
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 July 15 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:
08 July 2021
Date of
Judgment:
15 July 2021