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[2019] ZAGPPHC 276
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Klopper v De Beer NO (2010/11130) [2019] ZAGPPHC 276 (13 May 2019)
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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH
AFRICA
GAUTENG DIVISION, PRETORIA
(1)
REPORTABLE:
NO
(2)
OF
INTEREST TO OTHER JUDGES: NO
CASE NO: 2010/11130
13/5/2019
In
the matter between:
STEPHANUS
LUKAS
KLOPPER
Plaintiff
and
LAMBERTUS
NICOLAAS DE BEER N.O. in his
Capacity
as Executor in the Estate of the Late
CORNELIUS
WILLEM DE
BEER
Defendant
JUDGMENT
MOKOSE J
Introduction
[1]
This
is a claim by the plaintiff, was aged fourteen (14) at the time of
the accident, for the balance of damage ,over and above
the limited
liability of The Road Accident Fund under Act 56 of 1996 (“the
Act”) prior to its amendment which came
into effect on 1 August
2018.
[2]
The
defendant is the executor in the estate of the Late Cornelius Willem
De Beer ("the deceased"), the driver of the motor
vehicle
in which the plaintiff was being conveyed as a passenger at the time
of the accident which occurred on 10 August 2007 on
the Koedoeskop
Road .
[3]
The
liability of The Road Accident Fund was limited to the sum of
twenty-five thousand rand (R25 000,00). The deceased died in the
accident which was a single vehicle accident.
[4]
At
the commencement of the matter an application was made by the parties
for a separation in terms of Section 33(4) of the Act which
order was
granted. Accordingly, the issue of quantum was postponed
sine
die
and the matter proceeded on the
merits, being the liability of the defendant for the damages suffered
by the plaintiff as a result
of the motor vehicle accident. The
plaintiff bears the onus of establishing on a balance of
probabilities the negligence of the
insured driver being the primary
cause of the collision.
[5]
It
is common cause that the plaintiff only need prove the proverbial1 %
negligence on the part of the insured driver in order to
be awarded
100% damages that he or she is entitled to recover from the
defendant.
[6]
The
common cause facts are the following:
(i)
a
motor vehicle accident occurred on 10 August 2007 along the
Koedoeskop Road involving a motor vehicle with registration number
[….] driven by the deceased;
(ii)
the
plaintiff, who was fourteen (14) years old at the time
was
a
passenger in the said vehicle at
the time of the accident;
(iii)
the
deceased died as a direct result of the injuries sustained in the
accident; and
(iv)
the
plaintiff suffered physical injuries in the said accident.
Evidence
[7]
The
plaintiff testified in his own case and confirmed that the deceased
was the driver of the vehicle in which he was a passenger.
He
testified that he knew the deceased very well as his father was
employed by the deceased's father. The deceased invited the
plaintiff
to ride with him and his step-mother, Adri de Beer to the shops to
purchase supplies. He agreed and jumped into the vehicle,
a Jeep
which had no doors and only had seats for the driver and the
passenger. At the back was a loose seat which had been converted
into
a speaker. Furthermore, the Jeep had been fitted with a Lexus engine.
The plaintiff also testified that the vehicle had no
seat belts
fitted.
[8]
When
they left the farm they drove along the R511 in the direction of
Koedoeskop from the Thabazimbi direction. They had driven
approximately 500 metres when the deceased drove off the tarred road
and stopped to attend to a problem the vehicle was experiencing.
He
testified further that the deceased did not indicate what the problem
could be but merely looked into the bonnet of the Jeep.
He testified
further that the deceased took out a spanner from the vehicle and
appeared to be tinkering with the vehicle in the
bonnet. He confirmed
that he could not see what was being done as he had remained seated
in the vehicle. After a few minutes, he
returned to the vehicle and
announced that they would proceed. They drove for approximately 2
kilometres when the accident occurred.
[9]
The
plaintiff testified that there was a slight ditch in the road that
they drove over then the vehicle careered first to the right
then to
the left of the road. When they hit the ditch, the deceased said to
them that they should be careful as there was a problem.
The
plaintiff hit his head and lost consciousness. He testified that he
was told that the vehicle had overturned but did not see
that it had
indeed overturned as he had lost consciousness.
[10] The
plaintiff testified that he only regained consciousness on the
arrival of the ambulance that transported
him to hospital. He was,
however, confused and was informed by his father that he had been
involved in a motor vehicle accident.
He never saw the Jeep after the
accident because he was kept away from it as he was emotional about
the accident. He did not know
what had caused the vehicle to leave
the road.
[11] In
cross-examination the plaintiff conceded that the accident had
occurred approximately twelve (12)
years ago when he was fourteen
years old but affirmed that the evidence he had given was something
that he had lived with all his
life.
[12] The plaintiff was
questioned further by counsel for the defendant about whether he had
discussed the
details of the accident with anyone but denied having
spoken to anyone and in particular Nico, the deceased's nephew. He
thought
that his father may have spoken to Nico about the accident.
[13] The
plaintiffs case was closed without any other witnesses being called.
[14] The
first witness for the defendant was Lambertus Nicolaas De Beer, the
deceased’s cousin. He
testified that he knew the plaintiff well
for the reason that the plaintiff's father worked for the family on
the farm. He testified
further that the vehicle belonged to and was
driven by the deceased.
[15]
Lambertus Nicolaas De Beer testified
further that he did not witness the accident but was called to the
scene of the accident after
his uncle (the deceased's father) had
notified his father of the accident. He found the vehicle lying on
its side and the deceased
was still in the vehicle. After they had
removed him from the vehicle, he saw the steering arm next to the
road and in
a
ditch.
He merely looked at it. He testified further that when they removed
the Jeep from the scene of the accident, they had to
tum the wheel
manually as there was not steering wheel to do so.
[16]
Lambertus Nicolaas De Beer testified
that he knew the Jeep well and had assisted the deceased when he had
worked on it in the past.
He testified that it had never experienced
any problems.
[17]
In cross-examination Lambertus Nicolaas
De Beer conceded that although he had worked on the Jeep he was not a
qualified mechanic
nor was the deceased a qualified mechanic. He also
had no knowledge if the deceased had worked on the vehicle in his
absence.
[18]
The defendant's second witness was
Lambertus Nicolaas De Beer, the deceased's brother who also admitted
that he was not present
at the time of the accident. He testified
that he had discussed the accident several times with the plaintiff
who he knew very
well. He confirmed that the plaintiff was shocked
and emotional about the accident at the time.
[19]
In cross-examination, he testified that
the deceased would ask his nephew to assist him in repairing the
vehicle. He had no knowledge
of who was qualified to work on the
vehicle but also confirmed that the Jeep would be sent to a workshop
for repairs from time
to time. He confirmed that the engine was
replaced and a Lexus engine inserted.
[20]
According
to the plaintiff the accident occurred as a result of the deceased's
own negligence which caused the insured vehicle to
lose control. The
defendant denied liability and pleads that the plaintiff travelled as
a passenger voluntarily and with the permission
of his father and
natural guardian. At a pre-trial conference held on 19 March 2019 and
in response to a question by the plaintiff
on how the incident
occurred, the defendant stated:
"Mechanical failure to
steering mechanism of vehicle"
The
law
[21] The
party who bears the onus of proof can only discharge it if he has
adduced enough credible evidence
to support the case of the party on
whom the onus rests. In the matter of
National
Employer's General Insurance v Jagers
[1]
the court
considered the matter and said-
"In deciding whether the
evidence is true or not the court will weigh up and test the
plaintiff's allegations against the general
probabilities. The
estimate of the credibility of a witness will therefore be
inextricably bound up with
a
consideration of
the probabilities of the
case
and, if the
balance of probabilities favours the plaintiff, then the court will
accept his version as being probably true."
[22]
Evidence of a witness which is not contradicted does not necessarily
have to be accepted by a court.
Whether or not the evidence is
accepted will
depend
upon its
quality. Evidence which
is
vague,
contradictory,
highly improbable or just plain irrational will not pass muster.
[2]
[23] The
test to be applied in order to weigh the defendant's conduct is
enunciated in the matter of
Kruger
v Coetzee
[3]
in which the
following
was
stated:
"Each case in which it is
said that a motorist is negligent must be decided on its own facts.
Negligence can only be attributed
by examining the facts of each
case. Moreover, one does not draw inferences of negligence on
a
piecemeal
approach. One must consider the totality of the facts and then decide
whether the driver has exercised the standard of
conduct which the
law requires. The standard of care so required is that which a
reasonable mane would exercise in the circumstances.
In all the cases
the question is whether the driver should reasonably in all
circumstances have foreseen the possibility of
a
collision."
[24] W.E.
Cooper in the book Delictual liability in Motor Law at page 101 said
the following about a vehicle
driving on the wrong side of the road:
(b)
Vehicle driving onto the incorrect side
When
a
motor vehicle
drove onto the incorrect side of the road and collided with an
approaching vehicle it has been held res ipsa loquitur
b6cause
the only
reasonable inference was that the defendant's driving onto the
incorrect side of the road at an inopportune moment was
due to his
failum to exercise proper cam. Proof that
a
vehicle was on
its incorrect side of the road
at
the time of the
collision (it is held) is prims facie proof of the driver's
negligence."
[25]
In argument, counsel for the plaintiff avers that the circumstances
of the accident are
res
ipsa loquitur
and
that the plaintiff has proved an occurrence giving rise to an
inference of negligence on the part of the defendant. Accordingly,
the defendant must produce evidence to the contrary or take a risk
that judgment will be granted against him .
[4]
[26]
The maxim
res
ipsa loquitur
gives
rise to an inference of negligence. A court is not compelled to draw
an inference. The enquiry at the end of the matter is
where the
balance of probabilities lies. This is determined on the totality of
the evidence heard. Although the onus of proving
negligence rests
with the plaintiff, the establishment of a
prima
facie
inference
of negligence on the part of the insured driver places the evidential
burden on the defendant to adduce and tender rebuttal
evidence which
negates the
prima
facie
negligence.
[5]
[27] If
the plaintiff proves the occurrence giving rise to the inference of
negligence against the defendant,
in effect the insured driver is
obliged to adduce probative evidence in rebuttal of the inference of
negligence.
[28] It is
notable that mechanical failure was not pleaded by the defendant. No
expert
witnesses
were called by the
defendant to confirm a mechanical failure. No service records were
produced in evidence of the condition of the
vehicle as also a
possible reason for the vehicle leaving the road and overturning. I
am of the view that the principle of
res
ipsa loquitur
finds
application as no evidence has been adduced in rebuttal of negligence
on the part of the deceased.
[29] The
defence of
volenti non fit injuria
which was pleaded by the
defendant, requires it to be established that the plaintiff had
knowledge of the risk, appreciated it and
consented to such risk. The
onus of proof lies with the defendant. I am of the considered view
that the defendant has failed to
discharge such onus. The plaintiff
was fourteen years old at the time of the accident and it was not
proved that he had the knowledge
of the risk, appreciated it and
consented to it. Furthermore, no evidence has been adduced that the
plaintiffs natural guardian
had knowledge of the risk, appreciated it
and also consented to it. As such, the defence fails.
[30]
Accordingly, the following order is granted:
The draft order attached hereto
and marked “
X”
is incorporated herein and made an
order of court.
MOKOSE J
Judge of the High Court
of South Africa Gauteng
Division, Pretoria
For
the Plainitff:
Adv
L Visser
instructed
by
Salome
Le Roux Attorneys
For
the Defendant:
Adv
J Moller
instructed
by
OJ
Botha Attorneys
Date
of Hearing:
24 April 2019
Date
of Judgement:
13 May 2019
IN THE HIGH COURT OF SOUTH
AFRICA
GAUTENG DIVISION, PRETORIA
AT
PRETORIA ON THIS THE 24
TH
OF APRIL 2019
BEFORE
HER LADYSHIP MADAM JUSTICE MOKOSE
CASE NUMBER: 11130/10
IN
THEMATTER BETWEEN:
STEFANUS
LUKAS KLOPPER
PLAINTIFF
AND
LAMBERTUS
NICOLAAS DE BEER n.o IN HIS
CAPACITY
As· EXECUTOR IN THE ESTATE
OF
THE LATE CORNELIUS WILLEM DE
BEER
DEFENDANT
DRAFT
ORDER
THE
COURT MAKES THE FOLLOWING ORDER:
1.
The defendant is ordered
to pay 100% (one hundred percent) of the
plaintiff's proven or agreed damages arising from injuries suffered
by him as passenger
in the accident that occurred on 10 August 2007
and on which plaintiff's claim is based.
2.
The
only remaining issue for determination in this court being the solely
quantification of the claim is hereby separated in terms
of Rule
33(4) from the issues of merits and liability which have become
resolved in plaintiff's favour and postponed sine die.
3.
The
defendant is ordered to pay the plaintiff's taxed or agreed attorney
and client costs of suit on the High Court scale incurred
in respect
of the issues which have become resolved as stipulated above in
paragraphs 1 and 2, which costs will include, but not
necessarily be
limited to the fees of plaintiffs counsel to be taxed on the
senior-junior scale, and also the following :
3.1.
The
costs of the interpreter for the plaintiff for trial;
3.2.
The
reasonable taxable travelling and subsistence costs of the plaintiff,
who is declared a necessary witness, for trial on 24 April
2019; .
3.3.
The
costs incurred in counsel having heads of argument prepared.
4.
All
payments of the plaintiff’s legal costs are to be made by
paying the taxed or agreed costs to the credit of the Trust
account
of Salome Le Roux Attorneys, the detail of which is as follows:
SALOMe
LEROUX ATTORNEYS
BANK:
THE STANDARD BANK OF SOUTH
AFRICA
BRANCH:
PRETORIA, CHURCH SQUARE
BRANCH CODE:
01-00-45-00
ACCOUNT NUMBER:
[….]
ACCOUNT HOLDER:
SALOMe LEROUX TRUSTACCOUNT
TYPE OF ACCOUNT:
TRUST CHEQUE ACCOUNT
REF:
N0673
5.
In
the event of the parties not being able to agree on the amount of the
legal costs payable by the defendant, the plaintiff shalt:
serve a notice of taxation on the
defendant's attorneys in the action; and
allow the defendant 14 court days
to make payment of·the costs so taxed.
If the defendant falls in mora to
pay the plaintiff's taxed or agreed to legal costs the defendant will
pay. interest on any such
outstanding costs to be calculated on the
outstanding amount at the statutorily prescribed mora rate of
interest applicable from
time to time to be calculated from date of
mora to date of final payment.
BY
ORDER OF THE COURT
THE
REGISTRAR
744
ATT: SALOMe
LE
ROUX
81
THOMAS EDISON STREET
MENLO PARK PRETORIA REF:N0673
C
LIEBSNBERG
084 657 2825
L
VISSER
0824525254
E BURGER
0836292097
[1]
1984 (4) SA
437
(E) at 440 D - G
[2]
Essential Judicial Reasoning by BR Southwood
page
3
[3]
1996 (2)
SA 428
(A)
at 430 E - G
[4]
Ntsala v Mutual & Federal Ins Co. Ltd
1996 (2) SA 184
(T) at 190
[5]
Mmekwa
v RAF (33275/ 2009) dated 13 June 2012