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[2019] ZAGPPHC 192
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Stefan v Road Accident Fund (9734/2016) [2019] ZAGPPHC 192 (29 May 2019)
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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SAFLII
Policy
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH
AFRICA
GAUTENG DIVISION, PRETORIA
(1)
REPORTABLE:
NO
(2)
OF
INTEREST TO OTHER JUDGES: NO
(3)
REVISED
CASE
NO: 9734/2016
29/5/2019
In
the matter between:
NIEMANN
STEFAN
PLAINTIFF
And
ROAD
ACCIDENT FUND
DEFENDANT
JUDGMENT
KUBUSHI
INTRODUCTION
[1]
On the 19 June 2014 at Voortrekker Street (now Steve Biko Street) in
Pretoria an accident
occurred between a motor vehicle with
registration number [….] ("the insured motor vehicle")
driven by Teboho
Mabotja ("the insured driver"), and a
motor cycle with registration number [….] ("the motor
cycle")
driven by the plaintiff, Stefan Niemann. The plaintiff
suffered serious injuries as a result of the said accident and is in
this
matter claiming compensation from the Road Accident Fund ("the
Fund") for damages.
[2]
At the commencement of trial, the plaintiff
per
agreement with
the defendant, applied for separation of the merits and
quantum.
The matter was to proceed on merits only and the
quantum
to
be postponed
sine die.
An order for the separation of merits
and
quantum
was granted in terms of uniform rule 33 (4).
[3]
At the time when the action was
instituted it appears as if the insured driver and/or insured motor
vehicle were unknown to the
plaintiff. But, when the matter served
before me the insured driver had been located. As such, the parties
were agreed that only
the issue of negligence was in dispute, all the
other issues having been admitted.
[4]
Only two witnesses tendered evidence,
namely the plaintiff who gave testimony in respect of the issue of
negligence; and Sean Patrick
Watson, a metro police officer who
arrived on the scene of the accident immediately after the collision,
who was called by the
defendant to testify. I was informed that the
defendant had two witnesses including the insured driver but the
insured driver did
not attend court though he was served with a
subpoena. I shall deal, later in this judgment, with the failure of
the insured driver
to attend court.
THE EVIDENCE
The Plaintiff's Evidence
[5]
The plaintiff was the first witness to
give evidence. In summary, his evidence is that on the day of the
accident at around 17h30,
he was driving the motor cycle along
Lavender Road ("Lavender") going into Steve Biko Street
("Steve Biko").
Where Lavender goes into Steve Biko there
is a side street (slip way), Wonderboom Street ("Wonderboom"),
also connecting
into Steve Biko. Traffic from both Lavender and
Wonderboom enter Steve Biko at the same intersection moving in the
same direction.
[6]
The plaintiff was driving on the right lane in Lavender which would
enable him to
easily turn right into Steve Biko. Before he came to
the intersection where Lavender and Wonderboom meet to join Steve
Biko, he
stopped at a traffic light that was about 3 to 4 meters from
the intersection.
[7]
As he was approaching the intersection,
he noticed a Quantum Bus ("the Quantum") travelling along
Wonderboom towards Steve
Biko. As the Quantum was a little bit ahead
of him he moved to the left lane to allow the Quantum to enter Steve
Biko ahead of
him. He went back into the right lane after the Quantum
had entered Steve Biko and travelled behind the Quantum.
[8]
As the two vehicles entered Steve Biko
the road went up hill. He moved back to the right lane in order to
overtake the Quantum that
was by then travelling slowly because of
the uphill. As he was about to pass the Quantum it (the Quantum)
moved to the left lane
as well. The Quantum hit the right side of the
motor cycle's handle bar with its right rear light. The handle bar
got stuck to
the Quantum's light and dragged the motor cycle with it.
As the two vehicles went downhill, the motor cycle disconnected from
the
Quantum which caused the plaintiff to lose control of the motor
cycle. The motor cycle went off the road and the plaintiff was thrown
off. He could not say where he fell after being thrown off because he
lost consciousness and only came to his senses when he was
already in
the ambulance. He also did not know where the motor cycle landed
after it went off the road.
[9]
The accident happened about 15 meters
from where Wonderboom enters Steve Biko. Where the accident occurred
there is a broken line
which allowed the plaintiff to move from the
right lane to the left lane. He was travelling at about 60km
per
hour as he moved from a traffic
light that had just turned green. According to him there was nothing
that he could have done to
avoid the accident. At the time of the
accident he was already on the left lane and he could not go further
off the road.
The
Defendant's Evidence
[10]
The evidence of the defendant was led by Sean Patrick Watson ("Sgt
Watson"), a sergeant
in the Metro Police Service with ten years'
experience. He arrived on the scene of the accident immediately after
it happened.
His testimony is that on the day in question he was
travelling to the office in his own motor vehicle along Steve Biko
when he
noticed motor vehicles stopping in the road. He also stopped.
He noticed a motor cycle lying at the side of the road. He also
noticed
the driver of the said motor cycle lying on the side of the
road down a slope. He went to assist the driver of the motor cycle.
He also called emergency services who took the injured motor cycle
driver to hospital.
[11]
After the ambulance left he called the police. He went and talked to
the driver of the Quantum
who told him that he was driving on the
right lane of the road when he felt a bump at the rear of the motor
vehicle. He thought
that it was some of the equipment in the motor
vehicle and ignored it. He only realised that something was wrong
when he saw and
heard people calling out to him to stop. This
evidence was, after objection from the plaintiffs counsel, accepted
provisionally
due to its hearsay nature and was dismissed as hearsay
evidence at the end of the trial.
ARGUMENT
[12]
The plaintiff's counsel argued for the acceptance of the plaintiffs
evidence as having established
negligence on a balance of
probabilities. The contention was that the driver of the Quantum did
not keep a proper look out and
moved to the left lane of the road
without noting whether it was clear or not. There is no evidence that
the plaintiff could have
done anything else to avoid the accident.
[13]
The defendant's counsel on the other hand argued for the dismissal of
the plaintiffs claim on
the ground that he did not keep a proper look
out. The plaintiff was also moving fast in the circumstances in that
he was driving
moving between the right and left lane as a sign of
impatience and the traffic was also heavy at the time of the
accident.
[14]
According to counsel how the accident happened is improbable.
Probabilities are if the plaintiff
was driving at 60km
per
hour
he would not have landed where he was found after the accident. The
evidence does not establish negligence on a balance of
probabilities.
Should the negligence on the part of the insured driver have been
established there should be contributory negligence
due to lack of
proper lookout by the plaintiff.
DISCUSSION
[15]
The issues in this matter are common
cause except negligence. In his particulars of claim the plaintiff
alleges that the insured
driver was negligent in that he (insured
driver) failed to keep a proper look out; he drove at a high speed
under the circumstances;
he failed to apply brakes
alternatively
in time further
alternatively
he drove a motor vehicle the brakes
of which were not in order; he failed to control the motor vehicle;
he failed to avoid the accident;
and he drove into the lane in which
the plaintiffs motor cycle was driving when it was not opportune to
do so.
[16]
In his evidence the plaintiff testified
only as to the failure by the insured driver to keep a proper look
out and that he drove
into the lane in which the motor cycle was
driving when it was not opportune to do so. There is only the
evidence of the plaintiff
that is before court to give the events of
what happened at the time of the accident. The evidence of Sgt Watson
does not assist
in this regard. He arrived on the scene when the
accident had already occurred. The only other witness who could have
given better
evidence is the insured driver who refused to come to
court. It can, therefore, never be known whether there is any other
version
of events besides what is related by the plaintiff. I have to
accept the plaintiffs testimony that when he moved for the second
time into the left lane, the Quantum also moved into the same lane
without noting whether it was opportune to do so.
[17]
The defendant's counsel argues that the
plaintiff was driving at a high speed but there is no such evidence
tendered. The only evidence
is that he was driving at a speed of 60km
per
hour.
This to me is probable. Just before the accident the plaintiff had
stopped at a traffic light in Lavender. He would have to
slowly
gather speed before it can be said that he was driving at a speed
higher than 60km
per
hour.
The evidence is also that he had to reduce speed to give way to the
Quantum to join Steve Biko from Wonderboom. There is also
evidence
that at the point of impact the road was going uphill. There is,
thus, no evidence that the plaintiff could have been
driving at a
high speed under the circumstances.
[18]
The contention by the defendant's
counsel that there was a lot of traffic at the time of the accident
is untested. It was never
put to the plaintiff who is the only person
who gave evidence and was there when the accident occurred. That at
that time of the
day there is always a lot of traffic cannot be prove
that at the time the accident happened there was a lot of traffic in
the area
where the accident occurred. Conversely, if it can be
accepted that there was a lot of traffic in the area at the time,
this goes
to establish that the plaintiff could not have been driving
at a high speed.
[19]
I am. thus. satisfied that the plaintiff
has been able to establish negligence on the part of the insured
driver and his claim must
succeed.
[20]
The defendant in his plea pleads
contributory negligence in the event I find that the accident was
caused by the negligence of the
insured driver. The defendant's
counsel also argued for contributory negligence to be attributed to
the plaintiff. This, however,
cannot be so. There is no evidence that
indicate in what manner it can be said that the plaintiff contributed
to the accident;
this mainly because the defendant led no such
evidence. Without any evidence I cannot find for the defendant in
this regard.
SUBPOENA
[21]
At the close of the plaintiffs case the
defendant's counsel informed me that one of the defendant's
witnesses, the insured driver,
did not come to court. According to
counsel, the matter was previously postponed in order to secure the
insured driver's attendance
as a witness. He had repeatedly refused
to attend court and consequently a subpoena was issued and served on
him in order to procure
his attendance in court but he did not obey
the subpoena. Counsel, as such, applied for the issue of a warrant of
arrest against
the insured driver.
[22]
A copy of the subpoena together with
proof of service of the subpoena was handed in court as exhibit "B"
and "C"
respectively. It appears from the return of service
that the subpoena was in fact served on Mr Nhlanhla who is described
as the
brother of the insured driver. The question is whether I can
authorise the issue of a warrant of arrest against the insured driver
if the subpoena was not served personally on him.
[23]
Section 35 of the Superior Courts Act 10
of 2013 ("the Act") provides for the manner of securing
attendance of witnesses
in proceedings and penalties for failure. In
terms of section 35 (1} of the Act a party to proceedings before any
Superior Court
in which the attendance of a witness is required, may
procure the attendance of any witness in the manner provided for in
the rules
of that court. Subsection (2) thereof stipulates that
whenever any person subpoenaed to attend any proceedings as a witness
fails
without any reasonable excuse to obey the subpoena and it
appears from the return of service that the subpoena was served upon
the person to whom it is directed and that his or her reasonable
expenses have been paid or offered to him or her, the court concerned
may issue a warrant directing that he or she be arrested and brought
before the court.
[24]
According to section 35 (2)
(a)
of the Act the subpoena must
be served upon the person to whom it is directed. It, however,
appears that in this instance the subpoena
was not served upon the
insured driver but on his brother. The subsection also provides that
the witness' reasonable expenses must
have been paid or offered to
him or her. On perusal of the copy of subpoena handed in court it
does not appear as if the witness
(insured driver) was paid or
offered his reasonable expenses.
[25]
It is on this basis that I am of the
view that the subpoena alleged to have been served on the insured
driver does not warrant the
issue of a warrant for the insured
driver's arrest.
[26]
I, therefore, make the following order
1.
The plaintiffs claim succeeds 100%.
2.
The defendant is ordered to pay the
plaintiffs proven or agreed damages.
3.
The defendant is ordered to pay costs of
suit.
4.
The claim for damages is postponed
sine
die.
E.M. KUBUSHI
JUDGE OF THE HIGH COURT
APPEARANCES:
Counsel
for Applicant
: Adv. D.J Venter
Instructed
by
: Martins Attorneys
Counsel
Defendant
: Adv. J Matladi
Instructed
by
: Borman Duma Zitha Attorneys
Date
heard
: 06 MAY 2019
Date
of judgment
: 29 May 2019