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[2019] ZAGPPHC 208
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Mangolele v Road Accident Fund (A542/2017) [2019] ZAGPPHC 208 (13 June 2019)
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 HIGH COURT OF SOUTH
AFRICA
(GAUTENG DIVISION, PRETORIA)
(1)
REPORTABLE:
YES
/NO.
(2)
OF
INTEREST TO OTHER JUDGES:
YES
/NO.
(3)
REVISED.
Case Number: A542/2017
13/6/2019
In
the matter between:
ADVOCATE
SIMON MANGOLELE
(Curator
ad litem
for: P M[….])
Appellant
and
ROAD
ACCIDENT
FUND
Respondent
JUDGMENT
POTTERILL
J
[1]
The
plaintiff, the curator
ad litem
on
behalf of P M[….] ("P[….]"), claimed from the
defendant, the Road Accident Fund ("RAF") for
bodily
injuries suffered pursuant to P[….] having jumped onto the
back of a bakery truck as a means to obtain a lift back
home. The RAF
denied liability. At the time that the incident occurred Pretty was
12 years old, thus between the ages of
7
and 14 .
[2]
The
court
a quo
erred
in law in finding that:
'The argument
sought to be relied upon clearly applies to minor children under the
age of 7 years."
[1]
The
Child Justice Act 75 of 2008
changed the accountability of children distinguishing now between the
age groups 0 - 9, 10-13 and 14-18 years old. Pertaining to
P[….]
falling between the ages of 10 and 13 there
is
a
rebuttable presumption that the
child under the age of 14 (an
impubis)
lacks accountability. After the age
of 9 a child may thus be accountable and held liable in delict if all
the requirements for such
liability are met.
[3]
In
cross-examination of P[….]the RAF did not attempt at all to
rebut this presumption and for purposes thereof P[….]
cannot
be found to be liable; i.e. being the negligent party or being
contributory negligent.
[3]
In cross-examination of P[….] the RAF did not attempt at all
to rebut this
presumption and for purposes thereof P[….]
cannot be found to be liable; i.e. being the negligent party or being
contributory
negligent.
[4]
This lack of accountability of the minor does not however
automatically render the
insured driver liable. The plaintiff must,
to succeed in his claim, prove that the insured driver was negligent.
[5]
The insured driver did not testify. P[….] testified that she
and a group of
people went to visit her cousin in Bizani. On their
return a group of more than five was next to the road when they saw a
bakery
truck. They asked the driver of the bakery truck to give them
a lift. The older cousin climbed into the front of the truck by
invitation.
They were left standing next to the road.
"When
we realised that the vehicle was now in motion, there was a sound of
the engine running
...
My cousin said we
should climb at the back of the bakery vehicle so that we should
reach our house.”
[2]
The truck is big
in size and length. It is a closed truck i.e. they could not climb in
at the back. They climbed with their feet
onto “
a
black metal
but
there were no handles to hold on so they held on by pressing their
flat hands against the back of the vehicle. “
After
the bakery truck drove a small distance I then fell because I was
tired.”
[3]
[6]
On these common cause facts no negligence of the insured driver can
be inferred. There
is no evidence that the driver was aware, or
should have been aware, that kids will jump onto the back of this
truck. This is especially
so when the truck has no handles or
anything else to hold onto. There is no evidence that the driver did
see the kids on the back
of the closed truck, or could have seen them
if he looked into his side mirrors. The mere fact that the group of
children were
not picked up does not render the insured driver
negligent in presuming that he should have foreseen that they would
jump onto
a truck onto which they had no grip. The reasonable person
in the position of the insured driver would not have acted
differently
and the causing of the bodily injuries were not
reasonably foreseeable and preventable. No reasonable driver is
expected to take
reasonable steps to guard against children jumping
onto a pulling away closed truck with nothing to grip onto. The court
a quo
thus
correctly found that the insured driver was not negligent.
[7]
For purposes of this appeal it is thus not necessary to decide
whether P[….]was
a passenger in the insured driver's vehicle
or not.
[8]
I accordingly make the following order:
The appeal is dismissed with
costs.
S. POTTERILL
JUDGE OF THE HIGH COURT
I
agree
L.M. MOLOPA-SETHOSA
JUDGE
OF THE HIGH COURT
I
agree
J.J.
STRIJDOM
ACTING
JUDGE OF THE HIGH COURT
CASE
NO: A542/2017
HEARD
ON: 5 June 2019
FOR
THE APPELLANT: ADV. M.E. MANALA
INSTRUCTED
BY: R S Tau Attorneys
FOR
THE RESPONDENT: NO APPEARANCE
DATE
OF JUDGMENT: 13 June 2019
[1]
Paragraph 7 of the Judgment
[2]
Page 38 lines 6-11
[3]
Page 41 line 10