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[2019] ZAGPPHC 247
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Botha N.O obo Sidikane v Road Accident Fund (15615A/2011) [2019] ZAGPPHC 247 (27 June 2019)
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IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
Case number: 15615A/2011
Date: 26/6/2019
In
the matter between:
ADV E BOTHA N.O. obo M G
SIDIKANE
PLAINTIFF
AND
THE
ROAD ACCIDENT FUND
DEFENDANT
JUDGMENT
TOLMAY,
J:
[1]
The Plaintiff instituted action against
the Road Accident Fund (RAF) for damages resulting from an accident
that occurred on 31
December 2008. The parties agreed that merits and
quantum be separated and the matter proceeded to trial on merits
only. Due to
the injuries sustained by the Plaintiff a
curator
ad litem
was appointed, and duly
substituted the Plaintiff in terms of Rule 15(1) and 28(1) of the
Uniform Rules of Court.
[2]
The first witness for the Plaintiff was
Mr Samuel Sidikane, the brother of the Plaintiff, Mr Gift Sidikane.
He testified that on
31 December 2008 he was sitting at a Spaza shop
in Diepsloot, when he saw two BMW motor vehicles speeding down the
street. According
to him there were many pedestrians walking on the
gravel shoulder of the road. The one BMW tried to overtake the one in
front of
it on the right hand side. He then saw a person flying
through the air. People gathered around the person, he went to take a
look
and it was only then that he realised that the person who was
hit by the motor vehicle trying to overtake the other one, was his
brother. He tried to talk to him and shook him to try and get a
response, but to no avail, eventually an ambulance arrived and
his
brother was taken to the hospital. He wanted to speak to the driver
of the motor vehicle, but he could not find him as he apparently
drove away. Another person was also injured, but he didn't know him,
and he only concentrated on his brother. He said that the
place where
the accident occurred is close to a school. He found his brother
lying on the gravel shoulder of :1e road. He testified
that many
people usually walk on the gravel shoulder of the road where his
brother was hit by the motor vehicle. A photograph of
the road and
surrounding area was shown to him. He said that, as can be seen on
the photograph, that the road has one lane in each
direction. The
photograph also indicates gravel shoulders on both sides where
pedestrians walk. Under cross-examination he denied
that he said he
was drinking, he was chatting with friends and saw his brother in a
distance standing on the gravel shoulder. He
denied that there were
many motor vehicles, but said that there were many pedestrians in the
area.
[3]
It was put to him under
cross-examination that his brother entered into the road to stop the
insured driver, as he knew him, and
as he approached the insured
driver a cyclist approaching at a high speed from the opposite
direction, hit his brother and because
of the impact his brother and
the cyclist collided with the insured driver's car. This witness said
that he did not see a bicycle
colliding with the car.
[4]
Mr Sheperd Makwaledi then testified . He
was standing on the side of the road as he just came out of a Spaza
shop and was about
to cross the road. He saw the Plaintiff standing
on the gravel shoulder next to the road. Two white BMW's approached
at high speed,
it seemed as if they were racing. The one in the back
tried to overtake the other one by driving onto the pavement. He
collided
with the Plaintiff and also with a cyclist that was
approeching from the opposite direction. The car which collided with
the Plaintiff
and the cyclist did not stop and sped off.
[5]
It was put to him in cross-examination
that the insured driver and his friend in the other BMW were driving
at about 20 kmph as
the road was very busy. He denied this and said
that the vehicles were speeding and that the Plaintiff was standing
next to the
road when the BMW collided with him. The car also
collided with the cyclist who was on the road driving in the opposite
direction.
He denied that the Plaintiff entered the road, carrying a
beer in each hand.
[6]
Mr Venancia Khuleka Ndluvo then
testified. He also attested to an affidavit about the accident. He
said that on the relevant day
he was coming from the mall. He saw the
Plaintiff standing on the pavement. He saw two vehicles approaching
at high speed. The
one tried to overtake the other and collided with
the Plaintiff who was standing on the gravel shoulder of the road and
the cyclist
that was approaching from the opposite direction. The
driver of the car who collided with the Plaintiff and cyclist did not
stop
at the scene pf the accident.
[7]
It was put to him that the insured
driver and the other vehicle was driving at 20 kmph and that
Plaintiff entered the road with
a two beers in his hand and tried to
stop the insured driver. The cyclist then collided with Plaintiff
resulting in both the Plaintiff
and the cyclist colliding with the
car.
[8]
This was the case for the Plaintiff.
[9]
The insured driver, Mr Phosa then
testified. He said that on the day in question his friend, Piet said
he should follow him in his
car. On the way, approximately 500 meters
from his home he came across the Plaintiff. Both he and his friend
stopped. This contradicts
what was put to the witnesses, namely that
he was driving at a speed of 20 kmph. He said he stopped ± 6
metres behind his
friend. At that stage the Plaintiff started walking
onto the road, without looking whether it was safe, when he was in
the middle
of the road a cyclist coming from the opposite direction,
at a high speed collided with the Plaintiff. Both the cyclist and the
Plaintiff then collided with his car. He said the Plaintiff was drunk
and had two beers in his hands. He said they then called
the metro
police, who was on the scene in about 10 minutes and they then called
an ambulance. He said that he was present at the
scene and even
talked to the metro police, who advised him to open a case against
the cyclist. He however decided against it as
the Plaintiff was his
friend and the cyclist was not known to him. He said that the bicycle
collided with the front right side
of his car, while his vehicle was
stationary in the left hand side of the car.
[10]
Interestingly enough, despite his testimony that he talked to the
metro police and gave them his version
of events on the scene. His
version of events is not contained in the accident report. The
description contained in the report
is the same version as the one
given by all three witnesses who testified on behalf of Plaintiff.
[11]
Initially he said that he could not have
driven onto the pavement as his vehicle is very low. A photograph
taken at the time of
the accident was shown to him and indicated that
this was not elevated pavement, what was referred to as a pavement
was actually
merely a gravel shoulder. When confronted with this Mr
Phosa conceded that his car could indeed have driven onto it.
[12]
Under cross-examination he changed his
version on at least two occasions. He said, contrary to what was put
to the witnesses by
his counsel that the Plaintiff did not approach
him, but rather his friend who was in the car in front of him. Later
on he said
that the Plaintiff walked between the two stationary cars.
If this was so, it is inexplicable how the cyclist approaching from
the opposite direction could have collided with Plaintiff, nor how
Plaintiff could have been flying through the air as a result
of the
collision. It is also improbable that both vehicles would have come
to a standstill if the road was as busy as alleged by
Mr Phosa.
[13]
The insured driver's version is
improbable. The version as stated by the Plaintiff's witnesses was
proved on a balance of probabilities.
Mr Phosa was the sole cause of
the accident and the RAF is liable for 100% of the damages suffered
by the Plaintiff.
[14]
Plaintiff was represented by two
counsel, one of which is a senior counsel. Defendant was of the view
that costs of two counsel
should not be awarded. I m of the view,
that at this stage at least, the costs of two counsel is not
justified, as the matter was
not complicated and could easily have
been dealt with by Plaintiff's senior counsel. The RAF is funded by
the public and Court's
should endeavour to save public funds.
[15]
I make the following order:
1.
The
issues of merits and quantum are separated in terms of Rule 33(4) and
the quantum claim is postponed
sine
die;
2.
The
Defendant is ordered to pay 100% of the Plaintiff's proven and/or
agreed damages;
3.
The Defendant shall pay
Plaintiff's taxed or agreed party and party costs on the High Court
scale, which will be limited to one
senior counsel,
4.
The amounts referred to paragraph
2 and 3 will be paid to the Plaintiff's Attorneys, Van Nlekerk
Attorneys, by direct transfer into
their trust account, details of
which are the following:
NAME;
Van Niekerk Attorneys
BANK:
First National Bank
ACCOUNT NO:
[….]
BRANCH CODE:
25-37-42
REFERENCE:
FN2404
RG TOLMAY
JUDGE OF THE HIGH COURT
DATE
OF HEARING:
18 JUNE
2019
DATE
OF JUDGMENT:
27
JUNE 2019
ATTORNEY
FOR PLAINTIFF:
VAN NIEKERK ATTORNEYS
INC
ADVOCATE
FOR PLAINTIF:
ADV B GEACH
(SC) et ADV W BOTHA
ATTORNEY
FOR DEFENDANT:
PULE INC
ADVOCATE
FOR DEFENDANT:
ADV J G VAN DEN BERG