About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2019
>>
[2019] ZAFSHC 40
|
|
Marais v Road Accident Fund (128/2018) [2019] ZAFSHC 40 (25 April 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
YES/NO
Of
Interest to other Judges:
YES/NO
Circulate
to Magistrates:
YES/NO
Case
No.: 128/2018
In
the matter between:
WILLEM
PIETER
MARAIS
Plaintiff
and
ROAD
ACCIDENT
FUND
Defendant
HEARD
ON:
29 & 30 JANUARY 2019
and 1 FEBRUARY 2019
JUDGMENT
BY:
MATHEBULA, J
DELIVERED
ON:
25 APRIL 2019
[1] In
this matter the only issue to be adjudicated is the merits of the
claim. The parties have
agreed that quantum be separated (and dealt
with at a later stage). This is an action pursuant to the provisions
of the
Road Accident Fund Act 56 of 1996
for damages in respect of
personal injuries sustained by the plaintiff arising out of a motor
collision.
[2] It
is not disputed that the plaintiff and the insured driver one Bejile
Benjamin Kondile
were involved in a motor collision on the R702 road
between Dewetsdorp and Bloemfontein. This occurred on the 7
th
August 2015 at approximately 14H00pm. The main point of
contention is whether the insured driver had been negligent in
causing
the motor collision.
[3] The
plaintiff testified on his behalf. The insured driver and his
employer also testified
on behalf of the defendant.
[4]
The plaintiff testified inter alia that he was from Zastron via
Dewetsdorp to Bloemfontein when he collided
with a trailer attached
to a bakkie. He had already passed a bypass when he saw a
bakkie driving in the emergency lane going
in his direction.
The first time he noted it the distance between them was
approximately 100 to 120 metres. It appeared
to him that it was
stationary. On closer inspection he observed that it was only
driving slowly.
[5]
He was about four metres away when the insured driver made a U-turn
without any indication
to other road users. The manoeuvre was
so sudden that it gave him no opportunity to avoid the collision. He
attempted
to swerve to the left side and collided with the trailer on
the right side. His motor vehicle was also damaged on the front
right side. He stopped his motor vehicle on the point of impact
while the insured driver stopped the bakkie in the emergency
lane on
the opposite direction. On alighting from his motor vehicle,
the insured driver apologised for causing the collision.
As a
result he sustained neck and knee injuries and was hospitalised for
few days.
[6]
Under cross-examination, he denied that there were roadworks on the
part of the road where
the collision occurred. He was adamant
on this aspect. It was put to him that he ignored a
“stop-and-go”
sign and simply proceeded when it was
inopportune to do so. His response was that there was none.
He was shown the
orange cone placed almost in the middle of the road
as depicted on page 8 of Exhibit 1 that there were road works.
He replied
that this was placed there probably by the police on their
arrival at the scene. There was none on the tarmac prior to the
accident.
[7]
In rebuttal the insured driver testified that he was employed by his
nephew who was awarded
a contract to patch the potholes. The
first board he placed on the road was the one showing that there were
roadworks in
progress. In addition he put the “stop-and-go”
sign controlled and changed by a person with a red flag on the
lane
from Zastron to Bloemfontein. It is the one that the plaintiff
failed to adhere to. The result thereof was that
the plaintiff
collided with his trailer attached to his motor vehicle. He
denied ever being in the emergency lane prior to
the collision
occurring although he agrees with the point of impact.
[8]
Under cross-examination, he was confronted whether the version that
the plaintiff drove
through the “stop-and-go” operation
was relayed to the police who attended the scene of accident on the
day. His response
was that he did inform them but the police did not
speak to him but to the plaintiff. It was put to him that if there
was a “stop-and-go”
operation it must have been on the
right side of the road. He agreed and expanded that the plaintiff
returned to his proper lane
after passing the checkpoint. He further
denied ever apologizing to the plaintiff. He stated that he did not
see the plaintiff’s
motor vehicle coming largely because he had
closed the road. He not see it because he knew there were no motor
vehicles. He confirmed
that before the accident his motor vehicle was
stationary in the emergency lane. Although he made his observations
prior to making
a U-turn, he did not see the plaintiff coming from
behind. In short, he was not responsible for causing the collision.
[9]
The evidence of Thembekile Msadi is that he arrived on the scene
after the collision had
taken place. The police were already on the
scene and the plaintiff as well as the insured driver were making
statements to them.
On arrival he did not realise whether the
“stop-and-go” sign had been moved or not. He did not pay
particular attention
whether it was set up correctly or not.
[10]
The matter was postponed to trace a person that the defendant
intended calling as a witness.
Unfortunately he was on leave at
the time. Given these circumstances, the defendant closed its case. I
am indebted to both counsel
for filing heads of argument which were
not only helpful in preparing this judgment but were detailed on the
issue to be adjudicated.
[11] The
common cause issue is that the motor vehicles collided on the left
side on the Bloemfontein bound carriage
way of the road. The insured
driver was executing a U-turn. The point in dispute is that the
plaintiff was the cause of the collision
in that he negligently drove
past the “stop-and-go” checkpoint when it was inopportune
to do so. Thus he was the sole
cause of the collision
[12]
It has been agreed by the parties that the plaintiff bears the onus
of proof and the duty to begin
and adduce evidence in respect of the
merits of his claim.
[13]
The plaintiff gave his evidence in a vivid and clear manner as to how
the events of that particular
day unfolded. It is clear that the
collision occurred on his correct side of the road. Equally so that
the insured driver was executing
a U-turn. The fact that the insured
driver was at some stage in the emergency lane is also common cause.
This manoeuvre in the
middle of the road placed a higher premium of
keeping a proper lookout on the part of the insured driver to ensure
that it was
indeed safe to do so before doing it. The version as
narrated by the plaintiff is more probable given the chronology of
events
surrounding the collision. The insured driver was driving a
motor vehicle pulling a trailer cut across the road in the face of
the oncoming traffic. In his quest to avoid the collision, the
plaintiff missed the motor vehicle and collided with the rear right
wheel of the trailer. I accept his version that his best was not good
enough to completely avoid the collision given the sudden
manner that
a motor vehicle that appeared stationary at first sight suddenly made
an unexpected U-turn. Moreso he was close to
it.
[14]
The insured driver did not create a good impression of himself as a
witness particularly under cross-examination.
He dismally failed to
answer questions, was evasive and contradicted himself on several
occasions. He was also quick to adjust
his testimony where he could
not provide adequate explanation. It was put to him that if there was
a “stop-and-go”
checkpoint, the collision should have
occurred on the right side of the road. His response was that the
plaintiff passed it on
the right and then went back to the left side
of the road. This was not his original testimony but the new version
under cross-examination.
[15]
The issue of the “stop-and-go” checkpoint appears to have
surfaced for the first time during
the trial. In the accident report,
the collision is recorded as narrated by the plaintiff. Again the
insured driver denied ever
talking to the police on that day. His
version is far-fetched. It boggles the mind then from whom did they
obtain his personal
details if he did not talk to them. Further
nothing about the “stop-and-go” checkpoint is recorded in
the accident
report. Even the witness Tolekile Msadu testified that
he did not observe any “stop-and-go” checkpoint. This
witness
testified that on his arrival the plaintiff and the insured
driver were making statements to the law enforcement officers who had
attended the scene of collision.
[16]
The insured driver also gave convoluted responses and made irrelevant
statements to the questions that
were posed to him. On occasions that
he gave a plausible answer, it was extracted after intense
cross-examination. He conceded
that he did not keep a proper lookout
because he had closed down one lane. Even if that was the case, it is
gross negligence to
enter the road without a proper lookout. He knew
that this was a national road and it had some sizable volume of
traffic between
the towns of Dewetsdorp, Zastron and the regional
city of Bloemfontein. Had he kept a proper lookout, he would have
seen that the
plaintiff has driven through the “stop-and-go”
and taken precautionary measures to avoid any collision.
[17]
The higher court has described a proper lookout as entailing a
continuous scanning of the road ahead,
from side to side, for
obstructions or potential obstructions.
[1]
This will apply to any driver who attempt to or execute a U-turn on
any road. It is patently clear that the insured driver
did not keep a
proper lookout on the day in question. He was not aware about what
was happening around him. No evidence was led
as to when last did he
look in the direction of the “stop-and-go” checkpoint to
ensure that the situation is still
the same as at the time he set it
up.
[18]
The alternative defence in this matter is that of contributory
negligence. The submission is that in
the event a finding is made in
favour of the plaintiff, there must also be a finding that the
plaintiff contributed to the occurrence
of the collision by not
exercising a proper lookout.
[19]
This contention is not supported by evidence that was led in this
matter. As stated in preceding paragraphs,
the insured driver is
solely to blame for the collision. He did not exercise the reasonable
care and skill required of an experienced
driver in his position. His
actions amounted to gross negligence. The conclusion is that this
argument has no merit and stand to
be rejected.
[20]
The plaintiff has established on a balance of probabilities that the
insured driver negligently collided
with his motor vehicle. This is
supported by evidence led in this matter.
[21]
According I make the following order:-
21.1. Judgement
on the merits is entered in favour of the plaintiff with costs.
M. A. MATHEBULA, J
On
behalf of the Plaintiff:
Adv. K. F.
Pieterse
Instructed
by:
Honey Attorneys
BLOEMFONTEIN
On
behalf of the Defendant :
Adv. S. E. Motloung
Instructed
by:
Maduba Attorneys
BLOEMFONTEIN
/roosthuizen
[1]
Nogude v Union and South West Africa Insurance Co Ltd
1975 (3) SA
685
(A) at 688A