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 57
|
|
Khoarai v Road Accident Fund (5005/2017) [2019] ZAFSHC 57 (30 May 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 number:
5005/2017
In
the matter between:
MMUTSI
VINCENT KHOARAI
PLAINTIFF
and
ROAD ACCIDENT
FUND
DEFENDANT
JUDGMENT
BY:
C REINDERS, J
HEARD
ON:
7
MAY 2019
DELIVERED
ON:
30 MAY 2019
[1]
Shortly before Christmas on 23 December 2015 at 14h00 on the R27
public road between Dewetsdorp
and Wepener, Plaintiff was the
driver of a Nissan 1400 light duty motor vehicle (“the
Nissan-bakkie”) when a
collision occurred with a BMW motor
vehicle (“the BMW) driven by Mr E Bacela. Plaintiff
sustained serious injuries
and sues the Defendant as being
statutorily liable for damages that he suffered as a result of the
aforementioned collision.
[2]
At the commencement of the trial I was requested to order a
separation of the merits (paragraphs
1-4 of the particulars of claim
and the corresponding paragraphs 1-4 of the Defendant’s plea)
and the remainder of the Plaintiff’s
claims in terms of Uniform
Rule 33(4). I so ordered. The issue to be decided by me is
accordingly the question of causative negligence.
[3]
The plea by Defendant amounts to a bare denial of paragraphs 1-4 of
the particulars of claim
stating the time, date, road, names of the
Plaintiff and Mr E Bacela, the insured driver, and the vehicles’
details. Defendant
likewise denies that the accident was as a result
of the sole negligence of the insured driver and all the grounds
pleaded by Plaintiff
as to such negligence. Defendant was requested
to make certain admissions in respect of the aforementioned, but
failed to reply
to the same. The Defendant’s papers were
drafted poorly. This much is evident from the fact that Defendant did
not plea that
the Plaintiff’s claim be dismissed with costs,
but merely
“
ALTERNATIVELY,
that
the amount of damage found to be recoverable by the Plaintiff be
reduced in terms of the provisions of the Apportionment of
Damages
Act 34 of 1956 to the extent as deemed fit by the above Honourable
Court having regard to the extent to which the Plaintiff’s
fault contributed to the causation of his injuries and damages.”
[4]
Mr Dreyer appeared on behalf of the Plaintiff. To prove his case the
Plaintiff testified.
The defendant did not lead any viva voce
evidence. A bundle of documents (Exhibit “A”) containing
amongst others the
Accident Report (“the report”), was
handed in by Mr Dreyer without any objection thereto by Mr Nkhahle,
appearing for
the Defendant.
[5]
According to Plaintiff he was on his way from Bloemfontein to Wepener
to deliver a heavy
load of liquor, driving his Nissan-bakkie. It was
14h00 in the afternoon and visibilitiy was good. He was driving in
the left lane
on the single lane road. There were no vehicles in
front of him. He noticed a red BMW vehicle behind him approaching. He
also observed
an oncoming vehicle He was driving at a speed of
60-80km/h. He observed the BMW coming closer, attempting to overtake
but then
falling back. He heard noises as his Nissan-bakkie was hit
on the rear, causing it to travel into the veld and overturn several
times. He could do nothing to prevent the accident.
[6]
Plaintiff confirmed his sworn statements in respect of the accident,
and the description
thereof evidenced by the Accident Report. In the
brief description of the accident it was recorded as follows:
“
According to both
drivers the
(sic)
were travelling straight towards dewetsdorp
(sic)
and driver of vehicle B wanted to overtake and there was an oncoming
traffic he tried to return to his lane and in the process
he hit
vehicle A at the back and both vehicles rolled.”
[7]
In cross-examination by Mr Nkahle Plaintiff testified that he noticed
oncoming traffic from a distance
of about a kilometre, checked in his
mirror and saw the BMW about 30m behind him. The BMW was signalling
his intention to engage
in overtaking manoeuvre by way of his
vehicle’s indicators. He was aware of the BMW and kept on
concentrating on the road.
The BMW wanted to overtake his vehicle and
he observed same starting to pass him on his lane. The BMW attempted
to return to its
lane. It was put to Plaintiff that, had he reduced
his speed, the BMW could have been successful in falling back in time
to avoid
a collision. Plaintiff denied this.
[8]
The Plaintiff made a very favourable impression on me, and I do not
have any reason not to accept his
testimony. The evidence of the
Plaintiff on how the collision occurred, is uncontested. No other
version was put to the Plaintiff.
Accordingly Plaintiff succeeded in
proving the negligence of the insured driver as averred in paragraph
4 of the particulars of
claim.
[9]
Mr Nkhahle pressed on me that I should find on the evidence that
Plaintiff contributed to the accident.
He argued that Plaintiff
should have forseen the overtaking maneuver and reduced his speed of
60-70km/h even further. According
to him Plaintiff took a passive
roll whilst it was his responsibility to have fallen back. I was not
provided with any case law
by Mr Nkahle to substantiate his
submissions, nor as said, was any evidence tendered by the Defendant
to this effect. In my view
the submissions as to contributory
negligence amount to mere speculation.
[10]
Regulation 298(1)
and (3) of the
National Road Traffic Act 93 of 1996
deals with the statutory obligations of a driver performing a
maneuver of overtaking and the corresponding obligation on a driver
whose vehicle is being overtaken. It reads as follows:
“
Passing
of a vehicle-
(1)Subject to the
provisions of subregulation (2) and (4) and
regulation 296
, the
driver of a vehicle intending to pass any other vehicle proceeding in
the same direction on a public road shall pass to the
right thereof
at a safe distance and shall not again drive on the left side of the
roadway until safely clear of the vehicle so
passed…
(3) the driver of a
vehicle shall, except in circumstances referred to in the first
proviso of subsection (1), upon becoming aware
of other traffic
proceedings in the same direction and wishing to pass his vehicle,
cause his vehicle to travel as near to the
left edge of the roadway
as is possible, without endangering himself or other traffic or
property on the roadway, and shall not
accelerate the speed of his
vehicle until the other vehicle has passed.”
I am of the view that the
aforementioned does not lend support to Mr Nkahhle’s
submissions.
[11] In my
view the sole reason for the collision is that the insured driver at
a very inopportune moment wanted to
overtake Plaintiff’s
vehicle, realised that he could not and in the process of attempting
fall back and return to his lane,
collided with Plaintiff’s
vehicle. Plaintiff could not prevent the collision.
[12] Mr
Dreyer submitted that there is no evidence or legal principles upon
which I should find that Plaintiff was negligent
and contributed to
the collision. I agree with him.
[13] I
am therefore satisfied that Plaintiff succeeded to prove on a balance
of probabilities that the collision
occurred due to the Defendant’s
sole negligence. Plaintiff is entitled to costs, and I do not
find any reason to deviate
from the usual order that costs should
follow the cause.
[14]
The following orders will therefore issue:
1.
The
Defendant is liable for payment of all (100%) of the plaintiff’s
proven or agreed damages.
2.
The
Defendant shall pay the Plaintiff’s taxed or agreed party and
party costs.
3.
In
the event that costs are not agreed:
3.1
The
Plaintiff shall serve a notice of taxation on the Defendant’s
attorney of record; and
3.2
The
Plaintiff shall allow the Defendant fourteen (14) court days to make
payment of the taxed costs.
4.
The
matter is postponed to the pre-trial roll of 15 July 2019 for
continuation of the adjudication on the remainder of Plaintiff’s
claim against Defendant.
C
REINDERS, J
On
behalf of Plaintiff:
Adv WJ Dreyer
Instructed by:
Van Zyl Le Roux Inc.
c/o Du Plooy Attorneys
Bloemfontein
On
behalf of Defendant : Adv T
Nkhahle
Instructed by:
Maduba Attorneys
Bloemfontein