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[2018] ZAGPPHC 452
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Nkombyane obo Minor v Road Accident Fund (22986/2015) [2018] ZAGPPHC 452 (1 February 2018)
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
CASE
NUMBER: 22986/2015
DATE DELIVERED:
1/2/2018
In
the matter between:
VONGANI
KAREL NKOMBYANE
obo
PLAINTIFF
Minor
and
THE
ROAD ACCIDENT
FUND
DEFENDANT
JUDGMENT
MANGOLELE
AJ
[1]
In
this matter the Plaintiff instituted a claim against the Defendant
for personal injuries arising out of a motor vehicle collision
that
occurred on 23 February 2003.
[2]
The
Plaintiff is the biological father of the minor child and acts in
these proceedings on his behalf.
[3]
The
issue of merits and quantum were separated by agreement between the
parties and an order to that effect was granted separating
the merits
from quantum in terms of 3(4) of the High Court Rules. The matter
then proceeded on the basis of the determination of
merits only. In
particular, I am called upon to determine whether a collision did
occur on the said date and whether the minor
child was a passenger in
the insured vehicle.
[4]
Plaintiff's
case:
The Plaintiff's evidence comprise
of that of two of its witnesses being the Plaintiff himself and his
aunt the second witness.
[5]
The
Plaintiff testified that he is the biological father of the minor
child who is now seventeen (17) years old and resides with
him. He
was not present when the collision occurred but was informed by his
aunt (Berselia Khati) on the same date about the accident.
He
remembers this incident although it happened many years ago (2003) in
that he lost his mother and his son sustained bodily injuries
as a
result of this accident.
[6]
He
was informed by his aunt that they were travelling from a funeral of
a family member in a combi and heading back home. On their
way the
driver of the insured vehicle was travelling at a high speed on a
road that had potholes. It appears that the vehicle had
a tyre burst
as a result of having hit one pothole and the driver failed to
control the vehicle which then over turned. According
to him the
accident happened somewhere in Bloemfontein and he did not stay in
Bloemfontein by then. He recalls this incident and
particularly the
date since it was a tragic and a difficult incident to forget.
[7]
Under
cross examination, the Plaintiff stated that he is employed as a
police officer based at Springs Public Order Police Unit
and has been
a police officer for a period of about twelve (12) years. His
employment as a police officer only started after the
accident. He
further stated that the minor child was living with him and his late
mother as a result of him having separated with
the minor child's
biological mother. He states that the minor child was three (3) years
old at the time of the accident.
[8]
Nothing under cross examination was put
to this witness challenging or disputing the fact that the collision
did indeed occur and
further that the minor child was a passenger in
the said insured vehicle. For these reasons, I find that the evidence
of the Plaintiff
regarding the occurrence of the collision and the
presence of the minor child in the insured vehicle as a passenger
stands unchallenged.
[9]
Berseli
Khati's evidence
:
This was the second witness for
the Plaintiff who testified that she was a passenger in the insured
vehicle together with the minor
child and his late grandmother and
were travelling from a funeral of her brother. She at first stated
that the collision took place
in 2013 and shortly thereafter stated
that it was in 2003 on 23 February. She further states that she
remembers this date even
fourteen (14) years later because it was
more like a new thing that had happened to her.
[10] Ms
Khati states that she was travelling with her twin sister (the minor
child's grandmother) and had
lost her in that incident since she died
shortly thereafter.
[11]
Her testimony is further to the effect
that they were travelling on this road with potholes and the insured
driver was travelling
at a high speed. One of the tyres burst as a
result of having hit the potholes and the insured driver failed to
control the vehicle
and it over turned. She further stated that there
were other people in the insured vehicle including her late twin
sister and about
four (4) children including the minor child in this
matter. The witness confirmed that the minor child is the son to the
Plaintiff
and pointed at the Plaintiff who was sitting in court
identifying him as Karel Nkombyane. The collision happened in the
Free State
but she does not_ know the name of the place and was
around the farms. The witness further confirms having spoken to the
Plaintiff
informing him about the accident telephonically on the same
date of the incident.
[12]
Her testimony is further that after the
vehicle over turned, she observed that the other occupants were flown
out of the vehicle
and herself and others got out of the said vehicle
through the window. The police and ambulance were summoned and
attended the
scene and they were taken to the hospital by ambulance.
At this hospital they were transferred to another hospital where they
were
treated for minor injuries and discharged. Her twin sister, the
minor child's late grandmother, was however admitted at the first
hospital which she could not remember the name thereof, since she had
sustained serious bodily injuries. She confirms having seen
the
police and the
ambulance
coming to the scene and that the minor child was also taken to the
hospital in the same ambulance in which she was placed.
[13]
After
they were discharged from the second hospital, she requested to be
taken to the first hospital to see her twin sister and
found that she
had sustained serious bodily injuries. According to her the accident
occurred on a Sunday and her twin sister passed
on the following
Thursday. Subsequent to the burial of the twin sister, she took the
minor child and stayed with him for a period
of about two (2) years.
Currently the minor child is residing with his biological father, the
Plaintiff.
[14]
Under
cross examination, the witness was firm that the collision occurred
and that the minor child was a passenger in the said vehicle.
I may
also state that the cross examination was not directed at attacking
the fact that the collision did occur or that the minor
child was
indeed a passenger in the insured vehicle. General questions were
asked about the injuries and medical procedures that
the minor child
had sustained and had to attend. This witness gave a good impression
on the manner in which the accident occurred
and the presence of the
minor child inside the insured vehicle as a passenger.
[15]
The
Plaintiff then closed his case and the Defendant also closed its case
without calling a witness.
[16]
I
had requested the legal representatives to submit heads of argument
for both parties which they did and I commend them for having
complied and find the heads of argument very helpful.
[17]
In
argument, the Plaintiff states that the principle of uncontested
evidence especially where there is no officers accident report
is
very trite. What the court is being requested to determine is whether
there was a collision as alleged and whether the minor
child was a
passenger in the insured vehicle.
[18]
The
Plaintiff bears the onus of proof on a balance of probabilities and I
therefore have to determine whether on the evidence tendered,
such
onus has been discharged or not.
[19]
I
have already dealt with the summary of the evidence of the Plaintiff
and one witness called by him above. The following have been
noted
with regard to the testimony of these two witnesses both in their
evidence in chief as well as under cross examination.
[20]
The
occurrence of an accident on the date and place mentioned in the
particulars of claim as well as the lodgement documents is
confirmed.
Nothing was put to these witnesses challenging their version in this
regard by the Defendant. Furthermore, nothing was
put to them by the
Defendant suggesting that they are lying and/or not telling the
truth. The cross examination of these witnesses
was in the form of
questions relating to the injuries sustained and possible treatment
by medical practitioners and were irrelevant
for purposes of issues
for determination.
[21]
In
its heads of argument, the Defendant seems to concede (correctly so)
that indeed an accident occurred as alleged by the Plaintiff
and
further that the minor child was a passenger in the insured vehicle.
[22]
I
agree with this concession more so in that I believe that the
evidence led on behalf of the Plaintiff is the truth. As a matter
of
fact this evidence stands unchallenged by the Defendant and remains
the only version.
[23]
The
absence of medical and/or hospital records of the minor child as well
as the police accident report was explained by the witnesses
who
further stated that they live far from the area where the accident
occurred. The Plaintiff himself was not employed as a police
officer
at the time of the accident, which happened about fourteen [14] years
before the date of trial.
[24] Be
that as it may, the evidence led clearly establishes that the
accident happened as alleged by the
Plaintiff and that the minor
child was a passenger in the insured vehicle. This is by agreement
between the parties, an issue for
determination and I am satisfied
that the Plaintiff succeeded in proving this issue. I accordingly
find that the Plaintiff has
succeeded in discharging his onus as
required. The Defendant is liable for 100% of the Plaintiff's proven
or agreed damages.
[25] The
next issue for determination is that of costs.
The Plaintiff argues that the
costs should follow the result and that Plaintiff should be awarded
costs.
[26] The
Defendant submits that a no cost order should be made as the
Plaintiff is responsible for the matter
having had to go on trial by
failing to provide Defendant with sufficient information to enable it
to consider and assess the claim.
[27] Both
parties state that the matter was postponed on 25 January 2016 due to
Defendant having requested
the
locus standi
affidavit on the
date of trial. The matter was removed for settlement, but no offer
was made. It is very clear that the postponement
of the matter on 25
January 2016 was occasioned by the Defendant’s very late
request for the
locus standi
affidavit. I am inclined to grant
an order for costs against the Defendant for the postponement of the
matter on 25 January 2016.
[28]
As
regards the 11
th
May 2017, I am informed by both parties that the matter could not
proceed due to non-availability of judges. I am of the view that
since postponement was not due to fault on the part of ·either
party, it will only be fair to make an order for no costs
in respect
of this date.
[29]
Although
the Plaintiff submits that the costs should follow the results, the
issue of costs still remains a matter of discretion
to be exercised
by the judge.
[30]
I
have been referred to the matter of Thantsa, Basil Mabuela and Road
Accident Fund where Kubushi J in a similar matter awarded
costs in
favour of the Plaintiff.
[31]
It
was argued on behalf of Defendant that Mabuela's judgement is
distinguishable from the current matter in that only the OAR was
not
made available. It was argued further that in the current matter, the
Defendant had only the RAF1 and RAF4 forms,
locus
standi
affidavit from which it was
supposed to assess the claim and consider its defence on merits if
any.
[32]
It
is argued that the lodgement documents constituted very little
information for the Defendant to concede the merits.
[33]
There
seems to be no evidence of any further appropriate steps taken by the
Defendant to obtain further information that would assist
in
considering its position on merits. This is normally canvassed during
pre-trial conferences and/or through request for further
particulars.
[34]
In
any event the issue before me was whether the accident did occur and
whether the minor child was a passenger in the insured vehicle.
[35]
I
am satisfied that the Plaintiff has succeeded in proving its claim on
merits. I am consequently inclined to grant costs in favour
of the
Plaintiff.
[36]
I
accordingly make an order as follows.
ORDER:
1.
The Defendant is liable for 100%
of the Plaintiff's proven or agreed damages.
2.
The Defendant is ordered to pay
the Plaintiff's wasted costs of 25 January 2016.
3.
No cost order is made in respect
of the appearances on 11 May 2017.
4.
The Defendant is ordered to pay
the Plaintiff's costs of 17
th
and 18
th
July 2017.
M
S MANGOLELE
ACTING
JUDGE GAUTENG DIVISION PRETORIA