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[2018] ZAGPPHC 369
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Van Wyk v RAF and Another (39357/2009) [2018] ZAGPPHC 369 (16 February 2018)
REPUBLIC OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
(1)
NOT REPORTABLE
(2)
NOT OF INTEREST TO OTHE JUDGES
(3)
REVISED.
CASE
NO.: 39357/2009
16/2/2018
In
the matter between:
W J
VAN
WYK
Applicant/Plaintiff
versus
ROAD
ACCIDENT
FUND
1
st
Respondent/Defendant
TSHWANE
MUNICIPALITY
2
nd
Respondent/Defendant
JUDGMENT
MPHAHLELE
J
[1]
The plaintiff instituted action against the defendant s for
damages
due to bodily injuries sustained in a motor vehicle accident, which
occurred on 30 November 2007.
[2]
At the time of the accident, the plaintiff was the driver of
the
motor vehicle bearing the registration numbers and letters DHL 926
MP, which motor- vehicle was the property of the plaintiff'
s
husband, namely Johannes Willem Ernst ("Ernst"). The matter
between the plaintiff and the first defendant has since
been settled,
albeit on a limited basis.
[3]
In essence, the plaintiff's case is that the accident was due
to a
lack of proper signage and road markings. The second defendant denies
any negligence on its part and alleges that the negligence
of the
plaintiff was the sole cause of the accident.
[4]
On 26 June 2008, Ernst instituted act ion against the second
defendant , in the Magistrate's Court for the district of Pretoria
under case number 65559/ 2008, in which he claimed recovery
of the
damages allegedly caused to his motor vehicle.
[5]
The second defendant defended the action and at the end of
the trial
judgment was granted in favour of Ernst. The second defendant
appealed the judgment. The appeal was upheld and the judgment
of the
Magistrate's Court was replaced with a judgment of absolution from
the instance against Ernst.
[6]
The second defendant raised a special plea of estoppel. It
is the
second defendant's contention that Ernst's claim against the second
defendant was based on the same alleged negligent omission
relied
upon by the plaintiff in the present action. The second defendant
contended that the plaintiff actively participated in
the litigation
in the Magistrate's Court and gave evidence on behalf of Ernst as the
driver of Ernst's motor vehicle. The plaintiff
therefore had a fair
opportunity to participate in the litigation in the Magistrate's
Court. She was the only witness at the hearing
at the Magistrate's
Court. The case was basically decided upon on the version of the
plaintiff.
[7]
The second defendant further contended that the issue of negligence
of both the plaintiff and the second defendant was litigated and
decided upon. In the course of the judgment it was,
inter alia,
the finding of the court of appeal that the collision in issue
was caused by the sole negligence of the plaintiff. The second
defendant
prays that the plaintiff be estopped from re-litigating the
same issue in the present matter.
[8]
Counsel for the plaintiff submitted that the plaintiff was
not a
willing participant in the Magistrate's Court. Plaintiff was only a
witness. The order of the appeal court is absolution
from the
instance, meaning the door was not closed against the plaintiff's
husband. The court of appeal found that
"the inability of the
plaintiff to see the stop sign did not cause the collision . The sole
cause of the collision was her
failure to take reasonable steps to
establish whether it was safe for her to enter the intersection."
The plaintiff maintained that the finding of the court of appeal
was wrong. Further the appeal against the judgment of the
Magistrate's
Court was not opposed and the plaintiff had no access to
the appeal court as she was not a party to those proceedings.
[9] To
succeed in its special plea that the point in issue is already
res
judicata,
the second defendant must show that:
(a)
That there has already been a prior judgment;
(b)
in which the parties were the same; and
(c)
the same point was in issue.
[10]
If there is any doubt, as to any of the essentials required
to be
proved, the plea will fail. The expression ' issue estoppel' is a
convenient description where a party may succeed despite
the fact
that the classic requirements for
res judicata
have not been
complied with because the same relief is not claimed, or the cause of
action differs, in the two cases in question.
The common law
requirements of same thing and same cause have been relaxed by our
courts in appropriate circumstances. Where the
circumstances justify
the relaxation of these requirements those that remain are that the
parties must be the same and that the
same issue must arise. See
Royal Sechaba Holdings (Pty) Ltd v Coote and Another
2014 (5)
SA 562
(SCA) paras 12 and 13.
[11]
The "same party principle" is not met by the fact
that an
applicant was joined as a nominal respondent in previous proceedings
with no relief being claimed against it
(Mogalakwena Municipality
v Provincial Executive, Limpopo
2016 (4) SA 99
(GP) at 118E-F).
In my view, the ·, same must apply where a party is a witness
and not a party to the proceedings in question
.
[12]
As a general rule a judgment of "absolution from the
instance"
does not constitute a bar to a subsequent action. It is however
possible that a judgment of absolution does finally
determine a
question of fact, in which case it can be pleaded that the particular
issue is
res judicata.
(See
De Wet v Paynter
1921 CPD
576
;
Cohn v Rand Rietfontein Estates Ltd
1939 TPD 319).
I do
not think that the issue of negligence has been finally determined in
the present case to justify a finding that the issue
is
res
Judicata.
[13]
A judgment of a court is presumed to be right, and can be
challenged
only on appeal or review. It is common cause that the magistrate's
judgment in favour of Ernest was set aside on appeal
and replaced
with an order of absolution from the instance, against which there
has been no further appeal. As matters stand the
appeal judgment
stands and is final and binding between the parties to that
litigation.
[14]
It is import ant to recognize that the plaintiff was not a
party to
the litigation in the magistrate's court and the subsequent appeal.
The plaintiff maintains that the decision of the appeal
court is
incorrect, a point which this court cannot pronounce on. The
plaintiff had no right of appeal. This court cannot punish
her for
her failure to the impossible. In the circumstances, to deny her the
right to prosecute her legitimate and
bona fide claim
against
the second defendant would be tantamount to denying her access to
justice. The special plea must fail.
[15]
In the result, the special plea is hereby dismissed with cost.
S S MPHAHLELE
JUDGE OF THE HIGH
COURT,
PRETORIA
FOR THE APPLICANT: D J MARX
INSTRUCTED BY: TC
Stoffberg Attorneys
FOR THE RESPONDENTS:
C van Jaarsveld
INSTRUCTED
BY: Klagsbrun Edelstein, Bosman & de Vries Inc.