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[2017] ZAGPPHC 107
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Ngwenya v Road Accident Fund (4945/2016) [2017] ZAGPPHC 107 (31 March 2017)
HIGH
COURT
OF
SOUTH
AFRICA
(GAUTENG
DIVISION,
PRETORIA)
Not
Reportable
Not
of interest to other Judges
CASE
NO: 4945/2016
In the
matter between:
S'MANGALISO
HENDRY
NGWENYA
Plaintiff
and
ROAD
ACCIDENT
FUND
Defendant
Heard:
30 January 2017
Delivered:
31 March 2017
Coram:
Makgoka
J
Summary:
Road Accident Fund - contributory negligence - plea -
section 1(1) of the Apportionment of Damages Act 34 of 1956 -
defendant
pleading contributory negligence but praying for the
dismissal of the plaintiff s claim instead of reduction of the
plaintiff s
damages - absence of a prayer for apportionment not a bar
to court granting it and reducing the plaintiff s claim.
ORDER
1.
The
issues
of liability
and
quantum
are
separated
in
terms
of rule
33(4)
of
the
Uniform
Rules
of
Court;
2.
The
defendant
is
liable
to
pay
the
plaintiff
80%
of
his
proven
or
agreed damages;
3.
The
determination
of the plaintiff
s
damages
is postponed
sine
die.
4.
The
defendant
is ordered to pay
the
plaintiff
s
costs for
this
separated
portion
of
the trial.
J
U D G M E N T
M
AKGOKA
J
[1]
This
is an
action
for
damages
in terms
of the
Road
Accident
Fund Act,
56
of
1996
,
as amended
(the Act).
The plaintiff
claims
an
amount
of R
l
250
000.00
as a result
of
the
injuries
he
sustained
on
25
October
2014,
allegedly
as
result
of
a
motor
vehicle
collision driven
by
Mr
Selby
Ncube
(the
insured driver).
The
plaintiff, then
33 years
old, alleges that he was
a
pedestrian
when
a motor
vehicle
collided
with
him.
[2]
In
its
plea,
the
defendant
denies
the
plaintiff's
allegation
that
the
injuries
he
sustained
were
a
result
of
a motor
vehicle collision.
In
the
alternative,
and
in
the
event
it
is
found
that
the
collision
occurred
as
alleged,
the
defendant
denies
any negligence on the part of the
insured driver. In the further alternative, the defendant pleads that
the collision occurred as
a result of the joint and/or contributory
negligence of the plaintiff and the insured driver.
[3] Ms
Tshoma
appeared for the plaintiff, while the defendant was
represented by Mr
Legong.
The
parties requested a separation of the issues of liability and
quantum,
to which I agreed, as I considered it convenient that the
issues be determined separately. Accordingly, the trial proceeded
only
on the issue of liability. Only the plaintiff testified, as the
defendant closed its case without calling any witnesses.
[4] The
plaintiff s evidence is briefly this. On 25 October 2014 at
approximately 04H55 in the morning he was in Durban walking
along
Gardener Street towards the Pine Street intersection. He had attended
a party at a nearby place the previous day, where he
had consumed
some alcohol. However, he was not drunk. As he approached the traffic
light-controlled intersection he was talking
on his cellphone. The
traffic light turned green in his favour. A few steps into the
intersection, he completed his conversation
and put the cellphone in
his pocket. There were other people in the vicinity. Someone
who was walking in the opposite direction
removed his cellphone. He
turned to pursue that person, who was within arm's length. He grabbed
that person and wrestled with him.
This occurred in the middle of the
road. As he was wrestling with that individual, a vehicle emerged
from 'a blind spot' - where
he could not see it coming - and collided
with him. He momentarily lost consciousness as a result of the
collision. The scene
of collision was busy as it is situated near a
nightclub.
[5]
During cross-examination the plaintiff was questioned on the contents
of an extra-curial statement made to the police, in particular
paragraph 5 thereof.
It
reads:
"During
[the]
impact
I
was
on
the
post
office
side
of the
robot,
a
little
bit
i
n
the
middle
of
the road.
I
assumed that the driver
of
that motor vehicle was
not from a
far
d
istance.
I
assumed
that he/she started
his/her motor
vehicle
nearby
from
the post office parking or
Havana Tavern
parking'.
[6]
Although Mr
Legong,
counsel for the defendant, initially
argued that there was no evidence that what collided with the
plaintiff was a motor vehicle,
this was not seriously pursued.
It
eventually became common cause during argument that the
plaintiff's injuries were as a result of a motor vehicle collision.
But
in any event, from all the surrounding circumstances, it is clear
that he collided with a motor vehicle. It is difficult to argue
otherwise. The accident occurred in the middle of the road. That
aspect out of the way, the mam issue remains whether there was
any
contributory negligence by the plaintiff.
[7] In
this regard, Mr
Legong
argued that the plaintiff s
evidence as to what really happened between him and the person who
stole his cellphone was unclear and
not satisfactory. Added to that,
so was the argument, it should be borne in mind that the plaintiff
had consumed alcohol a few
hours before, and had created a danger by
wrestling with the suspected thief in the middle of the road. The
plaintiff was not observant
at all, and his focus was on the suspect.
Counsel submitted that the plaintiff could, and should, have avoided
the collision but
failed to do so. This, argued counsel, is supported
by the fact that other road users foresaw the danger and avoided it.
[8] In
considering the matter, I have to keep in mind that it was the
uncontroverted evidence of the plaintiff that the scuffle
between him
and the suspect occurred within a very short space of time, and at
all relevant times the traffic light was green in
his favour. I did
not gain any impression that the plaintiff was deliberately
misleading the court. What I consider credible about
his evidence is
that he freely and fairly admitted that he had consumed alcohol
earlier before the collision - something prejudicial
to himself. He
could easily have lied about it with the knowledge that there was no
countervailing evidence. Although he was at
times long-winded and
often garrulous, I accept the essence and thrust of his evidence.
[9]
Having said that, it is clear from the plaintiff s evidence that
there was some culpability on his part. Although the traffic
light
was green in his favour, he had a responsibility to ensure that he,
in his pursuit of the suspect, did not create a danger
to himself and
others. I therefore conclude that the plaintiff s conduct contributed
to the collision. There remains to be determined
the percentage of
the apportionment. Before I determine that, I have to dispose of the
residual argument by Ms
Tshoma,
counsel for the plaintiff, that this court is not
competent to apportion any contributory negligence because there is
no formal
prayer in the defendant's plea for it. Counsel did not cite
any authority for her proposition. The defendant's plea reads as
follows
in the relevant part:
·1n
the
further
alternative,
and
should the
honourable
court finds that
a
collision
as
a
l
leged
did occur.
[and]
that the driver of
the insured vehicle was
negligent and
that
his
negligence
caused or
contributed
to
the
collision aforesaid,
all
of
which
is
still
denied,
then
and
i
n
that event. the defendant
pleads
that the
plaintiff was
also negligent
and that
the
collision
occurred as
a
result
of
the
joint
and/or
contributory negligence
of
the
plaintiff
and
the
driver of the
i
nsured
vehicle.'
[10] The
defendant's plea ends with a simple prayer for the plaintiff s claim
to be dismissed with costs. There is, therefore, no
specific prayer
in the alternative for the plaintiff s claim to be reduced to the
extent of the plaintiff s contributory negligence,
in accordance with
the plea.
It
is this omission
that Ms
Tshoma
submits bars the court from making any order of
apportionment.
[11]
Section
1
(1)
of the Apportionment of Damages Act 34 of 1956 reads:
"Where
any
person
suffers
damage
which
is
caused
partly
by
his
own
fault
and
partly
by
fault of any
other
person,
a claim
i
n
respect
of that
damage
shall
not
be defeated
by
reason
of
the
fault
of
the
claimant
but
the
damages
recoverable i
n
respect
thereof
shall
be
reduced by
the
Court
to
such
extent
as the
Court
may
deem
just and
equitable
having
regard
to the
degree
i
n
wich
the
claimant was at fault i
n
relation
to
the damage.'
[12] In
Van der
Merwe
v Fourie
1959 (3) SA
568
(E) the court was confronted with a similar situation, and a
similar argument to the one advanced by Ms
Tshoma
on
behalf of the plaintiff.
It
was there held that
the absence of a prayer for the reduction of any damages proved did
not deprive the court of competence to consider
an apportionment of
liability in terms of section
1.
O' Hagan
J
explained at 5728-0:
"Mr.
de Wet
argued further,
however,
that
i
n
the
absence
of
a
prayer
for
a
reduction of
any damages
proved,
it was
not competent
for
the Court to consider an apportionment
of
liability
in
terms
of sec.
1.
I
am
unable
to
accept
this
arg
u
ment.
No
doubt
the alternative pleas
were
excipiable
by
reason
of
the
prayer
for
dismissal
of the
plaintiff
s claim
-
as
was
held in
Shange's
case,
sup.
cit.,
but
the plaintiff did
not
choose to except
thereto.
Instead
of
excepting
he
went
to trial
on
the
issues
raised
by
the
pleas,
and
upon
a determination
of
those
issues the
court
must give judgment
i
n accordance with the imperative
d
irect
ion
of
sec.
I of
the
Act.
There
is
i
n
fact nothing
i
n
the ... Act
or Ru
les
which
obliges
a defendant
to
attach
a
prayer
to
h
is plea …
At
the
trial
stage
of
the
instant
case
the
magistrate (if
he
had
found
·fault'
on
the
part
of the
plaintiff as well
as the
defendant)
would
have
had
to
disregard
the
prayer
for
d
ismissal
of the claim,
and
it
would
have
been
his
duty
to
consider
the
q
uestion
of
apportionment.
As
far
as
this
Court is
concerned,
l have already held that the issue
of
the plaintiffs
fault
has
been
sufficiently
raised
on
the
pleadings;
it
has
been
found
that
the
collision
was
caused
partly
by
the fault of
the
defendant
and
partly
by
the fault of plaintiff,
and
it remains to
deal the quest ion
of
the
reduction
of the damages
proved
by the plaintiff.·
[13]
Van
der
Merwe
is on point and on all fours with the present case. I
respectfully agree with the reasoning adopted there. The court would
be placing
form above substance were the defendant to be deprived of
a statutorily entrenched right to claim a reduction of the
plaintiff
s damages simply because of the absence of a prayer for
apportionment, despite contributory negligence having been expressly
raised
in the plea. I must therefore, on the authority of
Van
der
Merw
e
,
simply ignore the defendant's prayer for the dismissal of
the plaintiff s claim, and proceed to determine the percentage with
which
the plaintiff s damages should be reduced.
[14]
Taking into consideration the evidence on record and all the
objective facts, set out in paras 7-9 above, I conclude that the
plaintiff, in relation to the insured driver, should carry 20% of the
blame for the collision. Therefore, his damages should accordingly
be
reduced to that extent. With regard to costs, the plaintiff has been
substantially successful. He is entitled to the costs of
the this
portion of the separated trial.
[15] In
the result the following order is made:
1.
The issues of liability and quantum
are separated in
terms of rule
33(4) of the Uniform Rules of Court;
2.
The defendant is liable to pay the
plaintiff 80% of his
proven or agreed
damages;
3.
The determination of the plaintiff s damages is postponed
sine
die:
4.
The defendant is ordered to pay the plaintiff s costs for this
separated portion of the trial.
_______________________
TM
Makgoka
Judge
of the High Court
APPEARANCES:
For the
Plaintiff:
I E Tshoma
Instructed by:
Sehoana Motsepe Attorneys,
Johannesburg
Dolamo Attorneys, Pretoria
For the
Defendant:
A L Legong
Instructed by:
Moche Attorneys, Pretoria