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[2017] ZAGPPHC 352
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M v Road Accident Fund (47692/14) [2017] ZAGPPHC 352 (5 April 2017)
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
NORTH GAUTENG
DIVISION; PRETORIA
CASE NUMBER: 47692/14
DATE: 5/4/2017
IN
THE MATIER BETWEEN
M. E.
M.
PLAINTIFF
AND
ROAD
ACCIDENT
FUND
DE
FENDANT
Date
of Hearing: 04
th
April 2017 Date
Judgment:
05
th
April 2017
JUDGMENT
INTRODUCTION
[1]
The plaintiff, a widow, sues the Road Accident Fund ("
the
defendant")
for the loss of support suffered by her and her
two minor children as a result of the death of her husband A.
J. M.
("the deceased")
who died as a result of
injuries he sustained in a motor
vehicle collision on 25th February
2012 at or along R 568 Road,
Nkangala District, Gauteng Province
[2].
The Plaintiff alleges that the accident was caused solely by the
negligence or negligent driving of another motor vehicle by
an
unknown insured driver, these allegations were denied by
the Defendant.
[3]
In the particulars of claim at paragraphs 4 to 6 the plaintiff
alleged as follows:
"4. On or about
the 25
th
February 2012 at about 19h00 along R568 Road,
Nkangala district, Gauteng Province an accident occurred between a
motor vehicle
bearing registration letters and numbers [X...]
(hereinafter called "Audi") driven by MANDLA MSIZA
(hereinafter called
insured driver") and a motor vehicle bearing
registration numbers [C...] (hereinafter called "Corolla) driven
by A. J.
M..
"5. A. J. M.
(hereinafter called "the deceased") who was a driver of the
Corolla was injured when the aforesaid motor
vehicles was involved in
an accident and died as a result of his injuries. Copies of the death
certificate and the post-mortem
report is annexed hereto marked "A"
"6. The aforesaid
collision was caused by the negligence of the insured driver who was
negligent in one or more of the following
respects:-
6.1
He failed to keep proper lookout;
6.2
He drove Audi at an
excessively high speed m the
circumstances.
6.3
He overtook at barrier line.
6.4
He failed to keep Audi under proper and adequate control.
6.5
He failed to apply brakes timeously, or at all.
6.6
He drove without due regard to other road users, m particular
the Deceased.
6.8
He failed to avoid a collision when by the exercise of due and
reasonable care he could and should have done so.
[4]
The contents of paragraph 4 of the particulars of claim were
also denied by the Defendant in its plea.
4. AD PARAGRAPHS 4
& 5
THEREOF
The Defendant
denies each and
every
allegation contained herein as
if
specifically traversed and puts Plaintiff to the proof thereof
THE
ISSUES FOR DETERMINATION
[5]
The parties agreed at the pre-trial conference that the matter
should be heard on the issue of negligence only. On application at
the start of the trial, an application to separate the issue of
merits and quantum and also to separate the issue of negligence
from
liability was made and I granted leave as such.
EVIDENCE
OF THE PLAINTIFF
[6]
The Plaintiff Mrs. E. M. M., was the only witness called on
behalf of the Plaintiff herself and in representative of the minor
children.
[7]
Her evidence is that she and her two children were the
passengers in the motor vehicle driven by the "deceased"
her husband
A. J. M. on the road from Zithobeni to Nkangala.
[8]
As they were driving a motor vehicle approaching from the
opposite direction left its correct lane of travel and collided with
their
motor vehicle.
[9]
She states that the sole cause of the accident was the driver
of the oncoming vehicle or the motor vehicle that came from the
opposite
side as it left its correct lane of travel and further
that the there was nothing the deceased could have done
to avoid the accident.
[10]
In her evidence in chief, she was not led about the
description of the motor vehicle or the identity of the motor vehicle
driver
or the registration letters and numbers of the motor vehicle
that their motor vehicle collided with.
[11]
Under cross - examination she stated that she does not know
the motor vehicle motor vehicle which she collided with neither does
she know the identity of the driver of the said motor vehicle. The
Court asked her if she knew the colour or description or type
of the
motor vehicle they collided with she stated that she does not know.
[12]
Counsel for the Defendant referred her to paragraph 4 of her
particulars of claim and also to paragraphs 6.2 and 6.4 and in
particular
with reference to the motor vehicle “Audi”
that it was her averment that it was the motor vehicle that their
motor
vehicle collided with but she was adamant that she does not
know the motor vehicle that their motor vehicle collided with and she
could not say if it was an “Audi”.
[13]
The Plaintiff was not re-examined and there-after Counsel for
Plaintiff closed the case for the Plaintiff.
APPLICATION
FOR ABSOLUTION FROM INSTANCE
[14]
Immediately after the close of the Plaintiff's case, the
Defendant brought an application for absolution from instance.
[15]
The basis for the application for absolution from instance was
that the evidence already presented by the Plaintiff does not create
a causal nexus between the negligence or accident and the identified
motor vehicle or its driver alleged to be the sole cause of
accident
in Paragraph 4 and 6 of the particulars of claim as a result causal
negligence on the part of the insured driver had not
been
established.
[16]
Persons who intend instituting claims for compensation against
the Road Accident Fund under the RAF Act 56 of 1996 must inform the
Fund of the exact nature of the claim they intend to advance. In
particular, claimants must inform the Fund of whether or not the
identity of the owner or driver of the insured vehicle is known or
not by correctly categorising the claim as either one submitted
under
s 17(1)(a) (identity of owner/ driver established) or under s
17(1)(b) (identity of owner/ driver not established). This
requirement is a non-negotiable and essential component of a valid
claim, and the provision of incorrect information in this regard
would be fatal to the claim. It follows that an unambiguous
identification of a claim as one that arose as a result of the
driving
of an identified vehicle cannot be substituted by giving a
contradictory evidence stating that it arose from the driving of an
unidentified vehicle. Similarly, the Plaintiff has duty to prove
material facts contained in his/her particulars of claim which
would
be necessary for the Plaintiff to prove, if traversed, in order to
support his right to judgment of the court.
[17]
I first have to, have regard to the law in regards to factors
to be considered by the Court when granting or not granting
absolution.
The test is clear: the Plaintiff must make out a prima
fade case in the sense that there is evidence relating to all the
elements
of a claim on the strength of which the court can find in
favour of the plaintiff.
[18]
Harms JA conveniently set out the definitive approach to an
absolution application in
Gordon
Loyd
Page
&
Associates
v
Riviera
and Another
2001 (1) SA 88
(SCA) as follows:
"The
test for absolution to be applied by a trial court at the end of a
Plaintiffs case was formulated in Claude Neon Lights
(SA) Ltd v
Daniel
1976
(4)
SA
403
(A) at
409G
-
in these terms:
'(W)
hen
absolution from
the
instance
is
sought
at
the
close of
Plaintiffs
case,
the
test
to
be
applied
is
not
whether the evidence led by Plaintiff
establishes what would finally be required
to
be
established,
but
whether
there
is
evidence
upon
which a Court, applying its mind reasonably to such evidence,
could
or
might
(not
should,
nor
ought
to)
find
for the
Plaintiff.
(Gascoyne
v
Paul
and
Hunter
1917
TPD
170
at
173;
Ruta
Flour
Mills
(Pty)
Ltd
v
Adelson
(2)
1958
(4)SA
307
(T).)'
[19]
The courts have pronounced that it implies
that a Plaintiff has to make out a
prima Jacie
case
- in the sense that there is evidence relating to all the
elements of the claim -
to
survive absolution because without such evidence
no court could find for
the Plaintiff.
See:
Marine
&
Trade
Insurance
Co
Ltd
v
Van
der
Schyff
1972
(1)
SA 26
(A) at 37G - 38A
De Klerk v ABSA Bank
LTD and Others
2003 (4) SA
315
(SCA).
CAUSAL
NEXUS
[20]
For a delictual liability to arise there must be a causal
nexus between the defendant's negligent conduct and the plaintiff's
damages.
In order to succeed in its claim for damages, the plaintiff
must establish both the factual causation and legal causation. The
question in relation to the former is whether the defendant's
negligent act or omission caused or materially contributed to the
harm giving rise to the claim. If it did, the second question is
whether the negligent act or omission is linked to the harm
sufficiently
closely or directly for legal liability to ensue, or
whether the harm is too remote.
See:
Gibson
v
Berkowitz and Another
1996
(4)
SA
1029
(W) at 1039 F-G)
Minister of Police v
Skosana
1977 (1) SA 31
(A) at 34 E - F;
International Shipping
Co
(Pty) Ltd v Bentley
1990 (1) SA 680
(A)
at 700 E.
[21]
The principle is encapsulated very well in the authority of
Grovev Road Accident Fund (74/10) (2011) ZASC 55 by TSHIQI JA when he
said:
The
RAF
is
obliged
to
compensate
for
damages
arising
from
bodily
injury 'caused
by
or
arising
from'
the driving
of
a
motor
vehicle.
The
causal
link that
is
required is
essentially the same
as
the
causal link that
is
required for Aquilian
liability.
There
can
be
no
question
of
liability
if
it
is
not proved that
the
wrongdoer caused the
damage
of
the person
suffering the
harm.
Whether an
act
can
be
identified as
a
cause,
depends on
a
conclusion drawn from
available facts and relevant probabilities. The important question is
how
one should determine a
causal nexus,
namely whether one fact follows from another.
[22]
The Counsel for the Plaintiff, in his argument kept on
referring to the Accident report and a police statement (both
documents alleged
have the particulars of the motor vehicle that was
involved in an accident with the one driven by the deceased) which
the Plaintiff
has not tendered as evidence or exhibit in her
examination in chief and further argues that at the end of the trial,
he was going
to bring an application to have the accident report and
the statement made by the police officer who attended the scene to be
admitted
as evidence but he does not give a plausible reason why such
application was not made or why the police officer who attended the
scene or who prepared the accident report ( of which one of them was
in court as informed by Counsel for Plaintiff) was not called
by the
Plaintiff to proof the identity of the other motor vehicle and its
driver. Counsel for Plaintiff only states that it was
an oversight.
[23]
Due diligence and/ or proper preparation would have demanded that an
evidence be given to prove the description of the motor
vehicle
involved and its ownership, more so, the allegation of the
description of the insured motor vehicle and driver and also
the
grounds of negligence as contained in paragraphs 4 and 6 of the
particulars of claim were denied in the Defendant's plea. Plaintiff's
counsel was unable to provide any reason as to why this was not done
or even considered.
[24]
I am convinced that the Plaintiff has failed to establish a causal
nexus between the negligence and the driver of the motor
vehicle as
alleged in Paragraph 4 and 6 of the particulars of claim, and
consequently the evidence led by Plaintiff does not establish
what
would finally be required to be established, upon which a Court,
applying its mind reasonably to such evidence, could or might
find in
favour for the Plaintiff.
[25]
Accordingly an application for absolution from instance must succeed.
I
therefore make the following order
1.
Application for absolution is granted; and
2.
The Plaintiff is order to pay the Defendant's costs
_____________________________
EPHRIAM
SEIMA AJ
ACTING
JUDGE OF THE HIGH COURT OF SOUTH
AFRICA
NORTH GAUTENG HIGH COURT
FOR THE PLAINTIFF: MR
MATSEMELA
INSTRUCTING ATTORNEY:
MPHELA ATTORNEYS
FOR THE DEFENDANT: MR.
STRYDOM
INSTRUCTING
ATTORNEYS: FOURIE FISMER ATTORNEYS