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[2017] ZAGPPHC 361
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Mpondo v Road Accident Fund (63732/2015) [2017] ZAGPPHC 361 (25 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
(GAUTENG
DIVISION,
PRETORIA)
REPUBLIC OF SOUTH AFRICA
Date
of hearing: 23 March 2017
Date
of judgment: 25 April 2017
Case
number 63732/2015
In
the matter
between:
THABO
SIMON
MPONDO
Plaintiff
and
ROAD
ACCIDENT
FUND
Defendant
JUDGMENT
BRENNER,
AJ:
1.
In this action for damages for personal injuries,
both merits and quantum are in dispute. Merits were
separated from quantum by agreement.
2.
It is common cause that, on 2 June 2012, at about 20h00, the
plaintiff, Thabo Simon Mpondo ("Mpondo"), (born on
[...]1989),
was involved in a motor vehicle collision on the road
between Petrusburg and Kimberley, involving a BMW motor vehicle
driven at
the time by one Mazibuko, in which Mpondo was a front seat
passenger. It is common cause that Mazibuko died as a result of his
injuries.
3.
Mpondo sustained the following injuries, namely:
lacerations of the skull, a laceration under
the
left eye, dislocation of the left shoulder, and a back injury.
4.
The only witness who testified on the merits was
the plaintiff, Mpondo. At the time of the collision, that
is, 2 June 2012, he was employed in the
South African Defence Force and was stationed in Kimberley.
He
testified that he was a front seat passenger at
the time, and denied the correctness
of the
accident report which stated that he was the
driver of the vehicle. He confirmed that his
work
colleague and friend, Mazibuko, (first name unknown), was
driving Mpondo's white BMW at the time.
The BMW was written
off
after the accident and sold as scrap.
5.
On 1 June 2012, one day before the accident, he and Mazibuko
had driven the BMW from Kimberley to Bloemfontein, to visit Mpondo's
parents, with whom they had stayed overnight. Mpondo drove the
car to Bloemfontein. He testified that he and
Mazibuko
had consumed alcohol on their arrival at Mpondo's parents' home in
Bloemfontein.
6.
Albeit that it was initially suggested by the RAF that
Mpondo was the driver, Counsel for the RAF conceded
in
Court that Mpondo was a passenger and not the
driver. Mpondo testified that he had put on his seat belt when
he
alighted the vehicle in Bloemfontein at between 17h00 and 18h00 on 2
June 2012. He testified that he did not
drink
alcohol on the way back to Kimberley.
7.
Mpondo had known Mazibuko for about two years before
the accident since they had worked
together in the SANDF in Kimberley.
They had driven several times together from Kimberley
to
Bloemfontein, using Mpondo's car. Mpondo would drive one way and
Mazibuko would drive the other way. Mpondo described Mazibuko's
driving as "perfect", and that he always felt safe when
Mazibuko was driving. Mazibuko would never disregard a
robot.
He said that they had never been involved in a motor vehicle accident
together before.
8.
Mpondo said he did not know how the accident happened because
he was asleep at the time. Following the accident, he woke up
in the late afternoon of the following day in the
Pelonomi Hospital in Bloemfontein.
9.
Two statements were allegedly signed by Mpondo: a warning
statement given to the SAPS, executed in Bloemfontein on 6 June 2012,
in an investigation of culpable homicide arising from the death of
Mazibuko, and an affidavit in support of the claim against
the
RAF, signed on 8 January 2015.
10.
The
operative part of the warning statement states, and in this regard
the date and time are mentioned as 2 June 2012 at 20:05:
"I
am the owner of motor vehicle registration number [C...] and on the
said date and time we we(were) from Bloemfontein to
Kimberley and the
driver was the deceased Mazibuko and I was asleep and I had woke up
in Pelonomi Hospital. I don't know what happened
before. Further, I
state that we were drinking Castle lite and I became drunk it is
because I give him (deceased) to drive because
he was better than
me."
11.
In Mpondo's affidavit in support of his claim against the RAF,
he said the following:
"On
the h of June 2012 at approximately 20H00, I
was involved in a motor accident.
The accident took
place between Petersburg and Kimberley, known as the NB.
I was passenger in a 318 Model BMW Sedan
vehicle with registration·
number [C…]. The driver was Mr Mazibuko. I was wearing a
seat belt. The driver Mazibuko
was driving at a very high speed.
While he was driving he was also consuming Heineken Beer.
Approximately 20km after we have passed
Petersburg on our way to
Kimberley, the driver Jost control, resulting in the vehicle leaving
the road. The vehicle then
overturned.
"
12.
In evidence, Mpondo denied having signed the warning statement
and denied that his signature appeared thereon. He could recall
having
been approached by the SAPS a few days after the accident,
while in the Pelonomi hospital in Bloemfontein,
but
his father had told the SAPS that he "was
sleeping". He could not explain how the SAPS came
into possession of his personal details which appeared on the first
page of the statement, such as, his full names
identity
number, cell phone number and address. He confirmed
that these details were correct. Mpondo denied
that Mazibuko was
drinking Castle lite in the car on the road back to Kimberley on 2
June 2012. He could proffer no explanation
for why this appeared
in his statement.
13.
Mpondo denied that he had informed his attorney, who drew his
claim affidavit, that he had told her that Mazibuko was driving at
a very high speed, and that Mazibuko was drinking
Heineken beer. He could proffer no explanation as to why these
statements
appeared in his affidavit,
albeit that he said he had read the affidavit before signing it and
had passed
English as a Matric subject.
14.
After Mpondo's evidence, Counsel for the RAF applied to amend
its plea to introduce the defence of volenti non fit iniuria.
The amendment was granted as prima facie grounds
had been laid by Mpondo's evidence for an argument based on
this
defence.
15.
The
RAF closed its case without calling evidence on the merits.
16.
On the inherent probabilities, Mpondo signed the warning statement
dated 6 June 2012, four days after the accident. He proffered
no
explanation for how the police could have come into possession of
either his personal details or of the details contained in
the
contents of the statement. At this particular time, the details of
the accident would have been fresher in his memory than
two and one
half years later when his claim affidavit was signed.
17.
Considering this fact, without disabusing my mind of the contents of
the claim affidavit and Mpondo's vive voce evidence, I
am
constrained to attach more probative value to what
is contained in the warning
statement than to
what is stated in the claim affidavit, since the former would have
been more reliable. In this statement
he mentioned that both
he and Mazibuko has been consuming alcohol. He also stated that he
had fallen asleep before the accident
and did not know what had
happened. He mentioned further facts which were consistent
with his vive voce
evidence, namely that he was a
passenger in the car driving from Bloemfontein to Kimberley, that he
was asleep before the collision,
and that Mazibuko
was a better driver than he was.
18.
In the claim affidavit dated 8 January 2015, Mpondo also mentioned
the consumption of alcohol, albeit of a different kind and
albeit
only by Mazibuko. Nevertheless, taking into account the timing
of the warning statement, this affidavit is corroboration
for the
fact that, on the probabilities, they were both consuming
alcohol. It was disingenuous and expedient of Mpondo to
disavow in
testimony that he had furnished information to his attorney in
January 2015 that Mazibuko had been drinking
alcohol and
had been driving at a "very high speed." No plausible
explanation was given for this, and, in the light of
what is stated
in his warning statement, and the material consistencies between the
statement and the affidavit, it falls
to be rejected as false.
19.When
Mpondo mentioned in the claim affidavit that the BMW overturned, this
was probably information which had been gleaned by
him post the
accident. He would probably not have known of this fact if he was
asleep before the accident, and only woke up again
in hospital the
next day.
20.There
was no evidence on the part of the RAF to suggest that the BMW
had not overturned after Mazibuko had lost control
of it. Mpondo was
not challenged under cross-examination about his evidence that the
BMW was involved in an accident and that it
was a write off
afterwards. Nor was there evidence to
controvert Mpondo's
assertions that
Mazibuko was consuming alcohol while driving and was
driving at a high speed. Nor was there
evidence to controvert
Mpondo's assertion in evidence before Court that he was wearing a
seatbelt while a passenger in the
vehicle.
21.
As was stated by the Honourable Ms Justice
Tolmay in the unreported case of
MD
Janse van Vyuren NO v the RAF case As2s
1201s
Gauteng
Division Pretoria, March 2017,
at paragraph 10;
"A
vehicle which is driven properly and without negligence does not
normally overturn whilst travelling along a roadway. The
principle
of res ipsa loquitur has application. The evidence points to an
inference of negligence on the part
of the first insured
driver."
22.
And at paragraph 11:
"Once
a plaintiff proves an occurrence g1vmg rise to an inference of
negligence on the part of a defendant, the defendant must
produce
some evidence to explain how the accident happened."
23.
I am satisfied, on the proven facts, that Mazibuko lost control of
the BMW and the vehicle overturned, causing bodily injuries
to both
him and Mpondo.
24.
For the volenti defence to be sustained, the RAF must discharge the
onus of proving that Mpondo consented to the risk
of injury by
permitting Mazibuko to consume alcohol while driving and to drive at
a very high speed.
25.
This ground of justification is applied with caution and
circumspection. It requires the following: the consent must have been
given freely and voluntarily, the person giving the consent must be
capable of volition and the consenting party must have full
knowledge
of the. extent of the prejudice.
26.
In the seminal case of
Santam Insurance Co
Ltd v Vorster
1973 (4)
SA 764
(A),
at
the first two paragraphs of the headnote,
the nature of the defence
of volenti
non fit iniuria is described:
"While
the defence of volenti non fit iniuria and that of contributory
negligence no doubt sometimes overlap, there is no adequate
reason
for depriving a defendant, in risk cases such as an action for
damages brought by a passenger for bodily injuries
alleged to
have been caused by negligent driving, of the complete defence of
volenti non fit iniuria, if it be shown that the facts
sufficiently
establish the requisites of the defence, and provided
further that the volenti defence is always
applied
with caution and circumspection.
In
an action for damages for bodily injury caused by negligent driving,
in which the defendant raises the defence of volenti non
fit iniuria,
if it be shown that, in addition to knowledge and appreciation of the
danger, the claimant foresaw the risk of injury
to himself, that will
ordinarily suffice to establish the "consent" required to
render him volens
-
provided always that the
particular risk which culminated in his injuries falls
within the ambit
of the thus foreseen
risk.
"
27.
Applying the proven facts to the established principles, the insured
driver, Mazibuko, was negligent in that Mazibuko was consuming
alcohol while driving and he was driving at a very high speed. On the
probabilities, these factors contributed to the loss of control
of
the vehicle. What matters most, in the final analysis, is that
Mazibuko was negligent in losing control of the BMW and causing
it to
overturn. He lost his life in the process and the accident caused
bodily injuries to Mpondo.
28.
On the premise that Mpondo was probably drinking alcohol while in the
passenger seat, and said he was drunk in his warning statement,
and
this would have affected his faculties, the RAF has not discharged
the onus of proving that Mpondo was capable of volition
in consenting
to the risk of a potential accident and of having full
knowledge of the extent of the risk.
29.However,
the contributions to his fate made by Mpondo took
the form of his permitting Mazibuko to drive
his (Mpondo's) vehicle
while consuming alcohol and while driving at a very high speed. The
fact that Mpondo may have been intoxicated
does not negate his
contributory negligence. Contrasted with this are his prior
experiences with Mazibuko as a safe driver,
with
no previous accidents in their prior
travels while Mazibuko drove, coupled
with Mpondo's
evidence that he wore a seatbelt when he alighted the passenger seat
of the vehicle in Bloemfontein.
30.I
accordingly find that Mpondo was contributorily negligent in an
apportioned percentage of 30%, and that the RAF is liable for
70% of
any damages which Mpondo may prove.
31.
Regarding costs, Mpondo was untruthful and expedient in denying that
he signed the warning statement, and in disavowing certain
allegations made in the complaint affidavit. It is appropriate for
the Court to mark its disapproval of his conduct by abating
his claim
to costs on the merits, based on an equal apportionment.
32.The
following order is granted:
a.
The defendant is liable for the payment of 70% of the plaintiff's
proven or agreed damages arising from the
accident which occurred on
2 June 2012;
defendant
is liable for payment of 50% of the plaintiff's costs.
_____________________
T
BRENNER
ACTING
J OGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
20
April 2017
Appearances
Counsel for the
Plaintiff:
Advocate
CJS Kok
Instructed
by:
Van Zyl le Roux Attorneys
Counsel for the
Defendant:
Advocate JG van den Berg
Instructed
by:
Lekhu Pilson Attorneys