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[2017] ZAFSHC 151
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Mrawuzeli v Road Accident Fund (509/2017) [2017] ZAFSHC 151 (21 September 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,
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
YES
Of
Interest to other Judges: YES
Circulate
to Magistrates: NO
Case
number: 509/2017
In
the matter between:
N.M.
MRAWUZELI
Plaintiff
and
ROAD
ACCIDENT FUND
Defendant
HEARD
ON:
13
SEPTEMBER 2017
JUDGMENT
BY:
CHESIWE, AJ
DELIVERED
ON:
21 SEPTEMBER 2017
[1]
The
plaintiff has instituted action against the defendant for damages
arising from injuries she sustained in a motor vehicle accident
which
occurred on 1 January 2016, at approximately 21:00 on a Friday.
[2]
The driver of the insured vehicle with registration number [B...] was
a Mr Sekwena.
[3]
The plaintiff was a pedestrian at the time of the collision when the
insured driver collided with the plaintiff.
[4]
At the commencement of the trial, and by agreement between the
parties it was agreed that the merits and quantum were to be
separated. Therefore the only issue to be determined is that of
liability.
[5]
The evidence was brief and straightforward. The plaintiff was the
only witness at the trial and the defendant closed its case
without
leading any evidence.
[6]
The plaintiff, a 37 year old female working at a crèche,
testified that on the 1 January 2016 , which was on a Friday
at about
21:00, she was about to cross the road in Seiso Street. She looked
right and left and then again looked right and left
again before
attempting to cross the road. She had two plastic bags which she was
carrying and had put these bags down to rest.
As she was about to
pick up these plastic bags in order to cross the road, she heard
people screaming, she could not move as she
was suddenly hit by the
car. She remembers that when she regained consciousness at the
hospital it was on a Sunday.
[7]
She further testified that she could not have ran away or avoided the
accident as she was still standing on the pavement when
the vehicle
hit her. She was admitted at Pelonomi Hospital for a week.
[8]
After her discharge, she went to the SAPS at Mangaung and there she
was informed that there were no records of her accident.
She then
went to Park Road SAPS, where she was escorted back to Mangaung SAPS
and her records of the accident were found.
[9]
She said she was told by a police officer at Mangaung Police Station,
a Mr Molawa, as to what happened on
the day of the
accident and that the insured driver was under the influence of
alcohol. However, Mr Molawa did not come back to
her in order to
finalise the information he gave her about the insured driver.
[10]
The defendant did not cross-examine the plaintiff. The plaintiff
closed its case.
[11]
The defendant did not call witnesses and closed its case.
[12]
The plaintiff’s version was not tested. The closing arguments
from of the plaintiff were basically that: the plaintiff
was a
pedestrian and sustained injuries and the insured driver was under
the influence of alcohol. The plaintiff submitted that
the plaintiff
be awarded 100% for the proven damages.
[13]
The defendant did not make any closing arguments.
[14]
It is trite law that the onus is on the plaintiff to prove on the
balance of probabilities that the injuries were caused as
a result of
the negligent driving of the insured motor vehicle.
[1]
[15]
The plaintiff has to show and prove that there was contact between
the insured driver’s motor vehicle and herself. Indeed
section
17(1)(b) of the
Road
Accident Fund Act 56 of 1996
(Act)
provides
that:
“
17(1)
The Fund or an agent shall-
(
a
)
subject to this Act, in the case
of a claim for compensation under this section arising from
the
driving of a motor vehicle where the identity of the owner or the
driver thereof has been established;
(
b
)
…
be
obliged to compensate any person (the third party) for any loss or
damage which the third party has suffered as a result of any
bodily
injury to himself or herself…caused by or arising from the
driving of a motor vehicle by any person at any place
within the
Republic, if the injury or death is due to the negligence or other
wrongful act of the driver or of the owner of the
motor vehicle or of
his or her employee in the performance of the employee’s duties
as employee...”
[16]
Thus the defendant is responsible to deal with all claims resulting
from injuries sustained as a result of the negligent and
unlawful
driving of a motor vehicle. In this instance it was alleged that the
insured driver was drunk, however, no evidence was
lead to that
effect.
[17]
In
Engelbrecht
v Road Accident Fund and Another
[2]
Kondile, AJ stated that:
“
The
applicant's current claim has been created by a statute, namely, the
Road Accident Fund Act. The
Act can be employed by anyone who is
injured in consequence of the negligent driving of a vehicle in a
hit-and-run situation to
claim compensation for any loss sustained.
The Act is the latest statute in a long line of national legislation
beginning
with the Motor Vehicle Insurance Act 29 of 1942. The stated
primary concern of the Legislature in enacting these statutes is, and
has always been, 'to give the greatest possible protection . . . to
persons who have suffered loss through a negligent or unlawful
act on
the part of the driver or owner of a motor vehicle”
[3]
[18]
In the present matter, the credible evidence of the plaintiff was
uncontested. The plaintiff gave a detailed description of
the
incident. She explained to the court in detail and showed on the
photos marked 1, 2 and 3 where she was standing and in which
direction the vehicle came from when it hit her on the pavement. The
evidence was further corroborated by the police accident report
which
stated that:
“
Vehicle
A was travelling straight on Seiso Road when it hit the pedestrian
that was walking on the side of the road”.
[19]
The plaintiff was the only witness in the trial. It was not suggested
or put to her by the defendant that the accident as described
by her
did not occur. Neither was it put to her that the insured driver was
not negligent. The plaintiff was a pedestrian after
careful scrutiny
of the plaintiff’s evidence I could find no well-founded
suggestion that the plaintiff was negligent or
engaged in a
fraudulent claim.
[20]
In determining the causal nexus between the negligent driving of the
insured driver and the injuries sustained by the plaintiff
these
being:
Fractured
pelvis, lacerations on left side of face, loss of 2 front lower
teeth, chipped 2 front teeth
.
[21]
In
Miller
v Road Accident Fund
[4]
Van
Oosten J,
formulated
the inquiry
determining
the
causal
nexus
between the negligent driving of the driver of the insured vehicle
and the injuries sustained by the plaintiff
as
follows:
“
Two
distinct enquiries arise, which were formulated by Corbett CJ in
International
Shipping Co (Pty) Ltd v Bentley
1990 (1) SA 680 (A) at 700E–I as follows:
“
The
first is a factual one and relates to the question as to whether
defendant’s causation’. The enquiry as to factual
causation is generally conducted by applying the so-called ‘but-for’
test, which is designed to determine whether a
postulated cause can
be identified as a causa sine qua non of the loss in question…The
second enquiry then arises viz whether
the wrongful act is linked
sufficiently closely or directly to the loss for legal liability to
ensue or whether, as it is said,
the loss is too remote. This is
basically a juridical problem in the solution of which considerations
of policy may play a part.
This is sometimes called ‘legal
causation.
[5]
[22]
I therefore conclude that the plaintiff ought to succeed to recover
her full proven damages against the defendant.
ORDER
[21]
In the result I make the following order:
1.
The
defendant shall be 100% liable for the plaintiffs proven or agreed
damages, consequent upon the injuries sustained during the
accident
on 1 January 2016.
2.
The
defendant shall pay the costs of the trial on merits.
3.
The
defendant pays the costs of the translator.
4.
The
determination of the plaintiff’s quantum on damages is
postponed to the pre-trial date of 26 January 2018.
5.
The
draft order marked “X” as amended and initialled by me is
made an order of court.
_____________
CHESIWE,
AJ
On
behalf of plaintiff:
Du Plooy Attorneys
Instructed
by:
VZLR Incorporated
Pretoria
On
behalf of defendant: Maduba
Attorneys
Instructed
by:
Maduba Attorneys
Bloemfontein
[1]
Laas
v Road Accident Fund
2012 (1) SA 610 (GNP)
[2]
Engelbrecht v Road Accident Fund and Another
2007 (6) SA 96
(CC)
[3]
Ibid para [23]. See also
Aetna Insurance Co v Minister of
Justice
1960 (3) SA 273
(A)
at 285E – F and
Mbele v Road Accident Fund
2017 (2) SA 34 (SCA)
[4]
Miller v RAF
[1999] 4 All SA 560
(W)
[5]
Ibid at 565