About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2016
>>
[2016] ZAGPPHC 355
|
|
Shabangu v Road Accident Fund (67971/2011) [2016] ZAGPPHC 355 (24 May 2016)
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 NORTH GAUTENG HIGH COURT, PRETORIA
(REPUBLIC
OF SOUTH AFRICA)
24/5/2016
Not
reportable
Not
of interest to other judges
Revised.
Case
number: 67971/2011
IN
THE MATTER BETWEEN:
Tiny
Malapane Shabangu obo T
S Plaintiff
And
Road
Accident
Fund
Respondent
JUDGMENT
MOSEAMO
AJ
[1]
This is an action for loss of support brought by the plaintiff on
be'1alf of a minor child following a collision that took place
on the
23 August 2010. The minor child's mother, Khethiwe Charmaine
Shabangu, died as a result of the accident.
[2]
At the commencement of the trial the parties applied for the
separation of merits and quantum in the matter. I granted the order
and postponed the issue of quantum sine die. The matter proceeded on
merits only. The issue before me is whether the insured drivers
were
negligent.
[3]
The only witness who testified was Maria Mathie, who testified for
the plaintiff. Her testimony was as follows: She was travelling
from
Sandton to Hammanskraal along the R101 road. As she was approaching
Petronella she saw two citi golf vehicles that were travelling
at a
high speed. She was travelling behind a bus and behind her was a
combi. There was a cuNe, a long barrier line and trees on
the side of
the road. The vehicles overtook the combi, her vehicle and the bus
travelling at a high speed. She saw a cloud of dust
a few metres
ahead of her.
[4]
She could not see far ahead because of the curve and the trees. She
then saw a citi golf (deceased's vehicle) travelling on
the gravel on
the side of the road towards them. She reduced the speed and got off
the road to avoid a collision. The deceased's
vehicle went back
to the road towards them and collided with the bus, the combi also
collided into the bus. She alighted
from her vehicle, other people
were alighting from the bus and the combi also. She went to the
deceased's vehicle and found her
trapped as the whole front part of
her vehicle was damaged. She called for help and waited for help to
arrive. The deceased was
conscious and she spoke to her assuring her
that help was coming.
[5]
During cross-examination she denied that the deceased's vehicle could
have been one of the vehicles that overtook her as during
her
conversation with the deceased, she said that she was travelling from
Hammanskraal. Ms Mathie indicated that skidmarks on the
road also
confirmed that the deceased was travelling from north to south. She
said that the deceased must have been travelling
at 60 km per hour.
[6]
After closure of the plaintiff's case, defendant closed its case
without leading any evidence.
[7]
It is alleged that the collision occurred as a result of the
negligence of the insured drivers - who were negligent in one or
more
of the following respects,
"7.1 They drove the
insured vehicles at an excessive speed or alternatively at an
excessive speed in the circumstances;
7.2 They drove the
insured vehicles without due and proper regard to other road users in
particular the Deceased;
7.3 They failed to keep a
proper look out;
7.4 They failed to avoid
the collision when by exercise of reasonable care/ or
diligence they could or should have done
so.
7.5 They failed to keep
the insured vehicles under proper control;
7.6 They failed to react
timeously and/or adequately as reasonable persons in the
circumstances would have done so;
7.7 They failed to
familiarise themselves with the area of the accident before driving
into the area thus causing the accident;
7.8 They failed to obey
the road signs and/or road markings and thus causing the accident.
[8]
The defendant denied negligence on the part of the insured drivers
and put plaintiff to the proof thereof. In the alternative
the
defendant pleaded that the collision was caused by the sole
negligence of the deceased who was negligent in one or more of
the
following respects:
"4.21 She failed to
keep a proper look out;
4.22She failed to keep
the insured vehicle under proper control;
4.23She failed to apply
brakes timeously, effectively or at all; alternatively,
she drove her vehicle while
the braking system thereof was defective;
4.24 She drove her
vehicle at an excessive speed in the circumstances;
4.25 She failed to have
due regard to the presence and rights of other road users, more in
particular that of the insured driver;
and/or
4.26 She failed to avoid
the collision when by the exercise of reasonable care and skill she
could have done so. Ms Mathie denied
the two when it was put to her
as being probable."
[9]
I am required to decide whether the insured drivers were negligent.
The plaintiff needs to prove only 1% negligence on the part
of the
insured drivers to succeed.
[10]
It is common cause that (a) the collision occurred at a curve where
there is a long barrier line; (b) it was not possible to
see oncoming
traffic as the view was obstructed by the trees and the fact that
they were driving on a curve; (c) the insured drivers
overtook the
combi, Ms Mathie's vehicle and the bus on that barrier line.
[11]
It is clear from Ms Mathie's evidence that because of the obstructed
view, she did not see what happened when the deceased's
vehicle
veered off the road. There is no direct evidence in this regard. The
evidence regarding how the deceased's vehicle
ended up
on the gravel on the side of the road is. circumstantial and
therefore inferences have to be drawn from the
evidence.
[12]
The inference sought to be drawn must be consistent with all the
proven facts, but need not be the only reasonable inference,
it is
sufficient if she can convince the court that the inference she
advocates is the most readily apparent and acceptable inference
from
a number of possible inferences. See AA Onderlinge Bpk v De Beer 1982
(2) 603 (A)
[13]
It was submitted on behalf of the defendant that from the evidence of
Ms Mathie it is not clear whether the deceased's vehicle
is one of
the vehicles that overtook over the barrier line. It was further
submitted that if it was indeed from north to south
then the deceased
could have been driving at a high speed considering the skidmarks on
the road. Counsel for the defendant contended
that there is no
evidence showing negligence on the part of the insured drivers.
[14]
The plaintiff submitted that the insured drivers were negligent in
that they overtook while their view was obstructed by the
trees and
the fact that they were driving at a curve.
[15]
In coming to a decision I must consider the evidence as a whole,
taking into account the probabilities, the reliability
and
opportunity for observation of the respective witnesses, the absence
of interest and bias, the intrinsic merits or demerits
of the
testimony itself and inconsistencies or contradictions, corroboration
and all other relevant factors.
[16]
Ms Mathie testified in a cogent and satisfactory manner. She made
concessions where necessary. I found her to be a reliable
witness. It
is clear from her evidence that the insured drivers overtook 3
vehicles which includes a bus and a combi when their
view was
obstructed. She immediately afterwards saw a cloud of dust ahead. She
then saw the deceased vehicle which appeared to
have lost control,
coming from the gravel travelling towards them.
[17]
She concluded that the deceased must have lost control while trying
to avoid colliding head-on with the insured drivers. It
was put to
her that the deceased could have been one of the drivers that
overtook her, she denied it and said that the deceased
told her she
was from Hammanskraal. She further stated that it was clear from the
skid marks on the road that she the deceased
was coming from north to
south. l accept the evidence of Ms Mathie in this regard.
[18]
The question is whether the proven facts support the inference sought
to be drawn. The defendant submitted that the deceased's
vehicle
might have been one of the vehicles that overtook the three vehicles
alternatively if indeed the deceased was travelling
from north to
south she might have been travelling at a high speed. Ms Mathie
denied the two scenarios were probable. It is not
clear on which
facts the defendant bases its inferences as there was no evidence to
gainsay Ms Mathie's evidence. In the absence
of positive facts from
which the inference can bn drawn, the method of inference fails and
what is left is mere conjecture and
speculation. See De Wet v
President Versekeringsmaatskappy Bpk
1978 (3) SA 495
(C) 500.
[19]
In my view the version put forth by the plaintiff seems most readily
apparent and acceptable inference from a number of possible
inferences. From the evidence it is reasonably probable that the
deceased was travelling from north to south, she veered
off
the
road while trying to avoid colliding with the insured drivers that
had come onto her lane of travel. This is supported by Ms
Mathie's
evidence that the deceased confirmed to her that she was from
Hammanskraal. It is further supported by the evidence that
there were
skidmarks from which Ms Mathie confirmed that the deceased was
travelling from north to south.
[20]
It was also not in dispute that the insured drivers were travelling .
1t a high speed, they overtook three vehicles while their
view was
obtructed. In my view the plaintiff has proved that the insured
drivers were negligent.
[21]
With regards to costs counsel for the plaintiff prayed for costs
including her costs, costs of Ms Mathie, costs of the curator
ad
litem. I am of the view that the costs ought to be granted.
In
the result I make the following order:
1. The insured drivers
were negligent.
2. The defendant
is liable to pay 100% of the plaintiff's proven or agreed
damages.
3. The defendant is
ordered
to
pay plaintiff 's costs, including:
3.1.
Costs of Ms Mathie
3.2.
Costs of Adv Mthembu
3.3.
Costs of Plaintiffs Counsel
4. The determination of
quantum is postponed
sine die.
_________________________
P
D MOSEAMO
ACTING
JUDGE OF THE HIGH COURT