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[2016] ZAGPPHC 455
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Mogoelelwa v Road Accident Fund (A332/2013) [2016] ZAGPPHC 455 (26 May 2016)
IN THE HIGH COURT OF SOUTH
AFRICA (GAUTENG DIVISION, PRETORIA)
Case
number: A 332/2013
Date:
30 MAY 2016
In
the matter between:
OUPA
ODATH
MOGOELELWA
APPELLANT
Versus
ROAD ACCIDENT
FUND
RESPONDENT
JUDGMENT
TOLMAY,
J:
[1] The appellant instituted
action against the defendant following a motor accident that occurred
on 30 April 2008 while travelling
on
the Disaneng
Village Road in
the
district
of Mafikeng.
[2]
Merits and quantum were
separated and the matter proceeded
on merits only. The Court
a quo found that the appellant did not prove his case on a balance of
probabilities and dismissed the
claim with costs. The
appellant
appealed
against
the
judgment and
order.
[3]
The appellant and an
independent witness who was a passenger
in
the taxi testified.
The
respondent
did
not call
any witnesses.
At the appeal
hearing
there
was
no
appearance
on
behalf
of
the
respondent.
[4] The appellant testified
that he was a taxi owner and driver. On 30
April 2008 he was
transporting passengers on the Mafikeng Makgobestad road. The
accident occurred at 20:00, it was dark and there
were
no street lights. He
estimated his speed at around 80 kmph prior to
the incident. A
vehicle,
whose headlights
were on
bright,
approached
from the opposite
direction. The appellant flicked his lights to warn the approaching
vehicle that he should dim his lights and
he
reduced speed to ±
60 kmph. The lights of the oncoming vehicle
however remained on bright
and blinded the appellant. As this vehicle went past, appellant
suddenly saw a cow in front of his vehicle.
He braked and swerved to
his left as the cow was approaching from the right, but despite these
efforts collided with the cow. As
a result of the collision his
vehicle left the road and collided with a tree. He said that there
was nothing he could do to avoid
the
accident.
[5] The appellant's evidence
was confirmed by Ms Sethlako who was
a passenger in the taxi
and who sat next to the appellant in the front passenger's seat. She
confirmed the speed that the driver
was driving, the fact that they
were blinded by the lights of the approaching
vehicle, and that the
plaintiff reduced speed. She also confirmed the actions that the
appellant took to avoid the accident. She
testified that she
also did not see the cow
until it was too late. She said that there was nothing that appellant
could have done to avoid the
accident.
[6]
Based on the aforesaid evidence the learned judge found that
the appellant's version
was not probable. She said the following in this regard:
"Had the insured
driver been passing the plaintiff on his right, how is
it possible for the
cow to come from the right hand side immediately
after he passed the
plaintiff's vehicle. If
so
the passing vehicle
would surely collide with the cow before passing the plaintiff,
as
the cow was passing
directly in the lane of travel of the insured driver."
[7] She then proceeded to find
that the appellant was not confronted with a sudden emergency, she
said the
following:
"On an examination of
the circumstance [sic] surrounding this particular collision, the
actions of the insured driver, with
his blinding
lights,
cannot be construed as creating a sudden emergency for
the plaintiff. On
the plaintiff's own version, he states that he had
ample time to give
the insured driver a warning about his lights. Ms Sehlako's
testimony, that she saw the insured driver's vehicle
approach some
100 meters away, as well as the fact that the plaintiff collided with
the cow at the time
when the sudden emergency, that being the
insured driver
having passed when the collision occurred.
"
[8]
It is trite that the appellant carries the onus to prove his claim on
a balance of
probabilities. The appellant testified as to what
happened and his evidence
was corroborated by an independent witness. No evidence was led by
the defendant. The learned judge did
not make a credibility finding
against the appellant or his witness, she
merely found that the
appellant's version was
improbable.
[9] She apparently based this
finding on the fact that the driver of
the oncoming vehicle would
have collided with the cow if it was approaching from the right. Her
conclusion in my view loses sight
of the fact that we know,
irrespective of from which side the cow was coming, appellant did not
see the cow because he was blinded
by
the lights of the
approaching vehicle. Both the appellant and the
witness testified that
appellant indicated to the approaching vehicle that it should dim its
lights but that was ignored. This indicates
that the appellant took
preventative measures to ensure that he would not
be blinded by the lights.
There was nothing more that appellant could have done to prevent him
being blinded by the bright lights.
Appellant and
Mrs
Sethlako
proceeded
to testify
that
they were
blinded
by the approaching
vehicle, consequently they did not see the cow before
it was too late. The
sudden emergency was not the fact that the appellant was blinded by
the approaching vehicle, but the presence
of the cow that he failed
to see due to the fact that he was blinded.
There is no indication
of any
negligence
on the
part of the
appellant
on the evidence before
us.
[1O] In my view the learned
judge's misdirected herself when she found
to
the contrary, consequently the appeal must
succeed.
[11]I
make the following order:
11.1
The appeal is upheld;
and
11.2
The finding of the Court
a quo
is
set aside and
substituted with the following:
"The
defendant is 100% liable for the damages occasioned by the collision.
11.3
The defendant is ordered to pay the costs of the action
as well as the appeal.
I
AGREE: N TUCHTEN
JUDGE
OF THE HIGH COURT
I AGREE
T A NMAKHUBELE
ACTING JUDGE OF
THE HIGH
COURT
ATIORNEY
FOR APPELLANT:
ADVOCATE
FOR
APPELLANT:
-
ATIORNEY FOR RESPONDENT
ADVOCATE FOR
RESPONDENT:
NO
APPEARANCE
DATE
OF
HEARING:
5
MAY 2016
DATE OF JUDGMENT:26 MAY
2016