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 1143
|
|
Moitsi v Road Accident Fund (51894/2014) [2016] ZAGPPHC 1143 (21 December 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
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
PROVINCIAL DIVISION,
PRETORIA
21/12/2016
CASE
NO: 51894/2014
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
In
the matter between:
SELLO
SAMUEL
MOITSI
Plaintiff
and
ROAD
ACCIDENT
FUND
Defendant
JUDGMENT
MPHAHLELE
J
[1]
At the commencement of the trial I was informed that the parties had
agreed to separate the issue of merits and quantum in terms
of rule
33 (4) of the Uniform Rules of the High Court. I accordingly granted
an order in the matter then proceeded in respect of
the merits of
liability only and the issue of quantum was postponed
sine die.
[2]
The plaintiff called four witnesses in support of his case. The
defendant called two witnesses, namely, the insured driver as
well as
his passenger.
[3]
The evidence of the plaintiff is briefly as follows: On 29 July 2012
and at approximately 01h50am the plaintiff was driving
from Temba to
Makapanstad. The road carries single lane traffic in both directions.
Whilst driving he noticed a motor vehicle approaching
in the opposite
direction and then encroaching into his lane of travel. He noticed
the car after driving past a curve on the road.
He tried to avoid
this vehicle by swerving to his left and taking his foot from the
accelerator pedal but unfortunately couldn't
avoid the accident. The
accident happened so fast that he did not have the opportunity to
apply the brakes of his motor vehicle.
He denied that he overtook any
motor vehicles immediately before the accident took place. The
collision took place in his lane
of travel and both motor vehicles,
after the impact, landed in his lane of travel. He confirmed the
point of impact as indicated
on the sketch plan prepared by the
police officials. The point of impact is indicated to be on his lane
of travel.
[4]
Constable Hloriso Oriel Digasho confirmed that he took down the
statement from the insured driver. He also interviewed the plaintiff.
[5]
Constable Jimmy Mokopa Ngwane testified that he attended the scene of
the accident and drew the plan of the scene of the accident
and the
key thereto. He observed a car battery, water-like substance on the
ground and debris at the point of impact. The plaintiff
was in the
right lane of travel. It was impossible for the point of impact to be
in the other lane of travel. He confirmed that
he attended the scene
of the accident with Constable Sietei.
[6]
Constable Betty Sietei testified that she attended the scene of the
accident with Constable Ngwane and thereafter completed
the accident
report form on 29 July 2012. At the scene of the accident she
observed two cars in the lane of travel from south to
north. Both
cars were damaged and there was glass on the road between the two
cars. The cars were facing opposite directions. The
insured driver's
car was in the wrong lane of travel. The plaintiff's car was facing
the direction towards Makapanstad. She confirmed
the point of impact
as indicated on the accident report form.
[7]
Mr. B. Grobler, a mechanical engineer testified that he attended to
the reconstruction of the accident. He visited the accident
scene on
22 July 2015 and took photographs and measurements. In compiling his
report, he also had regard of the following documents:
the accident
report form; colour copies of six photographs of the damaged Toyota
Corolla; the police sketch plan and key thereto;
the affidavit and
warning statement of the plaintiff; the warning statement of the
insured driver; and the statement of Mr. V.
Mavasa (the passenger in
the insured vehicle). The approximate location of the area where the
accident occurred which was pointed
out to him by the plaintiff
during the inspection.
[8]
The photographs of the damaged motor vehicle of the plaintiff showed
damage to virtually the full front of the vehicle with
there having
been more severe damage to the right front of the vehicle than the
left front. The right front wheel of the vehicle
had also been forced
rearwards to an extent.
[9]
There are no photographs of the damaged insured vehicle. The accident
report form however indicates the damage to the insured
vehicle to
have been to the right front, right mid-front, left mid front, left
front, front centre and bonnet.
[10]
When comparing these respective damage profiles, it is probable that
the vehicles collided with a frontal impact with most
of the fronts
of the vehicles overlapping at impact, though the absence of the
impact damage to the plaintiffs vehicle in the vicinity
of the left
front headlamp position indicates the probability that there was a
small bias to the right front at impact.
[11]
When considering the almost full frontal impact between the vehicles,
it is clear that the combined bias is more towards the
plaintiff's
side of the road. This bias towards the plaintiff's side of the road
would be consistent with the collision having
occurred more on the
plaintiff's side of the road, with the insured driver having swerved
or moved to its right into the plaintiffs
lane prior to the
collision. This would also especially be so for the vehicles having
come to rest at the area of impact as indicated
in the police sketch
plan, therefore having been little post-impact movement.
[12]
The positions of the rest of the vehicles in the police sketch plan
also support the collision having occurred on the plaintiff's
side of
the road, and especially when considering that the vehicles came to
rest essentially at the area of impact. There was little
movement of
the vehicles post-impact.
[13]
It is improbable that it was the plaintiff that moved/swerved into
the insured driver's lane prior to the collision as, for
this to have
occurred, it is probable that the vehicles would have come to rest
more on the insured driver's side of the road due
to the lateral
component of momentum of the plaintiffs vehicle in this direction.
[14]
The resting positions of the vehicles therefore support the version
of the plaintiff that the insured vehicle came into his
lane prior to
the collision and that collision occurred in the plaintiff’s
lane of travel.
[15]
Mr. Christopher Vusi Mavasa testified that on 29 July 2012 he was
travelling from Dannhaus to Majaneng in the insured vehicle.
He
noticed that there were cars approaching from the opposite direction.
The third car, which was travelling at high speed, overtook
the other
2 cars in front and thereby entered into their lane of travel. He
warned the insured driver but unfortunately the vehicles
collided.
The collision took place in their lane of travel but both vehicles
ended up in the lane travelling in the opposite direction.
The debris
may have been found in the plaintiff’s lane of travel because
after the collision the motor vehicles moved to
the insured driver's
lane of travel. He maintained that there was no debris at the point
where the vehicles collided.
[16]
Mr. Jerry Buta Manganye testified that on 29 July 2012 he was
travelling from Dannhaus to Majaneng in the company of his cousin,
Mr. Mavasa. At the Bosplaas he noticed a vehicle travelling in the
opposite direction, approaching in his lane of travel. This
vehicle
was overtaking other vehicles. He first noticed this approaching
vehicle when it was about 7 to 8 metres away from him.
The accident
was very sudden. He could not remember Mr. Mavasa ever warning him
about the approaching car. He maintained that the
accident took place
in his lane of travel.
[17]
It is clear from the evidence that the accident happened very
suddenly and the insured driver had no opportunity to do anything
to
avoid the accident. The defence version that the plaintiff was trying
to overtake other vehicles in his lane of travel at the
time of the
accident was never put to any of the plaintiff's witnesses. Further,
this overtaking manoeuvre was never mentioned
in any of the
statements made to the police. This version of overtaking was also
not pleaded by the defence.
[18]
The expert witness based his opinion, among others, on the point of
impact as pointed out in the sketch plan drafted by the
police. This
evidence was submitted by the two police officers who testified
before this court. It is uncontested evidence that
the debris as well
as the engine belonging to one of the vehicles involved in the
accident were found at the scene of the accident.
The evidence for
the plaintiff indicates that this point where the debris was found is
the point of impact.
[19]
Mr. Mavasa, the witness for the defence, maintained that the
collision took place in the lane of travel of the insured driver
and
that the vehicles eventually rested in the plaintiff's lane of
travel. According to Grobbelaar, the expert witness, the almost
full
frontal impact between the vehicles and the positions of the rest of
the vehicles after the accident clearly indicates that
the combined
bias is more towards the plaintiff's side of the road.
[20]
This bias towards the plaintiff’s side of the road would be
consistent with collision having occurred more on the plaintiff’s
side of the road, with the insured driver having swerved or moved to
the right into the plaintiff's lane prior to the collision.
This
would also especially, be so for the vehicles having come to rest at
the area of impact established by the plaintiff, with
there having
been little post-impact movement.
[21]
The evidence before me supports the version that the collision
occurred on the plaintiff's side of the road. I am satisfied
that the
vehicles came to rest essentially at the area of impact. There was
definitely little movement of the vehicles post-impact.
[22]
The defence version that the collision took place in the insured
driver's lane of travel therefore is not probable. The expert
testimony is supported by objective and oral evidence and therefore
must be given precedence.
[23]
In the result, I hereby make the draft order marked annexed hereto an
order of court.
MPHAHLELE
J
JUDGE
OF THE HIGH COURT OFSOUTH AFRICA
GAUTENG
DIVISION,
PRETORIA
Counsel
for the Plaintiff: Adv R Ferguson
Instructed
by: Erasmus-Scheepers Attorneys
Counsel
for the Defendant: Adv W Binase
Instructed
by: Tau Phalane Inc
Date
of Judgment: 21 December 2016
I
N
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
HELD
AT PRETORIA ON THIS THE 10th, 11th AND 12th DAY OF MAY 2016 AT COURT
6D BEFORE THE HONOURABLE MADAM JUSTICE MPHAHLELE
Case
number: 51894/2014
In
the matter between:
S
S
MOITSI
PLAINTIFF
and
ROAD
ACCIDENT FUND
DEFENDANT
DRAFT
ORDER
HAVING
HEARD COUNSEL FOR THE PARTIES,
the Court orders that:
1.
The Defendant is liable for 100% of the Plaintiff's proven or agreed
damages resulting from a motor vehicle collision that occurred
on 29
July 2012.
2.
The Defendant must make payment of the Plaintiff's taxed or agreed
party-and-party costs on the High Court scale, which costs
shall
include the following:
2.1
The full reasonable day fees of Senior-Junior Counsel on the High
Court scale for 10, 11 and 12 May 2016, including the costs
of
preparation of the Plaintiff's heads of argument;
2.2.
The reasonable taxable costs of obtaining the report by Mr. B
Grobbelaar which was furnished to the Defendant in terms of Rule
36(9} (b);
2.3
The reasonable taxable fees for the preparation, reservation and
attendance of Mr. B Grobbelaar for 10, 11 and 12 May 2016 of
whom
notice have been given in terms of Rule 36(9)(b);
2.4.
The costs of any assessor(s) appointed by the Plaintiff;
2.5.
The reasonable taxable transportation and subsistence costs incurred
by the Plaintiff in attending the trial;
2.6
The reasonable taxable costs of preparing six trial bundles as per
the directive issued by Van der Merwe (DJP);
2.7
The costs of the Plaintiff's attorney, which includes traveling costs
to pre trial conferences and to Court, attendance
to Court, all
costs for preparation of the pre-trial conferences, formulation of
pre-trial minutes and costs for actual attendance
of the pre-trial
conferences.
2.8
Cost for all consultations with the Plaintiff, witnesses and experts;
2.9.
All costs of the Plaintiff's attorney for preparation for trial;
2.10
Reservation fees for the attorney and counsel for 10 May 2016, 11 May
2016 and 12 May 2016.
3.
The aforementioned taxed or agreed party and party costs, once
determined, must be paid to the Plaintiff's Attorneys, Erasmus
Scheepers by direct transfer into their trust account, details of
which are as follows:
Bank: ABSA
BANK, LYNWOOD ROAD
Account
holder: Erasmus
Scheepers Attorneys
Account
number: [...]
Reference:
M1657/12
4.
The following provisions will apply with regards to the determination
of the aforementioned taxed or agreed costs:
4.1.
The Plaintiff shall serve the Notice of Taxation on the Defendant's
attorneys of record;
4.2.
The Plaintiff shall allow the Defendant 7 (seven) court days to make
payment of the taxed costs from date of settlement or
taxation
thereof;
4.3.
Should payment not be effected timeously, Plaintiff will be entitled
to recover interest at the rate of 10.25 % on the taxed
or agreed
costs from date of allocator to date of final payment.
5.
It is recorded that no contingency fee agreement exists between
Plaintiff and his attorney.
BY
ORDER
REGISTRAR
OF THE HIGH COURT
Ref:
M1657/12