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[2015] ZAGPPHC 129
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Maatla v Road Accident Fund (11690/11) [2015] ZAGPPHC 129 (6 March 2015)
Not
Reportable
IN THE HIGH COURT
GAUTENG DIVISION, PRETORIA
REPUBLIC OF SOUTH
AFRICA
CASE NO: 11690/11
DATE: 6 MARCH
2015
28-01-2015
In the matter
between:-
MAKGADO
ROYLANE
MAATLA
................................................................................
Plaintiff
and
ROAD
ACCIDENT
FUND
.............................................................................................
Defendant
JUDGMENT
Ismail J:
[1] In this matter
the parties agreed to a stated case and listed the following issues,
agreed between them.
(1) It is common
cause that the plaintiff was a driver of a motor vehicle bearing
registration number and letters VRF 633 GP on
the 11
th
February 2008, when he was involved in a motor vehicle collision;
(2) that the vehicle
that the plaintiff was driving at the time, belonged to his employer
Maxi Security(Pty) Ltd, whilst he was
carrying out his duties as a
patrol security guard;
(3) the plaintiffs
case is that the collision occurred as a result of a defect that
existed in the steering of the vehicle, which
defect had been
repeatedly reported to the employer, but was not remedied.
That therefore (sic)
the collision resulted from the negligence of the employer in that,
it failed to keep the vehicle in a roadworthy
condition or in a
proper state of maintenance;
(4) That the
Plaintiff submitted a valid claim to the Defendant, which claim was
repudiated by the Defendant, hence this action;
(5) That the
employer was negligent in not keeping the vehicle in a proper state
of repair. That such negligence was the cause of
the collision;
(6) The defendant’s
defense is that the said negligence does not give rise to a claim
against the Defendant and the action
should rather have been
instituted against the employer;
(7) The Court is
required to decide whether the Plaintiff is entitled to a claim
against the Defendant in a case where he was the
driver of the of a
motor vehicle which was involved in a collision, relying on his
employer’s negligence.
(8)
The issue of quantum (sic) to be separated (sic) in terms of Rule 33
and postponed
sine
die.
Dated at Pretoria on
this 28 January 2015
(sgd) Plaintiff
(Sgd) Defendant
[2] In the light of
the aforementioned facts, as agreed between the parties, the Court is
called upon to determine the issue of
liability and whether the
defendant was enjoined in terms of the Compulsory Motor Vehicle Act
to compensate the Plaintiff for the
injuries sustained as a
consequence of a collision.
[3] Mr Mampuru,
acting for the plaintiff, submitted that section 17 of the Act
stipulated under what circumstances the Road accident
Fund (RAF)
would be liable to compensate a person for bodily injuries arising
out of a motor collision.
[4] Section 17 of
the Act stipulates:
“
Liability
of Fund and agents
- (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 te
identity of the owner or the driver thereof has been established;
(b) Subject to the
regulations made under section 26 , in the case of a claim for
compensation under the section arising from the
driving of a motor
vehicle where the identity of neither the owner or the driver thereof
has been established ,
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 or the death of any bodily injury to another
person, caused by or arising from the driving
of a motor vehicle by
any person at any place in the Republic, if the injury or death is
due to the negligence or other wrongful
act of the driver or of the
owner of a motor vehicle or of his or her employee in the performance
of the duties as employee: Provided
that the obligation of the Fund
to compensate a third party for non- pecuniary loss shall be limited
to compensation for serious
injury as contemplated in subsection (1A)
and shall be paid by way of a lump sum.
(1 A)....
[5] It is clear from
the facts, presented to me, that the plaintiff was a driver of a
vehicle involved in a collision wherein he
sustained bodily injuries
arising out of the collision. The defendant’s view is that he
knew that the vehicle was not in
a road worthy condition and despite
such knowledge continued to drive the vehicle, albeit that he
informed his employer of the
condition of the vehicle.
The defendant
suggested that the plaintiff who was armed with the knowledge of the
vehicles condition or state, ought not to have
driven the vehicle as
it was inevitable that the vehicle would be involved in a collision.
This would obviously
depend upon the defect that the vehicle had at the time. If the
brakes were not working that might be true
so to if the vehicle
switched off or lost power due to a starter or electrical defect. The
situation would be entirely different
if the head lights were not
working and it was merely driven during the day. The vehicle may not
technically be in a road worthy
condition but if it was driven during
day light hours the probability that it would result in an accident
for that reason would
be minimal.
[6] The court was
informed that the owner was told that there was a steering problem
with the vehicle. The Court is not privy to
the actual problem,
namely whether the steering was vibrating as a result of the tyres
not being properly aligned or whether it
was a problem relating to
the mechanical operation thereof.
[7] Mr Makuyu,
acting for the defendant, submitted that section 17 of the Act should
not be read in isolation, and that it should
be read conjunctively
with section 19 and 21 thereof. According to him sections 19 and 21
limits the liability of the Road Accident
Fund.
[8] For a proper
understanding of the conclusion I arrive at in the course of this
judgment, it would be prudent for me to refer
to these two sections
hereunder.
[9] Section 19 of
the act stipulates and reads as follows:
“
19
Liability excluded in certain cases
.-
The Fund or an agent shall not be obliged to compensate any person in
terms of section 17 for any loss or damage-
(a) For which
neither the driver nor the owner of the motor vehicle concerned would
have been liable but for section 21; or
(b) ...[para (b)
deleted by s.8 (a) of act No . 19 of 2005]
(c) if the claim
concerned has not been instituted and prosecuted by the third party,
or on behalf of the third party by-
(i) any person
entitled to practice as an attorney within the republic; or
(ii) any person who
is in the service, or who is a representative of the state or
Government or a provincial, territorial or local
authority; or
(c) where the third
party has entered into an agreement with any person other than the
one referred to in paragraph (c) ((i) in
accordance with which the
third party has undertaken to pay such person after settlement of the
claim-
(i) a portion of the
compensation in respect of the claim; or
(ii)any amount in
respect of an investigation or of a service rendered in respect of
the handling of the claim otherwise than on
instruction from the
person contemplated in paragraph (c ) (i) or (ii); or
(e).......
(g) suffered as a
result of an emotional shock sustained by that person when that
person witnessed or observed or was informed of
the bodily injury or
death of another person as a result of the driving of a motor
vehicle.
[10] Section 21 of
the Act reads as follows:
“
Abolition
of certain common law claims
.-
(1) No claim for compensation in respect of loss or damage resulting
from bodily injury to or the death of any person caused
by or arising
from the driving of a motor vehicle shall lie -
(a) against the
owner or driver of a motor vehicle; or
(b) against the
employer of the driver;
(2) Subsection (1)
does not apply-
(a) if the Fund or
agent is unable to pay any compensation; or
(b) to an action for
compensation in respect of loss or damage resulting from emotional
shock sustained by a person, other than
a third party, when that
person witnessed or observed or was informed of the bodily injury or
the death of another person as a
result of the driving of a motor
vehicle.
[11]
Plaintiffs counsel, submitted that the matters of
Kemp
v Santam Insurance Co Ltd and Another
1975
(2) SA 329
(C ) and
Ngedele
v Martine and Trade Insurance Co Ltd
1969
(4) SA 19
(W) supported the view that the Fund would be liable.
[12]
In
Ngedele
matter,
several people who were seated at the back of a vehicle sustained
injuries arising out of a fire caused by some perspex
sheeting.
The court stated:
“
The
only issue to be determined are, firstly whether the injuries arose
out of the driving of the vehicle, and whether either the
driver or
the owner was negligent. ”
The court held that
the injuries arose out of the driving of the motor vehicle and also
held that the owner was negligent in not
providing adequate
firefighting facilities.
[13]
In the
Kemp
matter,
a wheel had fallen off a motor vehicle resulting in a collision with
a vehicle wherein the plaintiff sustained injuries.
The sole question
was whether the defendant company could be held liable in terms of
the Motor Vehicle Insurance Act.
Diemont
J referred to the matter of
Wells
and Another v Shield Insurance
.
Co.
Ltd and Others
1965
(2) SA 865
(C) at 867 where Corbett J stated:
“
The
section lays down two prerequisites of liability upon the part of a
registered insurance company for damages suffered by a third
party as
a result of bodily injury. These are (i) that the injury was caused
by or arose out of the driving of the insured motor
vehicle and (ii)
that the injury was due to the negligence or other unlawful act of
the driver of the insured vehicle, or the owner
or his servant. There
are thus two separate enquiries, a fact which is sometimes lost sight
of because in most cases the injury
is caused by the negligent
driving of the insured driving vehicle.”
[14] In the stated
case the Court is called upon to determine whether the driver of a
vehicle may claim damages arising out of bodily
injuries sustained
out of a collision where the employer was negligent.[ see para [1]
point (7)]
[15]
The twofold enquiry referred to in the
Well’s
matter,
supra,
needs
to be answered. The answer to both these questions are in the
affirmative, namely that the injuries arose out of a motor vehicle
collision and secondly the owner of the vehicle in terms of the
common cause facts was negligent.
Furthermore there is
no evidence that the cause of the accident was directly attributable
to the steering mechanism.
[16] Accordingly I
am of the view that the Fund should be held accountable for the
injuries sustained by the plaintiff.
[17] In the
circumstances I make the following order:
Defendant is liable
to compensate the plaintiff for 100% of the plaintiffs proved damages
arising out of the collision.
Ismail J