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
>>
2015
>>
[2015] ZAGPPHC 434
|
|
Moloto v Road Accident Fund (34751/2011) [2015] ZAGPPHC 434 (10 July 2015)
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
DIVISION, PRETORIA
CASE
NO:
34751/2011
DATE:10/7/2015
In
the matter between:
PHUTI
SAMUEL MOLOTO
PLAINTIFF
and
ROAD
ACCIDENT
FUND
DEFENDANT
J U D G M E N T
MALI
AJ
[1]
The
plaintiff, an adult male instituted a claim against the defendant
claiming for damages in terms of section 17 (1) (b) of the
Road
Accident Fund Act 56 of 1996 (“the Act”). The damages
were allegedly suffered as a result of a collision with
a bus driven
by an unidentified insured driver.
[2]
At
the commencement of the trial, the parties agreed that the issue of
liability be adjudicated separately in terms of Rule 33 (4).
This
trial proceeded on merits only. The determination of quantum is
postponed sine die.
[3]
The
merits of this matter are to be decided on the basis of the testimony
of the plaintiff. The defendant did not call witnesses.
[4]
It is not in dispute that a collision took place on 11 May 2009 at
Phomolong Village in Polokwane involving a motor vehicle
bearing
registration letters and numbers B[……].
[5]
What
is in dispute is whether there is negligence on the part of the
insured driver and if so to what extent.
[6]
According
to the plaintiff at about 8h30 in the morning he was driving a Toyota
Hilux van on a steep unmarked gravel road.
He was driving at 80
kilometres per hour on the left hand side of the road towards
Phomolong. He noticed a bus approaching from
the opposite direction
downhill. The bus was driven at a high speed travelling along the
plaintiff’s lane of travel. In
an attempt to avoid
the collision he reduced his speed to 70 kilometres per hour. He
swerved his motor vehicle to left hand side
of the road and the car
ended up in a ditch. He further stated than he swerved right back
onto the road the car then overturned
to the left hand side again.
[7]
Under
cross examination he stated that there were people who arrived at the
scene of the accident and the car was placed on wheels.
He then went home and his wife arranged for his neighbour to take him
to hospital.
[8]
The
defendant’s counsel further cross examined the plaintiff on the
contents of his affidavit. The plaintiff admitted his
signature but
stated that the contents thereof were not read back to him.
[9]
The
plaintiff closed its case. The defendant then closed its case. See
GAINTE
V DICKINSON 1950(2) SA 450 (AD)
where the Court held at 465:
“
It
was not advisable to lay down a general rule as to the effect that
may properly be given to the failure of a party to give evidence
on
matters unquestionably within his knowledge. But it seems fair to say
in an accident where the defendant was the driver of the
vehicle the
driving of which the plaintiff alleges was negligent and caused the
accident, the court is entitled, in the absence
of an explanation
from the defendant to select out of the two alternative explanations
of the cause of the accident which are more
or less equally open on
the evidence, than one which favours the plaintiff as opposed to the
defendant”.
[10]
The
failure to call the police officer who compiled the accident report
and the hospital official who completed the hospital report
is
surprising especially as the insured bus driver is unidentified. It
would seem as though little, if any, preparation had been
given to
the defendant’s case, despite the matter proceeding to trial;
in particular that on 2 June 2015 the defendant requested
the matter
to stand down for trial to 4 June 2015 fully aware of the status of
its case.
[11]
Counsel
for the plaintiff argued that the defendant had admitted the
collision in its plea. The only issue in dispute
was
whether the insured driver was negligent. It is undisputed that
there was a bus, accordingly the court should accept
that there was a
bus and the plaintiff‘s car overturned when he was trying to
manoeuvre his car to avoid collision with the
speeding bus.
[12]
Counsel
for the plaintiff further argued for costs. He submitted that the
matter was set down for trial on 2 June 2015 and the defendant
requested the matter to stand down to 4 June 2015. Accordingly the
plaintiff was entitled to the costs of 2 days.
[13]
Ms Moses, counsel for the defendant argued that the plaintiff had
three different versions which are as follows:
(i)
There
was a near collision;
(ii)
There
was head on collision;
(iii)
The
plaintiff fell out of the car and sustained injuries.
She further stated that
out of the three versions the defendant took one version and gave the
defendant a benefit of doubt and allowed
the claim to proceed. In
respect of the plaintiff’s affidavit she argued that it was not
compliant, accordingly the plaintiff’s
claim was not valid.
This is the same affidavit she used to discredit the evidence of the
plaintiff.
[14]
The
Counsel for the defendant who did not call any witnesses sought to
cross examine the plaintiff on his version of the collision
on the
accident report and hospital records. This was disallowed because it
amounted to hearsay.
[15]
The
defendant tried to prove that the plaintiff lied because in his
affidavit he stated that the bus collided with his motor vehicle,
whereas in his evidence he stated that there was a near collision.
According to the counsel for the defendant these destructive
versions
point to the fact that there was no collision. As stated above the
defendant did not call any witness to prove that there
was no
collision.
[16]
The
Counsel for the defendant further submitted that the damages of the
vehicle do not correspond with the head on collision. There
was also
no evidence led in this regard. The Counsel further stated she was
not in a position to argue if there was a bus or no
bus. She in
conclusion submitted that in the event it was found that there was an
accident there should be apportionment of damages
to the plaintiff.
Her submission was not supported by any argument.
[17]
For
the plaintiff to succeed in his claim, he has to meet the
requirements in terms of section 17(1) of the Act of proving
negligence
for the statutory liability of the defendant. In
Klopper,
H.B The Law of Third Party Compensation, (3ed), 2012
at
page 75. It is trite law that even the slightest degree of negligence
on the part of the driver of the insured vehicle is sufficient
to
satisfy that requirement of negligence. Any negligence on his part
which is relevant for the causation of the accident would
suggest
contributory negligence and justify apportionment of damages by this
court.
[18]
In
Goode
v SA Mutual Fire and General insurance
1979 (4) SA 301
(W)
it
was held
“
the
maxim
res
ipsa loquitur applies to street accidents although in a limited
manner. This limitation occurs because the Court is dealing
with two
vehicles which, prima facie, are lawfully travelling on the road.
Once the inference of negligence is established the
defendant has a
tactical onus of furnishing an explanation of his conduct which
either excludes negligence on his part, or is equally
consistent with
negligence or no negligence”.
[19]
The
plaintiff appeared to know his facts and was impressive. He answered
all questions articulately. He did not lie about the affidavit;
he
stated that the affidavit was never read back to him. To what
was considered to be an inconsistency by the defendant he
gave
satisfactory explanation. Furthermore he did not lie about his
reduction speed. He made it clear that he was scarred of being
squashed by the bus and had to do his best by swerving the car to the
left hand side of the road to avoid collision. I therefore
accept his
testimony as credible and that the probabilities favour his version
than any other, since there is none before court.
CONTRIBUTORY
NEGLIGENCE
[20]
Section
1 (a) of the Apportionment of Damages Act 34 of 1956 provides:
“
Where
any person suffers damage which is caused partly by his own fault and
partly by the fault of any other person, a claim in
respect of that
damage shall not be defeated by reason of the fault of the claimant
but the damages recoverable in respect thereof
shall be reduced by
the court to such extent as the court may deem just and equitable
having regard to the degree in which the
claimant was at fault in
relation to the damage”.
[21]
In
Sedumemanyatela
v Road Accident Fund (65678/2012) [2014] ZAGPPHC 445 (30 May 2014)
at
page 14 paragraph 21 Molefe J appositely remarked:
“
Even
when an approaching vehicle is on its incorrect side of the road, a
driver on his correct side may assume that the former will
return
timeously to its correct side of the road. But this assumption does
not entitle a driver on the correct side of the road
to remain
passive in the face of threatening danger. As soon as the danger of
the collision becomes evident he is under a duty
to take reasonable
steps to avert one”.
[22]
In
casu
the plaintiff who was travelling in a village on a steep unmarked
gravel road reduced his speed from 80 to 70 kilometres per hour
to
avoid collision. I consider the 70 kilometre reduction not reasonable
by any means. A gravel road by its nature is risky and
dangerous; the
plaintiff would have been expected to be extra cautious especially
with his speed.
[23]
Consequently,
I find it appropriate to apportion the degree of fault between the
plaintiff and defendant at 30%- 70% respectively.
Such apportionment
is made on the considerations of justice and equity. See:
General
Accident Versekeringsmaatskappy Bpk v Uijs NO
[1993] ZASCA 58
;
1993
(4) SA 228
(A) at 234J-235E.
ORDER
[24]
In
the circumstances it is ordered:
1.
That
the defendant is liable to pay 70% to the plaintiff of his proven or
agreed damages.
2.
That
the defendant is to pay the costs of suit; such costs to include the
costs incurred in the postponement of the matter on 2
June 2015 on
party and party scale.
_____________________________
MA
LI
AJ
ACTING JUDGE OF THE
HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION
PRETORIA
Counsel
for the Plaintiff:
Adv
WJ
Botha
Instructed
by:
Frans Schutte
Incorporated
Counsel
for the Respondent: Adv
Moses
Instructed
by:
Tsebane Molaba Incorporated
Date
of Hearing:
04 June 2015
Date
of Judgment:
10 July 2015