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[2015] ZAECELLC 4
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Matshoba v Road Accident Fund (EL 348/2012, ECD848/2012) [2015] ZAECELLC 4 (17 February 2015)
IN THE HIGH COURT
OF SOUTH AFRICA
EASTERN
CAPE, EAST LONDON CIRCUIT LOCAL DIVISION)
Case
no: EL348/2012
ECD
848/2012
Date
heard: 10.12.2014
Date
delivered: 17.2.2015
In
the matter between:
MONWABISI
MATSHOBA
....................................................................................................
Plaintiff
vs
ROAD ACCIDENT
FUND
..................................................................................................
Defendant
JUDGMENT ON
APPLICATION FOR LEAVE TO APPEAL
MALUSI
AJ:
[1]
This an application for leave to appeal against the judgment and
order of this Court that the defendant is liable to the plaintiff
in
such amount of damages as may be proved arising from a motor vehicle
collision.
[2]
I shall use, for the sake of convenience, the same titles as were
assigned to the parties during the trial.
[3]
The matter came before me on trial only on the merits as the parties
applied for a separation of merits and quantum which order
I granted.
[4]
The evidence adduced at the trial was largely common cause or not
disputed. The evidence established that the plaintiff
was
crossing the N2 highway. At the time of the collision he was
standing on a painted island in the middle of the highway
waiting for
an opportune moment to cross. The motor vehicle driven by the
insured driver veered off the lane it was travelling
on and mounted
the painted island. It collided with the plaintiff on the leg
knocking him to the ground.
[5]
In my judgment, I found that the insured driver had been negligent
for failing to keep a proper look-out and driving at a speed
that was
excessive in the circumstances. I refused to apportion
contributory negligence on the plaintiff as I held that his
mere
presence on the painted island was not of itself negligent. I held
that the defendant was liable for the damages as may be
proved.
The defendant applies for leave to appeal that judgment.
[6]
It is necessary that I set out
in extensio
the grounds of the
defendant’s proposed appeal. It will become apparent that
some of the grounds are repetitive.
I do no intend to deal with
them
in seriatum
when I consider the merits of this
application later in this judgment. The wrong impression may be
created at the conclusion
of this judgment that I have not dealt with
all the grounds of appeal as I am not in the habit of repeating
myself. The proposed
grounds of appeal are the following:
“
1.
The Honourable Trial Judge erred in the following respects:
1.1 That, although
the Plaintiff’s presence on the highway was prohibited by
Regulation 323
of the
National Road Traffic Act 93 of 1996
, by
finding that the Plaintiff did not expose himself to a reasonable
risk of collision;
1.2
By finding that the Plaintiff was waiting on the non-trafficable
surface of the highway;
1.3
By concluding that the place where the Plaintiff was waiting and
accordingly where the collision occurred was non trafficable,
when in
effect it was a trafficable surface of the highway;
1.4
By finding that it was reasonably unforeseen that a motor vehicle
would leave the “three lanes” and drive on the
painted
island.
1.5
By not finding that the Plaintiff’s prohibited presence on a
highway, where such presence is prohibited
Regulation 323
of the
National Road Traffic Act 93 of 1996
, is in itself negligent;
1.6
By not finding that the Plaintiff placed himself on the roadway when
it was dangerous and/or negligent for him to do so;
1.7
By finding that the insured driver was not allowed to drive on the
painted island but not, on the same hand, finding that the
Plaintiff
was not allowed to be on the painted island;
1.8
By finding that it was common cause that the Plaintiff was not
allowed to drive on the painted island, when no such common caused
existed;
1.9
By failing to criticize and find negligent the Plaintiff’s
conduct by placing himself on a National Highway in prohibited
circumstances, when it is common cause that the Plaintiff would have
been able to cross the highway by way of a pedestrian bridge
which
was in the near vicinity;
1.10
By failing to find that the Plaintiff exposed himself to a reasonable
risk of collision;
1.11 By failing to
find that the evidence established negligence on the part of the
Plaintiff;
1.12
By failing to find that the Plaintiff was contributory negligent.”
[7]
It is trite in our law that the requirement for leave to appeal is
the existence of reasonable prospects of success on appeal.
An
application for leave to appeal must succinctly and clearly specify
the finding of fact and rulings of law the applicant intends
to
appeal. It is incumbent upon the applicant to furnish all the
information necessary to enable the Court to decide whether
or not
leave ought to be granted. The application must not be
expressed in general and ambiguous terms so as to allow the
applicant
to canvass any element relating to judgment
[1]
.
[8]
I am obliged to dispassionately consider the application for leave to
appeal and decide whether there is a reasonable
prospect the
Appeal Court may come to a different conclusion than mine. This
requires that I clear my mind of the opinion I held
when I delivered
my judgment that it was supportable both on the facts of the case and
the law applicable thereto.
[9]
Mrs Kopke,
who
appeared on behalf of the defendant at the hearing, submitted that
the thrust of the application was that the plaintiff ought
to have
been held to be contributory negligent and apportionment ordered.
She conceded that the defendant was correctly found
to be negligent
but argued strongly that the plaintiff was also negligent to some
unspecified degree.
[10]
Ms Watt
,
who appeared on behalf of the plaintiff, supported the judgment.
She submitted that the only ground alluded to by defendant
in its
plea which was supported by the evidence was that the plaintiff had
placed himself on the highway. She argued his
mere presence on
the highway did not amount to negligence.
[11]
The contention that the plaintiff was negligent is premised on
regulation 323(2)(a)
of the
National Road Traffic Act 93 of 1996
which prohibits the presence of pedestrians on the highway. Due
to the contravention it was thus argued the plaintiff exposed
himself
to a reasonable risk of collision and placed himself on the roadway
when it was dangerous to do so. This was the
thrust of the
submission that the plaintiff was negligent. (See paragraphs 1.1,
1.5, 1.6, 1.9, 1.10, 1.11 and 1.12 above).
[12]
The contention is without merit. It is settled law that
‘
the
mere contravention of a statutory provision can never be equated to
or taken as proof negligence’
[2]
.
The doctrine of precedent is an intrinsic feature of the rule of law
which is in turn foundational to our Constitution.
It requires
Courts to follow the decisions of coordinate and higher Courts’
[3]
.
[13]
No attempt whatsoever was made by the defendant to show that any of
the plethora of cases was wrong on the settled law or the
case at
hand was distinguishable from the welter of authority on the facts. I
simply was implored to depart from precedent at a
whim. This is
the invitation to chaos envisaged by Madlanga J in
Turnbull-Jackson
.
I still maintain my refusal at the invitation.
[14]
It was contended that I erred in finding that the painted island was
a non-trafficable surface (see paragraphs 1.2, 1.3,
1.7 and 1.8
above). This contention sought to withdraw a concession
Mr
Sandi
had correctly made at the trial.
I was not provided with any authority for the contention.
[15]
There is no merit in the contention. Schedule 1 of the
regulations of the
National Road Traffic Act 93 of 1996
provides that
the painted island marking indicates to the driver of a vehicle that
he or she shall not drive his or her vehicle
in such a manner that
such vehicle or any part thereof crosses such marking
[4]
.
[16]
It was this contravention
and
the circumstances of her colliding with the plaintiff which informed
the finding that the insured driver was negligent (own emphasis).
The contravention on its own, as previously indicated, is no proof
negligence.
[17]
At the hearing
Mrs Kopke
finally submitted that leave must be granted so that there is further
clarification of legal principles so in future there is certainty.
This is usually a consideration when there are conflicting decisions
within the division on a point of law. No decisions
contrary to
the judgment on a point of law were brought to my attention. I
could not find any after a diligent search.
Thus, it appears
there is no basis for this ground either.
[18]
It is clear the application lacks merit and no other Court may
reasonably come to a different conclusion. I was given no reason
why
the usual costs order should not be made.
[19]
In the circumstances and for the above reasons the following order is
made:
[19.1] The
application for leave to appeal is dismissed with costs.
______________________________
T. MALUSI
ACTING
JUDGE OF THE HIGH COURT
For
the plaintiff: Adv Watt
Instructed
by: Matyeshana & Moodley Attorneys
EAST
LONDON
(Ref:
Matyeshana/td)
For
the defendant: Mrs Kopke
Instructed
by: Bate Chubb & Dickson Inc
EAST
LONDON
(Ref:
Mr Kretzmann/svp/R1354/W79277)
[1]
Capital
Building Society v De Jager and Others; De Jager and Another v
Capital Building Society
1964 (1) SA 247
(A); S v Ackerman en
‘n Ander 1973 (1) SA 765 (A); S v Sikhosana
1980 (4) SA
559
(A) at 562
[2]
RAF
Practiioners Guide, Issue 18, page A-54 at para (viii) and the cases
cited therein
[3]
Makhanya
v University of Zululand
2010 (1) SA 62
(SCA) para 6;
Turnbull-Jackson v Hibiscus Coast Municipality and Others
2014 (6)
SA 592
(CC) para 54-55
[4]
Cooper
on Road Traffic Legislation, Service 16, 2000, page 2-1-729