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[2006] ZASCA 151
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Madzunye and Another v Road Accident Fund (17/06) [2006] ZASCA 151; 2007 (1) SA 165 (SCA) (20 September 2006)
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IN THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Reportable
Case No. 017/2006
In
the matter between:
NYAMBENI
MADZUNYE First Appellant
THUSO
PRUDENCE RAMALIBA Second Appellant
and
ROAD ACCIDENT FUND
Respondent
CORAM: BRAND,
MAYA JJA et COMBRINCK AJA
HEARD: 1
SEPTEMBER 2006
DELIVERED: 20 SEPTEMBER 2006
Summary: Motor vehicle accident – Claim for compensation in
terms of s 17 of Road Accident Act 56 of 1996 – Causal
negligence
of driver of vehicle turning right at robot-controlled
intersection at inopportune moment in face of oncoming traffic thus
causing
an oncoming vehicle to swerve and consequently collide with
another vehicle – Respondent’s opposition to the appeal
unjustified
where court
a quo
clearly misconstrued the issues
– On appeal attorney-client costs against it warranted.
Neutral citation: This case may be cited as Madzunye
v Road Accident Fund [2006] SCA 103 (RSA).
JUDGMENT
MAYA JA
[1] This appeal is with the leave of this court against
the judgment of Hetisani J (Venda High Court), dismissing the
appellants’
claims against the respondent for damages arising
from personal injuries sustained in a motor vehicle accident.
[2] On the morning 2 May 1998, at the Shayandima
intersection on the Tshilidzini-Thohoyandou Punda Maria public road,
a collision
occurred between an Audi driven by Mr Kingly Rampa, the
second appellant’s husband, and a vehicle which the parties
merely
described as a taxi, driven by Mr Phungo Mudau. The appellants
were both passengers in the Audi, which was travelling from east to
west while the taxi was travelling in the opposite direction.
[3] Where the collision occurred the road consists of a
double carriageway with two lanes both to the east and the west. The
Shayandima
intersection is robot-controlled. Immediately prior to the
collision the robots were green for both the taxi and the Audi. The
taxi
was travelling in the southern most lane directly behind a
yellow Toyota Hilux bakkie. The bakkie’s intention was to turn
right,
ie south, at the intersection. The taxi did not enter the
intersection as the robots turned amber on its approach. The bakkie
had,
however, already entered the intersection and continued to
execute its right turn across the path of the oncoming Audi. The Audi
seemingly never reduced speed, but instead tried to avoid the bakkie
by swerving to its right. In consequence it collided with the
taxi
which had come to a virtual standstill on its correct side of the
road. On impact both the Audi and the taxi burst into flames.
Neither
of them had come into physical contact with the bakkie. The weather
was clear and the drivers had an unobstructed view of
one another for
a distance of approximately 50 metres. Both appellants sustained
serious bodily injuries.
[4] At the Uniform rule 37 conference, the respondent
conceded liability in respect of Rampa and also admitted that the
bakkie –
which had been identified with reference to both its
registration number and its driver - was involved in the accident.
The parties
further agreed that the matter would proceed on the
question of liability only and that, in view of the fact that the
appellants
had instituted separate claims, the court
a quo
’s
judgment in the first appellant’s case would similarly be
decisive of the second appellant’s claim.
[5] Thus, the only outstanding issue before the court
a
quo
was whether or not the drivers of the taxi and the bakkie
were causally negligent. The importance of this issue was of course
that
by virtue of s 18(1)(a) of the Road Accident Fund Act 56 of 1996
(the Act), the appellants’ claims would be limited to R25
000,
00 each unless at least one of the other drivers was also to blame.
[6] At the trial, the appellants both testified on their
own behalf while the taxi driver, Mudau, and the police officer who
attended
the accident scene, Inspector Lumadi, were called by the
respondent. For reasons not disclosed, neither Rampa, nor the driver
of
the bakkie were called as witnesses. Since eventually the evidence
adduced by the parties did not differ materially, no further details
are necessary.
[7] In dismissing the appellants’ claims, the
court
a quo
criticised
the appellants’ failure to call Rampa and the driver of the
bakkie. Ultimately it held that Mudau had not been negligent
at all
and that the collision had been caused solely by Rampa’s
negligence. These conclusions were based on its findings, firstly,
that ‘the Audi jumped a red robot’ and, secondly, that
‘two vehicles and not three or more were involved in the
accident’. The driver of the bakkie was absolved on the
following basis:
‘As regards the vehicle which turned right there
is nothing further to it which can assist this court
as
the said motor vehicle was not involved
in the accident and it went away so whether its manner of turning
right was correct or not,
cannot be associated with the manner in
which the Defendant and the Plaintiff collided and had in no way
contributed to the Plaintiff’s
reckless driving’.
It would appear, as the judge
a quo
himself explained in his judgment on leave to appeal, that he
confused the drivers of the Audi and the taxi
with the parties in the case.
[8] I agree with the court
a
quo
’s finding on the evidence that no
blame can be attributed to Mudau for the collision. The appellant’s
counsel fairly
conceded this at the outset of the hearing of this
appeal. Apart from the fact that his vehicle had been stationary on
its correct
side of the road, it is clear from all the evidence that
the collision occurred so quickly that there was nothing he could
have done
to avoid it. Nor did Mudau have any reason to anticipate
that the Audi would suddenly swerve towards him and leave its path of
travel.
As was held in
Milton v Vacuum Oil Co
of SA Ltd
1932 AD 19
at 205:
‘[W]here there are two streams of traffic in a road in opposite
directions, a person in a vehicle proceeding in one direction
is
entitled to assume that those who are travelling in the opposite
direction will continue in their course and that they will not
suddenly and inopportunely turn across the line of traffic. A person
travelling in one direction can assume that one travelling in
the
opposite direction will continue his course, but he may only assume
that until he is shown a clear intention to the contrary.
When a
clear and undoubted warning is given, then there is no longer any
room for the assumption that the other person will continue
in his
former course’.
See also
Sierborger v South
African Railways & Harbours
1961 (1) SA
498
(A) at 504A-G.
[9] I cannot, however, agree with the rest of the court
a quo
’s
findings. First, none of the witnesses testified that the Audi had
‘jumped a red robot’ as the learned judge
found. On the
contrary, as I have previously indicated, the evidence on both sides
indicated that the traffic lights gave the Audi
the right of way.
Nevertheless, this misdirection on the court
a
quo
’s part is not material since
Rampa’s driving was, in any event, negligent for both his lack
of vigilance and his failure
to reduce speed in the face of an
imminent collision.
De Maayer v Serebro;
Serebro v Road Accident Fund
2005 (5) SA 588
(SCA) para 13.
[10] Second, whilst the appellants bore the onus to
prove on a balance of probabilities that the drivers of the insured
vehicles had
driven negligently and that their driving had caused or
contributed to the collision, they had no duty to call them as
witnesses.
The evidence adduced by the appellants and the
respondent’s own witness, Mudau, served to establish facts from
which an inference
adverse to the driver of the bakkie had to be
drawn. The court
a quo
instead drew an adverse inference
against the appellants for this omission. This was yet another
misdirection on its part.
[11] Third, and most significantly, the fact that
neither the Audi nor the taxi came into physical contact with the
bakkie is of no
consequence whatsoever. Section 17(1) of the Act
renders the respondent liable for any loss or damage caused by or
arising from the
negligent driving of a motor vehicle.
Physical
contact with that vehicle is not required. At one stage regulations
under the Act did require physical contact for the respondent’s
liability in claims under s 17(1)(b) of the Act, ie in so-called ‘hit
and run’ cases where the identity of neither the
owner or the
driver is identified. These regulations have since been declared
ultra vires
and thus invalid. (See
Padongelukkefonds v
Prinsloo
1999 (3) SA 569
(SCA);
Bezuidenhout v Road Accident
Fund
2003 (6) SA 61
(SCA) para 11). But, be that as it may, this
is not a so-called ‘hit and run’ case. As I have said, it
was common cause
that the bakkie had been properly identified both
with reference to its registration number and its driver.
[12] The court
a quo
’s finding excluding
the bakkie driver’s liability merely because he fortuitously
got away unscathed was, therefore, wrong.
So was the finding that it
could not decide the negligence of the bakkie’s driver in the
absence of Rampa’s testimony.
In the light of the evidence that
the bakkie’s manoeuvre was executed in the face of oncoming
traffic, which had the right
of way, its driver was clearly
negligent. To execute a right turn across the line of oncoming or
following traffic is an inherently
dangerous manoeuvre and there is a
stringent duty upon a driver who intends executing such a manoeuvre
to do so by properly satisfying
himself that it is safe and opportune
to do so.
AA Mutual Insurance Association Ltd v Nomeka
1976
(3) SA 45
(A) at 52F;
Sierborger
(supra) at 505A-D. The only
inference that can be drawn from the evidence in this case is that
the driver of the bakkie executed his
right turn when it was unsafe
and inopportune to do so thereby creating a dangerous situation for
Rampa. There can, therefore, be
no doubt in all the circumstances
that he was negligent and that his negligence was causally connected
with the accident.
[13] At the commencement of this hearing the appellants’
application for the reinstatement of the appeal, which had lapsed,
and for condonation of their late filing of the record, was granted.
With reference to the application, the appellants however sought
a
punitive costs order on the attorney and own client scale,
alternatively on the attorney and client scale against the respondent
on the ground that it was responsible for the delay. The respondent
did not oppose the application and challenged only the costs
order
sought. It was contended on its behalf that the parties should each
pay their own costs as the appellants had also been dilatory
in their
arrangements to have the record of the proceedings transcribed.
[14] SCA rule 8(1) requires an appellant ‘within
three months of the lodging of the notice of appeal with the
registrar [to]
lodge six copies of the record of proceedings of the
court
a quo
’. The appellants lodged their notice of
appeal on 29 April 2005. This, therefore, gave them until about 30
July 2005 to file
the record. On their own version, however, their
attorneys approached the transcribers to prepare the record only on
30 May 2005.
It was only on 20 July 2005 that the transcribers
confirmed their instructions to transcribe the record upon payment of
a deposit.
Realising that such record would not be ready in time for
the looming deadline, the appellants’ attorney sought advice
from
counsel which he received only on 27 July 2005 - to request the
respondent to consent to a two-month extension of the time limit
for
the lodging of the record in terms of SCA rule 8(2) and thus obviate
the need for a condonation application. Such request was
made to the
respondent’s attorneys, in writing, on 28 July 2005 followed by
a spate of follow-up correspondence and telephone
calls from the
appellants’ attorneys. These communications all went unanswered
until the appellants’ attorney received
notification from the
registrar that the appeal had lapsed. It appeared that the
respondent’s attorneys had been unable to
give an answer
because the respondent’s claims handler who could deal with the
request had been engaged in another matter in
which ‘a bigger
claim’ had been instituted.
[15] There is no doubt that the respondent’s delay
in responding to the appellants’ request was unreasonable.
Ordinarily,
if a respondent withholds its consent unreasonably it
runs the risk of paying the costs of the condonation application.
A.A. Mutual Insurance Association Ltd v Van Jaarsveld
1974 (4)
SA 729
(A) at 731E. What appears from the facts in this matter,
however, as was properly conceded by the appellants’ counsel,
is that
even a timeous response from the respondent between 28 and 30
July 2005 would not have assisted the appellants because, as a fact,
the record only became available in October 2005. An application for
condonation was, therefore, inevitable in any event, even if
the
respondent had agreed to a two-month extension (until the end of
September 2005). It, therefore, does not seem warranted in the
circumstances to mulct the respondent with a costs order, let alone a
punitive one, which the appellants’ counsel, despite
his
earlier concession, persisted should be awarded against it. An
appropriate costs order, in my view, would be the one suggested
by
the respondent’s counsel that each party should bear its own
costs.
[16] Regarding the costs of the appeal, it was submitted
on the appellants’ behalf that the court
a quo
’s
judgment was so clearly wrong that the respondent should never have
opposed the appeal. It was accordingly argued that as
the respondent
had acted unreasonably and irresponsibly by opposing the appeal,
particularly considering its special status, it should
bear the costs
of the appeal on the scale as between attorney and own client scale,
alternatively on the attorney and client scale.
Mindful of this
court’s general disinclination to use hindsight in assessing a
party’s conduct in considering punitive
costs awards (
AA
Alloy Foundry (Pty) Ltd v Titaco Projects (Pty) Ltd
2000 (1) SA
639
(SCA) para 20) I am, however, inclined to agree with the
appellants’ sentiment.
[17] In an unreported judgment of this court,
Road
Accident Fund v Roman Klisiewicz,
Case No. 192/2001, handed down
on 29 May 2002, Howie JA set out the extent of the respondent’s
responsibilities saying at para
42:
‘The [Road Accident Fund] exists to administer, in the
interests of road accident victims, the funds it collects from the
public.
It has the duty to effect that administration with integrity
and efficiency. This entails the thorough investigation of claims
and,
where litigation is responsibly contestable, the adoption of
reasonable and timeous steps in advancing its defence. These are not
exacting requirements. They must be observed.’
[18] I find it almost impossible to believe that the
respondent would ever have been in doubt that the court
a quo
’s
findings regarding the bakkie’s involvement in the collision
were wrong. By persisting with its opposition of the appeal
on the
basis of a judgment in which the court
a quo
had so palpably
misconstrued the issues, the respondent, which relies on the public
purse for its existence and does not, therefore,
have unlimited
financial resources, conducted itself in a manner which cannot be
reconciled with the requirements set out in the
Klisiewicz
case.
This is particularly so having regard to the fact that the intention
of the Act, in terms of which the respondent functions,
is to give
the greatest possible protection to victims of negligent driving of
motor vehicles. The fact that there may have been
merit in opposing
the appeal in respect of the taxi cannot detract from its
ill-considered decision. In the circumstances, a costs
order on the
attorney and client scale against the respondent is, in my view,
justified. I, however, take no issue with its defence
at trial stage
and shall not accede to the appellants’ request in this regard.
[19] For these reasons the appeal succeeds with costs on
the attorney and client scale. Each party shall pay its own costs for
the
condonation application. The order of the court
a quo
is
set aside and replaced with the following:
‘
1. The collision was caused by the joint
negligence of the drivers of the Audi sedan and Toyota Hilux bakkie
with registration letters
and numbers DCM025N and BCT657N,
respectively.
2. The defendant is ordered to pay the costs of the
action.’
__________________
MML MAYA
JUDGE OF APPEAL
CONCUR:
BRAND
JA
COMBRINCK
AJA