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[2013] ZAECBHC 6
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Van Harmelen v MEC for Education, Eastern Cape (154/2010) [2013] ZAECBHC 6 (4 July 2013)
I
N
THE HIGH COURT OF SOUTH AFRICA
BHISHO, EASTERN CAPE
Case No: 154/2010
Dates heard: 7,
15, 21 May 2013
Date delivered:
4 July 2013
In the matter between:
BRYAN
L VAN HARMELEN
Plaintiff
And
MEMBER
OF THE EXCEUTIVE COUNCIL
FOR
EDUCATION, EASTERN CAPE
Defendant
JUDGMENT
GOOSEN, J.
[1]
The
plaintiff instituted action for damages for personal injuries
sustained during a motor vehicle collision which occurred on 20
February 2008. At the time of the collision the plaintiff was
employed as a teacher at Kingsridge School for Girls, a school
operated
by the Department of Education, Eastern Cape. Plaintiff’s
employer was the School Governing Body and she was, it was common
cause, not an employee of the Department. The plaintiff was a
passenger in a vehicle owned by and driven by an employee of the
defendant.
[2]
The
defendant,
inter alia
,
filed a special plea relying upon the terms of
section 21
of the
Road
Accident Fund Act, 1996
, prior to its amendment, in which it is
pleaded that the defendant is not liable to the plaintiff and that
the plaintiff’s
claim lies against the Road Accident Fund.
[3]
At
the commencement of the trial I was informed by counsel that the
parties had agreed that the issue of the determination of the
quantum
of the plaintiff’s claim be separated and held over for later
determination. I was accordingly requested to order
that the issue of
the defendant’s liability, if any, be separately determined in
terms of
Rule 33(4)
, which I did. I was further informed that in
respect of the issue of liability the defendant conceded that the
driver of the school
mini-bus in which the plaintiff was a passenger
was negligent. It was however not admitted that the driver of the
school mini-bus
was
solely
negligent. In this regard, so I was informed, it
was the defendant’s case that the driver of the other vehicle
involved in
the collision, Mr Njili who was the driver of a tour bus
that collided with the school mini-bus, was also negligent in some
respects.
[4]
The
parties were therefore in agreement that in respect of liability this
court was required to determine the disputed issue of
negligence of
the driver of the tour bus and, based thereupon, the special plea
tendered by the defendant.
[5]
The
circumstances in which the collision occurred were common cause
between the parties. They are these: On 20 February 2008 a school
mini-bus owned by the Department was being driven by Mrs Mdyesha, a
school teacher employed by the Department at Kingsridge School.
The
vehicle was being driven by her in the course and scope of her
employment by the Department transporting school children to
a school
chess competition. The plaintiff was a passenger seated in the front
passenger seat. The school mini-bus was travelling
in a westerly
direction on a road between East London and Mdantsane. At a certain
point along the road the school mini-bus drew
up and came to a halt
in the emergency stopping lane demarcated by a yellow barrier line on
the road. The collision occurred when
the driver of the school
mini-bus executed a U-turn on the road surface turning into the path
of travel of a tour bus travelling
in a westerly direction between
East London and Mdantsane. The bus collided with the mini-bus between
the mini-bus driver’s
door and the rear door of the mini-bus.
The mini-bus was driven laterally for a short distance as the bus
swerved across the lane
of travel of oncoming vehicles. The bus
struck an embankment on the right hand side of the road and toppled
onto its left hand
side coming to a rest in a position on the right
hand side of the road and partially off the road surface. The
mini-bus was pushed
to the right hand side of the road and came to a
rest a short distance to the front of the bus on the same side of the
road as
the bus. It too was slightly off the road surface although it
remained on its wheels.
[6]
The
driver of the mini-bus was fatally injured in the collision. The
plaintiff was severely injured and apparently only regained
consciousness in the Aurora Hospital in Port Elizabeth a month and a
half after the collision. There were ten school girls in the
school
mini-bus. I am not aware whether any of them were injured, either
fatally or not.
[7]
The
plaintiff testified. As a result of the injuries sustained by her she
has no recollection at all as to the events of 20 February
2008. Her
evidence served to establish that she was employed by the School
Governing Body as a teacher at the school and that she
was a
passenger in the vehicle which was being driven by the deceased
driver.
[8]
The
plaintiff also led the evidence of the driver of the tour bus, Mr
Njili. He testified that on the day in question, at approximately
15h00 he was the driver of the tour bus travelling in the direction
of Mdantsane. He was on his way home after completing his shift.
He
stopped the bus at traffic light controlled intersection. After the
light turned green he pulled away. When he came to
a curve in
the road a short distance beyond the traffic lights he was in fourth
gear and was, according to his estimate, travelling
at between 40 and
45km/h. As he rounded the bend he saw a white school mini-bus which
had come to a halt in the emergency lane
in front of him. When he was
approximately five metres from the rear of the mini-bus it suddenly
and without signalling executed
a U-turn across the road immediately
in front of him. He applied brakes and the left front corner of the
bus struck the mini-bus
in the vicinity of the driver’s door.
He explained that the mini-bus was pushed in front of the bus; that
the bus swayed
because of his braking and swerved across the road to
the opposite side of the road. The right hand side of the bus struck
an embankment
at which point the bus toppled onto its left hand side
and then came to a rest on its side on the right hand side of the
road.
The mini-bus was pushed laterally, it remained on its wheels
and when the bus struck the embankment the mini bus continued moving
along the road until it too came to a rest slightly off the road a
short distance in front of the bus.
[9]
The
evidence of Njili was not contested by the defendant who presented no
evidence at trial. Njili was however cross-examined with
a view to
establish that he too was in some respects negligent.
[10]
On the uncontested evidence of Njili he was
confronted with a situation which was both unexpected and sudden and,
having regard
to his estimate of the distance between his vehicle and
the mini-bus when it executed the turn into his path of travel, there
was
nothing that reasonably could have been done by him to avoid the
collision.
[11]
If it is accepted, as it must be, that the
mini-bus was some five metres away from his vehicle when it commenced
the turn then,
even travelling at 40km/h, he would not have had
sufficient time nor space to bring the bus to a halt before colliding
with the
mini-bus. Defendant’s counsel sought to suggest that
Njili could have swerved to the left and, given the width of the road
surface, would have been able to avoid the collision. Njili’s
trenchant and eminently reasonable response, namely that if
he had
done so the bus would have collided with the mini bus directly into
the side with the probable consequence that the children
in the bus
would have been killed, put the end to that line of attack. It was
also suggested that the photographs of the scene
and the position of
the bus relative to the point of impact indicated by Njili suggested
that Njili was driving the bus at a speed
excessive in the
circumstances. Again, Njili’s unequivocal answer was telling.
He stated that he was then only in fourth
gear having pulled away
from the traffic light and that he was not travelling at an excessive
speed. The speed limit on that stretch
of road was, he stated, 70km/h
and his evidence was that he was well within that. He also explained
the mechanics of the collision
in detail and that explanation is
consistent with the scene as depicted in the photographs, including
the position of the brake
marks from what appears to have been the
point of impact.
[12]
Apart from these tentatively put bases of alleged
negligence on the part of Njili nothing further was put to him in
cross-examination.
[13]
Njili was an impressive witness who testified with
candour. He made a very favourable impression upon me. His evidence
was consistent,
coherent and clear throughout. I have no hesitation
in finding him to be a credible witness who delivered reliable
evidence as
to the tragic events of that day.
[14]
Based on the accepted evidence I am unable to come
to any other conclusion than that the negligence of the deceased
driver of the
school mini-bus was solely responsible for the
collision.
[15]
Having come to that conclusion it is now necessary
to consider the defendant’s special plea.
[16]
As indicated the defendant relies upon section 21
of the RAF Act prior to its amendment by the
Road Accident Fund
Amendment Act, 2005
which amendment came into effect on 21 July 2008.
Based on the wording of the old
s 21
the defendant contends that the
plaintiff’s claim lies only against the Road Accident Fund.
[17]
Section 21
as it read at the time when the
collision in this matter occurred provided that:
‘
When
a third party is entitled under
section 17
to claim from the Fund or
an agent any compensation in respect of any loss or damage resulting
from any bodily injury to or death
of any person caused by or arising
from the driving of a motor vehicle by the owner thereof or by any
other person with the consent
of the owner, that third party may not
claim compensation in respect of that loss or damage from the owner
or from the person who
so drove the vehicle, or if that person drove
the vehicle as an employee in the performance of his or her duties,
from his or her
employer,
unless
the Fund or such agent is unable to pay the compensation
.
[18]
It is common cause that the plaintiff’s
claim is one which falls within the ambit of section 17 of the RAF
Act and that, pursuant
to the provisions of section 18 of the Act (as
the section read prior to its amendment by the Amendment Act) that
the liability
of the Fund to compensate the plaintiff is limited to
an amount of R25 000.00. These are the circumstances which
pertain in
this matter since the collision was caused by the sole
negligence of the employee who was driving the vehicle in which the
plaintiff
passenger was injured.
[19]
In
Law Society of
South Africa and Others v Minister for Transport and another
2011 (1) SA 400
(CC), the Constitutional Court (at
par. 26) said the following regarding s 21 prior to its amendment:
Before the amendment s 21
provided clearly that a victim or third party may not claim
compensation from the owner or driver of the
vehicle or from the
employer of the driver when he or she is entitled to claim from the
Fund or an agent. To that extent only did
a wrongdoer enjoy immunity.
This meant that. Where no claim lay against the Fund or an agent, a
third party retained the common-law
residual claim to recover
losses
not recompensable under the RAF Act from a wrongdoer
.
[20]
It was argued in this matter that the limitation
of liability of the wrongdoer effected by s 21 of the RAF Act was
confined to the
claim signified by the term “that loss”
where it appears in s 21. Section 21 does not, it was submitted,
bring about
a limitation of a person’s common law right to
claim damages against a wrongdoer. All that s 21 achieves is to
substitute
the RAF in the place of the wrongdoer. Where the RAF Act
imposes a limit on the quantum of a person’s claim the RAF’s
liability is thereby limited, such limit does not divest the person
of the right to claim against the wrongdoer for the loss
suffered in excess of the statutory limit imposed by section 18 as
read with section 21. I agree. The defendant argued
that
it must be established that the Fund is “unable to pay”
compensation and that in this instance the plaintiff failed
to do so
since she did not institute action against the Fund.
[21]
In my view the phrase “unable to pay”
plainly refers to a statutory inability or limitation rather than a
financial
“inability”. The judgment in the
Law
Society
matter clearly indicates that a
third party retains a residual common-law claim in respect of such
loss which is “not recompensable”,
i.e. such losses which
cannot be claimed from the Fund by reason of the limitations imposed
upon the Fund’s liability (see
Dodd
v Multilateral Motor Vehicle Accident Fund
[1996] ZASCA 132
;
1997
(2) SA 763
(A)).
[22]
The defendant however had another string to its
bow. It was argued that the limitations imposed by section 18 of the
RAF Act had
been declared to be unconstitutional and, accordingly, as
matters now stand the plaintiff is entitled to claim full
compensation
from the RAF Fund. On this basis the special plea must
be upheld.
[23]
The defendant did not, in its special plea, plead
reliance upon the declaration of constitutional invalidity and no
amendment was
sought in order to raise that issue on the pleadings.
Even if it is accepted that the question raised is one of law upon
which
the defendant may rely without specifically pleading it, the
reliance is misplaced.
[24]
In
Mvumu and Others
v Minister for Transport and Another
2011(2)
SA 473 (CC) sections 18(1)(a)(i), 18(1)(b) and 18(2) as they read
before the changes introduced by the Amendment Act were
declared to
be inconsistent with the Constitution and invalid. The court remarked
that although the other portions of section 18(1)
are not covered by
the declaration those portions suffer the same defects as the
impugned provisions. In its order the court suspended
the declaration
of invalidity for a period of 18 months from the date of the order
(which was 17 February 2011) in order to enable
Parliament to cure
the defect. It was provided that in the event that the declaration of
invalidity came into effect without Parliament
having cured the
defect the order of invalidity would not apply to those claims in
which a final settlement had been reached or
in which a final
judgment has been granted before the date of the order. The
declaration would accordingly operate retrospectively
to the date of
the commencement of the Act.
[25]
As at the date of determination of this matter the
declaration of invalidity had not yet come into operation.
Accordingly the matter
falls to be determined on the basis of the
fact that the provisions of section 18 prior to its amendment
remained valid. It follows
therefore that for the purposes of
determining the special plea it must be accepted that the plaintiff’s
claim for compensation
against the RAF Fund is limited and that she
is vested with a residual claim against the defendant for such losses
as are not recompensable
by the Fund.
[26]
In the circumstances I come to the conclusion,
having found that the driver of the school mini-bus was solely
negligent, that the
plaintiff, upon abandonment of the sum of
R25 000.00 is entitled to claim such damages as she may prove in
excess of the sum
of R25 000.00 from the defendant. In the
circumstances, and based upon the defendant’s admission
regarding the negligence
of the driver of the school mini-bus I
accordingly find that the plaintiff has established that the
defendant is liable to her
in respect of such damages as she may
prove as exceed the sum of R25 000.00.
[27]
I accordingly make the following order:
27.1.
The
Defendant’s Special Plea is dismissed.
27.2.
It
is declared that the defendant is liable to the plaintiff for such
losses in excess of the sum of R25 000.00 as the plaintiff
may
prove at trial.
27.3.
The
Defendant shall pay the Plaintiff’s party and party costs in
respect of the determination of the issue of liability.
G. GOOSEN
JUDGE OF THE HIGH
COURT
Appearances:
For
the Plaintiff
Mr
Khan
Instructed
by:
Smith
Tabata Incorporated
For
the Defendant
Mr
Bloem SC assisted by Mr Nyangiwe
Instructed
by:
State
Attorney