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South Africa: Eastern Cape High Court, Mthatha
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[2013] ZAECMHC 25
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Mayeki v Road Accident Fund (139/09) [2013] ZAECMHC 25 (26 September 2013)
IN THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE HIGH COURT: MTHATHA
CASE NO: 139/09
Heard on: 18/09/13
Delivered on: 26/09/13
NOT REPORTABLE
In the matter between:
THENJISWA FLORA MAYEKI
.................................................................
Plaintiff
and
ROAD ACCIDENT FUND
......................................................................
Defendant
_____________________________________________________________
JUDGMENT
____________________________________________________________
NHLANGULELA J:
[1] The plaintiff, acting in a representative capacity
for three minor children of one Mr Xolela Mayeki, instituted an
action against
the defendant in terms of
s 17
of the
Road Accident
Fund Act 56 of 1996
claiming payment of R236 492,00 as damages
arising out of the death of Mr Mayeki in an accident which took place
on 04 December
2007 at N2 National Road, Engcobo.
[2] It is alleged in the plaintiff’s particulars
of claim, attached to the summons, that on 04 December 2007 a motor
vehicle
of one Mr Xolela Mayeki, plaintiff’s son, described as
a Toyota Venture and registered as CCH 687 EC, collided with a motor
vehicle described only as a Toyota Condor due to negligent driving of
the driver of the Condor who was insured at the time by the
defendant. In that collision Mr Mayeki sustained bodily injuries
which resulted in his death. In paragraph 9 of the particulars
of
claim the following is alleged:
“9. The said collision was caused by the sole negligent of the
aforementioned Condor
(sic)
.
9.1 He failed to keep a proper look-out
9.2 He drove the said vehicle at a speed that was excessive in the
circumstances, particularly immediately prior to the collision.
9.3 He failed to apply the brakes of the motor vehicle timeously, or
at all when he should have
(sic).
9.4 He drove the motor vehicle without due care and consideration for
other road users, particularly the plaintiff.
9.5 He failed to exercise proper control over the vehicle in
circumstances that he could and should have done so, and/or
9.6 He failed to avoid the collision when by exercise of reasonable
care in circumstances that he could and should have done so.”
[3] The defendant denies the claim and puts the
plaintiff to the proof of her allegations.
[4] In the trial that ensued only one witness was called
to testify on behalf of the plaintiff. That witness is Nonkosivumile
Maqungo,
a woman. She told the Court that on 04 December 2007 she
boarded a Toyota Venture, which came from Cofimvaba direction, driven
by the deceased. She was a passenger for reward together with few
others. She occupied a front seat next to the deceased. The Venture
was driven towards Engcobo town, her intended destination. All the
other passengers disembarked at various points before the Venture
reached eBhodini Administrative Area where the accident occurred. She
was left in the venture with the deceased when she noticed
that the
driver of the Condor following from behind was making attempts to
overtake the Venture. During that process the Venture
suddenly veered
out of the road and she lost consciousness. She learnt later on that
the Venture capsized on the side of the road.
[5] It is alleged in paragraph 7 of the particulars of
claim that the Venture capsized and overturned whilst the deceased
was trying
to avoid a collision with the Condor. It is further
alleged in paragraph 10 that as a direct consequence of the said
collision
the deceased sustained multiple bodily injuries from which
he died.
[6] The evidence of Ms Maqungo does not support the
allegations in the particulars of claim that the accident took place
due to
negligent driving of the insured driver which led to the
collision between the Venture and Condor. What she told the Court is
that
the deceased drove out of the road after the driver of the
Condor had made several attempts to overtake.
[7] It was contended on behalf of the plaintiff that the
deceased was forced to drive out of the road by the negligent driving
on
the part of the insured driver. This submission is out of touch
with the evidence because an attempt to overtake without more being
said cannot, directly or inferentially, amount to negligent driving.
Counsel for the plaintiff conceded the fact that the particulars
of
claim speak of a collision and the oral evidence of the witness does
not.
[8] In terms of
s 17(1)(b)
read with
s 26
of the
Road
Accident Fund Act 56 of 1996
the Fund is obliged to compensate any
person for loss of support as a result of injury or death of a person
caused by or arising
from driving if the injury or death is due to
the negligence of the insured driver with regard to the manner in
which he/she drove
the insured vehicle. In this case the
onus
to prove negligence lay on the plaintiff. She was not able to
discharge that
onus.
[9] In the circumstances this Court cannot come to the
assistance of the plaintiff, much as I appreciate the extent of
prejudice
the children of the deceased stand to suffer if the claim
is unsuccessful. In this case I can do no better than to dismiss the
plaintiff’s claim with costs.
[10] In the result the following order shall issue:
“
The plaintiff’s claim is dismissed with costs.”
________________________________
Z.M. NHLANGULELA
JUDGE OF THE HIGH COURT
Counsel for the plaintiff : Adv Poswa
Instructed by Mancotywa Ndzabela Inc
c/o Jolwana Mgidlana Inc
MTHATHA.
Attorney for the defendant : Mr S. Duda
c/o Messrs Mnqandi Inc
MTHATHA.