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[2012] ZAGPPHC 173
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Mbunyuza v Road Accident Fund (25659/2011) [2012] ZAGPPHC 173 (17 August 2012)
NOT
REPORTABLE
IN
THE HIGH COURTOF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT)
Case
number: 25659/2011
Date:
17 August 2012
In
the matter between:
SIPHO
MBUNYUZA
…..................................................................................
Plaintiff
And
ROAD
ACCIDENT
FUND
............................................................................
Defendant
JUDGMENT
PRETORIUS
J.
[1]
In this action the plaintiff is claiming damages from the Road
Accident Fund as result of injuries sustained during a collision
that
took place on 25 April 2009.
[2]
At the outset the court ordered that the question of merits and
quantum must be separated in terms of the Rule 33 (4).
[3]
The plaintiff called three witnesses whose evidence was that on 25
April 2009 the plaintiff was travelling on the tar road from
Nqamakwe
in the direction of Butterworth. He was the driver of his vehicle.
The plaintiff intended turning right at the T-junction
in the
direction of Nqileni village. He stopped after indicating that he
intended turning right. He was waiting for oncoming traffic
to pass
to enable him to turn right. There was a stationary vehicle at the
T-junction waiting to turn onto the main road which
was driven by Mr
Lulama. He saw the collision occurring. His evidence was that the
plaintiff had indicated his intention of turning
right and was
stationary waiting to turn. He saw a vehicle approaching from behind
the plaintiff's vehicle, travelling in excess
of the 80km per hour
speed limit. He heard the screech of tyres and this vehicle collided
with the rear corner on the left hand
side of the plaintiff's
vehicle, which caused the plaintiff's vehicle to slide into the
incoming vehicle on the opposite side of
the road and ultimately to
collide with the witness's vehicle.
[4]
The witness was adamant that the plaintiff was in no way negligent
and to blame for the collision. Although counsel for the
defence
intimated that the witness was lying as he had known the plaintiff
prior to the collision, the court can find no evidence
of any
dishonesty on the witness' part. He was an honest witness who did not
embellish his testimony, but only told the court what
he had seen.
His evidence was corroborated in all respects by Mr L Nxusani who was
the driver of the oncoming car from Butterworth
on the tar road. His
car was also involved in the collision. He corroborated the evidence
of Mr Lulama regarding the screeching
of the tyres as he alighted
from his car as he saw skid marks which had been caused by the
insured driver's vehicle.
[5]
The plaintiff testified and confirmed the evidence of the previous
two witnesses. He could not recall what had happened after
the
vehicle collided with his vehicle as he was unconscious.
[6]
The defence had no witnesses. Counsel for the defence referred the
court to R v Miller
1957 (3) SA 44
(TPD). This was a criminal case
where the accused had been charged with the statutory offence of
driving a car recklessly and negligently
on a public road. The facts
differ from the present circumstances. The plaintiff had looked in
his left and right hand mirrors
as well as the rearview mirror before
coming to a standstill to turn. There were no cars behind him at that
stage. This evidence
accords with the two witnesses' evidence that
the vehicle which collided with the plaintiff's vehicle was
travelling at an excessive
speed coming round the curve in the road.
[7]
The court has only the plaintiff's version of how the collision had
occurred. I accept this version as all three witnesses impressed
the
court as honest witnesses who testified as to what they had seen. I
cannot find any negligence on the part of the plaintiff.
The
plaintiff has proved the case on a balance of probabilities. I find
that the defendant is liable for all the damages the plaintiff
has
suffered and can prove.
[8]
Counsel for the plaintiff requested the court to grant punitive costs
against the defendant. The reason being that the defendant
had
pleaded that the plaintiff had been negligent, but no evidence
whatsoever was lead. It is clear that the defendant had no defence;
or if the defendant had a defence, nothing was done to put such a
defence before court since the summons was served on 10 May 2011.
The
defendant thus had one year and three months to investigate the
merits and to deal with the merits. The defendant did not tender
any
version during the trial. There was thus only the plaintiffs
uncontroverted evidence.
[9]
In these circumstances I agree with the plaintiff that there is no
reason for plaintiff to be out of pocket due to defendant's
tardiness
in dealing with the merits of the matter.
[10]
The order:
1.
The defendant is liable for 100% of the proven damages of plaintiff;
2.
The defendant to pay the plaintiff's costs on an attorney and
client
scale;
3.
The determination of quantum is postponed sine die.
Judge
Pretorius
Case
number : 25659/2011
Heard
on : 14 August 2012
For
the Applicant / Plaintiff : Adv. Kunju
Instructed by : Chaza
Sotshintshi
For
the Defendant: Adv. Kokela
Instructed
by : AP Ledwaba INC
Date
of Judgment : 17 August 2012