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[2012] ZAFSHC 143
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Lehlehla v Road Accident Fund (6114/2010) [2012] ZAFSHC 143 (10 August 2012)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No.: 6114/2010
In the matter between:
TLHALEFO VINCENT
LEHLEHLA
…..............................................
Plaintiff
and
ROAD ACCIDENT FUND
….........................................................
Defendant
_______________________________________________________
HEARD ON:
31 JULY 2012
_______________________________________________________
JUDGMENT:
LEKALE, J
_______________________________________________________
DELIVERED ON:
10 AUGUST 2012
_______________________________________________________
[1] The plaintiff issued
summons against the defendant following a motor vehicle accident
which occurred along the road between
Welkom and Theunissen in the
Free State Province on 22 July 2008.
[2] At the commencement
of the trial, the plaintiff secured an order separating merits from
quantum in terms of Rule 33(4) of Uniform
Rules of Court. This
judgment, therefore, is limited to the determination of defendant’s
liability to compensate the plaintiff.
It is common cause between the
parties that the plaintiff complied with the provisions of section 24
of the Road Accident Fund,
Act No 56 of 1996 (the Act). The sole
issue for determination is, therefore, whether or not the driver of
the truck insured by
the defendant was negligent as to the cause of
the accident.
[3] Two witnesses
testified in support of the plaintiff’s case while the
defendant closed its case without tendering any evidence.
[4] The facts are, in the
main, a matter of common cause between the parties insofar as the
defendant did not dispute the same in
evidence.
[5] The road in question
is a straight, tarred, dual road with a fair amount of inclines. The
speed limit is 100 km/h and there
are no potholes on the road.
[6]
Mr Aaron Ndlovu
(Ndlovu)
testified that on the morning in question he boarded the
ill-fated bus, in which the plaintiff was also a commuter, at around
4h20
on his way to work. It was dark and the bus was filled to
capacity. He occupied the front seat in the bus and he could see the
road ahead. As the bus was travelling in the direction of Theunissen
he saw the lights of another bus coming in the opposite direction.
The driver of the doomed bus, thereupon, dipped the lights of the bus
and continued driving at about 90 km/h. He only became aware
of the
insured truck when the bus was about 20 metres from it. The said
truck was stationary in the road and obstructed the lane
in which the
bus was travelling with its right wheels occupying the better part of
the lane in question. A danger triangle was
about two metres from the
truck. The truck loomed up suddenly and the bus driver tried to
overtake it. The bus which was coming
in the opposite direction was,
however, already in the process of passing the truck. The driver of
the bus, thereupon, swerved
sharply to the right and ploughed into
the field. The bus eventually hit a rock and overturned. He and other
passengers got out
of the bus and approached the truck. They found
the driver of the truck asleep and they woke him up. They demanded to
know from
him whether or not he was aware of what he had caused by
not putting on the lights. The truck driver, thereupon, switched on
the
emergency lights of the truck. The bus driver was not negligent
and could not have avoided the accident in any manner whatsoever,
because everything happened suddenly without warning.
[7] The plaintiff could
not take the matter any further save for corroborating the evidence
of Ndlovu with regard to the nature
of the road in question and the
fact that it was still dark when the accident occurred. He was at the
back of the bus and could
not and did not see anything about the
accident.
[8] Mr Pohl, for the
plaintiff, submits that the plaintiff only has to prove the
proverbial one percent negligence on the part of
the driver of the
insured truck in order to saddle the defendant with liability for
100% of his proved or agreed damages. He contends,
further, that the
truck driver failed to do the simplest thing in circumstances where
his truck was stationary in order to warn
oncoming motorists.
According to him, all that the truck driver had to do, was to put on
the emergency lights so as to warn oncoming
traffic. The limitation
clause is not applicable in the present matter, because the plaintiff
is relying on the negligence of the
truck driver as opposed to the
negligence of the driver of the bus in which he was a passenger.
[9] Mr Zondi, on behalf
of the defendant, submits that the Act as it stood before its
amendment with effect from 1 August 2008 was
applicable when the
accident occurred. He maintains that section 18 of the Act, as it
then stood, limits the plaintiff’s
claim to R25 000,00 because
he failed to establish at least one percent negligence on the part of
the bus driver. In his view the
Constitutional Court’s decision
in
MVUMVU AND OTHERS v MINISTER FOR TRANSPORT AND ANOTHER
2011 (2) SA 473
(CC) is applicable.
[10] In law a motorist is
required to take reasonable precautions against harm being caused to
another if the likelihood of such
harm would have been foreseen by
the reasonable, prudent driver. (See
MANDERSON v CENTURY
INSURANCE CO LTD
1951 (1) SA 533
(A) at 544 A.)
[11] The question for
determination of liability
in casu
is whether the
diligens
paterfamilias
, in the position of the driver of the truck,
would have regarded the possibility of a car coming from behind not
being able to
pass the truck safely and on short notice without
colliding with oncoming traffic as sufficiently real and immediate to
require
him to take preventive precautions. (Compare
A A MUTUAL
INSURANCE ASSOCIATION LTD v MANJANI
1982 (1) SA 790
(A) at
796 F.)
[12] In the event of such
a possibility having been sufficiently real for the reasonable man,
in the position of the truck driver,
then there was a duty on the
said driver to take reasonable steps to guard against or avoid such
an eventuality.
[13] Failure on the part
of a motorist, whose conduct is in question, to take such necessary
and reasonable precautions to prevent
the harm from eventuating
results in such a driver being saddled with liability
vis-á-vis
the victim. (See
KRUGER v COETZEE
1966 (2) SA 428
(A)
at 430 E – F.)
[14] In the present
matter it is clear, from available evidence, that a reasonable man,
in the position of the truck driver, would
have realised that:
14.1 the truck was
partially obstructing the road for traffic flowing from behind and,
thereby, posing a danger thereto;
14.2 it was dark and, for
a motorist approaching the truck from behind to be able to see the
truck timeously, it was necessary to
put on the emergency lights of
the truck and/or its head lights as well as to place a reflector
triangle as far enough from the
truck as to give such a motorist
sufficient warning before he could reach the truck;
14.3 traffic coming from
behind could collide either with the truck or oncoming traffic unless
it was sufficiently and timeously
warned about the danger posed by
the truck.
[15] As correctly
submitted by Mr Pohl, the accident herein could have been easily
avoided had the driver of the insured truck taken
steps to warn other
road users about the danger posed to them. (Compare
AA
ONDERLINGE ASSURANSIE ASSOSIASIE VAN SA v VAN RENSBURG EN 'N ANDER
1978 (4) SA 771
(A) at 779 D – E.)
[16] It is correct, as
retorted by Mr Pohl, that the decision in
MVUMVU AND OTHERS v
MINISTER FOR TRANSPORT AND ANOTHER
,
supra
, is
irrelevant to the matter on hand, because the claim is not against
the driver of the bus in which the plaintiff was a passenger.
[17] All that the
plaintiff had to establish against the driver of the insured truck,
was the proverbial one percent negligence
in order to be entitled to
100% of his damages as Mr Pohl correctly contends. In failing to take
the reasonable measures contended
for by Mr Pohl, the truck driver
was negligent as to the cause of the accident.
ORDER
[18] In the result the
following order is hereby made:
18.1 The defendant is
liable to the plaintiff for all the damages which the plaintiff may
prove with regard to the accident in question;
18.2 Defendant shall pay
the costs attendant on the adjudication of the issue involved herein.
______________
L. J. LEKALE, J
On behalf of plaintiff:
Adv L le R Pohl
Instructed by:
Honey Attorneys
Honey Chambers
Northridge Mall
Eeufees Road
BLOEMFONTEIN
On behalf of defendant:
Adv M Zondi
Instructed by:
Moroka Attorneys
78 – 80 President
Reitz Avenue
Westdene
BLOEMFONTEIN
/sp