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2012
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[2012] ZAKZDHC 31
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Motsikelane and Another v Road Accident Fund (10885/09) [2012] ZAKZDHC 31 (7 June 2012)
In
the KwaZulu-Natal High Court, Durban
Republic
of South Africa
Case
No : 10885/09
In
the matter between :
Nomvula
Maria Motsikelane
…......................................................................
First
Plaintiff
Nomvula
Maria Motsikelane
acting
on behalf of and in her capacity
as
mother and natural guardian of the minor child,
S
M M
…...................................................................................................
Second
Plaintiff
and
Road
Accident Fund
….....................................................................................
Defendant
Judgment
Lopes J
[1] The plaintiff in this matter sues
both in her personal capacity and in her capacity as the mother and
natural guardian of her
minor son S for damages allegedly sustained
when he was involved in a motor vehicle collision on the 22
nd
March 2007.
[2] It was agreed by the parties that
the only issue I was to decide at the hearing was whether S was a
passenger in the motor vehicle
bearing registration mark NJ 33226 at
the time of the collision. I accordingly made an order to that effect
in terms of Rule 33(4)
of the Uniform Rules of this Court.
[3] Five witnesses testified on behalf
of the plaintiff. The relevant parts of their evidence may be
summarised as follows :-
the plaintiff testified that on the
morning of the 22
nd
March 2007 one Mr Mavundla arrived at
her home to fetch her daughter L, who was eight years old at the
time, and S, who was four
years old. Mr Mavundla was to transport L
to her school and S to the creche he attended;
they went off in a white Isuzu bakkie
bearing registration mark NJ 33226 driven by Mr Mavundla. The
arrangement in terms of which
he transported the children to school
was that the plaintiff paid him R125 for each of her two children at
the end of each month.
The agreement had been in existence for
several months;
when Mr Mavundla returned L to her
home in the afternoon, the plaintiff noticed that his vehicle was
damaged on the right hand
side. He told her that he had had an
accident at the Senzo store. He also said that only one of the
children in his motor vehicle
had been injured. L informed the
plaintiff that the injured child was S. At that stage Mr Mavundla
drove off without speaking
to the plaintiff. She said that he
appeared to be angry;
when S returned home the plaintiff
noticed that he had a swelling on his forehead. S also complained of
a headache. At the time
when S’s father arrived home some time
later the plaintiff was searching for the clinic card because she
had been told
by nurses at the clinic that she was not to bring the
children there without their card. S’s father was of the view
that
that was irrelevant and took S off to the clinic;
the next witness for the plaintiff
was Celekhuthula Miathen Mnyandu, the father of S. Although he lived
with the plaintiff, he
was not married to her. When he arrived home
on the 22
nd
March 2007 he was told that S had been
injured in a motor vehicle accident. He immediately carried S on his
back and walked for
approximately 15 minutes to the local clinic. He
had not seen the children leave for school that day because he left
for work
earlier than they did. He knew Mr Mavundla as the person
who transported the children to school. He confirmed that when he
had
arrived home the plaintiff had been worried about not having the
necessary clinic card for S. At the clinic he was told to take
S for
further medical attention because the clinic did not have a scanner.
He did so at some later stage. He had seen that S
had a swelling on
his forehead;
Monica Nxumalo testified that on the
day in question she was emerging from the front door of her home
carrying a bucket in order
to get water. She observed Mr Mavundla’s
motor vehicle approaching from some distance, and as it arrived at
the corner
on which her house is situated, another vehicle
travelling at great speed, collided with the back of Mr Mavundla’s
motor
vehicle. When the collision took place she ran back into the
house believing that Mr Mavundla’s motor vehicle would crash
into her house. She had a small child in the house and had chosen to
run back into the house in order to protect the child. After
hearing
the crash, she emerged again from her front door and saw that Mr
Mavundla’s motor vehicle had crashed into a concrete
fence
forming part of Senzo’s store, which adjoined her property.
The other motor vehicle had crashed into an electric
pole;
at that stage there were children in
both the motor vehicles who were crying aloud. She also cried and
was in a state of shock.
Neighbours arrived and in due course the
South African Police were phoned and arrived at the scene. At that
stage children were
crying and milling around in her yard and she
was unable to tell which children had come from which motor vehicle.
Some people
who arrived at the scene demanded that the children be
taken to the clinic to be examined. People assisted Mr Mavundla in
extricating
his motor vehicle from the concrete wall and he drove
off. At that stage the police had already left;
in cross-examination Mrs Nxumalo said
that she was unsure of the time when the collision occurred save
that she believed it to
be between 7 and 8 am. When she emerged from
the house, Mr Mavundla was already outside his motor vehicle. There
were children
crying in both motor vehicles. She knew Mr Mavundla
and the fact that he carried children to and from school;
in response to a question from the
court, Mrs Nxumalo said that she did not make an assumption that
there were children in Mr
Mavundla’s bakkie, but that she had
seen them with her own eyes. She had also heard them crying inside
the motor vehicle.
She said that she had seen ‘their little
heads’ in the back of Mr Mavundla’s bakkie;
L Ayanda Motsikelane then testified.
She told the court that she was in Grade 8, the first standard in
high school. In response
to questions asked of her it was clear that
she understood the difference between telling the truth and lying,
and the consequences
of lying. She said that five years ago she and
her brother had gone to school in Mavundla’s car and that the
vehicle had
been involved in a collision at Senzo’s store. She
told the court that Mr Mavundla’s motor vehicle had collided
into
the concrete wall at Senzo’s store, and that her brother
S had been hanging on the door of the motor vehicle after the
collision. It was clear from her evidence that she was referring to
the rear door of the canopy which covered the back of the bakkie.
A
lady who was travelling with them and who sat in the rear of the
vehicle to look after them, told her to cover S with the blanket
and
get out of the motor vehicle. They were then told to walk to school
with the lady, which they did;
L said that she was not injured but
that her brother who had been sitting on the bench in the back of
the bakkie next to her and
next to the door, had been crying after
the collision. She said that after the accident her brother appeared
to be hurt and had
had a swelling on his forehead;
in cross-examination L confirmed that
the accident had happened in the morning on the way to school and
that Mr Mavundla’s
bakkie was white in colour. She confirmed
that they had been asked to walk to school after the accident and
that S had walked
with them. In response to the suggestion put to
her that Mr Mavundla would say that there were no children in his
motor vehicle
at the time of the accident, she insisted that there
were. They had walked to school with the woman she described as
‘aunty’
and had reached her school first. Thereafter S
had gone on with aunty to the creche.
[4] That was the case for the
plaintiff. The only witness who testified for the defendant was Pamba
Israel Mavundla. His evidence
may be summarised as follows :-
he lived in Inanda Township and was
unemployed during 2007. He was in receipt of a government pension
and used his bakkie to make
money. He did so by hiring himself out
to transport children and staff to and from local schools. His
bakkie was a white Isuzu
bearing registration mark NJ 33226;
Mr Mavundla stated that at
approximately 8 o’clock on the morning of the 22
nd
March 2007 he had been the driver of his motor vehicle when it had
been involved in a collision near Senzo’s shop. He stated,
however, that he had just dropped the children off and was going to
fetch someone else when the accident occurred. He said that
he was
alone in his motor vehicle at the time of the collision, but that
there were children in the other motor vehicle and they
had been
injured. He had reported the accident to members of the South
African Police who attended on the scene of the collision;
Mr Mavundla denied that he had seen
the plaintiff when he returned the children to her home that
afternoon. He said that she had
not yet returned home when he did
so;
Mr Mavundla told the court that his
arrangement with the plaintiff was that he would fetch her children
from her home and convey
them to the school and creche, and return
them in the afternoon. At the end of the month she would pay him.
Significantly, when
asked about how much he was paid, he said he
only asked for enough to pay for his petrol for the month,
approximately R100. When
pressed that the plaintiff had said that he
was paid R125 per month per child, Mr Mavundla said that he could
not remember because
the matter was very old;
Mr Mavundla confirmed that he
conveyed the children in the back of his bakkie and that they sat on
fixed benches which he had
built into the back of the bakkie. He
confirmed that he did not have a taxi licence or a public carrier
permit to transport people.
He did however say that he had recently
acquired a public carrier’s permit. In response to the
question why he had conveyed
the children when he had no licence to
do so, he said that he had not done it continuously, and had only
done it on special occasions.
In this regard he made mention of the
fact that there had been transport problems in the area and that
that was why he had conveyed
the children. In response to questions
that he was illegally transporting the children he reiterated that
he had only done it
on a temporary basis. He eventually conceded
that what he was doing was illegal. After the collision he had
ceased to carry children
to and from school until he had acquired a
kombi and a public carrier permit;
Mr Mavundla was shown a copy of the
accident report form completed after the accident, apparently at the
local police station.
He testified that he had marked on the front
page of that document that he was not carrying passengers at the
time of the collision.
The other driver had also recorded that he
was not carrying passengers. Notwithstanding the mark he had made on
the document,
he said that he had told the South African Police
members that he had been carrying passengers for reward. He said
that when
he had made the cross on the document he had neglected to
observe where he had put it;
it was also put to Mr Mavundla that
the time of the accident was recorded on the face of the accident
report form as being at
7 am. It was put to him that his evidence
that he had fetched the children between 7.15 and 7.30 am could not
be correct if the
accident happened at 7 am. His response was that
he had neglected to take note of the time;
Mr Mavundla confirmed in
cross-examination that his insurance claim for the damage sustained
to his vehicle during the collision
had been rejected by the
insurance company because his motor vehicle was one which was not
meant to convey passengers. In response
to the enquiry whether he
had told the insurance company that he was not carrying passengers,
as he now stated the case to be
in court, he said that they had
already received the accident report form from the plaintiff. He
denied the evidence of Mrs Nxumalo
that she had seen children in his
motor vehicle. He said that it was obvious that the other motor
vehicle had been transporting
children illegally. He also disputed
the evidence of L saying that she was lying and had she been in the
car she would have been
taken away by members of the South African
Police.
[5] That was the case for the
defendant.
[6] In assessing the evidence of the
various witnesses, I have no reason to reject the evidence of the
plaintiff. The only area
in which her evidence conflicts with that of
Mr Mavundla was whether she was present when he returned with the
children to her
home on the day in question. She appeared to be an
honest witness, and her evidence was to some extent confirmed by S’s
father.
[7] The most telling evidence in
favour of the plaintiff was that given by L. In assessing her
evidence I have done so with the
necessary caution because of her
age, both at the time she testified, and at the time of the
collision. She gave her evidence in
a clear and forthright manner,
and readily made concessions where she could not remember aspects of
the collision. I have no hesitation
in accepting her evidence that S
was with her in the motor vehicle of Mr Mavundla at the time of the
collision.
[8] The evidence of L was corroborated
by Mrs Nxumalo. She was a somewhat excitable witness who was clearly
affected by what happened.
I accept that when Mrs Nxumalo made her
observations about the children being in both motor vehicles and
crying, she was herself
in a state of shock and clearly upset by the
circumstances of the collision. She stated that she too, had been
crying. In my view
that does not detract from her evidence to the
extent that I should disbelieve her statement that she had seen
‘little heads’
in the back of Mr Mavundla’s motor
vehicle. She was very well acquainted with Mr Mavundla and was an
independent witness
to the circumstances of the collision and the
existence of the children in Mr Mavundla’s motor vehicle.
[9] Mr Mavundla, on the other hand,
was not a good witness. He was clearly acting illegally in
transporting the children and was
initially reluctant to concede this
in his evidence. He only did so when it became clear that there was
no other avenue open to
him. He was evasive in answering the
questions, examples of which are :-
(a) that he tried initially to insist
that he had only carried the children on a temporary basis and on
special occasions, and he
said this whilst avoiding making the
concession that his conduct had been illegal;
(b) his explanation as to the
incorrect recording on the accident report form of the time of the
accident and the fact that he had
carried no passengers;
(c) his unwillingness to accept the
version of the agreement with the plaintiff regarding the amount he
was paid to transport the
children. He clearly sought to minimise his
unlawful conduct by saying he was only paid enough for his petrol;
(d) his inability to explain
adequately the repudiation of his insurance claim, although, in
stating this I am not accepting that
the claim had been repudiated on
the basis that he had been carrying passengers at the time of the
accident. It may well have been
repudiated because he had used the
vehicle to carry passengers at other stages and that his claim was
invalid for that reason.
[10] On all the evidence I have no
doubt that S was a passenger in the vehicle of Mr Mavundla at the
time of the accident. That
finding accords with the evidence of the
plaintiff’s witness and is, in my view, easily the more
probable version of events.
[11] With regard to the question of
costs, Ms
Naidoo
who appeared for the defendant, has submitted
that I should reserve the question of costs for decision by the trial
court because
it may turn out that the quantum of damages ultimately
awarded to the plaintiff falls within the jurisdiction of the
magistrates’
court. The scale upon which the costs of the
action are to be calculated may accordingly be affected.
[12] The quantum of the plaintiff’s
claim as it presently stands is R965 000. The defendant has made no
concessions whatsoever
regarding that amount. I do not believe that
it would be fair to the plaintiff were she to be kept out of her
costs in circumstances
where the ongoing litigation may well take
several years to be finalised. In addition her ability to litigate
further may be hampered
by a lack of funds were I not to award costs
at this stage. In all the circumstances I would exercise my
discretion in favour of
awarding the plaintiff the costs of the
hearing on the 4
th
June 2012.
[13] Accordingly, and in accordance
with the consent of the legal representatives of the parties I make
the following order :-
the minor child S M M was a
passenger in the motor vehicle driven by Mr Mavundla at the time of
the collision on the 22
nd
March 2007;
the defendant is accordingly liable
to pay to the plaintiff such damages as she may prove were
sustained by her, both in her
personal capacity, and in her
capacity as the mother and natural guardian of S M;
the action is adjourned sine die for
the determination of the issue of the quantum of the plaintiff’s
damages;
the defendant is to pay the
plaintiff’s costs of the hearing on the 4
th
June
2012, on the party and party scale.
Date of hearing : 4
th
June
2012
Date of judgment : 7
th
June
2012
For the Plaintiff : Mr S Oberholzer
(instructed by Johan Oberholzer & Co)
For the Defendant : Ms S Naidoo
(instructed by Kuboni Incorporated)