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2011
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[2011] ZAFSHC 124
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Mokadi (Moletsane) v Road Accident Fund (4994/2009) [2011] ZAFSHC 124 (18 August 2011)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No. : 4994/2009
In the matter between:-
MATHULO LYDIA
MOKGADI (MOLETSANE)
…........................
Plaintiff
and
ROAD ACCIDENT FUND
…....................................................
Defendant
_____________________________________________________
HEARD
ON:
2 AUGUST 2011
_____________________________________________________
JUDGMENT
BY:
RAMPAI, J
_____________________________________________________
DELIVERED
ON:
18 AUGUST 2011
_____________________________________________________
[1] These were action
proceedings. The plaintiff sued the defendant for compensation in the
sum of R1 124 291,00 plus interest thereon
at the rate of 15,5% per
annum
a tempore morae
as well as the costs of the action. The
claim was based on delict. The plaintiff sued in her personal and
representative capacities.
The defendant denied liability.
[2] The version of the
plaintiff was narrated by one witness, namely Mr. Thapelo Melesi. He
testified that he was involved in a
road accident which took place
between Winburg and Bloemfontein on Saturday, 1 February 2008. On
that day he and six others were
returning home in Bloemfontein from
Winburg. They were travelling by a Volkswagen minibus with
registration number DKJ594FS. The
minibus was owned by his mother,
but driven by a certain Mr. Barks Tsomela. He was a front seat
passenger. Among the other passengers
was Mr. Thabo Mokgadi. He was a
back seat passenger.
[3] They left Winburg in
the early hours of that particular morning. They used the N1 highway.
They safely reached Verkeerdevlei
Toll Gate. From there they
proceeded further towards Bloemfontein. The minibus was travelling
well. He and the driver were having
a conversation. A speeding motor
vehicle appeared from behind and tried to overtake the minibus.
However, it gave a narrow berth
to the minibus. In that process of
overtaking, it unexpectedly but quickly moved over to the left onto
the path of travel of the
minibus. Mr. Tsomela swerved to the left in
an attempt to avoid collision. However, the offending motor vehicle
clipped the minibus
on the right flank. The offending motor vehicle
forced the minibus off the road. The minibus went out of control and
overturned.
[4] In the process the
witness became unconscious. As a result of loss of consciousness he
had no further recollection of what happened
on the scene of the
accident. He was already in hospital when he regained his state of
consciousness. He stated that the accident
occurred so fast that he
could not identify the offending vehicle. He had no idea what
happened to it after the collision.
[5] Of the seven
occupants of the minibus, five died. Among them were the aforesaid
Mr. Tsomela and Mr. Mokgadi. He and a certain
young lady were the
only two survivors. She could remember absolute nothing significant
about the accident, because she was fast
asleep at the time.
[6] During
cross-examination he answered that the unidentified vehicle was even
with the minibus when he first saw it. It really
never managed to get
in front of the minibus. Instead it bumped into the right side of the
minibus. It physically came into contact
with the right nose of the
minibus. By this I understood the witness to mean the right front
bumper of the minibus. He admitted
that he never went to see the
police in connection with the accident. Besides the occupants, his
refrigerator, mattress and bedding
were loaded on the engine
compartment of the minibus. He denied the suggestion that the minibus
was overloaded and that it left
the road as a result of the alleged
overload. He also denied the suggestion that Mr. Tsomela could have
avoided the collision by
reducing the speed at which he was
travelling. He and the driver were wearing seatbelts. Since he was
unconscious he could not
comment about the presence or absence of
glass debris on the scene.
[7] During re-examination
the witness replied that the aforesaid victim, Mr. Mokgadi, was
sitting on the back seat. He added that
besides the front seat of the
minibus the rest were not fitted with safety seatbelts.
[8] As regards the
merits, the plaintiff’s case was then closed. So was the
defendant’s. The defendant had no witness
to call.
[9] On behalf of the
plaintiff Mr. Marais submitted that the plaintiff had shown that the
driver of the unidentified motor vehicle
was negligent. On behalf of
the defendant Ms De Kok chose to leave the matter in the hands of the
court.
[10] In her amended
particulars of claim the plaintiff alleged that a road accident
occurred on the freeway in Bloemfontein on 1
February 2008 when a
minibus in which her husband was travelling as a passenger collided
with an unidentified motor vehicle. She
further alleged that the
collision between the vehicles was occasioned by the sole negligence
of the driver of the minibus or the
sole negligence of the driver of
the unidentified driver or the contributory negligence of both
drivers. In its plea, the defendant
denied all the plaintiff’s
allegations concerning both the occurrence of the accident and the
negligence of the driver(s).
[11] The defendant’s
plea was a bare denial. However, the minutes of the pre-trial
conference held on 8 March 2011 revealed
that the defendant admitted
the averments contained in paragraph 3 of the particulars of claim
concerning the occurrence of the
accident, but still denied the
alleged grounds of negligence. The defendant continued to deny the
subsistence of the plaintiff’s
marriage and the paternity of
her daughter. On account of the vagueness in which the defendant’s
challenge to the dependant’s
claim was cast, I provisionally
assume that the facts averred in the particulars of claim pertaining
to the relationship between
the deceased and the dependants, are
true.
[12] The plaintiff’s
witness, Mr. Melesi, acquitted himself fairly well as a witness. He
testified in a simple and straight
forward manner. He was consistent.
He did not contradict himself. He was candid. No critique was
levelled against him. I could
find no reason to disbelieve him.
Therefore I accept his evidence as a credible and reliable account of
the accident.
[13] Before I consider
the evidence in relation to the negligence, as attributed to the
driver of the unidentified motor vehicle,
it is necessary to briefly
deal with the issue of negligence as imputed to the driver of the
identified motor vehicle. In her particulars
of claim the plaintiff
alleged five grounds of negligence against him. However, the evidence
given on her behalf did not expressly
implicate him.
[14] In the plea, the
defendant denied the alleged grounds of negligence. Ms De Kok
insinuated that the minibus driver was somehow
negligent. Her
insinuation, that the aforesaid driver could have avoided the
collision by reducing speed, was denied by the witness,
as was her
insinuation that the minibus was overloaded.
[15] For the sake of
argument, let me assume that the minibus, in which the plaintiff’s
husband was travelling as a social
passenger, was the only motor
vehicle involved in this accident. By suggesting that the minibus was
overloaded and that its driver
could and should have avoided the
accident by reducing the speed at which it was travelling, the
defendant implicitly admitted
that the driver was negligent and that
his negligence was effectively the contributory cause of the
accident. As a passenger, the
plaintiff’s husband was not to
blame for the overloading of the minibus, if at all it was.
Similarly, he was not at all to
blame for the driver’s failure
to slow down, if at all the accident could have been avoided in that
way. Since the plaintiff’s
husband was an innocent victim, the
defendant’s contentions did not constitute a valid defence to
the dependants’ claim.
In my view, the defendant has hopelessly
failed to show that the breadwinner was the sole cause of his death.
That was the only
way the defendant could avoid liability.
[16] The aforegoing
entailed that the requisite one percent minimum degree of negligence
has been established against the minibus
driver. I would, therefore,
hold the defendant liable to the plaintiff by virtue of such
negligence. Before 17 February 2011 the
legal position was that a
claim of each dependant, whose breadwinner was killed as a result of
the exclusive negligence of the
driver of a motor vehicle in which he
was conveyed as a passenger, was limited to a maximum compensation of
R25 000,00. In the
landmark decision delivered on 17 February 2011,
section 18
of the
Road Accident Fund Act, 56 of 1996
, which
prescribed the cap on monetary compensation payable to each dependant
of such a passenger victim, was declared inconsistent
with the
Constitution and therefore invalid –
vide
MVUMVU
AND OTHERS v MINISTER FOR TRANSPORT AND ANOTHER
2011 (5) BCLR
488
(CC).
[17] Now I turn to the
unidentified driver. There was credible and reliable evidence given
on behalf of the plaintiff that the unidentified
motor vehicle was
travelling at a high speed; that it tried to overtake the minibus at
the time when it was unsafe to do so; that
it encroached onto the
traffic lane of the minibus; that it moved dangerously close to the
minibus; that it physically collided
with the minibus and forced it
to veer off the tarmac of the highway.
[18] The witness was
steadfast that had it not been for the offensive driving of the
unidentified vehicle the minibus would not
have left the road; that
it would not have gone out of the driver’s control and that it
would not have overturned as it did.
On the facts, I have no
hesitation to find that the unidentified driver did not keep a proper
lookout and that he did not give
the minibus a reasonably wide and
safe berth at the critical moment when he was endeavouring to
overtake it.
[19] In the circumstances
I make the following findings as regards the disputed issues
pertaining to the merits:
That a road accident
occurred in Bloemfontein on Saturday, 1 February 2008 at or about
06h00.
That the scene of the
accident was in the vicinity of Glen on the N1 highway;
That two motor vehicles
were involved in the accident.
That one of them was a
Volkswagen minibus with registration number DKJ594FS then and there
driven by a dertain Mr. Tsomela;
That the other motor
vehicle and its driver or its owner were unidentified;
That the physical
collision between the two motor vehicles involved was, on a balance
of probabilities, occasioned by the prime
negligence of the driver
of the unidentified motor vehicle;
That the negligence of
such driver was the effective cause of the accident;
That Mr. Tsomela as well
as four of his passengers sustained fatal bodily injuries;
That Thabo Plaatjie
Mokgadi was a back seat passenger in a Volkswagen minibus DKJ 594FS
at the time of the accident;
That he sustained fatal
injuries in the accident; and
That the witness, Mr.
Melesi, was injured in the accident.
[20] In order to succeed,
the dependants of the deceased breadwinner were required by law to
establish that, the unidentified driver
or Mr. Tsomela was at least
1% negligent. I am of the firm view that the plaintiff has succeeded,
on a balance of probabilities,
to discharge the onus.
[21] Accepting the
version of the plaintiff as substantially correct and assuming, in
the defendant’s favour, that perhaps
Mr. Tsomela ought to have
become aware of the danger posed by the unidentified motor vehicle
earlier than Mr. Melesi did and that
he could have done more at an
earlier stage to avoid the collision, I am nonetheless unable to
acquit the driver of the unidentified
motor vehicle of negligence. I
am of the view that his negligent driving largely contributed to the
tragic accident.
[22] The liability of the
defendant to compensate the dependants of the aforesaid breadwinner,
who regrettably met a tragic accident
which resulted in his untimely
death, has been established.
[23] Mine was to
adjudicate the issues relative to the merits of the matter only. At
the beginning of the hearing I made an order
in terms of Rule 33(4)
for the separate adjudication of the issues relative to the merits,
on the one hand, and the issues relative
to the quantum, on the other
hand. Therefore the latter issues will stand over for later
adjudication in accordance with that order.
[24] Accordingly I make
the following order:
24.1 Judgment is granted
in favour of the plaintiff as regards the merits.
24.2 The defendant is
liable to compensate the plaintiff in a personal capacity, as well as
a representative capacity, in such amount
of damages as the plaintiff
may prove that she and her minor child has suffered, provided all
other issues relevant to quantum
are established.
24.3 The costs of the
action shall be borne and paid by the defendant.
______________
M.H. RAMPAI, J
On
behalf of plaintiff: Attorney J.J. Maree
Instructed
by:
Schoeman
Maree Inc
BLOEMFONTEIN
On
behalf of second defendant: Adv. D. de Kok
Instructed
by:
Stiglitz
Botes Attorneys
BLOEMFONTEIN
and
Maluleke Seriti Makume
Matlala Inc
JOHANNESBURG
/sp