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[2009] ZAGPPHC 4
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Ndlovu v Road Accident Fund (33162/2006) [2009] ZAGPPHC 4 (13 March 2009)
/SG
IN THE HIGH COURT OF
SOUTH AFRICA
(NORTH GAUTENG HIGH
COURT, PRETORIA)
DATE: 13/03/2009
CASE NO: 33162/2006
UNREPORTABLE
In
the matter between:
TIMOTHY
NDLOVU PLAINTIFF
And
ROAD
ACCIDENT FUND DEFENDANT
JUDGMENT
SERITI, J
1.
Introduction
This matter came to
court by way of action.
1.1 In the particulars of
claim, the plaintiff Mr Timothy Ndlovu alleges that on or about
24 March 2005 at Thulamahashe
main road, a motor vehicle
with registration numbers MLY082GP, driven by S H Matyeka collided
with him whilst a pedestrian.
He further alleges that
the accident was caused by the sole negligence of SH Matyeka who was
negligent in one or more of certain
respects mentioned in the
particulars of claim.
It is further alleged
that in the accident mentioned above, he sustained certain physical
injuries as a result of which he suffered
certain damages amounting
to a total amount of R700 000.00. The damages allegedly suffered by
him, are divided into certain heads
of damages, namely past medical
expenses, estimated future medical expenses, past loss of income
future loss of income and general
damages.
1.2 In its plea, the
defendant denied that the plaintiff was knocked down by motor vehicle
with registration numbers MLY082GP as
alleged by the plaintiff. In
the alternative, defendant pleaded that if the court finds that the
accident occurred as alleged,
then the defendant pleads that the
negligence of the plaintiff was the sole cause of the accident or
that plaintiff’s negligence
contributed to the causing of the
accident.
1.3 Prior to the
commencement of the trial, the court was handed a statement, signed
by both parties and headed “Agreed Facts
for the trial”.
In terms of the said statement, general damages were agreed in the
amount of R130 000.00 (one hundred
and thirty thousand rands)
and it was further agreed that the defendant will furnish the
plaintiff with a certificate in terms
of section 17(4)(a) of the Road
Accident Fund.
Statement further
mentions that the question of past and future loss of earnings and/or
earning capacity is to be postponed
sine
die
.
Lastly, statement
mentioned that the determination of merits will have a bearing on the
general damages and the certificate in
terms of section 17(4)(a) of
the Road Accident Fund.
Both counsel advised the
court that the court is requested to make a determination only on the
question of liability or merits.
2.
Evidence
2.1 The first witness to
testify was Mr Timothy Ndlovu, the plaintiff.
He testified that on
24 March 2005 at about 23:00 he went out to see his
girlfriend at Pamela Bookshop.
On his way, at a certain
incomplete building, next to Pamela Bookshop, he met Mr Sandile
Matyeka. He asked Mr Sandile Matyeka
about money that the latter
owed him.
Visibility, at the spot
he met Mr Matyeka was good as there were street lights which were on.
Mr Matyeka pushed him with his hands
on the face, saying that he is
disturbing him and he must go away. He fell as a result of the push.
He stood up and started fighting
with Mr Matyeka, whilst fighting
with Mr Matyeka, the latter’s younger brother and Mr John
Mbowani came and assisted Mr Sandile
Matyeka. The latter ran to his
motor vehicle. He then heard sound of a motor vehicle approaching.
The said motor vehicle was
travelling on the tarred road. The motor
vehicle came to him. He was outside the road, on a gravel portion.
He tried to turn
away but the motor vehicle hit him on his right leg.
He fell down and lost his consciousness.
When the motor vehicle
collided with him, he was outside the road, on the gravel portion, in
front of a certain incomplete building.
After colliding with him
the motor vehicle drove away.
He was later transported
to the hospital.
Under cross examination,
he testified that his home is about 100 metres from the scene where
he was knocked down. At Pamela
Bookshop, they sell food and books.
No alcohol is sold at the said place.
There is a place next to
Pamela Bookshop where alcohol was sold. When he arrived at the
scene, he found Mr Sandile Matyeka and
his motor vehicle was parked
nearby, out of the road, in front of Pamela Bookshop, and facing the
said Bookshop.
When Mr Sandile Matyeka
ran towards his motor vehicle the latter’s younger brother and
Mr John Mbowani remained behind as
they were fighting with him.
Later he heard the spinning of a motor vehicle’s wheels and saw
a motor vehicle coming towards
him. The two people who were fighting
with him managed to avoid being knocked down by the said motor
vehicle.
He was knocked down,
outside the tarred road on the gravel portion which is in front of
the incomplete building.
There were a lot of
people in front o the liquor store which was nearby and next to the
incomplete building, there were few people,
about four in number.
There were motor vehicles parked in front of the liquor store but
there were no motor vehicle parked in
front of the incomplete
building.
Prior to this incident,
he was Mr Matyeka’s agent, sending him people who wanted to
register close corporations. He once
worked as a site manager for
the construction company owned by Mr Matyeka. He worked only for one
day as they could not agree
about his salary.
Next witness to testify
was Mr Bheki Hlatswayo. He testified that on 24 March 2005
in the evening, he was sitting with
a friend at the verandah of
Phamela Bookshop. Whilst seated at the said place, he heard sounds
of spinning motor vehicle wheels,
he stood up and saw a motor vehicle
speeding, getting into the tarred road. Said motor vehicle got out
of the road and he heard
people screaming. When he got outside, he
noticed a person lying on the ground. Two people got into the motor
vehicle that knocked
down a person, and the said motor vehicle drove
away. The person who was lying on the ground was Mr Timothy Ndlovu
and he saw
the motor vehicle knocking him down. Said motor vehicle
knocked down Mr Timothy Ndlovu on the gravel in front of the
incomplete
building.
He further testified
that when Mr Ndlovu was knocked down by the motor vehicle he was
walking next to the tarred road.
Under cross examination
he testified that he cannot say Mr Ndlovu was walking but he was
knocked down where people generally
walk.
He arrived at the spot
where Mr Ndlovu was knocked down about five seconds after the
collision. He saw the motor vehicle knocking
down Mr Ndlovu.
He stood up when he saw
motor vehicle pulling away in a rough manner. Initially it was
facing west, made a U turn and drove
towards the eastern
direction. It sped away and collided with Mr Timothy Ndlovu.
Next witness to testify
was Mr William Ndlovu.
He testified that on the
day that Mr Timothy Ndlovu was knocked down by a motor vehicle, he
was at home. His home is about 100
metres away from the spot where
Timothy was knocked down by a motor vehicle.
At some stage he went
out of the house and went to the gate to smoke. Whilst at the gate,
he heard a sound of a motor vehicle
coming from the western
direction. The said motor vehicle was spinning its wheels on the
tarred road. He saw it moving out of
the tarred road and he also saw
a person running away from the said motor vehicle.
He further testified
that he saw the said motor vehicle knocking down a person, and
thereafter said motor vehicle came and passed
next to the gate where
he was standing.
At that time it was in
the evening, street lights were on and visibility was good. At that
time he did not know who is the person
who was knocked down by the
said motor vehicle. He learned in the morning that the person
knocked down by the motor vehicle was
Mr Timothy Ndlovu.
Mr Timothy Ndlovu was
knocked down by the motor vehicle in front of the incomplete building
on the gravel portion.
Under cross examination
he testified that Mr Timothy Ndlovu is his brother and they stay in
the same house.
When he first saw the
said motor vehicle, it was on the gravel portion in front of Pamela
Book store. It was facing west, it turned
and travelled towards the
east.
Person who was knocked
down, when motor vehicle approached him, ran towards the incomplete
building, motor vehicle went out of
tarred road, knocked him down,
came towards where he was standing and passed in front of the gate.
After knocking a person
down, the said motor vehicle stopped for a short while and thereafter
drove away.
There were a lot of
people in front of the liquor store and bookshop, but in front of the
incomplete building, there were few people,
and no motor vehicles.
Plaintiff closed his
case.
2.2 The first defendant’s
witness was Mr Sandile Matyeka.
He testified that he is
a practising attorney and he has been practising as such for the past
five years.
On the day of the
accident, at about 23:00 and 24:00, he was from one of his business
on his way to Tulamahashe. Along the main
road, he saw one of his
friends parked next to Pamela Bookshop, which is a tavern. He
stopped and spoke to his friend.
Whilst speaking to his
friend, Mr Timothy Ndlovu approached him. Mr Ndlovu was once his
employee and he demanded his salary.
He did not owe Mr Ndlovu any
salary.
Mr Ndlovu looked drunk
and he was looking for an argument. He was confrontational. He told
Mr Ndlovu that if he wants to speak
to him, he must come to him when
he is sober. Mr Ndlovu left.
His younger brother Mr
Joseph Matyeka and a certain Mr Alex Mnchunu approached him and asked
for a lift home. He then proceeded
to chat to his friend. He later
proceeded to his motor vehicle with his younger brother and Mr Alex
Mnchunu. They got into the
motor vehicle. When he was about to put
the key into the ignition, Mr Timothy Ndlovu came, tried to grab the
keys. They tussled
for the keys, he went out of the motor vehicle
and the keys fell on the ground.
His younger brother and
Mr Mnchunu came out of the motor vehicle and Mr Ndlovu punched
everybody. People came and tried to separate
them. Mr Ndlovu
assaulted his (the witness’) younger brother. They chased each
other went across the street, to a shop
called Laduma. He also went
to the other side of the road, took his younger brother and Mr
Mnchunu, they got into his motor vehicle
and he drove away.
As he was driving, he
heard a loud bang on the left rear window. Mr Mnchunu told him that
Mr Timothy Ndlovu broke the window.
They stopped to inspect the
window. He made a U turn in order to go to the police station.
As he was driving, Mr Timothy
Ndlovu suddenly jumped into the road,
came in front of the motor vehicle and attempted to stop the motor
vehicle with his hands.
The left head lamp of the motor vehicle
collided with Mr Ndlovu.
He did not stop and he
proceeded straight to the police station to report the matter. At
the police station he told them that
somebody broke his window and
also threw himself in front of his motor vehicle. He went back to
the scene with three police officers.
At the scene, police officers
told him to come back following day.
He further testified and
said that “point of impact was more to the left hand side –
more to the middle lane”.
He was asked to depict, by pen, the
point of impact on the photograph of the said road, and he made a
mark on the left side of
the tarred road, almost next to the verge of
the road.
He further testified
that he was driving slow as there were too many motor vehicles.
There were also motor vehicles in front of
the incomplete building.
M T S Tavern is inside the incomplete building. Next to it, there is
Matjeka Tavern.
He was criminally
charged as a result of this incident, but he was acquitted. Mr
Timothy Ndlovu, his brother and police officer
who went to the scene
with him testified on behalf of the state in the criminal case.
Under cross examination
he testified that at the verandah of Pamela Bookshop there were
people and there are other people
who saw the accident happening.
At some stage, group of
people went across the road to the side of Laduma Tavern and came
back to the side of the Bookshop.
Mr Timothy Ndlovu jumped
towards his motor vehicle with his hands and legs open and he was
facing his motor vehicle. He swerved
the motor vehicle to the right
hand side and Mr Ndlovu was hit by the left side front lamp of the
motor vehicle.
He further testified and
said “I hit him in the middle of the road. Middle of the road
is where motor vehicles are driving.”
When he first saw Mr
Ndlovu, prior to the latter jumping in front of his motor vehicle, Mr
Ndlovu was about 3 metres away from
him. He was driving slow and he
did not apply brakes.
Mr Ndlovu looked drunk,
although he is not certain that he was drunk, but that is the
impression he gained.
It was put to him by the
plaintiff’s counsel that Mr Ndlovu was not drunk and he replied
and said that he cannot dispute
the fact that Mr Ndlovu was not
drunk.
He further testified
that he was travelling at a speed of between 25-40 kilometres per
hour. He knew that there were people crossing
the street.
Under re examination
he said that he did not apply his brakes because Mr Ndlovu suddenly
jumped in front of his motor vehicle
and the only evasive action that
he could take was to swerve the motor vehicle to the right hand side.
Next witness to be
called by the defendant was Mr John Mbowani.
He testified that on the
night in question, he was travelling with Mr Sandile Matyeka in the
motor vehicle. Next to Pamela Bookshop
they saw one of their
friends. Mr Matyeka stopped the motor vehicle and parked it across
Pamela Bookshop. They went out of the
motor vehicle and went to chat
to their friend.
Whilst still talking to
their friend, Mr Timothy Ndlovu appeared. He wanted to talk to Mr
Matyeka, and the latter told Mr Ndlovu
that “no we cannot talk
today as it is already late, if there is something you want to talk
to me come tomorrow and Mr Timothy
Ndlovu left”.
Mr Sandile Matyeka’s
younger brother and his friend Alex, asked Mr Sandile Matjeka to
accompany them to a shop at Dingleydale,
and they asked him (the
witness) to accompany them and he said no, he still wants to see his
friends. They went into the motor
vehicle and he remained behind.
When they were inside
the motor vehicle, Mr Timothy Ndlovu came to the motor vehicle
running and he wanted to remove the motor
vehicle’s keys. He
saw Messrs Sandile Matyeka and Timothy Ndlovu pushing each other. Mr
Matyeka went out of the motor vehicle
and he saw them wrestling for
the keys. They tried to separate them and Mr Ndlovu slapped Reginald
with an open hand. Mr Ndlovu
also slapped him with an open hand. By
that time, they were moving to the other side of the street.
All of a sudden Messrs
Joseph Matyeka and Alex Mnchunu started to fight with Mr Timothy
Ndlovu. Whilst they were trying to separate
them Mr Sandile Matyeka
called his younger brother and Mr Mnchunu saying that they should
leave. He was not fighting with Mr Ndlovu.
He approached Mr Ndlovu
and asked him why Mr Ndlovu is hitting him and Mr Ndlovu accused him
of taking sides. Mr Ndlovu then hit
him with a bottle and after that
he did not see what happened thereafter. He was later taken home.
Under cross examination
he testified that he has been a friend to Mr Sandile Ndlovu for a
long time. At the time of the incident
there were a lot of motor
vehicles parked on the side walk and some were facing the Bookshop.
Next witness to testify
was Mr Joseph Matyeka. He testified that he is the younger brother
of Mr Sandile Matyeka. On the night
in question he arrived at the
bookshop with his friend Mr Alex Mnchunu. After a while his brother
Sandile arrived. He requested
Sandile to accompany him to Setlhare
and they went to the motor vehicle. It was Sandile, Alex and
himself.
Mr Timothy Ndlovu
appeared and spoke to Mr Sandile Ndlovu through the motor vehicle’s
window. Mr Ndlovu tried to remove
a key from the ignition by putting
his hand through the window. A struggle for the key ensued between
his brother and Mr Ndlovu.
They all went out of the motor vehicle.
He attempted to separate
his brother and Mr Ndlovu. Mr Ndlovu hit him with a clenched fist.
He retaliated and a fight broke out.
Mr Alex Mnchunu tried to
separate them and Mr Ndlovu also assaulted him. Mr Mnchunu and him
started to fight with Mr Ndlovu.
Mr John Mbowani came to the scene
and tried to separate them. While they were busy fighting they
crossed the tarred road and
went to the other side of the said road.
His brother Sandile came and called him and Mr Alex Mnchunu and said
that they should
leave.
They went into the motor
vehicle and the motor vehicle reversed, turned left and went to the
western direction. They heard sound
on the left rear window. They
travelled for a short distance and they heard window pane falling
down.
His brother decided to
make a U turn in order to go to the police station. There were
people on either side of the road.
Mr Ndlovu then jumped into the
road with his hands open, as if he wanted to stop the motor vehicle.
Mr Sandile Matyeka swerved
away in order to avoid knocking him down
and he again jumped to the direction of the motor vehicle and the
motor vehicle knocked
him down. He was hit by the left front light.
They did not stop and
went straight to the police station.
Mr Ndlovu jumped from
left hand side of the road. He jumped in front of the motor vehicle.
The point of impact is in the road,
about 3 metres from the left
edge of the tarred road.
There were many people
in the vicinity.
Under cross examination
he testified that Mr Ndlovu jumped twice prior to the motor vehicle
colliding with him. He further
testified that the point of impact is
in the middle of the road.
He does not know if the
street lights were on or not, because most of the time the street
lights in Thulamahashe are not working.
Under re examination
he testified that the point of impact is on the tarred road, about 1½
metres from the left edge
of the road.
Defendant closed its
case.
3.
Findings
Certain facts are common
cause between the parties. Those facts are the following:
–
On the night in
question, Mr Ndlovu and Mr Sandile Matyeka had an altercation and a
fight broke out.
–
The incident took
place near Pamela Bookshop and it was late in the night at about
midnight.
–
Mr Ndlovu was
knocked down by a motor vehicle driven by Mr Matyeka.
As far as visibility in
the vicinity is concerned Messrs T and W Ndlovu testified that the
street lights were on and visibility
was good. On the other hand, Mr
Sandile Matyeka first testified that the street lights at Tulamahashe
are normally out of order,
but when he was pressed for a direct
answer, he conceded that the area was well light.
Mr Joseph Matyeka when
asked whether the street lights were on or not he said “I do
not know if the street lights were on
or not, because most of the
time street lights in Tulamahashe are not working”.
My view is that, if one
takes into account the abovementioned evidence the probabilities are
that the version of Mr Timothy Ndlovu
and his witness, on this point,
is the correct one. There is no reason not to accept their version
on this point.
Mr Timothy Ndlovu
testified about how he was knocked down by the motor vehicle on the
gravel portion of the road, just in front
of the incomplete building
which is along the said read. On this point his version was
corroborated by Mr William Ndlovu, and
to some extent by Mr Bheki
Hlatswayo.
On the other hand, Mr
Sandile Matyeka testified that the collision occurred on the tarred
road. In fact he said “point of
impact was more to the left
hand side – more to the middle lane”. When asked to
depict the point of impact on a photograph,
he made a mark depicting
point of impact, on the left side of the tarred road, almost next to
the verge of the tarred road. Mr
Sandile Matyeka further testified
and said that he collided with Mr Ndlovu in the middle of the road.
He further said that middle
of the road is where motor vehicles are
driving. Mr Joseph Matyeka testified that the point of impact was in
the road about 3
metres from the left edge of the road.
From the evidence, it
appears to me that Mr Sandile Matyeka does not tell the court with
certainty, where, on the road his motor
vehicle knocked down Mr
Ndlovu. His brother’s evidence on this point is not helpful,
as Mr Sandile Matyeka, during his testimony,
mentioned that collision
occurred in the middle of the road.
The most probable version
is that of Mr Ndlovu and his witnesses.
Mr Sandile Matyeka
testified that Mr Ndlovu jumped into the road and attempted to stop
the motor vehicle with his hands. His brother
testified that Mr
Ndlovu jumped into the road in front of the motor vehicle, motor
vehicle swerved, he jumped again towards direction
of motor vehicle,
and the motor vehicle knocked him down. Mr Sandile Matyeka did not
mention that Mr Ndlovu jumped twice in front
of his motor vehicle.
Mr Ndlovu together with
his witness testified that the point of collision is on the gravel
portion in front of the incomplete building.
This version, in my
view, is the most probable version. I cannot find any reason for Mr
Ndlovu to have behaved in the manner
described by Mr Sandile Matyeka
and his witness, particularly in the light of the fact that he was
sober.
On the other hand, Mr
Sandile Matyeka could have been angry with Mr Ndlovu after their
altercation and fight, and consequently,
he wanted to knock down Mr
Ndlovu with his motor vehicle.
The other disturbing
factor with the versin of Mr Sandile Matyeka is that his evidence is
contradictory and contradicts his witnesses
evidence on material
issue. He testified that when Mr Ndlovu approached him, he did not
want to talk to Mr Ndlovu as the latter
was drunk. He later under
cross examination conceded that Mr Ndlovu was not drunk. Mr
Sandile Matyeka testified that Mr
Joseph Matyeka and his friend asked
him a lift home and Mr John Mbowani testified that Mr Joseph Matyeka
and his friend asked Sandile
to accompany them to Dingleydale and Mr
Joseph Matyeka testified that he asked Sandile to accompany him to
Setlhare. There is
also a difficulty about how Mr Ndlovu allegedly
jumped in front of the motor vehicle prior to being knocked down.
My view is that the
plaintiff has proved his case and he is entitled to all his proven
damages.
Apparently, an offer,
dealing with quantum was made by the defendant about five days prior
to the trial and same was accepted on
day of the trial.
The plaintiff’s
counsel, correctly so submitted that if the plaintiff is successful,
he is entitled to costs which costs will
include qualifying fees of
his two experts, namely Drs Lekalakalaand Mayayise.
The court therefore makes
the following order:
1. Defendant should pay
the plaintiff the plaintiff’s proven damages.
2. Defendant should pay
the plaintiff’s costs, which costs will include the qualifying
fees of Drs Lekalakala and Mayayise.
W L SERITI
JUDGE OF THE HIGH
COURT
33162/2006/sg
Heard on
: 4
March 2009
For
the Plaintiff
: Adv
M G Mashaba
Instructed
by
: Ntshembo
Manganyi Attorneys, Pretoria
For
the Defendant
: Adv
M Van Antwerpen
Instructed
by
: Gildenhuys
Lessing Malatji, Pretoria
Date
of Judgment
: 13
March 2009