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[2009] ZAGPPHC 284
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Zeda Financing (Pty) Ltd v Lavhengwa (19439/05) [2009] ZAGPPHC 284 (4 August 2009)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
(TRANSVAAL
PROVINCIAL DIVISION)
CASE
NO.: 19439/05
In
the matter between:
ZEDA
FINANCING (PTY)
LTD
t/a AVIS RENT A
CAR PLAINTIFF
And
NDWAMATO
PHINIAS
LAVHENGWA DEFENDANT
JUDGMENT
MOLOPA
J
The
Plaintiff instituted an action for R153 443.00 against the Defendant
as damages for the damage caused to its motor vehicle when
a
collision occurred on 09 November 2003, at or near the Resevior Road,
Boksburg, between the motor vehicle with registration letters
and
number [……] (‘‘Plaintiffs motor vehicle”)
and a motor vehicle with registration letters and
number […….]
which latter vehicle was there and then driven by one Ndwamato
Phinias Lavhengwa (“the Defendant”).
The
Plaintiff avers in its Particulars of claim that the collision was
caused by the sole negligence of the Defendant, who was negligent
in
one or more or all of the respects set out in paragraph 5 of the
Particulars of claim. The Plaintiff seeks full liability from
the
Defendant.
The
Defendant brought a counterclaim for R12 095.00 as damages for the
damage to his motor vehicle, alleging that the collision
was due to
the sole negligence of the driver of the Plaintiffs vehicle, who was
negligent in one or more or all of the respects
set out in paragraph
6 of the Defendant’s counterclaim.
It
is common cause that a collision occurred on 09 November 2003 at
Resevoir Road, Boksburg, between the Plaintiffs vehicle and
the
Defendant’s motor vehicle.
The
issue for determination in this matter is whether the Defendant is
100% liable for the damages of the Plaintiff, and whether
the
Plaintiff is also liable for the Defendant’s damages.
At
the commencement of the trial the court was informed that since there
are certain admissions made by both parties, which are
dealt with
infra, no viva voce evidence was going to be led by either part)',
that the parties would merely argue their respective
cases.
From
the facts put before court it appears that at the time of the
collision the Plaintiffs vehicle was, apparently being driven
by a
person who allegedly had rented the vehicle from the Plaintiff. The
name of the person in question, (driver of the Plaintiffs
vehicle at
the time of the collision) is not mentioned anywhere in the papers,
nor disclosed in anyway. I will refer to him or
her hereinafter as
(“The Plaintiffs driver”), [There are no particulars
whatsoever of this driver in the papers before
court].
The
Plaintiffs driver had allegedly rented the Plaintiffs vehicle from
AVIS/Plaintiff. It is a known fact that AVIS/Plaintiff is
in the
business of, amongst others, renting out motor vehicles to the
public. The terms of the rental between the Plaintiff and
its driver
were never disclosed to the court, or whether he/she had taken out
insurance or not in renting the motor vehicle in
question. It is also
a known fact that usually when people rent out motor vehicles from
entities like the Plaintiff they are given
options, (if not
compulsory), to pay extra money stipulated in the standard rental
agreements of such entities, in lieu of insurance
for the period a
“client” like the Plaintiffs driver is in possession of a
rented vehicle. Counsel for the Plaintiff
indicated that he was not
sure and/or was not aware of whether Plaintiffs driver had taken out
the insurance option or not, nor
whether the insurance had paid out
or not. It is, however, in my view, expected and/or accepted that an
entity like the Plaintiff
has insured the fleet of its motor
vehicles, which are obviously exposed to risk at all times.
When
the matter came before court for trial, the court was referred to a
list of admissions by the Plaintiff and the Defendant,
dated 20
th
August 2007, the terms of which are as follows:
“
For
the purpose of disposing of the above matter and on the pleadings as
they currently stand, the parties make the following admissions:
1)
Quantum of damages and locus standi of the parties (including the
citation and the right to sue) is admitted reciprocally.
2)
The quantum of damages is admitted as pleaded by the parties
in the Particulars of Claim and Counterclaim;
3)
The Plaintiff concedes that the driver of its motor vehicle
was 90% to blame for the causation of the
accident as pleaded;
4)
The
Defendant concedes that the driver of its motor vehicle was 10% to
blame for causation of the accident as pleaded;
5)
The Defendant abandons and does not persist with the allegation as
set out in par 4.1 of its plea read together with paragraph
5 of its
Particulars of Claim in relation to vicarious liability.
Counsel
for the Plaintiff submitted that since the Defendant had admitted
that he was 10% to blame for the accident in question,
the Plaintiff
did not intend to lead any viva voce evidence, but that Plaintiff
would seek 100% damages from the Defendant on the
basis that once
Plaintiff has proved at least 1% negligence against the Defendant, as
in the dependants’ claims (where dependants
only need to prove
1% negligence against the driver of the other vehicle involved in a
collision with the parent/spouse of such
dependants), it (Plaintiff)
would thus be entitled to 100% damages from the Defendant..
Counsel
for the Plaintiff further confirmed that the Plaintiff admits that
Plaintiffs driver was 90% negligent to blame towards
the collision,
and submitted that since it was easy to recover from the Defendant.
Plaintiff
decided to persue its claim against the Defendant and not against the
Plaintiffs driver. He did not disclose what would
have made it
difficult for the Plaintiff to have claimed damages against its
driver (especially if he is allegedly not employed
by the Plaintiff
self) as opposed to the Defendant.
As
already stated above, at a pre trial conference held on 20 August
2007 between the parties, certain admissions were recorded,
inter
alia:
-
That the Plaintiff concedes that the driver of its motor vehicle was
90% to blame for the causation
of the accident in question; and
-
That the Defendant concedes that the driver of its motor vehicle was
10% to blame for the causation
of the accident.
That
being the case, it is highly questionable why the Plaintiff chose not
to pursue the most blameworthy person, i.e. its driver,
whose name,
as already stated above, is not even disclosed before this court.
The
basis upon which the Plaintiff seeks to claim 100% from a person
(Defendant) who is only 10% to blame for the collision, leaving
a
person they have a contractual relationship with, albeit a car lease
agreement, under circumstances that, it is expected that
there could
have been some sort of insurance arrangement between the Plaintiff
and its driver smacks of abuse in my view.
The
interests of justice dictates that where the Plaintiff self concedes
that the Defendant is only 10% negligent in relation to
the collision
that caused the damage to its car, and that the driver who had
allegedly rented the car in question from the Plaintiff
was 90%
negligent, and out of choice, the Plaintiff decides to persue the
Defendant who is only 10% to blame for the collision,
for 100% of the
damages whereas elected not to persue the driver of Plaintiffs
vehicle, who is 90% to blame for the collision,
who, one assumes, had
some contractual relationship with the Plaintiff in terms of which
the Plaintiff rented out the motor vehicle
in question to the driver
aforesaid under certain conditions, the Defendant should be liable
for 10% only of the Plaintiffs damages.
The
Plaintiff chose not to disclose the terms of the rental agreement
between itself and its driver, which in my view is material
in the
circumstances herein, nor what the liability of the driver aforesaid
would be in cases like this, where the driver in question
was to
blame an/or largely to blame for a collision as in this case. As
already mentioned above, it was submitted on behalf of
the Plaintiff
that since it was easy for the Plaintiff to recover 100% of its
damages from the Defendant, even when it is clear
and conceded by the
Plaintiff that the Defendant was only 10% to blame/negligent for the
collision, the Plaintiff chose to sue
the Defendant as opposed to its
driver.
In
my view this is an abuse of the process of the law and it goes
against all principles of justice, i.e. to sue a party who is
much
less to blame for damages simply because it is easy to recover full
damages from such party. This in my view is unacceptable
and does not
accord with the principles and interests of justice and cannot be
said to be fair and equitable.
In
the result I find that the Defendant is only liable to pay 10% of the
damages to the Plaintiffs vehicle. The Plaintiff cannot
succeed in
its claim as set out in its Particulars of Claim. The parties having
agreed that damages to the Plaintiffs motor vehicle
amount to R153
443.70 the Defendant is in the least only liable for 10% of the said
amount, which is R15 344.37.
In
so far as the Counterclaim by the Defendant against the Plaintiff is
concerned, clearly the Defendant initially premised this
claim on the
basis that the driver of the Plaintiffs vehicle was employed by the
Plaintiff and thus that the Plaintiff was vicariously
liable for
damages to his vehicle on this basis. From the list of admissions
already set out above, the Defendant has abandoned
the allegations
set out in his pleadings relating to vicarious liability against the
Plaintiff, since it has been accepted and
conceded by the Defendant
after being informed by the Plaintiff that the driver of the
Plaintiffs vehicle was not employed by the
Plaintiff but had merely
rented out the vehicle in question from the Plaintiff.
It
was submitted by counsel on behalf of the Defendant that since the
Plaintiff had authorised its driver to drive its (Plaintiffs)
motor
vehicle, and since such driver was contributory negligent, then it
followed that the Plaintiff was liable for 90% of the
Defendant’s
claim. The Defendant clearly seeks to hold the Plaintiff
“vicariously” liable in disguise.
In
my view where the Defendant has accepted that the plaintiff’s
driver was not in the employ of the Plaintiff when he got
involved in
a collision with the Defendant, the basis upon which the Defendant’s
counterclaim was based, clearly the Defendant
cannot claim damages
from the Plaintiff in this regard. On the facts the counterclaim can
thus not hold against the Plaintiff.
On
all the tacts before this court the Plaintiff cannot succeed in its
claim as set out in the papers, neither can the Defendant
succeed in
its counterclaim.
In
the result I make an order in the following terms:
1.
The Defendant is to pay R15 344.37, being 10% of the damages to the
Plaintiff.
2.
The Defendant’s Counterclaim is dismissed.
3.
Each party is to pay its own costs.
Molopa
J
JUDGE
OF THE HIGH COURT