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[2009] ZAGPPHC 294
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Mosia v Yousha Tayob Attorneys (14672/2007) [2009] ZAGPPHC 294 (15 September 2009)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
AND SOUTH GAUTENG HIGH COURT. PRETORIA
DATE:
15 September 2009
CASE
NO: 14672/2007
In
the matter between:
MOHLOPHEHI
VICTOR
MOSIA
PLAINTIFF
AND
YOUSHA
TAYOB
ATTORNEYS
DEFENDANT
JUDGMENT
PHATUDI
(J)
[1]
The Plaintiff, Mohlophehi Victor Mosia, instituted an action
against the Defendant claiming damages allegedly incurred as a result
of Defendant’s failure to prosecute his claim with the Road
Accident Fund.
[2]
At the commencement of the trial, I ordered separation for
consideration of the three legged matter i.e.
(i)
merits on liability of the Road Accident Fund
(ii)
merits on negligence on the part of the Defendant
(iii)
quantum.
[3]
It has been placed on the record that the consideration of the two
issues (negligence and quantum)be postponed sine die
in the event the
court find that the Plaintiff had had a legitimate claim against the
Road Accident Fund. In the event the court
finds that there is no
claim against the Road Accident Fund, “the end of the matter”
is spelt and exonerates the Defendant.
The trial bundles marked A; B;
C; D and E were handed in.
[4]
The Plaintiff testified that he was hit by a motor vehicle on the 19
December 1999 at about 16h 15. The accident occurred on
the
Kliprivier-Eikenhof Road, Kliprivier, Mondeor, Gauteng Province.
[5]
He said that near the scene, there is a shop opposite the railway
station. The two are separated by the dual tarred road of
about ±10
meters.
[6]
He said he was hit by an unidentified motor vehicle from the front at
the time when he was running away from the robbers who
intended to
rob him of his hard earned money. The said robbers produced knives.
He ran for his life along the road. He kept on
looking backward to
check the robbers’ whereabouts and their distance from him.
[7]
Members of the community looked on but were not helpful. He ran a
distance of about 50 meters (1/2
of
a soccer field)
[His
actual wordsl.
[8]
He was admitted at Baragwana hospital (now called Chris Hani
Hospital) as a result thereof. He stayed at the Hospital for about
a
month. He confirmed that the signatures that appear on the documents
on pages 7, 14 and 22 of bundle C are respectively his.
[9]
The said documents are:
“
(i)
page 7 is an “affidavit by Claimant” dated 20 December
1999.
(ii)
page 14 is an undated statement allegedly made by the Plaintiff at
the Mondeor Police Station.
(iii)
page 22 is a special Power of Attorney dated 15 December 1999.
[10]
When questioned under cross examination on the date of the accident,
the date of admission at the Hospital, and the date he
was discharged
at the said hospital, he stated that he was admitted at the Hospital
on 19 December -1999 and remained as inpatient
for a period of a
month. He said he spent the entire festive season (Christmas and New
Year) at the said Hospital. He however said
that he recalled that he
was once admitted at the same hospital sometime back. He recall that
plaster of perish was put on his
leg and discharged the following
day. He however did not recall the actual dates of that incident.
[11]
He emphatically denied knowledge and content of the “MMF1”
form lodged on his behalf with the Road Accident Fund.
He said that
he knows nothing about the said forms.
Counsel
for the Defendant questioned him further on the dates that are
written on the said “MMF!” form that indicate
that he was
admitted at the Hospital on the 19 and discharged on 20 December 1999
respectively. He then said all he knows is that
he was taken to the
offices of an attorney, being the Defendant herein, by a certain
woman. He said that this woman took from the
Hospital and accompanied
him to the said attorneys. He then trusted the attorney will do what
he legally had to do.
[12]
He denied being hit by the motor vehicle'while crossing the road. He
said he was running alongside the edge of the road at
the time when
the motor vehicle, hit him. He was facing the oncoming traffic. He
collided with the motor vehicle. He said that
he recall having ran a
distance of 50 meters on the said tarred road facing the oncoming
traffic. He recall to, at some stage,
have seen the motor vehicle
coming from a distant away facing him. He, however, does not recall
how he collided with the motor
vehicle
[13]
He conceded that there is a sidewalk on both sides of the tar road.
He denied having run into the motor vehicle. A tear dropped
when put
to him that he ran into the motor vehicle that collided with him.
[14]
He challenged counsel for the Defendant to tell him as to who was he
(counsel) with when he was attacked. He said it appears
that Counsel
for the Defendant was one of the assailants who intended to rob him.
The interpreter had to cool him down and explain
to him what is meant
by “I put it to you”.
[15]
He emphatically denied the content of the statements of page 7, 14
and 22 of bundle”C” respectively, as his statements.
He
said he was given a document with instructions to hand same over to
the Mondeor Police Station by his attorney. The Police officer
completed some forms who thereafter ordered him to sign where he was
directed to. He impressed on me that the contents of the statement
was not read back to him.
[16]
He emphatically denied that the content of the said statements were
the actual occurrences on the day in question.
[17]
When further questioned about the contents of the statement in the
form of an affidavit that appear on page 7 of bundle C,.
he conceded
to have signed the document bur robustly denied the contents thereto
and further challenged defence counsel as to whose
hand writing was
it that appear on the said document.
[18]
He said that he trusted the attorney so much that all that has been
written by the. attorney was what he told them and not
what it
appears on the statements. He further said
“
if
I knew that the contents were set out as they are, I would not have
signed the document.”
The
Plaintiff closed his case.
[19]
Mzwake Benjamin Makhuzeni, a Police officer who was at the time
employed as such and deployed at Mondeor Police station testified
for
the defence that he completed the document that appear on page 15 of
Bundle “C”. He testified that the Plaintiff
is the person
who reported the matter. He, however, said that what is written in
the “description of the statement”
was the summary of the
statement the Plaintiff had. I then questioned him what he meant by
the statement the plaintiff had. He
reiterated that the complainant
(Plaintiff) had a statement and he summarised the said statement as
it appear on the description.
[20]
I further enquired from him of the language they used in
communicating between themselves. He said that they communicated in
Southern Sotho, as both were Southern Sotho speaking. Further thereto
I enquired from him if the Plaintiff had ever said any word
in
Southern Sotho that would have given an impression that the accident
occurred “at night or that it was dark” on
the day in
question. He said that the complainant never said a word to that
effect
[21]
When asked under cross examination on how possible for him to recall
the incident that occurred approximately 10 years back,
he stated
that he had been briefed by the defendant two (2) days before this
date of trial of the facts of this case. He further
said that he
testifies on the basis of the brief he received from the Defendant.
No other witness testified for and on behalf of
the Defendant.
[22]
Counsel for the Plaintiff submitted in his address that the
unidentified insured motor vehicle was negligently driven by the
unidentified insured driver on the basis that the driver:
“
(i)
failed to keep a proper lookout and:-
(ii)
Presumed to be negligent by his conduct or failure to stop after the
collision.”
[23]
He further submitted that there is no evidence of brakes on the road
as an indication that the driver applied his brakes in
his endeavour
to avoid the collision with the Plaintiff.
[24]
Counsel for the defendant submitted that there is no onus on the part
of the Defendant to proof that the collision occurred
or not. He
submitted further that there is no evidence of how fast the motor
vehicle was at the time of the collision or when the
Plaintiff
started running on the tarred road.
[25]
He referred me to the case of
Gardian
National Insurance
Co
v Saal (
Full
bench of the Cape Provisional Division;) where the Court held that in
order to recover damages again at the Appellant,
"the
onus had been on the Plaintiff to proof on the balance of
probabilities that the unidentified motor vehicle had been driven
negligently and that his negligent driving had caused or contributed
to the collision1
[26]
The issue to be determent is whether the collision was due to the
negligence of the unidentified insured motor vehicle as alleged
by
the Plaintiff or by that of the plaintiff as submitted by the
Defendant.
[27]
Negligence is defined by Cooper in his book Delictual
Liability in Motor
law volume 2, 1996 by WE Cooper
as:
“
Negligence
(Culpa)
is
the failure to exercise the degree of care and skill the reasonable
man (bonus or diligence paterfamilias) would have exercised
in the
circumstances.”
[28]
The next question to consider on negligence rest on the driver’s
duty “to keep a proper look out.” This means
more than
looking straight ahead. It includes an awareness of what is happening
in one’s immediate vicinity. The driver should
have a whole
view from side to side and, in the case
of
a road passing through a built up area, of the pavement and on the
side of the road as well.
[29]
The difficulty in this matter is that there is no other witness
who testified other than the
Plaintiff himself. His version is that he ran out of the railway
station, turned right and started
running on the tarred road facing
the oncoming traffic. He then ran a distance of ±50 meters
before the collision. He, at
that time of running, kept on looking
backward checking on the robbers to be.
[30]
Considering the distance the distance he ran before the collision, I
infer that the driver of the unidentified motor vehicle
saw or is
reasonably expected to have seen the Plaintiff running on the road.
He, in my view, failed to exercise the degree of
care and skill a
reasonable driver or motorist is expected to have exercised in the
circumstances.
[31]
The definition of “keeping a proper look out” as set out
by
Cooper,
“includes an awareness of what is happening in one’s
immediate vicinity”.
The
evidence before me is that the accident occurred in the vicinity of a
railway station and a shop. It is reasonable expected
of a motorist
to have a full view of the whole road exercising an effective “proper
look out” when passing a built
up area like the one within the
railway station and shopping complex.
[32]
The reasonable motorist is required to excises the degree of
alertness and concentration especially when approaching or driving
through an area congested by a number of pedestrians.
[33]
I, in the circumstance, infer and not presume that the driver of the
unidentified motor vehicle was negligent by not keeping
a proper look
out. I, as a result thereof, find the unidentified driver of
unidentified motor vehicle to have negligently contributed
to the
collision causing damage as claimed by the Plaintiff. The Plaintiff
himself, on the other hand, negligently contributed
to his own demise
by running on the edge of the tarred road.
[34]
I as a result thereof find the Plaintiff to have negligently
contributed far above that of the Defendant.
[35]
I find that the unidentified driver of the unidentified motor vehicle
is 30 % at fault. I therefore make the following order:
[35.1]
The Plaintiff has a claim against the Road Accident Fund;
[35.2]
The Plaintiff is 70% negligent;
[35.3]
Determination of liability against the Defendant and the quantum
thereof is postponed
sine die.
[35.4]
The Defendant is ordered to pay the Plaintiff’s costs of this
trial on party and party scale. .
AML
PHATUDI
JUDGE
OF THE NORTH GAUTENG HIGH COURT
Heard
on:
2
September 2009
For
the Appellant: Adv Rontgen
Instructed
by:
Messrs
Rontgen & Rontgen Attorneys
For
the Respondent: Adv F Bezuidenhout
Instructed
by:
Messrs
Mothle Jooma Sabida Attorneys INC
Date
of Judgment:
15
September 2009