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[2009] ZAGPJHC 47
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Matladi v Road Accident Fund (A3039/2009) [2009] ZAGPJHC 47 (3 September 2009)
IN THE SOUTH GAUTENG HIGH COURT
(JOHANNESBURG)
CASE
NUMBER A3039/2009
In
the matter between
MPHO
ELIZABETH MATLADI APPELLANT
and
ROAD
ACCIDENT FUND RESPONDENT
______________________________________________________________
J U D G M E N T
VAN
OOSTEN J:
[1] This is an appeal against the
order of the court
a quo
made at the close of the appellant’s case, dismissing the
appellant’s claim against the respondent with costs. There
was
no appearance for the respondent at the hearing of the appeal.
[2] The appellant on behalf of her
minor child, Hodisang Matladi (Matladi), instituted action in the
court
a quo
against the respondent as statutory insurer for damages arising from
the injuries he sustained in an alleged collision. Matladi,
who was
20 years old at the time of testifying, was the only witness called
to testify for the plaintiff. It is only necessary
to refer to his
evidence concerning the incident in which he was injured. He
testified that he alighted from a taxi which had come
to a standstill
as it was obliged to do, at a red traffic light in Vermeulen street,
at the intersection with Van der Walt street,
Pretoria at 19h00 on
the day of the incident. He proceeded to cross the road to the other
side by as he referred to it in his evidence,
‘jogging’
around the taxi at its rear. The next he remembered was waking up on
the sidewalk and thereafter being taken
to hospital having sustained
an injury to the right hip.
[3] Matladi was unable to offer any
explanation as to how the incident did or could have happened. His
evidence was replete with
inferences he admittedly based on hearsay
information furnished to him by bystanders when he was lying on the
sidewalk. He conceded
that he did not at any time observe another
vehicle approaching in his direction as he was crossing the street
which is in accordance
with an earlier written statement he had made,
which on this aspect reads as follows:
I
was leaving the main campus in a taxi on my way to my residence. The
last thing that I remember is that the taxi stopped at the
intersection of Van der Walt. I got out of the taxi and the rest I
cannot remember what happened. I woke up in hospital.
[4] At the close of the plaintiff’s
case the Magistrate
mero
motu
raised with the
plaintiff’s legal representative whether on the evidence of
Matladi any negligence had been shown to exist.
A debate ensued at
the end of which, and without calling on the defendant’s legal
representative, the Magistrate went ahead
and dismissed the
plaintiff’s claim with costs. In his subsequent reasons the
Magistrate explained that to the best of his
memory the dismissal
followed upon an application for absolution from the instance, which
of course is clearly wrong. Be that as
it may, nothing in my view
turns on this.
[5] Magistrate’s Court Rule 29
deals with the trial in civil proceedings in the magistrate’s
court. Sub-rule (7) provides
that the plaintiff shall first adduce
evidence if on the pleadings the burden of proof is on the plaintiff
and that ‘if absolution
from the instance is not then decreed,
the defendant shall then adduce evidence’.
Section 48
of the
Magistrates’ Courts Act 32 of 1944
provides that the court may,
as a result of the trial of an action, grant absolution from the
instance ‘if it appears to
the court that the evidence does not
justify the court in giving judgment for either party’. The
overriding consideration
for granting absolution from the instance at
the end of the plaintiff’s case is that it is considered
unnecessary in the
interests of justice to allow the case to continue
any longer in the absence of a
prima
facie
case having been made
out against the defendant (see
Putter
v Provincial Insurance Co Ltd and Another
1963
(4) SA 771
(W))
.
The
Act and Rules are silent on whether the court can
mero
motu
decree absolution at
the end of the plaintiff’s case. Provided the principles of
audi alteram partem
are
observed I can see no reason why the court cannot
mero
motu
at the end of a
plaintiff’s case, raise the question of the adequacy of the
evidence led on behalf of the plaintiff. In the
instant matter there
was clearly no evidence whatsoever either of another vehicle having
collided with Matladi or the negligence
of the driver of another
vehicle. Nor was his evidence sufficient to raise a
res
ipsa loquitur
. The
Magistrate quite obviously was alive to these difficulties when the
evidence on behalf of the plaintiff had been led, and
they were put
to plaintiff’s legal representative in argument. It was
accordingly in the interests of justice to dispose
of the matter
there and then. Having heard argument on behalf of the plaintiff the
Magistrate proceeded to dismiss the claim. The
Magistrate was vested
with a discretionary power to grant absolution (see
Ardecor
(Pty) Ltd v Quality Caterers (Pty) Ltd
1978
(3) SA 1037
(N) 1076F). The absence of a formal application for
absolution can not and did not deprive the court of the power
mero
motu
to raise the adequacy
of proof at that stage of the proceedings. Should I however be wrong
in my conclusion and on the assumption
that the procedure followed by
the Magistrate was flawed, it would undoubtedly in any event not
serve any purpose to refer the
matter back to the court
a
quo
, in the face of the
evidence of Matladi, which did not reach the minimum threshold of
making out a
prima facie
case which was necessary to escape absolution from the instance (see
De Klerk v Absa Bank and
Others
2003 (4) SA 315
(SCA) para [10]).
[5] Counsel for the appellant
submitted correctly in my view, that the correct order of the court
below should have been one absolving
the defendant from the instance
as opposed to the order dismissing the plaintiff’s claim. To
this limited extent the appeal
must succeed. This however was not the
basis of the appellant’s appeal, the appellant was accordingly
not successful on appeal
and it follows that the appellant is not
entitled to the costs of the appeal. Neither is the respondent
entitled to the costs of
the appeal, as it did not oppose the appeal.
I therefore propose not to make any order as to the costs of the
appeal.
[6] In the result the appeal is upheld
to the extent only that the order of the Magistrate in the court
a
quo
is substituted with the
following:
The defendant is absolved from the
instance and the plaintiff is ordered to pay the costs of
this action.
_______________________
FHD VAN OOSTEN
JUDGE OF THE HIGH COURT
I agree.
__________________________
MP TSOKA
JUDGE OF THE HIGH COURT
COUNSEL FOR THE APPELLANT ADV
EJ FEREIRA
APPELLANT’S ATTORNEYS
LEON JJ VAN RENSBURG
DATE OF HEARING
3 SEPTEMBER 2009
DATE OF JUDGMENT 3 SEPTEMBER
2009