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2024
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[2024] ZAFSHC 138
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Xaba v Road Accident Fund (3217/2023) [2024] ZAFSHC 138 (14 May 2024)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
Case
No: 3217/2023
In
the matter between:
ABEL
KABI XABA
PLAINTIFF
and
ROAD
ACCIDENT
FUND
DEFENDANT
CORAM:
NAIDOO
J
HEARD
ON:
14 MAY 2024
DELIVERED
ON:
14 MAY 2024
JUDGMENT
[1]
This matter
was scheduled for hearing of a trial on the merits of the matter.
The matter was
placed before my colleague, Van Rhyn J this morning, when the Road
Accident (RAF) was represented by Ms K Mkhwanazi.
She advised Van
Rhyn J that she had no instructions from RAF whether to proceed with
the special plea of prescription or not. She
would consequently be
unable to deal with this matter, hence her non-appearance in this
matter, which was sent to me at 11h15 this
morning to deal with. Mr
De La Rey has placed on record a detailed exposition of what occurred
this morning and I do not intend
to repeat it. The trial, therefore,
proceeded on an unopposed basis. Adv H De La Rey represented the
plaintiff and there was no
appearance on behalf of RAF.
[2]
Mr De
La
Rey dealt,
firstly with the
special plea
of prescription, and correctly pointed out that the onus to prove
prescription in this matter rests on the plaintiff.
It has failed to
place any evidence before this court in this regard and consequently
have failed to
discharge the onus on it. Mr de La Rey proceeded to place on record
the history and chronology
of this
matter, from which it was evident that the plaintiff did in fact
submit the documents required by RAF. After two rejections
of the
claim, despite being alerted to the fact that the documents were
already submitted by the plaintiff, the plaintiff waited
for the
requisite 180
days after
lodgement of the claim and issued summons against RAF. The special
plea arises from RAF's contention that there was non-compliance
by
the plaintiff with section 24(5) of the Road Accident Fund Act. The
same point was raised again in the main plea. However, the
defendant
did not appear in this court to properly place its defence before
court. I had no reason not to accept Mr De La Rey's
submissions in
this regard,
that there was in fact total compliance with section 24(5). In the
circumstances, I dismissed the special plea with
costs.
[3]
Mr De La Rey
then led the evidence of the plaintiff in respect of the merits. His
evidence was that he worked as a tow-truck driver
at the time of this
incident. He was called to an accident scene in the Tshiame area of
Harrismith. On arrival he found that a
taxi and a Ford motor vehicle
were involved in a collision and the Ford motor vehicle needed to be
towed from the scene. He placed
4 orange cones in
front of the
Ford vehicle, which was facing in the direction of oncoming traffic.
The cones were placed in a vertical line in front
of the vehicle,
starting 15 metres away from the vehicle. He placed 2 orange cones
behind the vehicle. He also switched on the
headlights of his
tow-truck as well as the emergency flashing roof lights of his
vehicle. In order for the Ford vehicle to be towed,
he had to attach
two J-hooks to the underneath of the vehicle to be able to attach it
to the tow-truck . To do this, he had to
lie on the road to get to
the front of the vehicle. He got under the vehicle, with his legs
still visible on the road.
[4]
While he was
in the process of attaching the hooks to the Ford vehicle,
he
heard
another
vehicle
approaching at
high
speed,
but
did
not know from which direction.
As a
precaution,
he
moved further under the
Ford vehicle
but could not get his left leg under the
vehicle in
time. The approaching vehicle drove over his leg, causing serious
injuries
to
his
left
lower
leg.
He
crawled
to
the
tow-truck,
and summoned
the
ambulance
&
police.
The
ambulance
and
police arrived
about 40-60 minutes later and he was taken to hospital
.
[5]
Mr Xaba's
evidence was that he could not have done more to avoid the collision,
as the cones and lights would have been visible
to all motor vehicles
approaching the scene. The court asked the plaintiff a few questions
to clarify the issue of the information
in
the accident
report, which indicated that there were two other pedestrians injured
in this collision. He said that the police asked
him at the scene for
his driver's licence, which he furnished to them, and asked him no
further questions. He arrived at the scene
alone and was not assisted
by anyone. He does not know where the police got the information from
that there were three people injured
in the accident.
[6]
Mr De La Rey
argued that there is no countermanding evidence as to how the
accident occurred, and the plaintiff's evidence should
be accepted.
It is trite that a vehicle approaching a dangerous scene must do so
with caution, which the driver of the vehicle
that collided with the
plaintiff did not do. He drove in a manner which showed total
disregard for the safety of others.
He also
submitted that the plaintiff took all the
precautions to
warn oncoming vehicles of the danger and could not have done more to
avoid the collision. Mr De La Rey submitted
that the special plea
raised by RAF as well as the allegation of non-compliance with
section 24(5) of the RAF Act caused a great
deal of extra work for
him and his instructing attorney who had to prepare to testify with
regard to the special plea. For this
reason, costs should be awarded
on
Scale
B and not scale A. as is normally done in matters involving RAF.
[7]
It is so that
the trial proceeded on an unopposed basis and that the plaintiff's
version as to the manner in which the collision
occurred is
uncontested. I was unable to find any improbabilities in his version,
and his evidence with regard to the precautions
he took to warn
oncoming vehicles of the dangerous situation ahead of them
.
I can only
conclude that the driver of the vehicle who collided with the
plaintiff was solely negligent in causing the accident.
With regard
to costs, I take note of Mr De La Rey's submissions regarding the
extra work occasioned by the special plea. I am constrained
however,
in the absence of input from RAF regarding the circumstances relevant
to the non-appearance
in this matter
to order costs on scale B. The plaintiff will certainly be able to
claim these costs, and the Taxing Master does
have the discretion to
allow it.
[8]
In
the
circumstances,
I make the
following
orders:
8.1
The
defendant's
special plea is
dismissed with
costs;
8.2
The defendant
is held liable for 100% of the plaintiff's proven or agreed damages
arising out of the motor vehicle collision which
occurred on 27
February 2021;
8.3
The
defendant is
ordered to pay the plaintiff's taxed or agreed party and party costs
to date of this order, on Scale A of the Uniform
Rules of Court;
8.4
In the event
that costs are not agreed:
8.4.1
the plaintiff
shall serve a notice of taxation on the defendant's attorney of
record, and
8.4.2
the plaintiff
shall
allow the
defendant
fourteen
(14) court
days to make
payment of the taxed costs.
S
NAIDOO J
On
behalf of Plaintiff
Adv
H De La Rey
Instructed
by
Honey
Attorneys
Honey
Chambers
Kenneth
Kaunda Street
Bloemfontein
(Ref:
Y Vosloo/AM/J04219)
On
behalf
of
Defendant
No
appearance
Defendant:
The
Road
Accident
Fund
62
St Andrews Street
Bloemfontein
(Ref:
KM/Xaba)