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[2024] ZANCHC 35
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Bomela v Road Accident Fund (1345/22) [2024] ZANCHC 35 (22 March 2024)
IN THE HIGH COURT OF
SOUTH AFRICA
(NORTHERN
CAPE DIVISION, KIMBERLEY)
CASE
NUMBER:
1345/22
DATE
HEARD:
06 JUNE 2023
DATE
DELIVERED:
22
MARCH 2024
In
the matter between:
BOMELA
,
MBULELO
ISHMAEL
Plaintiff
and
ROAD
ACCIDENT
FUND
Defendant
Coram
:
Nxumalo J
JUDGMENT
Per
NXUMALO J:
1.
Plaintiff in these proceedings, a major male resident within the
jurisdiction of this Court, claims payment of compensation for
damages from the Road Accident Fund (defendant). The said
damages are alleged to be resulting from certain bodily injuries
caused by a motor vehicle collision involving a vehicle at the
time
driven by the plaintiff and a certain vehicle at the time driven by
one insured driver, S Ngonyama. The insured driver
and three
other passengers have apparently died as a result of this collision.
2.
The collision allegedly took place on or about 10 October 2020
at approximately 21h40 on the R58 road stretching between Bethulie
and Norvalspont, here in the Northern Cape Province. The said
collision allegedly occurred when the insured driver, travelling in
the opposite direction of the plaintiff, overtook a truck on
a bend
or curve in the road, resulting in a head-on collision between the
insured driver’s vehicle and the plaintiff’s
vehicle.
3.
According to the plaintiff,
the said collision was
caused as a result of the sole negligence of the insured driver; who
was negligent in one or more or all
of the following respects: He
drove too fast under the prevailing circumstances; he failed to keep
a proper lookout; he failed
to apply the brakes of the vehicle he was
driving effectively or at all; he failed to drive the vehicle with
the necessary skill
expected of a reasonable driver in the
circumstances; he failed to avoid the motor vehicle collision when he
could and should have
done so; he executed an overtaking maneuver at
a time when it was dangerous and inopportune to do so; and he drove
his vehicle
on the incorrect side of the road when it was dangerous
and inopportune to do so.
4.
Plaintiff
also alleges that as a result of the said collision, he sustained
severe physical injuries, the extent, nature and duration
of which
appear more fully from the medico-legal reports and the “
RAF
4
”
Serious Injury Assessment report, compiled by one Dr A Vlok, an
orthopedic surgeon, which reports are annexed to the particulars
of
claim as annexure A, B and C respectively.
[1]
5.
The Defendant, for its own part, delivered two
special pleas and one plea
simplisitur
,
in resistance of the plaintiff’s claim. The parties have,
however, agreed to separate the question of the merits from
that of
quantum, in terms of rule 33(4) of the Uniform Rules. Consequently,
this judgment pertains to the merits only.
6.
Save for admitting the names of the parties, the defendant, in sum,
denied each of the foregoing allegations and put the plaintiff to the
proof thereof. In particular, the defendant denied
that the
insured driver was negligent, as alleged or at all. It is also
averred that should this Court find that a collision
occurred as
alleged by the plaintiff, then the defendant pleads that the
plaintiff: drove too fast under the prevailing circumstances;
did not
keep a proper lookout; failed to give the insured driver right of
way; and failed to avoid the collision when he could
and should have
done so.
7.
Alternatively, should this Court find that the insured driver was
negligent as alleged or at all (which the defendant denied) and that
such negligence contributed to the collision, which defendant
also
denied, then defendant pleaded that plaintiff was contributorily
negligent in one or more of the following respects; to
wit
: he
drove too fast under the prevailing circumstances; he did not keep a
proper lookout; he failed to give the insured driver right
of way; he
failed to avoid the collision when he could and should have done so.
8.
Also alternatively, should this Court find that the said insured
driver was negligent as alleged or at all (which the defendant
denied) and that such negligence contributed to the collision, which
the defendant also denied, then the defendant pleaded that the said
driver was confronted with a situation of sudden emergency
and
despite having taken all steps which could reasonably be expected of
him in the circumstances, was unable to prevent the collision
from
occurring.
9.
The Plaintiff was a single witness. By agreement between the
parties, Exhibit A, drawn by the plaintiff with the assistance of
counsel, was admitted into evidence. Exhibit A, is a rough
sketch of the layout of the collision scene. He testified that
at all material times hereto, he saw three vehicles approaching.
The
rectangle marked “
A
” depicts his vehicle before
the collision, travelling in the left-hand lane in an easterly
direction; “
T
” depicts the truck travelling on the
right-hand lane, in a westerly direction; “
B
”
depicts the insured driver’s vehicle, that sought to overtake
the truck and entered his lane of travel shortly before
the
collision; and “
C
” is the second vehicle that
plaintiff saw following B, behind the truck, shortly before the
collision. The mark “
X
” depicts the point where
the plaintiff was told by the police that the collision occurred
between his vehicle and vehicle
B.
10.
Plaintiff,
inter alia
, testified as follows; that: He was a
61-year-old teacher by profession. He has a Code 8 drivers’
licence, which he
acquired in 1983. On the night of the
impugned collision, he was traveling from Bethulie to Colesberg;
via
Norvalspont, where he resides. Thereafter he proceeded to Colesberg,
to get something to eat.
11.
On his way from Norvalspont, after buying food at around 22h00, and
when he had just
reached Colesberg, travelling from west-to-east, he
observed oncoming vehicles in front of him, shortly before vehicle B
collided
with his, on his side of the road. Vehicle B, at all
material times hereto, was the second vehicle that was travelling in
the opposite
direction. This second vehicle (vehicle B), at all
material times hereto was overtaking vehicle T.
12.
He was travelling at approximately 60 kilometres
per
hour at
all material times hereto, but could not tell at what speed the
oncoming vehicle was travelling. The stretch of the road
on which he
was travelling, was a 60 kilometre zone and had an approximately
15-centimetre-high pavement on the left.
13.
The collision took place near Panomino, where the road curved gently
to his right-hand
side. It was dark because the street lights
were off. This stretch of the road was made up of one lane to
and fro,
demarcated by a solid line in the middle. There were
no yellow lanes on this stretch of the road. His and vehicle
B’s
headlights were dim at all material times hereto. There
were other vehicles (two or three) following vehicle B.
14.
There was nothing he could have done to avoid the collision, despite
his long experience
as a driver. For instance, he could not
swerve to the left as he would have hit the pavement, nor could he
swerve to the
right, as that would have practically brought him into
a head-on collision with the oncoming traffic. He also did not
have
sufficient time to apply his brakes. Even if he had done
so, same could not have averted the collision because the collision
happened suddenly, unexpectedly and too quickly, such that he could
not avert same or react timely.
15.
Everything happened so quickly that he cannot recall what happened
thereafter.
He was unconscious after the collision and taken to
hospital in Colesberg. Thereafter, he was transferred to
Bloemfontein
Hospital for further treatment. Under
cross-examination he testified as follows, in sum. That he
first observed the
said vehicles approximately 10 metres away and
further; to
wit
:
“
And further.
You can see. Even if it is on a straight line, even 400 metres you
can see a car.”
16.
When he was asked as to when did he first notice the two vehicles
that were coming
in his direction; he responded as follows:
“
PLAINTIFF
:
M'Lord,
I think, and the answer should be because of it is at night and the
cars, the lights are on, and then this is, it is not
a, it is
not a curve like,
it
is gentle curve
.
You can immediately see there is an oncoming car. Immediately
you, on the road, you can see there is a car that is
coming in front
of you because of, the lights are on.
MR MOGANO
: Are
you able to tell the Court, after you first noticed the two vehicles,
how long did it take for the collision to, to occur,
or for you to
hear the impact of the two cars colliding?
PLAINTIFF
:
M'Lord, as I have said in the, and thing it happens at a quick time,
because I did not expect now this would happen because we
were
driving on this road.
But
now abruptly, in the nick of time, then this thing happened.
”
MR
MOGANO
:
All right.
PLAINTIFF
:
It
was as quick as possible, directly. I did not expect it to
happen.”
[2]
17.
Regard being
had to the foregoing, this Court is of the opinion that,
inter
alia
, the
following salient issues are joined and therefore fall for
determination briefly, in turn.
Whether
there is any evidence that the collision took place on the
plaintiff’s side of the road?
18.
In this regard, the plaintiff
inter alia
,
testified as follows: That it was not the first time he was driving
on that road. He knew that there was a curve on that stretch,
but
same was not such that one would not see oncoming traffic. When
he was asked whether he saw the vehicle he collided with,
he
testified that the said vehicle was following the truck because he
could see its headlights behind the latter, but did not expect
anything untoward; to
wit
:
“…
The car, the truck is
coming and I am just passing the truck. Once I pass the truck, this
car is coming this way. I am confused…”
19.
The Plaintiff also testified that vehicle B collided
with him when it sought to overtake the said truck. That the
said vehicle
was “…
driving on the rear of the truck”
the last time he saw it and that “…
everything
just happened quickly.”
Whilst he saw the
insured vehicle behind the truck at some distance away, he did not
see it coming into his lane
immediately before the collision because
:
“[I]t was just a quick thing…”
. At all
material times hereto, he was driving approximately 60 kilometres per
hour.
20.
He also testified that after the impact, he was “out” and
therefore does
not remember anything more. The next time he
regained consciousness was in hospital. He was later told by
one Police
officer that the collision happened near Panomino in his
lane and that at all material times hereto, he was in his lane and
never
left it. That whilst at all material times hereto, his
headlights were dimmed. He could, however, see the truck
approaching
about five metres away.
21.
As alluded to
above, the plaintiff is a single witness in this part of the
proceedings. In the premise,
on behalf of the
defendant, the following was submitted:
Whilst
it might be so that the accident occurred, the most important
question remained as to how it happened.
That this
Court
only
has one version before it. That plaintiff's evidence cannot
just be simply accepted by this Court, despite it being the
only
version before it.
22.
That the
plaintiff’s evidence must be based on facts and nothing else.
What the plaintiff failed to prove in his testimony
is that he saw
the insured driver come into his lane of travel. That on the
probabilities of where the accident took place, in
light of his
failure to testify seeing the insured driver entering his lane of
travel, this Court should find that the accident
did not occur in the
plaintiff’s lane of travel; alternatively, it should be
inferred by this Court that the insured driver
did not go into the
plaintiff’s lane of travel.
23.
That there is
no tangible evidence before this Court that shows that the point of
impact was on the plaintiff’s side because
he simply did not
see the vehicle he is alleging was wrong. That it might be so because
the plaintiff did not keep a proper lookout,
at all material times
hereto. It is against this backdrop that this Court was urged not to
rely on the point of impact pointed
out by the plaintiff in the
document marked Exhibit A.
24.
All
evidence requires the trier of facts to engage in inferential
reasoning by drawing various inferences regarding the truth or
otherwise of the testimony. These inferences are common to all cases
where evidence is led.
It
is trite in our law that there is no rule of thumb or formula to
apply with regards to the consideration of the credibility of
a
single witness. It is therefore sufficient for the trial court
to only weigh the evidence of the single witness and to
consider its
merits and demerits and having done so, to decide whether it is
trustworthy and whether it is satisfied that the truth
has been told,
despite the shortcomings or defects or contradictions in the
evidence.
[3]
25.
It is so
that circumstantial evidence is not necessarily of less probative
value than direct evidence.
[4]
Not infrequently, our courts are required to engage in second
trier inferential reasoning. These inferences may be
drawn from
circumstantial evidence. In such a process, following certain
rules of logic in some instances, circumstantial
evidence may even be
of more value than direct evidence.
[5]
26.
This Court has
fully weighed the plaintiff’s evidence and considered its
merits and demerits and having done so, is of the
opinion that there
are no major shortcomings, defects or contradictions in same. It
was conceded for the defendant that,
at all material times hereto,
the plaintiff never left his lane. This Court is therefore satisfied
that the collision, on a balance
of probabilities, took place between
the plaintiff’s vehicle and vehicle B on the plaintiff’s
side of the road.
27.
The
impugned hearsay evidence of the said police officer merely
corroborates which side of the road the collision took place. Section
3(1)(c) of the
LAW
OF EVIDENCE AMENDMENT ACT
[6]
empowers this Court to admit hearsay evidence, if in this Court’s
opinion, the evidence ought to be admitted in the interests
of
justice. This Court finds that it is in the interest of justice
that same be admitted and is admitted accordingly.
Whether
the plaintiff should have foreseen the possibility of encountering
the defendant’s vehicle on his side of the road?
28.
In sum, the plaintiff’s case coagulates as
follows: He, at all material times hereto, was driving in his lane.
He saw oncoming
vehicles and all of a sudden vehicle B appeared in front of him and
collided with him. He assumed that the
reason why the impugned
vehicle ended up in his lane of travel was because it sought to
overtake the truck immediately before the
collision. The
stretch of the road on which the collision occurred had one lane in
each direction.
29.
He did not apply brakes
because everything happened suddenly. Even if he had applied
brakes, doing so would still not have
avoided the accident. He
did not have time to avoid the accident in any way. He could
not swerve to the left because
of the height of the pavement to his
left, nor could he have swerved to his right because of the oncoming
vehicles behind the vehicle
that collided with him. And before
that, of course, the truck.
30.
Whilst
it is trite that the assumption that a motorist keeping to his side
of the road is entitled to assume that approaching traffic
will do
likewise does not entitle a driver on the correct side to remain
passive in the face of threatening danger.
[7]
And
whilst it is so that as soon as the danger of collision becomes
evident, he is under a duty to take all reasonable steps
to avert
one.
[8]
It
is further so that the latter should only go onto his incorrect side
as a very last resort, because inherent in such a
maneuver is the
risk that as he does so, the approaching driver may return to his
correct side.
[9]
31.
The
foregoing notwithstanding, it is also trite in our law that very
rarely will a driver be found to have acted unreasonably for
remaining in his correct side of the road.
[10]
It is so because the observance of “the rule of the road”
which decrees traffic to keep to the left of
the center of the road
is of such importance that even when an approaching vehicle is on its
incorrect side of the road, a driver
on his correct side is entitled
to assume that the former will return timeously to its correct
side.
[11]
32.
In the circumstances, this
Court finds that the plaintiff could not have foreseen the
possibility of encountering the defendant’s
vehicle on his side
of the road, nor could he avoid the collision, even if he had applied
brakes. It is also so that even
if the plaintiff was driving at
a speed at which he would have been able to stop within the range of
his vision, he would not have
seen the defendant’s vehicle in
time to avoid the collision.
Which
party was negligent, and if so, to what extent; regard being had to
the facts and circumstances of this case?
33.
The Defendant, for its own
part, contended as follows: That a reasonable person in the position
of the plaintiff, at all material
times hereto, should have known
that the situation on the said road was not normal. That even
if he saw where he was going,
he should have taken into consideration
that other drivers might not have a clear visibility as he did.
This contention was
predicated against the following
dictum
:
“
MR MOGANO
:
It says:
‘
While
the stop sign together with the necessary stop line was absent from
the southern
entrance to the
intersection
,
a
driver approaching the intersection
from that side would not commit an offense if he did not stop
before
entering the intersection
.
That, however, did not relieve him of the duty to exercise special
care
before entering or crossing
the intersection
through the
road, particularly in view of the fact that he had to emerge from a
blind corner.’
And
then the last sentence which we rely on is:
‘
A
reasonable man proceeding in the
through
road
would have been aware of this.’”
[12]
34.
In
the premise, it was contended for the defendant that any claim which
the plaintiff may have, should be reduced in accordance
with the
provisions of the
APPORTIONMENT
OF DAMAGES ACT 34 of 1956
.
[13]
35.
The following was submitted
for the plaintiff in this regard, That the
onus
rested on the defendant, which it failed to discharge. That the
defendant did not adduce any evidence illustrating that the
plaintiff
was negligent or that same, if at all, was causally connected to the
collision, despite cross-examination to that effect.
On that
basis therefore, the
onus
to prove any contributory negligence on the part of the plaintiff was
not discharged by the defendant. And that on that basis,
this
Court should find that the insured driver is solely to blame for the
collision and the defendant is therefore liable for 100%
of
plaintiff's agreed or damages to be proved.
36.
That Whilst it is trite that
the plaintiff bears the
onus
to prove negligence on the part of a defendant, the moment it is
found by this Court that the collision occurred in the plaintiff’s
lane, then the plaintiff has proved negligence. Since it is so that
vehicle B encroached into the plaintiff’s lane or drove
into
his lane, then surely there was negligence on the part of the driver
of vehicle B, because same was at all material times
hereto within
the plaintiff’s lane.
37.
That since it has not been
proved that when the plaintiff saw vehicle B encroaching onto his
lane, which he did not even see because
it happened so fast, he could
have taken reasonable “avoiding action” and that on
probabilities, the avoiding action,
would have averted the
collision. Therefore, under those circumstances, it follows
that 100% of the negligence must be apportioned
to the driver of
vehicle B, which was at all material times hereto driving in the
plaintiff’s lane.
That
otherwise,
if that was not so, the collision would not have occurred.
38.
That whilst on his lane, the
plaintiff could not swerve to his left or right and applying brakes
would not have been effective.
To the extent that there was literally
nothing the plaintiff could have done to avoid the accident, he could
not have been contributorily
negligent.
39.
It
is so that a defendant faced with a delictual claim may in the plea
request apportionment of damages based on the contributory
negligence
of the plaintiff. It is also so that by comparing the
respective degrees of negligence of the parties, a Court
can
determine the extent of each party’s negligence in causing the
damages at issue.
[14]
40.
Whilst the
defendant has alleged the failure of the plaintiff to keep a proper
lookout, it did not prove any of the elements pertaining
to the
negligence of the plaintiff. This notwithstanding, it was contended
for the defendant that to the extent that the plea forms
part of the
record of the trial, the defendant’s position in this regard is
already known. This is not a correct statement
of law.
41.
It is trite in
our law, that it is not sufficient for a defendant counterclaiming
negligence against a claimant to merely allege
so. It is so
because it bears the onus of proving negligence on the part of the
plaintiff before apportionment of damages
can be triggered.
42.
The mere
finding by the trial Court that a party had not been keeping a proper
lookout at the time of a collision was not sufficient
to
ipso
facto
render such a party liable. That it is so since the other party
had to prove that the former’s failure to keep a proper
lookout
was causally connected with the collision -
Guardian
National Insurance CO Ltd v Saal
1993 (2) SA 161(C).
43.
It follows
from the foregoing that it was incumbent on the defendant to elicit
some evidence demonstrating that the plaintiff did
not only fail to
keep a proper lookout, but that failure to do so was causally
connected with the collision. The Defendant
has failed on both
counts.
44.
It has not
been seriously disputed that at all material times hereto, the
plaintiff was driving at an approximate speed of 60km/h,
in a 60km/h
zone. It is common cause that the street lights at all material
times hereto were off and that this part of the
road curved gently.
In the premise, it was contended for the defendant that the
road was not normal. That despite that,
the plaintiff failed to
take reasonable steps to avoid the accident by reducing his driving
speed. It was submitted for the
defendant that a
diligens
paterfamilias
approaching a curve ought to slow down or reduce his speed.
45.
It
is so in our law that for the purposes of liability,
culpa
arises if, and only if:
(a)
a diligens paterfamilias in the position of the party concerned- (i)
would foresee the reasonable possibility of his/her conduct
injuring
another in his person or property and causing him/her patrimonial
loss; and (ii) would take reasonable steps to guard
against such
occurrence; and (b) the person concerned failed to take such
steps.”
[15]
46.
The
Defendant’s submissions, however, overlook requirement (a)(ii);
to
wit
:
whether a
diligens
paterfamilias
in the position of the plaintiff would take any guarding steps at
all; and if so, what steps would be reasonable, regard being
had to
the facts and circumstances of each case. The ultimate issue is thus
always whether the facts establish negligence, not
whether they show
that the driver in question failed to keep his speed within the range
of his vision, though such failure may
in a particular case be a
crucial factor in deciding whether or not there was negligence.
[16]
47.
The secondary
questions arising from the foregoing are therefore,
inter
alia
, to
wit
:
(a) whether the plaintiff should have foreseen the possibility of
encountering vehicle B in the circumstances in which the collision
occurred? (b) Secondly, whether even if the plaintiff was driving at
a speed at which he would have been able to stop within the
range of
his vision, he would not have seen the defendant’s vehicle in
time to avoid the collision? (c) Thirdly, it is whether
the collision
occurred through the sole negligence of vehicle B?
48.
It
is so that road users are generically entitled to assume that others
will act reasonably, observing the codes and conventions
which govern
the movement of traffic on public roads.
[17]
In fact, until the contrary is proved, a driver is entitled to
assume that other road users will not conduct themselves with
suicidal abandon.
[18]
It follows from the foregoing that the plaintiff was entitled
to make certain assumptions about the conduct of other drivers
including the insured driver, whether he had seen their vehicles or
whether their presence was unknown because they were hidden
by other
traffic, buildings or hedges.
[19]
49.
Negligence is
a conduct which involves an unreasonable risk of harm to others. It
is the failure, in given circumstances to exercise
that degree of
care which the circumstances on the occasion demand. This duty of
care of course involves doing or omitting to do
something which may
have as its reasonable and probable consequence injury to others. The
duty is owed to those whom injury may
reasonably and probably be
anticipated, if the duty is not observed. The risk of harm must, of
course, be reasonably foreseen-
Goode
v SA Mutual Fire & General Insurance
1979 (4) SA 301
(W).
50.
In the
premise, this Court finds that the plaintiff should not have foreseen
the possibility of encountering vehicle B in the circumstances
in
which the collision occurred. Secondly, even if the plaintiff
was driving at a speed at which he would have been able
to stop
within the range of his vision, this Court is of the opinion that he
could not have seen vehicle B in time to avoid the
collision.
Applying brakes would also not have avoided the collision.
51.
The
occurrence of the impugned collision proclaims negligence. Human
experience evinces that in circumstances like in
casu
,
where the collision took place on the side of the plaintiff, it is
most improbable that the collision would have taken place without
the
negligence on the part of the insured driver. Proof that a
vehicle was on the incorrect side of the road at the time
of the
collision is accepted as
prima
facie
proof of the driver’s negligence.
[20]
52.
The insured
driver owed a duty to the plaintiff not to drive on his incorrect
side of the road or towards the plaintiff when it
was dangerous to do
so. It is so that if the conduct of a person who owes a duty of care
falls, even in the slightest degree, below
the standard of a
reasonably prudent person, such a person is guilty of negligence. The
degree of care required depends on the
likelihood of injury being in
fact caused and the gravity of the consequences, if an accident
should occur. This Court is of the
opinion that both these
considerations were present were present to a high degree in casu.
The insured driver therefore owed a
great amount of care to the
plaintiff-
Goode
v SA Mutual Fire & General Insurance
(supra).
53.
Consequently,
in this Court’s opinion, the plaintiff has proven facts from
which an inference of negligence may, in the absence
of an
explanation, be drawn, regard being had to the doctrine of
res
ipsa liquitur
.
The doctrine conveniently states the obvious. It
conceptualises circumstances in which a defendant is required to
give
an explanation for the occurrence of an accident and in default,
being held liable.
54.
It was
incumbent on the defendant to displace the
prima
facie
inference by means of an explanation. No such evidence has been
adduced in this proceedings. A finding of
res
ipsa loquitur
means that the collision impels an inference of negligence on the
part of the insured driver, in the absence of an explanation.
As
the defendant has failed to lead any exculpatory evidence, this Court
ineluctably finds the insured driver negligent and
solely liable
towards the plaintiff.
55.
The insured driver in all probabilities executed
an overtaking maneuver at a time when it was dangerous and
inopportune to do so
and drove his vehicle on the incorrect side of
the road when it was dangerous and inopportune to do so.
It
is trite that an emergency due to a driver’s own negligence
cannot avail him.
56.
The
remainder is the matter of costs. Mr. Poho, for the plaintiff, urged
this Court that in the event of it coming to a decision
favourable to
the plaintiff, this Court should contemporaneously award costs in
favour of the plaintiff. In this regard,
this Court was
referred to
Grootboom
v Graaff-Reinet Municipality
,
without more.
[21]
57.
Mr.
Mogano
,
on the other hand, submitted that the issue of costs should be
reserved for decision by the quantum Court. It was, in sum,
submitted for the defendant that regard being had to the possibility
that the plaintiff’s claim, though currently quantified
above
the jurisdiction of the Magistrate Court, might ultimately only be
proven or settled at the latter’s jurisdiction.
That it
is therefore not clear at this stage of the proceedings if the proven
or settlement amount would be within the threshold
of the Magistrate
Court or not. If it is, obviously the plaintiff would not be
entitled to costs on a High Court scale.
58.
This Court
notes that in
Grootboom
,
unlike in this case, the issues raised were not without difficulty,
both factually and in law. In fact, some of the answers
in law
in that case had to be found without the guiding light of precedent.
Those considerations tended to support that matter
having been
brought in the Supreme Court, as it then was.
59.
It is trite
that generically, a litigant instituting proceedings in a High Court
when he ought to have proceeded in a lower Court
will be mulcted in
costs in so far as he will, if successful in his claim, be awarded
costs only on a scale applicable in the forum
he ought to have
chosen. This Court is not in a position to make that
determination at present.
60.
A court’s
discretion with regard to costs is wide, unfettered and equitable.
This Court is therefore of the considered opinion
that determining
the award of costs presently, on whatever scale, would unduly fetter
or restrict the discretion of the quantum
Court. Such would
introduce a mechanical aspect which obviously would be alien to the
concept of judicial discretion with
regard to costs.
ORDER
:
61.
In the
premise, the following order issues:
(a)
DEFENDANT
IS HELD LIABLE FOR DAMAGES, IF ANY, THAT PLAINTIFF HAS SUFFERED IN
CONSEQUENCE OF THE MOTOR VEHICLE COLLISION THAT OCCURRED
ON 10
OCTOBER 2020, WITH THE DEGREE OF FAULT IN RELATION THERETO BEING
APPORTIONED 100% TO THE DEFENDANT;
(b)
THE
DETERMINATION OF THE SAID DAMAGES IS POSTPONED
SINE
DIE
;
AND
(c)
COSTS
ARE RESERVED.
JUDGE APS NXUMALO
HIGH COURT OF SOUTH
AFRICA
NORTHERN CAPE DIVISION
KIMBERLEY
Counsel
for the Plaintiff:
ADV
POHL
Instructed by:
Honey Attorneys,
Bloemfontein
Counsel
for the Defendant:
MR
MOGANO
Instructed by:
Office of the State
Attorney, Kimberley
Edited:
YES/NO
Revised:
YES/NO
Checked:
YES/NO
Date:
[1]
Paras
1-6, pp4-6, Pleadings
[2]
p21,
Record, 06/06/23
[3]
S
v Sauls
1981 (3) SA 172
(A) at
180E–G
[4]
In
S
v Reddy and Others
1996
(2) SACR 1
(A), Zulman AJA quoted
Best
on Evidence
10 Ed at para 297;
to
wit: “[E]ven two articles of circumstantial evidence, though
each taken by itself weigh but as a feather, join them together,
you
will find them pressing on a delinquent with the weight of a
mill-stone…”
[5]
S
v Musingadi
and
Others
2005
(1) SACR 395
(SCA) at para 20
[6]
45
of 1988
[7]
Walpole
and Another v Santam Insurance CO Ltd
1973
(1) SA 357
(T) at 361D-G
.
[8]
Burger
v Santam
1981 (2) SA 703 (A)
[9]
President
Insurance CO Ltd v Tshabalala
1981 (1) SA 1016
(A) at 1020C
[10]
Marais
v Caledonian Insurance Co Ltd
1967
(4) SA 199
(E) at 202F
[11]
Walpole
v Santam
(
supra
)
[12]
Diale
v Commercial Union Assurance Co. of S.A. Ltd
.
1975(4) SA 572 (A) at p 577; see also
National
Employers General Insurance Co Ltd v Sullivan
1988 (1) PH J3 (AD)
[13]
The
“
Damages
Act
”
[14]
S
ection
1 of the Damages Act;
see
also
South
British Insurance CO Ltd v Smit
1962(3)
SA 826 (A)
[15]
Kruger
v Coetzee
1966 (2) SA 428
(A) at 430
[16]
Ntsele
v AA Mutual
Insurance
Association
Ltd
1980
(3) SA 441
(C) at 444D
[17]
Santam
v Letlojane
1982 (3) SA 318
(A) at 329B
[18]
Lotter
v BP
Southern
Africa Pty
Ltd
1967
(2) PH 48 (O); see also
Cooper
v Armstrong
1939
OPD 140
[19]
Van
der Merwe v Union Government
1936 TPD 185
[20]
Marais
v Caledonian Insurance
(
supra
)
[21]
2001 (3) SA 373
(E)