About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, East London Local Court
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, East London Local Court
>>
2024
>>
[2024] ZAECELLC 13
|
|
Dakada v Road Accident Fund (EL500/2021) [2024] ZAECELLC 13 (30 April 2024)
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
[EASTERN
CAPE DIVISION – EAST LONDON]
CASE
NO.: EL 500/2021
In
the matter between:-
LINDELWA
AGATHA
DAKADA
APPLICANT
and
ROAD
ACCIDENT
FUND
RESPONDENT
JUDGMENT
NORMAN
J:
[1] This
is an action arising from a motor vehicle collision. At the
commencement of the trial Mr.
Taljaard applied for separation
of issues of merits and quantum. The court accordingly made a ruling
for separation of quantum
and merits in Rule 33(4) of the Uniform
Rules of Court.
[2] Mr
Taljaard advised the court that this matter was transferred by an
order of the Mthatha Court to this
court. He further informed the
court that the Defendant was directed to attend a pre-trial
conference but failed to do so. He
submitted that on the
previous occasion there was no appearance for the defendant. He
indicated that plaintiff was
ready to proceed because the claims
handler of the defendant had been contacted by his instructing
attorney but was not present
at court and there was no representative
for the defendant.
[3] There
is indeed a court order on file evincing that on 08 February 2024,
Hartle J issued a case flow
management directive wherein she directed
the defendant to, respond to the plaintiff’s request to hold a
pre- trial conference
and to obtain firm instructions in respect of
the questions raised on her behalf in the relevant rule 37 (4)
agenda. The court
further ordered that the defendant was to be held
strictly to the provisions of the amended rule 36 (9) and that filing
of any
expert notices / reports out of time will require to be
condoned by the court.
[4] When
the court resumed today, there was no appearance for the defendant.
The plaintiff was
present at court and was ready to
proceed with the trial.
Plaintiff’s
evidence
[5] Plaintiff
testified that she is employed as a Deputy- Director General at the
Office of the Premier.
She testified that on 8 April 2017 at
approximately 07h00 she was driving a Nissan NP 200, a bakkie, and
had passengers in front
and at the back of the bakkie. She was
driving on the road from Coffee Bay towards Mqanduli, in the Eastern
Cape Province. The
road was a narrow-tarred road. The
weather was good and clear. There was no rain. She was driving
at a speed
of between 60km and 100 km per hour. As she was
approaching the right turn into Mancamu Village she noticed an Avanza
approaching.
She was driving on the correct side of the road. She
observed that the Avanza was wobbling but then stabilized and came
towards
her.
[6] She
heard a bang. She believed that she lost consciousness. When she came
to her senses there were people
asking her to come out of the
vehicle. She could not get out of the vehicle because both her hands
were fractured and she was trapped
inside the vehicle. Jaws of
life had to be used to get her out of the vehicle. She observed
that her vehicle was in
the middle of the road. She observed
that the Avanza was, off the road surface, on her side of the road,
on the grass and
it was facing the road. She observed
that the damage on her vehicle was on the right front corner. She
testified that
before the accident she was driving and had remained
on the correct side of the road. That was the plaintiff’s
evidence. Plaintiff closed her case.
Submissions
on behalf of the plaintiff
[7] Mr.
Taljaard applied for judgment in favour of the plaintiff. He further
submitted that based on the
maxim
res ipsa loquitur
, the court
must find that the driver of the Avanza was the sole cause of the
accident.
Discussion
[8] In
her particulars of claim plaintiff pleaded , that the driver of the
Avanza, Ngubombi, was negligent
in that he failed to keep a
proper lookout; he drove the Avanza at an excessive speed; he failed
to apply brakes timeously;
he drove the Avanza onto the incorrect
side of the roadway; he failed to keep the Avanza under control ; he
failed to have sufficient
regard to other vehicular traffic on the
roadway , particularly, her vehicle.
[9] The
defendant denied that there was a collision in paragraph 1 of its
plea. In the alternative it pleaded
that the plaintiff drove
recklessly; she drove in an unreasonable and excessive speed;
failed to apply brakes when it was
required of him to; failed to
exercise due diligence and avoid the collision with the insured
driver’s vehicle. Defendant
further denied that plaintiff
suffered any injuries and denied any liability to compensate her.
[10] The
uncontested evidence is that the Avanza was wobbling and became
stable and came towards the plaintiff’s
vehicle and she heard a
bang . She was driving on the correct side of the road. When
she came to her senses the Avanza was
on her side of the road but off
the road surface and on the grass. If the Avanza was on
the plaintiff’s side
of the road that means the driver of the
Avanza drove on the incorrect side of the road. The damage on the
plaintiff’s bakkie
was on the right front corner. This evidence
is consistent with the allegations in the particulars of claim,
amongst others, that
the driver of the Avanza drove on the incorrect
side of the roadway. The plaintiff, in my view, is entitled to
say
res ipsa loquitur.
[11] The
facts as stated by the plaintiff point to one direction that the
driver of the Avanza vehicle was
the sole cause of the accident. The
Plaintiff’s evidence that she suffered bodily injuries arising
from the accident
was also not contested
[1]
.
The defendant has failed in these proceedings to render any
acceptable or reasonable account of the events that led to the
accident. In
Road
Accident v Mehlomakulu
,
supra
,
at page 394 para J, Jones J stated:
“
A
different class of occurrence is to be found, for example, in the
leading case of Arthur v Bezuidenhout and Mieny
[2]
, : res ipsa loquitur where the occurrence was not merely a collision
between two vehicles, but where it was known that one motor
vehicle
was driven on its incorrect side of the road for no apparent reason,
and collided with another motor vehicle approaching
from the opposite
direction. This illustrates that for the maxim to be brought into
play , the occurrence is sufficiently described
to make the finding
of negligence self- evident from its very nature. Even then, the
inference need not be drawn, and further,
it may be negatived by a
contrary explanation by the defendant or by some other means.”
[12] The
plaintiff gave her evidence in a clear and straightforward manner.
She answered questions as she
was led by counsel clearly and
confidently. Plaintiff’s version was not controverted by
the defendant. I accordingly
accept her evidence as reliable.
[13] The
court has, in the circumstances accepted the facts set out by the
plaintiff. There is no explanation
from the defendant why the Avanza
was driven on the incorrect side of the road. That leaves this court
with an inescapable conclusion
that by driving onto the incorrect
side of the road, the driver of the Avanza collided with the
plaintiff’s bakkie. I
find that the driver of the Avanza,
by so doing, was negligent and was the sole cause of the accident
that resulted in the plaintiff
suffering bodily injuries. I
accordingly find that the plaintiff discharged the onus resting on
her
[3]
. The defendant is found
liable to compensate the plaintiff for all proven damages suffered by
her.
Costs
[14] On
the issue of costs the rule is that a successful party is entitled to
her costs. There are
no facts that would warrant a departure
from that rule.
[15] I
accordingly make the following Order:
ORDER
IT
IS ORDERED THAT:
1.
The
defendant is 100% liable to compensate the plaintiff for all proven
damages that the plaintiff has suffered on account of the
injuries
she sustained in the motor vehicle accident that is the subject of
this action.
2.
The
action is postponed to
5
August 2024
for the determination of quantum of the plaintiff’s damages.
3.
The
defendant shall pay the costs occasioned by the postponement up to
and including 29 April 2024, together with interest thereon
calculated at the prescribed legal rate of interest from the date 14
days of
allocatur
to the date of payment thereof, which costs shall include:
3.1.1 the
qualifying expenses (if any) and the fees of Dr. Olivier, Ms.
Cornelius, Mr Shapiro and Mr Loots.
3.1.2 the
fees and expenses of the plaintiff’s legal representatives to
prepare for trial, consult
with witnesses, minute statements, prepare
heads of argument and their day fee in respect of their court
appearances on 29 April
2024;
3.1.3 the
travelling accommodation expenses of the plaintiff and her witness to
attend court on 29 April
2024.
4. The
fees of the plaintiff’s counsel shall be calculated in
accordance with the tariff set out in
Scale B as contemplated in Rule
69 of the Uniform Rules of Court.
5. The
defendant shall deposit the aforementioned costs together with
interest thereon, if applicable, by
direct electronic transfer into
the trust account of the plaintiff’s attorneys, Drake Flemmer &
Orsmond Incorporated,
the details of which account are as follows:
Account
Name:
Drake Flemmer & Orsmond Incorporated
Bank:
S[…]
Bank
branch code:
0[…]
Bank
account No.:
0[…]
Ref
No.:
B[…]
6. If
the defendant intends to adduce expert evidence, it shall deliver
expert notices and summaries in terms
of rule 36(9)(a) and (b) by no
later than (10) TEN days before the date set out in paragraph 1
above. In this regard, defendant
‘s attention is again drawn to
the Court Order issued by Hartle J on 08 February 2024, to the effect
that the defendant was
to be held strictly to the provisions of the
amended rule 36 (9) and that filing of any expert notices / reports
out of time will
require to be condoned by the court.
7. No
further postponements of the action will be granted unless a
substantive application for such relief
is made.
T.V.
NORMAN
JUDGE
OF THE HIGH COURT
APPEARANCES:
For
the PLAINTIFF:
ADV TALJAARD
Instructed
by:
DRAKE FLEMMER & ORSMOND INC.
QUENERA
PARK
12
QUENERA DRIVE
BEACON
BAY
EAST
LONDON
TEL:
043 722 4210
For
the DEFENDANT:
NO APPEARANCE
Instructed
by:
ROAD ACCIDENT FUND
4
TH
FLOOR METROPOLITAN BUILDING
CNR
DRULY & CAXTON STREET
EAST
LONDON
TEL:
043 702 7800
LINK
NO. 4133801
Matter
heard on
:
29 April 2024
Judgment
Delivered on :
30 April 2024
[1]
Road
Accident Fund v Mehlomakulu
2009
(5) SA 390 (E).
[2]
Arthur
v Bezuidenhout and Mieny
1962 (2) SA 566
(A) at 574.
[3]
Sardi
and Others v Standard and General Insurance Co. Ltd
1977 (3) SA 776
(A).