About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Limpopo High Court, Polokwane
SAFLII
>>
Databases
>>
South Africa: Limpopo High Court, Polokwane
>>
2024
>>
[2024] ZALMPPHC 36
|
|
Vengo Sylvia Mitambo obo Minor v Road Accident Fund (1601/2022) [2024] ZALMPPHC 36 (23 April 2024)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
CASE
NO: 1601/2022
REPORTABLE
OF
INTEREST TO OTHER JUDGES
REVISED
DATE:
23/04/2024
In
the matter between:
VENGO
SYLVIA MIYAMBO OBO
MINOR PLAINTIFF
And
ROAD
ACCIDENT
FUND DEFENDANT
JUDGEMENT
KGANYAGO
J
[1] On
10
th
September 2021 the plaintiff’s husband
(deceased) was the driver of the first insured vehicle when he was
involved in a motor
vehicle collision with second insured vehicle.
The deceased died at the scene of the accident as result of the
injuries which he
had sustained during the collision. The plaintiff
has instituted an action against the defendant claiming loss of
support. The
plaintiff is acting in her personal and representative
capacity of her minor child.
[2] The
defendant is defending the plaintiff’s action. The defendant in
its plea had denied liability
and had pleaded that the collision was
caused by the sole negligence of the deceased. The defendant had also
denied that the deceased
was the biological father of the minor child
in that the plaintiff has failed to lodge a copy of the unabridged
certificate. The
parties have agreed to dispose the issue of
liability first, whilst quantum will be postponed sine die.
[3] The
plaintiff has called Maceke Pretty at her only witness. She testified
that on 10
th
September 2021 she had witnessed a motor
collision that occurred at Punda Maria road at about 17h00 between
the first and second
insured vehicles. At the time of the collision
she was a pedestrian standing next to the road. On that date the
weather was clear,
and the road which the collision took place had
potholes. The maximum speed limit on that road might have been 60 km
per hour.
[4] As
she was standing next to the road facing the direction of Malamulele,
she saw the second insured vehicle
travelling from that direction.
When she looked at the direction of Salem, she saw taxi coming from
that direction. Behind the
taxi was the first insured vehicle.
She saw the taxi putting on its hazards lights, an indication that it
was going to stop.
The first insured vehicle overtook the taxi and
immediately flickered its head lights for the second insured vehicle
which was
coming from the opposite direction to give way for it. The
first insured vehicle tried to swerve back to its correct lane but it
was too late and a collision between the first and second insured
vehicles occurred.
[5] The
second insured vehicle collided with the first insured vehicle
resulting in the first insured vehicle
to spin and face the direction
it was coming from. The road on which the collision occurred was a
two-way road, and the point of
impact was on the middle centre line.
Both insured vehicles were travelling at a high speed. According to
her observation, the
insured driver of the second insured vehicle
could have avoided the collision as where the collision occurred the
road was wide,
and there were also people who were boarding or
alighting from the taxis. The driver of the second insured vehicle
did not warn
the driver of the first insured vehicle.
[6] The
witness was cross-examined and she stated that at the time of the
impact, the driver of the first
insured vehicle was trying to drive
back to his correct lane. The witness stated that as per her
observation, the drivers of both
insured vehicles did not try to
reduce the speed of their vehicles prior to the collision. The
witness stated that prior to the
collision she was standing a metre
from the tarmac road on gravel site. It was put to the witness that
had the driver of the second
insured vehicle swerved to the left, he
would have knocked her. The witness denied that and stated that on
the left there was enough
space as there was a gravel road leading to
the village.
[7] The
witness conceded that where she standing, she was knocked by the
first insured vehicle after it had
collided with the second insured
vehicle. The witness conceded that after the impact, the first
insured vehicle came to a standstill
on the gravel side. The witness
stated that when the first insured vehicle started overtaking the
taxi, the second insured vehicle
was about 5 paces from it. That
concluded the evidence of the plaintiff and she closed her case.
[8] The
defendant called Mahungu Eric Chauke as its only witness. He
testified that on 10
th
September 2021 he was the driver of
the second insured vehicle. He was driving from Thohoyandou and was
in the company of his family.
He driving at a speed of 40 and 50 km
per hour when he was involved in a motor vehicle collision with the
first insured motor vehicle.
The collision occurred around 18h00.
Before the collision occurred, he saw the first insured vehicle
coming from the opposite direction
flickering its head lights at him.
By then he was about 10 metres from the first insured vehicle which
was traveling in his lane
of travel.
[9] On
the right side of the road, there was a taxi coming from the opposite
direction and was about 6 metres
from him. On the left side of the
road there were people who were standing and some were walking. He
therefore could not have swerved
to the left or right. He tried to
apply brakes but it was too late and a head-on collision occurred
between his vehicle and the
first insured vehicle. He and his family
sustained some serious injuries as a result of the accident and were
transported to hospital
by the emergency services people. The speed
limit in the area where the collision took place is 60 km per hour.
[10] Where
the collision took place is a two-way road. When the first insured
vehicle flickered its head
lights, the lights from the first insured
vehicle was all over the lanes and he did not know what to do, hence
he applied brakes.
Between him and the taxi there was no space. If
there was a space, he could have swerved to the right. Where the
collision took
place was a busy area. The first insured vehicle came
at a high speed hence he applied brakes. As the first insured vehicle
came
at a high speed, there was nothing he could have done to avoid
the collision.
[11] The
witness was cross-examined and he stated that where the collision
occurred it was not that clear
and that he saw multiple lights coming
from the opposite direction. According to the witness these multiple
lights might been from
two vehicles as they were coming from two
lanes. When asked whether he had tried to warn the driver of the
first insured vehicle,
he responded by stating that he was shocked
and his only option was to apply brakes. The witness conceded that at
the time of the
collision he was familiar with the road. The witness
stated that where the collision took place there was a street to the
left
of the road. The witness stated that the collision occurred in
his lane of travel, just next to where there is a road that off ramp
to the gravel. The witness stated that his vehicle was damaged in the
front, but could not tell where the two insured vehicles
came to a
standstill after the impact. When asked to estimate the number of
people who were on the side road, he responded by stating
that he
cannot tell as he was concentrating on the road. That concluded the
defendant’s evidence and it closed its case.
[12] The
plaintiff is claiming loss of support emanating from the death of the
deceased who was her husband,
who died as a result of the injuries
that he had sustained when first insured vehicle which the deceased
was driving collided with
the second insured vehicle. It is trite
that in matters of this nature, all that the plaintiff needed to
prove in order to succeed
with her claim is 1% proverbial negligence
on the part of the second insured driver for the defendant to held
liable for 100% of
the plaintiff’s proven or agreed damages.
[13] In
Minister
of Police and Others v Umbhaba Estates (Pty) Ltd and Others
[1]
Molemela JA said:
“
The
proper approach for establishing the existence or otherwise of
negligence was laid down in Kruger v Coetzee. This test rests
on two
legs, namely, reasonable foreseeability and the reasonable
preventability of harm or damage. It is important to emphasise
that
what is required is foresight of the reasonable possibility of harm
ensuing; the foresight of a mere possibility of harm does
not
suffice. What is or is not reasonably foreseeable in a particular
case is a fact bound enquiry that entails the consideration
of all
the circumstances of the case. While the precise manner in which the
harm occurs need not be foreseeable, the general occurrence
must be
reasonably foreseeable”.
[14] The
circumstances under which the collision of the 10
th
September 2021 occurred was that the deceased was trying to overtake
a taxi which was travelling in front of him after the taxi
had put on
its hazards lights indicating that it was going to stop. According to
the evidence of the second insured driver at the
time the deceased
was trying to overtake the taxi, he (second insured driver) was
travelling from the opposite direction and was
at a distance of about
of 10 metres when he saw many lights flashing at him and the deceased
first insured vehicle was in his lane
of travel. He could not swerve
to the right as there was an oncoming car, he could not swerve to the
left as there were many people,
and he decided to apply brakes when
he saw that the accident was about to happen. Unfortunately, it was
too late and a collision
occurred in his (second insured vehicle)
lane of travel. However, the second insured driver could not estimate
as to how many people
were on the side of the road.
[15] The
question is whether the steps taken by second insured driver were
what a reasonable driver would
haven taken faced with the situation
the second insured driver was in, wherein he was required to make a
decision a split of seconds.
Should the court find that the steps
taken by the second insured driver were not reasonable, that makes
him to have also been negligent.
The second insured driver testified
that the lights which were flickered in front him seemed to have come
from two vehicles. It
is clear that the second insured driver was
warned of the eminent danger that was ahead him and was requested to
take some swift
action in order to avert that. It was no longer a
question of whether he was having a right of way or not, but how to
prevent that
eminent danger ahead of him.
[16] The
plaintiff’s witness had testified that where the accident
occurred, on the left side the road
was wide and there is also a
gravel road from the tarmac towards the village which had enough
space for the second insured vehicle
to have swerved to. The second
insured driver had testified that where the collision occurred there
was street on the left side
of the road, which corroborate the
version of the plaintiff’s witness. The second insured driver
therefore had an option
to have swerved to that road without
difficulties taking into consideration that he had testified that he
was driving at a speed
which was in the region of 40 to 50 km per
hour. In my view, the steps taken by the second insured driver fell
short of the steps
that a reasonable driver faced with the situation
in which the second insured driver was in would have taken. Firstly,
two vehicles
from the opposite direction have warned him of eminent
danger ahead of him, and he did not immediately apply brakes to check
what
was happening, but only applied brakes when the accident was
about to happen. Secondly, a reasonable driver who find himself in
his situation would have checked on the left side the number of
people who were standing next to road and see whether he/she could
not have manoeuvred and swerved to the left taking into consideration
that he was driving at a speed in the region of 40 to 50
km per hour,
rather than to apply brakes, standstill on the middle of the road
waiting to be knocked by the oncoming car.
[17] It
is trite that a driver of a motor vehicle faced with an oncoming
vehicle which had swerved and entered
his/her lane of travel must
first try to swerve to the left side of the road and not attempt to
swerve to the incorrect lane. The
second insured driver did not
attempt to try swerve to the left. At the speed he was travelling if
there were pedestrians on left
side, he could have hooted to the
pedestrians, and they themselves would be seeing that there was
imminent danger ahead of the
second insured driver and would have
made way for him as there was enough space on the gravel side. Taking
into consideration the
totality of the evidence adduced, the court is
satisfied that the plaintiff had succeeded in proving 1% negligence
on the part
of the second insured driver.
[18] In
the result the following order is made:
18.1
The plaintiff succeed with her claim on merits and the defendant is
held liable 100% of the plaintiff’s proven or agreed
damages.
18.2
The defendant to pay the plaintiff’s costs on a party and party
scale.
KGANYAGO
J
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA,
LIMPOPO
DIVISION, POLOKWANE
APPEARANCES:
Counsel
for the plaintiff :
Adv D Mashao
Instructed
by :
MR Mphahlele Attorneys
Counsel
for the defendant :
Phaswane K
Instructed
by :
Office of State Attorney PLK
Date
heard
: 13
th
March 2024
Electronically
circulated on :
23
rd
April 2024
[1]
2023
ZASCA 85
;
[2023] 9 BLLR 880
(SCA); (2023) 44 IJL 2462 (SCA) (1 June
2023) at para 30