About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Mpumalanga High Court, Mbombela
SAFLII
>>
Databases
>>
South Africa: Mpumalanga High Court, Mbombela
>>
2024
>>
[2024] ZAMPMBHC 41
|
|
Shongwe v Road Accident Fund (589/2021) [2024] ZAMPMBHC 41 (12 June 2024)
IN
THE HIGH COURT OF SOUTH AFRICA,
MPUMALANGA
DIVISION,
MBOMBELA
(MAIN SEAT)
Case No.: 589/2021
(1)
REPORTABLE: YES/NO
(2)
OF INTEREST TO OTHER JUDGES: YES/NO
(3)
REVISED
DATE:
12 JUNE 2024
SIGNATURE
In
the application between:
PETROS
BHEKI SHONGWE
PLAINTIFF
And
ROAD
ACCIDENT FUND
DEFENDANT
JUDGMENT
MOLELEKI
AJ
:
[1]
The plaintiff, Mr Shongwe instituted these proceedings claiming
damages
against the Road Accident Fund for injuries sustained
following a motor vehicle accident that occurred on 24 February 2018,
along
the R541 Road, Ekukwathini, Mpumalanga Province.
[2]
The parties agreed in terms of Uniform Rule 33(4) to separate merits
from
quantum. The court is therefore, proceeding on the issue of
merits only. The determination of quantum is postponed
sine die
.
[3]
The plaintiff testified and called two other factual witnesses.
[4]
Common cause facts between the parties:
4.1
That the plaintiff has the necessary
locus standi in iudicio
;
4.2
That the court has jurisdiction to entertain the matter.
[5]
This court is called upon to determine negligence on the part of the
defendant.
[6]
The evidence led on behalf of the plaintiff is that, he was
travelling
on a single carriageway road from Badplass to Nhlazatshe.
There were four passengers in the Toyota Corolla motor vehicle he was
driving. The plaintiff observed a vehicle driven by an unknown driver
(“the insured vehicle”) approaching from the
opposite
direction. The insured vehicle left its correct lane of travel whilst
overtaking another motor vehicle going towards Badplaas,
resulting in
the insured driver travelling on their lane of travel. To avoid a
head-on collision, the plaintiff applied brakes,
swerved his vehicle
off the road to the left-hand side. The plaintiff in the process lost
control of his vehicle and it overturned.
There was no physical
contact between his motor vehicle and the insured vehicle.
[7]
The defendant led no factual witnesses in relation to the accident.
The
defendant’s counsel cross-examined the plaintiff and his
witnesses regarding contributory negligence on the part of the
plaintiff.
[8]
The accident report and sketch plan were admitted into evidence as
Exhibit
“A”. The plaintiff and his witnesses did not
participate in the compilation thereof. According to the plaintiff,
he
was in hospital for approximately six months after the accident
and he had never been approached by the police officers to obtain
a
statement from him. There was a discrepancy in the accident report
and sketch plan in respect of whether there was another vehicle,
the
insured vehicle, involved. A similar discrepancy appeared in Exhibit
“B”, an affidavit deposed to by one of the
plaintiff’s
affidavit, Mr Sibongiseni John Nzimande dated 9 October 2019. His
explanation of the discrepancy is that the
attorneys obtained
information relating to the accident from the police station. He was
merely required to sign. In my view, nothing
much turns on this. An
omission to mention the insured vehicle is not necessarily a
contradiction.
[9]
The plaintiff and his witnesses appeared to be credible. They
testified
in a clear and consistent manner. They maintained their
version regarding how the accident occurred. They corroborated each
other
in all material respects. It was put to the plaintiff that he
would have been able to avoid the accident had he taken precautionary
measures by not driving at an excessive speed. The presence of an
unknown insured vehicle was also refuted.
[10]
The plaintiff refuted the assertions put to him by the defence
counsel. He maintained that,
had the insured vehicle kept to its lane
of travel and not overtake when it was inopportune to do, the
accident could not have
occurred.
[11]
It is trite that the plaintiff bears the onus to prove negligence on
a balance of probabilities
on the part of the defendant. However,
where contributory negligence and apportionment of damages is pleaded
in the alternative,
the defendant would have to adduce evidence to
establish negligence on the part of the plaintiff on a balance of
probabilities
in respect of the counterclaim. The onus can only be
discharged by adducing credible to support the case of the party on
whom the
onus rests in respect of their respective claims.
[12]
Section 1(1)(a) of the Apportionment of Damages Act, 34 of 1956 gives
the court a discretion
to reduce the Plaintiff’s claim for
damages suffered on a just and equitable basis and to apportion the
degree of liability.
Where apportionment is to be determined, the
court has to consider the evidence as a whole in assessing the
degrees of negligence
of the parties.
[13]
The defendant suggested that the plaintiff failed to keep his vehicle
under control. However,
the plaintiff’s evidence remains
unrefuted. His testimony supported by that of his witnesses was that
he veered towards the
left side of the road to avoid a head-on
collision. He therefore refutes that he was negligent and thus
contributed to the damages
he sustained.
[14]
In the absence of any evidence to the contrary, it follows that the
negligence of the insured
driver was the cause of the damages
suffered by the plaintiff. It remains undisputed that the plaintiff
was confronted by an oncoming
vehicle. He had to take an evasive
action.
[15]
A man, who,
by another’s want of care, finds himself in a position of
imminent danger, cannot be held guilty of negligence
merely because
in that emergency he does not act in the best way to avoid the
danger
[1]
.
[16]
In judging the plaintiff, who, at the time was faced with an
unexpected situation, he was
required to take an immediate action to
avoid a head-on collision. It cannot be said that the plaintiff
should have foreseen the
insured driver overtaking under the
circumstances. I am unable to find that the plaintiff could have
taken any preventative measures
other than swerving his vehicle to
the left of the road to avoid a head-on collision. At that moment,
and in a split second, he
had to quickly swerve out of the road. He
took the only alternative available.
[17]
The Plaintiff is therefore, entitled to recover 100% of his proven
damages. There is no
reason to deviate from the general principle
that costs follow cause.
[18]
In the result I make the following order:
[1]
The Defendant is held liable for 100% of the Plaintiff’s proven
damages as a consequence of the accident on 24 February 2018;
[2]
The determination of the plaintiff’s quantum of damages is
postponed
sine die;
[3]
The defendant is to pay the cost of suit on a party and party scale.
MOLELEKI
AJ
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
MPUMALANGA
DIVISION, MBOMBELA
Counsel for the
Plaintiff:
Adv. S.E Nhlabathi
Ledwaba Attorneys
50 Van Der Walt
Street
C/O BM Ndlovu
Attorneys
32 Bell Street
Caltex Building
4
th
Floor, Office 435
Nelspruit
Counsel for the
Defendant:
Advocate M.S
Ngomane
State Attorney,
Nelspruit
3
rd
Floor, Admin Block, West Wing
R104 Samora Machel
Drive
Nelspruit
Matter heard on 22,
24 & 25 April 2024
Judgment delivered
on 12 June 2024
[1]
Cawood v R
1944 GWLD 50
at 54.