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[2024] ZAGPPHC 863
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Motsapi v Road Accident Fund (28291/2022) [2024] ZAGPPHC 863 (26 August 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
CASE NO: 28291/2022
(1)
REPORTABLE:
No
(2) OF INTEREST TO
OTHER JUDGES:
No
(3) REVISED.
DATE:
26/08/2024
SIGNATURE
In
the matter between:
LEBOGANG
GLADYS MOTSAPI
Plaintiff
And
ROAD
ACCIDENT FUND
Defendant
JUDGMENT
PIENAAR
AJ:
INTRODUCTION
[1]
This is a claim for injuries sustained by
the Plaintiff as a result of the motor vehicle accident on 13th of
July 2021.
[2]
The Defendant is the Road Accident Fund, a
juristic person established in terms of the Act. In terms of
Section
17(1)
of the Act, as amended, and
regulations promulgated
thereunder,
the Defendant is liable to compensate victims of motor vehicle
accident arising from the driving of a motor vehicle
where the
identity of the owner or the driver thereof has been established
and/or subject to any regulation made under
Section
26
where the identityof neither the
owner nor the driver thereof has been established.
[3]
The Plaintiff issued summons for Past
hospital expenses of R100 000,00, Future hospital and medical
expenses of R100 000,00, Future
loss of earnings of R3 000 000,00 and
General Damages of R1 500 000,00 which were served on the defendant.
[1]
[4]
The notice of set down was served on the
defendant on 10 April 2024.
[2]
There
was no appearance on behalf of the defendant.
[5]
The Plaintiff applied for a default
judgment by way of Rule 38(2) of the Uniform rules of court to have
regard to the affidavits
filed on record as theevidence that the
Court need to consider to establish the quantum of the Plaintiff’s
claim and the
issue of liability and I have granted that order.
[6]
The matter is before me for both merits and
quantum.
MERITS
[7]
The merits evidence before the Court is,
the Accident Report (AR) form, the Claimant’s section 19(f)
affidavit and the ID
copy of the Claimant. According to the statement
of the claimant, she was a passenger in a Silver Hyundai motor
vehicle bearing
the registration letters and numbers D[...] 1[...]
C[...] G[...], driven by Mr TC Rasentsoere. She remembered
approaching the stop
sign as indicated at the sketch plan, but she
cannot remember what happened after the stop sign.
[8]
According to the Accident Report (AR), the
Claimants name doesn’t appear on the AR Report. There is no
description of the
accident.
[9]
The Plaintiff avers in her particulars of
claim that the defendant is liable for the motor vehicle collision,
as the driver of the
vehicle, which collided with his solely by the
negligence of the driver of the insured vehicle, D[...] 9[...] G[...]
or alternatively
D[...] 5[...] G[...] G[...], who was negligent in
one or more or all the following respects:
9.1
They failed to keep a lookout,
alternatively and proper lookout; and or
9.2
They failed to keep the motor vehicle of
which he was the driver under any, alternatively any proper control;
and or
9.3
They failed to avoid the collision when, by
the exercise of reasonable care, he could and should have done so;
and / or
9.4
They failed to apply the brakes of the
motor vehicle of which he was the driver timeously or at all; and/or
9.5
They failed to pay due regard to the rights
of other users of the road and in particular the rights of the
Plaintiff aforesaid,
and/or
9.6
They
failed
to
exercise
the
care
a
reasonable
person
would
and couldhave exercised under the
circumstances;
9.7
They drover
the
insured vehicle without due regards to the rights of other road users
and in particular the rights of Plaintiff.
9.8
They failed to reduce speed when he ought
to and could a have done so;
[10]
It was contended on behalf of the Plaintiff
that she was a passenger in a Silver Hyundai motor vehicle
registration number and letter
D[...] 1[...] C[...] G[...], and she
remember approaching the stop sign indicated at the sketch plan, but
she cannot remember what
happened after the stop sign.
ISSUES FOR
DETERMINATION
[11]
The issue that stands for determination is
whether or not the Plaintiff has demonstrated, as she ought to, that
the insured driver
was 1% negligent against the actions of the driver
of D[...] 9[...] G[...] or alternatively D[...] 5[...] G[...] G[...].
[12]
The Claimant on her own version cannot
remember what happened after the stop sign.
[13]
There is no description on the Accident
Report how the accident occurred. The Claimant’s name does not
appear on the Accident
Report. Also noted, that the date of the
accident on the Accident Report is incomplete.
[3]
THE LAW
[14]
In
casu
,
the Plaintiff was a passenger when the accident occurred and it is
trite law that any person claiming from the RAF must prove
only 1%
negligence to prove the RAF’s liability.
[15]
In the present case it is clear that the
Claimant cannot remember how the accident occurred.
CONCLUSION
[16]
In conclusion, I find that the Plaintiff
has failed to establish evidence upon which the Court, applying its
mind reasonably thereto,
could or might find in her favour. See
Claude Neon Lights (SA) Ltd v Daniel
1976 (4) SA 403
(A) at 409G-H.
[4]
As stated in
Ntsala
and Others
, the onus in this case rests
on the Plaintiff to probe negligence. In light of the above and in
particular the failure by the Plaintiff
to establish how the accident
took place, I find that the Plaintiff has failed to establish a
prima
facie
case of how the accident
occurred. Based on the above, I conclude that there is no evidence
based on which a reasonable man might
find in favour of the
Plaintiff. I am accordingly satisfied that the appropriate order to
be made would be one of absolution from
the instance.
[17]
In
light
of
the
above,
this
Court
is
not
willing
to exercise
its
discretion
and
grant default judgment against the RAF.
ORDER
[18]
For the above reasons, I make the following
order:
1.
Absolution from the instance is ordered.
2.
Leave is granted for the Plaintiff to
proceed on his/ her claim on the same papers amplified should she be
so inclined.
3.
No order as to costs.
M PIENAAR
ACTING JUDGE OF THE
HIGH COURT,
GAUTENG DIVISION,
PRETORIA
Delivered:
This judgment was prepared and
authored by the Judge whose name is reflected and is handed down
electronically by circulation to
the parties/ their legal
representatives by e-mail and by uploading it to the electronic file
of this matter on Caselines. The
date and for hand-down is deemed to
be 26 August 2024.
APPEARANCES
Counsel
for Plaintiff:
Adv
Philani Zuma
Instructed
by:
H.C
Ramatladi Attorneys
For
Defendant:
No
appearance
[1]
Return of service: Road Accident Fund -
Section 01 Summons and return of service
[2]
Notice of set down - Section 013 Notice of
set down
[3]
Lodgment documents - Section 11, item 8
[4]
Claude Neon Lights (SA) Ltd v Daniel
1976
(4) SA 403
(A) AT 409G-H.