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2024
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[2024] ZAMPMBHC 75
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Makola v Road Accident Fund (949/2024) [2024] ZAMPMBHC 75 (7 October 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
MPUMALANGA DIVISION,
MBOMBELA
CASE
NUMBER
: 949/2024
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED: NO
DATE:
7/10/2024
SIGNATURE
In the matter between:
MOSES MOSHE
MAKOLA
PLAINTIFF
and
ROAD ACCIDENT
FUND
DEFENDANT
JUDGMENT
OOSTHUIZEN-SENEKAL
CSP AJ:
Introduction
[1]
In the matter before the court, the
incident under consideration involves a truck with interlinks that
experienced a catastrophic
failure of its braking system while
traveling downhill.
[2]
The plaintiff, Mr Makola Moses Moshe has
instituted a claim for damages against the Road Accident Fund (“
the RAF”)
pursuant to injuries sustained in a single-vehicle, a
truck accident. He asserts that the accident occurred due to a
failure in
the truck’s braking system, which caused him to lose
control and crash. The plaintiff alleges that the accident was the
result
of negligence on part of the insured owner, who did not
properly maintain the truck’s brakes.
This negligence, according to the
plaintiff, rendered the vehicle unable to brake while navigating a
curve, leading to the accident
and his serious injuries.
[3]
The defendant denies liability, arguing
that the claim falls outside the scope of the Road Accident Fund Act
(“the Act”),
since it does not involve negligence related
to the driving of a vehicle, as specified in the Act.
The defendant also contends that the
insured owner of the truck was not negligent, as he was unaware of
the faulty braking system.
Furthermore, the defendant asserts that
the plaintiff is solely responsible for the accident, as he continued
to drive despite
knowing the brakes were defective.
[4]
A ruling was made, upon request, to
separate the issues of liability and quantum in accordance with Rule
33(4) of the Uniform Rules
of Court (“the Rules”).
The determination of quantum was postponed
sine die
.
Litigation History
[5]
On 5 September 2018 the plaintiff issued
summons against the defendant claiming damages in the amount of R 4
350 000.00 (Four million
three hundred and fifty rand) as a result of
a motor vehicle accident on 26 January 2017 along the R533, Robbers
Pass, Pilgrims
Rest Road, Mpumalanga Province.
[6]
The summons was served on the defendant on
18 September 2018.
The
defendant filed a notice to oppose on 27 September 2018, followed by
the defendant’s plea on 5 November 2018.
[7]
During various pre-trial conferences, the
parties reached the following agreements;
[7.1] The issues of
merits and quantum are to be separated.
[7.2] The motor vehicle
accident occurred on 26 January 2017, as alleged in the particulars
of claim.
[7.3] The plaintiff was
the driver of the motor vehicle at the time of the accident.
[7.4] The accident was a
single-vehicle incident.
[7.5] The plaintiff was
transported by ambulance from the accident scene to a medical
facility.
[7.6] The discovered
documents are what they purported to be, and may be used without
formal proof. While the parties do not admit
the correctness of their
contents; and such will have to be determined during trial.
[8]
The trial commenced 15 May 2024, during
which the plaintiff’s evidence was fully presented.
The defendant chose not to call any
witnesses.
Both
parties agreed to submit written arguments by 20 May 2024.
However, before these submissions were
made, the plaintiff’s counsel expressed the intention to apply
for the reopening of
the plaintiff’s case to present additional
witnesses.
This
application was opposed by the defendant and was heard on 3 July
2024.
[9]
After hearing arguments from both sides,
the court reserved judgment.
On
10 July 2024, ruling was delivered, dismissing the application to
reopen the plaintiff’s case.
[10]
The parties subsequently submitted their
written arguments on 16 and 27 August 2024, respectively, and
judgment in the main action
was reserved.
Evidence by the Plaintiff
[11]
The plaintiff was the sole witness to
testify during the trial.
He
stated that on the afternoon of 26 January 2017, he was driving a
truck from Groblersdal to Pilgrims Rest to deliver goods.
After traveling approximately 230 km, and
descending a steep incline, he noticed a road sign instructing
drivers to shift to a lower
gear.
As
the truck gained speed, the plaintiff attempted to apply the brakes
to control the vehicle’s descent. However, it quickly
became
evident that the braking system was not functioning as intended.
He immediately called his employer,
Schoeman Boerdery (Pty) Ltd, and spoke to the workshop manager,
Etienne.
He was
instructed to complete the delivery and that the truck would be
serviced upon his return.
[12]
The plaintiff further testified that, as he
continued driving, he sought a safe place to stop the truck.
However, as he approached a curve in the
road, the truck continued to accelerate uncontrollably down the hill,
the plaintiff lost
the ability to manoeuvre the vehicle safely
because he was unable to engage the brakes.
As a result, he lost control of the truck,
and it overturned.
[13]
The plaintiff also stated that he sustained
serious injuries and was bleeding when the South African Police
Services (“the
SAPS”) arrived at the scene.
He added that he could not recall what
happened after that point.
[14]
During cross-examination by the defendant’s
counsel, the plaintiff denied having made any written statement to
the SAPS regarding
the incident.
He
also testified that after the accident, he remained employed at
Schoeman Boerdery, where he was assigned light duties to accommodate
him.
This
continued until his dismissal in July 2017.
According to the plaintiff, his dismissal
was due to misconduct and dishonesty, not for reckless or negligent
driving.
Legal Framework and
Evaluation of Evidence
[15]
Section 17 (1) of the Act reads:
17.
Liability
of Fund and agents-(1) the fund or an agent shall-
(a)
...
(b)
...
be
obliged to compensate any person (the third party) for any loss or
damage which the third party has suffered as a result of any
bodily
injury to himself or herself or the death of or any bodily injury to
any other person, caused by or arising from the driving
of a motor
vehicle by any person at any place within the Republic, if the injury
or death is
due
to the negligence or other wrongful act of the driver or of the owner
of the motor
vehicle
or
of his or her employee in the performance of the employee’s
duties as employee:….”
[my
emphasis]
[16]
Section 18 (2) reads:
18.
Liability limited in certain cases. –
(1)
...
(2)
Without
derogating from any liability of the Fund or an agent to pay costs
awarded against it or such agent in any legal proceedings,
where the
loss or damage contemplated in section 17 is suffered as a result of
bodily injury to or death of any person who, at
the time of the
occurrence which caused that injury or death, was being conveyed in
or on the motor vehicle concerned and who was
an employee of the
driver or owner of that motor vehicle and the third party is entitled
to compensation under the Compensation
for Occupational Injuries and
Diseases Act, 1993 (Act No. 130 of 1993), in respect of such injury
or death -….”
[17]
Section 19 provides as follows:
“
19.
Liability excluded in certain cases
The
Fund or an agent shall not be obliged to compensate any person in
terms of section 17 for any loss or damage-
(a)
For
which neither the driver nor the owner of the motor vehicle concerned
would have been liable but for section 21; or
(b)
…
..”
[18]
It is important to note that to determine
whether an injured party has a valid claim against the Fund, one must
consider the provisions
of Section 18.
If
the injured party was injured in the course and scope of their
employment, they are entitled to claim compensation under the
Compensation for Occupational Injuries and Diseases Act 130 of 1993
(“COIDA”).
If
the injury occurred during the course of employment in a motor
vehicle accident, the claim must be made through COIDA, and the
Fund’s liability is limited to any balance not covered by
COIDA.
In other
words, the Fund is only responsible for the remaining amount after
the COIDA claim.
[19]
In this case, I must determine whether the
plaintiff’s claim falls within the scope of section 17 of the
Act, specifically
assessing whether the plaintiff’s injuries
resulted from a motor vehicle accident caused by the wrongful and
negligent actions
of the insured owner.
[20]
Wells
and Another v Shield Insurance Co. Ltd and Others
[1]
Corbett
J stated the following in relation to section 17:
“
The
section lays down two prerequisites of liability upon the part of a
registered insurance company for damages suffered by a third
party as
a result of bodily injury.
These
are (i) that the injury was caused by or arose out of the driving of
the insured motor vehicle and (ii) that the injury was
due to the
negligence or other unlawful act of the driver of the insured
vehicle, or the owner or his servant.
There
are thus two separate enquiries, a fact which is sometimes lost sight
of because in most cases the injury is caused by the
negligent
driving of the insured driving vehicle.”
[21]
In
the unreported decision of
Maatla
v Road Accident Fund
[2]
the
court found that the twofold enquiry referred to in
Wells
supra
,
had to be answered in the affirmative, namely, that the injuries
arose out of a motor vehicle collision and secondly that the
owner of
the vehicle
in
terms
of
the
common
cause
facts
was
negligent.
Accordingly,
the
court
concluded that the defendant should be held accountable for the
injuries sustained by the plaintiff.
Discovered Documents
[22]
In this matter, the court must consider the
status and admissibility of the discovered documents submitted by
both parties.
During
the cross-examination of the plaintiff, the defendant heavily relied
on a warning statement allegedly made by the plaintiff
to Warrant
Officer Kruger of the SAPS on 31 January 2017 at the Pilgrims Rest
Police Station. It has been established in the pre-trial
conferences
that these documents are what they claim to be; however, it is
important to note that the correctness of the contents
of the
documents was to be determined during the trial.
[23]
The parties have agreed that the discovered
documents can be admitted without the need for formal proof.
This means that the documents will be
accepted as genuine representations of the content they claim to
contain.
Nonetheless,
this acceptance does not equate to a determination of their
correctness or reliability.
[24]
As the trial progresses, it will then be
the responsibility of the parties to provide evidence that supports
the correctness of
the information contained in these documents.
This may involve presenting witness
testimony, expert analysis, or other forms of evidence that can
confirm the truth of the contents
of such documents.
[25]
The court emphasizes that the fact that
these documents are deemed admissible does not preclude either party
from challenging the
proof or the originality thereof during the
trial. Each party retains the right to scrutinize and contest the
correctness of the
documents and the implications of their contents
in relation to the claims and defences raised.
[26]
As the plaintiff is not the author of the
warning statement, the standard rules regarding hearsay evidence
apply.
For the
court to consider the statement’s contents, either a proper
foundation must be established for its admission, or the
plaintiff
must consent to both its submission as evidence and the accuracy of
its contents.
Without
this foundation or the plaintiff’s consent, the statement
remains hearsay.
Consequently,
the defendant must prove the contents of the statement by calling the
person who recorded it.
[27]
In this case, the court must assess the
implications of the defendant’s decision not to call the police
officer who took the
plaintiff’s warning statement to testify.
This choice carries significant
consequences for the evaluation of the evidence presented.
[28]
The warning statement taken by the police
officer is a critical piece of evidence in this matter and
particularly in the case for
the defendant.
It contains statements made by the
plaintiff regarding the incident in question and serves as a
foundational document for the claims
and defences raised by the
defendant. However, the absence of the police officer’s
testimony leaves several important issues
unresolved.
[29]
Firstly, without the police officer’s
testimony, the court cannot ascertain the context in which the
statement was taken,
including the circumstances surrounding its
creation, the manner in which it was recorded, and whether the
plaintiff fully understood
the implications of the statements made.
Furthermore, the officer’s presence
would have allowed for clarification of any ambiguities within the
statement and provided
an opportunity for cross-examination by the
opposing party.
[30]
Secondly, the correctness and authenticity
of the content of the warning statement remain unproven in the
absence of supporting
testimony.
The
defendant has not presented any evidence to corroborate the
correctness of the statement, nor has it been subjected to scrutiny
through questioning of the author thereof.
This lack of verification raises concerns
regarding the reliability of the statement as evidence.
[31]
The defendant must establish the
authenticity and the correctness of the documents and statements
relied upon in their case.
By
failing to call the police officer to testify, the defendant has not
established same.
Consequently,
the court finds that the content of the warning statement, while
discovered, lacks the necessary evidentiary weight
to substantiate
the claims or defences associated with it.
[32]
In conclusion, the defendant’s
decision not to call the police officer who was the author of the
warning statement affected
the probative value the court can attach
to the contents of the statement.
The
correctness and reliability of the statement remain unproven, and as
such, the court cannot accept it as a credible piece of
evidence in
this matter.
Single Witness
[33]
The
plaintiff's
testimony
is
pivotal
as
it
provides
the
primary
account
of
the
circumstances surrounding the accident.
While the court recognizes the importance
of the plaintiff’s perspective, it is essential to note that he
stands as a single
witness, and his version of events is
uncorroborated by any additional evidence or testimony from other
witnesses.
[34]
It is well established that the burden of
proof lies with the plaintiff to demonstrate, on a balance of
probabilities, that the
injuries sustained were a direct result of
the negligence of the insured party.
[35]
Notably, the defendant did not call any
witnesses to dispute or challenge the plaintiff’s account of
events.
This lack
of counter-evidence leaves the plaintiff’s version
unchallenged, offering the court no alternative perspective to
consider.
The
defendant’s failure to present evidence contradicting the
plaintiff'’ claims can be seen as an implicit acceptance
of
them.
Although
the burden of proof rests with the plaintiff, the defendant’s
omission to provide any conflicting evidence has a
significant impact
on the overall evidentiary landscape of this case.
[36]
The court acknowledges the unique situation
of relying on the testimony of a single witness, but the plaintiff’s
evidence
remains unchallenged and is therefore accepted as it is the
only version before the court.
Beyond
his testimony, no further facts or circumstances were presented to
either corroborate or contradict his account.
Therefore, I find it unnecessary to make
any determination regarding his credibility or demeanour as a
witness.
[37]
A
key
issue before the court is whether the defendant has adequately
demonstrated that the plaintiff was negligent at the time of
the
accident.
For the
defendant to deny liability, it must establish that the plaintiff
acted in a manner that fell below the standard of care
expected of a
reasonably competent driver.
This
necessitates evidence showing that the plaintiff’s actions
directly contributed to the accident and the resulting injuries.
[38]
After reviewing the evidence presented in
this case, the court finds that the defendant has not provided any
substantial evidence
before the court to support a claim of
negligence against the plaintiff.
The
defendant did not call any witnesses to testify about the
circumstances of the accident or offer expert opinions on driving
standards and practices. Additionally, no documentation or other
forms of evidence were presented that would indicate any wrongdoing
or lapse in judgment on the part of the plaintiff at the time of the
accident.
[39]
In the absence of such evidence, the court
cannot conclude that the plaintiff was negligent.
The plaintiff’s testimony, which
stands unchallenged by the defendant, provides a clear account of the
events leading up to
the accident.
There
is no basis for the court to infer negligence when the party alleging
it has failed to produce any such evidence.
[40]
The crux of this case lies in the failure
of the vehicle’s braking system, which the plaintiff contends
was due to the owner’s
lack of maintenance and failure to keep
the vehicle in good working condition.
The
evidence presented before the court indicates that the plaintiff was
operating the vehicle when the brakes failed, leading to
a loss of
control and, ultimately, the accident.
The
plaintiff provided credible testimony regarding the accident,
describing the circumstances leading up to the brake failure and
the
subsequent crash.
[41]
In assessing the defendant’s
liability, the court must determine whether the owner of the vehicle
exercised reasonable care
in maintaining the vehicle.
It is well-established that vehicle owners
have a duty to ensure that their vehicles are safe and roadworthy.
This duty includes regular inspections and
maintenance of critical safety features, such as the braking system.
The failure to perform such maintenance may
constitute negligence.
[42]
In this case, the evidence shows that the
braking system was faulty at the time of the accident.
No adequate maintenance records were
presented by the defendant to demonstrate that proper care had been
taken to ensure the vehicle
was in good working order.
The absence of documentation reflecting
regular servicing of the vehicle or any corrective measures taken to
address known issues
further supports the claim of negligence.
[43]
Consequently, the court concludes that the
owner of the vehicle, failed to meet the required standard of care in
maintaining the
vehicle in a safe and operable condition.
The brake failure clearly indicates
negligence, as it directly contributed to the accident and the
injuries sustained by the plaintiff.
[44]
In conclusion, the court determines that
the accident resulted from the negligence of the vehicle owner for
failing to maintain
the vehicle in proper driving condition,
particularly due to the malfunction of the braking system.
[45]
I am satisfied
that the plaintiff has
met the
burden of proof to establish that the defendant is 100% liable for
the damages he sustained in the aforementioned motor
vehicle
collision.
Costs
[46]
The only issue
that remains is the question of costs arising from this merits trial.
Generally, the rule regarding costs
is that the successful party is entitled to recover its costs from
the unsuccessful party. In
this case, as the plaintiff has prevailed
on the merits, he is entitled to an order for costs.
[47]
The defendant, having been found
liable, must bear the costs incurred by the plaintiff in pursuing
this aspect of the claim.
This
principle aligns with the notion of fairness and justice within the
legal framework, as the plaintiff should not be penalized
for having
to pursue a claim to establish liability, particularly when the
defendant's actions necessitated this trial.
[48]
However, given that the quantum has
been postponed
sine die
,
it is essential to consider whether there should be any limitations
or qualifications regarding the costs awarded. The court recognizes
that further proceedings will be necessary to establish the extent of
damages owed to the plaintiff.
As
such, while the plaintiff is entitled to costs associated with the
merits trial, the costs awarded at this stage will not encompass
those related to the future quantum proceedings.
[49]
In conclusion, the court orders that
the defendant, the Road Accident Fund, shall pay the plaintiff’s
costs associated with
the merits trial on party and party scale,
Scale “B”.
[50]
In the
premises, I make the following order:
1.
The defendant shall pay the plaintiff 100%
of his proven agreed damages.
2.
The trial in respect of quantum is
postponed
sine die
.
3.
The defendant is ordered to pay the costs
of the merits trial on party and party scale, Scale “B”
CSP OOSTHUIZEN-SENEKAL
ACTING JUDGE OF THE
HIGH COURT
MPUMALANGA DIVISION,
MBOMBELA
The
date and time for hand-down is deemed to be 10h00 on 7 October 2024.
Dates
of Hearing:
15
May, 7 June 2024
Application
for Reopening Plaintiff’s case:
3
July 2024
Judgment
delivered in Application
:
10
July 2024
Written
Heads of Arguments: Plaintiff delivered:
16
August 2024
Written
Heads of Arguments: Defendant delivered:
29
August 2024
Date
Judgment delivered:
7
October 2024
APPEARANCES
:
Attorney
for the Plaintiff:
J
Mnisi & Associates Inc
Mr
Johan Mnisi
C/O H
Q Business Centre
No 11
Van Der Merwe Street Nelspruit 1200
Tel:
(012) 689 2289
Email:
info@mnisilaw.co.za
State
Attorney for the Defendant:
Adv
CM Madavha
Polokwane
Chambers, Polokwane
Cell
no: 072 650 8642
The
State Attorney, Mbombela
3
rd
Floor, Admin Block, West Wing
R104
Samora Machel Drive
Nelspruit
Tel:
(013) 101 3711
Link:
4355986
Email:
thulanim@raf.co.za
[1]
Wells
and Another v Shield Insurance Co. Ltd and Others
1965
(2) SA 865
(C)
at 867.
[2]
Maatla
v Road Accident Fund (11690/11) [2015] ZAGPPHC 129
(6
March 2015) at para {15].