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2024
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[2024] ZANCHC 95
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Selaledi v Road Accident Fund (1293/2019) [2024] ZANCHC 95 (28 June 2024)
IN THE HIGH COURT OF
SOUTH AFRICA
(NORTHERN
CAPE DIVISION, KIMBERLEY)
CASE
NO.: 1293/2019
Date heard: 09-11-2022
Date delivered:
28-06-2024
Reportable:
Yes/No
Circulate
to Judges:
Yes/No
Circulate
to Magistrates:
Yes/No
In
the matter between:
TEBOGO
FREDDIE SELALEDI
Plaintiff
and
THE ROAD ACCIDENT
FUND
Defendant
CORAM:
WILLIAMS J
JUDGMENT
WILLIAMS
J:
1.
The plaintiff, Mr Tebogo F Selaledi, was the
driver of a Toyota
Quantum involved in a collision with a Ford Ranger vehicle driven by
the insured driver, Mr Olebogeng W Motlhabedi,
on 16 July 2015 at
Tlhabane Road, Maruping Village. He has brought an action for
damages against the Road Accident Fund (RAF).
2.
The plaintiff sustained certain injuries as
a result of the
collision; a left intertrochanteric fracture, an acetabular fracture,
a distal femur fracture and a grade 3 splenetic
laceration. He was
admitted for medical treatment, first to the local hospital,
whereafter he was transferred to the Kimberley
Hospital, now known as
the Robert Mangaliso Sebukwe Hospital, for further treatment.
3.
Whilst in hospital, the plaintiff was approached
on more than one
occasion by officials of the RAF, who informed him that any claim he
has against the (RAF) would be settled more
speedily if he approached
the RAF directly. As a result the plaintiff lodged a claim
directly against the RAF. On 9
December 2015 he was offered a
settlement on the merits, on the basis that the collision resulted
from the joint negligence of
the plaintiff and the insured driver.
The apportionment of negligence was determined at 35% in respect of
the insured driver
and 65% in respect of the plaintiff.
Plaintiff thereafter accepted an offer, in accordance with the
apportionment, in full
and final settlement of his claim, for general
damages suffered in the amount of R201,355,00 and an undertaking in
terms of s17(4)(a)
of the Road Accident Fund Act, 56 of 1996 (the
Act). The capital amount was paid to the plaintiff during March
2017.
4.
This action against the RAF was instituted
during June 2019.
The plaintiff alleges in his Particulars of Claim that the collision
was caused by the sole negligence
of the insured driver in various
listed respects. As a result of the injuries sustained and the
sequelae thereof, plaintiff
claims from the RAF a total amount of R2,
5 million which comprises of past medical and hospital expenses, past
and future loss
of earnings and general damages. In addition
hereto plaintiff also seeks an undertaking in terms of s17 (4) (a) of
the Act.
5.
The plaintiff avers, in respect of his direct
settlement with the
RAF, that the RAF had breached its legal duty of care towards him in
that; (i)it had not explained to him what
contributory negligence
meant; (ii) that he was informed by the RAF claims handler that he
would never get more than what he was
offered by the RAF; (iii) the
RAF did not quantify the plaintiff’s damages based on any
expert report; and (iv) it had undersettled
the claim of plaintiff, a
fact he only became aware of after consulting with his attorney of
record during May 2019, about the
possibility of recovering from the
RAF an amount for future medical costs.
6.
The RAF raised a special plea that it was
not liable to compensate
the Plaintiff in any way as the amount paid to plaintiff on 28 March
2017 was paid to the plaintiff, by
agreement, in full and final
settlement of his claim against the RAF.
7.
In the event that the special plea is not
upheld, the RAF denied that
the insured driver was solely negligent in various listed respects,
alternatively that should it be
held that the insured driver was
negligent, such negligence did not cause or contribute to the said
collision, further alternatively,
that in the event of it being held
that the insured driver was negligent, that the collision was caused
partly by the negligence
of the plaintiff.
8.
The trial before me proceeded on the merits
only. I was
informed at the commencement of the trial by Mr Mongala for the
plaintiff and Mr Mogano for the RAF, that the
parties agree that the
special plea be determined on the basis of the merits.
The
evidence
9.
The plaintiff, who was 37 years old at the
time of the collision,
testified that he had worked the night shift from 18:00 on 15 July
2015 until just before 06:00 on 16 July
2015 at his place of
employment in Kuruman. He was employed as a security guard and
was also tasked with driving his colleagues
home after the shift.
10.
After dropping off one of his colleagues in Batlharos and while
driving back to Mapoteng, in the left lane, he noticed a bright
light. His passenger asked him whether he was aware of this
bright light. Just as he was about to respond, he felt broken
glass on his eyes and closed his eyes to protect it.
He however
kept his hands on the steering wheel. He did not brake or try
to stop his vehicle when he saw the oncoming lights
because he was in
his correct lane. He stated that he could not do anything to
prevent the collision.
11.
The plaintiff testified that he did not remember much after the
collision occurred. He stated that he lost consciousness when
he was speaking to the ambulance personnel whilst still trapped
in
his vehicle. He also did not speak to the police at the scene.
According to the plaintiff, his passenger provided
the police with
some of his details.
12.
The plaintiff testified that his right hip and right femur were
fractured in the accident. He was operated on in Kimberely
Hospital where he was admitted on 16 July 2015 and discharged on
2
August 2015.
13.
With regard to his settlement with the RAF, the plaintiff testified
that he was approached by officials from the RAF while he was in
hospital, who informed him that his claim would be finalised faster
if he dealt with the RAF directly. These officials also told
him where the RAF offices were where he could go and fill out
the
relevant forms.
14.
After his discharge from hospital, and during September 2015, he
visited the RAF offices in Kimberley. The plaintiff confirmed
his signature on the RAF1 Third Party Claim form. His
evidence
was however that he was not given time to go through the form and
that he was tired after driving to Kimberley that day.
He was
also not explained the contents of the form in detail or to his
satisfaction.
15.
As far as the RAF’s written offer of settlement is concerned,
he likewise did not understand the contents of the document and he
could also not remember whether it was explained to him.
16.
With regard to the offer and acceptance document which he had signed,
he testified that he did not understand it, but saw that there was a
sum of money reflected and signed the document with the understanding
that it was the money offered as a result of the accident he was
involved in.
17.
He testified that he had not been referred to a medical practioner
by
the RAF and that the offer and acceptance document was the last form
that he had signed.
18.
During cross-examination the plaintiff was confronted with the
accident report completed by the police
on the scene of the
accident. He confirmed that he had seen the report at the RAF
offices. He however did not speak
to the police at the scene.
19.
When it was put to the plaintiff that both vehicles had ended
up on
the verge of the road on the side of the insured driver’s lane,
he could not dispute it because according to him it
was dark and he
was confused at the time. He also did not visit the scene of
the accident after the collision.
20.
When the insured driver’s statement to the police, i.e. that he
was travelling straight when suddenly
the plaintiff’s vehicle
drove straight into him, was put to the plaintiff, he responded by
disagreeing that the two vehicles
collided head on. According
to the plaintiff the vehicle he was driving was struck on the front
right side.
21.
The plaintiff had also made a statement to the police on 18 August
2015. At that stage he was
considered to be a suspect in a
reckless and/or negligent driving case under Batlharos case number
CAS 24/07/2015. Charges
were however not pursued.
22.
Mr Mongala objected to cross-examination on this statement on the
basis that it was irrelevant to the
proceedings. The statement
however formed part of the documents discovered by the plaintiff and
for this reason I allowed
the cross-examination.
23.
What is relevant about the statement is that he had stated therein
that he had been driving at 60km/h
and that it was dark.
Further, in paragraph 4 thereof that:
“
Before the
accident the oncoming traffic was brightening me. I was driving
on my lane and the person who was sitting next
to me asked me whether
didn’t I see this vehicle. By that time I feel the
glasses getting inside my eyes. I then
closed my eyes and hold
the steering wheel . . I then told myself that the vehicle will
stop itself.” ;
and paragraph 6:
“
. . .
before the accident I was feeling a little bit of tiredness.”
24.
During cross-examination the plaintiff denied that he was driving at
60km/h but said that he was driving
at 40 to 45 km/h in a 60km zone.
He also denied that his passenger had asked him if he did not see the
vehicle approaching
him. When it was put to him that he had
probably fallen asleep behind the wheel, he denied it and referred to
the statement
in which he said he was a little bit tired and added
that he did not fall asleep because he knew he would be home soon
where he
would be able to rest.
25.
The statement does not mention that the insured driver entered the
plaintiff’s lane, which is
part of the plaintiff’s case.
When asked whether it would not have been important for him to
mention that in his statement,
the plaintiff’s response was
that he already stated that he was travelling in his own lane, which
should explain everything.
26.
When cross-examined on the settlement offer which he had accepted,
the plaintiff stated that most of
the information in the offer was
not explained to him and that he did not even understand what was
meant by “
loss of earnings”.
27.
His explanation for accepting the offer was that he was under the
impression that if he does not accept
it, the offer would be “
down
the drain”
. He also stated that the part of the offer
which he does not agree with is the amount of money offered.
28.
No other witnesses were called to testify in the plaintiff’s
case. Mr Mogano also only called
one witness in the RAF’s
case, Mr Olibogeng Mothlabedi, the insured driver.
29.
Mr Mothlabedi, who was 57 years old at the time of the collision, was
driving to his workplace in Henningsvlei
after picking up a
colleague. As he was driving though Maruping Village he noticed
a Quantum vehicle approaching from the
front, travelling in its
correct lane.
30.
As the two vehicles were approaching each other, the Quantum went
over a speed bump in the road and
veered into Mothlabedi’s
lane. Mothlabedi’s exact word were that the Quantum
“
flew”
over the speed bump and “
when it
landed it lost its lane and came into my lane.”
Mothlabedi, who at the time had been driving with his park lights on,
then flicked his lights from dim to bright to alert
the driver to the
Quantum that he was in the wrong lane.
31.
When the Quantum continued coming towards him in his lane, he took
his foot of the accelerator to reduce
speed and moved off the road
onto the gravel. When the collision occurred his vehicle’s
two left wheels were on the
gravel. The Quantum collided into
the right front wheel of his Ford Ranger, which broke off and was
found on the left lane
of the road, where he had been driving.
32.
After the collision the Ford Ranger which he had driven came to a
standstill on the gravel next to the
side of the road where he had
been driving and the Quantum had crossed his lane and ended up
against the fence of a church on the
same side of the road.
33.
Mothlabedi testified that the collision occurred at about 06:10 that
morning. The sun had already
started coming up and people were
walking about on their way to work. He denied that he had been
driving with his brights
on or that the flickering of headlights had
blinded the plaintiff as it was already light outside. His
evidence was that
he had driven at a speed of about 30km/h and that
there was nothing else he could do to avoid the collision. He
stated that
he was an experienced driver who had been driving for the
mines for 30 years and knew what to do to avoid an accident.
Special
Plea
34.
The argument on behalf of the plaintiff is that the settlement
reached between the parties was an undersettlement
as there is a
gross disparity between the settled value and the actual value of the
claim. As a result the RAF had misrepresented
that the offer it
put on the table was the best the plaintiff would be able to get.
Further that the monetary value of the
general damages settlement was
determined by the RAF without reference to medico legal reports,
without which the claim cannot
be settled in a fair and equitable
manner. In addition, it was clear from the evidence of the
plaintiff that he did not understand
either the terminology used nor
the scope of the settlement. That being so, the argument goes,
there was no consensus between
the parties as to the terms of the
agreement and that the special plea should as a result of the above
contentions be dismissed.
35.
Mr Mogano on the other hand argued that if the RAF is satisfied that
the injuries are serious it can
make an offer on general damages
without a serious injury assessment, as per Regulation 3 of the Act.
He contends that there
is no obligation on the RAF to send a claimant
for medical examinations. That where a plaintiff seeks to set
aside a settlement
he has to show that his injuries are more serious
relative to the settlement, which the plaintiff had failed to do.
And if
the plaintiff had suffered other damages, in addition to
general damages, such as a loss of income, he should have provided a
report
from an Industrial Psychologist to that effect, which he had
failed to do. He, the plaintiff had not even in his evidence
stated that he had suffered a loss of income which the settlement
amount did not cover but merely that he had a problem with the
money.
36.
There is merit to both the arguments presented. The only
sensible way to deal with the special
plea, in my view, is as
suggested by Mr Mogano, and that is to do so on the basis of the
merits of the claim.
The
merits
37.
The presentation of both the case for the plaintiff and that of the
RAF has not been ideal. Both
drivers had passengers in their
vehicles. None of them were called to give evidence. Mr
Mongala in his argument before
me informed that the four passengers
in plaintiff’s vehicle could not be contacted.
Mothlabedi, in his evidence, stated
that he could not get hold of his
passenger, a Ms Sylvia Makape, either at her home or on her cellphone
and had received information
that she was working in Upington.
It seems to me that not much effort was put into locating these
witnesses who could have
provided valuable assistance in the
determination of this matter.
38.
No photographs were provided of the accident scene or even the damage
to the vehicles. The police
constable who filled out the
accident report and drew the sketch plan was not called. The
plaintiff as well as Mothlabedi
disagreed on certain aspects of the
accident report. So, for instance, the accident report notes
that the accident type was
a head on collision. The damage to
both vehicles are marked to be on the right front, right mid-front,
left mid-front, left
front, front centre and bonnet. According
to the plaintiff the damage to his vehicle was on the right front.
According
to Mothlabedi his vehicle had damage to the right front
wheel area.
39.
It is also noted on the accident report that before the accident
occurred both vehicles were driving
in the correct road lane and were
travelling straight. This is a senseless proposition which begs
the question, how did the
collision, which is not in dispute,
happen? The sketch plan of the accident scene is not much
better. It is not drawn
to scale and does not show the point of
impact. A fixed point is marked with the letter “G”
but the key to the
sketch does not identify what the fixed point
represents. Mothlabedi, in his evidence, stated that the fixed
point represents
the speed bump and has marked the spot on the sketch
where he considered the point of impact to be - in his lane almost
directly
across from where the Gereformeerde Kerk Street (as marked
on the plan) forms a T-junction with the road travelled on by the two
drivers. Without any measurements this evidence however is not
very helpful. I will revert to the evidence concerning
the
speed bump in due course. What I can mention now is that the
accident report is not reliable. The sketch plan itself
serves
very little purpose other than being a visual aid to the area in
which the collision occurred and Motlhabedi’s evidence.
This matter should therefore be determined mainly on the evidence of
the two drivers and the probabilities.
40.
To succeed with his claim for damages, the plaintiff bears the onus
of proving that the insured driver
was negligent, either wholly or in
part. It is not in dispute that the plaintiff and Motlhabedi
were travelling in opposite
directions on the same road. It is
also not in dispute that it was a straight road or that the collision
occurred in the
early morning. The difference between the time
of the collision given by the two drivers is only 10 minutes, but
whilst the
plaintiff stated that it was still dark, Mothlabedi’s
evidence was that the night had already passed. Given the fact
that Mothlabedi found it necessary to drive with his park lights on I
am of the view that it can safely be assumed that it was
not yet
fully daylight when the collision took place.
41.
The issue of negligence or its apportionment, if any, would in my
view depend on the determination of
certain essential facts, i.e.
whether Mothlabedi’s vehicle would have been visible to the
plaintiff and vice versa, how far
apart the vehicles were when it
first became visible to the respective drivers, did Mothlabedi’s
headlights blind the plaintiff
and if so, did the fact that he was
temporarily blinded contribute to the collision and what opportunity
both drivers had to take
action to avoid the collision.
42.
The plaintiff’s evidence on these matters was not
satisfactory. In fact one would even be
able to go as far as
saying that he was evasive. So, for instance, despite the
allegation in his particulars of claim that
the insured driver drove
on the incorrect side of the road, the plaintiff was very reluctant
to testify to this effect. His
evidence in chief was that he
did know who caused the accident, all he knows is that he was driving
in the left lane. Only
when pressed by Mr Mongala did he answer
that the insured driver must have entered his lane because he, the
plaintiff was driving
in his correct lane. Even his statement
to the police does not mention that Motlhabedi drove his vehicle on
the wrong side
of the road.
43.
As to the visibility of Motlhabedi’s vehicle, the plaintiff’s
version was that he did not
see the vehicle approaching and only
became aware of it when he was blinded by its lights. His
evidence was that his passenger
had asked him if he did not see the
lights but by then it was too late to respond because he immediately
felt shattered glass on
his face. When the plaintiff was
confronted during cross-examination with the fact that according to
his statement he had
informed the police officer that his passenger
had asked him if he did not see the vehicle, he at first denied it
but then conceded
that that was what was written and offered the
explanation that the oncoming vehicle’s lights would have
affected him more
than his passenger because he was positioned more
towards the middle of the road than his passenger.
44.
The plaintiff could not give an estimate of the distance between his
vehicle and that of Motlhabedi
when he first saw the lights of
Motlhabedi’s vehicle. He offered no evidence of any
attempt to avoid the collision.
45.
Mothlabedi’s evidence as opposed to that of the plaintiff, was
clear and uncontradictory.
I must mention at this stage that it
was never put to the plaintiff when he was cross-examined that the
fixed point “
G”
on the sketch plan represented a
speed bump. Mr Mogano explained that he was only informed by
Motlhabedi, whom he consulted
with for the first time on the morning
after the plaintiff had given his evidence, that the fixed point was
a speed bump.
46.
In any event, Motlhabedi’s evidence was that he could see the
plaintiff’s vehicle approaching
him while in its correct lane
until it crossed the speed bump, after which it veered into
Motlhabedi’ lane. Motlhabedi
also did not give an
estimate of how far his vehicle was from the plaintiff’s
vehicle when it entered his lane, except for
the mark which he made
on the sketch plan to indicate the point of impact, which as I have
already stated is of very little assistance.
Motlhabedi’s
evidence however in many ways fills in the gaps left by the
plaintiff’s evidence.
47.
If Motlhabedi had been driving with his headlights on bright and the
plaintiff had kept a proper look
out, he would have seen Motlhabedi’s
vehicle approaching from afar on the straight road and would have
been in a position
to either reduce speed, stop or veer to the side
of the road in order to avoid the collision. If Motlhabedi had
been driving
without light or with park lights on as he had
testified, and the plaintiff had his vehicle’s lights on, as he
had testified,
he would also have been able to see Motlhabedi’s
vehicle in time, considering the speed the plaintiff testified he was
driving,
to at least attempt to avoid a collision. Plaintiff’s
failure to do so is indicative of the fact that he failed to keep
a
proper look out. It also gives credence to Motlhabedi’s
version that the plaintiff appeared to lose control of his
vehicle
when he went over the speed bump at some speed and veered into
Motlhabedi’s lane.
48.
The question now is whether Motlhabedi was in a position to take
additional measures to avoid the collision.
The argument by Mr
Mongala was that because Motlhabedi had seen the plaintiff’s
vehicle approaching from some distance he
would have had sufficient
time to avoid the collision. But this was not Motlhabedi’s
evidence. According to Motlhabedi
when he first saw the
plaintiff’s vehicle it was driving in its correct lane and only
after it hit the speed bump did it
cross over into Motlhabedi’s
lane. There is no duty in a motorist to take evasive action
when an oncoming vehicle is
driving in its correct lane. The
moment that duty arose was when according to Motlhabedi, the
plaintiff crossed the speedbump
and entered his lane. The
distance between the two vehicles at that point is unknown.
49.
The further contention on behalf of the plaintiff was that Motlhabedi
had blinded the plaintiff with
his brights which caused the
collision. This was however not the evidence of the plaintiff.
His evidence was that he
was blinded by the oncoming bright light but
that he could not say who caused the collision.
50.
Mr Mongala also argued that the concession by Motlhabedi that he did
not apply brakes is enough to find
that he was negligent. That
is however not the test. The test is whether the fact that
Motlhabedi failed to apply his
brakes caused or contributed to the
collision. Motlhabedi denies this and there is no evidence to
support such an inference.
Motlhabedi flicked his lights when
he saw the plaintiff entering his lane, which in itself is not
negligent and is a widely practiced
way in which to alert approaching
motorists of impending danger. He then took his foot off the
accelerator and swerved to
the side of the road. And still did
not manage to avoid the collision. Plaintiff on the other had
did nothing to avoid
a collision and all the evidence point to the
fact that the plaintiff had suddenly entered Motlhabedi’s
lane. There
can be no other reasonable explanation for the
point of impact as pointed out by Motlhabedi or the position in which
the two vehicles
came to a standstill.
51.
In the premises I am of the view that the plaintiff has failed to
discharge the onus of proving on a
balance of probabilities, that
Motlhabedi had been negligent in causing the collision, either wholly
or in part.
52.
The plaintiff’s claim can therefore not succeed. That
being the case, the special plea raised
by the RAF should be upheld.
53.
With regards to the costs of this action, Mr Mogano has informed that
given the financial position of
the plaintiff he would not persist
with an argument that costs should follow the result. This in
my view is a wise decision,
not only because of the financial
position of the plaintiff, but also because of the way in which the
RAF had settled the claim
of the plaintiff, which no doubt created
the impression that the RAF accepted the fact that Motlhabedi was
negligent and that his
negligence, at least in part, caused the
collision.
The
following order is made:
a)
The special plea is upheld.
b)
The plaintiff’s claim is dismissed.
c)
There is no order as to costs.
CC
WILLIAMS
JUDGE
For
Plaintiff:
Adv J
Mongala
Moribe
Attorneys
c/o
Motlhamme Attorneys
For
Respondent:
Mr M
Mogano
The
State Attorney