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[2024] ZAKZPHC 68
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Linganisa v Road Accident Fund (3577/2019P) [2024] ZAKZPHC 68 (23 August 2024)
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IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
No: 3577/2019P
In
the matter between:
SAZISO
VINCENT LINGANISA
PLAINTIFF
And
ROAD
ACCIDENT FUND
DEFENDANT
ORDER
1.
Judgment on liability is granted in
favour of the plaintiff.
2.
The defendant is ordered to pay costs
JUDGMENT
Delivered:
Mngadi
J
[1]
The Plaintiff in his capacity as guardian of two minor children
instituted an action on behalf
of the minor children against the
defendant claiming loss of support due to the death in a motor
vehicle accident of the father
of the minor children.
[2]
The plaintiff is Saziso Vincemt Linganisa. The defendant is the
Road Accident Fund a juristic
person established in terms of the Road
Accident Fund Act 56 of 1994 (the Act). The Act obliges the
defendant to compensate,
inter alia
, any person for loss
suffered as a result of the death caused by or arising from the
driving of a motor vehicle if the death is
due to the negligence of
the driver of the vehicle ( the insured vehicle).
[3]
The parties at the commencement of the trial s ought an order (which
was granted) separating the
issues of liability from the issues of
quantum. The issue of quantum to be held over for later
determination. In addition,
the parties made the usual
admissions regarding the admission of documents and copies thereof to
be utilised at the hearing, in
particular, that discovered documents
shall serve as evidence of what they purport to be without the need
for further proof.
[4]
In the particulars if claim the plaintiff claimed that on or about 9
August 2013 at approximately
22h00 between Matatiele and Maluti at or
near Khoapa Junction, Khumbulani Livingstone Linganisa (the
deceased), a police officer,
was driving a silver-grey Ford Fiesta
registration N[...] 2[...] 6[...] motor vehicle to the direction of
Maluti. A truck from
Maluti direction driving at a high speed on the
lane of the deceased’s motor vehicle caused the deceased to, in
order to
avoid ahead on collision, swerve his vehicle to the left
which resulted in the motor vehicle overturning and the deceased
sustaining
injuries from which he died. The parties
at the commencement of trial agreed as agreed in the pre-trial
conference
that the issue for determination was whether the accident
or motor vehicle collision occurred as a result of the insured
driver’s
negligence. Defendant’s counsel at the
hearing clarified that the defendant disputed that there was an
insured vehicle
( the truck).
[5]
The plaintiff lead evidence of one witness, namely Zamokuhle
Linganisa (Zamokuhle). The
defendant closed its case without
leading any witness.
[6]
Zamokuhle testified as follows: He knew Khumbulani Livingstone
Linganisa, the deceased.
The deceased was his uncle. On 9
August 2013 the deceased was involved in an accident. He,
Zamokuhle, at the time was
a passenger in the greenish Ford Fiesta
driven by the deceased. In the motor vehicle, it was him, the
deceased, and the deceased’s
girlfriend, he knew her as
Precious. The deceased was the driver and he, Zamoakuhle sat at
the rear seat.
[7]
Zamokuhle testified that the deceased was driving from Matatiele to
Maluti. The deceased
stayed at Maluti where he rented a place.
The deceased was driving his own vehicle which he used to drive.
The deceased was
used to drive on that road between Matatiele and
Maluti. At or near Khoapa junction a truck approached driving
to the opposite
direction. It was driving at a high spped and
it was driving on their lane of travel, a lane for vehicles driving
to Maluti.
The deceased in order to avoid a head on collision
swerved to the left. He, Zamokuhle, from that moment lost his
senses.
He does not know what happened after that. He
regained his senses at Taylor Bequest hospital where he had been
admitted and
receiving medical treatment for the injuries he
sustained in the accident. The deceased and Precious were also
in the same
hospital receiving medical treatment. The deceased
died from his injuries. Precious was transferred to Mthatha
hospital
for further treatment. He learnt that she also
subsequently died.
[8]
Zamokuhle testified that the road where the accident occurred is
tarred and marked. It consists
of one lane to each direction.
The head lights of the vehicles were switched on. The view of
the truck driver to his
uncle’s motor vehicle was not
obstructed. There was nothing blocking the lane to the opposite
direction where the truck
was supposed to drive. He could see
and by its lights that it was a truck. He could not notice the
make, colour and
nature of the truck but it was a big truck. It
was sudden and the deceased had to take evasive action. The
Ford Fiesta
is greenish in colour. It was not raining.
About a day after he regained consciousness, the police came to the
hospital,
and they interviewed him. Zamokuhle admitted that on
25 November 2014 he was approached by the police and he deposed to an
affidavit. In the affidavit he did not mention that Precious
was one of the people in the vehicle because he was not asked.
The police did not tell him the purpose for making the affidavit.
[9]
The counsel for the defendant argued that the evidence of Zamokuhle
should be rejected as unreliable
since he referred to the Ford Fiesta
as greenish whereas it was common cause that it was silver-grey in
colour. Further,
contended counsel, Zamokuhle could not
describe the make and type of the truck which rendered his evidence
unreliable.
[10]
Amongst the discovered documents there is an accident report. It has
Maluti CAS 53/08/2013. It records
that the accident took place
at Maluti Road near Khoapa Junction on 9 August 2013 at 22h15.
It records the particulars of
the deceased and gave his address as
Matatiele SAPS. It describes vehicle A as silver- grey Ford
Fiesta N[...] 2[...].
Under the description of the accident, it
states: ‘It is alleged that M/V N[...] 2[...] was from
Matatiele direction towards
Maluti direction with three (3)
passengers including the driver. When they were at Khoapa
Junction M/V left the road and
rolled until it overturned on the side
of the road. Three passengers were taken to hospital by
ambulance’ It is clear,
in my view, that the police officer
regarded the driver as one of the three passengers.
[11]
The accident report has the particulars of the three (3) persons
injured on the accident and it records that
they sustained serious
injuries. It also shows that they were taken to Taylors Bequest
Hospital. The accident report
was completed on 10 August 2013
at 04h15. It appears that the Accident Report was completed
before the injured persons were
interviewed. But the accident
report confirms that Zamokuhle was one of the passengers in the Ford
Fiesta. The accident
report regarding where the accident
happened, date and time corroborates the evidence of Zamokuhle.
The sketch plan is consistent
with the evidence of Zamokuhle
regarding the description of the roadway where the accident took
place.
[12]
In
Sea Harvest Corporation (Pty) Ltd v Duman Dock Cold Storage
(Pty) Ltd
2000(1) SA 827 (SCA) at para [21] it was held that the
true criterion for determining negligence is whether in the
particular circumstances
the conduct complained of falls short of the
standard of the reasonable person. In
S v Kramers &
Another
1987 (1) SA 887
(W) at 894 F – H it was held: ‘that
the standard is not a degree of skill that is reasonable having
regard to the general
level of skill and diligence passed and
examined by the members of the branch of the profession to which the
particular practitioner
belongs’.
[13]
The evidence of Zamokuhle shows that the truck driver drove on the
lane of the opposite traffic when there
was nothing blocking his lane
of travel. He drove on the lane of the opposite traffic when
there was traffic on that lane.
The traffic on that lane was
visible to him. He did so at a high-speed forcing the traffic
on the correct lane to take evasive
action. It shows gross
negligence and or recklessness on the part of the truck driver.
[14]
The defendant seems to argue that there was no truck that forced the
deceased to take evasive action.
This contention is not based
on any evidence. The evidence of Zamokuhle who was one of the
passengers in the Ford Fiesta
is unassailable. He testified in
a clear and logical manner. He answered all questions put to
him in a confident manner
and without unnecessary hesitation.
[15]
The probabilities, in my views, support the evidence of Zamokuhle.
The deceased was a police officer
in the nearby town of Matatiele.
He as a passenger had his nephew and his girlfriend. He was
driving to Maluti where
he stayed. He was familiar with the
vehicle he was driving on a road he was familiar with. It is
therefore more likely
than not that the deceased was forced to take
evasive action. In my view, Zamokuhle was an impressive
witness.
[16]
In National Employers General Insurance v Jagers
1984 (4) SA 437
(ECD) at 440D - 441A the court held: ‘…the onus can
ordinarily only be discharged by adducing credible evidence to
support the case of the party to whom the onus rests. In a
civil case the onus is obviously not as heavy as it is in the
criminal cases… the plaintiff can succeed only if he satisfies
the court on the preponderance of probabilities that his
version is
true and accurate and therefore acceptable’.
[17]
The plaintiff in my view, has discharged the onus on him by proving
on the balance preponderance of probabilities
that there was a truck
and the manner the truck was driven it forced the deceased to take
reasonable evasive action which unfortunately
resulted in the motor
vehicle capsizing. The sole cause of the accident was the
manner the driver of the truck drove.
[18]
It is ordered as follows:
1.
Judgment on liability is granted in favour
of the plaintiff.
2. The
defendant is ordered to pay costs
Mngadi
J
APPEARANCES
Case
Number:
3577/2019P
For
The Plaintiff:
N
D Myeni
Instructed
By:
S
B Bavu Inc
Office
No 11
Nebula
Building
Kokstad
039
727 1076
Email:
bavuattorneys@gmail.com
For
The Defendant:
N
Dlamini
Instructed
By:
Office
of the State Attorney
6
th
Floor, Met Building
391
Anton Lembede Street Durban
Email:
noluthandod@raf.co.za
066
303 4070
Heard
On:
12
August 2024
Judgment
Delivered On:
23
August 2024