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2024
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[2024] ZAECMKHC 112
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Mjadhu v Road Accident Fund (2425/2021) [2024] ZAECMKHC 112 (8 October 2024)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE
DIVISION, MAKHANDA)
Not reportable
CASE NO. 2425/2021
In the matter between:
ABDUL
ISAAC
MJADHU
Plaintiff
and
ROAD
ACCIDENT
FUND
Respondent
JUDGMENT
LAING J
[1]
This is a claim for damages arising from a motor
vehicle accident that occurred on 10 September 2020 in the
Graaff-Reinet district.
The plaintiff was a pedestrian at the time
and suffered injuries to his ankle, knee and head; he claimed damages
in the amount
of R4,500,000. The defendant’s plea amounted to a
bare denial. The matter went to trial for determination of liability
only.
Summary of the
evidence
[2]
The plaintiff testified that he was from Malawi
and had been resident in South Africa since 2007. He was hitchhiking
when he was
struck by a motor vehicle from behind, rendering him
unconscious. He spent six days at the Midlands Hospital in
Graaff-Reinet.
The plaintiff went on to refer to the relevant
hospital records in terms of which he was described as Mr Ali
Mjekula. He explained
that the person who admitted him, Mr Alick
Tebulo, confused his name; ‘Ali’ was merely a nickname
because of his Muslim
faith, and ‘Mjekula’ was the
surname of the plaintiff’s brother. The plaintiff’s
actual name was Mr Abdul
Isaac Mjathu, as depicted in his passport.
[3]
The next witness was Mr Tebulo. He was also from
Malawi and had been resident in South Africa since 2014. He testified
that he knew
the plaintiff through the latter’s brother, Mr
Sandi Mjekula. On the date in question, Mr Tebulo was returning home
from
work when he heard a loud ‘bang’ from a collision
that occurred on the side of the main road, close to where he was
walking. He ran to the scene and discovered the plaintiff.
Consequently, Mr Tebulo called an ambulance and gave the plaintiff’s
details to the emergency personnel, using an incorrect name. In that
regard, Mr Tebulo explained that an unknown person of Muslim
faith in
Malawi was sometimes called ‘Ali’ in Malawi, and he had
merely assumed that the plaintiff carried the same
surname as his
brother, ‘Mjekula’. Under cross-examination, Mr Tebulo
stated that he had witnessed the motor vehicle
strike the plaintiff.
He went on to confirm that Mr Ali Mjekula and Mr Abdul Mjathu were
one and the same person. To questions
put to him by the court, Mr
Tebulo testified that the scene where the accident occurred was a
straight stretch of road and that
conditions had been clear at the
time; the accident took place between 18h00 and 19h00, at dusk. The
plaintiff was hitchhiking,
standing behind the yellow line on the
side of the road. It seemed to Mr Tebulo that the motor vehicle
intended to come to a halt,
to offer the plaintiff a lift.
[4]
At the conclusion of the witnesses’
testimonies, counsel for the plaintiff submitted, by agreement, the
affidavit of Dr Sizwe
Nkosi. He stated that he was the Clinical
Manager at the Midlands Hospital and had completed portions of the
medical records pertaining
to the plaintiff. He confirmed that the
plaintiff had been admitted under the name of Mr Ali Mjekula and that
he had suffered a
head injury, a fracture of his left ankle, and an
abrasion to the back of his knee. The plaintiff had been discharged
after six
days in hospital.
[5]
The defendant led no witnesses.
Issues for
determination
[6]
The issues to be decided are straightforward. The
first pertains to the identity of the plaintiff considering the
different name
given to the person who was admitted to the Midlands
Hospital on the date in question. The second pertains to the
plaintiff’s
contributory negligence, if any, and the possible
application of the Apportionment of Damages Act 34 of 1956. The third
and final
issue is whether the plaintiff has proved his claim in
delict.
[7]
The relevant principles are mentioned briefly
below.
Legal framework
[8]
The provisions of section 17(1) of the Road Accident Fund Act 56 of
1996
(‘the RAF Act’) stipulate that:
‘
(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…’
[9]
From the above, a
plaintiff must prove that the injury or death that forms the subject
of his or her claim for compensation was
because of negligence or
another wrongful act. The law of delict applies. In
Septoo
v The Road Accident Fund
,
[1]
the Supreme Court of
Appeal confirmed, per Mbatha AJA, that:
‘
The underlying
basis for the Act
[2]
is the common law
principles of the law of delict. A claimant must therefore prove all
the elements of a delict before it can succeed
with its claim in
terms of the Act.’
[3]
[10]
The application of the principles to the facts follows.
Discussion
[11]
Both the plaintiff and Mr Tebulo would have had an
inherent bias towards a description of events that produced a
favourable outcome.
There were, nevertheless, few if any
contradictions in their versions. The obvious discrepancy between the
plaintiff’s real
name and that appearing in the hospital
records was adequately explained by Mr Tebulo, which was in turn
corroborated by Dr Nkosi’s
affidavit. The testimonies were
cogent and of good calibre. The plaintiff was admittedly rendered
unconscious by the collision,
preventing him from testifying about
what occurred directly afterwards, but Mr Tebulo was in the immediate
vicinity to have seen
and heard what happened; his version was
undisputed and corroborated that of the plaintiff. There was nothing
to undermine the
quality, integrity, and independence, of the
testimonies. Both the plaintiff and Mr Tebulo were credible and
reliable witnesses;
it is probable that the circumstances of the
accident and the events thereafter were as they described.
[12]
During the proceedings, counsel for the defendant
suggested that the plaintiff had already entered the road and
commenced to cross
when the accident occurred. There is no evidence
to that effect. In the absence of any facts to the contrary, the
plaintiff’s
version that he had been standing on the side of
the road, hitchhiking, must be accepted. The court has already found
that he was
a credible and reliable witness. His version, moreover,
was supported by Mr Tebulo’s version, which placed the
plaintiff
at the side of the road at the time of the collision.
[13]
This led, in turn, to the issue of contributory
negligence. Counsel for the defendant contended that hitchhiking at
dusk, next to
a main road used by speeding motor vehicles, created an
obvious danger for the plaintiff. He ought to have foreseen the risk
of
injury and taken steps to avoid it.
It was argued that the
provisions of the Apportionment Act were applicable. To that effect,
section 1(1)(a) of provides as follows:
‘
1.
Apportionment of liability in case of contributory negligence.
– (1)(a) Where any person suffers damage which is caused partly
by his own fault and partly by the fault of any other person,
a claim
in respect of that damage shall not be defeated by reason of the
fault of the claimant but the damages recoverable in respect
thereof
shall be reduced by the court to such extent as the court may deem
just and equitable having regard to the degree in which
the claimant
was at fault in relation to the damage.’
[14]
The subject of
contributory negligence within the context of motor vehicle accident
claims has been addressed extensively in the
case law. The question
that arises is when a defendant can invoke the provisions of the
Apportionment Act to mitigate against the
extent of potential
liability involved. In
AA
Mutual Insurance Association Ltd v Nomeka
,
[4]
the erstwhile Appellate
Division considered whether the provisions of the Apportionment Act
applied in the absence of the defendant’s
having pleaded
contributory negligence. The plaintiff, in this regard, asserted that
the defendant was precluded from relying thereon
and the court was
prevented from applying the provisions thereof, notwithstanding its
finding that the plaintiff was partly at
fault. Viljoen AJA stated as
follows:
‘
The weight of the
decisions is, therefore, that provided the plaintiff’s fault is
put in issue, an apportionment need not
be specifically pleaded or
claimed. This is the correct view, in my opinion.
The Act has become part
of our law of delict. It has supplanted the former all-or-nothing
effect of the common law in this respect.
I agree… that upon a
determination of issues properly raised in the pleadings the Court
must give judgment in accordance
with the imperative direction of
section 1 of the Act.’
[5]
[15]
The decision stands.
[6]
Subsequently, in
Ndaba
v Purchase
,
[7]
Hugo J found that:
‘…
no
allegation is made that the collision was caused by any negligence on
the part of the Plaintiff. That being so it seems to me
that the case
resolved itself into a so-called one percenter and that no question
of contributing negligence or apportionment of
damages could arise.
The Magistrate in his judgment referred to the case of
AA
Mutual Insurance Association Ltd v Nomeka
1976 (3) SA 45
(AD) but I think that he misunderstood that case. In
that case it was held that it was not necessary for a Defendant to
plead an
apportionment of damages provided (and this is important),
provided
that the negligence of the Plaintiff had been placed in issue. In
that particular case the plea in this regard read as follows:
“
(a)
Defendant denies that the said collision was due to any negligent
driving of the insured vehicle by
the said Mrs Holdsworth and denies
that she was negligent in the respects alleged or at all.
(b)
Defendant pleads that the collision was due solely to the negligent
driving of the plaintiff
himself he being negligent and at fault in
one or more of the following respects…”
On that basis and because
of the form of this pleading the Court held that a formal plea in the
apportionment of damages was not
necessary. The crux of the finding
is found in the following passage at page 55:
“
The weight of the
decision is therefore that provided that Plaintiff’s fault is
put in issue an apportionment need not be
specifically pleaded or
claimed. That is the correct view in my opinion.”’
[8]
[16]
The
correct time and place for the defendant to place in issue the
plaintiff’s fault is at the stage of pleading. In doing
so, as
the court found in
Roma
v Road Accident Fund
,
[9]
the
defendant sets out the basis for his or her (or its) case and shapes
the nature of the trial proceedings that follow. If the
defendant has
not placed in issue any fault on the part of the plaintiff,
specifically his or her (or its) contributory negligence
in relation
to the event that gave rise to a delictual claim, then the defendant
cannot claim, later, the apportionment of damages.
[17]
In
Harwood
v Road Accident Fund
,
[10]
Van
der Schyff AJ held as follows:
‘
It
is trite that in trial proceedings parties must formulate their cases
and the issues on which evidence must be led, in their
pleadings.
[11]
A
defendant cannot, at the trial, rely on a defence,
in
casu
sudden
emergency, which is not pleaded. Neither can a plea of apportionment
of damages be considered in the absence of specific
allegations
concerning the plaintiff’s negligence.’
[12]
[18]
In the present matter,
the defendant never pleaded
contributory negligence on the part of the plaintiff. No
allegation was made to the effect that the plaintiff failed to keep a
proper
lookout for passing motorists or similar. His fault was never
placed in issue. The relevant portion of the defendant’s plea
merely stated that:
‘
The Defendant has
no knowledge of the allegations made in these paragraphs, cannot
admit or deny same and puts Plaintiff to the
proof thereof.’
[13]
[19]
Counsel for the defendant
conceded in argument that contributory negligence was never pleaded.
Reference was made, nevertheless,
to
the
decision in
Lekgothoane
v Road Accident Fund
,
[14]
where
the court dealt with a claim for damages arising from an accident at
a controlled intersection. The parties in that matter
presented
mutually destructive versions of what occurred, leading to Seima AJ’s
finding that they were equally liable based
on contributory
negligence, resulting in a 50% apportionment and an order to that
effect.
[15]
The
case is, however, distinguishable.
The
defendant in
Lekgothoane
pleaded contributory
negligence and presented evidence to that effect. That is not the
position in the present matter.
[20]
Consequently, in the absence of the defendant’s having pleaded
contributory negligence,
the question of apportionment under section
1(1)(a) of the Apportionment Act does not arise. The defendant cannot
rely thereon.
Relief
and order
[21]
Having considered the probabilities in relation to the evidence
presented, the court is
satisfied that the plaintiff and the person
admitted to the Midlands Hospital on 10 September 2020 are one
and the same. There
is no dispute regarding his identity. The court
is satisfied, moreover, that there was no evidence of contributory
negligence on
the plaintiff’s part and that there was no basis
upon which the defendant could have invoked the provisions of the
Apportionment
Act. The plaintiff has demonstrated on a balance of
probabilities that his injuries were caused by the negligence of the
driver
involved. He has proved the essential elements of a delictual
claim. Consequently, the provisions of section 17(1) of the RAF Act
apply.
[22]
Nothing turns on the
legality or otherwise of the plaintiff’s residence in South
Africa as a Malawian citizen. In the recent
decision of
Mudawo
and others v Minister of Transport and another
,
[16]
a full bench held that there was nothing in the text or purpose of
the RAF Act and the context of the Road Accident Fund to conclude
that the reference to ‘any person’ under section 17(1)
should be restrictively interpreted to exclude illegal
foreigners.
[17]
This was never
an issue in the present matter.
[23]
The only remaining issue is that of costs. There is no reason why the
general rule should
not apply; the plaintiff, as the successful
party, is entitled to his costs.
[24]
The following order is made:
1.
The defendant is liable for 100% of the
plaintiff's proven damages regarding the motor vehicle accident that
occurred on 10 September
2020 in the district of Graaff-Reinet.
2.
The remainder of the plaintiff’s claim is
postponed
sine die
.
3.
The defendant is ordered to pay the plaintiff’s
party-and-party costs on the High Court scale, as taxed or agreed by
the parties,
such costs to include the costs of trial on 18 and 19
June 2024.
4.
The defendant is ordered to pay interest on the
above costs at the prevailing legal rate, calculated from the date of
allocatur
or
agreement until the date of payment.
JGA LAING
JUDGE OF THE HIGH
COURT
APPEARANCES
For the
plaintiff:
Adv
Somandi
Instructed:
Akhona Pele Attorneys
14 Sansom Road, Office
No.2H
Office Max,
Sansom House
EAST LONDON
Tel: 043 721 0769
Fax: 086 609 7754
c/o Mgangatho Attorneys
Somerset Street
Makhanda
(Ref: Mr Mgangatho)
For
the defendant:
Ms V Futshane
Instructed
by:
STATE ATTORNEY
27 Fleet Street
EAST LONDON
Tel.: 066 856 7244
Dates
of hearing:
19 June 2024
Date
of delivery:
8 October
2024
[1]
2017
JDR 1913 (SCA).
[2]
Road
Accident Fund Act 56 of 1996
.
[3]
Septoo
,
n 1 above, at paragraph [3].
[4]
1976
(3) SA 45 (A).
[5]
At
55 D-E.
[6]
See,
for example,
Ndaba
v Purchase
1991
(3) SA 640
(N);
Gibson
v Berkowitz and another
1996
(4) SA 1029
(WLD); and
Harwood
v Road Accident Fund
2019
JDR 1768 (GP). See, too, the discussion in Klopper HB,
The
Law of Collisions in South Africa
(LexisNexis,
8ed, 2012), at 92 and 148; and Harms LTC,
Amler’s
Precedents of Pleadings
(LexisNexis,
9ed, 2018), at 274.
[7]
See
n
6 above.
[8]
At
641G- 642B.
[9]
2023
JDR 2403 (ECMA), at paragraph [23].
[10]
See n 6 above.
[11]
Imprefed
(Pty) Ltd v National Transport Commission
1993
(3) SA 94
(A), at 107C-H.
[12]
Harwood
,
n 6 above, a
t
paragraph [6].
[13]
The
remainder of the plea was similar in character. It amounted to what
counsel for the plaintiff termed a ‘non-admission’.
The
distinction between a denial, as envisaged under rule 22(2) of the
Uniform Rules of Court, and a non-admission is not uncontroversial.
See
South
African Railways and Harbours
1981
(3) SA 1016
(C), at 1018E-F;
Standard
Bank Factors Ltd v Furncor Agencies (Pty) Ltd
1985
(3) SA 410
(C), at 417I- 418B; and
N
Goodwin Design (Pty) Ltd v Moscak
1992
(1) SA 154
(C), at 162F- 163I.
[14]
2017
JDR 1843 (GP).
[15]
At
paragraphs [19] and [20].
[16]
2024
JDR 1394 (GP).
[17]
At
paragraph [46].