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South Africa: South Gauteng High Court, Johannesburg
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2024
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[2024] ZAGPJHC 1276
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Mohlala v Road Accident Fund (13129/2022) [2024] ZAGPJHC 1276 (29 November 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO
: 13129/2022
DATE
:
29-11-2024
(1)
REPORTABLE: NO.
(2)
OF INTEREST TO OTHER JUDGES: NO.
(3)
REVISED.
DATE:
29/11/2024
SIGNATURE
In
the matter between
MOHLALA,
SINAH M
Plaintiff
and
THE
ROAD ACCIDENT FUND
Defendant
JUDGMENT
WEIDEMAN,
AJ
: This matter was number 36 on the roll for the week
of 8 October 2024. The minor involved in the accident was born
on 9 November 2009 and the accident from which this claim arose
occurred on 1 June 2020. The minor was 10 years old at the
time
and rebuttable
doli incapax.
The statutory Section
19(f) affidavit was attested to by the plaintiff and who was not
present at the time of the accident.
The content of her
affidavit takes the matter no further.
The only other document
relating to the circumstances of the accident is the officer's
accident report form and which is to be found
at CaseLines 010-100.
On page 2 of the OAR under the heading "accident sketch" it
merely states "as per sketch
plan", but there is no sketch
plan.
Lower down on the same
page and under the heading "description of the accident" it
merely states "as per A1",
but there is no A1 uploaded.
The only suggestion of a
possible explanation of how the accident may have occurred is to be
found on page 4 of the OAR where someone,
identity unknown, and under
the heading "pedestrians and cyclists only" marked the
following blocks with "X";
1.
Roadway;
2.
Within 50 metres of crossing;
3.
Under "pedestrian action" - "running";
4.
Under "colour of clothing" - "light".
To
summarise: the unknown author records that the accident occurred on
the roadway, within 50 metres of a crossing, whilst a pedestrian
in
light clothing was running.
I would venture to guess
that most, if not all, children in South Africa at the age of 10 and
a half know how to safely cross a
road. However, even if the
child is given the benefit of the doubt as being rebuttable
doli
incapax
, with no knowledge of how to cross a road, and in this
regard the Court took cognisance of the information in the medical
reports
that the child was prematurely born and had pre-existing
learning vulnerabilities. Even then, the summary above is not
above
to visit the driver of the vehicle with any negligence.
It confirms a factual situation, but it does not speak to the
question
of negligence.
My order is accordingly
as follows:
1.
The application for default judgment is refused;
2.
No order as to costs.
I
hand down the judgment.
WEIDEMAN,
AJ
JUDGE
OF THE HIGH COURT
DATE:
11/12/2024