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South Africa: South Gauteng High Court, Johannesburg
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2025
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[2025] ZAGPJHC 397
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Nxumalo v Road Accident Fund (87438/2023) [2025] ZAGPJHC 397 (27 March 2025)
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL
DIVISION JOHANNESBURG
CASE
NO
: 87438/2023
DATE
:
27-03-2025
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED
NKOSINATHI
NXUMALO
Plaintiff
and
ROAD ACCIDENT
FUND
Defendant
JUDGMENT
WEIDEMAN,
AJ
:
In
the matter of N Nxumalo, I have before me two applications, the first
is an application in terms of Rule 38(2) and which was
discussed with
counsel, when the matter was called. That application was granted.
The second was an application in terms
of Rule 33(4) to separate the aspects of liability and quantum and
for the aspect of quantum
to be postponed
sine die
. That
application was also granted.
As far as the aspect of liability is
concerned, the evidence before Court is that the plaintiff was a
pedestrian directly next to
the road, after dark, walking with his
back to an approaching vehicle. A truck and trailer came past and the
trailer collided with
him. There is no evidence before Court to
gainsay that version, it is not improbable and it is plausible.
On that basis, counsel readily
conceded that given the plaintiff's action there should be a
contribution of negligence from the
plaintiff's side and proposed an
80/20 apportionment in favour of the plaintiff.
I concur with counsel's submission and
my order is therefore as follows:
ORDER
[1] The plaintiff's application
in terms of Rule 38(2) is granted.
[2] The plaintiff's application
in terms of Rule 33(4) for the separation of liability from quantum,
and for the aspect of
quantum to be postponed
sine die,
is
granted.
[3] The defendant shall be
liable to the plaintiff for 80% of such damages as the plaintiff may
be able to substantiate.
[4] The plaintiff having been
substantially successful is entitled to his costs as taxed or agreed.
[5] Counsel's fees to be on
Scale B. The costs will include counsels fee both for the 25
th
and the 27
th
of March.
WEIDEMAN, AJ
JUDGE OF THE HIGH COURT
DATE
:
…………………