REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO DIVISION, POLOKWANE)
(1)
(2)
(3)
REPOR CASE NO: HCAA23 /2024
OFINT
R EV ISE
n the matter between: -
FREDERICK JOHANNES WIESE
And
CAL YN D ' AL TON N .O . obo HEIDE-LENE JONCK
CORNELIUS JOHANNES STEPHANUS COETZEE
JUDGMENT
NAUDE-ODENDAAL J:
APPELLANT
1st RESPONDENT
2nd RESPONDENT
2
[1] What should have been a pleasurable day to remember, quickly turned into an
unforgettable nightmare! This is an appeal against the judgment and order handed
down by the court a quo on 19 January 2024, with leave to appeal by the court a quo
given on 31 May 2024.
[2] The parties hereinafter are referred to as during the trial. The 1st Defendant in the
court a quo did not appeal the judgment of the court a quo, only the 2nd Defendant
did. The 2nd Defendant is the Appellant before this court.
[3] The Appellant applied for condonation for the late filing of the appeal record and
application for a trial date in the appeal. The application for condonation was not
opposed and consented to. Therefore condonation was granted without any further
argument.
[4] On the 11
th
of March 2018 on the Albasini Dam near Louis Trichardt, the 1st
Defendant was the owner of a red-motor powered vessel skippered by the 1 st
Defendant. The 2nd Defendant (Appellant)'s wife, alternatively the Appellant himself,
was the owner of a white motor-powered vessel skippered by the Appellant. Both
vessels carried other passengers. The Defendants and other persons went for a
pleasure ride. An air-inflated tube was attached with a rope, approximately 30m
long, to the red vessel. The vessel would tow a person, lying on his/her stomach, on
the tube, while holding onto rubber handles on the tube, at a relatively high speed
creating a skiing experience for the person lying on the tube. In the present matter,
the second vessel, being the white vessel, would move in wide circles in front of the
vessel that towed the person on the tube, and by doing so, created waves that would
ensure a more pleasurable ride for the person on the tube.
[5] Neither the 1 st Defendant, nor the Appellant, nor his wife had a certificate of
competence to skipper the vessels on the dam. However, the mere fact that neither
had a certificate of competence or skipper's license does not make either party
negligent.
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[6] The patient was initially riding on the vessel of the Appellant, during trial referred to
as the white vessel. With the last cruise of the day, the patient wanted to have a last
ride on the tube. She climbed from the white vessel onto the red vessel and from
there onto the tube towed by the red vessel.
[7] The red vessel pulled away with the tube in tow, the patient was flung out of the tube
and collided with the white vessel. The patient, as a result of the collision, sustained
severe head injuries that prevented her from testifying during trial.
The Appellant's {2nd Defendant in the court a quo's) submissions:-
[8] The Appellant submitted that the court a quo adjudicated the liability of the Appellant
based on the common cause facts, and based on a certain rejection of testimony by
the Appellant, but without making any definitive finding as to exactly how the incident
took place.
[9] It was submitted that the court a quo erred to approach the adjudication of the
evidence in this way . According to the Appellant, the court a quo erred by failing to
further take into account that the recreational activities took place on open water of
the dam. A shallow water cove protruding from the open water section of the dam
exists, into which vessels move once they are finished with their recreational
activities on open water. On the day in question, the two vessels finished their open
water recreational activities and moved into the shallow water cove. At that stage,
the patient was in the vessel skippered by the Appellant, the white vessel. While
both vessels were completely within the shallow water cove, the patient requested to
be taken on one further pleasure ride. The rope and the tube was attached to the
vessel skippered by the First Defendant and the patient had to leave the white
vessel and move over to the tube which was attached to the red vessel. In order to
enable the patient to disembark from the white vessel, the two vessels moved very
enable the patient to disembark from the white vessel, the two vessels moved very
close to one another and the patient disembarked and got onto the tube.
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[1 O] According to the Appellant, it is against this common cause facts noted that the
questions which need to be answered are firstly how exactly did the incident occur
and secondly, whether the Appellant was negligent or not.
[11] It was submitted that it seems that the court a quo accepted the entire testimony of
the single witness testifying in favour of the patient. The court a quo erred in doing
so since the testimony of Mrs. Coetzee was contradictory and utterly confusing when
it came to how the incident occurred.
[12] It was submitted that had the incident occurred in the way as described by the court
a quo in that the two vessels drifted close to one another, and had the red vessel
commenced with an immediate right turn away from the white vessel, the incident
could not have occurred in the way as described by all the witnesses.
[13] According to the Appellant, the court a quo should have found that, for the incident
to have occurred in the way as was described by the witnesses, the Appellant had to
move out of the way of the First Defendant, after which the incident occurred, in that
the First Defendant, who skippered the red vessel, accelerated substantially while
still in the shallow water, without keeping a lookout, and without taking cognizance of
the distances between the red vessel and the white vessel, and the implication of
that distance for the safety of the patient on the tube.
[14] The Appellant submitted that the court a quo should have found that the acceleration
was of such a speed, and took place over such a distance that it created the
slingshot effect, effectively flinging the patient on the tube right onto the white vessel,
while during this time the white vessel was stationary and the Appellant was
attending to the petrol tank of the white vessel.
[15) According to the Appellant it should have been found that he was attending to the
petrol tank of his vessel, while stationary, and did not have a lookout at that stage to
petrol tank of his vessel, while stationary, and did not have a lookout at that stage to
observe other vessels. According to the Appellant, the court a quo should have
instead found that the First Defendant, skippering the red vessel, accelerated
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suddenly and without keeping a proper lookout and without guarding against the
consequences of such a sudden acceleration.
[16] The Appellant submitted that the court a quo erred in not finding the reasonable
skipper in the position of the Appellant would not have been expected to keep a
lookout for other vessels, while his vessel was stationary and while he was attending
to the petrol tank of his vessel. Further, any reasonable skipper in the position of
the Appellant would have expected any reasonable skipper, skippering the red
vessel to slowly move out of the shallow water cove, onto the open water portion of
the dam, before substantially accelerating.
[17] It was submitted further by the Appellant that the court a quo erred in not finding that
any reasonable skipper in the position of the Appellant would have been entitled to
assume that any reasonable skipper skippering on the open water, but especially
within the shallow water cove, would have taken extra care to keep a lookout for
vessels moving in and out of the cove.
[18] The Appellant further submitted that the court a quo erred in not finding that no
reasonable skipper in the position of the Appellant, would have been able to take
any preventative steps to have prevented the occurrence of the incident. The court
a quo should have found that there was no act or omission of the Appellant that can
be causally linked to the damages suffered by the patient.
[19] It was further submitted that the court a quo erred with regard to the defence of
volenti non fit iniuria, by not clearly distinguishing between the two species of the
volenti non fit iniuria defence, viz firstly consent to participate in inherently risky
activities, and secondly consent to the unlawful actions of the Defendant. It was
submitted that by conflating the two distinct species of the volenti non fit defence, the
considerations applicable in each instance was also conflated. The court a quo
considerations applicable in each instance was also conflated. The court a quo
should have found that the patient voluntarily participated in a risky activity, and
apart from that was in a good position (even a much better position than the
6
Appellant), to prevent the incident from occurring by simply letting go of the handles
and dropping off the tube.
The 1st Respondent's (Plaintiff in the court a guo's) submissions:-
[20] The 1 st Respondent submitted that having regard to the common cause facts, the
only question to be answered by this court is whether the 1 st Defendant or the
Appellant or both jointly were negligent in causing the injuries sustained by the
patient.
[21] According to the 1 st Respondent, on their own evidence, both the 1 st Defendant and
Appellant were negligent and contributed to the patient's harm. In addition, they
both breached the provisions of Regulation 8(2)(c) of the Merchant Sh ipping
(National Small Vessel Safety) Regu lations, 2007, by operating their vessels in a
careless manner , without reasonable consideration for other persons or without due
care and attention, taking into account the presence of persons and vessels in the
body of water, including concentrations of persons and vessels in the immediate
vicinity of the vessel.
[22] Whereas the patient's account stood on a firm foundation, the Defendants' and/or
Appellant's versions were porous and noticeably fabricated to escape liability. Their
versions presented to the court a quo were not pleaded and mutually destructive.
[23] The 1 st Respondent submitted that she called an independent young w itness,
Jennifer Rose Coetzee, who did not have any personal interest in the matter. He r
testimony was lucid and forthright. She testified that she was on the white boat and
facing the patient. The Appellant was behind the wheel of the wh ite vessel and its
engines we re running but the boat was stationary in the water. The 1 st Defendant
piloting the red boat pulled away very fast and turned sharply to the right. She said
that initially the tow rope wa s loose in the wate r but as the red vessel pulled off the
rope tightened. As the red vessel turned to the right the tube went to the left straight
rope tightened. As the red vessel turned to the right the tube went to the left straight
into the rear end of the white vessel. As a result, the patient was injured.
7
[24] It was submitted that Ms . Coetzee further testified that while one is on the tube one
has no idea which way one is going. If one let go of the handles of the tube, one
would fall very hard. From Ms. Coetzee's evidence the following appears:-
24.1 The vessels could not have been more than thirty meters from one another,
being the length of the towrope;
24.2 The 1st Defendant did not take into consideration the presence of the white
vessel within its near vicinity when he moved off fast and turned sharply to the
right;
24.3 The Appellant in the white vessel took no steps to move away from the
potential dangerous situation - on the contrary he remained stationary and
took no steps to move away;
24.4 There were very little, if anything, that the patient could do to avoid the
collision.
[25] It was submitted that Ms. Coetzee's testimony was not shaken in any way. She
confidently parried every question put to her in cross-examination.
[26] The 1
st
Respondent further submitted that the 1st Defendant presented a wholly
improbable version to court. He testified that he ensured that the patient climbed
onto the tube and saw to it that the towrope was on the tube. He instructed the
patient to keep the rope on the tube. He then went to take his place behind the
steering wheel and pulled away at a reasonable speed. He did not keep an eye on
the patient on the tube. The patient then threw the towrope into the water. The
towrope then drifted to the white vessel and got entangled between the engine and
the hull of the white vessel. As a result, when he pulled off with the red vessel, the
patient was pulled into the rear of the white vessel.
[27] It was submitted by the 1 st Respondent that from the testimony of the 1 st Defendant,
the following appears:-
27.1 The two vessels were so close to one another that the towrope that is only
30m long could get entangled in the white vessel.
27.2 He did not take into consideration the near proximity of the white vessel;
8
27.3 He failed to realize that as he steered his vessel to the right that the patient
might collide with the white vessel;
27.4 He did not have a lookout on the vessel to keep an eye on the patient to warn
him of the looming danger.
[28] The 1 st Respondent submitted that the 1 st Defendant was a poor witness. His
version was not corroborated by any other witness. Therefore, it must be seen as a
last gasp attempt to avoid being held negligent. It was submitted that his attempt to
mitigate the blame for not avoiding the collision in some way to the patient must be
deprecated. There was no evidence confirming that the patient was in any way
capable to see that she was in danger and to let go of the tube's handles. In this
regard, this court pauses to state that this court is in agreement with the submissions
made by the 1 st Respondent.
[29] The evidence and facts proves on a balance of probabilities that the 1
st
Defendant
was negligent in one or more ways and that the injuries sustained by the patient,
was as a direct result of the 1st Defendant's negligence. Be that as it may, the 1
st
Defendant chose not to appeal the judgment and order of the court a qua and
therefore without further ado, we proceed to deal with the 1 st Respondent's
submissions in respect of the Appellant.
[30] The 1 st Respondent further submitted that the Appellant's testimony was equally
outrageous. His oral version was that after the patient had climbed off the white
vessel, he travelled forward 50 meters to swop his vessel's fuel tank. He was on his
knees with his back to the red vessel when he saw out of the corner of his eye a
black object come flying over the white vessel. He then turned around and saw the
red vessel to his left as he was facing backward. He never heard or felt the collision
of the patient on his vessel. According to him, he was well out of harm 's way at the
time when he stopped his vessel and turned off the engines to swop the fuel tanks.
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[31] The 1st Respondent submitted that the problem with the Appellant's versions was
that the version he gave in court 5 years after the accident differed in material
aspects from the version he presented SAMSA in an email barely a month after the
incident. In that email he said that he had heard the red vessel pull away while still
stationary in the water after his white vessel had drifted away to the front left of the
red vessel. In the mail he had not mentioned anything about sailing away 50 meters
to swop fuel tanks. He also stated that he observed the red vessel turning away from
the white vessel, still accelerating and not yet at full speed. This differs completely
form his version in court that he had his back turned to the red vessel working on the
fuel change. He then saw the patient swinging toward the back of the white vessel
where she hit the right rear of the white vessel - another completely different version
to the version presented to the court in oral argument.
[32] The 1 st Respondent submitted that the testimony of the Appellant in the court a quo
was an obvious concocted story designed to minimize his role in the incident. His
tale of sailing away to change fuel tanks, of the tube flying over the white vessel, his
failure to feel or hear the patient striking the vessel, was all just a fabrication in court
to escape liability and must be rejected.
[33] It was submitted by the 1st Respondent that the second version, the one in the email,
must be his correct version. In the first place he was not under pressure of being
sued for millions when he drafted the email and it was written about a month after
the incident when the events were still fresh in his mind. The emailed version
confirms the following, according to the 1st Respondent:-
33.1 He had not moved a safe distance away from the red vessel, giving the red
vessel a clear water body to pull the patient;
33.2 He took no steps to avoid being hit by the patient on the tube;
33.2 He took no steps to avoid being hit by the patient on the tube;
33.3 He failed to keep a proper lookout for other water users;
33.4 He created a dangerous situation in circumstances when it was incumbent
upon him to do so.
10
[34] The 1
st
Respondent further submitted that the Appellant was a poor and unreliable
witness. His demeanour in court smacked of incredulity. His attempt to explain
away the email as being an invitation by SAMSA officials to think (as if he did not
know) what happened simply does not make sense. His version presented to the
court a quo stands to be rejected out of hand. Further, the Appellant's decision to
call his daughter in a transparent attempt to bolster his version was an unforgiveable
error. It was submitted that she was clearly coached to repeat what the Appellant
had testified but was quickly caught out when confronted with distances. Her
testimony stands to be totally disregarded.
[35] In respect of the volenti non fit iniuria defence raised by the Appellant, it was
submitted by the 1 st Respondent that the fact that the patient was made aware of the
risk does not absolve the defendant from not acting negligently. The problem the
Appellant faced is that he presented no evidence to prove the defence of vo/enti non
fit iniuria. He cannot escape liability by presenting to court assumptions of what the
patient had known or would have appreciated. It was submitted that the defence of
volenti non fit iniuria therefore could not stand as was rightly dismissed by the court
a quo.
[36] In conclusion, the 1 st Respondent submitted that the conduct of the 1 st Defendant
was clearly negligent. He manoeuvred the red vessel in an inappropriate manner
and at an excessive speed and failed to avoid the occurrence of the incident by the
exercise of reasonable care when he could and should have done so.
[37] The conduct of the Appellant in the circumstances was also clearly negligent as he
failed to ensure that the white vessel was clear of the path of travel of the tube and
failed to maintain a proper and safe distance between the white vessel and the red
vessel and the tube and failed to avoid the occurrence of the collision by the
vessel and the tube and failed to avoid the occurrence of the collision by the
exercise of reasonable care when he ought reasonably to have done so under the
circumstances.
I I
[38] Further, both the defendants contravened the provisions of Reg ulation 8(2)(c) of the
Me rchant Shipping (National Small Vessel Safety) Regulations, 2007 and the
contravention thereof called for criminal sanction and the court a qua correctly
referred the matter to the prosecuting authority for investigation.
[39] Lastly, it was submitted that the curatrix ad !item was also entitled to her costs. She
is a practicing counsel and member of the Pretoria Society of Advocates. She is
eligible to receive her reasonable expenses and costs, to be paid by the parties that
caused the injuries to the patient.
The Law and Application of the Law:-
[40] The test for establishing negligence remains the locus classicus Kruger v Coetzee
1966 (2) SA 428 (A) at p 430 E - F, the court stating as follows:-
"For the purposes of liability culpa arises if -
(a) a diligens paterfamilias in the position of the defendant -
(i) would foresee the reasonable possibility of his conduct injuring another in his
person or property and causing him patrimonial loss; and
(ii) would take reasonable steps to guard against such occurrence; and
(b) the defendant failed to take such steps."
[41] Negligent operation of a motor boat, is generally defined in South African law as a
driver's failure to exercise the care, skill, and diligence expected of a reasonable
person in the circumstances, which would include actions like driving too fast, failing
to keep a proper lookout, failing to keep a vessel under control, or failing to take action
to avoid a collision, all potentially leading to liability for damages .
12
[42] A boat operator has a legal duty to operate its vessel with reasonable care to
prevent harm to others or their property. Failure to exercise reasonable care can
manifest in several ways, for example operating at a high speed that is inappropriate
for the conditions, failure to keep a proper lookout by not paying sufficient attention
to other boats, swimmers, obstacles, or other potential hazards, lack of control in
failing to maintain proper control of the boat, leading to unsafe manoeuvres or
collisions, failing to act in that reasonable steps and/or actions to avoid an accident
when there was a clear opportunity and ability to do so and further, violations of
regulations in not adhering to boating safety regulations or maritime laws.
[43] The Merchant Shipping (National Small Vessel Safety) Regulations 2007,
Regulation 36 Supplementary Requirements for water-skiing, Boat Safety
Requirements for all towing sports stipulates as follows:-
"lncluding Water skiing, Wake Boarding, Knee Boarding and Tubing:
(1) Waters in which water-skiing is allowed must be so indicated by the regulating authority.
(2) No person may water-ski -
a. In any waters other than those contemplated by the regulating Authority;
b. Between the hours of dusk and dawn (or as prescribed by the local authority);
c. While under the influence of intoxicating liquor or any substance having a
narcotic effect.
(3) A water-skier -
(a) must wear a suitable flotation aid of the type and quality prescribed in
regulation;
(b) must have knowledge of the standard hand signals;
(c) may not purposefully let go of the rope in a congested area; AND
(d) must comport themselves in such a way as not to create a nuisance or
danger for other water users.
(4) The owner or skipper of the towing vessel may not use a steel or other metallic rope or
wire to two a water-skier.
(5) The skipper of the towing vessel mu st ensure that there is a competent person in the
(5) The skipper of the towing vessel mu st ensure that there is a competent person in the
vessel to observe the water-skier - Failure to keep a good lookout is one of the main
causes of boating incidents.
13
(6) The skipper of the towing vessel must carry a 500 millimeter square red flag in the
vessel and cause it to be clearly exhibited when the vessel is engaged in picking up a
water-skier or dragging a tow.
(7) As soon as the tow is dropped by a water-skier, the skipper of the towing vessel must
either move to the nearest safe place, stop and pull the tow, or if the tow was
accidentally dropped, reduce speed and return immediately to pick up the water-skier.
(8) The skipper of a vessel may not follow closer than 100meters in the wake of another
vessel towing a person, water-skier or a towable aquatic or airborne device.
(9) The skipper of a towing vessel must at all times wear an operational kill switch. No
person under the age of 16 may operate a towing vessel.
(10) Skippers must resist the temptation to turn around and monitor the skier, the
observer should be watching the skier to ensure the skier's safety and alert the skipper if
any problems arise. Skipper to keep focused on the direction of travel and maintains a
course which keeps the skier away from other vessels. Many accidents occur because
the skipper was watching the skier and failed to see hazards ahead. Ne ver back the boat
up to a person in the water, approach with caution, from the driver's side, sot that the
skier is always in view and on your side of the boat. Shut the engine off when the boat
nears the skier so there is no danger from the propeller.
(11)
(12)
[44] In addition, it is stated that all boats must adhere to no wake zones, no go areas,
boat operating times and any other rules determined by the regulating authority.
[45] The safety and welfare of the person the skipper is towing is largely in the skippers
hands. There is no room for horseplay within the operator's scope of responsibility.
Tubers have no ability to steer and are completely dependent upon the skipper for
safety. It is the skipper's duty to maintain a course that keeps the skier away from
safety. It is the skipper's duty to maintain a course that keeps the skier away from
other boats, the shoreline, or any other hazards. The skipper is not allowed to
accelerate until the skier is grasping the towline handle, with the ski or board in
proper position, and signals readiness to be towed.
14
[46] In addition, the skipper is prohibited from making sharp turns with the boat,
especially if the skier (tuber) is cutting sharply outside the wake on either side. If an
approaching obstacle forces you into an unexpected turn, throttle back as you turn
as it is better to dunk the skier (tuber) than risk an accident.
[47] The Appellant stated the following in his email to SAMSA on the 13th of April 2018:
"Reporting of boat accident at Albasini Dam on 11/03/2018 about 12h00
Myself and Fanus Coetzee were at Albasini dam. Fanus Coetzee had a red boat and I was
on a white boat. We were stationary on the water next to each other. so that we could
exchange people. We were in fact on our way to pack up and went for last drive on dam,
before we took the boats out of the water.
Miss Janek was with me on the white boat and wanted to ride the tube and she climbed over
from the white boat to the red boat. My boat (white) drifted to the front left of the red boat.
heard the red boat started to pull away while my boat were still stationary in the water.
The red boat was turning away from the white boat. The red boat was still speeding up and
not at full speed. When I looked at the back, miss Jank, that was on the tube, was swinging
out towards the back of my boat. She hit the back right hand side of the boat while still on
the tube.
When it happened Fanus Coetzee turned around immediately and dragged her out of the
water onto the red boat and travelled to the side of the dam , where they unloaded her from
the boat already when I arrived.
We then took her directly to hospital in Makhado as she was semi unconscious.
No one was drinking or was under the influence of alcohol on Sunday. All the people were
wearing life jackets.
I know Fanus Coetzee and his wife a long time and met miss Jonck through them. You
could see that they had a very good relationship (bond) with each other. It was like she was
a daughter to them.
If you have any further questions please feel free to contact me directly."
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[48] The Appellant in his plea Ad Paragraph 10-12, paragraphs 16 to 18 pleaded as
follows:-
"The content hereof is denied and the Plaintiff is put to the proof thereof As pleaded herein
before, it is denied that the -z1d Respondent had any control over the tube or its passengers
since the tube was connected to the red vessel, of which -z1d Defendant had no control over.
17.
At the time of the incident, '?d Defendant's white boat had moved way forward out of the
direct line of travel of the red boat, which at the time was still stationary. After the '?d
Defendant's white boat came to a standstill and was no longer under engine power, the red
boat set off towing the tube behind. The speed at which the red boat was traveling caused
by way of momentum the tube to swing to the left, hitting the -z1d Defendant's boat, while
stationary, from behind. At no stage did the '?d Defendant have any control over the
movements of the red boat or the tube towed behind it.
18.
It is denied that any action by the '?d Defendant or lack thereof had any effect on the
outcome of the accident, or in any event influenced the circumstance which resulted in the
accident taking place."
[49] Although the Appellant's versions differed from what he stated in his e-mail to
SAMSA on the 13th of April 2018, what he pleaded and what he testified to, the fact
of the matter remains that at the crucial time of the accident the Appellant's vessel
was stationary, whether it was to check his petrol or for whatever reason, its neither
here nor there. The red vessel accelerated and made a sudden unforeseen sharp
turn in the water which the Appellant could not avoid under the circumstances and
which caused the patient to swerve out on the tube and hit the white vessel.
[50] From the facts, it is clear that the Appellant's vessel was steered away, the vessel
was then stationary, after which the incident occurred because had the incident
occurred without the Appellant having steered away, with the red vessel having
occurred without the Appellant having steered away, with the red vessel having
accelerated and having flung the patient out of the tube, the red vessel and patient
16
would have been passed the white vessel. The First Defendant, skippering the red
vessel, accelerated suddenly and without keeping a proper lookout and without
guarding against the consequences of such a sudden acceleration and dangerous
turn or maniouver.
[51] In the present matter, a reasonable skipper in the position of the Appellant could not
have foreseen the sudden dangerous turn of the skipper of the red vessel, further,
any reasonable skipper, skippering the red vessel would have been expected to
slowly move out onto open water without any objects of boats being in close vicinity
before substantially accelerating to pull off and simultaneously making a dangerous
turn.
[52] In this court's view, there was not much the Appellant could do to avoid the accident.
One must bear in mind that he was stearing a boat and not a motor vehicle. Further,
the boat was stationary. The incident happened in a split second and no reasonable
skipper would have been able to take preventative measures in time to avoid the
accident from a stationary position of the boat, as the skipper would have had to first
put the boat motor into gear and then pull off, which are not sudden movements in
water. There was no act or omission of the Appellant that could be causally linked to
the damages suffered by the patient. No action of the 2nd Defendant or lack thereof
had any effect on the outcome of the accident, and even if it did it was so minimal
that it would not have made any material difference.
[53] It is clear from the SAMSA Regulations as quoted above that the patient also could
not have done anything under the present circumstances to avoid the accident. Had
it been in open water and the red vessel not made a sudden turn which swung the
tube outwards towards the white vessel, it might have been something different, but
it wasn't. The patient was totally in the hands of the skipper of the red vessel and
the skipper of the red vessel had the duty of care and responsibility for the patient
the skipper of the red vessel had the duty of care and responsibility for the patient
and all occupants on his boat.
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[54] The court a quo therefore erred in finding that the Appellant was negligent, which
negligence caused the patient to suffer the injuries she did. In the result, the appeal
stands to succeed.
[55] In addition, it was noted by this court that the court a quo made an order against the
wife of the Appellant, in that the matter should be referred to the National
Prosecuting Authority for investigations into the possible criminal prosecution of
Appellant's wife. The Appellant's wife was not a party before court and the court a
quo erred in making an order against her without having had due regard to the audi
alteram partem rule. Therefore, although not raised by any party on appeal, a grave
injustice would occur if the order against the Appellant's wife is not set aside, and
necessitates this court to intervene in the order made against her.
[56] In the result, the following order is made:-
1. The appeal is upheld with costs.
2. The court a quo's order is substituted with the following order:-
"1. It is declared that the negligence of the first defendant caused the
injuries suffered by the patient, Heide-Lene Jonck on 11 March 2018;
2. The patient is entitled to payment of such compensation from the first
defendant, as in due course proven or agreed;
3. The first defendant is ordered to pay the costs of the action to date,
including the costs of two counsels;
4. The first defendant is ordered to pay the costs to date of the curatrix ad
/item;
I AGREE:
I AGREE:
18
5. It is declared that the first defendant contravened Regulation 8(2) and
16 of the Merchant Shipping (National Small Vessels Safety)
Regulations, 2007; and
6. The contravention of the Regulations as aforesaid is referred to the
National Prosecuting Authority for investigations into the possible
criminal prosecution of the first defendant."
JUD
LIMPOPO DIVISION,
POLOKWANE
JUDGE OF THE HIGH COURT,
LIMPOPO DIVISION,
POLOKWANE
HEARD ON
JUDGMENT DELIVERED ON
FOR THE APPELLANT
INSTRUCTED BY
FOR1stRESPONDENT
INSTRUCTED BY
19
S.MATHABATHE
ACTING JUDGE OF THE HIGH COURT,
LIMPOPO DIVISION,
POLOKWANE
APPEARANCES:
2 MAY 2025
11 SEPTEMBER 2025.
This judgment
electronically by
was handed down
circulation to the
parties' representatives by email. The date
and time for hand-down of the judgment is
deemed to be 11 SEPTEMBER 2025 at
10h00
Adv. G.J. Diamond
Bosman Attorneys
Polokwane
admin@bosmanattorneys.com
Adv. T.P. Kruger SC
Marias Basson Inc.
maryna@maraisbasson.co.za
C/O Rheeder Attorneys
Polokwane
20
FOR THE 2nd RESPONDENT: No opposition and no appearance