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REPUBLIC OF SOUTH AFRICA

NORTH GAUTENG HIGH COURT,

PRETORIA

Case no: 44845/2011

Date: 44845/2011

Not reportable

Not of interest to other judges

In the matter between:

DOCTOR SAMSON NGOBENI……………………………………………………….PLAINTIFF

AND

ROAD ACCIDENT FUND…………………………………………………………RESPONDENT

JUDGMENT

MANAMELA, AJ

[1] Judgment was reserved [after counsel argued the matter before me] on Tuesday, 26^th November 2013. I stated then that, although I need to deliver a written judgment this would only take a few days and the matter was stood down until today, Friday, 29^th November 2013. The brevity of the arguments, influenced by the limited number of issues in contention and other reasons, facilitated this. I am grateful to counsel for this.

[2] On the 3^rd March 2008 around 18h00 at the intersection of Mears [now Steve Biko] road and Walker [now Justice Mahomed] street in Sunnyside, Pretoria, a collision occurred between two vehicles. Doctor Samson Ngobeni (the plaintiff) was - at the time - the driver of one of the vehicles. The other vehicle (the insured vehicle) was driven by one BA Mkhize (the driver of the insured vehicle).

[3] About three and half years later, in August 2011, the plaintiff issued summons claiming an amount of R365 415.00 as damages or loss arising from the collision with the insured vehicle. The plaintiff contented that the collision was due to the sole negligence of the driver of the insured vehicle and therefore the Road Accident Fund (the defendant) is statutorily [in terms of the Road Accident Fund Act 56 of 1996] obliged to compensate him as claimed.

[4] The plaintiff sustained injuries to the back of his head (“Harde stamp teen agterkop”); left shoulder (“Harde stamp teen linker skouef') and left of his hip (“Harde stamp teen linker heup). Resultant from these injuries, the plaintiff claimed costs incurred for medical and hospital treatment, and costs to be incurred in the future in this regard. A significant portion of the plaintiff’s claim relates to estimated future loss of income and general damages. As it is already apparent from above, the matter was defended.

[5] The defendant - on the other hand - contended that the collision was caused by the sole negligence of the plaintiff. The defendant went further into two alternatives to the aforesaid defence. Firstly that, if any negligence is found by this court on the part of the driver of the insured vehicle, then such negligence was not the cause of the collision. Secondly that, the joint negligence of the plaintiff and the driver of the insured vehicle contributed to the cause of the collision and therefore the plaintiff’s claim ought to be reduced in terms of the Apportionment of Damages Act 34 of 1956 commensurate with the plaintiff’s degree of negligence in causing the collision.

[6] When this matter was argued before me, counsel for both parties advised that, all issues and numbers relating to the quantum of the plaintiff’s damages or claim have been agreed upon. In fact, a draft order indicating - besides other issues - the issue of quantum was settled in an amount of R350 000.00 was handed in by the parties. Therefore, what remained for determination by this court was the cause of the collision or to be specific, whether there was negligence on the part of the driver of the insured vehicle which caused the collision or not. Contributory negligence on the part of the plaintiff would form part of this determination.

[7] The plaintiff was the only witness to testify before the court from both sides. He did so through a Zulu-English interpretation. Counsel for the defendant submitted that, the defendant did not succeed in securing the attendance of its own witnesses, but counsel for the defendant nevertheless proceeded under the circumstances.

[8] The plaintiff testified that on the material day and time he was driving from work [at the National Defence Force] on his way home at Voortrekkerhoogte [Thaba Tshwane], after dropping off two colleagues in Sunnyside. He was driving in Walker Street (Justice Mahomed) street, behind another vehicle [a 4x4 bakkie] when approaching the intersection with Mears (Steve Biko) road, when he looked to his left for vehicles approaching the intersection from the direction of Steve Biko road. He noticed a stationery vehicle in that direction, before entering the intersection. He then proceeded to enter the intersection as the traffic light was green for him. Upon entering the intersection and when he was already in the middle thereof, he saw the driver of the insured vehicle approaching the intersection from the direction of Steve Biko road at a very high speed. He noted that, the driver of the insured vehicle tried to reduce speed whilst approaching and he [the plaintiff] also swerved to his [the plaintiff’s] right to avoid the collision, but in vain. The insured vehicle hit the vehicle he was driving on the left. The impact of the collision forced the plaintiff’s vehicle to land by the adjacent perimeter fence of UNISA. When the plaintiff got out of the vehicle he noticed that, the insured vehicle had turned and faced the direction it came from. Two people approached him from this vehicle, but he felt dizzy and cannot remember what happened thereafter. He was taken by an ambulance to 1 Military Hospital.

[9] The plaintiff was aided by photos of the intersection taken ostensibly taken by his attorneys or on their behalf at some stage after the collision, as well as, his sketch- plan drafted for purposes of lodgement of his claim with the defendant. He also pinpointed the point where the collision took place through an “X” mark on one of the photos, which was subsequently marked exhibit “A”.

[10] Under cross-examination, the plaintiff wasn’t entirely certain of the make or colour of the insured vehicle. He also sounded hesitant about when exactly he saw the insured vehicle before the collision with the vehicle he was driving. This was also the case when he was asked about what he said to the police when reporting the collision, as this differed from the statement he made to the attorneys referred to above. For example that, he stated in his testimony before this court that, at the time of the collision, the weather condition was clear, there was light and his visibility was not impaired, whereas the police report states that, there was rain. He acknowledged his signature on the police report, but disputed what is stated therein. He denied [when counsel for the defendant put these to him] that he was driving fast, did not have a proper lookout before entering the intersection, which led to the collision. He further denied that the vehicle he was driving was damaged in the front and repeatedly [when the question was asked a few times] stated that, the damage to the vehicle he was driving was only on the left hand side.

[11] On re-examination, the plaintiff stated that, although he signed the police statement, the contents thereof were recorded by the policeman who interviewed him and the handwriting is also the policeman’s. It may be apposite to add here that, no question was posed to the plaintiff whether the police report or statement was read back to him and in what language the statement was taken before the recording in English. I am prompted to raise this as the testimony of the witness before this court is interpreted into English, as I have already indicated above. He also in reply to a question by his counsel denied that there was any damage to the front of the vehicle he was driving from the contact with UNISA’s perimeter fence.

[12] In closing argument, counsel for the plaintiff submitted that, this is a matter about negligence and yet the defendant has failed to prove any negligence on the side of the plaintiff. He conceded that the plaintiff’s testimony wasn’t seamless or flawless. He pointed out through this concession that, the plaintiff was not certain of the colour, make or registration number of the insured vehicle. He attributed this to the plaintiff’s reluctance to unnecessarily impress the court with memorised details of the collision rather than testifying ordinarily about what he does remember and conceding what he doesn’t. He summed up that, the plaintiff’s version is uncontroverted and therefore there is no evidence to suggest negligence on the part of the plaintiff, but on the driver of the insured vehicle. Counsel for the defendant argued in closing that, the collision occurred at the middle of the road and this is proof enough of the plaintiff having entered the intersection when it was not safe for him to do so. The plaintiff did not have a proper lookout before entering the intersection and, if he had done so, he could have avoided the collision with the insured vehicle. Counsel submitted that, if not constituting sole negligence, same was indicative of some level of negligence which contributed to the collision and therefore should be apportionment on a ratio of 80:20 in favour of the plaintiff. In reply, counsel for the plaintiff, submitted that there was no basis or grounds justifying apportionment of damages on the basis argued by the defendant’s counsel or at all.

[13] In terms of section 17(1) of the Road Accident Fund Act 56 of 1996 (the Road Accident Fund Act) a slightest degree of negligence is sufficient to satisfy the requirement of negligence and to trigger - so to speak - the statutory liability of the defendant [Goode v SA Mutual Fire and General Insurance 1979 (4) SA 301 (W) and Klopper, H.B The Law of Third Party Compensation, (3ed), 2012 at page 75]. The degree of negligence and the plaintiff’s own negligence also have a bearing on the amount recoverable by the plaintiff.

[14] This court has the testimony of only one witness who is also the plaintiff in the matter. As correctly conceded by his counsel, his evidence before this court was not necessarily glowing or flawless. There was a mistake here and there and more so regarding the make of the insured vehicle. Was it a sedan or bakkie? What colour was it? When exactly before collision did he see this vehicle? However, all these do not connote the plaintiff to be a liar or mistaken as to the correct state of affairs. The plaintiff was unequivocal about having a proper look-out before entering the material intersection; the high speed at which the insured vehicle approached the intersection; trying to swerve to his right in order to avoid the collision and the side of impact on the vehicle he was driving. He further testified that there was light, good weather and nothing influencing visibility on the material day and time and that the indication of a rainy weather in the police report was false. He also did not take advantage of the indication in the police report of a frontal damage to the vehicle he was driving by attributing this to contact with UNISA perimeter fence, but remained resolute on the damage being only to the left of the vehicle he was driving. To me he was a good witness and his contradictions were not material under the circumstances. I therefore accept his testimony as credible and that the probabilities favour his version than any other [Miller v Minister of Pensions 1947 2 All ER 372 and Ocean Accident and Guarantee Corporation Ltd v Koch 1963 (4) SA 147 (A)]. Further, I do not find any negligence on the side of the plaintiff which contributed to causing the collision.

[15] Consequently, I find that the plaintiff succeeded in proving that, the negligence of the driver of the insured vehicle caused the collision and therefore the defendant is liable for the damages suffered by the plaintiff.

[16] I have indicated above that, the quantum to this matter has been settled, but I undertook to use the draft order handed in by counsel for both parties in the formulation of an order I make herein.

[17] I therefore make an order in the following terms:

(a) the defendant pays the plaintiff the sum of R350 000.00, being the agreed amount for his proven damages;

(b)the payment in terms of (a) above will be made into the trust account of Frans Schutte Inc, Trust account number 030355818 at Standard Bank White River.

(c) the defendant will supply the plaintiff with an undertaking in terms of Section 17(4)(a) of Road Accident Fund Act 56 of 1996, in respect of the accident related future accommodation of the plaintiff in a hospital or nursing home or treatment of or rendering of a service or supplying of goods to him, to compensate the plaintiff, after the said costs have been incurred and on proof thereof.

(d) the defendant pays the plaintiffs costs of suit on a high court scale which will include but are not limited to:

(1)the cost of counsel on the 21^st November, 2013, 25^th November 2013 and 26^th November 2013 including costs of preparation;

(2) the cost of attorney and counsel for inspection in loco held on the 22^nd November 2013 including preparation and travelling costs;

(3) reasonable taxable reservation and preparation fees (if any), as well as, the costs of the reports/addendum reports of the expert witnesses of whom notice was given or whose reports are in the possession of the defendant/defendant’s attorney, including the costs of, and of obtaining the reports of the experts served on the defendant or in its possession, including any special investigations, travelling fees, consultation and preparation;

(4) the Plaintiff is declared a necessary witness;

(5) cost of witnesses including obtaining of travelling fees of the witnesses;

(6)the party and party costs in terms of this order are payable within 14 (Fourteen) days after receipt of the stamped allocator by the defendant’s attorneys where after interest will be added thereon at 15,5% per annum from due date to date of payment.

(7)payment of abovementioned costs also be made into the trust account of Frans Schutte Inc, Trust account number 030355818 at Standard Bank White River.

K.L.A.M. MANAMELA

(ACTING JUDGE OF THE HIGH COURT)

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