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IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

CASE NO: A709/2015

In the matter between:

NGWANEROUXSHABANGU                                                         APPELLANT

And

ROAD ACCIDENT FUND                                                               RESPONDENT

JUDGMENT

RAULINGA J,

1.    The appellant has noted an appear against the whole of the judgement as well as the costs order of Semenya AJ, which judgment was handed down on 22 June 2015.

2.    The appellant has further filed an application for condonation wherein he prays for the reinstatement of the appeal, as a result of him not making application for the hearing of the appeal within the required time period as well as the late filing of the record of appeal. He seeks punitive costs against the respondent in the condonation application.

3.    The appellant instituted a claim against the respondent for damages he suffered as a direct result of injuries he sustained in a motor vehicle collision on 17 February 2005.

4.    It is the appellant's submission in his particulars of claim that the sole cause of the collision was the negligent driving of the insured driver. It is common cause that the insured driver died at the scene of the accident and as such there was no version of how the accident transpired from the respondent's side.

5.    At the trial of the action in the court a quo, the appellant caused a merits bundle of documentation to be handed up to the court. Contained in this bundle were numerous documents pertaining to the accident inclusive of the appellant's statement, an accident sketch plan drawn by him and the respondent's assessor's report. In evidence the only documents referred to by both counsel for the appellant and for the respondent were the appellant's statement as well as his sketch-plan.

6.    In it-s judgment, the court a quo referred to the documents in the merits bundle, namely the photographs and the findings of the Magistrate at the inquest proceedings. By incorporating same into the appellant's evidence she dismissed the appellant' s claim with each party to party its own costs.

7.    Broadly speaking, the grounds of appeal are the following

7.2  Status of the documents contained in the merits bundle,

7.3  Evidential value of the balance of the documents in the merits bundle, specifically the photographs and sketch plan thereof as well as the findings of the Magistrate in the inquest proceedings,

7.4  The application of the common-law principle of ex turpi causa non obiter action (from an illegal cause no action arises); and

7.5   Costs of the appeal

8.    The issues of merits and quantum were separated and only the issue of merits was placed before the Court a quo.

9.    Regarding the issue of condonation, the parties agreed that the costs will be costs in the appeal. Put simply, it means that costs will follow the results.

10. It warrants mention that when the appeal was argued on the 13 September 2017, both counsel for the appellant and respondent had opportunity to place arguments before the court pertinent to the appeal

11. Inter alia in her submissions, counsel for the respondent alluded to the fact that despite the Court a quo misdirecting itself and considering evidence which was not tendered during the trial, the issue which concerns the respondent is the evidential and/ or probative value of the inquest findings. Counsel also alluded to a possible trial de nova considering the uncertainty of the weight to be attached to the inquest findings.

12. At the hearing of the appeal the issue of the trial de nova was not ventilated in detail. As a consequence, the Court invited parties to submit supplementary heads, whereafter the parties were invited to address the Court on this issue, which they did on 22 March 2018.

13. On 22 March 2018 ,counsel for the respondent conceded that the respondent did not tender any evidence at the trial of the action and as such the only evidence before the Court a quo was the viva voce evidence of the plaintiff and his cross-examination. Further ,that the respondent has undertaken numerous efforts to locate the police officers and ascertain the whereabouts of the the inquest record and to locate the Magistrate who presided over the inquest. However, it has since been revealed that two of the police officers have since demised and only one of the police officers in the compilation of the docket is still employed by the South African Police Services ("SAPS"} and available to testify.

14. Counsel for the respondent was also instructed that the Director of Public Prosecutions alternatively SAPS was handed the record of the inquest proceedings and it is proving incredibly difficult to find the same some 5 years after the inquest was held. Attempts to obtain the record are still on-going as it is suspected that the record of proceedings is in the archives.

15. Lastly the whereabouts of Magistrate Prinsloo are still unknown, and the Department of Justice has been engaged and will revert with his last known whereabouts.

16. On this basis, Counsel for the respondent suggested that the respondent be given one last opportunity with strict time periods of 60 or 90 days within which to locate the record of the inquest, make same available to the appellant and the Court and to answer the question whether the content of the same justified a mistrial being declared.

17. The proposal was objected to by the appellant on the basis that if the Court were to allow the respondent to proceed with its current approach , it would result in "fairness" only being afforded to the respondent conferring on it an unlimited right to demean the most favourable possible treatment , which will be to the prejudice of the appellant.

18. The respondent submitted further that the findings of the Magistrate as reflected in the inquest transcript are for the purposes of this proceedings, irrelevant and may be described as " superfluous" or 'supererogatory evidence' because they amount to an opinion . See Prophet v National Director of Public Prosecutions[1]

19. In any event, the record and/ or evidence of the Magistrate in the inquest proceedings will be inadmissible opinion evidence.

20. To cut the matter short, in reply counsel for respondent conceded that there was no need to postpone the matter for the tracing of the Magistrate and the police officer, since this should seem onerous. Further, that the inquest evidence is hearsay and inadmissible . Counsel for the respondent then conceded that the appeal was to be decided on the evidence tendered by the appellant.

21. However, the appellant concedes that when filing the record, the appellant's attorneys of record laboured under the incorrect understanding of Rule 49 of the Uniform Rules of this Court in that the agreement to file the record late with the Registrar of this Court in terms of Rule 49 (7) (a) (i) also included the late filing of the written application for the hearing of the appeal. As a result the latter was not done in time and consequently the appeal is deemed to have lapsed.

22. While the respondent is prepared to accept the appellant's explanation for the late filing thereof, it however objects to the attitude of the appellant that despite the concession by the appellant, the respondent must pay punitive costs for the mistakes of the appellant.

23. I am in agreement with the submission of the respondent that the late filing of the record occasioned the late filing of the appeal at the instance of the appellant. Although the parties have agreed that costs for the condonation will be costs in the appeal , the trite principle still stands that the awarding of costs is in the discretion of the Court.

24. In the circumstances, I agree that condonation must be granted and the appeal is accordingly reinstated with the appellant to pay the costs.

25. The appellant submits that the Court a quo in paragraph 12 of its judgment at page 111 of the appeal record stated that "if the plaintiff's oral version is to be accepted, the Court would not hesitate to find in his favour" but it then erred by proceeuir1g Lo consider "the other documents" in the merits bundle which led to the finding that the appellant was the sole cause of the accident .

26. The respondent concedes that indeed the Court a quo misdirected itself when it referred to documents other than the appellant's statement and the sketch-plan. However, the respondent is of the view that despite this misdirection, the Court a quo correctly found that the appellant was the sole cause of the accident, and accordingly dismissed his claim.

27. One is alive to the fact that at the pre-trial parties agreed that there will not be evidence by way of affidavits and that if any party wished to introduce documentary evidence such party will give notice in terms of Rule 36 (10) of the Uniform Rules of this Court.

28. It is common cause that no such notice was given by any of the parties, but despite that the Court a quo considered the photographs, the sketch-plan as well as the finding of the Magistrate in inquest proceedings.

29. In considering these documents, the Court a quo relied on the decisions in Santam and others v Segal[2] and Air Canada v Secretary of Trade[3], in finding that the Court could also have regard to the "other documents" in the merits bundle, other than the sketch-plan drawn by the appellant and his affidavit.

30. There is no need to belabour this issue because the respondent has made a concession in line with the appellant's submission that the case law is not authority for and does not support the finding reached by the Court a quo in this regard. This is so because no evidence was presented regarding the photographs and the inquest finding of the Magistrate and therefore hearsay.

31. It is also common cause that the principle ex turpi causa non obiter actio (from an illegal cause no action arises) does not apply in claims of delict but. it is a principle. that applies only in claims of contracts. This also is conceded by the respondent.

32. At the trial; the appellant testified that he was driving towards Nelspruit on the N4. The insured driver was driving in the opposite direction towards Pretoria. The appellant was driving behind a truck which splashed rain water onto his vehicle, causing a steam and as a result he reduced speed to about 80 km/ h. He all of a sudden noticed the insured driver' s vehicle while travelling at a high speed lose control and encroaching on his lane of drive. The two vehicles collided head-on, more to the driver side of the appellant ' s motor vehicle. According to him, there was nothing that he could have done to avoid the accident. The evidence of the appellant is confirmed by a sketch drawn by him which was introduced as evidence at the trial.

33. Only the evidence of the appellant was present ed at the hearing of the matter. As already intimated earlier in this judgment, the insured driver died at the scene and his version was not presented in Court.

34. Having reject ed the photographs and inquest findings of the Magistrate as inadmissible evidence, the only admissible evidence that remains as valid is that of the appellant . This is on the basis that the parties had agreed at the trial that any party who wished to produce any document as evidence would be obliged to give notice in terms of Rule 36 (10) of the Uniform Rules of this Court . In the circumstances the evidence of the appellant stands unchallenged.

35. It is trite that costs follow the results. The successful party must be compensated in the event his claim succeeds. In the instant case the respondent must pay the costs of the appeal.

36. The following order is made :

36 .1     Appellant ' s app li cation for condonation is granted with costs to be paid by the appellant ;

36.2     The order of the Court a qou is set aside and substituted with the following:

36.2.1 The Defendant is to pay 100% of the Plaintiff ' s proven or agree d damages, together with the Plaintiff ' s costs; and

36.2.2.The issue of quantum is postponed sine die.

TJ RAULINGA

JUDGE OF THE GAUTENG HIGH COURT DIVISION

I agree,

N MGQIBISA-THUSI

JUDGE OF THE GAUTENG HIGH COURT DIVISION

I agree,

S MAAKANE

ACTING JUDGE OF THE GAUTENG HIGH COURT DIVISION

APPEARANCES

For Appellant:         Adv. H. van Tonder

Instructed by:          Levin Tatanis Inc

For Respondent:     Adv.K. Kollapen

Instruct ed by:         Iqbal Mohamed Attorneys

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