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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

 

(1)     REPORTABLE: NO

(2)     OF INTEREST TO OTHER JUDGES: NO

(3)     REVISED: YES

Case Number: 2432/2018

 

In the matter between:

 

SAC GOUWS                                                                                                      PLAINTIFF

 

And

 

ROAD ACCIDENT FUND                                                                                 DEFENDANT

JUDGMENT

MATSEMELA AJ

BACKROUND

1.            The plaintiff is Susanna Cathrina Gouws an adult female and resident at [….].

2.            Defendant is Road Accident Fund a statutory body incorporated in terms of section 2 of the Road Accident Fund Act 56 of 1996 (the Act) having its registered head office and/or principal place of business at 38 Ida Street Menlo Park Pretoria.

3.            This action concerns a claim for compensation under for personal injury arising out of the driving of a motor vehicle where the identity of neither the owner nor the driver thereof has been established. The claim therefore falls under section 17(1)(b) of the Act.

4.            At the beginning of the trail the plaintiff brought an application that the issues of liability be separated from that of quantum. At the hearing of the matter the only issue for determination was whether the defendant is liable for plaintiff's loss or damage suffered as a result of any bodily injury to herself caused by or arising from the driving of the said vehicle on 1ih March 2016. The quantum of damages and compensation will thereafter have to still be determined.

5.            The question of liability turns on whether the driver of the vehicle was negligent and whether such negligence caused the damage suffered by the plaintiff. If so, the defendant will be liable to compensate the plaintiff or the loss or damages suffered as a result of any bodily injury to him caused or arising from the said negligent driving.

 

EVIDENCE

6.            The plaintiff was the only witness led in order to determine liability of the defendant. She testified that on the 31 December 2016 she was driving her vehicle [….] during that afternoon. She was driving along R59 Road Vischkuil towards Springs CBD. The road was dual, tarred with gravel verges.

7.            She noticed the insured driver (the insured) through the rear view mirror behind her. The insured started to overtake her. When their vehicles were parallel to each other the insured swerved his vehicle to her path and bumped her. The insured must have seen the vehicles approaching in the opposite direction. She lost control of the vehicle. It left the road and rolled and ended up in a ditch.

8.            The insured vehicle did not stop after bumping her vehicle and she never found out who was driving it. The plaintiff further, testified that the sole cause of the said collision was the negligence of the unidentified insured driver of the unidentified vehicle.

9.            The plaintiff testified further that as a result of the collision she sustained severe bodily injuries to her chest, sternum and neck. She was assisted by strangers out of the vehicle and was transported to the hospital by an ambulance.

10.         The plaintiff's evidence was not challenged to any meaningful degree under cross examination. She emphasised that there was nothing she could do to avoid the collusion.

 

APPLICABLE PRINCIPLES

11.         The term res ipso loquitor when related to negligence simply means that the occurrence proclaims negligence. The two basic requirements of res ipso loquitor are that the occurrence must be of such a kind which ordinarily does not occur unless someone has been negligent and it must be due to a thing or means within the exclusive control of the Defendant. It is said "res ipso loquitor" occurs when a human experience shows us that in certain circumstances it is most improbable that occurrence under investigation would have taken place without negligence. See Michelle vs Maison Lieson 1937 TPD 13 at 17

12.         Before overtaking another vehicle a driver is under a duty to satisfy himself that it is safe to do so. The driver of the vehicle intending to pass another vehicle proceeding in the same direction (more correctly, to overtake) must pass to the right thereof at a safe distance and may not again drive on the left side of the road way until safely clear of the vehicle so passed (overtaken).

13.         In R vs De Swardt 1949 (1) SA 516 (N) it was said that as a general rule, a driver must drive his motor vehicle so as to avoid causing harm to others. In Minister of Transport vs Bekker 1975 (3) SA 128 (0) it was said that a driver before overtaking another vehicle is under a duty to satisfy himself that it is safe to do so. In this case it was further said that discharging this duty, the main concern of an overtaking driver traveling on a single carriageway is: -

a.    Traffic ahead proceeding in the same direction;

b.    Traffic travelling behind;

c.  Traffic stationary or along the side of the road;

d.  Traffic approaching in the opposite direction

 

 

14.         There is no general rule that an overtaking driver is under a duty to warn the driver ahead that he is about to be overtaken. On the main road an overtaking driver is generally entitled to assume that slower traffic being overtaken will continue on its cause on the left of the road. A duty to warn (either by flicking head lights or by hooting) will depend inter alia on the locality, the movements of variety of factors. For example, the width of the road, the locality, the volume and speed of the traffic, the time of the day, weather conditions, the degree of visibility.

15, The overtaking vehicle should pass the vehicle being overtaken at a safe distance. An overtaking driver must leave a sufficient or width or breath between his motor vehicle and the vehicle being overtaken. What is reasonable clearance must be dependent on the circumstances of each case. In casu the insured did keep sufficient distance or breath between his vehicle and the vehicle of the plaintiff hence I am of the view this is situation prima facie is res ipso loquitor.

16.         The plaintiff was generally credible witness. On the balance of probabilities her evidence establishes that her vehicle was hit by the insured which came to her path of travel. The insured failed to stop. Her evidence was also generally consistent with statements made to her lawyers and as recorded on the RAF claim form, as well as the case pleaded.

17.         The fact that the insured bumped her vehicle when they parallel to each other is sufficient to make a finding of negligence in respect of the conduct of this driver. In the result the defendant is liable for the loss or damages suffered by him as a result of the collision, in terms of section 17(1)(b) of the Act.

18.         Accordingly, the driver of the vehicle was negligent in one or more of the respects pleaded in paragraph 5 in the plaintiff's particulars of claim. As a result, the defendant is one hundred percent liable for the plaintiffs proven damages arising as a result of the collision.

 

COSTS

19.         The Plaintiff seeks that punitive costs order on an attorney and own client scale be awarded against the Defendant to prevent the Plaintiff from being prejudiced by this unreasonable approach taken by the Defendant. The matter was initially enrolled for the 25^th of May 2020. The Defendant however failed to provide any instructions (offer on merits) on said day.

20.         As a result of Defendant's failure to make an offer, the matter has rolled over to the 26th of May 2020 for allocation. This inevitable results in further costs being incurred as a result of Defendant's failure to make an offer on a matter that is not difficult to finalise, The Defendant has no witnesses and no version of events.

21.         At or about 12h00 on the 26^th of May 2020, the Defendant made an offer of 50% in favour of the Plaintiff. This offer was rejected as Defendant had clearly not applied its mind to the facts of the matter. It is clear that the Plaintiff had not contributed 50% to the accident in question.

22.         As a result of the Defendant's lacklustre approach to this matter, this quite simple matter has been on trial for 2 days. Defendant's actions (and inactions) has resulted in further unnecessary costs, which could have and should have been avoided. It is trite that the Defendant is an entity which works with public funds and therefore its employees should not take any actions which would unreasonably result in a wanton wastage of tax payers' money.

23.         Court rolls are unnecessarily being burdened by defendants who appear to litigate vexatiously and make no attempt to lessen the issues in dispute, which results in lengthy and costly litigation unnecessarily so. The Defendant made no attempt to limit any issue of any sort in this case. There is no reason why the Plaintiff should be out of pocket for the unnecessary extra costs incurred that are involved in running a trial.

I therefore make the following order:

(a)          The defendant is liable in terms of section 17(1)(b) of the Road Accident Fund Act 57 of 1996 for my proven loss or damage suffered as a result of any bodily injury to himself caused by or arising from the driving of the insured vehicle on 31^st December 2016 on the R59 road, Gauteng Province.

(b)          Costs in punitive of scale of attorney and own client in favour of the plaintiff.

 

 

 

M MATSEMELA

ACTING JUDGE: OF THE HIGH COURT

GAUTENG DIVISION, PRETORIA

 

 

 

DATE HEARD                      :           27 MAY 2020

DATE DELIVERED             :           18 JUNE 2020

FOR THE PLAINTIFF       :           ADV. JANSEN

INSTRUCTED BY               :           GERT NEL ATTORNEYS

FOR THE DEFENDANT    :           ADV. HLONGWANE

INSTRUCTED BY               :           IQBAL MAHOMED ATTORNEYS

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