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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: YES/NO

(2)     OF INTEREST TO OTHER JUDGES: YES/NO

(3)     REVISED

12/11/20

 

Case No: 57228/2017

 

In the matter between:

 

RAMPOLAI JEREMIAH THAMAE                                                                    PLAINTIFF

 

And

 

ROAD ACCIDENT FUND                                                                                      DEFENDANT

JUDGMENT

DAVIES AJ:

[1]        This is an action for damages brought by the plaintiff Rampolai Jeremiah Thamae against the Road Accident Fund in terms of the provisions of the Road Accident Fund Act (No.56 of 1996), as amended.

[2]        The plaintiff sues for personal injury sustained in a motor vehicle accident which occurred on 8 November 2015 near the intersection of Golden Highway and Main Reef Roads, in Eldorado Park, Johannesburg.

[3]        It was common cause between the plaintiff represented by Advocate Matika and the defendant (represented by Advocate Sioga) that at all material times the plaintiff was the driver of a white Nissan Sentra motor vehicle bearing registration [….]. Further, as a result of the accident which occurred at the intersection aforesaid, the plaintiff suffered the following injuries: depressed skull fracture; neck, chest and back pain; dilation of the right pupil; and ptosis right eye.

[4]          In broad terms, the plaintiff alleges that whilst driving the aforesaid white Nissan Sentra through the relevant intersection, a collision was caused by the first insured driver of a blue Mercedes Benz bus with registration [….].

[5]          In paragraph 4 of the particulars of claim the plaintiff alleges that the aforesaid collision was caused by the sole negligence of the first "and/or second insured driver', who were negligent in failing to keep proper or adequate control; or a proper lookout or ignored the safety of other road users; or failed to break timeously or at all, or drove at an excessively high speed under the circumstances; failed to avoid a collision when by the exercise of reasonable care and skill, he could have done so.[1]

[6]          At paragraph 4 of the defendant's plea, the corresponding paragraph 4 referred to above is simply denied. There are no allegations specifically relating to apportionment in the plea, however the prayers request at prayer 2 that the plaintiff's claim be reduced in accordance with the provisions of the Apportionment of Damages Act (No.4 of 1956) (as amended)].

[7]          The hearing commenced on 14 May 2020, when the court was informed that it had been agreed (as reflected in the relevant practice notice), that the plaintiff would proceed on the merits only. After some debate as to the onus and duty to begin, I rule that the plaintiff would begin because the negligence of the first insured driver was placed in dispute in totality. Albeit that the pleadings relating to apportionment are somewhat deficient, I approach the matter as if the defendant's plea was more fulsome in this regard. Mr Matika indicated that he would call the plaintiff and a passenger in the plaintiff's vehicle. Mr Sioga for the defendant indicated that he did not have any witnesses.

[8]          The plaintiff confirmed that he was indeed driving the relevant vehicle as referred to above on the day in question when he was involved in an accident involving three cars. The visibility was clear. The plaintiff testified that he was driving from Freedom Park to Eldorado Park, he came to a stop at the robot, together with other cars. When the light changed, he noticed the vehicle coming through the intersection, which he tried to avoid but it hit him. The vehicle which he described as a bus, was apparently travelling at high speed.

[9]          Upon a question of the court, the plaintiff elaborated that he had tried to squeeze his car when noticing the oncoming bus, but to no avail. The plaintiff stated that the robot was red for the bus.

[10]      The bus hit his car with such force that it hit another vehicle.

[11]       The plaintiff confirmed that the speed limit was 120km per hour and he was travelling at perhaps 20km per hour.

[12]       The bare denials in the defendant's plea were amplified at the pre-trial conference by reference to the first insured'.s statement in the AOR. The plaintiff refuted that version in no uncertain terms. He rejected the contention that he had prematurely skipped the red light, and reiterated that he could see that the light was indeed red for the oncoming bus.

[13]       The plaintiff was subjected to vigorous cross-examination by Advocate Sioga, who challenged him on an apparent contradiction contained in his s17(f) affidavit. The plaintiff further testified that the other vehicle involved in the accident had come to a stop to his left. There was further cross-examination regarding the statement of the passenger, who also suggested that the collision took place while the vehicles were still stationary in the intersection. Again, the explanation of shock was proffered.

[14]       The counsel for the plaintiff then called the passenger who had been in the plaintiffs car at the time of the accident. However, the following day, the Mr Matika closed his case without calling the witness under consideration. The matter adjourned and the parties were afforded an opportunity to file heads of argument.

[15]       Although the plaintiff's evidence was subjected to valid criticism, I am of the considered opinion that the plaintiff was indeed correct and forthright insofar as he testified that the first insured drove through a red light. I consider that the dispute as to whether the plaintiff had started moving into the intersection when the impact occurred, or whether he was still stationary at that time, is of little moment. Although Advocate Sioga displayed considerable skill in challenging the plaintiff's version, he was unfortunately constrained by the fact that he did not have a version to put to the plaintiff since his witness was no longer available. No evidence was led as to the impact itself, where the damage to the plaintiff's vehicle was situated, or other detail relating to the second vehicle involved, and the positioning of all the vehicles involved after the accident. The central feature of this dispute is therefore that the defen ant cannot cogently dispute the evidence that the first insured driver failed to stop at a red robot.

[16]       The submission on behalf of the plaintiff, to the effect that the plaintiff's evidence that the robot was green in his favour remained unchallenged, is correct. There is no contrary version. It was not put to him in cross-examination otherwise. Likewise, his evidence that he was travelling at 20km per hour was not challenged. The same applies to the evidence that the first insured was driving at an excessive speed. The effect is that this evidence must be accepted.[2]

[17]       Mr Malika referred to the OAR accident report description, wherein the bus driver, the first insured driver, alleges that the robot was orange and he nevertheless decided to proceed into the intersection. As pointed out by Matika, such conduct is prima facie negligent in itself.[3]

[18]       Mr Malika correctly argued that as regards contributory negligence, the defendant has failed to adduce any evidence as would displace the court's prima facie view that it is 100% liable and that the claim for apportionment should be rejected. In this regard see Llewellyn Fox v RAF [2018] ZAGPPHC 285 at paragraph [13]. There being no evidence of negligence on the part of the plaintiff, established on a balance of probabilities or otherwise, the claim for apportionment cannot succeed. I find further support for this finding in the judgment of Maloyi v Road Accident Fund [2020] ZAGPPHC 87 at paragraphs [7] - [10].

[19]      As regards the Jacobs case relied upon by Mr Sioga at page 20, paragraph 6, it is explicitly stated that: "It is significant to have regard to the fact that a driver enters a crossing when the traffic lights are green in his favour owes no duty to traffic entering the crossing in disobedience of the red lights beyond a duty that if he sees -the traffic he ought to take all reasonable steps to avoid a collision". This is precisely as I understand the evidence of the plaintiff.

[20]      In the premises, I make the following order:

(a)        The issue of liability having been separated from quantum in terms of rule 33(4) as stated above;

(b)        The first insured driver was entirely negligent causing the relevant accident and the defendant is ordered to pay 100% of the agreed or proven damages sustained as a consequence thereof;

(c)        The issue of quantum is postponed sine die;

(d)        The defendant is ordered to pay the plaintiffs taxed or agreed costs, including the costs of counsel for 14 and 15 May 2020.

 

 

 

SW DAVIES AJ

ACTING JUDGE OF THE HIGH COURT

GAUTENG DIVISION, PRETORIA

2 NOVEMBER 2020

 

 

Appearances:

 

For the plaintiff:      Advocate F. Matika

For the defendant:   Advocate Sioga

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