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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

(MPUMALANGA DIVISION, MBOMBELA)

 

CASE NO: 3135/2019

REPORTABLE:NO

OF INTEREST TO OTHER JUDGES:YES

REVISED:  YES

16/08/2022

In the matter between:

K[....] M[....]2 obo M[....] M[....]2                                                                           Plaintiff

and

ROAD ACCIDENT FUND                                                                                      Defendant

 

JUDGMENT

 

MASHILE J:

 

[1]        On 18 July 2014, M[....] M[....]2 (“the minor child”) with id no:[....](“the minor child”) was a pedestrian when she allegedly collided with an unknown motor vehicle at Ormonch (albeit it was at Arnold A according to the Plaintiff), Bushbuckridge, Mpumalanga Province. She sustained lacerations and abrasions on her head and face respectively. Believing that the collision exposed the Defendant to liability for the injuries suffered by the minor child, the Plaintiff, her mother and natural guardian, instituted this damages action under the headings of future medical expenses, loss of earning capacity and general damages. The action was initially instituted in the Gauteng Division, Pretoria but on 1 August 2019 Potterill J directed that the case be transferred to the newly established Mpumalanga Division.

[2]        This Court has become familiar with actions against the Defendant being initially opposed and later, for some inexplicable reason, jettisoned with the result that the Defendant often appears without legal representation on the date of hearing. This matter is no exception. Needless to state that the conduct of the Defendant brings to bear an unconscionable burden on the presiding officer during the proceedings in court. The Defendant has defended the claim and went further to serve and file a special plea, which to date it has not withdrawn.

[3]        The special plea is that the Plaintiff has failed to comply with Regulations 3 (1)(a) and 3 (c) of the regulations published under the Road Accident Fund Act No: 56 of 1996, as amended. Faced with this special defence, the Plaintiff secured the services of Dr Segwapa, a neurosurgeon, to complete a serious injury report as envisaged in the aforesaid Regulations. The report has since been completed and delivered but the Defendant has not withdrawn the special plea.

[4]        The special plea is therefore extant requiring this Court to first deal with it prior to proceeding with the consideration of the entire claim. This is a norm in all matters containing special pleas as, depending on whether it is upheld or not, could be dispositive of the entire case. To the extent that the Plaintiff has submitted a serious injury report filled in by Dr Segwapa following his medical examination of the minor child, the Plaintiff has complied with the Regulations. As such, the special plea ought to have been withdrawn and insofar as it still subsists, it is dismissed with costs.

[5]        There is no application before this Court in terms of Rule 33(4) of the Uniform Rules of Court that the issues of liability and quantum be treated discretely. The Court is therefore expected to assess both issues and make a pronouncement. As stated earlier, the Defendant’s defence of this action is somewhat half-hearted insofar as it has not contested the merits at all. That said, the absence of a different version on the collision does not absolve the Plaintiff from proving that the collision occurred and that it was occasioned by the negligent driving of the insured driver. The Plaintiff testified on the merits, which were not disputed. Various experts witnesses also took the stand on behalf of the Plaintiff to justify the amount of quantum claimed.

EVIDENCE

[6]        The evidence is partly oral and partly contained in documents such as, Medical Hospital Records, Medico-Legal Reports, ETC. An Officer’s Accident Report (“OAR”) apparently compiled by Captain Molapo and Constable Mabilo is also present but it was not introduced as evidence. To the extent that it does not form part of evidence properly before Court, does not give a description of how the collision happened, it is not helpful at all. There is no indication in the OAR of who the source of the information furnished by the two officers contained in the OAR is. Furthermore, it is also significant that the two officers were not called to shed light on where they obtained information of the hit-and-run motor vehicle accident.

[7]        The only person who testified on liability is the Plaintiff. Against that backdrop, I proceed to describe how the collision happened as recounted by the Plaintiff. The essence of the evidence of the Plaintiff in chief is that the minor child was playing outside of her home on the side of the road when the unidentified motor vehicle collided with her. In answering a question from her Counsel, Ms Erasmus, if she saw how the motor vehicle actually collided with the minor child, she stated in the affirmative. She was not asked about the make, the colour or registration letters and numbers of the vehicle. Her Counsel also did not ask how far from the road the minor child was playing shortly prior to the collision nor was the estimate speed at which the vehicle was driving established.

[8]        The other evidence that she gave pertains largely to quantum and due to the view that I take of this matter, it is not necessary to consider it. Following the conclusion of her evidence in chief, the Court sought to clarify some of her statements. Asked whether she saw the accident taking place, she said that she did not. She added that she only saw a vehicle driving away from the scene of accident. Some members of the community, she testified, attempted to stop the driver but he did not heed their pleas.

[9]        If she did not witness the accident, enquired the Court, how did she acquire knowledge of the incident. In reply she testified that G[....] of similar age, playing with the minor child at the time, alerted her. This time around, she located the scene of accident as having been a distance away from her house and not in front of the house as initially claimed. Significantly, G[....] whom I guess was approximately fourteen years old at the time of the trial was not called to give testimony nor were any member of the community who witnessed the motor vehicle driving away. This represents the terse version of the Plaintiff’s testimony on merits.

ISSUES

[10]      The Plaintiff bears the onus of proving, on a balance of probabilities, the facts upon which she claims the accident happened. The issue is therefore, aside from the fact that the Defendant did not contest the merits, whether or not she has established that firstly, the minor child collided with a motor vehicle and secondly, that the accident occurred as a result of the insured driver’s negligent driving.

LEGAL FRAMEWORK AND ANALYSIS

[11]      The locus classicus on negligence is set out in the case of Kruger v Coetzee  where [1]it was stated:

“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.”

 [12]      It is alleged in the particulars of claim that the minor child, a 7-year old child at the time, collided with an unknown motor vehicle whose driver nor owner could not be identified. It is further averred that the collision was caused by the negligent driving of the unidentified driver. The instances of negligent driving of the unidentified driver are descried in the particulars of claim as herein below:

 12.1  The driver of the insured vehicle failed to apply his breaks timeously or at all;

 12.2  He drove at an excessive speed under the circumstances and overtook where it   was dangerous to do so;

 12.3  He failed to reduce speed when he ought to and could have done so;

 12.4  He failed to keep the motor vehicle under proper and effective control.

 [13]      In reply, the Defendant stated that it did not have any knowledge of the accident and denied the grounds for negligence. It pleaded that in the event of this Court holding that an accident occurred on 18 July 2014, which accident was caused by the negligent driving of the unknown driver, then the Defendant pleads that such driver was facing a situation of sudden emergency. No evidence to support this version was levied before Court.

 [14]      The evidence levied before Court by the Plaintiff does not underpin the bare averments made in the particulars of claim. To start with and at a very basic level, the Plaintiff did not see how the accident occurred. She could not even say whether or not it was a motor vehicle that injured the minor child. All that she observed was a motor vehicle driving away from the scene of accident and that some members of the community were trying to stop the driver but he would not do so.

 [15]      It was evident at the end of the Plaintiff’s case on liability that the evidence that had been presented up to that moment was manifestly insufficient. The minor child was apparently in the company of her friend, G[....], playing on the side of the road when the accident took place but no attempt was made to call him to strengthen the Plaintiff’s evidence. Even the minor child herself, then (date of hearing of the case) aged approximately fourteen, was not called to testify. As though that was not enough, the Plaintiff made reference to members of the community trying to stop the driver but not even a single witness among those was called to take the stand in support of a case for negligent driving on the part of the insured driver.

 [16]      The evidence of the Plaintiff, on its own, is hopelessly inadequate to establish a case of negligent driving in the manner alleged in the particulars of claim. Thus, further issues that arise at this juncture become:

 16.1  Has the Plaintiff made a case both on the pleadings and evidence adduced by the Plaintiff that can be consistent with a decision that the insured driver drove negligently?

 16.2  If the Plaintiff has not, has she nonetheless established a case that cannot justify the granting of absolution from the instance?

 [17]      I have already answered the first question and that is that the evidence of the Plaintiff before Court is not enough to support a case of negligent driving against the insured driver. The legal position on the granting or refusal of absolution is trite. The test to be applied for absolution, usually at the end of the Plaintiff’s case, is not whether or not the evidence levied before             Court by the Plaintiff demonstrates what would customarily be necessary to be proved at the conclusion of the case of both parties. Instead, a Court should ask itself whether or not there is evidence upon which a Court, applying its mind reasonably to such evidence, ‘could or might’ and not should, nor ought to’ find for the Plaintiff were the matter to proceed to finality. See, Claude Neon Lights (SA) Ltd v Daniel[2].

 [18]      It has been said that the test entails that a Plaintiff has to make out a prima facie case such that there is evidence relating to all the elements of the claim to survive absolution because without such evidence no Court could find for the Plaintiff. See, Marine & Trade Insurance Co Ltd v Van der Schyff.[3] The Plaintiff has made no case of negligence at all such that there is no evidence upon which a Court, applying its mind reasonably to such evidence, ‘could or might’ and not should, nor ought to’ find for the Plaintiff were the matter to proceed to finality. See the Claude Neon Lights case supra.

 [19]      The Plaintiff has until now failed to make out a prima facie case such that there is no evidence relating to all the elements of the claim. The element of fault, whether in the form of intention or negligence, is conspicuously absent among the four required to establish of delictual liability. In the result, I am constrained to make the following order:

I grant absolution from the instance.

 

B A MASHILE

JUDGE OF THE HIGH COURT OF SOUTH AFRICA

MPUMALANGA DIVISION, MBOMBELA

 

This judgment was handed down electronically by circulation to the parties and/or parties’ representatives by email. The date and time for hand-down is deemed to be 16 August 2022 at 10:00.

 

APPEARANCES:

Counsel for the Plaintiff:                                                             Adv N Erasmus

Instructed by:                                                                               Mphokane Attorneys

Counsel for the Respondent:                                                     No Appearance

Instructed by:

Date of Judgment:                                                                       16 August 2022

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