South Africa: Eastern Cape High Court, Grahamstown

You are here:
SAFLII >>
Databases >>
South Africa: Eastern Cape High Court, Grahamstown >>
2020 >>
[2020] ZAECGHC 91
| Noteup
| LawCite
Ralane v Road Accident Fund (3646/18) [2020] ZAECGHC 91 (25 August 2020)
Download original files |
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
(EASTERN CAPE DIVISION, GRAHAMSTOWN)
Case No.: 3646/18
Date Heard: 17 August 2020
Date Delivered: 25 August 2020
In the matter between:
LINDILE RALANE Plaintiff
and
ROAD ACCIDENT FUND Defendant
JUDGMENT
KROON AJ:
1. The Plaintiff instituted an action for damages against the Defendant in respect of personal injuries sustained by him pursuant to a motor vehicle accident which occurred on 26 January 2017. The matter came before me for adjudication as to whether the Defendant is liable to the Plaintiff for damages.
2. The Plaintiff avers that the accident was caused as a result of the sole negligence of the insured driver, one Zokiswa Ralane (“the insured driver”), the latter being alleged to have been negligent in that she:
2.1. Failed to apply brakes of the insured vehicles timeously or at all;
2.2. Travelled at an excessive speed under the prevailing circumstances;
2.3. Failed to keep the motor vehicle driven by him under proper control;
2.4. Failed to keep a proper look-out; and
2.5. Failed to avoid the collision when with the exercise of reasonable care and skill she could and should have done so.
3. There was no appearance on behalf of the Defendant at the trial and the erstwhile attorneys of record, who had filed a plea and signed the pre-trial minute on behalf of the Defendant, had withdrawn by the time that the matter was set to commence.
4. The matter was set down for 14 August 2020. I was informed by Counsel who appeared on behalf of the Plaintiff, Ms Molony, that the Plaintiff’s legal representatives had been in contact with the internal representatives of the Defendant and in particular the claims handler who had been allocated this matter, one Ms Mabantsela, regarding the further conduct of the proceedings. Pursuant to these discussions, the matter stood down until 17 August 2020 when the matter was allocated to me. I was informed that there were further discussions on that day, namely 17 August 2020, but that there was no agreement reached as to the way forward.
5. Prior to commencing with the trial at 14h00 on 17 August 2020, my secretary made contact with Ms Mabantsela and confirmed with her that she was representing the Defendant in the above matter and that the Defendant was aware that the matter would be proceeding on the question of liability in its absence, that is on a default basis.
6. In such circumstances I am satisfied that the Plaintiff is permitted to proceed with his claim[1].
7. Before evaluating the evidence of the Plaintiff, it bears mention that, when it comes to the collision, the admissions made by the Defendant in the pre-trial minute are not easy to follow.
8. The Defendant, with reference to the alleged collision, admits at paragraph 17.2.7 that the insured vehicle, namely a white Chevrolet with registration letters and numbers HPX […] was driven by the insured driver and at paragraph 17.2.8 that the Plaintiff was the pedestrian “in question”. The Defendant however, inexplicably, denies the collision itself.
9. Only the Plaintiff gave evidence to which I now turn. Because the matter was not defended, the evidence was inevitably not as detailed as it would have been had the Plaintiff been subjected to cross-examination.
10. The Plaintiff, a major male born on 26 June 1982, was en route to his place of work on the cloudless morning of 26 January 2017 when, shortly after 07h00, he was struck by a motor vehicle driven by the insured driver.
11. At the time of the collision, the Plaintiff was walking on the pavement of Msengana Street in Queenstown. There were buildings on his left and the street was on his right. He was accordingly not facing oncoming traffic.
12. Whilst walking on the pavement, he heard a commotion behind him. This caused him to turn around, only to observe the motor vehicle driven by the insured driver heading in his direction.
13. The Plaintiff endeavoured to take evasive action but to no avail. The motor vehicle collided with him whilst he was on the pavement.
14. After colliding with him, the motor vehicle crashed through the fence of a property adjacent the road, ultimately coming to a standstill in close proximity to a tree within the perimeter of the property.
15. At the scene of the accident the insured driver engaged with the Plaintiff and asked him “for forgiveness” explaining to him that the reason for the accident was that she had attempted to avoid potholes in the road. The insured driver introduced herself as Zokiswa and gave him her contact details.
16. As a result of the collision, the Plaintiff contends that he suffered injuries to his person and in particular that he suffered a fracture to his knee.
17. Both Ms Molony who appeared on behalf of the Plaintiff as well as the Court asked the Plaintiff questions as to the curious circumstance that both he and the insured driver shared the same surname. If I understood him correctly, the Plaintiff stated that he had not met the insured driver nor did he know of her existence prior to the accident. It was only after the insured driver subsequently visited his place of residence, with a view to rendering him assistance, that his mother, who was also present at the visit, informed him that the insured driver was “also a Ralane”.
18. It is significant that the collision did not occur on the road but rather on the pavement. I say this because, whilst it is true that a pedestrian walking on a road should, as far as possible, walk on the edge of the road facing the oncoming traffic, this requirement is confined to the situation where the public road in question has no sidewalk or footpath as in the present matter[2]. In the present matter the Plaintiff was entitled to rely on the protection offered by the pavement and was under no obligation to be facing oncoming traffic.
19. Given the failure by the Defendant to defend the matter, no proposition was put to the Plaintiff by way of cross-examination that he contributed to the negligence and in particular that, as alleged in the plea, he had stepped off the pavement into the lane of traffic and no evidence was placed before me to support such an allegation.
20. It follows from the unchallenged evidence that the insured driver was negligent and solely to blame for the accident. The facts as sketched by the Plaintiff demonstrate that the insured driver failed to apply the brakes of the insured vehicle timeously or at all, failed to keep the motor vehicle driven by her under proper control, failed to keep a proper look-out and failed to avoid the collision when, with the exercise of reasonable care and skill, she could have done so.
21. As a result the Defendant is one hundred percent liable for the Plaintiff’s proven damages arising out of the collision.
22. There was an ancillary issue as to whether an amendment to the particulars of claim (which was not relevant to the merits of the claim) had been properly effected as the amended pages were neither filed at Court nor served on the Defendant. The amended pages were subsequently filed with the Court on 20 August 2020 after I had raised this omission with the Plaintiff’s legal representatives. I do not however think that this circumstance should present an obstacle to granting the Plaintiff the relief sought as, even if the amendment was not effected, the relief sought would have been competent in terms of the erstwhile particulars of claim.
23. The draft order handed up for consideration by the Court contained a paragraph declaring the Plaintiff to be a necessary witness. I decline the invitation to make such an order as it would be superfluous and would amount to usurping the function of the Taxing Master[3]. In as much as it may be necessary, I would suggest to the Taxing Master that, when exercising her discretion, the Plaintiff qualifies for, at least, the allowance as prescribed in terms of Section 37 of the Superior Courts Act 10 of 2013. I understand that the Plaintiff had to travel some distance to give evidence and he is obviously not a man of means[4].
24. The following order will accordingly issue:
24.1. The Defendant is liable to the Plaintiff for such damages as agreed upon or as the Plaintiff may prove he has suffered as a consequence of any injuries sustained by him in the collision which occurred on 26 January 2017, such collision having been occasioned solely by the negligence of Zokiswa Ralane, the insured driver of motor vehicle number HPX […].
24.2. The Defendant is ordered to pay the Plaintiff’s costs of suit in respect of the trial on the merits, together with interest on the Plaintiff’s taxed costs calculated at the legal rate from a date 14 (FOURTEEN) days after taxation to the date of payment.
P N KROON
ACTING JUDGE OF THE HIGH COURT
Appearances:
For Plaintiff: Adv Molony instructed by Cloete & Company
For Defendant: No appearance
[1] Cf. Unreported decision in Penga v Road Accident Fund (High Court, Transvaal Provincial Division)(Case no. 21275/2005), a judgment handed down by Seriti J (as he then was) on 22 September 2008
[2] Regulation 316(2) of the National Road Traffic Act, 63 of 1996 which provides as follows:
“A pedestrian on a public road which has no sidewalk or footpath abutting on the roadway, shall walk as near as practicable to the edge of the roadway on his or her right-hand side so as to face oncoming traffic on such roadway, except where the presence of pedestrians on the roadway is prohibited by a prescribed road traffic sign.’’
[3]Transnet Ltd t/a Metrorail and Another v Witter [2008] ZASCA 95; 2008 (6) SA 549 (SCA) at paragraph [19]
[4]Cf. Daniels and Other v Minister of Police (50047/2012, 50055/2012, 50049/2012,50050/2012) [2015] ZAGPPHC 317 (26 February 2015) at paragraphs [106] and [107]