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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

LIMPOPO DIVISION, THOHOYANDOU

CASE NO: 09/2013

DATE: 9 MARCH 2016

In the matter between

JOYCE FUNGISANI MPHEPHU......................................................................................PLAINTIFF

And

ROAD ACCIDENT FUND...............................................................................................DEFENDANT

JUDGMENT

MV SEMENYA:

[1] Plaintiff instituted action for loss of support against the defendant, the Road Accident Fund, in her personal capacity as the deceased’s wife as well as in her capacity as legal guardian of deceased's minor children.

[2] The defendant s liability arises out of its statutory duty, in terms of the Road Accident Fund Act 56 of 1996, to compensate for loss of support suffered by the plaintiff and her minor children. The plaintiff need only prove, as correctly submitted by her counsel, 1% negligence on the part of the driver of the insured motor vehicle.

[3] The claim arose out of a motor vehicle collision that occurred on the 22 November 2004 along Thohoyandou-Mangondi public road in the district of Thohoyandou as a result of which the plaintiffs husband died.

[4] On application by the parties, the court granted an order in terms of Rule 33(4) that the merits issue be separated from the quantum and that the latter issues be postpone sine die.  The matter proceeds on merits related issues only.

[5] The abovementioned collision involved three motor vehicles namely, a Toyota Cressida with registration numbers and letters [D…… 8……. N] driven by Azwifarwi Nickson Mphephu (the deceased), a Toyota Hi-Ace with registration numbers and letters [D…… 4…..N] driven by Marubini Gerson Mafhala [t he insured vehicle driver) and a Toyota Hilux with registration letters and numbers [D….. 7…… N] driven by Petrus Buiwana.

[6] The plaintiff instituted action against the defendant alleging that the insured driver is the sole cause of the collision in that

6.1 he insured driver failed to keep a proper look-out;

6.2 he failed to keep his vehicle under proper control;

6.3 he failed to apply brakes of his motor vehicle timeously adequately or at all;

6.4 he drove at an excessive speed under the circumstances;

6.5 he failed to avoid the accident when by exercise of due and reasonable care he should or could have done so;

6.6 He drove negligently on a public road.

6.7 He failed to keep his motor vehide under roadworthy condition.

[7] On the contrary, the defendant alleges that the deceased:

7 1 failed to keep a proper lookout

7 2 drove his vehicle at an excessive speed:

7.3 failed to keep the vehide he was davrng under control;

7.4 failed to avoid the collision when by exercise of due and reasonable care he should or could have done so;

7 5 failed to pay due regard of the presence of other road users and in particular the presence of the insured motor vehicle;

7 6 entered right in front of the insured motor vehicle without satisfying himself that it is safe to do so;

7.7 created a situation of emergency and failed to act in accordance with that situation;

7 8 joined and entered the road when it was not safe for him to do so;

7 9 failed to stop his motor vehicle so as to avoid a collision.

[8] In support of its case the plaintiff called three witnesses being Mr Berry Grobblaar, the collision reconstruction, Warrant officer Mashudu Joas MuJaudzi_: the first police officer io arrive at the accident scene and Rudzani Stanley Takafani, the police official photographer. Marubini Mafhala was the only witness who testified on behalf of the defendant.

[9] Upon his arrival, warrant officer Mulaudzi found the deceased and the insured driver’s motor vehicle in the centre of the road with Hilux on its shoulder. The deceased was already certified dead on his arrival. The deceased’s motor vehicle was extensively damaged on its front and rear parts The Hilux and the insured vehicle were damaged on the front part He summoned Takalani to the scene in order for him to come and photograph the scene.

[10] Warrant officer Takalani testified that he arrived at the scene of the accident and found the motor vehicles in the same position as deposed to by warrant officer Mulaudzi The surface of the road was dry and visibility was dear He took four photographs, though two of them, namely photo 1 and 2, were taken after the vehicles were shifted from their original position He did not draw a sketch plan of the scene and the photos. Photos of the scene were admitted as exhibits.

[11] Mr Grobblaar, a mechanical engineer, testified that he reconstructed the accident using the information he obtained from contents of the case docket He also made his own observation after he visited the scene, eleven years after the collision. According to his version the condition of the road is such that overtaking was allowed in the line of travel of the insured driver with a solid line in that of the deceased and the Hilux. Each driver could see other road users from a distance of 150m. The road was gently curving in relation to the line of travel of the deceased and the Hilux, which limited their view and straight in relation to that of the insured vehicle. The insured vehicle driver had enough space to swerve to in order to avoid a collision. He stated that his opinion is influenced mainly by the position at which the motor vehicles came to rest and the driver of the Hilux statement. He was unable to calculate the speed at which the vehicles were travelling and that he relied at the speed limit depicted on the sign post he found at the scene, which is 60 km/ph.

[12] The insured vehicle driver testified that he was travelling from West-East along Thohoyandou - Mangondi road, at a speed of 60km p/h, when he saw the deceased s motor vehicle, which was overtaking the Hilux, encroaching onto his lane. The collision occurred when he was about to swerve to the left in an endeavor to avoid colliding with it He could not avoid it as the deceased was travelling at a high speed. He is unable to remember what happened immediately thereafter as he was injured at the time he was removed from the vehicle. He stated that there was no enough space for him to swerve to in order to avoid the collision.

According to him, everything happened so fast and he regards the deceased as the sole cause of the collision. He could not see the deceased’s vehicle at a distance prior the collision as it was behind the Hilux. He saw the deceased s motor vehicle two minutes before the collision.

[13] In Mcintosh v Premier, KwaZulu-Natal and Another 2008 (6) SA 1 SCA at [12], Scott JA stated the following:

As ts apparent from the much-quoted dictum of Holmes JA, m Kruger v Coetzee 1966 (2) SA 428 (A) at 430E-F the issue of negligence itself involves a twofold inquiry. The first is was the harm reasonably foreseeable? The second /s. would the dtiigens paterfamilias take reasonable steps to guard against the occurrence and did the defendant fad to take those steps⁹ The answer to the second question ts frequently expressed in terms of a duty- The foreseeaMity requirement is more often than not assumed and the inquiry ts said to be simply whether the defendant had a duty to take one or other step such as drive in a particular way or perform some or other positive act, and if so whether the failure on the part of the defendant to do so amounted to a breach of that duty '

[14] It is common cause that at some stage before the collision, the deceased was overtaking the Hilux The plaintiffs argument that the process of overtaking was already completed at the time of the collision cannot be accepted This argument is based on the statement of the driver of the Hilux who did not testify. The said statement, together with others that Grobblaar similarly relied upon, was also not admitted by consent it remains hearsay as argued, correctly so, by the plaintiff. None of the other eye witnesses were called to testify.

(15] Similarly, plaintiff could not rely on the fact that the Hilux collided with the deceased s motor vehicle on its rear as support for the argument that the deceased had already concluded the process of overtaking when the collision occurred in the absence of evidence from the driver of the Hilux or other eye witnesses Contrary to the submissions made by counsel for the plaintiff, both motor vehicles rested on the centre of the road as per the version of Mulaudzi and Takalani and not on the line of travel of the deceased. Furthermore, the point of impact is not known as warrant officer Takalani omitted to draw a sketch plan­ts Mr Grobblaar has conceded that he is unable due to lack of information, to determine the speed at which the deceased was travelling immediately pnor the collision. The version of the plaintiff that the deceased was travelling at a speed is unchallenged,

[17] That been said, the issue in this matter is whether the defendant is liable to compensate the plaintiff in that the insured dnver acted in one of the ways alleged in the plaintiffs particulars of claim.

[18] It being common cause that the deceased encroached into the insured vehicle driver s lane, it remains to be determined whether, in the circumstances of this case, a reasonable driver in the insured driver s position would have taken some steps to guard against the collision

[19] Els J in Ntsala and others v Mutual & federal insurance Company Ltd 1996 (2) SA 184 (T) stated the following;

‘ Where a driver of a vehicle suddenly finds himself m a situation of imminent danger not of his own doing, and reacts thereto and possibly takes the wrong option, it cannot be said that he is negligent uniess it can be shown that no reasonable man would have so acted. It must be remembered that with a sudden confrontation of danger a driver only has s split second or a second to consider the pros and cons before he acts and surety cannot be blamed for exercising the option which resulted in a collision

[20] The insured driver conceded that he and other drivers could see each other from a distance of 150m away. He further stated that he saw the deceased s motor vehicle two minutes before the collision. He could not state whether the deceased was on his correct lane of travel at the time of the collision or not Although he testified that there was no enough space for him to swerve to the left, photos of the scene depicts a different picture The photos show sufficient space on which the Hilux came to rest after the collision. Counsel for the plaintiffs submission that two minutes is sufficient for one to effectively manoeuvre a motor vehicle to avoid an accident is accepted as correct

[21] It is my finding that the insured driver, who was travelling at a speed of 60km p/h, on a road where he could see an oncoming motor vehicle from a distance of 150m and also able to see another vehicle whilst it was two minutes away, and failed to swerve to the left where there is enough space for him to do so, acted negligently when he failed to avoid the collision where, by exercise of reasonable care, he could have done so and by failing to keep a proper look-out

[22] I however find that the deceased created this dangerous situation by overtaking another motor vehicle in the face of oncoming traffic, thereby encroaching in the line of travel of the insured vehicle. I find that the deceased's contributory negligence was at 90% whilst that of the insured vehicle driver is 1 %.

[23] The following order is therefore made:

1 The driver of the insured motor vehicle was negligent and his negligence contributed 1%to the collision;

2. The defendant is 100% liable for the proven damages of the plaintiff;

3. The defendant is to pay the costs of the plaintiff.

MV SEMENYA

ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA,

LIMPOPO DIVISION, THOHOYANDOU

REPRESENTATIONS:

1. Counsel for the plaintiffs; Adv. Musetha

2 Counsel for the defendant Adv Makuya U B

High Court Chambers Pretoria

3. Date of hearing 09 December 2015

4. Date Delivered: 09 march 2016

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