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IN THE HIGH COURT OF SOUTH AFRICA

(NORTHERN CAPE DIVISION, KIMBERLEY)

 

CASE NO.: 1293/2019

Date heard:  09-11-2022

Date delivered: 28-06-2024

Reportable:                       Yes/No

Circulate to Judges:           Yes/No

Circulate to Magistrates:              Yes/No

In the matter between:

 

TEBOGO FREDDIE SELALEDI                                                     Plaintiff

 

and

 

THE ROAD ACCIDENT FUND                                                       Defendant

 

CORAM:  WILLIAMS J

JUDGMENT

 

WILLIAMS J:

 

1.               The plaintiff, Mr Tebogo F Selaledi, was the driver of a Toyota Quantum involved in a collision with a Ford Ranger vehicle driven by the insured driver, Mr Olebogeng W Motlhabedi, on 16 July 2015 at Tlhabane Road, Maruping Village.  He has brought an action for damages against the Road Accident Fund (RAF).

 

2.               The plaintiff sustained certain injuries as a result of the collision; a left intertrochanteric fracture, an acetabular fracture, a distal femur fracture and a grade 3 splenetic laceration. He was admitted for medical treatment, first to the local hospital, whereafter he was transferred to the Kimberley Hospital, now known as the Robert Mangaliso Sebukwe Hospital, for further treatment.

 

3.               Whilst in hospital, the plaintiff was approached on more than one occasion by officials of the RAF, who informed him that any claim he has against the (RAF) would be settled more speedily if he approached the RAF directly.  As a result the plaintiff lodged a claim directly against the RAF.  On 9 December 2015 he was offered a settlement on the merits, on the basis that the collision resulted from the joint negligence of the plaintiff and the insured driver.  The apportionment of negligence was determined at 35% in respect of the insured driver and 65% in respect of the plaintiff.  Plaintiff thereafter accepted an offer, in accordance with the apportionment, in full and final settlement of his claim, for general damages suffered in the amount of R201,355,00 and an undertaking in terms of s17(4)(a) of the Road Accident Fund Act, 56 of 1996 (the Act).  The capital amount was paid to the plaintiff during March 2017.

 

4.               This action against the RAF was instituted during June 2019.  The plaintiff alleges in his Particulars of Claim that the collision was caused by the sole negligence of the insured driver in various listed respects.  As a result of the injuries sustained and the sequelae thereof, plaintiff claims from the RAF a total amount of R2, 5 million which comprises of past medical and hospital expenses, past and future loss of earnings and general damages.  In addition hereto plaintiff also seeks an undertaking in terms of s17 (4) (a) of the Act.

 

5.               The plaintiff avers, in respect of his direct settlement with the RAF, that the RAF had breached its legal duty of care towards him in that; (i)it had not explained to him what contributory negligence meant; (ii) that he was informed by the RAF claims handler that he would never get more than what he was offered by the RAF; (iii) the RAF did not quantify the plaintiff’s damages based on any expert report; and (iv) it had undersettled the claim of plaintiff, a fact he only became aware of after consulting with his attorney of record during May 2019, about the possibility of recovering from the RAF an amount for future medical costs.

 

6.               The RAF raised a special plea that it was not liable to compensate the Plaintiff in any way as the amount paid to plaintiff on 28 March 2017 was paid to the plaintiff, by agreement, in full and final settlement of his claim against the RAF.

 

7.               In the event that the special plea is not upheld, the RAF denied that the insured driver was solely negligent in various listed respects, alternatively that should it be held that the insured driver was negligent, such negligence did not cause or contribute to the said collision, further alternatively, that in the event of it being held that the insured driver was negligent, that the collision was caused partly by the negligence of the plaintiff.

 

8.               The trial before me proceeded on the merits only.  I was informed at the commencement of the trial by Mr Mongala for the plaintiff and Mr Mogano for the RAF, that the parties agree that the special plea be determined on the basis of the merits.

 

The evidence

9.               The plaintiff, who was 37 years old at the time of the collision, testified that he had worked the night shift from 18:00 on 15 July 2015 until just before 06:00 on 16 July 2015 at his place of employment in Kuruman.  He was employed as a security guard and was also tasked with driving his colleagues home after the shift.

 

10.           After dropping off one of his colleagues in Batlharos and while driving back to Mapoteng, in the left lane, he noticed a bright light.  His passenger asked him whether he was aware of this bright light.  Just as he was about to respond, he felt broken glass on his eyes and closed his eyes to protect it.  He however kept his hands on the steering wheel.  He did not brake or try to stop his vehicle when he saw the oncoming lights because he was in his correct lane.  He stated that he could not do anything to prevent the collision.

 

11.           The plaintiff testified that he did not remember much after the collision occurred.  He stated that he lost consciousness when he was speaking to the ambulance personnel whilst still trapped in his vehicle.  He also did not speak to the police at the scene.  According to the plaintiff, his passenger provided the police with some of his details.

 

12.           The plaintiff testified that his right hip and right femur were fractured in the accident.  He was operated on in Kimberely Hospital where he was admitted on 16 July 2015 and discharged on 2 August 2015.

 

13.           With regard to his settlement with the RAF, the plaintiff testified that he was approached by officials from the RAF while he was in hospital, who informed him that his claim would be finalised faster if he dealt with the RAF directly.  These officials also told him where the RAF offices were where he could go and fill out the relevant forms.

 

14.           After his discharge from hospital, and during September 2015, he visited the RAF offices in Kimberley.  The plaintiff confirmed his signature on the RAF1 Third Party Claim form.  His evidence was however that he was not given time to go through the form and that he was tired after driving to Kimberley that day.  He was also not explained the contents of the form in detail or to his satisfaction.

 

15.           As far as the RAF’s written offer of settlement is concerned, he likewise did not understand the contents of the document and he could also not remember whether it was explained to him.

 

16.           With regard to the offer and acceptance document which he had signed, he testified that he did not understand it, but saw that there was a sum of money reflected and signed the document with the understanding that it was the money offered as a result of the accident he was involved in.

 

17.           He testified that he had not been referred to a medical practioner by the RAF and that the offer and acceptance document was the last form that he had signed.

 

18.     During cross-examination the plaintiff was confronted with the accident report completed by the police on the scene of the accident.  He confirmed that he had seen the report at the RAF offices.  He however did not speak to the police at the scene.

 

19.            When it was put to the plaintiff that both vehicles had ended up on the verge of the road on the side of the insured driver’s lane, he could not dispute it because according to him it was dark and he was confused at the time.  He also did not visit the scene of the accident after the collision.

 

20.     When the insured driver’s statement to the police, i.e. that he was travelling straight when suddenly the plaintiff’s vehicle drove straight into him, was put to the plaintiff, he responded by disagreeing that the two vehicles collided head on.  According to the plaintiff the vehicle he was driving was struck on the front right side.

 

21.     The plaintiff had also made a statement to the police on 18 August 2015.  At that stage he was considered to be a suspect in a reckless and/or negligent driving case under Batlharos case number CAS 24/07/2015.  Charges were however not pursued.

 

22.     Mr Mongala objected to cross-examination on this statement on the basis that it was irrelevant to the proceedings.  The statement however formed part of the documents discovered by the plaintiff and for this reason I allowed the cross-examination.

 

23.     What is relevant about the statement is that he had stated therein that he had been driving at 60km/h and that it was dark.  Further, in paragraph 4 thereof that:

 

“Before the accident the oncoming traffic was brightening me.  I was driving on my lane and the person who was sitting next to me asked me whether didn’t I see this vehicle.  By that time I feel the glasses getting inside my eyes.  I then closed my eyes and hold the steering wheel . .  I then told myself that the vehicle will stop itself.”  ; and paragraph 6:

 

“ . . .  before the accident I was feeling a little bit of tiredness.”

 

24.     During cross-examination the plaintiff denied that he was driving at 60km/h but said that he was driving at 40 to 45 km/h in a 60km zone.  He also denied that his passenger had asked him if he did not see the vehicle approaching him.  When it was put to him that he had probably fallen asleep behind the wheel, he denied it and referred to the statement in which he said he was a little bit tired and added that he did not fall asleep because he knew he would be home soon where he would be able to rest.

 

25.     The statement does not mention that the insured driver entered the plaintiff’s lane, which is part of the plaintiff’s case.  When asked whether it would not have been important for him to mention that in his statement, the plaintiff’s response was that he already stated that he was travelling in his own lane, which should explain everything.

 

26.     When cross-examined on the settlement offer which he had accepted, the plaintiff stated that most of the information in the offer was not explained to him and that he did not even understand what was meant by “loss of earnings”.

 

27.     His explanation for accepting the offer was that he was under the impression that if he does not accept it, the offer would be “down the drain”.  He also stated that the part of the offer which he does not agree with is the amount of money offered.

 

28.     No other witnesses were called to testify in the plaintiff’s case.  Mr Mogano also only called one witness in the RAF’s case, Mr Olibogeng Mothlabedi, the insured driver.

 

29.     Mr Mothlabedi, who was 57 years old at the time of the collision, was driving to his workplace in Henningsvlei after picking up a colleague.  As he was driving though Maruping Village he noticed a Quantum vehicle approaching from the front, travelling in its correct lane.

 

30.     As the two vehicles were approaching each other, the Quantum went over a speed bump in the road and veered into Mothlabedi’s lane.   Mothlabedi’s exact word were that the Quantum “flew” over the speed bump and “when it landed it lost its lane and came into my lane.”  Mothlabedi, who at the time had been driving with his park lights on, then flicked his lights from dim to bright to alert the driver to the Quantum that he was in the wrong lane.

 

31.     When the Quantum continued coming towards him in his lane, he took his foot of the accelerator to reduce speed and moved off the road onto the gravel.  When the collision occurred his vehicle’s two left wheels were on the gravel.  The Quantum collided into the right front wheel of his Ford Ranger, which broke off and was found on the left lane of the road, where he had been driving.

 

32.     After the collision the Ford Ranger which he had driven came to a standstill on the gravel next to the side of the road where he had been driving and the Quantum had crossed his lane and ended up against the fence of a church on the same side of the road.

 

33.     Mothlabedi testified that the collision occurred at about 06:10 that morning.  The sun had already started coming up and people were walking about on their way to work.  He denied that he had been driving with his brights on or that the flickering of headlights had blinded the plaintiff as it was already light outside.  His evidence was that he had driven at a speed of about 30km/h and that there was nothing else he could do to avoid the collision.  He stated that he was an experienced driver who had been driving for the mines for 30 years and knew what to do to avoid an accident.

 

          Special Plea

34.     The argument on behalf of the plaintiff is that the settlement reached between the parties was an undersettlement as there is a gross disparity between the settled value and the actual value of the claim.  As a result the RAF had misrepresented that the offer it put on the table was the best the plaintiff would be able to get.  Further that the monetary value of the general damages settlement was determined by the RAF without reference to medico legal reports, without which the claim cannot be settled in a fair and equitable manner.  In addition, it was clear from the evidence of the plaintiff that he did not understand either the terminology used nor the scope of the settlement.  That being so, the argument goes, there was no consensus between the parties as to the terms of the agreement and that the special plea should as a result of the above contentions be dismissed.

 

35.     Mr Mogano on the other hand argued that if the RAF is satisfied that the injuries are serious it can make an offer on general damages without a serious injury assessment, as per Regulation 3 of the Act.  He contends that there is no obligation on the RAF to send a claimant for medical examinations.  That where a plaintiff seeks to set aside a settlement he has to show that his injuries are more serious relative to the settlement, which the plaintiff had failed to do.  And if the plaintiff had suffered other damages, in addition to general damages, such as a loss of income, he should have provided a report from an Industrial Psychologist to that effect, which he had failed to do.  He, the plaintiff had not even in his evidence stated that he had suffered a loss of income which the settlement amount did not cover but merely that he had a problem with the money.

 

36.     There is merit to both the arguments presented.  The only sensible way to deal with the special plea, in my view, is as suggested by Mr Mogano, and that is to do so on the basis of the merits of the claim.

 

          The merits

37.     The presentation of both the case for the plaintiff and that of the RAF has not been ideal.  Both drivers had passengers in their vehicles.  None of them were called to give evidence.  Mr Mongala in his argument before me informed that the four passengers in plaintiff’s vehicle could not be contacted.  Mothlabedi, in his evidence, stated that he could not get hold of his passenger, a Ms Sylvia Makape, either at her home or on her cellphone and had received information that she was working in Upington.  It seems to me that not much effort was put into locating these witnesses who could have provided valuable assistance in the determination of this matter.

 

38.     No photographs were provided of the accident scene or even the damage to the vehicles.  The police constable who filled out the accident report and drew the sketch plan was not called.  The plaintiff as well as Mothlabedi disagreed on certain aspects of the accident report.  So, for instance, the accident report notes that the accident type was a head on collision.  The damage to both vehicles are marked to be on the right front, right mid-front, left mid-front, left front, front centre and bonnet.  According to the plaintiff the damage to his vehicle was on the right front.  According to Mothlabedi his vehicle had damage to the right front wheel area.

 

39.     It is also noted on the accident report that before the accident occurred both vehicles were driving in the correct road lane and were travelling straight.  This is a senseless proposition which begs the question, how did the collision, which is not in dispute, happen?  The sketch plan of the accident scene is not much better.  It is not drawn to scale and does not show the point of impact.  A fixed point is marked with the letter “G” but the key to the sketch does not identify what the fixed point represents.  Mothlabedi, in his evidence, stated that the fixed point represents the speed bump and has marked the spot on the sketch where he considered the point of impact to be - in his lane almost directly across from where the Gereformeerde Kerk Street (as marked on the plan) forms a T-junction with the road travelled on by the two drivers.  Without any measurements this evidence however is not very helpful.  I will revert to the evidence concerning the speed bump in due course.  What I can mention now is that the accident report is not reliable.  The sketch plan itself serves very little purpose other than being a visual aid to the area in which the collision occurred and Motlhabedi’s evidence.  This matter should therefore be determined mainly on the evidence of the two drivers and the probabilities.

 

40.     To succeed with his claim for damages, the plaintiff bears the onus of proving that the insured driver was negligent, either wholly or in part.  It is not in dispute that the plaintiff and Motlhabedi were travelling in opposite directions on the same road.  It is also not in dispute that it was a straight road or that the collision occurred in the early morning.  The difference between the time of the collision given by the two drivers is only 10 minutes, but whilst the plaintiff stated that it was still dark, Mothlabedi’s evidence was that the night had already passed.  Given the fact that Mothlabedi found it necessary to drive with his park lights on I am of the view that it can safely be assumed that it was not yet fully daylight when the collision took place.

 

41.     The issue of negligence or its apportionment, if any, would in my view depend on the determination of certain essential facts, i.e. whether Mothlabedi’s vehicle would have been visible to the plaintiff and vice versa, how far apart the vehicles were when it first became visible to the respective drivers, did Mothlabedi’s headlights blind the plaintiff and if so, did the fact that he was temporarily blinded contribute to the collision and what opportunity both drivers had to take action to avoid the collision.

 

42.     The plaintiff’s evidence on these matters was not satisfactory.  In fact one would even be able to go as far as saying that he was evasive.  So, for instance, despite the allegation in his particulars of claim that the insured driver drove on the incorrect side of the road, the plaintiff was very reluctant to testify to this effect.  His evidence in chief was that he did know who caused the accident, all he knows is that he was driving in the left lane.  Only when pressed by Mr Mongala did he answer that the insured driver must have entered his lane because he, the plaintiff was driving in his correct lane.  Even his statement to the police does not mention that Motlhabedi drove his vehicle on the wrong side of the road.

 

43.     As to the visibility of Motlhabedi’s vehicle, the plaintiff’s version was that he did not see the vehicle approaching and only became aware of it when he was blinded by its lights.  His evidence was that his passenger had asked him if he did not see the lights but by then it was too late to respond because he immediately felt shattered glass on his face.  When the plaintiff was confronted during cross-examination with the fact that according to his statement he had informed the police officer that his passenger had asked him if he did not see the vehicle, he at first denied it but then conceded that that was what was written and offered the explanation that the oncoming vehicle’s lights would have affected him more than his passenger because he was positioned more towards the middle of the road than his passenger.

 

44.     The plaintiff could not give an estimate of the distance between his vehicle and that of Motlhabedi when he first saw the lights of Motlhabedi’s vehicle.  He offered no evidence of any attempt to avoid the collision.

 

45.     Mothlabedi’s evidence as opposed to that of the plaintiff, was clear and uncontradictory.  I must mention at this stage that it was never put to the plaintiff when he was cross-examined that the fixed point “G” on the sketch plan represented a speed bump.  Mr Mogano explained that he was only informed by Motlhabedi, whom he consulted with for the first time on the morning after the plaintiff had given his evidence, that the fixed point was a speed bump.

 

46.     In any event, Motlhabedi’s evidence was that he could see the plaintiff’s vehicle approaching him while in its correct lane until it crossed the speed bump, after which it veered into Motlhabedi’ lane.  Motlhabedi also did not give an estimate of how far his vehicle was from the plaintiff’s vehicle when it entered his lane, except for the mark which he made on the sketch plan to indicate the point of impact, which as I have already stated is of very little assistance.  Motlhabedi’s evidence however in many ways fills in the gaps left by the plaintiff’s evidence.

 

47.     If Motlhabedi had been driving with his headlights on bright and the plaintiff had kept a proper look out, he would have seen Motlhabedi’s vehicle approaching from afar on the straight road and would have been in a position to either reduce speed, stop or veer to the side of the road in order to avoid the collision.  If Motlhabedi had been driving without light or with park lights on as he had testified, and the plaintiff had his vehicle’s lights on, as he had testified, he would also have been able to see Motlhabedi’s vehicle in time, considering the speed the plaintiff testified he was driving, to at least attempt to avoid a collision.  Plaintiff’s failure to do so is indicative of the fact that he failed to keep a proper look out.  It also gives credence to Motlhabedi’s version that the plaintiff appeared to lose control of his vehicle when he went over the speed bump at some speed and veered into Motlhabedi’s lane.

 

48.     The question now is whether Motlhabedi was in a position to take additional measures to avoid the collision.  The argument by Mr Mongala was that because Motlhabedi had seen the plaintiff’s vehicle approaching from some distance he would have had sufficient time to avoid the collision.  But this was not Motlhabedi’s evidence.  According to Motlhabedi when he first saw the plaintiff’s vehicle it was driving in its correct lane and only after it hit the speed bump did it cross over into Motlhabedi’s lane.  There is no duty in a motorist to take evasive action when an oncoming vehicle is driving in its correct lane.  The moment that duty arose was when according to Motlhabedi, the plaintiff crossed the speedbump and entered his lane.  The distance between the two vehicles at that point is unknown.

 

49.     The further contention on behalf of the plaintiff was that Motlhabedi had blinded the plaintiff with his brights which caused the collision.  This was however not the evidence of the plaintiff.  His evidence was that he was blinded by the oncoming bright light but that he could not say who caused the collision.

 

50.     Mr Mongala also argued that the concession by Motlhabedi that he did not apply brakes is enough to find that he was negligent.  That is however not the test.  The test is whether the fact that Motlhabedi failed to apply his brakes caused or contributed to the collision.  Motlhabedi denies this and there is no evidence to support such an inference.  Motlhabedi flicked his lights when he saw the plaintiff entering his lane, which in itself is not negligent and is a widely practiced way in which to alert approaching motorists of impending danger.  He then took his foot off the accelerator and swerved to the side of the road.  And still did not manage to avoid the collision.  Plaintiff on the other had did nothing to avoid a collision and all the evidence point to the fact that the plaintiff had suddenly entered Motlhabedi’s lane.  There can be no other reasonable explanation for the point of impact as pointed out by Motlhabedi or the position in which the two vehicles came to a standstill.

 

51.     In the premises I am of the view that the plaintiff has failed to discharge the onus of proving on a balance of probabilities, that Motlhabedi had been negligent in causing the collision, either wholly or in part.

 

52.     The plaintiff’s claim can therefore not succeed.  That being the case, the special plea raised by the RAF should be upheld.

 

53.     With regards to the costs of this action, Mr Mogano has informed that given the financial position of the plaintiff he would not persist with an argument that costs should follow the result.  This in my view is a wise decision, not only because of the financial position of the plaintiff, but also because of the way in which the RAF had settled the claim of the plaintiff, which no doubt created the impression that the RAF accepted the fact that Motlhabedi was negligent and that his negligence, at least in part, caused the collision. 

 

The following order is made:

 

a)    The special plea is upheld.

 

b)    The plaintiff’s claim is dismissed.

 

c)    There is no order as to costs.

 

 

 

CC WILLIAMS

JUDGE

 

For Plaintiff:	Adv J Mongala
	Moribe Attorneys
	c/o Motlhamme Attorneys
For Respondent:	Mr M Mogano
	The State Attorney

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