IN THE HIGH COURT OF SOUTH AFRICA
(1) REPORTABLE: NO (2) OF INTEREST TO OTHER JUDGES: NO (3) REVISED. …1/12/2023… MPIENAAR DATE SIGNATURE
Case number: 62874/20
In the matter between:
MSIZA M N OBO MINOR CHILDREN Plaintiff
and
ROAD ACCIDENT FUND Defendant
JUDGMENT
This judgment is deemed to be handed down upon uploading by the Registrar to the electronic court file.
PIENAAR AJ
Introduction
1. The Plaintiff, Msiza Miria Nadima an adult female person who is currently
45 years of age residing at No 446 Wolvekop Verena, Mpumalanga Province
who sues herein in her personal capacity and in a representative capacity
as a mother and natural guardian of the minor children.
2. At all times relevant hereto, the deceased, Skosana Shelby Kleinboy,
a South African National, who resides in the Republic of South Africa prior
to his death in 2019, with ID no 780810 6130 0 80 as a driver at the time of
the said accident. [1]
3. The matter came before me on the default judgment roll on 22nd September
2023. There was no appearance on behalf of the RAF. The trial in the matter
proceeded only with regard to the issues relating to the merits. The issues
relating to quantum are to be postponed sine die. After listening to brief oral
submissions by Mr Thumbathi I reserved this judgment. Mr Thumbathi also
filed Heads of Argument or submissions for which I am grateful.
Onus
4. The plaintiff has to prove on a “balance of probabilities” involvement of the
Insured motor vehicle which was driven negligently in that a reasonable
driver would not have driven in the same manner under the circumstances.
5. It is noted that the deceased lost control of his motor vehicle because he was
dazzled by the shining bright lights of the Insured motor vehicle which came
from the opposite direction as it failed to dim its lights for him.
6. What requires to be decided is whether the accident was caused by the
negligent conduct of the insured driver or whether the plaintiff is the sole
cause of the accident.
7. For the Plaintiff to succeed he must show that there was an insured motor
vehicle involved and he needs to prove only 1% negligence on the part of
such a driver.
8. In the case of Odendaal v Road Accident Fund [3] the court said -
(a) The Plaintiff’s are “innocent third parties” and for them to succeed, they
bear the onus of establishing on the balance of probabilities that Dlamini
was guilty of some negligence which was causally connected to the
collision and therefore to the damages suffered by them. No question of
apportionment of fault or of damages arises here since there was no
contributory negligence on their part”
(b) That any causal negligence on the part of Dlamini, whatever the degree
thereof in relation to the collision would render the defendant liable, as the
insurer under the Road Accident Fund Act for the full amount of the
damages suffered by each plaintiff.
9. It is noted that the Plaintiff amended the Particulars of Claim in terms of
Rule 28 as follows: “On the 21st April 2019 at between Modderfontein
Road, Bronkhorstspruit, Gauteng Province, the accident occurred between
unknown motor vehicle bearing unknown registration letters and numbers
there and then driven by unknown driver collided with a vehicle with
registration letters and numbers BKN 028 GP driven by the deceased”. [2]
10. The Accident Report (AR) form has a brief description of the accident and
also a portion of accident sketch plan and both do not indicate involvement
of any car other than that of the Plaintiff. [4]
11. The conduct of the alleged insured driver failing to dim bright lights is a
material fact which ought to have been in mind of the passenger when
making statements to the police.
12. Moses Emanuel Masombuka stated that he was a front seat passenger in a
Mazda Rustler bantam bakkie with registration number BKN 028 GP. It was
dark and the condition of the road was wet since it did rain earlier and there’s
no street lights. The driver was traveling at a high speed when approaching
the curve there was an oncoming vehicle.The driver tried to avoid the
collision and lost control of the vehicle and overturned. They were thrown out
the bakkie and the driver was trapped inside the vehicle”
13. In application of the reasonable man test, I find that the deceased was
driving at a high speed and could have acted in avoiding to lost control of his
own vehicle. A driver will be negligent if the unreasonable conduct is
generally foreseeable and he/she does not take reasonable preventative
action to avoid a collision.
14. Yekiso J in the matter of Denissora v Heyns Helicopters [5] said “What I
have before me, for purposes of making the required determination, is the
uncontested evidence of Steynberg which would normally in the absence of
any contradictory evidence, be accepted as being prima facie true. It does
not, however, follow that because evidence is uncontested, therefore it is
true. The evidence may be so impossible in the light of all other evidence
that it cannot be accepted (see in this regard Meyer v Kirner) (6). The fact
that evidence stands uncontradicted does not relieve the party from the
obligation to discharge the onus resting on him (See Minister of Justice v
Saernetso 1963 3 SA 530 (A) at 5340-H).
15.In civil matters the onus is discharged upon a balance of probabilities but, no
doubt, this simplistic statement must be used with caution since, even if the
onus-bearing party puts into his “pan of the scale of probability ” slender
evidence, as against no counter-balance on the part of the opponent, and
although the scale would therefore automatically go down on the side of the
onus bearing party the court may still hold that the evidence tendered is not
sufficiently cogent and convincing (see Ramakulukusha v Commander, Venda
National Force 1989 2 SA 813 (V) at 838H and other authorities cited therein).
Order:
In the result I make the following order:
16. In the result I make the following order:
16.1 Absolution from the instance is ordered.
16.2 Leave is granted for the Plaintiff to proceed on his/her claim on the
same papers duly amplified should he be so inclined.
16.3 No order as to costs.
MPIENAAR
_______________________________________________
ACTING JUDGE OF THE GAUTENG DIVISION, PRETORIA
Counsel for Plaintiff : Adv Thumbathi
Instructed by : Komane Attorneys
email: happy@komanelaw.co.za
For the Defendant : No appearance
Road Accident Fund
Link no:
________________________________________________________________
[1] At Caselines 068 Notice of amendment
[2] At Caselines 0068 Notice of amendment
[3] Odendaal v Road Accident Fund 2002 3 SA 70 at 750 - F
[4] At Caselines 044 Index to Pleadings pg 044-46
[5] Denissora v Heyns Helicopters 2003 (4) All SA 74 (C )
[6] Meyer v Kirner 1974 4 SA 90 (W) at 930-H