Bangiwe v Road Accident Fund

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Kumalo AJ
• Judgment Date: 30 August 2019
• Court: Gauteng Division, Pretoria
• Hearing Date: 30 August 2019
• Counsel: AA Lubbe for the plaintiff. H Nkabinde for the defendant.
• Docket Number: 21327/17

Kumalo AJ:

Introduction

[1] This is a Road Accident Fund claim arising from a somewhat unique set of facts which are common cause between the parties.

[2] The parties agreed at a pre-trial meeting held on 13 August 2019 that the trial should proceed on the issue of merits alone and that the quantum should be separated and postponed in terms of the practice directive of this court.

[3] The parties further agreed to proceed on an issue of law, and that if this court finds for the defendant, then the claim of the plaintiff should be dismissed with costs; and if the court finds for the plaintiff, then the defendant concedes liability 100%.

Facts of the case

[4] The plaintiff was a passenger on the back of a bakkie, being the insured vehicle, there and then driven by one Mr Madise, being the insured driver. The plaintiff fell from the back of the bakkie when the insured driver lost control of the vehicle due to negligent driving. The plaintiff sustained injuries due to this collision that occurred underground in the mine.

[5] A claim for injury on duty was lodged with the Workmen's Compensation Commission and will be addressed more appropriately during the quantum stage of the action, should this court find for the plaintiff on the question of law posed.

[6] The defendant has come up with a somewhat novel defence and argues that since the collision and/or accident occurred underground in a mine, it falls outside the ambit of s 17 of the Road Accident Fund Act 56 of 1996 as amended.

[7] The crisp question that the parties posed for the consideration of this court is whether the Road Accident Fund is liable under s 17 of Act 56 of 1996 when the collision and/or accident happened underground in a mine, when all the other criteria for liability are met.

The applicable section of the relevant legislation

[8] It is perhaps apt that I should quote the relevant parts of s 17 of the Act:

'Liability of Fund and agents

(1) The Fund or agent shall —

(a)

Subject to this Act, in the case of a claim for compensation under this section arising from the driving of a motor vehicle where the identity of the owner or the driver thereof has been established;

(b)

. . .

Kumalo AJ

be obliged to compensate any person (the third party) for any loss or damage which the third party has suffered as a result of any bodily injury to himself or herself or the death of or any bodily injury to any other person, caused by or arising from the driving of a motor vehicle by any person at any place within the Republic, if the injury or death is due to the negligence or other wrongful act of the driver or the owner of the motor vehicle or of his or her employee in the performance of the employee's duties as employee . . . .' [My emphasis.]

[9] The contentious issue between the parties in this matter is the part of the section emphasised above.

[10] Neither defendant nor plaintiff could direct this court to any relevant case-law authorities to support their opposing views in the matter, though both in argument relied on more or less the same authorities to persuade this court, notably the decisions in Chauke v Santam Ltd 1997 (1) SA 178 (A) ([1997] 4 All SA 59); Road Accident Fund v Vogel 2004 (5) SA 1 (SCA); Road Accident Fund v Mbendera and Others [2004] 4 All SA 25 (SCA); Mutual and Federal Insurance Co Ltd v Day 2001 (3) SA 775 (SCA) ([2001] 4 All SA 6).

[11] However, the above cases dealt with the issue of whether the vehicles in question were motor vehicles as defined in the Act.

[12] In this case, defendant contends that s 17 of the Act does not cover underground accidents and that the...