Lalmiah v Road Accident Fund
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | Mbhele DJP |
| Judgment Date | 01 September 2023 |
| Citation | 2023 JDR 3322 (FB) |
| Hearing Date | 23 May 2023 |
| Docket Number | 734/2021 |
| Court | Free State Division, Bloemfontein |
Mbhele DJP:
Plaintiff alleges that he sustained bodily injuries arising from a motor vehicle accident caused by an unknown third party. He instituted a claim for damages against the Defendant (RAF). The merits were separated from the quantum. At the beginning of the trial, the RAF abandoned its special plea.
The plaintiff’s testimony was essentially as follows. On 19 November 2019, the plaintiff was travelling from Senekal to Welkom in a Toyota Hilux single cab bakkie with registration numbers and letters FFM 930 FS (Plaintiff’s vehicle) carrying one passenger. The vehicle was travelling on a tarred road with a single
2023 JDR 3322 p2
Mbhele DJP
carriage in both directions with cardboard boxes containing stationary loaded on the back of the bakkie. The plaintiff was travelling at a speed of approximately 90- 100 kilometres per hour. About 30 kilometres before Welkom in between, Hennenman and Ventersburg, he noticed a blue Toyota Tazz (insured driver) following him.
The insured driver overtook the plaintiff where after he reduced his speed to approximately 80 – 90 kilometres per hour. The plaintiff followed the insured driver for about 5 – 8 Kilometres on a road consisting of rolling hills. The insured vehicle was driving slowly and the vehicle was making sudden abrupt left and right turns (driving in a zig-zag). Plaintiff indicated his intention to overtake and then proceeded with a manoeuvre to overtake the insured vehicle. While his vehicle was parallel to the insured vehicle, the insured vehicle moved into the right lane without indicating and it slightly bumped with the left fender of his vehicle. He swerved to the right and his vehicle landed outside the tarmac on the gravel, he immediately thereafter swerved to the left, lost control of the vehicle and crossed the left lane where he eventually landed in the veld.
The photos of the plaintiff’s vehicle show that it had damages on the bonnet and on the sides. Plaintiff contradicted the affidavit taken down by his Attorney and submitted to the RAF accompanying the RAF1 form when he lodged his claim. In his affidavit, the plaintiff said that he collided with a blue Mazda bakkie with registration numbers and letters DNG 533 FS after which he lost control of the vehicle and it rolled.
In cross-examination, he denied ever telling his Attorney that he collided with a vehicle as described in the affidavit. He reiterated that he collided with a blue Toyota Tazz whose registration numbers and letters are unknown. The plaintiff was confronted with the inconsistencies between the oral evidence tendered in court and the affidavit he signed in support of his claim but he offered no satisfactory explanation. He was evasive in his response and failed to answer many questions.
2023 JDR 3322 p3
Mbhele DJP
The RAF closed its case without calling any witnesses. I have to evaluate the evidence on the version proffered by the plaintiff.
In the particulars of claim, the plaintiff alleges 5 grounds for negligence on the part of the insured driver: That he drove too slow under the prevailing circumstances, he failed to keep a proper lookout, he failed to apply brakes of the vehicle he was driving effectively alternatively at all, he failed to drive the vehicle with the necessary skill expected of a reasonable driver in the circumstances, he moved into the lane for oncoming traffic at a time when it was inopportune and unsafe to do so.
The onus rests upon the plaintiff to prove negligence on the part of the defendant on a balance of...
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