Maribe v Road Accident Fund

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Motha J
• Judgment Date: 14 September 2023
• Citation: 2023 JDR 3540 (GP)
• Hearing Date: 01 September 2023
• Docket Number: 66435/2017
• Court: Gauteng Division, Pretoria

Motha J:

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Motha J

INTRODUCTION

1.

Following a road accident which happened on the N1 highway, the plaintiff instituted these legal proceedings against the Road Accident Fund. Before this court is the question of liability, as the issues have been separated in terms of Rule 33(4) of the Uniform Rules of Court. The plaintiff, therefore, seeks to hold the Road Accident Fund 100% liable for his damages. The Road Accident Fund, on the other hand, opposes this action and maintains that the plaintiff’s negligence was the sole cause of the accident.

2.

In 2019, this matter was adjourned to afford the defendant an opportunity to secure the attendance of its witnesses. Despite this court’s indication that it was willing to hear the defendant’s witnesses, the defendant decided to proceed without calling them. This court takes a dim view at the lack of proper preparation of this matter despite the ample time available to both the parties. This court was neither furnished with any detailed sketch plan, nor any measurements of the road. Not to mention the pictures or road traffic signage, nothing. Under these circumstances, it is the court that is on trial.

FACTS

3.

The plaintiff’s case pivots around his evidence and that of his friend, Mr. Marumo. First to take the stand was the plaintiff. His version is that on 3 April 2015, at approximately 21h00, he was driving a black Opel Corsa from Pretoria to Moria for a church service, in Polokwane, and the road was busy. He was in the company of three passengers, Mr. Marumo, who was seated on

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Motha J

the passenger’s seat; and two passengers at the back, to whom he had given a lift.

4.

The road had four lanes, two lanes to the north and two lanes to the south. Two yellow lines separated the roads. In short, a dual carriageway. Driving on the fast lane on this tarred, flat, straight, and dark road, without streetlight, he decided to switch on his bright lights. He does not know the speed at which he was travelling, but it was less than 120 kilometers per hour, the legal speed limit on that road.

5.

Within a few kilometers after driving through the Nyl Plaza tollgate, he saw a motor vehicle on the opposite side of the road flickering its lights at him. His immediate reaction was to dim his bright lights. However, the car did not stop flashing the lights. He remarked that the opposite car was, to quote him: “making me not to see clearly”.

6.

It is also his version that he reduced his speed as the motor vehicle continued to flicker it’s light at him. He, again, did not know the speed he was travelling at after the deceleration. Suddenly, he saw a dark object lying horizontally on the road, and he tried to swerve but it was too late. Mr. Marumo shouted “Phoofolo!”, meaning animal.

7.

He collided with a wildebeest, as they later found out. Their motor vehicle rolled three times. He sustained serious injuries for which he was treated at Mokopane hospital and later transferred to Military hospital.

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Motha J

8.

In his statement in terms of s19(f) of the Road Accident Fund Act, 56 of 1996, he did not mention that the other motor vehicle continued to flicker its lights. He stated that during the time when his lights were dimmed, he could not see the animal lying on the fast lane until he was too close to it. He also stated that the animal was black in colour and difficult to see in the darkness.

9.

When asked about this, he testified that his statement was just a general overview of the matter, hence, he did not mention the details. Under cross-examination he did not want to commit himself about how far he could see without the bright lights on. He just said not far. Upon being asked about his failure to move to the slow lane after reducing his speed, he testified that he did not see the need to do that. This answer was not satisfactory since he had testified that there was nothing preventing him from occupying the slow lane.

10.

Upon being requested by the court to estimate the time it took from when the two vehicles drove past each other and the collision with the animal, he was evasive and tangential. Nonetheless, he confirmed that when his passenger shouted “Phoofolo” the flickering car had already driven past his vehicle.

11.

Next to take the stand was Mr. Marumo. He corroborated the common cause facts such as the number of lanes on the road, number of passengers...