Mathebula v Road Accident Fund

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: BA Mashile J
• Judgment Date: 16 August 2022
• Docket Number: 3135/2019
• Hearing Date: 16 August 2022
• Court: Mpumalanga Division, Mbombela
• Citation: 2022 JDR 2341 (MN)

Mashile J:

[1]

On 18 July 2014, Milicent Mathebula ("the minor child") with id no: XXXX ("the minor child") was a pedestrian when she allegedly collided with an unknown motor vehicle at Ormonch (albeit it was at Arnold A according to the Plaintiff), Bushbuckridge, Mpumalanga Province. She sustained lacerations and abrasions on her head and face respectively. Believing that the collision exposed the Defendant to liability for the injuries suffered by the minor child, the Plaintiff, her mother and natural guardian, instituted this damages action under the headings of future medical expenses, loss of earning capacity and general damages. The action was initially instituted in the Gauteng Division, Pretoria but on 1 August 2019 Potterill J directed that the case be transferred to the newly established Mpumalanga Division.

[2]

This Court has become familiar with actions against the Defendant being initially opposed and later, for some inexplicable reason, jettisoned with the result that the Defendant often appears without legal representation on the date of hearing. This matter is no exception. Needless to state that the conduct of the Defendant brings to bear an unconscionable burden on the presiding officer during the proceedings in court. The Defendant has defended the claim and went further to serve and file a special plea, which to date it has not withdrawn .

[3]

The special plea is that the Plaintiff has failed to comply with Regulations 3 (1)(a) and 3 (c) of the regulations published under the Road Accident Fund Act No: 56 of 1996, as amended. Faced with this special defence, the Plaintiff secured the services of Dr Segwapa, a neurosurgeon, to complete a serious injury report as envisaged in the aforesaid Regulations. The report has since been completed and delivered but the Defendant has not withdrawn the special plea.

[4]

The special plea is therefore extant requiring this Court to first deal with it prior to proceeding with the consideration of the entire claim. This is a norm in all matters containing special pleas as, depending on whether it is upheld or not, could be dispositive

2022 JDR 2341 p3

Mashile J

of the entire case. To the extent that the Plaintiff has submitted a serious injury report filled in by Dr Segwapa following his medical examination of the minor child, the Plaintiff has complied with the Regulations. As such, the special plea ought to have been withdrawn and insofar as it still subsists, it is dismissed with costs.

[5]

There is no application before this Court in terms of Rule 33(4) of the Uniform Rules of Court that the issues of liability and quantum be treated discretely. The Court is therefore expected to assess both issues and make a pronouncement. As stated earlier, the Defendant's defence of this action is somewhat half-hearted insofar as it has not contested the merits at all. That said, the absence of a different version on the collision does not absolve the Plaintiff from proving that the collision occurred and that it was occasioned by the negligent driving of the insured driver. The Plaintiff testified on the merits, which were not disputed. Various experts witnesses also took the stand on behalf of the Plaintiff to justify the amount of quantum claimed.

EVIDENCE:

[6]

The evidence is partly oral and partly contained in documents such as, Medical Hospital Records, Medico-Legal Reports, ETC. An Officer's Accident Report ("OAR") apparently compiled by Captain Molapo and Constable Mabilo is also present but it was not introduced as evidence. To the extent that it does not form part of evidence properly before Court, does not give a description of how the collision happened, it is not helpful at all. There...