Mnisi v The Road Collision Fund

• Jurisdiction: South Africa
• Judge: Roelofse AJ
• Judgment Date: 01 April 2022
• Docket Number: 1823/19, 2538/18, 315/20, 208/20, 4082/19, 4423/19, 2382/19 and 4067/19
• Hearing Date: 31 August 2021
• Court: Mpumalanga Division (Main Seat)
• Citation: 2022 JDR 0911 (MN)

Roelofse AJ:

INTRODUCTION:

[1]

All the actions to which this judgment relates are separate actions that were instituted against the Road Accident Fund ('the RAF') [1] by plaintiffs who are claiming compensation from the RAF arising from injuries they have sustained after they have been involved in motor vehicle collisions. In all matters, the plaintiffs have complied with the statutory prescripts [2] before instituting their actions.

[2]

The actions include: PHUMZILE REMEMBER MNISI v The RAF / Case Number: 1823/19 ('MNISI"), BIGBRAIN SKUMBUZO MALALA v The RAF /

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Case Number: 2538 ('MALALA'); BOTHELO KGAMANE v the RAF / Case Number: 315/2020 ('KGAMANE'); EMMELINAH NYATSELA MASHABA v The ROAD COLLISION FUND / Case Number: 208/20 ('MASHABA'); NDUBASI ROBERT SHABANGU v The ROAD COLLISION FUND Case Number: 4082/19 ('SHABANGU'); BUSISIWE FIKILE KHOZA v The ROAD COLLISION FUND / Case Number: 4423/19 ('KHOZA'); CRAIG TALENT NGOBE v The ROAD COLLISION FUND / Case Number: 2382/19 ('NUOBE'); and ANDREAS JAMES SITHOLE v The ROAD COLLISION FUND / Case Number: 4067/19 ('SITHOLE').

[3]

I have resolved to produce this one judgment in respect of all the actions because they share similarities. There are also differences. However, the circumstances and way the actions proceeded at the hearing in my view, warrants this judgment. What is stated in this judgment has been stated before and should be obvious and nothing new. However, the aforesaid actions prompted me to restate what should be obvious for it appears to be not.

Similarities:

[4]

The first obvious similarity in respect of all the actions are that the RAF is the defendant. In addition: the matters were enrolled before me on 31 January 2022; the RAF did not participate in any pre-trial or case management procedures in terms of the Uniform Rules [3] or the case management directives of this Division [4] ; no

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attorney was on record for the RAF when the trials commenced; only the plaintiffs appeared when the trials were called; all the matters proceeded in terms of Rule 39(1) of the Uniform Rules; no oral evidence was tendered by any of the plaintiffs or their witnesses; the plaintiffs presented evidence on affidavit where after they closed their cases; and, the plaintiffs were all represented by the same firm of attorneys.

Differences:

[5]

In the KGAMANE, MASHABA, SHABANGU, KHOZA and NGOBE matters, the "merits" were previously settled. I put "merits" in quotation marks because, it has become custom in RAF matters that the enquiry after the "merits" have been settled summarily proceeds to "quantum". I put "quantum" also in quotation marks because this is where the plaintiffs in RAF matters proceed to prove the damages that they have suffered as a result of bodily injuries they sustained as a result of the collision or a dependant claims for loss of support due to the death of a breadwinner. These damages more often than not include both pecuniary and non- pecuniary loss. At this stage of the proceedings plaintiffs seek to rely on medical reports and the opinions of various experts. I return to the aspect of settlement on the "merits'' and the issue of "quantum" later in this judgment.

[6]

In the MNISI, MALALA and SITHOLE matters, there were no settlement in respect of the "merits".

[7]

In the MNISI, MASHABA, KHOZA, NUOBE and SITHOLE matters, the RAF delivered a special plea and a plea. In its special pleas, the RAF disputed its

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obligation to compensate the plaintiffs for non-pecuniary loss for the alleged serious injuries they have sustained in the collisions.

[8]

In the KGAMPANE matter, the RAF delivered no notice of intention to defend and has filed no plea.

[9]

Save for the KGAMAPE matter (where no attorney was on record for the RAF), the RAF's attorneys withdrew as attorneys of record for the RAF relatively long before the date of trial. After the RAF's attorneys' withdrawal, further engagements by the plaintiff's attorneys were with the RAF's claim handlers. Calls by the plaintiff's attorneys to participate in pre-trial procedures were ignored. In all the matters, the RAF was served with the notice of set down for trial.

[10]

It is therefore apparent from the above that the mix of matters that were before me on 31 January 2022, pertaining to representation, settlement, non-participation or partly-participation by the RAF, represents a relatively inclusive mix of RAF matters that are before the courts in this division. During the proceedings this court has also encountered issues of proof and procedure which is also common in RAF trials.

[11]

This judgment will proceed as follows: Firstly, I deal with the cause of action in RAF matters. Secondly, I deal with procedural issues. Thirdly, I discuss evidence and lastly, I shall deal with each of the actions and pronounce on the amounts of compensation to be awarded in each case if an entitlement to compensation was proven by the respective plaintiffs.

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CAUSE OF ACTION IN RAF MATTERS:

[12]

In C Septoo obo J M Septoo & another v The Road Collision Fund (058/2017) [2017] ZASCA 164 (29 November 2017) at para. 3, it is said by the Supreme Court of Appeal:

'Section 3 of the Act stipulates that:

'The object of the Fund shall be the payment of compensation in accordance with this Act for loss or damage wrongfully caused by the driving of motor vehicles.'

The underlying basis for the Act is the common law principles of the law of delict. A claimant must therefore prove all the elements of a delict before it can succeed with its claim in terms of the Act.'

[13]

In Evins v Shield Insurance Co Ltd [1980] 2 All SA 40 (A) [5] , the elements of a claim founded on delict were reaffirmed as follows:

'In the case of an Aquilian action for damages for bodily injury (and here I use the term Aquilian in an extended sense to include the solatium awarded for pain and suffering, loss of amenities of life, etc., which is sui generis and strictly does not fall under the umbrella of the actio legis Aquiliae: Government of RSA v Ngubane, 1972 (2) SA 601 (AD) at p 606 E- H) the basic ingredients of the plaintiff's cause of action are (a) a wrongful act by the defendant causing bodily injury, (b) accompanied by fault, in the sense of culpa or dolus, on the part of the defendant, and (c) damnum, i.e. loss to plaintiff's patrimony, caused by the bodily injury. The material facts which must be proved in order to enable the plaintiff to sue (or facta probanda) would relate to these three basic ingredients and upon the concurrence of these facts the cause of action arises. In the usual case of bodily injury arising from a motor collision this concurrence would take place at the time of the collision.'

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[14]

The Constitutional Court, in Law Society of South Africa and Others v Minister for Transport and Another 2011 (1) SA 400 (CC) at para. 25 confirmed that the Act retained the common law fault based liability:

'……. Firstly, the scheme insures road users against the risk of personal injury and their dependants against the risk of their death caused by the fault of another driver or motorist. It has retained the underlying common law fault-based liability. This means that any collision victim or a third party who seeks to recover compensation must establish the normal delictual elements. The claimant must show that he or she has suffered loss or damage as a result of personal bodily injury or the injury or death of a breadwinner arising from the driving of a motor vehicle in a manner which was wrongful and coupled with negligence or intent.'

[15]

Section 17 of the Act provides for the liability of the RAF (and its agents). The section provides:

'17. Liability of Fund and agents.—(1) The Fund or an 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)

subject to any regulation made under section 26, in the case of a claim for compensation under this section arising from the driving of a motor vehicle where the identity of neither the owner nor the driver thereof has been established,

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 of the owner of the motor vehicle or of his or her employee in the performance of the employee's duties as employee: Provided that the obligation of the Fund to compensate a third party for non-pecuniary loss shall be limited to compensation

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for a serious injury as contemplated in subsection (1A) and shall be paid by way of a lump sum.'

[16]

Non-pecuniary loss means loss that is not quantified in money and includes, amongst other things, compensation for pain and suffering, disfigurement, loss of amenities of life, loss of enjoyment of life, emotional shock and so forth.

[17]

Therefore, for the RAF to be liable to compensate the third party (ie, the plaintiff), it is necessary for the plaintiff to allege and prove: (a) the loss resulted from bodily injury to the plaintiff or, in the case of a dependant claiming loss of support subsequent to the death of a breadwinner, such loss; (b) the loss arose from the driving of a motor vehicle; (c) the injury was due to negligence or other wrongful act; (d) the negligence or wrongful act must be that of the driver or that of the owner of the motor...