REPUBLIC OF SOUTH AFRICA IN THE HIGH COURT OF SOUTH AFRICA

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1 SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy REPUBLIC OF SOUTH AFRICA IN THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, PRETORIA DATE: 19/6/2018 CASE NO: 7961/216 In the matter between: ZINHLE BRENDA MAMBA PLAINTIFF And THE ROAD ACCIDENT FUND DEFENDANT JUDGMENT MOSOPA, AJ INTRODUCTION [1] On the 15 February 2015 at about 11:50 in the morning a motor vehicle collision occurred between a motor vehicle with registration numbers and letters [.], driven by the Plaintiff, and a motor vehicle with registration numbers and letters [.] driven by Mr Dan Thibello Ratlhoisi (Insured driver) at the robot controlled intersection of Siluma Moagi drive and Brickfield, Spruitview, Germiston. [2] It is as a result of the above collision that the Plaintiff is suing the Defendant in terms of the Road Accident Fund Act of 1996 for damages suffered as a result of the aforesaid collission.

2 [3] At the commencement of the trial, I was informed by Mr Mamba on behalf of the Plaintiff that the parties have agreed to separate issue of liability from that of quantum and that the trial should proceed only on merits in terms of Rule 33 (4) of the Uniform Rules of Court and that the issue of quantum be postponed sine die. I then so ordered such separation. [4] The Plaintiff in her particulars of claim and more specifically to paragraphs 5,6 and 7 thereof, the following averments were made: "5 The aforementioned collision has been caused by the exclusive negligence driving of the unknown insured driver who was driving the motor vehicle and who was negligent in one, more or all of the following aspects; 5.1. He failed to keep a proper look-out; 5.2. He drove his vehicle at a speed that exceeded the speed limit; 5.3. He failed to apply the brakes of his vehicle at all, alternatively timeously, and/or sufficiently, alternatively he drove his vehicle whilst the braking system and/or more of the tyres thereof was/were in a defective and roadworthy condition, the fact of which he was aware; I 5.4. He failed to avoid the collision when, by taking reasonable and proper care (including, but not limited to travelling more slowly, swerving) he both would and should have done so to protect the right of the Plaintiff; 5.5. He failed to drive the motor vehicle on his/her correct lane of travel and caused the accident; 6. As a result of the aforementioned collision, the Plaintiff sustained the following physical and emotional injuries; 6.1. Contusion chest; 6.2. Contusion head/face; 6.3. Contusion neck; 6.4. Contusion right foot;

3 6.5. Contusion right shoulder; 6.6. Low back injury. 7. As a result of the injuries that the Plaintiff sustained in the aforementioned accident, 7.1. She received medical treatment in a hospital; 7.2. She will have to receive medical treatment, aids and other specialised services in the future; 7.3. She suffered loss of amenities; 7.4. She suffered pain and discomfort that will probably continue in future; 7.5. She suffered emotional trauma and shock that will probably continue in future 7.6. She suffered loss of earnings and will probably continue in future," [5] The Defendant in its plea to Plaintiffs particulars of claim and more specifically to paragraph 5 of the Plaintiff's particulars of claim averred that; 5.1. The Defendant denies allegations contained in that paragraph and placed the Plaintiff to the proof thereof; 5.2. In the alternative to the denial, pleaded that the Plaintiff was the sole cause of the collision and was negligent in one or more of the following respects; She failed to keep a proper lookout; She failed to avoid the collision when, by taking reasonable or proper care when she both could, and should have done so; She failed to take sufficient amount of the presence and/or alliteratively visibly intended actions of the insured vehicle; She failed to take due regard of the other road users, in particular the insured driver;

4 She failed to exercise proper or adequate control over his vehicle; She failed to apply brakes of his vehicle timeously, or at all; She drove at an excessive speed under the prevailing traffic conditions. 5.3 Further alternatively in the event the court finding that the driver of the insured vehicle acted negligently and that such negligence contributed to the cause of the collision then, the Defendant avers that the Plaintiff was also negligent and that her negligence contributed to the cause of the collision." THE EVIDENCE [6] The Plaintiff was the only witness to testify and no witnesses were called to testify on behalf of the Defendant. The Defendant did not bring any witness to court to refute the Plaintiffs evidence and it is my considered view that the Plaintiffs evidence remains unchallenged save for what I will refer to herein later in my judgment. [7] The Plaintiff, Ms Zinhle Brenda Mamba, testified that on the 15 th February 2015 she was involved in a motor vehicle collision with another motor vehicle and was at that stage the driver of her motor vehicle. She further testified that she was driving on Brickfield road and when she approached the robot it was green for her and at the intersection she was going to execute a tum to the right. When she reached the intersection she stopped her motor vehicle and she could observe that there were no motor vehicles going up the road she was travelling, she looked at her left hand side and right hand side and she could not see any motor vehicles. The road she was turning to on the right was a two way lane road and in the middle of the intersection she heard a big noise and she then realised that another motor vehicle had collided with her motor vehicle. The motor vehicle which collided with her motor vehicle was coming from the right and she was also turning to the right. The manner in which the collision occurred she was in no way to avoid such collision. The robot was red at the time she

5 reached the intersection for the motor vehicles coming from the right side and the indication is that, that motor vehicle she collided with did not stop at the robot. [8] Under cross-examination by Mr Nel, the Plaintiff was referred to the statement that she made to the police on the 09 July 2015 wherein she said the following, "I turned I suddenly heard a loud bang and all the airbags came off In the state of confusion, I saw a white BMW (B) sedan right in front of my car (A) BMW I had no idea where it came from. However according to witness it came from Silume drive and hit me headon." The Plaintiff was asked to reconcile the two statements, i.e. the oral statement she made at court and the statement she made to the police. In her reply she said that the statement she made at court is actually what transpired at the time of the collision. She was further asked that if she looked to the right side of the road, why did she not see the motor vehicle which she collided with. She answered by saying that at the time she was looking to the right the motor vehicle was not there. She further testified that the collision occurred at around 11h00 in the morning and it was a sunny day. She further said the road on her right is a short road and she referred to it as a short road and said that if you further go down that road the road curves and you cannot properly see after the road had curved what is on that side. The road curves plus or minus 20 (twenty) metres from the robot as one goes down that road. ISSUES FOR DETERMINATION [9] The following are issues for determination; 9.1. Who was the negligent party who contributed to the motor collision; and, 9.2. In the event I find that the Defendant was negligent, whether or not the Plaintiff contributed to the cause of the collision. LEGAL PRINCIPLE [10] It is trite law that every road-user owes a duty of care and consideration for any other road-user. This duty includes a duty to keep a proper lookout.

6 The duty of care requires of every driver, to drive like a reasonable man who would be able to reasonably foresee the possibility of unforeseen consequences and act in accordance with such appreciation. [11] Failure to act in accordance to the above is tantamount, in law to negligence. See Minister of Safety and Security V Van Duivenboden (2002) 3 ALL SA 741 (SCA). [12] In Kruger v Coetzee 1966 (2) SA 428 (A) at 430 E-F, which is the wellknown and widely approved test for negligence enunciated by Holmes JA, stated; "For the purpose of liability culpa arises if - (a) a diligens paterfamilias in the position of the defendant- (i) would foresee the reasonable possibility of his conduct injuring another in his person or property and causing him patrimonial loss, and (ii) would take reasonable steps to guard against such occurence; and (b) The defendant failed to take such steps" [13] It is only if the requirement in (a) (i) above is established that the need arises to consider whether a reasonable man would have guarded against any foreseeable occurrence and failed to do so. [14] It is trite that a driver of a motor vehicle entering a robot controlled intersection with a robot green in his/her favour has a duty to look out for any traffic which might not yet be clear of the intersection and which might be about to cross his/her path of travel. Such driver has a duty to look out for any traffic approaching from his right and to take necessary precautions to avoid a collision. [15] The duty of care that a driver has whilst entering an intersection is not absolved by the fact that the traffic light at the intersection and the signal

7 was in his or her favour i.e. that the traffic light was green in his or her favour. Equally so a driver who passes through a red robot and enters an intersection is regarded as a trespasser. However, this does not give a obedient driver, i.e. the one who the traffic light was green to his/her favour, who failed to avoid a collision when he could have done so by the use ordinary care any sympathy from the court, as his/her conduct amount to negligence. (See Van Der Walt v Gershalter (1944) TPA 240). ANALYSIS [16] As I have already indicated the Plaintiff was a single witness to her case. The evidence of a single witness in civil trials is not to be approached with cautionary rules as it is the case in criminal matters but the underlying factor is that the uncorroborated evidence of a single witness must be credible. In Daniels v General Accident Insurance Co Ltd 1992 (1) SA 757 (C) King J stated; "Although there is apparently no "cautionary rules" in civil cases as is in criminal matters where proof beyond reasonable doubt is required, the single witness more particularly where he is one of the parties, must be credible to the extent that his uncorroborated evidence must satisfy the court that on the balance of probabilities is the truth." [17] Section 16 of the Civil Proceedings Evidence Act 25 of 1965 (as amended) provides that: "16. Judgment may be given in any civil proceedings on the evidence of any single competent and credible witness." [18] The collision in this matter happened during the day at around 11h00 am on a sunny day. The general view to the right to where the Plaintiff was turning to at the intersection was clear for her. Plaintiff in her viva voce evidence said that when she approached the robot, the robot was green in her favour and despite being green for her, she stopped her motor vehicle to ensure that it is safe for her to execute a turn to the right. She also as a

8 precaution looked to the left and the right and up the road to see if it is safe for her to enter the intersection and further execute a turn to the right. [19] The Plaintiff in the statement she made to the police relating to the collision dated the 09th July 2015 which is approximately 5 (five) months after the collision, informed the police officer who took down the statement that "she had no idea where the motor vehicle which collided with her motor vehicle came from.'' [20] Mr Nel on behalf of the Defendant contended the Plaintiff gave two conflicting versions relating to the same incident and that aspect affects her credibility. Mr Nel further contended that for the fact that the Plaintiff told the police officer that she does not know where the motor vehicle she collided with her came from, simply means that she did not keep a proper look out and she was negligent. He then said that the Plaintiff is at best entitled to be awarded 25 % of the proven damages. [21] Mr Mamba on the other hand on behalf of the Plaintiff submitted that the Plaintiff was cautious when she approached the traffic light. Despite the traffic light being green in her favour she stopped her motor vehicle and have a look at the sides of the intersection and it was when she was in the intersection that the insured driver came at a high speed and skipped the robot and collided with the Plaintiff. No contributory negligence can be attributed to the Plaintiff but if the court is of the view that there was contributory negligence on the part of the Plaintiff, then the court can make an award of 80o/o/ 20% in favour of the Plaintiff. [22] The Plaintiffs evidence that when she approached the intersection the robot was green in her favour remains uncontradicted and it is my considered view that in the absence of any contradiction her evidence remains credible even though not corroborated. [23] It is clear from the evidence that the motor vehicle which collided with the Plaintiff was not travelling in the same direction with the Plaintiff. This is so based on the sketch plan by the police which was admitted into evidence and further proven by the sketch which was drawn by the Plaintiff in court

9 at the request of Mr Nel. The motor vehicle which collided with the Plaintiff was coming from the right side of the intersection and also the right side of the lane of travel of the Plaintiff. [24] There is no evidence put forward before me that the traffic lights were not properly working at the time when the Plaintiff reached the intersection. It can therefore be safely assumed that the traffic light on the lane of travel of the insured driver was red when the insured driver reached the intersection and drove in such red robot and collided with Plaintiff. [25] Both the Plaintiff and the insured driver were negligent in that the Plaintiff despite the traffic light been green for her failed to look on her right to ensure that it was safe for her to execute a turn to the right. The insured driver despite the robot being red for him failed to stop at the robot. I am alive to the fact that the Plaintiff in her particulars of claim omitted or failed to mention the issue of the robot and this is the factor that I must also consider when making a determination. [26] Section 1 (a) of the Apportionment of Damages Act 34 of 1956 provides: "where any person suffers damages which is caused partly by his own fault and partly by the fault of any other person a claim in respect of that damage shall not be defeated by reason of the fault of the claimant but the damages recoverable in respect thereof shall be reduced by the court to such extent as the court may deem it just and equitable having regard to the degree in which claimant was at fault in relation to the damage. " [27] On the proper interpretation of the above provision and the fact that I made a finding that both the Plaintiff and insured driver contributed negligently to the collision, the Plaintiffs claim cannot be defeated by her part in contributing to the collision. However what I must consider is the degree in which such negligence contributed to the collision. [28] I must admit that failure by the Plaintiff to aver the issue of the robot in her

10 particulars of claim might have prejudiced the Defendant in the investigation and preparation of its case. I am of the view that if the issue of the robot was prop rly pleaded it could have afforded the Defendant with an opportunity of verifying with the relevant municipality or the police as to whether the robot on the date of the collision was in a proper working condition or not. Despite what I have said above, there was nothing preventing the Defendant to conduct its investigation as they were fully aware that the collision happened at a robot controlled intersection. [29] However on the facts, I find that the Plaintiff is liable for contributory negligence resulting in the collision. [30] It is further my finding that the insured driver proportionally contributed substantially more to the negligence which caused the collision by entering the intersection when the robot was red for him. [31] In the circumstances I am of the view that an apportionment of 70/30 in favour of the Plaintiff is appropriate. [32] I accordingly make an order as follows; 1. The Defendant is liable for 70% of the Plaintiffs proven or agreed damages. 2. The Defendant is ordered to pay the Plaintiff costs of suit. 3. Issue of quantum is postponed sine die. MOSOPA, M.J ACTING JUDGE OF THE HIGH COURT GAUTENG DIVISION, PRETORIA For the Plaintiff: Instructed by: For the Defendant: Instructed by: Adv B Mamba Kokela Attorneys Adv Nel Mothle Jooma Sabdia Inc

11 Date of Judgment: 19/6/2018