Jwili v Road Accident Fund (2009/12886) [2010] ZAGPPHC 37; 2010 (5) SA 32 (GNP) (6 May 2010)

Jwili v Road Accident Fund (2009/12886) [2010] ZAGPPHC 37; 2010 (5) SA 32 (GNP) (6 May 2010)

The court found that the insured driver was negligent in failing to avoid the plaintiff, who was lying in the road, despite the road being illuminated and other drivers managing to avoid the plaintiff. The evidence of Warrant Officer Selebalo was accepted as credible and established that the insured driver had sufficient opportunity to see and avoid the plaintiff. The defendant did not provide any evidence to the contrary and did not contest the insured driver's negligence at trial. The court rejected the defendant's argument of contributory negligence and volenti non fit iniuria, finding no basis for holding the plaintiff negligent. The conduct of the defendant's attorney, Mr. Ntimbana,...

Citation
[2010] ZAGPPHC 37
Parties
Plaintiff: Lucas Neo Jwili; Defendant: Road Accident Fund
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
6 May 2010
Case Number
2009/12886
Procedural Posture
Civil Trial / Merits Trial on Liability Only; Quantum Postponed
Outcome
Defendant found liable for 100% of any damages the plaintiff can prove; special costs order granted against defendant and its attorney.
Judges
B.R. Southwood
Legal Topics
Road Accident Fund, Negligence, Contributory Negligence, Apportionment of Damages Act, Special Costs Order
Delict Civil Procedure Road Accident Fund Negligence Contributory Negligence Apportionment of Damages Act Special Costs Order

Case Brief

Summary, issues, holding and outcome

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Parties

Lucas Neo Jwili

Plaintiff

Road Accident Fund

Defendant

Procedural Posture

Civil Trial / Merits Trial on Liability Only; Quantum Postponed

Legal Issues

  1. 1 Whether the insured driver was negligent in causing the collision with the plaintiff.
  2. 2 Whether the plaintiff was contributorily negligent in the circumstances.
  3. 3 Whether the defendant and its attorney should be subject to a special costs order for conduct during litigation.

Ratio Decidendi

The court found that the insured driver was negligent in failing to avoid the plaintiff, who was lying in the road, despite the road being illuminated and other drivers managing to avoid the plaintiff. The evidence of Warrant Officer Selebalo was accepted as credible and established that the insured driver had sufficient opportunity to see and avoid the plaintiff. The defendant did not provide any evidence to the contrary and did not contest the insured driver's negligence at trial. The court rejected the defendant's argument of contributory negligence and volenti non fit iniuria, finding no basis for holding the plaintiff negligent. The conduct of the defendant's attorney, Mr. Ntimbana,...

Court Disposition

Defendant found liable for 100% of any damages the plaintiff can prove; special costs order granted against defendant and its attorney.

Orders

  • It is declared that the defendant is liable for 100% of any damages which the plaintiff is able to prove.
  • The defendant and Mr. A.P. Ntimbana, the defendant’s attorney, of the firm T.M. Chauke Attorneys, are ordered to pay the costs of this hearing jointly and severally, the one paying the other to be absolved.