Masango v Road Accident Fund (1791/21) [2024] ZAMPMHC 25 (25 April 2024)

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN THE HIGH COURT OF SOUTH AFRICA

MPUMALANGA DIVISION, MIDDELBURG (LOCAL SEAT)

Case No: 1791/21

In the matter between:

Masango Nelson Plaintiff

And

Road Accident Fund

Defendant

Delivered: This judgment was handed down electronically by circulation to the parties’ legal representatives by email. The date and time for hand-down is deemed to be 10:00 on 25 April 2024.

Phahlamohlaka AJ

1. The plaintiff instituted action against the defendant in terms of section 17 of the Road Accident Fund Act,56 of 1996 (the “Act”) for damages suffered as result of a motor vehicle accident that occurred on 29 November 2019.

2. The action is defended and therefore the plaintiff has to prove that the insured driver negligently caused the accident. At the commencement of the trial the parties brought an application that the issue of liability be separated from that of quantum in terms of Rule 33(4) of the Uniform Rules of Court, and the application was accordingly granted.

3. The plaintiff testified under oath, and he called one witness to testify on his behalf. According to the plaintiff, Nelson Masango, on 29 November 2019 and at N12 road Witbank, he was driving a motor vehicle to wit a white Nissan Hardbody Bakkie with registration letters and numbers X[....] 8[...] G[...]. He was driving on the fast lane when a Mercedes Sprinter pulling a trailer suddenly overtook a bus on the slow lane. The plaintiff tried to avoid a collision by swerving to the right thereby losing control of his motor vehicle.

4. The plaintiff’s witness, Hendrik Fernando Jose, testified that on 19 November 2019 he was a passenger inside the plaintiff’s motor vehicle, a Nissan Hardbody, when the collision occurred. They were driving along N12 Road in Witbank, Mpumalanga. He was seated at the back behind the driver, Nelson Masango. He testified that Masango tried to overtake a bus that was driving in the same direction when a Sprinter 21-Seater pulling a trailer approached from behind and wanted to squeeze between the plaintiff’s vehicle and the bus thereby pressing the plaintiff’s vehicle. The plaintiff tried to avoid colliding with the Sprinter and thereafter he does not know what happened. and did not properly see what occurred but he had a bang.

5. The defendant called no witnesses but relies on cross examination to test the evidence of the two witnesses. The defendant’s counsel argued that the plaintiff's claim ought to be dismissed in view of the contradictions between the plaintiff and his witness.

6. The onus is on the plaintiff to prove on the balance of probabilities that the insured driver negligently caused the accident which resulted in the plaintiff suffering damages. In his submissions I did not understand the defendant’s counsel to argue that I must find the two witnesses not to be credible witnesses. Counsel for the defendant, however, argued that the matter must be decided on the principle of res ipsa loquitur. In my view, the evidence presented by the plaintiff and his witness proves that the insured driver was negligent. Even the res ipsa loquitur principle would favour the plaintiff’s case in the circumstances of this case, because for the res ipsa luquitur maxim to apply the only known facts relating to the negligence must be the occurrence of the collision, which presupposes that sufficient detail is known of the collision to warrant the inference.

7. The maxim, res ipsa liquitur, takes a form of circumstantial evidence, especially in the circumstances where negligence is not easily determinable. The only evidence before this court was presented by the plaintiff and his witness. The defendant presented no evidence but raised a defence that the plaintiff could no explain how the accident occurred. In my view, counsel for the defendant lacks proper understanding of the maxim because the evidence of the plaintiff on how the accident occurred is uncontested.

8. I cannot find any contradictions between the plaintiff’s evidence and that of Jose. Even if there might be contradictions, they are not so material as to affect the credibility of the witnesses. Consequently, in the absence of any evidence to the contrary, I am satisfied that the plaintiff's evidence remains unchallenged. In the circumstances the plaintiffs claim must succeed.

9. In the result I make the following order:

(a) The defendant is ordered to pay 100% of the plaintiff proved or agreed damages arising from a motor vehicle accident that occurred on 29 November 2019.

(b) The defendant is ordered to pay costs of suit.

K F Phahlamohlaka

Acting Judge of the High Court,

Mpumalanga Division, Mbombela (Main Seat)

For the Plaintiff: Adv Mthombeni Instructed by: MH Malepe Attorneys Email: mhmalepeattorneys@telkomsa.net For the Defendant: NB Mhlanga Instructed by: State Attorney Email: nkosingiphilem@raf.co.za Judgment reserved on: 9 February 2024