Mkhize v Mathapersad and Another (12275/2007) [2009] ZAKZPHC 15 (21 April 2009)

Mkhize v Mathapersad and Another (12275/2007) [2009] ZAKZPHC 15 (21 April 2009)

The court found that the evidence of the defendant's witness, Ms. Smith, was credible and consistent with the probabilities of the case. The plaintiff's driver was found to have been travelling at an excessive speed and to have switched lanes immediately prior to the collision, after the defendant had already entered Longmarket Street lawfully. The defendant was under no duty to stop or slow down as there was no traffic in the right lane at the time of entry. The plaintiff failed to establish negligence on the part of the defendant. The action was dismissed with costs, including costs relating to the Rule 13 Notice.

Citation
[2009] ZAKZPHC 15
Parties
Plaintiff: Norman Ndodeni Mkhize; Defendant: Vishaal Mathapersad; Third Party: S Mkhize
Court
Kwazulu-Natal High Court, Pietermaritzburg
Jurisdiction
South Africa
Judgment Date
21 April 2009
Case Number
12275/2007
Procedural Posture
Civil Trial / Liability Separated From Quantum; Trial on Liability Only
Outcome
Plaintiff's action dismissed with costs, including costs relating to the Rule 13 Notice.
Judges
Msimang
Legal Topics
Motor Vehicle Collision, Negligence, Joint Wrongdoers, Rule 13 Notice, Burden of Proof
Delict Civil Procedure Motor Vehicle Collision Negligence Joint Wrongdoers Rule 13 Notice Burden of Proof

Case Brief

Summary, issues, holding and outcome

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Parties

Norman Ndodeni Mkhize

Plaintiff

Vishaal Mathapersad

Defendant

S Mkhize

Third Party

Procedural Posture

Civil Trial / Liability Separated From Quantum; Trial on Liability Only

Legal Issues

  1. 1 Whether the defendant was negligent in causing the motor vehicle collision.
  2. 2 Whether the plaintiff's driver was negligent and solely responsible for the collision.
  3. 3 Whether the defendant and the plaintiff's driver were joint wrongdoers under Section 2(8)(a)(ii) of Act 34 of 1956.

Ratio Decidendi

The court found that the evidence of the defendant's witness, Ms. Smith, was credible and consistent with the probabilities of the case. The plaintiff's driver was found to have been travelling at an excessive speed and to have switched lanes immediately prior to the collision, after the defendant had already entered Longmarket Street lawfully. The defendant was under no duty to stop or slow down as there was no traffic in the right lane at the time of entry. The plaintiff failed to establish negligence on the part of the defendant. The action was dismissed with costs, including costs relating to the Rule 13 Notice.

Court Disposition

Plaintiff's action dismissed with costs, including costs relating to the Rule 13 Notice.

Orders

  • Plaintiff's claim is dismissed with costs.
  • Plaintiff to bear the costs relating to the Rule 13 Notice.