Phungwayo v Road Accident Fund (020102-2022) [2024] ZAGPJHC 223 (27 February 2024)
- Citation
- [2024] ZAGPJHC 223
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- South Gauteng High Court, Johannesburg
- Panel
- P.A Van Niekerk
- Case number
- 020102/2022
More details
- Court
- South Gauteng High Court, Johannesburg
- Panel
- P.A Van Niekerk
- Case number
- 020102/2022
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court found that the plaintiff failed to prove locus standi to act on behalf of the minor child, failed to establish the deceased's legal obligation to support the plaintiff and minor child, and failed to prove any damages. No factual findings were made on the evidence of the single witness called. The plaintiff's legal representative conceded these failures during argument. As none of the required elements of delictual liability were established, the court held that absolution from the instance was warranted. Furthermore, the court found that the failure to lead material evidence and the manner in which the case was presented were due to the negligence of the plaintiff's attorney, not the plaintiff or minor child. Accordingly, costs were ordered de bonis propriis against the plaintiff's attorney.
Court disposition
Absolution from the instance granted; costs ordered de bonis propriis against plaintiff's attorney.
Orders
- Absolution from the instance is granted.
- Plaintiff's attorney of record is ordered to pay the costs of the action de bonis propriis.
02
Material facts
Parties
Phungwayo Anna Buyisile
Plaintiff Counsel: C S MopediRoad Accident Fund
Defendant Counsel: T Tivana03
Procedural history
Posture
Civil Trial / Trial Judgment
04
Questions and positions
Legal issues
- 01
Whether the plaintiff proved locus standi to act on behalf of the minor child.
- 02
Whether the deceased had a legal obligation to support the plaintiff and minor child.
- 03
Whether the plaintiff proved any damages.
- 04
Whether the defendant is liable for the alleged accident and resultant death.
Party arguments
- Applicant
- The plaintiff alleged that she and the deceased were the natural parents of a minor child and that the deceased was legally obliged to support both. She claimed that the deceased died in a motor vehicle accident caused by the negligent driving of the insured driver and sought damages from the defendant. However, the pleadings were vague regarding the insured driver, and no specific averments were made. At trial, the plaintiff called a single witness, the deceased's brother, but closed her case without further evidence.
- Respondent
- The defendant denied all averments relating to both merits and quantum, including the plaintiff's locus standi. During argument, the plaintiff's legal representative conceded that locus standi, the deceased's legal obligation to support, and damages were not proven. The defendant argued that none of the elements of delictual liability were established and sought absolution from the instance.
05
Court’s reasoning
Legal principles
- 01
General principles of South African delict law
A plaintiff must prove locus standi, the existence of a legal obligation, and damages to establish delictual liability.
- 02
Gascoyne v Paul & Hunter 1917 TPD 170
Absolution from the instance is appropriate where the plaintiff fails to establish a prima facie case on the required elements.
06
Ratio, limits and disposition
Ratio decidendi
The court found that the plaintiff failed to prove locus standi to act on behalf of the minor child, failed to establish the deceased's legal obligation to support the plaintiff and minor child, and failed to prove any damages. No factual findings were made on the evidence of the single witness called. The plaintiff's legal representative conceded these failures during argument. As none of the required elements of delictual liability were established, the court held that absolution from the instance was warranted. Furthermore, the court found that the failure to lead material evidence and the manner in which the case was presented were due to the negligence of the plaintiff's attorney, not the plaintiff or minor child. Accordingly, costs were ordered de bonis propriis against the plaintiff's attorney.
Obiter and limits
- The pleadings regarding the insured driver were vague and lacked specific averments.
- The manner in which the case was brought before the court was haphazard and resulted in an inevitable order for absolution from the instance.
- The negligence of the plaintiff's attorney, rather than the plaintiff or minor child, led to the adverse outcome and costs order.
Court disposition
Absolution from the instance granted; costs ordered de bonis propriis against plaintiff's attorney.
- Absolution from the instance is granted.
- Plaintiff's attorney of record is ordered to pay the costs of the action de bonis propriis.
Source and reliance status
South Gauteng High Court, Johannesburg
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
South Gauteng High Court, Johannesburg
Judgment
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
CASE NO: 020102/2022
DATE: 27-02-2024
1. REPORTABLE: NO
2.OF INTEREST TO OTHER JUDGES: NO.
3.REVISED.
27 February 2024
In the matter between
PHUNGWAYO
ANNA BUYISILE
Plaintiff
and
ROAD
ACCIDENT FUND
Defendant
JUDGMENT
P.A VAN NIEKERK, AJ: In the plaintiff's particulars of claim it is pleaded that plaintiff and one Mr Sebuluane ("the deceased") are the natural parents of a minor child and that the deceased was in law, obliged to support plaintiff and the minor child.
It is further pleaded that the deceased was involved in a motor vehicle collision on 4 October 2021 at 14:20 at or near R23 Balfour Road near Heidelburg which was caused by the negligent driving of the "insured driver".
It must be mentioned that the pleadings in this regard are vague and no specific averments are pleaded in relation to the "insured
driver".
At the commencement of the trial, plaintiff's legal representative, being the attorney acting for plaintiff since inception of the matter, confirmed that the matter will proceed in all issues being the merits of the claim and the quantum of the damages.
In the defendant's plea all averments relating to merits and quantum are denied, including the averments relating to the locus standi of the plaintiff.
The practice note filed on 14 February 2024 also confirms that merits of the claim and the issue of the quantum of damages are to be adjudicated. The minutes of a pre-trial conference held between the respective legal representatives, also confirmed that all issues are in dispute.
After the commencement of the trial, plaintiff's legal representative called a witness who testified that he is the brother of the deceased who travelled in the same motor vehicle of the deceased at the time of the accident.
Considering the order that I intend to make, I deem it to be improper to express any view on the evidence of the aforesaid witness and I make no factual finding on his evidence.
After the single witness referred to supra completed his evidence plaintiff's legal representative closed the plaintiff's case. I questioned plaintiff's legal representative to reconsider this step and for such purposes adjourned the court. When I returned to court, I was again informed that plaintiff's case is closed.
During argument plaintiff's legal representative conceded that plaintiff failed to prove her locus standi to act on behalf of the minor child, failed to prove the alleged legal obligation of the deceased to support the plaintiff and the minor child, and failed to prove any damages.
It is patently clear that the plaintiff failed to prove any of the required elements of delictual liability in order to establish any liability of the defendant following the alleged accident and the fact that the deceased passed away.
Consequently, this matter is the proverbial textbook example of a matter where absolution from the instance should be granted
As far as costs are concerned, the failure to appreciate the necessity to lead material evidence, the haphazard manner in which the matter was brought before Court and the inevitable result of an order for absolution from the instance, is not the fault of the plaintiff or the minor child on whose behalf the action was instituted but is solely the result of the negligence of the plaintiff's attorney of record.
I requested plaintiff's attorney of record, who was the plaintiff's legal representatives acting at the trial, to address me on reasons why an order for costs de bonis propriis should not be granted against him, and received no proper reason in response.
I therefore make the following order. Absolution from the instance is granted, that is the first order. The second order
is plaintiff's attorney of record is ordered to pay the costs of the matter of the action de bonis propriis.
P.A VAN NIEKERK, AJ
JUDGE OF THE HIGH
COURT
DATE: ……………….
Appearances
For the Plaintiff: Mr
C S Mopedi
Instructed by
C S Mopedi Attorneys
For the Defendant:
Adv. T Tivana
Instructed by
State Attorney
Heard: 27 February 2024
Delivered: 27 February 2024
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