Road Accident Fund v Gobingca (778/2002) [2007] ZAECHC 38 (7 June 2007)

ECJ NO : 160

IN

THE HIGH COURT OF SOUTH AFRICA

(BISHO)

PARTIES: ROAD ACCIDENT FUND Appellant

And

SABATA GOBINGCA Respondent

REFERENCE NUMBERS -

Registrar: 778/2002

High Court: Bisho

DATE HEARD: 24/05/2007

DATE DELIVERED: 07/06/2007

JUDGE(S):

SANDI

J

PLASKET

J

BESHE

AJ

LEGAL REPRESENTATIVES -

Appearances:

for the Appellant: Adv. Kincaid

for the Respondent: Adv. Louw

Instructing attorneys:

Appellant: Bate Chubb & Dickson Inc

Respondent: Niehaus Mcmahon & Oosthuizen

SUMMARY: Collision with pedestrian who was walking on the gravel verge facing oncoming traffic. Vehicle approached pedestrian from behind and collided with him on its incorrect side of the road. Held, that driver of motor vehicle entirely to blame for the accident and that pedestrian was not negligent.

IN THE HIGH COURT OF SOUTH AFRICA

BISHO

Appeal Court Case no:

Case no: 778/2002

In the matter between:

ROAD ACCIDENT FUND Appellant

Versus

SABATA GOBINGCA Respondent

______________

JUDGMENT

SANDI J:

[1] The respondent (the plaintiff) instituted an action for damages against the appellant (the Road Accident Fund) for damages in respect of personal injuries sustained by him in a motor vehicle accident which occurred at Mdantsane on 29 December 1997. Dambuza AJ (as she then was) found in favour of the plaintiff. With the leave of that court, this matter is now on appeal before us.

[2] Initially one of the issues raised by the appellant in this appeal was non-compliance by the plaintiff with the provisions of s 17(1)(b) of the Road Accident Fund Act, no 56 of 1996 (the Act), read together with regulation 2(1)(b) and (c) made in terms of s 26 of the Act. Because the Constitutional Court has declared that the provisions of regulation 2(1)(c) of the regulations made in terms of s 26 of the Act to be inconsistent with the Constitution and therefore invalid, the appellant has abandoned the appeal in respect of this issue. See Engelbrecht v The Road Accident Fund and another, CCT 57/06, as yet unreported.

[3] The only issue for decision is that relating to contributory negligence on the part of the plaintiff. At about 19h00 on 29 December 1997 the plaintiff was walking along a gravel verge in a certain street at Mdantsane when a white bakkie, which approached him from behind, collided with him. Both the plaintiff and the said vehicle were proceeding from west to east along the said street. The plaintiff was walking on his correct side of the road, facing oncoming traffic. When the plaintiff saw the vehicle for the first time it was zig-zagging in the street, but soon thereafter it corrected its course and proceeded on its correct side of the road. He ignored it and continued to walk. Not long thereafter, he looked over his shoulder and noticed that the vehicle was already on him. It knocked him down. He lost consciousness and regained it in hospital. The plaintiff’s version was that the vehicle was travelling on a narrow strip of tarmac surface, designed to accommodate one vehicle. To the right of the plaintiff, next to the gravel verge, were trees, shrubs and houses which made it impossible for him to move or run further to the right to avoid the collision. The plaintiff stated that in these circumstances there was nothing he could and should have done to avoid the collision.

[4] At the time of the collision one Asanda Belewa, then about 12 years old, who lived in the street where the accident occurred, was sitting in front of her home. She was facing the street. She saw the plaintiff and the white bakkie. She confirmed that the plaintiff was walking on the gravel verge closest to her home, and that the white bakkie was travelling on the tarmac. Immediately before the collision she saw the white bakkie travelling at high speed. It swerved to its right to avoid hitting potholes. Immediately thereafter the vehicle moved off the tarmac and struck the plaintiff on the gravel verge. She also confirmed that the plaintiff and the white bakkie were proceeding in the same direction along the street. After the collision the vehicle sped off. Later and whilst the plaintiff was still at the scene of the collision the white bakkie was brought back to the scene by members of the community.

[5] The trial Court found that the driver of the White bakkie was the sole cause of the accident. I can find no fault with the trial Judge’s reasoning. In my view, it is correct in the circumstances of this case. The plaintiff was walking on his correct side of the road, off the tarred road where the vehicle had been travelling. His evidence indicates that when he saw the vehicle zig-zag, it was doing so on the tarred road and that it did not encroach onto the gravel verge where he had been walking. After the vehicle corrected its erratic movement and proceeded on a straight course, on its correct side of the road, the plaintiff was entitled to assume that it would continue to do so until it had travelled past him. Once the vehicle corrected its erratic movement, the plaintiff had no obligation to take evasive action. In any event there is nothing on the evidence to show what, in these circumstances, the plaintiff should or ought to have done to avoid the collision. On the plaintiff’s evidence he was walking about a metre from the edge of the road and that he could not have run further to his right hand side because of the obstructions there present.

[6] The two judgments to which appellant’s counsel referred us in support of the argument that there was contributory negligence on plaintiff’s part are distinguishable from the present matter. They are: Gaba v Minister of Police 1975 (2) SA 220(E) and Van Pletzen v Marine and Trade Versekeringsmaatskappy Bpk 1975 (3) SA 997(O). Each of these matters dealt with a situation where the plaintiff, who was a pedestrian, was walking on the incorrect side of the road with his back to traffic approaching him from behind. In the Gaba matter the plaintiff was walking on a busy road which had no side-walk; he did not walk close to the fence, as he could have done, and did not watch for vehicles approaching him from the rear. In the Van Pletzen’s matter the plaintiff did not walk on the pavement. In each of these matters an apportionment of damages was awarded and the plaintiff was found to have been 30% to blame for the accident.

[7] In Matyeba v Santam Versekeringsmaatskappy Bpk 1980 (4) SA 142 (C) the plaintiff’s minor son who had been playing with other children in the street, was standing on the edge of a tarred road when he kicked a ball towards them. He was facing oncoming traffic. Immediately after kicking the ball he was warned that a car was coming. As he looked over his shoulder a vehicle which had been travelling on its incorrect side of the road collided with him. In the course of his judgment the learned Judge said the following:

“It can hardly be expected of a pedestrian that he should foresee that, at the stage when he was on the tarred edge of a tarred road for a few moments with his face towards oncoming traffic, a car on its wrong side will come along from behind his back and collide with him”.

[8] I do not consider the plaintiff to have been negligent by continuing to walk forward after he had seen the motor vehicle travelling straight on its correct side of the road. In my view the trial court was correct in finding that the plaintiff was not negligent. His behaviour played no part in the accident.

[9] In the result, the appeal is dismissed with costs.

_____

B. SANDI

JUDGE

OF THE HIGH COURT

I agree.

PLASKET J

C. PLASKET

BESHE AJ

_________

L.G BESHE

ACTING

JUDGE OF THE HIGH COURT