Shiboyane v Mutual & Federal Insurance Company Ltd. (421/95) [1997] ZASCA 35 (9 May 1997)

Shiboyane v Mutual & Federal Insurance Company Ltd. (421/95) [1997] ZASCA 35 (9 May 1997)

The Supreme Court of Appeal found that the appellant was negligent in stepping into the road without ensuring it was safe, but the insured driver was also negligent for driving at dusk without the motor-cycle's lights on, thereby failing to make himself visible to the appellant. The trial court's credibility findings were not conclusive, and the appellate court reassessed the evidence on the probabilities. The accident occurred at dusk, and there was insufficient evidence to find the appellant was heavily intoxicated. The insured driver's failure to have lights on materially contributed to the accident. The court held that the appellant was two-thirds at fault and the insured driver...

Citation
[1997] ZASCA 35
Parties
Appellant: Zeem Shiboyane; Respondent: Mutual & Federal Insurance Company Limited
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
9 May 1997
Case Number
421/95
Procedural Posture
Civil Appeal / Appeal From Dismissal of Action in Lower Courts
Outcome
Appeal allowed in part; liability apportioned two-thirds to appellant and one-third to insured driver.
Judges
Mahomed, EM Grosskopf, Nienaber, Olivier, Zulman
Legal Topics
Contributory Negligence, Apportionment of Liability, Motor Vehicle Accident, Pedestrian Fault
Delict Contributory Negligence Apportionment of Liability Motor Vehicle Accident Pedestrian Fault

Case Brief

Summary, issues, holding and outcome

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Parties

Zeem Shiboyane

Appellant

Mutual & Federal Insurance Company Limited

Respondent

Procedural Posture

Civil Appeal / Appeal From Dismissal of Action in Lower Courts

Legal Issues

  1. 1 Whether the appellant's negligence was the sole cause of the accident.
  2. 2 Whether the insured driver was also negligent and to what degree.
  3. 3 Whether the failure to put the insured driver's version to the appellant prejudiced the appellant.

Ratio Decidendi

The Supreme Court of Appeal found that the appellant was negligent in stepping into the road without ensuring it was safe, but the insured driver was also negligent for driving at dusk without the motor-cycle's lights on, thereby failing to make himself visible to the appellant. The trial court's credibility findings were not conclusive, and the appellate court reassessed the evidence on the probabilities. The accident occurred at dusk, and there was insufficient evidence to find the appellant was heavily intoxicated. The insured driver's failure to have lights on materially contributed to the accident. The court held that the appellant was two-thirds at fault and the insured driver...

Court Disposition

Appeal allowed in part; liability apportioned two-thirds to appellant and one-third to insured driver.

Orders

  • Subject to paragraph 2 below, the appeal is allowed with costs.
  • The appellant is deprived of 30 per cent of the costs of preparing the appeal record.