Tsebela v Padongelukkefonds (A166/08) [2011] ZAFSHC 149 (8 September 2011)

Tsebela v Padongelukkefonds (A166/08) [2011] ZAFSHC 149 (8 September 2011)

The court held that the Apportionment of Damages Act does not apply to a claim by a dependant passenger where the deceased was not negligent. The appellant, as the dependant of the deceased passenger, only needed to prove 1% negligence against any insured driver involved in the accident to succeed for 100% of the damages. Both drivers were found negligent, satisfying this requirement. The limitation in section 18(1)(a)(iii) of the Road Accident Fund Act did not apply because the accident was not caused exclusively by the negligence of the driver of the state vehicle. The costs order in the court a quo was incorrect, as the appellant was fully successful and entitled to a customary costs...

Citation
[2011] ZAFSHC 149
Parties
Appellant: Calvin Lefito Tsebela; Respondent: Padongelukkefonds
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
8 September 2011
Case Number
A166/08
Procedural Posture
Civil Appeal / Appeal From Magistrate's Court on Merits and Costs
Outcome
Appeal upheld. The order of the court a quo is set aside and replaced.
Judges
C Van Zyl, M H Rampai
Legal Topics
Apportionment of Damages Act, Contributory Negligence, Dependant Claims, Road Accident Fund, Costs Order
Delict Civil Procedure Apportionment of Damages Act Contributory Negligence Dependant Claims Road Accident Fund Costs Order

Case Brief

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Parties

Calvin Lefito Tsebela

Appellant

Padongelukkefonds

Respondent

Procedural Posture

Civil Appeal / Appeal From Magistrate's Court on Merits and Costs

Legal Issues

  1. 1 Whether the Apportionment of Damages Act applies to a claim by a dependant passenger where there is no contributory negligence by the deceased.
  2. 2 Whether the appellant is entitled to 100% of the proven or agreed damages from the respondent.
  3. 3 Whether the limitation in section 18(1)(a)(iii) of the Road Accident Fund Act applies to the facts.

Ratio Decidendi

The court held that the Apportionment of Damages Act does not apply to a claim by a dependant passenger where the deceased was not negligent. The appellant, as the dependant of the deceased passenger, only needed to prove 1% negligence against any insured driver involved in the accident to succeed for 100% of the damages. Both drivers were found negligent, satisfying this requirement. The limitation in section 18(1)(a)(iii) of the Road Accident Fund Act did not apply because the accident was not caused exclusively by the negligence of the driver of the state vehicle. The costs order in the court a quo was incorrect, as the appellant was fully successful and entitled to a customary costs...

Court Disposition

Appeal upheld. The order of the court a quo is set aside and replaced.

Orders

  • The respondent is ordered to pay 100% of the appellant's proven or agreed damages.
  • The respondent is ordered to pay the appellant's costs in the court a quo.