Thenjekwayo vs The Road Accident Fund

IN THE HIGH COURT OF SOUTH AFRICA (WITWATERSRAND LOCAL DIVISION)

CASE NO: 0213994

In the matter between:  

THENJEKWAYO, POPO JOHANNES                                                          Plaintiff

and

ROAD ACCIDENT FUND                                                                                Defendant  

JUDGMENT  

PONNAN, J:

[1] The plaintiff in this matter, sues the defendant, in his capacity as father and natural guardian of his minor child Sipho, a boy born on 20 August 1994. This action is a sequel to a collision which occurred at approximately 17h00 on 3 July 2001 at Kgotso Street in Katlehong, when a motor vehicle whose full particulars are not known, then driven by a person unknown to the parties, collided with Sipho, who was a pedestrian at the time.

[2] In consequence of the collision, Sipho sustained severe head injuries. Merits and quantum having been separated in terms of Rule 33(4), for present purposes, only liability falls to be decided.

[3] The locus in quo appears from the photographs and sketch plan depicted on exhibit "A” 1 - 4 and A26 - 27, respectively. Where the collision occurred, Kgotso Street runs from north to south. The southbound carriageway, although initially two lanes, narrows, shortly prior to the point of impact, into a single lane. It is there separated from the northbound carriageway by a painted median in the middle of the road.

[4] Mnandibake Mvelase, presently 12 year's old, who was in the company of young Sipho at the time of the collision, told a clear, simple and compelling story. Mr Strydom who appeared for the defendant conceded, quite properly, that there was nothing contrived about the young man's account and that he was in fact a good witness.

[5] Mnandibake testified that he and Sipho were crossing Kgotso Street from west to east. Their immediate goal was to get from the western pavement to the painted median in the middle of the street. Prior to crossing the street, he observed the approach of three vehicles, an open bakkie on the right lane (namely the lane closest to the middle island) followed by two kombi's travelling abreast of each other. Although he conceded that he did not see the actual collision, he concluded that it was one of the two bakkies, namely a red one, which was travelling on the fast lane behind the open bakkie which collided with Sipho.

[6] Support for his conclusion is to be found in the events as they unfolded immediately after the collision. The driver of the red kombi, a taxi, caused his  passengers to alight.   He then loaded the injured child into his kombi. He invited Mnandibake to join them. The driver then drove a short distance on a road parallel to Kgotso Street to the church depicted on photograph C of exhibit "A". There he left Mnadibake after having informed him that he was taking Sipho to the hospital. News of the collision and the information that Sipho had been taken to the hospital was conveyed by Mnandibake to Sipho's parents.

[7] The plaintiff, after having been informed of the fate which befell his child, visited the Natalspruit Hospital and thereafter various other hospitals in search of Sipho. Not having had any success at the various hospitals, he contacted the local police station as well. The next morning, after having grown progressively more distraught during the course of the night, he visited the Natalspruit Hospital once more at approximately 10h00. There, he finally found his child. According to him Sipho was seriously injured.

[8] How the child only came to be admitted to the Natalspruit Hospital the morning following the collision, is explained by Sifiso Hlubi. Mr Hlubi operates the business of a car wash some 2 kilometers from the scene of the collision. On the morning of 4 July 2001, at approximately 08h30, he saw a young boy lying in the veld at a spot depicted on Exhibit "A" 5 - 6 and in particular photograph M. Believing initially, that the child was dead, Mr Hlubi went to the police to make a report. Upon his return he ascertained that the child was still alive and arrangements were then made for the child to be transported to the hospital.

[9] Mnandibake's conclusion that the red kombi collided with Sipho cannot be faulted. The conduct of that driver was entirely consistent with that of someone who had collided with a pedestrian. The alternative, namely that some other vehicle collided with young Sipho and thereafter the driver of the red kombi stopped to render assistance, is implausible. Such a hypothesis, postulates a good Samaritan in the form of the driver of the red kombi. No do-gooder would thereafter have abandoned an injured child in an open veld during winter.

[10] Although he did not witness the collision, the evidence of Mnandibake established unequivocally that immediately prior to the collision, both he and Sipho were at the points marked by him as X2 and X1, respectively, on photograph C of exhibit "A". Implicit in his version therefore is that both young boys had safely negotiated the southbound carriageway of Kgotso Street and had reached the relative safety of the painted median in the middle of the road when the collision occurred. It does not follow, as was submitted by Mr Strydom, that because he did not see the actual collision, Mnandibake was unaware of the precise whereabouts of young Sipho. Mnandibake's evidence is clear and unambiguous that both of them had reached the median when the collision occurred.

[11] As the collision was allegedly caused by an unknown driver, the defendant understandably could lead no evidence. The evidence of young Mnandibake which stands uncontradicted establishes that Sipho was run over on a painted median in the middle of Kgotso Street. That fact taken together with the conduct of the driver of the red kombi immediately after the collision, justifies the drawing of an inference of negligence on the part of the driver of the red kombi. I am thus satisfied that the plaintiff has established on a preponderance of probability that the collision in question was caused by the negligence of the driver of the red kombi.  

[12] In the result, I order as follows:­

(a)        The defendant is held liable for the damages, if any, that the plaintiff has suffered in consequence of the injuries sustained by the plaintiff's minor child Sipho, arising from a motor vehicle collision, which occurred on 3 July 2001, at Kgotso Street, Katlehong.

(b)        The defendant is ordered to pay the plaintiff's costs occasioned by this hearing.

(c)            The matter is postponed sine die.