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IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

DELETE WHICHEVER 18 NOT APPLICABLE

(1) REPORT ABLE: • , NO.

(2) OF INTEREST TO OTHER JUDGES: WJS / NO.

I (,3) REVISED. V

I PA[.!; ij l '?,' :Z.,, \ ,;> S1$i~

Case Number: 25367 /15

In the matter between:

THANDEKA ZODWA NKOSI Plaintiff

and

ROAO ACCIDENT FUND Defendant

JUDGMENT

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NOWOSENETZ AJ

[ 1] In this action the plaintiff, an adult female claim$ damages arising from a motor

vehicle accident which took place on 1 December 2011. She was a passenger in e

taxi being the Insured vehicle NV 23209 driven by one T Ngeme. The parties have

agreed to separate the hearing of the issue of quantum In terms of Rule 33(4}.

The only issue for determination Is the negligence of the driver.

[ 2) Most of the facts and clrc::um$tonces ore common <:euse: The insured vehicle was

travelling between Vryheid and Mondlo Township, Kwa Zulu Natal. The accident

report which Is not In dlJpute, $t8tes thet the vehicle was travelling ()fl a tar road

which was flat. The vehlcl~ Wtt5 e Toyota mlnl~us taxi. The manner In which the

vehicle was driving was described as "diverging". The cause of the accident Is that

the right rear wheel came off completely from the vehicle. The time of the eccldent

was 1840. The plaintiff landed outside the vehlcie on the roadway before the vehicle

came to a stop. It did not overturn. She was treated for her injuries In hospital after

the accident. She weis unconsclpus when admitteQ.

[ 3] The only witness was the plaintiff. The defend~nt did not call any wltnesoes, She

testified that she set In the taxi on the left olde next to tM sliding de>ar but behind

the front seat,. There were about 15 pas$engers aboard. The taxi was driving feat.

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She estimated about 100 to 120 km/h. She said to the driver that he was driving

too fast but he Just turned up the radio. She felt the vehicle zig zagging. The door

opened and she fell out. That wes all ehe could remember. She closed the door

when she entered the vehicle. The tceldent happened about en hour efter she

entered the taxi and began the journey.

[ 4] In cross examination she was que,tioned why In h,r written •tement she had

stated that the vehicle had overturned. She $Old she did not know what happened to

the vehic:le. She admitted there wa, screaming in the vehicle. She WO$ referred to

the accident report which siated thqt people shouted at a lady not to Jump out. Sh,

was vague about (his but ,aid they were not referring to her. It wes put to her that

she opened the door l!lnd jumped oui.

[5] The main dispute of feet was whether the plaintiff fell out of the moving vehicle or

jumped out. There was no evid-nce of any other people being Injured nor of anyQne

else falling out the vehicle. Not much turns on thi$ as dl$CUSsed below but In my

view the probabilities are that she opened the $lldlng door end jumped out the

moving vehicle. There was o panic In the vehicle. The vehide in fact did not

overturn. Although hearsay, tht> possenge~ lri the ve,hlcfe eCCQrdlng tQ the report

shouted ot ,ome unidentified per,on not to Jump outside the vehlch,. Tho pleintiff

did not deny this. This evidence has a high likelihood of truth. She said ttiey were

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not referring to her but did not deny this version. She was the only passenger sitting

next to the sliding door. There wes no evidence of any other door behind the driver.

There is a high likelihood that they were referring to her. It is improbable that the

sliding door opened on its own and slid sufficiently wide to ellow the plaintiff to fall

out. Ordinary car doors open towards the outside but sliding doors do not. They

have to open to considerable extent before et person can flt through by virtue of the

<;iesign. I do not accept that there was a door metfunction. She successfully closed

the door when she entered the vehicle. The plaintiff was not a reliable witness but

her evidence that the vehicle wos travelling at high speed and was zig zagging ls

~ccepted and she hes linked the conduct of the driver to the injuries she sustained.

[ 6] The test for negligence was set out In Krugt1r v CoetzefJ thus:·

"Once it ls esrabllshed that p ~OnilbleJ man would have foreseen a

possibility of hsrm, ths qv8$tlon arises whether he would have taken

measures to prevent the occurrence of the foreseeable harm. Tht1 answer

depends on the circumstances cf thtl t;ase. There srs, h()wever, four basic

considerations in esch case whk;h influence the reaction of a reasonable

man in a situation PQsing a foreseeable risk of harm to others:

(a) The degree or extent of the risk created by the actor's conduct;

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(b) The gravity of 11111 po!fS/b/e con58Quences If the ri$k of harm

materialises,·

(c) The utility of the actor's conduct: and

( d) The burden of eliminating the risk of harm."

[7] The Issue of negligence particularly of a public taxi driver ha$ been considered by

the courts and some principles heve emerged. All drivers or owners have , legal

duty to maintain a vehicle and en1ure 1hat the vehicle is in roadworthy condition.

Furthermore It hes been suggested that that a somewhat heavier duty lies on th$

owner of a public vehicle. Mactlonald's Transport Uplngton (Pty) Ltd v J

Koegelenberg t/a Koekelenberg Vervoer (6771/03) (2005) ZAWCHC 17 (17

March 2005).

(8)

1671$/2006) Dete of Judgment 8 March 2006 In tt,e We..-n Cape High Cot,ll't

where it was stated:

~ . . ths plaintiff was thrown from a tsxl that wa$ ~velling with its sl/dln1 door

open. The drivBr of that taxi la/led to lllkfl Into account ths 8f8te of

Intoxication of tile plaint/ff and ls/led to ensure that thB door was cl0$ed

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and/ or that the plaintiff was wearing a seatbeh. The sliding door of the taxi

had to remain open as it was jtJmmed stuck In that p()Sitlon. The plaintiff was

fully aware of both these facts. Bozslek J held th(lt an Insured driver should

foresee 'that intoxicated passengers In their condition might well behave in a

Durban City Counc,11970 (1) SA 39 (D) .

[9] In Ngozo v RoBd Accident Fund (21866/2012) [2013] ZAGPJHC 390 (19

. November 2013) it was said:

"It Is clear that the authorities place a duty on both the driver of th" public

vehicle and the psssengsr to takt, steps to protect themselves from suHerlng

harm."

[ 1 o] The complete detachment of the wheel leaves no room for doubt that the vehicle

was in an unroadworthy state. Both the owner and driver failed to ensure the

vehicle was in good running order. The wheel must have already been loose,

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causing the driver to zig zag. The driver continued to drive at high speed in a zig

zag fashion after being asked not to speed. It ls occepted that he passengers were

screaming and there was a general panic. The feet that he only stopped when the

wheel fell off indicates a complete and utter disregard for the safety of his

passengers. He must have been aware the vehicle was unsteady and should have

immediately stopped to check the problem with the vehicle. The driver was wholly

responsible for creating the rfsk by driving an unstable vehicle and not stopping

timeously. He endangered the safety of his passengers. It matters little whether he

should have foreseen that the ptalotlff would jump 01.1t. She did not ,ct In a foolhardy

manner as she panicked. This was a reasonable response to the danger she

perceived. In a dengerous sltuotlon a driver Is still lieble for negligence if a

passenger acts on a foolhardy manner. Thus irrespective whether the plaintiff fell out

or jumped out of the taxi, whether she wa5 foolhardy or not, the driver was negligent

and the defendant Is accordingly liable.

[ 11] It is therefore ordered:

11.1 The defendant is 100 X llabl~ to the plaintiff for whatever damages she may

prove in this action (case no i5637 /2015) arising from the accident on 1

December 2011 ,

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11. 2 The defendant 1$ or<tered to pay the plaintiff's costs to date.

L. NOWOSENETZ

ACTING JUDGE OF THE HIGH COURT

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CASE NO: 25637 / 15

HEARD ON: 5 March 2018

FOR THE PLAINTIFF: MR. S.S. SHONGWE

INSTRUCTED BY: Rontgen & Rontgen Inc.

FOR THE DEFENDANT: MR. T. KGOMOMMU

INSTRUCTED BY: Rambevhe Morobln& Attomeys

DATE OF JUDGMENT: 7 March 2018