SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy	
					REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA 
(MPUMALANGA DIVISION, MBOMBELA) 

(1)	REPORTABLE:NO
(2)	OF INTEREST TO OTHER JUDGES:NO
(3)	REVISED:  YES

				18/05/2021
……………………………….		………………………..
SIGNATURE			DATE

									CASE NO: 3367/2018

In the matter between:

SHERIFF NGOBE									         Plaintiff

and 

ROAD ACCIDENT FUND								    Defendant

					J U D G M E N T 

MASHILE J:

[1]	On 30 April 2016, the Plaintiff sustained personal injuries while driving motor 	vehicle bearing registration letters and number [….]. He was driving on 
	R40, the road between Mbombela and Barberton, into the direction of Barberton 	when an unknown motor vehicle (“insured vehicle”) driven by an unknown driver, 	travelling into the opposite direction, suddenly turned onto the lane of oncoming 	traffic forcing the Plaintiff to swerve to the right to avoid a head-on collision. While 	in the process of doing so, his vehicle collided with a barrier on the right-hand side, 	lost control and overturned causing him injuries for which he is now pursuing 	compensation.

[2]	Believing that the collision was due to the negligent driving of the insured driver 	and that in terms of the Road Accident Fund Act 56 of 1996, the Defendant would 	be exposed to liability to compensate him, he instituted these proceedings seeking 	relief as per his particulars of claim. The action is not opposed by the Defendant. 	That said, the Plaintiff still had to allege and prove his claim notwithstanding that 	the claim was not opposed. Prior to the commencement of proceedings, Counsel 	for the Plaintiff applied to Court to have merits and quantum separated as 	contemplated in Uniform Rule of Court 33(4). The Court considered the matter. 	Noting that it would be convenient and cost effective to treat the two issues 	discretely, the Court granted the application.

[3]	The Plaintiff was the only witness who testified in support of his own case. He 	stated that he had driven pass Hilltop and was descending towards Barberton. He 	noticed a vehicle whose registration letters and number he could not record driven 	by an unknown person, suddenly move onto his path of travel. To avoid a head-on 	collision with the insured vehicle, he applied brakes and swerved to his right-hand 	side where his vehicle collided with a barrier, lost control and overturned.  

[4]	He told the Court that he did not know why the driver of the insured vehicle decided 	to swerve to the lane of oncoming traffic especially in circumstances where there 	was no vehicle that he was overtaking. He conceded that it was possibly as a result 	of shock of seeing a vehicle suddenly entering his path of travel that he swerved 	to the far right-hand side where his vehicle hit the barrier. He said that had it not 	been for that sudden jolt, he would not have swerved that far but could have 	swerved just enough to avoid a head-on collision especially because there was no 	oncoming vehicle on the opposite lane.

[5]	He added that he could not have directed his vehicle to his left-hand side because 	there was an embankment. As such swerving into that direction would have been 	more dangerous. Insofar as he was concerned, he could not have taken any other 	measures than those on which he embarked to avoid the collision. Following the 	collision, he observed the presence of police officers at the scene of the collision. 	Probably appreciating that he was badly injured, the police officers did not say 	anything to him at the time. On his release from hospital though, they visited him 	at home to obtain a statement. His testimony was not challenged as the Defendant 	was not opposing and the Court had no other version. The Plaintiff then closed his 	case.

[6]	The issues to be decided are firstly, whether or not the unknown driver of the 	unidentified motor vehicle was negligent. Secondly and if so, were there any steps 	that the Plaintiff could have taken to avoid the collision happening? To resolve 	these two issues I now turn to the legal guiding principles below. 

[7]	Counsel for the Plaintiff has referred this Court to what she believes is pertinent 	authority on the subject. In the case of Sedumemanyatela v Road Accident Fund 	(65678/2012) (2014) ZAGPPHC 445 (30 MAY 2014), it was stated that even when 	an approaching vehicle is on its incorrect side of the road, a driver on his correct 	side may assume that the former will return timeously to its correct side. But this 	assumption does not entitle a driver on the correct side of the road to remain 	passive in the face of threatening danger. As soon as the danger of the collision 	becomes evident he is under a duty to take reasonable steps to avert one.

[8]	Every driver has a duty to be alert and keep a proper lookout on the road at all 	times in order to avoid collisions happening. Thus, in Road Accident Fund v 	Grobler (96/06) ZASCA 78; (2007] SCA 78 (RSA); 2007 (6) SA 230 (SCA) (31 	May 2007), it was held that in a sudden emergency situation, the proper approach 	is not to confine the inquiry into the negligence to the conduct of the driver from 	the moment they became embroiled in an emergency. The inquiry must extend to 	cover what steps a driver took to avoid the impending emergency. If a driver had 	an opportunity to take measures ahead of the emergency to avoid the accident, 	and he failed to do what a reasonable person in similar circumstances would have 	done, then he /or she would have been negligent.

[9]	Finally, in Ntsala and others v Mutual and Federal Insurance Co Ltd the Court held 	that: Where a driver of a vehicle suddenly finds himself in a situation of imminent 	danger, not of his own doing, and reacts thereto and possibly takes the wrong 	option, it cannot be said that he is negligent unless it can be shown that no 	reasonable man would so have acted. It must be remembered that with a sudden 	confrontation of danger a driver only has a split-second or a second to consider 	the pros and cons before he acts and surely cannot be blamed for exercising the 	option which resulted in a collision.

[10]	An analysis of the factual background, the issues involved and a consideration of 	the applicable law should not detain this Court for long. It must always be borne in 	mind that the evidence of the Plaintiff was not contested. As such, the Court has 	no different version from his. Ordinarily, it is expected that drivers would keep to 	their lanes when driving. Without any cause, it would appear, the driver of the 	unidentified motor vehicle went onto the lane of oncoming traffic. The only time a 	driver is allowed to do so, is when overtaking. That is, however, conditional upon 	it being safe to execute such a maneuver. 

[11]	From the facts, it is clear that the driver of the insured vehicle was not overtaking 	another but he was still driving on the wrong side of the road. That leaves this 	Court baffled. Even if he was passing another vehicle, it would not have been the 	safest place to carry out such an exercise especially when another vehicle was 	approaching from the opposite end. In my opinion, the driver of the unknown motor 	vehicle was negligent by swerving over to the lane of travel of oncoming motor 	vehicles.

[12]	Turning then to the question whether or not the Plaintiff could have avoided the 	collision. In the manner circumstances unfolded shortly before the collision, the 	Plaintiff was faced with a situation where he had to make sudden decisions and all 	in a split of a second. Ordinarily, a driver does not anticipate another to drive on 	the lane of oncoming traffic especially when there is another vehicle approaching 	from the opposite direction. The Plaintiff’s shock when seeing the insured vehicle 	in his lane is therefore perfectly understandable.

[13]	Since the action of the driver of the insured vehicle happened so swiftly, it would 	have been suicidal for the Plaintiff to assume that the driver of the insured vehicle 	would swerve back to his lane. He had to take measures to avoid the collision then 	and there. In the circumstances and placing him in the position of a reasonable 	driver, I conclude that the situation was such that he had to swerve to the right-	hand side of the road to avoid a head-on collision. This is no different to the 	situation describe in the Sedumemanyathela case supra. 

[14]	Similarly, when considering the question whether or not the Plaintiff could have 	swerved just enough not to hit the barrier on the right-hand side of the road, one 	must do so as a reasonable man placed in the position of the Plaintiff who found 	himself confronted with that situation of sudden emergency. The shock that he 	experienced might have exacerbated his reaction. The question is, can he be 	blamed for such an act? In my opinion no. This should be in line with what the 	Court held in Ntsala supra. He could not have swerved to the left-hand side 	because there was an embankment and driving ahead would have meant a head-	on collision with the insured driver. As such, the only way out for him was swerving 	to the right-hand side.  

[15]	In the circumstances, I am satisfied that the Plaintiff has on a balance of 	probabilities established that the driver of the unidentified motor vehicle was 	negligent by driving on the lane of oncoming traffic. The Plaintiff could not have 	taken any other steps than those he took to avoid a head-on collision. The 	Defendant is held liable for 100% of the collision happening. I make an order in the 	following terms:

1.	The Defendant is liable for 100% of damages that the Plaintiff may prove; 	and
 
2.	The Defendant is directed to pay the costs of the Plaintiff.

	______________________________
B A MASHILE
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
MPUMALANGA DIVISION, MBOMBELA

This judgment was handed down electronically by circulation to the parties and/or parties’ representatives by email. The date and time for hand-down is deemed to be 18 May 2021 at 10:00.

APPEARANCES:
						
Counsel for the Plaintiff:				Ms L Ramarumo		
Instructed by:					Thobela Attorneys

Counsel for the Defendant:			No appearance		 		
Instructed by:				
		
Date of Hearing:					26 April 2021			
Date of Judgment:					18 May 2021