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# South Africa: South Gauteng High Court, Johannesburg
South Africa: South Gauteng High Court, Johannesburg
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[2024] ZAGPJHC 223
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## Phungwayo v Road Accident Fund (020102-2022)
[2024] ZAGPJHC 223 (27 February 2024)
Phungwayo v Road Accident Fund (020102-2022)
[2024] ZAGPJHC 223 (27 February 2024)
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sino date 27 February 2024
# IN THE HIGH COURT OF
SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE NO
: 020102/2022
DATE
: 27-02-2024
1. REPORTABLE:
NO
2.OF INTEREST TO OTHER
JUDGES: NO.
3.REVISED.
27 February 2024
In
the matter between
PHUNGWAYO
ANNA BUYISILE
Plaintiff
and
ROAD
ACCIDENT FUND
Defendant
JUDGMENT
P.A
VAN NIEKERK, AJ
: In the
plaintiff's particulars of claim it is pleaded that plaintiff and one
Mr Sebuluane ("the deceased") are
the natural parents of a
minor child and that the deceased was in law, obliged to support
plaintiff and the minor child.
It is
further pleaded that the deceased was involved in a motor vehicle
collision on 4 October 2021 at 14:20 at or near R23 Balfour
Road near
Heidelburg which was caused by the negligent driving of the "insured
driver".
It
must be mentioned that the pleadings in this regard are vague and no
specific averments are pleaded in relation to the "insured
driver".
At the
commencement of the trial, plaintiff's legal representative, being
the attorney acting for plaintiff since inception of the
matter,
confirmed that the matter will proceed in all issues being the merits
of the claim and the quantum of the damages.
In the
defendant's plea all averments relating to merits and quantum are
denied, including the averments relating to the
locus
standi
of the plaintiff.
The
practice note filed on 14 February 2024 also confirms that merits of
the claim and the issue of the quantum of damages are to
be
adjudicated. The minutes of a pre-trial conference held between
the respective legal representatives, also confirmed that
all issues
are in dispute.
After
the commencement of the trial, plaintiff's legal representative
called a witness who testified that he is the brother of the
deceased
who travelled in the same motor vehicle of the deceased at the time
of the accident.
Considering
the order that I intend to make, I deem it to be improper to express
any view on the evidence of the aforesaid witness
and I make no
factual finding on his evidence.
After
the single witness referred to supra completed his evidence
plaintiff's legal representative closed the plaintiff's case.
I
questioned plaintiff's legal representative to reconsider this step
and for such purposes adjourned the court. When I returned
to
court, I was again informed that plaintiff's case is closed.
During
argument plaintiff's legal representative conceded that plaintiff
failed to prove her
locus standi
to act on behalf of the minor child, failed to prove the alleged
legal obligation of the deceased to support the plaintiff and
the
minor child, and failed to prove any damages.
It is
patently clear that the plaintiff failed to prove any of the required
elements of delictual liability in order to establish
any liability
of the defendant following the alleged accident and the fact that the
deceased passed away.
Consequently,
this matter is the proverbial textbook example of a matter where
absolution from the instance should be granted
As far
as costs are concerned, the failure to appreciate the necessity to
lead material evidence, the haphazard manner in which
the matter was
brought before Court and the inevitable result of an order for
absolution from the instance, is not the fault of
the plaintiff or
the minor child on whose behalf the action was instituted but is
solely the result of the negligence of the plaintiff's
attorney of
record.
I
requested plaintiff's attorney of record, who was the plaintiff's
legal representatives acting at the trial, to address me on
reasons
why an order for costs
de bonis propriis
should not be granted against him, and
received no proper reason in response.
I
therefore make the following order. Absolution from the
instance is granted, that is the first order. The second order
is plaintiff's attorney of record is ordered to pay the costs of the
matter of the action
de bonis propriis
.
P.A VAN NIEKERK, AJ
JUDGE OF THE HIGH
COURT
DATE
:
……………….
Appearances
For
the
Plaintiff: Mr
C S Mopedi
Instructed
by
C S Mopedi Attorneys
For
the Defendant:
Adv. T Tivana
Instructed
by
State Attorney
Heard:
27 February 2024
Delivered:
27 February 2024
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