Thebe v Road Accident Fund (373/2017) [2021] ZAGPPHC 505 (12 August 2021)

Key Facts

Issues

• The court rejected the applicant's uncontested evidence that he sustained injuries by being pushed off the vehicle, which falls under Section 17(1) of the Road Accident Fund Act.
• The court applied the principles from Khumalo v Multilateral Motor Vehicle Accidents Fund instead of Pillay v Santam Insurance Co. Ltd in determining the injury's relation to driving.
• The court required a causal link between the driver's negligence and the injury, but the law only requires the presence of negligence or another wrongful act by the driver.
• The court failed to determine that the driver contravened Section 61 of the National Road Traffic Act, 93 of 1996, by not securing passengers properly.
• The court erred in not accepting the J88 medico-legal report as uncontested evidence and did not consider it, which is an admissible document under Section 213(2) of the Criminal Procedure Act, placing the rebuttable onus on the respondent.
• The court required a direct or indirect causal link between the driving and the applicant's injuries, but the correct test is whether injuries arose from the driving of a motor vehicle.
• The court incorrectly applied the test for absolution from the instance to the facts of the action in its totality.
• The court misinterpreted the 'but for' test in Section 17(1) of the Road Accident Fund Act, leading to incorrect findings on the applicant's injuries arising from the driving of a motor vehicle.
• The court erred in not finding the driver negligent for loading passengers in the back of an open bakkie, as a reasonable driver should ensure they are seated.
• The court concluded there was no reasonable connection between the harm threatened and the harm done.
• The court did not find the driver negligent for not hearing or feeling the assault on the bakkie and/or for not noticing at some stage that the applicant was no longer a passenger.
• The court did not find the driver failed to comply with Regulation 250(2) and 251(1) regarding passenger safety and vehicle control.
• The court incorrectly inferred from the applicant's evidence to the South African Police Service (SAPS) that he did not sustain injuries as a result of the driving incident.

Holdings

• The court emphasized that the test for leave to appeal requires sufficient evidence to meet minimum legal requirements, rather than relying on whether evidence is contested. The applicant's focus on uncontested evidence was deemed irrelevant to the applicable legal standard.
• The court granted leave to appeal to the Full Court of the Gauteng Division, Pretoria, based on the determination that another court would likely reach a different conclusion regarding the application of the legal test for absolution from the instance and the interpretation of Section 17(1) of the Road Accident Fund Act.

Remedies

• The costs of the application for leave to appeal will be costs in the appeal.
• The applicant is granted leave to appeal to the Full Court of this Division; the costs of the application for leave to appeal will be costs in the appeal.

Legal Principles

• The judgment focused on whether the plaintiff's injuries were caused by or arose from the driving of a motor vehicle, referencing the 'but for' test and distinguishing it from broader causal requirements.
• The court emphasized that the test for applications under the Road Accident Fund Act is whether sufficient evidence meets the minimum requirements for the relief sought, not merely whether evidence is uncontested.

Precedent Name

• Khumalo v Multilateral Motor Vehicle Accidents Fund
• Pillay v Santam Insurance Co. Ltd

Cited Statute

• Superior Courts Act
• Road Accident Fund Act
• National Road Traffic Act
• Criminal Procedure Act

Judge Name

Passage Text

• [11] Based on the principles laid down in the judgment of Pillay v Santam Insurance Co Ltd 1978 (3) SA 43 (D), where a passenger was pushed from a bus, the conductor having forced the person's hand free from the handrail, the injuries suffered by that person were caused by or arose from the driving of the bus, I am of the view that another court would come to a different conclusion. Even though there are still a remarkable difference between the facts in the Pillay judgment, and the facts that served before me, another court would come to a difference conclusion.
• [12] For this reason I am persuaded that leave to appeal should be granted.