Limpopo High Court (Polokwane) Acting Judge Malose Monene has frowned upon a defence raised by the Road Accident Fund (RAF) that a man who fell off the back of a bakkie when the driver struck a pothole at high speed was to blame for his injuries as he did not wear a seat belt.

The Mercury reports Monene also questioned how the fund could blame a passenger for being the cause of an accident.

Oliver Mukansi (41) was a passenger when the speeding vehicle hit a pothole on the Nkowankowa Road in Limpopo. Mukansi fell off the back of the bakkie onto the road. He suffered a right forearm injury as well as left hip soft injury. 

Monene said the RAF offered absolutely no defence to Mukansi's claim, other than to mention the no-seat belt issue.

The fund did not file any expert reports and its counsel failed to show up for trial. The judge said this is despite being properly served with a set down of trial notice.

‘All this despite initially filing a curious plea which spoke of failure to put on a seat belt by a passenger at the back of an open-back bakkie,’ Monene said.

The matter was subsequently served before court in default, with Mukansi asking the court to order that the RAF – in its absence to defend the matter in court – was liable for his injuries.

In questioning the fact that the RAF initially raised the seat belt issue, the judge said: ‘I struggle to fathom why negligence on the part of an insured driver is, in passenger claims, sometimes treated as some brain teaser.’

The Mercury report notes Monene said save for where the passenger somehow took over or hijacked or interfered with the act of a driver by perhaps trying to get control of the steering wheel of a vehicle or perhaps frustrating the driving function in any manner, there is simply no way a passenger can be held liable for a vehicle accident.

The judge said he had reflected on the ‘elitist’ and ‘third world reality-divorced notion’ that perhaps the plaintiff ought to have shared some blame for being at the back of an open bakkie, which is said to not be meant for passengers but for parcels, as a way of placing some blame on him for the injuries he had suffered.

‘But I have found it offensive to my sense of what is just. Given the third world status of our country and the painful reality that is black life in this country, I cannot bring myself to uphold a standard that seeks to suggest that poor people have a liberal choice to make regarding what mode of transport to use.’

In finding that the RAF was indeed fully liable for Mukansi's injuries, the judge said the driver was negligent not only for speeding, but also for failing to keep a proper lookout so as to have avoided the pothole.

‘The plaintiff's version on this score is unassailable, more so because it was not opposed by any evidence by the defendant who was virtually a no-show. The proverbial one percent negligence on the part of the insured driver is, in my view, proven without breaking any sweat at all.’

According to The Mercury, Monene ordered the RAF at this stage pay him a total of R3.1m in compensation – computed from R960 102 for past loss and R2.1m for future loss of earnings.

The issue of how much he should be awarded in general damages was postponed indefinitely.

Full report in The Mercury

Judgment