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Although the presence of an approaching vehicle was disputed on behalf of the appellants, the full court found, rightly in my view, that it had been established that there was indeed an oncoming vehicle shortly beforethe collision occurred, the lights of which ‘made it more difficult for [Sibeni] to see the Puma’. The version of Sibeni that the approaching vehicle did initially dim its headlights was contradicted by the evidence of an independent eyewitness, Mr Chame, who was called on behalf of the respondents and was a passenger on the bus, sitting three rows behind
Sibeni on the right hand side. According to him, the oncoming vehicle did not dim its lights at any stage while approaching, notwithstanding the flashing of his own headlights by Sibeni. When the vehicle was quite close
to the bus, still with its lights on bright, this alarmed Chame to the extent that he stood up in his seat, holding on to the seat in front of him in order to have a better view. The collision occurred moments after the oncoming vehicle had passed the bus"
In discussing the test to be applied in matters such as this, the Full Court of the Cape Provincial Division had regard to the case of
Seemane v AA Mutual Insurance Association Ltd, 1975 (4) SA 767 (A) at 772G at which it was said:
‘However, in circumstances where the driver of the vehicle should have foreseen the
possibility of unlighted obstructions in the road and where he realises that he might be
blinded by the lights of an oncoming vehicle, he might be held to be negligent if he does
not apply his brakes and slow down because –
“(t)he ultimate issue always is whether the facts establish negligence, not whether they
show that the driver in question failed to keep his speed within the range of his vision, though such failure may in a particular case be a crucial factor in deciding whether or not there was negligence"
At numbered paragraph 14 of his Judgment Griesel AJA expounded as follows:
"It has frequently been argued that a driver who collides with an unobserved obstruction at night finds himself on the horns of a dilemma: if he had kept a proper look-out and been travelling at a reasonable speed in the circumstances, he would have been able to pull up before the vehicles collided; since admittedly he could not do so, he was either travelling too fast in the circumstances or failed to keep a proper look-out."
And at numbered paragraph 16 the Learned Acting Judge of Appeal described the conclusion to which he came thus:-
"I accordingly share the view of the full court that this is a case where Sibeni should have slowed down once he dipped his headlights. In my opinion, however, the finding of the full court does not go far enough. Aside from the reasons furnished by the court a quo,there was a further compelling reason why Sibeni should have slowed down, namely the dazzling effect on him of the bright headlights of the approaching vehicle……….His failure in these circumstances to stop or to slow down to the extent necessary is a ‘crucial factor’ in holding that he was negligent.Had he stopped or slowed down sufficiently after dipping his own headlights, the collision would not have happened.
It follows that, in my view, the appellants have discharged the onus of proving, not only that Sibeni was negligent, but that such negligence was indeed a cause of the collision and their resultant injuries"
Now, had this collision occurred on or after 1st August 2008, there would have been no claim which any of the hapless victims could have enjoyed against the Bus Company and the driver, and the claims against the Road Accident Fund would have been limited in the extreme all as a result of the Amendments to the Road Accident Fund Act which came into effect on 1st August 2008 and these amendments are applicable to accidents which occurred on or after that telling date.
These amendments and the extent to which your Claims against the Road Accident Fund are limited and restricted are already set out for the convenience of the reader hereof in an earlier article styled "THE ROAD ACCIDENT FUND ACT" and therefore they will not be repeated here. We have been informed that the Law Society of South Africa are engaged in launching appropriate challenges to this draconian legislation, and papers in support of an Application to the Appropriate Court are at an advanced stage of preparation.
We have not had sight of the papers and, as such, are therefore unable to reveal the exact nature of the challenge. However, the reader is entitled to be aware of the fact that we have some very strong views concerning this legislation and the impact its provisions are going to have for Road Accident victims. We believe the restrictions imposed by the legislation are inappropriate, unhelpful and most draconian in addition to tem lacking in constitutional validity. However until such time as the legislation is declared invalid or ultra vires, these amendments are valid, in force and applicable. We can only express the hope that the legal illuninaries in the persons of our Constitutional Court Judges who will preside and rule on this controversial legislation will have this matter brought before them sooner rather then later, and that in pronouncing thereon, sanity rather then political expediency will prevail.
DATED AT JOHANNESBURG ON THIS 26TH DECEMBER 2008
…………………………………………..
VICKY BOVE AND LESLIE KOBRIN
BOVE ATTORNEYS
Attorneys, Notaries and Conveyancers
Principal: Vittoria Bove BA LLB (Wits); Associate: Leslie Martin Kobrin Dip Juris (Wits) Bus Man (Dam) Notary Public & Conveyancer
South Wing Suite 1110
11th Floor Schreiner Chambers | 94 Pritchard Street | Johannesburg
Phone: (011)-336-9581/2/3 | Facsimile: (011) 336-9571
E Mail: lesk@boveattorneys.co.za
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