THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case No: 20024/2014

In the matter between:

WIHAN POSTHUMUS NO

FIRST APPELLANT
ANGELO ADELINO DA SILVA
MOREIRA NO

SECOND APPELLANT

and

THE ROAD ACCIDENT FUND

RESPONDENT

Neutral citation: Posthumus v The Road Accident Fund (20024/2014) [2015]
ZASCA 40 (25 March 2015)

Coram:
Mhlantla, Leach, Saldulker and Mbha JJA and Gorven AJA

Heard:
10 March 2015

Delivered: 25 March 2015

Summary: Delict – negligence of a motorist parked alongside a roadway
leaving headlights shining at oncoming traffic – reasonably foreseeable that
oncoming motorist might be dazzled and lose control of vehicle – driver of
parked vehicle negligent.

_______________________________________________________________

ORDER
________________________________________________________________

On appeal from: Gauteng Division, Pretoria (Preller and Makgoka JJ and
Sethusha AJ sitting as court of appeal):
1 The respondent‟s application for a postponement of the appeal is dismissed
with costs.
2 The appeal succeeds with costs, and the order of the full court is set aside and
substituted with the following:
„(a) The appeal succeeds with costs.
(b) Paragraph 1 of the trial court‟s order of 25 October 2010 is amended by the
deletion of the words “limited in terms of section 18(1)(b) of the Act”.‟
________________________________________________________________
JUDGMENT
________________________________________________________________

Leach JA (Mhlantla, Saldulker and Mbha JJA and Gorven AJA concurring)

[1] During the early hours of 20 May 2003 Mrs Petronella Posthumus and
her husband Mr Pierre Posthumus were passengers in a Mercedes Benz Sprinter
minibus being driven by Mr Andries Maritz along the N14 national road near
Sannieshof when it left the road and capsized. In the course of this accident
both Mr and Mrs Posthumus sustained bodily injuries and, some four years
later, they instituted action for damages against the respondent under the
provisions of the Road Accident Fund Act 56 of 1996 (the Act) alleging, inter

alia, that the accident had been caused at least in part by the negligence of the
driver of another motor vehicle, a „bakkie‟(a colloquialism I intend to use for
convenience) that had been parked alongside the roadway with its headlights
shining into the roadway that had blinded Maritz and led to him losing control
of the minibus and driving off the road.  It is this assertion that falls to be
determined in this appeal.

[2]    It was common cause at the trial, having been admitted both in the
respondent‟s plea and recorded in the pre-trial minute under Uniform rule 37,
that Mr Maritz had been negligent in regard to the accident. However the
importance of the issue whether Mr Maritz lost control at least partly due to his
being blinded by the lights of a stationary bakkie is that, should that have been
the case and the driver of the bakkie have been causally negligent in regard to
the accident, the liability of the respondent would not be limited by the
provisions of s 18(1)(b) of the Act as it would be if Maritz had been solely to
blame.

[3] The litigation proceeded at the speed of a snail. Despite the defendant‟s
plea having been filed in October 2007, it took a further two years before the
matter came to trial in the Gauteng Division, Pretoria. At that stage the issues
relating to the merits of the claim were separated from those relating to the
quantum of damages under Uniform rule 33(4), and the trial proceeded solely in
order to determine negligence and liability. The evidence led on behalf of Mr
and Mrs Posthumus was fairly terse and uncomplicated, and the respondent
closed its case without calling any witnesses. Although all that was required
was a straight forward factual decision, it unfortunately took a year before
judgment was delivered in October 2010. Ultimately the court found that there
had in fact not been a bakkie on the scene and that Mr Maritz had therefore

been solely responsible for the accident. It therefore ordered that the respondent
was liable only to the limited extent prescribed by s 18(1)(b) of the Act.

[4] Dissatisfied with this outcome, Mr and Mrs Posthumus sought leave to
appeal against the order. For reasons not apparent from the record, it took
almost a year for their application to be dealt with. Eventually, on 5 August
2011, they were granted leave to appeal to a full court of the Gauteng Division,
Pretoria. But then, having obtained such leave, it took more than two years for
the appeal itself to be finalised, the appeal having been heard on 17 April 2013
and judgment having been delivered seven months later.

[5] The full court was unanimous that the trial judge had erred in concluding
that the bakkie was not on the scene at the time of the accident. However they
were divided as to the outcome of the appeal. Preller J, in a minority judgment,
found that the driver of the bakkie had been negligent in leaving the lights of
the vehicle shining brightly into the road, that Maritz had been blinded thereby
and that this had contributed to the accident taking place. On the other hand, in
a majority judgment Makgoka J and Sethusha AJ, in dismissing the appeal held
that a causal link between the bakkie‟s lights shining into the road and the
accident had not been established. They concluded that „save for the
misdirection concerning the finding on the presence of the bakkie we find no
misdirection in the manner the trial court approached the facts‟ and that they
were therefore not at liberty to interfere with its factual findings. Thus although
Preller J would have allowed the appeal, the majority dismissed it.

[6]   The simple answer to the reasoning of the majority of the full court is, of
course, that the trial court‟s finding that there had not been a bakkie on the
scene was the very cornerstone of its finding that Maritz had not been blinded
and had been solely to blame for the accident.  Once that fundamental finding

had been proved wrong, the full court on appeal was free to reach its own
conclusions on the evidence on record. It is thus not surprising that this court
granted special leave to appeal.

[7]   And so some 12 years after the accident which gave rise to the claim, the
matter came before this court. Tragically it comes at a time when it is too late
for the outcome to have any meaning for either Mr or Mrs Posthumus, he
having committed suicide before the judgment of the trial judge was delivered
and she having died subsequently. The two appellants are the administrators of
their respective estates.

[8] Turning to the facts of the matter, Mr and Mrs Posthumus were travelling
together with Mr Maritz and his wife in the minibus from Kathu to
Johannesburg when the accident happened. On the outskirts of Sannieshof the
road curved almost 90 degrees to their right. Mr Maritz testified that on
approaching this curve he saw the bright lights of a motor vehicle parked on the
inside of the curve off the roadway facing towards him. These lights dazzled
him as he negotiated the curve and, as he could not see properly, he allowed the
minibus to stray onto the gravel verge where it struck a curb. He then lost
control over the vehicle and it overturned.

[9] His description of how the accident occurred was materially supported by
his wife, Mrs Louisa Maritz, who testified that she had been sitting in the front
of the minibus alongside her husband.  As they approached the curve, she was
turned in her seat talking to Mr Posthumus who was seated behind her.
Suddenly he exclaimed about the bright lights of a vehicle. Glancing ahead, she
was dazzled by the lights of a vehicle shining onto her face. She only had time
to remark that the other vehicle should dim its lights when the minibus left the

road. She sustained a severe head injury in the accident that followed and only
recovered consciousness in hospital the following day.

[10] The respondent had no direct evidence to contradict that of Mr and Mrs
Maritz. Its case largely relied on its counsel‟s aggressive and protracted cross-
examination of Mr Maritz, cross-examination which in the minority judgment
of the full court was correctly described as having been „at times irrelevant and
unfair‟. Moreover, although counsel representing the respondent at the trial
accepted that there had in fact been another vehicle with headlights on the
scene, she subsequently appeared to change her stance by placing on record that
she did not concede that to have been the case. However the police
documentation points inexorably towards there having been such a vehicle, and
this was confirmed by a sworn affidavit made by Mr KPW Kgantsi to a police
reservist, constable Tshiping, on 2 July 2003.

[11] Mr Kgantsi stated under oath in his affidavit that while driving his bakkie
from Sannieshof to Delareyville on the night in question, he had stopped
alongside the road in order to relieve himself and that, „unfortunately I left my
vehicle‟s lights on bright and neglected to dim them‟.1 He went on to state that
he had seen a Mercedes Benz Sprinter minibus approaching from the direction
of Delareyville which left the road in a curve, and that he had gone to render
assistance and given his particulars to those in the minibus. That this was the
accident in which Mr and Mrs Posthumus were injured is self-evident, as was
borne out by the evidence of Mr Maritz that the driver of the other vehicle had
come to their aid after the accident.

1 This is my translation from the Afrikaans ‘ongelukkig het ek my voertuig se ligte op helder gelaat en
nagelaat om die ligte te domp’.

[12] It is common cause that Mr Kgantsi had died on 14 July 2004.2 Despite
this, counsel for the respondent fought tooth and nail to avoid his affidavit
being introduced into evidence under s 3(1)(c) of the Law of Evidence
Amendment Act 45 of 1988. She was successful in that the trial court refused to
accept it.  However the full court, quite correctly bearing in mind that the
affidavit had been taken during the course of a routine investigation from a
person who had since died, unanimously found that it ought to have been
admitted in the interests of justice.

[13] The affidavit of Mr Kgantsi provides substantial corroboration for the
version advanced by Mr and Mrs Maritz. It is therefore clear from all the
admissible evidence that Mr Kgantsi‟s bakkie was parked alongside the road on
the inside of the curve and that its headlights were on bright and shining into the
road. The trial court erred and misdirected itself in reaching the contrary
conclusion.

[14]   There is also no reason not to accept the evidence of Mr Maritz that the
bakkie‟s bright headlights blinded him momentarily thereby interfering with his
vision and causing him to drive onto the gravel verge which, in turn, led to the
minibus capsizing. It was argued by the respondent that Mr Maritz would not
have been blinded by the headlights, even if bright, as the bakkie would not
have been facing directly towards him had he been looking at the roadway
directly ahead. However, not only are the respective angles of approach
between the two vehicles a matter of speculation, but such an argument is based
on a theoretical reconstruction of the event, an exercise always fraught with
uncertainty that generally carries less weight than the direct and credible

2 A copy of his death certificate was available.

evidence of eyewitnesses.3 Mrs Maritz corroborated her husband on the
dazzling effects of the bakkie‟s headlights and his statement that he was blinded
was, in my view, satisfactorily shown to probably have been the case. Indeed it
is the most obvious cause of what occurred.

[15]   The issue then to be considered is whether Kgantsi was negligent in
allowing the bright lights of his vehicle to shine into the roadway as he did. It is
now well settled that negligence will be established if (a) a reasonable person in
the position of the defendant would foresee the reasonable possibility of his or
her conduct injuring another‟s person or property and would take reasonable
steps to guard against that occurring, and (b) the defendant failed to take such
steps. Whether a reasonable person would take steps to guard against harm and
what steps would be reasonable must of course be determined in the light of the
particular circumstances of each case.4

[16]   It is a matter of common experience for motorists driving at night to be
faced with bright headlights of oncoming traffic that dazzle them. Some 67
years ago the learned authors MacIntosh and Scoble expressed the opinion that
it would probably be negligent for a motorist to fail to dim his or her lights
when approaching an oncoming vehicle, but observed that there appeared to be
no authoritative decision on the issue.5 The law reports of this country in the
intervening years are replete with decisions on whether a motorist had driven
negligently after having been blinded by bright oncoming headlights6 but the
issue of whether motorists who blind others by not dimming their headlights are

3 Compare Motor Vehicle Assurance Fund v Kenny 1984 (4) SA 432E at 436G-437B cited with approval by this
court in Roux v Hattingh 2012 (6) SA 428 (SCA) para 20 and Biddlecombe v Road Accident Fund [2011]
ZASCA 225 para 10.
4 See eg Hawekwa Youth Camp and another v Byrne 2010 (6) SA 83 (SCA) para 23.
5 MacIntosh & Scoble Negligence in Delict 3ed at 244.
6 See eg Flanders (Pty) Ltd v Trans Zambezi Express (Pty) Ltd 2009 (4) SA 192 (SCA), Rodrigues v SA Mutual
& General Insurance Co Ltd 1981 (2) SA 274 (A) and Seemane v AA Mutual Insurance Association Ltd 1975
(4) SA 767 (A).

negligent does not appear to have arisen for decision (counsel were unable to
refer us to any such reported case nor did our own research bear fruit in this
regard). As was suggested by counsel for the appellant, this may well be due to
the fact that motorists who blind other motorists normally do not stop at the
scene of an accident to which they have contributed or because the former
provisions of the regulations promulgated under s 26 of the Act provided for the
respondent‟s liability only in the event of an unidentified motor vehicle coming
into physical contact with any other person, vehicle or object.

[17]   Be that as it may, the answer to the question whether Mr Kgantsi acted
negligently in the circumstances of this case must be answered in the
affirmative. The dazzling effect of the bright headlights of oncoming traffic
impeding a motorist‟s view of the roadway ahead is all too common an
experience, as already mentioned. Accordingly it is self-evident that a
reasonable person in Mr Kgantsi‟s position who parks a motor vehicle with its
headlights shining brightly into a roadway at night would foresee the reasonable
possibility of an approaching motorist being blinded thereby and driving off the
road. Indeed the danger of this occurring in the present case was exacerbated by
the bakkie being on the inside of a relatively sharp curve rather than alongside a
straight stretch of roadway.

[18]   Obvious reasonable steps to take to guard against this occurring were to
dim the headlights or, indeed, to turn them off, leaving the bakkie‟s parking or
hazard lights to warn of its presence. Mr Kgantsi failed to take either of these
steps, and his failure to do so fell short of what is required of a reasonable
person in his position. The inevitable finding is that he was causally negligent
in regard to the accident and the contrary conclusion reached by both the trial
court and the majority of the full court cannot stand.

[19] Section 17(1) of the Act provides that the respondent shall be liable to
compensate persons who have suffered damages as a result of bodily injuries
„caused by or arising from the driving of a motor vehicle‟. Section 20(2) of the
Act goes on to provide that a person „who has placed or left a motor vehicle at
any place shall be deemed to be driving that motor vehicle‟ whilst it is
stationary. The turning on of headlights of a motor vehicle, and the failure to
dim or turn them off, is causally connected to a motorist‟s use of a motor
vehicle, and must be regarded as „arising from the driving‟ of that vehicle.
Indeed, the respondent appears at all times to have accepted that to be the case.
Consequently, as a result of Mr Kgantsi‟s negligence, the respondent was liable
to whatever damages Mr and Mrs Posthumus had suffered from their bodily
injuries arising out of the accident. The appeal must succeed as their claims
were therefore not limited by the provisions of s 18(1)(b) of the Act, and the
trial court‟s order that they be so limited cannot stand.

[20] One further matter must be mentioned. The appeal in this court was heard
on Tuesday 10 March 2015. On the immediately preceding Friday the
respondents filed an application for a postponement of the appeal, supported by
an affidavit from an attorney who alleged that she had been appointed to a panel
that represented the respondent and that, on 5 March 2015, she had received
instructions to act for the respondent in the place of the attorney that had until
then been the attorney of record.   She therefore sought a postponement to
enable the respondent‟s fresh legal representatives „to acquaint themselves with
the matter‟.

[21] On the day of the appeal when the matter was called at 9h45, counsel
who appeared for the respondent was informed that the terse affidavit did not
provide a satisfactory explanation for the respondent not being in the position to
argue the appeal (I should mention that counsel involved had neither

represented the respondent at any previous stage and was not the author of the
heads of argument which had been filed in this court). We therefore allowed the
matter to stand down until 11h15 for a supplementary affidavit to be prepared.
That deadline passed but, at 11h25 we were approached by counsel in chambers
and asked for an extension until noon. When that deadline also passed without
the respondent‟s legal representatives being present, we requested the
appellant‟s legal representatives to telephone respondent‟s new attorney of
record to ascertain what was happening. This proved unsuccessful as we were
informed from the Bar that the call had not been answered. As there had still
been no appearance by 12h20, the application for a postponement was
dismissed with costs and the appeal then commenced. At 12h35, while counsel
for the appellant was still addressing the court, the respondent‟s counsel
appeared and, after the end of the appellant‟s address, was informed that the
postponement application had been refused. This notwithstanding, he not only
accepted with alacrity the invitation to argue the appeal but proceeded to do so
with vigour, and addressed us fully on the material issues. In these
circumstances why a postponement had been requested in the first place is
something of a mystery.

[22] Be that as it may, for purposes of completeness the order set out below
will include the order made in respect of the respondent‟s application for a
postponement.

[23] It is ordered:
1 The respondent‟s application for a postponement of the appeal is dismissed
with costs.
2 The appeal succeeds with costs, and the order of the full court is set aside and
substituted with the following:
„(a) The appeal succeeds with costs.

(b) Paragraph 1 of the trial court‟s order of 25 October 2010 is amended by the
deletion of the words “limited in terms of section 18(1)(b) of the Act”.‟

__________________________
L E Leach
Judge of Appeal

Appearances:

For the Appellant:

C J Nel

Instructed by:

Louw & Da Silva Inc Attorneys

c/o Van der Merwe & Associates, Pretoria

Lovius Block Attorneys, Bloemfontein

For the Respondent:

S E Motloung

Instructed by:

Gildenhuys Lessing Malatjie Inc, Pretoria

Maduba Attorneys, Bloemfontein
THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:  The Registrar, Supreme Court of Appeal
Date:   25 March 2015
Status:  Immediate

Please note that the media summary is intended for the benefit of the media and does not
form part of the judgment of the Supreme Court of Appeal

Neutral citation:
Posthumus v The Road Accident Fund (20024/2014) [2015] ZASCA
40 (25 March 2015)

The appellants, respectively the administrators of the estates of the late Mrs Petronella
Posthumus and her husband Mr Pierre Posthumus, appealed to the Supreme Court of Appeal
against an order dismissing a claim for damages suffered by Mr and Mrs Posthumus in a
motor vehicle accident that occurred on 20 May 2003.

On the date in question Mr and Mrs Posthumus had been passengers in a minibus that was
being driven on the N14 national road near Sannieshof when it left the road and capsized.
They subsequently instituted action for damages for the bodily injuries that they sustained in
this accident, the claim having been brought under the provisions of the Road Accident Fund
Act 56 of 1996. It was common cause that the accident had been due in part to the negligence
of the driver of the minibus in which they were travelling, a Mr Maritz. If he had been solely
to blame, their claims were limited by the provisions of s 18(1)(b) of that Act. However, they
alleged that there was no such limitation as Mr Maritz had been blinded by the headlights of
a stationary motor vehicle parked alongside the roadway that had negligently been allowed to
shine towards oncoming traffic. This version had been rejected by the trial court which found
that no such motor vehicle had been on the scene.

Mr and Mrs Posthumus had appealed to a full court at the Gauteng Division, Pretoria. All
three members of that court had concluded that a motor vehicle had been parked alongside
the roadway. But a majority held that a causal link between its lights shining into the road
and the accident had not been established. The minority judgment held that headlights of the
stationary vehicle had blinded Mr Maritz and had contributed towards the accident.

On appeal to the Supreme Court of Appeal, the view of the minority of the full court was
accepted. The court concluded that there was no reason to disbelieve Mr Maritz’s testimony
that he had been dazzled, he having been corroborated by his wife as well as by an affidavit

by the driver of the other motor vehicle. The court considered that the other driver had been
negligent in allowing his lights to shine into the roadway as he did. It therefore held that the
appeal had to succeed as the claims of Mr and Mrs Posthumus were not limited by the
provisions of s 18(1)(b) of the Act.

---ends---