Posthumus v The Road Accident Fund

On 20 May 2003, Mr and Mrs Posthumus were passengers in a minibus driven by Mr Maritz on the N14 national road near Sannieshof. On approaching a sharp 90-degree curve, Maritz was dazzled by bright headlights of a bakkie parked on the inside of the curve with its headlights shining into the roadway. The bright lights blinded Maritz, causing him to lose control of the minibus, which strayed onto the gravel verge, struck a curb, and overturned. Both Mr and Mrs Posthumus sustained bodily injuries. Mr Kgantsi, the driver of the parked bakkie, made a sworn affidavit to police stating he had stopped to relieve himself and had 'unfortunately left my vehicle's lights on bright and neglected to dim them'. He later died on 14 July 2004. Mr and Mrs Posthumus sued the Road Accident Fund for damages in 2007. Both Mr and Mrs Posthumus subsequently died before final judgment - Mr Posthumus committed suicide before the trial judgment, and Mrs Posthumus died subsequently. The administrators of their estates became the appellants.

• Whether the driver of a parked vehicle who leaves headlights on bright shining into a roadway is negligent
• Whether there was a causal link between the bakkie's bright lights and the accident
• Whether the Road Accident Fund's liability was limited under section 18(1)(b) of the Road Accident Fund Act 56 of 1996
• Whether the affidavit of the deceased Mr Kgantsi should have been admitted under section 3(1)(c) of the Law of Evidence Amendment Act 45 of 1988
• Whether leaving headlights on constitutes 'driving' a motor vehicle under section 20(2) of the Road Accident Fund Act

1. The respondent's application for postponement of the appeal was dismissed with costs. 2. The appeal succeeded with costs. 3. The order of the full court was set aside and substituted with: (a) The appeal succeeds with costs; (b) Paragraph 1 of the trial court's order of 25 October 2010 is amended by deletion of the words 'limited in terms of section 18(1)(b) of the Act'.

A motorist who parks a vehicle alongside a roadway at night with headlights shining brightly into the roadway is negligent if: (1) a reasonable person in that position would foresee the reasonable possibility that an approaching motorist might be dazzled and lose control of their vehicle; and (2) the motorist fails to take reasonable steps (such as dimming or turning off the headlights) to guard against that harm. Such negligence 'arises from the driving' of the motor vehicle within the meaning of section 17(1) of the Road Accident Fund Act 56 of 1996, as the operation of headlights is causally connected to the use of the vehicle. Under section 20(2) of the Act, a person who has placed or left a motor vehicle at any place is deemed to be driving that vehicle while it is stationary. Where such negligence contributes to an accident, the Road Accident Fund's liability is not limited by section 18(1)(b) of the Act.

The Court observed that the lack of prior reported cases on the negligence of motorists who blind others by not dimming headlights may be due to: (1) such motorists normally not stopping at accident scenes to which they have contributed; or (2) former regulations under section 26 of the Act only provided for RAF liability where an unidentified motor vehicle came into physical contact with another person, vehicle or object. The Court noted that the dazzling effect of bright headlights of oncoming traffic is 'all too common an experience' and a matter of 'common experience for motorists driving at night'. The Court commented critically on the aggressive and protracted cross-examination at trial, describing it as 'at times irrelevant and unfair'. The Court also expressed puzzlement at the respondent's last-minute postponement application given that counsel ultimately argued the appeal with vigor and addressed the material issues fully. The Court noted that theoretical reconstructions of accidents are 'always fraught with uncertainty' and generally carry less weight than direct and credible eyewitness evidence.

This case establishes important principles regarding the liability of motorists who park vehicles with bright headlights shining into roadways. It represents the first reported South African decision addressing whether a motorist who blinds other motorists by failing to dim headlights is negligent. The judgment clarifies that section 20(2) of the Road Accident Fund Act deems a person who has left a vehicle in a place to be 'driving' it while stationary, and that the operation of headlights 'arises from the driving' of a vehicle for purposes of RAF liability under section 17(1). This extends the scope of RAF liability beyond physical collisions to include contributory negligence involving stationary vehicles. The case also demonstrates the importance of proper application of the Law of Evidence Amendment Act regarding hearsay evidence from deceased witnesses. The judgment emphasizes that once a fundamental finding of fact by a trial court is shown to be wrong, the appeal court is free to reach its own conclusions on the evidence.