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[2011] ZAGPJHC 231
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Mokoena v Road Accident Fund (04644/2010) [2011] ZAGPJHC 231 (6 September 2011)
IN THE SOUTH GAUTENG HIGH COURT OF
SOUTH AFRICA
JOHANNESBURG
CASE NO
: 04644/2010
DATE
: 2011-09-06
In the matter between
MOKOENA
AUBREY
.............................................................................
Plaintiff
and
ROAD ACCIDENT
FUND
.....................................................................
Defendant
J U D G M E N T
WILLIS J
:
[1] The plaintiff claims against the Road Accident Fund in terms of
the Road Accident Funds Act 56 of 1996. The claim arises from
a
collision which the plaintiff alleges occurred on 12 September 2007
at approximately 05:30 at the intersection of Maphalala and
Masenge
Streets, Jabulani, Soweto..
[2] The plaintiff claims alternatively in as much in his particulars
of claim he alleges that the collision occurred with a motor
vehicle
having registration number CCF 813 GP then owned by one R.M. Motlane
and the plaintiff who was a pedestrian. On the other
hand, the
plaintiff alleges in the alternative that the collision took place
between himself as a pedestrian and a vehicle, the
identity of which
vehicle, as well as the driver are unknown to him.
[3] The plaintiff testified that on this morning he walked with his
mother to a taxi rank. He was accompanying her to make sure
that she
got safely to the taxi rank as is his practice and then he returned
home. This evidence was not challenged, but I might
pause to mention
that the plaintiff’s version that he accompanied his mother to
a taxi rank on her way to work as part of
his daily routine, is
unusual. Few young men arise easily at this early hour in the
morning. Be that as it may, his version
is that he was walking along
Maphalala Street and he turned left into Masenge Street, walking on
the left side of the road, when
a car basically following his
direction, travelling along Maphalala Street turned left into Masenge
Street and collided with him.
[4] As a result his left patella was injured, the entire claim is
based upon him injuring his left patella. The plaintiff's version
was confirmed by his mother to this extent that she testified that he
had accompanied her to the taxi rank on the day in question.
On the
plaintiff's version, which he presented in court, his mother was not
with him at the time of the accident.
[5] He said that he was taken to hospital where he spent some two to
three weeks and that certain observers had given him the registration
CCF 813 GP as one of the motor vehicles that had collided with him.
There is in the admitted documents before me a statement by
R M
Motlotlane of which he denied having driven this vehicle at this
particular place on the day in question.
[6] The truthfulness of that version is not admitted, but it is
nevertheless a relevant factor that there is this version that
registration numbers were given to him and certain difficulties as
much as the person who owned the vehicle with that registration
with
those numbers deny the accident had occurred.
[7] The hospital records show or strongly suggest that the plaintiff
was discharged from hospital after two days. There are unexplained
notes relating to his examination on 12 December 2007 which
suggested the injury to the patella may have been old, and I make
no
pertinent finding in regard thereto, but there is the proverbial
doctor scribble next to the observation concerning the injury
to the
patella with a clearly written word old next to it.
[8] No evidence was put before the court as to any ambulance record
showing that the plaintiff had been transported from the scene
of the
accident to Baragwanath Hospital on the day in question and indeed no
police records relating to the accident as alleged
on that particular
day were made available at all.
[9] It also appears that the earliest that the plaintiff went to
report the alleged accident to the police was in 2009 - some 18
months to two years after the accident. Furthermore, in the
statements there is a contradiction in as much as in one statement
it
appears that he says that his mother was with him at the time of the
collision and managed to jump out of the way which is contrary
to
another statement which he said in his evidence.
[10] Most importantly, right from the start there were problems with
the plaintiff's version of events: if the vehicle had come
from
behind travelling as he described how come he was injured on the left
and not the right part of his body which would have
been exposed to
the impact of the vehicle as described?
[11] Counsel for the plaintiff argued that if it is common cause that
the plaintiff was injured on that particular day, why would
he
fabricate this story? I regret to say that I have sufficient
experience in this court of people thinking that the Road Accident
Fund is an easy target for any kind of accident that occurs. Moreover
the injuries in question may not even have occurred as a
result of
the motor collision.
[12] Unfortunately, a lot of time is then wasted: the time of
attorneys acting for the fund, time of counsel that put a lot of
effort into the matter on behalf of the plaintiff to ensure that an
injustice to a victim was not done. The time of this court
has been
wasted by having to hear the matter. The probabilities indicate that
the plaintiff was certainly not involved in an accident
on the day in
question, and decided opportunistically to make a claim against the
Road Accident Fund.
[13] I had a short debate with counsel for the defendants as to
whether the appropriate order is that absolution from the instance
should be granted or whether the action to be dismissed. The quality
of the evidence in this matter has persuaded me that the
action
should be dismissed with costs.
[14] Judgment is given in favour of the defendant against the
plaintiff.The following is the order of the court:
The plaintiff's claim is dismissed with costs.
Counsel for the plaintiff: Adv E Ferreira
Counsel for the defendant: Adv T Mosenyeni
Attorneys for the plaintiff: Raffaele Craugenhoff,
Attorneys for the defendant: M F Jassat, at Dlamini Inc
Date of hearing 5
th
and 6 September 2011
Date of judgment 6 September 2011.