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[2011] ZAGPJHC 122
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Seshoka v Road Accident Fund (25868/10) [2011] ZAGPJHC 122 (23 September 2011)
NOT REPORTABLE
SOUTH GAUTENG HIGH COURT, JOHANNESBURG
CASE NO
:
25868/10
DATE:23/09/2011
In the matter between:
SESHOKA,
JOHN
…..............................................................................
Plaintiff
and
ROAD
ACCIDENT
FUND
..................................................................
Defendant
J U D G M E N T
MBHA, J
:
Introduction
[1] This is an action under the
provisions of the Road Accident Fund No 56 of 1996 (“the Act’)
in which the plaintiff
sued the defendant for damages arising out of
injuries he sustained in a motor vehicle collision which occurred on
18 January 2008
at about 17h30, at or along Golden Highway in
Eikenhof.
[2] The matter became defended
and all forms of negligence have been denied by the defendant. At
the commencement of the trial
the court made an order in terms of
Rule 33(4) of the Rules of Court and the matter accordingly proceeded
only on the question
of liability. The issue of quantum has been
held over for later determination.
The evidence
[3] The plaintiff was the first witness to testify on his behalf and
his testimony can be summarised as follows:
On 18 January 2008 at
approximately 17h30 he was travelling in his motor vehicle of which
he was the driver, along the Golden
Highway in Eikenhof in an
east/westerly direction. This is a tarred road with one lane for
travel in either direction. It
is also divided by a broken white
line. It was before sunset and visibility was good. Whilst he was
driving, he observed the
insured vehicle travelling ahead of him in
the same direction as that in which he was travelling. There was
other traffic
ahead of the insured vehicle which was also
travelling in the same direction.
He said that he was driving at
approximately 60 kph, which was a safe and acceptable speed and
that the speed limit on that
particular road is 60 kph.
As he intended overtaking the
insured vehicle ahead of him, he first switched on the indicator
signifying his intention to overtake.
According to him the insured
driver was well aware of his having switched on the indicator
because the insured driver slowed
down as soon as he had started to
overtake. He said whilst he was in the process of overtaking the
insured vehicle and when
both cars were almost parallel to each
other, the insured vehicle suddenly swerved to the right onto the
right lane which carries
traffic travelling in the opposite
direction, and collided with the plaintiff’s vehicle.
The plaintiff testified that
the damage to his vehicle was on the left side around the left
front fender, whilst the damage
to the insured driver’s was
on the right rear side and right tail light. He also stated that
the two motor vehicles
collided on the right hand lane just over
the broken white line.
He said the force of the impact
caused his vehicle to move across the right lane which is for
on-coming traffic, and crashed
against a steel barrier on the right
hand verge of the road.
[4] The plaintiff called Mr
David Nkonko (“Nkoko”) to testify on his behalf and his
evidence can be summarized as follows:
He was a passenger in the plaintiff’s motor vehicle and was
seated on the front left passenger seat when the collision
occurred.
4.2 There was not much traffic
on the road but he saw the insured vehicle driving ahead of the
plaintiff’s vehicle. Whilst
travelling he observed the
plaintiff switch on the indicator indicating that he intended
overtaking the insured vehicle.
He said that when both the
plaintiff’s and the insured driver’s vehicles were
almost parallel, the insured vehicle
suddenly started overtaking a
bakkie ahead of it and as a result, the plaintiff’s car
collided with the insured vehicle
on its right rear side with its
front left fender.
He described the particular
road as a single lane road with traffic travelling in opposite
directions. He said the plaintiff’s
vehicle sustained damage
on the left front fender while the insured vehicle was damaged at
the side on the right rear as a
result of the collision.
He testified that the collision
occurred in the middle of the two lanes and not on the left lane.
Furthermore, he never saw
the insured driver indicate his intention
to overtake the bakkie that was travelling ahead of the insured
vehicle.
[5] The defendant’s first
witness, Mr Amos Matjele, who is the insured driver testified that:
On 18 January 2009 at
approximately 17h30, he was driving in the Eikenhof area. He had
two passengers inside the insured vehicle.
They were all from work
and on their way to their respective homes.
Visibility was clear and there
was no traffic ahead of him. However, he soon noticed that there
was a kombi which was following
from behind and which was
travelling in the same direction as his motor vehicle.
The next thing he heard a sound
and he noticed that the kombi had collided with the right rear tail
light of his motor vehicle.
Prior to the collision he never saw
the driver of the kombi indicate that he was going to overtake his
vehicle. In fact,
the Kombi never even attempted to overtake his
vehicle.
He said as a result of the
collision, the plaintiff lost control and his vehicle veered right
across to the right where it crashed
against a steel barrier.
The insured driver was adamant
that the collision occurred at or near a bridge and that on that
particular stretch of the road
there is a barrier line prohibiting
any overtaking of vehicles. As such it would have been unsafe for
anyone, in particular
the driver of the kombi, to have attempted to
overtake another vehicle at that particular spot.
He said that the collision
occurred on the left-hand lane and disputed the plaintiff’s
version that it occurred just across
the middle of the road.
He denied that he tried to
overtake any bakkie that was travelling ahead of him as the
plaintiff’s witness alleged. He
said that the impact caused
by the collision propelled his car forward and that if there had
been any other vehicle ahead of
him, he would have collided with
it.
[6] The defendant’s second
witness Mr Moses Vundla (“Vundla”) testified that:
He was a passenger in the
insured vehicle and he was sitting in the left front passenger
seat.
He saw the plaintiff’s
vehicle as it tried to overtake the insured vehicle and collided
with the right rear of the insured
vehicle.
The collision occurred next to a bridge and there is a barrier line
on that particular stretch of road. As such it was unsafe
for the
plaintiff to have tried to overtake the insured vehicle at that
part of the road.
The Law
[7] It is trite that the
plaintiff always bears the
onus
of proving negligence
on the part of the insured driver on a balance of probabilities. See
Arthur v Bezuidenhout
and Mieny
1962 (2) SA
566
(AD) at 576G;
Sardi
and Others v Standard and General Insurance Co Ltd
1977
(3) SA 776
(A) at 780C-H and
Madyosi
and Another v SA Eagle Insurance Co Ltd
[1990] ZASCA 65
;
1990 (3) SA 442
(E) at 444D-F. In deciding whether the plaintiff has
succeeded in discharging this
onus
,
the court has to view the entire evidence which was led during the
trial
in toto
.
[8] The versions testified to by
the parties are entirely different and are indeed mutually
destructive with regard to:
the point of impact;
whether or not the plaintiff’s
vehicle either overtook or attempted to overtake the insured
vehicle prior to the collision;
and
whether or not it was the
plaintiff’s vehicle that collided into the insured vehicle or
vice versa
.
[9] The correct approach to be
adopted when dealing with mutually destructive versions was
succinctly set out in the case of
National
Employers General Insurance Co Ltd v Jagers
1984 (4) SA 437
(E) at 440E-G, where Eksteen AJP said:
“…
Where the onus
rests on the plaintiff as in the present case, and where there are
two mutually destructive stories, he can only
succeed if he satisfies
the court on a preponderance of probabilities that his version is
true and accurate and therefore acceptable,
and that the other
version advanced by the defendant is therefore false or mistaken and
falls to be rejected. In deciding whether
that evidence is true or
not the court will weigh up and test the plaintiff’s
allegations against the general probabilities.
The estimate of the
credibility of a witness will therefore be inextricably bound up with
a consideration of the probabilities
of the case and, if the balance
of probabilities favours the plaintiff, then the court will accept
his version as being probably
true. If however the probabilities are
evenly balanced in the sense that they do not favour the plaintiff’s
case any more
than they do the defendant, the plaintiff can only
succeed if the court nevertheless believes him and is satisfied that
his evidence
is true and that the defendant’s version is
false.”
[10] The Supreme Court of
Appeal, in the case of
Stellenbosch
Farmers Winery Group Ltd and Another v Martell Et Cie and Others
2003
(1) SA 11
(SCA) at 14I-15E, approved this approach saying:
“
The
technique generally employed by courts in resolving factual disputes
of this nature may be conveniently summarised as follows.
To come to
a conclusion on the disputed issues the court must make findings on
(a) the credibility of the various factual witnesses;
(b) their
reliability; and (c) the probabilities. … As to (c), this
necessitates an analysis and evaluation of the probability
or
improbability of each party’s version on each of the disputed
issues …
”
[11] The principle is therefore
established that when there are mutually destructive versions before
the court, the plaintiff’s
onus
of proof can only be discharged if he establishes his case on a
preponderance of probabilities. The principle is also established
that the requirement that a court has to be satisfied that the
plaintiff’s version is true and that of the defendant false
in
order for the plaintiff to succeed in discharging his
onus
of proof, is only applicable in cases where there are no
probabilities one way or the other. See
African
Eagle Life Assurance Co Ltd v Cainer
1980
(2) SA 324
(W).
[12] The following facts are
common cause in this case:
On 18 January 2008 at
approximately 17h30, the plaintiff was driving his motor vehicle
when it was involved in a collision with
the insured motor vehicle
along the Golden Highway in Eikenhof.
The plaintiff’s motor
vehicle was damaged on the front left fender while the insured
driver’s vehicle was damaged
on the rear right side and right
tail light.
As a result of the impact, the
plaintiff’s vehicle lost control and crushed into or against
a steel barrier on the other
side of the lane for on-coming
traffic.
Shortly before the collision,
both the insured’s and the plaintiff’s vehicles were
travelling behind one another
in an east/westerly direction, along
the Golden Highway, Eikenhof
[13] I must state that I found
the plaintiff to be a credible and consistent witness. From the
onset the plaintiff testified that
he was attempting to overtake the
insured driver’s motor vehicle when the two vehicles collided.
His evidence in this regard
is corroborated by Nkoko, the passenger
in the vehicle driven by the plaintiff, who testified that the
plaintiff first switched
on the indicator and started overtaking the
insured vehicle, and that at about the same time, the insured driver
started an overtaking
manoeuvre attempting to overtake a bakkie that
was travelling ahead of the insured vehicle. This aspect of the
plaintiff’s
vehicle overtaking or attempting to overtake the
insured vehicle, was put beyond doubt by the defendant’s own
witness Vundla,
who was a passenger in the insured driver’s
vehicle at the time of the collision, who testified that he saw the
plaintiff
overtake the insured vehicle.
[14] As can be seen, Vundla’s
testimony that the plaintiff overtook the insured vehicle, is in
stark contrast to that of
the insured driver who is adamant that the
plaintiff’s vehicle never overtook the insured vehicle and that
the plaintiff’s
vehicle struck the insured vehicle from behind.
[15] Both the insured driver and
Vundla testified that it was unsafe for the plaintiff to overtake at
or near a bridge and where
there is solid white line at the
particular stretch of the road. It was also their version that there
were no vehicles ahead of
them.
[16] Significantly, the court
was informed during argument that both parties and their respective
attorneys went to inspect the
scene of the collision. Both parties
are ad idem that there is no bridge where the accident occurred and
neither is there any
barrier or solid white line on that particular
stretch of the road. The testimony of the insured driver and his
witness, namely
that the collision occurred at a bridge and where
there is a barrier line on the road, is thus false and was clearly
made up to
try to impute negligence on the part of the plaintiff.
[17] Sight must also not be lost
of the fact that the defendant’s counsel even suggested to the
plaintiff, during cross-examination,
that the insured driver would
testify that the collision occurred when the plaintiff was attempting
to overtake the insured driver.
This is consistent with the
testimony of the plaintiff, Nkoko and Vundla, the defendant’s
witness.
[18] The versions advanced by the
plaintiff and his witness are not only probable but also accord with
common sense and logic.
The plaintiff’s testimony that after
he started overtaking the insured vehicle and that when both cars
were parallel, the
insured vehicle suddenly swerved right, accords
squarely with the testimony of Nkonko, namely that after the
plaintiff’s
motor vehicle had started overtaking the insured
vehicle, the latter vehicle then suddenly swerved to its right whilst
attempting
to overtake the bakkie that was in front. In my view, this
is the only plausible reason that explains why the insured vehicle
suddenly
swerved to its right and collided with the plaintiff’s
vehicle causing it to lose control and veer further to its right
across
the lane for on-coming traffic, and crash into the steel
barrier where it ultimately landed.
[19] In the light of what I have
stated, I find that plaintiff’s version is, on the
probabilities, true and that the version
of the defendant falls to be
rejected. The court accepts the plaintiff’s version that:
both vehicles were travelling in the same direction;
the plaintiff attempted to overtake the insured vehicle that was
travelling in front; and
that the insured vehicle
suddenly swerved to its right and collided with the plaintiff’s
vehicle causing it to lose control
and crash onto a steel barrier
on the right verge of the road.
[20] On the facts, the court
finds that the insured driver was negligent in that he failed to
exercise his expected duty towards
other motorists, in particular the
plaintiff’s vehicle, in that he failed to keep his vehicle as
far as possible to the left
in the lane he was travelling, at the
time when the plaintiff was overtaking the insured vehicle. He also
acted negligently when
he started to overtake the vehicle ahead of
him after the plaintiff had started overtaking the insured vehicle.
[21] It is trite that a driver of
a vehicle is entitled to assume that the driver who is overtaken will
continue on his present
course on the left-hand side of the road.
See
Beswick v Crews
1965 (2) SA 690
(AD).
[22] In terms of
Regulation 298
of the
National Road Traffic Act of 1996
, the driver of a vehicle
intending to pass any other vehicle proceeding in the same direction
on a public road shall pass to the
right thereof at a safe distance,
and the vehicle being overtaken must move as far to the left as
possible.
[23] In my view the insured drive
acted negligently as he acted in a manner in which a reasonable
person in his position would not
have acted. Furthermore, his
negligence was the sole cause of the collision.
[24] I am satisfied that the
plaintiff has successfully discharged the required onus on a balance
of probabilities and has shown
that the insured driver drove the
insured vehicle in a negligent manner. It has not been shown that
any negligence can be attributed
to the plaintiff. The defendant is
accordingly liable to compensate the plaintiff fully for all his
damages suffered as a result
of personal injuries he sustained in the
collision that occurred on 18 January 2008.
[25] I accordingly make the
following order:
The defendant is liable to pay 100 percent of the plaintiff’s
proven or
agreed damages.
The defendant is ordered to pay the plaintiff’s costs.
The determination of quantum is postponed sine die.
_____________________________
B
H MBHA
JUDGE OF THE SOUTH GAUTENG
HIGH COURT, JOHANNESBURG
COUNSEL FOR PLAINTIFF :B M MAHLAULE
INSTRUCTED BY :MKHABELA
INC
COUNSEL FOR DEFENDANT :B MATLAKALA
INSTRUCTED BY :SISHI INCORPORATED
DATES OF HEARING :14-17 AUGUST 2011
DATE OF JUDGMENT :23 SEPTEMBER 2011