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[2015] ZAGPJHC 230
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Khiba v Road Accident Fund (2012/24278) [2015] ZAGPJHC 230 (14 August 2015)
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Certain
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REPUBLIC
OF SOUTH AFRICA
THE
SOUTH GAUTENG HIGH COURT, JOHANNESBURG
JUDGMENT
Case
no: 2012/24278
DATE:
14 AUGUST 2015
In
the matter between
KHIBA
GOODNESS
...................................................................................................................
Plaintiff
And
ROAD
ACCIDENT
FUND
......................................................................................................
Defendant
Neutral
citation:
Goodness K v RAF
(SGJ 24278/2012)
Coram:
DIPPENAAR AJ
Heard:
29-30 July 2013
Delivered:
14 August 2013
Summary:
Damages for dependant’s claim.
Question of liability for collision arising from unknown vehicle
approaching on incorrect side
of road resulting in driver swerving
and losing control of vehicle and colliding with a tree, resulting in
death of driver and
serious injuries sustained by three passengers.
Apportionment of liability.
ORDER
Defendant
declared to be liable for 70 per cent of plaintiff’s proven
damages and costs.
JUDGMENT
Dippenaar
AJ:
[1]
This is an action for loss of support
launched by the plaintiff in her capacity as mother and natural
guardian of her minor son
whose father, Mr B Dlamini (“the
deceased”) sustained fatal injuries in a motor vehicle accident
which occurred during
the early hours of the morning of 4 September
2011 on George Avenue, Sandringham, Johannesburg.
[2]
The plaintiff’s claim is based on the
provisions of
s 17(1)
(b)
of the
Road Accident Fund Act 56 of 1996
, as amended (“the
Act”) as read with reg 2(1) thereof, and is based on the
driving of a motor vehicle where the identity
of neither the owner
nor the driver could be established (“the unidentified
vehicle”).
[3]
By agreement between the parties, the
issues surrounding the liability of the defendant were separated from
the issues surrounding
the quantum of the plaintiff’s claim. I
accordingly granted an order of separation under
rule 33(4)
and
postponed the issues relating to the quantum of the plaintiff’s
claim sine die.
[4]
The issue which must presently be
determined, is the liability of the defendant.
[5]
The plaintiff called three witnesses who
were all passengers in the deceased’s vehicle at the time of
the accident. The defendant
called one witness who was in a
stationary vehicle on George Avenue, busy speaking to one of his
colleagues when the accident occurred.
[6]
It was common cause between the parties
that there was no contact between the vehicle driven by the deceased,
a black Mazda Etude
bearing registration numbers and letters [P…..
9…….] GP and the unidentified vehicle which the
plaintiff contends
was the cause of the accident.
[7]
It was further common cause between the
parties that the accident occurred when the vehicle driven by the
deceased, which had been
travelling in an easterly direction in
George Avenue, Sandringham, swerved right and the deceased lost
control of the vehicle,
causing it to leave the road and collide with
a tree, resulting in the death of the deceased and his three
passengers sustaining
various serious injuries.
[8]
It was undisputed that the events leading
up to the accident were the following:
[8.1]
The deceased and his passengers were all
boxers and were familiar with George Avenue as it formed part of
their training route.
The deceased had been preparing for a fight and
they had spent the night watching boxing dvds of the deceased’s
opponent
at a friend’s house in Alexandra. They were on their
way home when the accident occurred somewhere between 05h00 and 06h00
in the morning of 4 September 2011. None of the witnesses were able
to give an exact time of when the accident occurred.
[8.2]
The sun was starting to rise and all
vehicles had their headlights on. George Avenue is a single lane dual
carriage way. The road
surface is tarred and was dry.
[9]
The
parties were further in agreement that there was no physical contact
between the deceased’s vehicle and the unidentified
vehicle,
but that physical contact is not a requirement for liability on the
part of the defendant in these circumstances
[1]
.
[10]
The nub of the dispute between the parties
was what had caused the deceased to lose control of his vehicle.
[11]
In summary, the plaintiff contended that
the unidentified vehicle, which had been travelling in a westerly
direction on George Avenue
with its headlights on, which had been
travelling in a weaving fashion, had swerved onto the lane of travel
of the vehicle driven
by the deceased, who had swerved to his right
(onto his incorrect side) to avoid a collision, resulting in him
losing control of
the vehicle. The defendant denied the existence of
this vehicle and suggested that the deceased had been travelling at
an excessive
speed, resulting in him losing control of his vehicle.
[12]
The plaintiff called three witnesses, being
the passengers in the vehicle driven by the deceased: Mr Ashley
Dlamini, the brother
of the deceased who had been sitting in the
front passenger seat, Mr Norman Masinga and Mr Fikile Nyalungu who
had occupied the
rear right and left passenger seats respectively.
[13]
The defendant called one witness, Mr MJ
Makwela, a security guard who had dropped off a colleague at a house
on George Avenue to
whom he was speaking through the window of his
vehicle, when the accident occurred.
[14]
The slight variations in the evidence of
the various witnesses can in my view be ascribed to their differing
perspectives and none
of the witnesses’ evidence can be
rejected outright. Their evidence can be summarised as set out below.
[15]
Dlamini was a passenger on the front left
passenger seat and accordingly had a good view of the road ahead.
Their vehicle had been
driving in an easterly direction on George
Avenue after having stopped at a red traffic light some distance
back. The vehicle had
been driving at a speed of between 40 and 50
kilometres per hour. He noticed a vehicle coming towards them from
the opposite direction
which was weaving across the two lanes. He
alerted the deceased to the approaching vehicle who replied that he
was aware of it,
then swerved and lost control of the vehicle,
resulting in it leaving the road surface and colliding with a tree.
[16]
The
evidence of Dlamini was not satisfactorily in all respects. Although
admitting that he signed two statements, one given to the
South
African Police Services (“SAPS”) on the day of the
accident
[2]
,
and another, being an affidavit deposed to before a Commissioner of
Oaths during 2012
[3]
,
he disavowed any knowledge of the contents of the two statements.
Dlamini’s statement of 4 September 2011 to the SAPS does
not
refer to any oncoming vehicle, but only refers to the deceased
swerving and losing control of the vehicle, whereas the later
statement and his evidence in court refers to an oncoming vehicle
that was weaving between the lanes and approached their vehicle
in
its incorrect lane, causing the deceased to swerve and lose control
of the vehicle.
[17]
Dlamini, despite admitting his signature on
both these statements, disavowed any knowledge of the contents of the
two statements,
which are significantly different as set out above.
Whilst his explanation for not having any knowledge of the first
because of
trauma and confusion in the days subsequent to the
accident on 4 September 2011 may be plausible in relation to his
statement to
the SAPS, he could tender no logical explanation for his
disavowal of any knowledge of the later statement, which was clearly
prepared
in conjunction with the legal representatives of the
plaintiff, who, if I understand the evidence of Masinga correctly,
were jointly
approached by all three the passengers. It is unknown
whether those representatives are the same as are representing the
plaintiff
in this matter. Dlamini’s disavowal of any
knowledge of the aforesaid affidavits appears to be untruthful and
improbable.
It was put to Dlamini under cross-examination that he was
aware of the inconsistencies in the two statements and accordingly
denied
any knowledge of their content. He could provide no answer to
this contention.
[18]
Dlamini’s evidence regarding the
accident was that he was speaking to his brother during the trip.
Shortly before the accident,
the deceased pointed out a flat along
George Avenue in which one of their friends lived by gesturing with
his head. They were travelling
at a speed of between 40 and 50
kilometres per hour. He disputed the proposition put under
cross-examination that the speed was
in excess of 100 kilometres per
hour. He noticed the approaching vehicle which was weaving
between its correct lane
and the lane occupied by their vehicle. He
alerted the deceased to its presence, which the latter confirmed he
had noticed, shortly
after which the deceased swerved to the opposite
lane, resulting in him losing control of the vehicle. Dlamini could
not describe
the events which followed and only regained his senses
once the vehicle had collided with the tree. No reliance can in my
view
be placed on the various distances provided by Dlamini as they
were clearly rough estimates which could or could not be correct.
[19]
Dlamini did not deviate from this version
under cross-examination and strongly disputed the suggestion that the
deceased had been
travelling at a high speed. He similarly disputed
the defendant’s contention that the oncoming vehicle did not
exist.
[20]
In argument, the defendant urged me to
disregard the evidence of Dlamini in its entirety as being unreliable
and incredible. Despite
the above stated difficulties with Dlamini’s
evidence, I am not however persuaded that his evidence must be
rejected in its
totality.
[21]
The evidence of Nyalungu did not contribute
much to unravelling how the accident occurred as he was asleep during
the trip and only
regained consciousness after the accident in the
Edenvale Hospital.
[22]
The
defendant criticised the veracity of Nyalugu’s evidence on the
basis that it was allegedly in conflict with an affidavit
signed by
him in relation to the accident during October 2011
[4]
as a description of the accident is given in paragraph 2 of the
affidavit, of which Nyalungu testifies he has no knowledge. His
explanation that he relied on the events described by the other
occupants of the vehicle accords with the evidence of Malinga that
the passengers all saw attorneys together and gave them composite
instructions of what had occurred. I am not in the circumstances
satisfied that Nyalungu’s evidence is false and should be
rejected as the defendant has suggested.
[23]
The
wording of Nyalungu’s affidavit is exactly the same as the
affidavit signed by one of the other passengers, Masinga
[5]
and appears to have been prepared at the same time. The said
affidavits appear to give a collective version of the respective
witnesses’ evidence and observations. As such, the two
affidavits may well contain evidence of a hearsay nature, but is not
in conflict with the evidence tendered at trial by either Nyalungu or
Masinga as to what had occurred.
[24]
The evidence of Nyalungu must accordingly
be accepted, albeit that it is of limited use in clarifying the issue
at hand.
[25]
The evidence of Masinga was that he was a
passenger in the right rear of the vehicle. He heard Dlamini drawing
attention to the
oncoming vehicle, looked up, saw lights of an
approaching vehicle on their side of the road and heard screaming. He
testified that
everything happened very quickly. He could give no
estimates of speed or distance, which is not unusual, bearing in mind
his position
in the vehicle. The deceased swerved to avoid the
oncoming vehicle. He could not explain what happened thereafter. He
woke up in
hospital, having sustained serious injuries to his legs.
On his discharge from hospital some two months later, he made a
statement
to the SAPS.
[26]
In
that statement
[6]
he said that the driver of the unidentified oncoming vehicle was not
driving straight. This evidence was not repeated in court,
but he was
not cross-examined on this issue.
[27]
Masinga did not deviate from his version
under cross-examination and I find no reason not to accept his
evidence as credible.
[28]
The defendant called Makwela, a security
officer who had been on duty at the time of the accident, as a
witness. He works in the
area and is accordingly familiar with George
Avenue. He had just dropped off a colleague at his home in George
Avenue, his vehicle
was stationary and he was engaged in a discussion
with the colleague through the window of his vehicle when he heard
the screeching
of tyres. This drew his attention to the street and he
observed the vehicle driven by the deceased leaving the tarmac onto
the
gravel, creating a dust cloud and thereafter colliding with a
tree. He rushed to the accident scene to assist the occupants of the
vehicle and recognised Dlamini in court as being one of the
passengers of the vehicle.
[29]
Makwela testified that whilst he was
stationary on George Avenue, he observed about three vehicles passing
in an easterly direction
and about five vehicles passing in a
westerly direction. He could not say which of the latter vehicles
could have disturbed the
deceased. He did not witness the events
which resulted in the deceased losing control of the vehicle. He
candidly stated that his
attention was on the deceased’s
vehicle and not on what was happening on the road.
[30]
Makwela impressed me as an honest witness.
His evidence however sheds no light on the circumstances which led up
to the collision
between the deceased’s vehicle and the tree
and he appears to have witnessed the events only after the deceased
lost control
of the vehicle. He readily conceded that everything
happened suddenly and he was not concentrating on the cause of the
accident.
[31]
None of the witnesses could provide any
reliable evidence regarding the speed at which the deceased’s
vehicle had been travelling
at the time the deceased lost control
thereof. No direct evidence was presented by the defendant regarding
the speed of the vehicle
driven by the deceased, other than Makwela’s
observation that once the vehicle had left the road it was travelling
at a high
speed. He could however not give any indication of what
constituted such ‘high speed’ and I am unable to make any
positive
finding on this issue.
[32]
The defendant also did not present any
evidence that there was indeed no approaching vehicle in the lane of
travel of the deceased’s
vehicle.
[33]
The plaintiff contends that the witnesses
substantially corroborated each other and that a finding should be
made that the defendant
is liable for 100 per cent of the defendant’s
proven damages. She contends that an apportionment is not appropriate
and that
the negligence of the driver of the unidentified vehicle was
solely responsible for the accident.
[34]
The
defendant on the other hand contends that it must be determined
whether sufficient evidence had been presented to sustain any
finding
of negligence on the part of the driver of the unidentified
vehicle
[7]
and that no finding can be made as to how the collision in fact
occurred.
[35]
The
defendant contends that insufficient evidence was presented upon
which a reasonable person may find in the plaintiff’s
favour
[8]
and that the plaintiff’s claim must either be dismissed or that
absolution from the instance should be granted.
[36]
On considering the evidence as a whole,
certain probabilities emerge. There were some vehicles travelling in
both an easterly and
westerly direction on George Avenue at the time
of the accident. Both Dlamini and Masinga observed lights of the
oncoming unidentified
vehicle in their lane of travel.
[37]
Even though the evidence of Dlamini was not
satisfactorily in all respects and even if this evidence is
disregarded, the evidence
of Masinga as to the timing, presence and
position of the unidentified vehicle, is uncontroverted. The
existence of these lights,
which, it is undisputed, were connected to
a vehicle, constitutes direct and cogent evidence of its existence in
the lane of travel
of the deceased’s vehicle immediately before
the deceased swerved onto the opposite side of the road (to his
right) and lost
control of the vehicle.
[38]
The defendant did not present any evidence
that there was indeed no such vehicle. The evidence of Makwela does
not negate the possibility
that such vehicle indeed existed and acted
in the way as testified by the plaintiff’s witnesses, Dlamini
and Masinga. Makwela
further testified to five vehicles travelling
west in George Avenue during the period he was stationary and
speaking to his colleague.
Although it was suggested to these
witnesses under cross-examination that there was indeed no such
vehicle and control had been
lost over the vehicle as the deceased
had been speeding, this was disputed by both witnesses and no
concrete evidence was presented
either that there was indeed no
vehicle, or that such vehicle was travelling in its correct lane.
[39]
I agree with the argument advanced on
behalf of the plaintiff that it is not probable that the deceased
would have lost control
of the vehicle for no apparent reason.
[40]
I am accordingly constrained to find on the
evidence presented and on the probabilities that there was indeed an
approaching vehicle
on its incorrect side of the road which resulted
in the deceased swerving and losing control of his vehicle, despite
there being
no contact between it and the deceased’s vehicle.
[41]
Having accepted the existence of an
approaching vehicle travelling on its incorrect side of the road, the
issue of negligence on
the part of the respective drivers must be
assessed in order to determine whether there must be an apportionment
of liability.
[42]
The
conduct of a driver by driving on its incorrect side of the road is
clearly negligent. Proof that a vehicle was at its incorrect
side is
prima facie proof of the driver’s negligence
[9]
.
No evidence was led on what caused the unidentified vehicle to be on
its incorrect side of the road and this issue cannot be taken
any
further.
[43]
The deceased, on the facts presented is
however not blameless and his conduct which resulted in him losing
control of his vehicle,
appears prima facie to have been negligent,
bearing in mind that a driver of a vehicle should not drive in such
fashion as to lose
control thereof at any stage.
[44]
Very little evidence was led on this issue
other than that the deceased braked and swerved right to avoid the
collision and this
issue was not fully explored in evidence. It does
not appear from the evidence that the deceased took any steps to
avoid a collision
immediately after having become aware of the
existence of the unidentified vehicle. No alternative evasive course
of action was
however proposed under cross-examination. Masinga could
not testify whether it was possible for the deceased to avoid a
collision
by any other means such as by applying brakes and/or
stopping.
[45]
Having regard to the available evidence,
Makwela’s observations and seriousness of the collision and the
injuries which were
sustained by the occupants of the deceased’s
vehicle, it is improbable that the deceased had been travelling at a
speed of
between 40 and 50 kilometres per hour as testified by
Dlamini. On the probabilities the deceased must have been travelling
considerably
faster, although no exact finding on this issue can be
made on the evidence presented. On the probabilities his speed in the
circumstances
was excessive.
[46]
The
issue of sudden emergency was not argued before me. I am mindful of
the principle that allowance must be made for the particular
circumstances in which the deceased found himself
[10]
and that a driver acting in the best way to avoid danger in a sudden
emergency, is not negligent.
[11]
It is however incumbent on a driver, when faced with sudden
emergency, to exercise reasonable care and use reasonable skill to
avoid the immediate danger
[12]
.
[47]
It is uncontested that the swerving of the
vehicle caused the deceased to lose control of his vehicle, which
directly resulted in
it leaving the road and colliding with a tree.
Whether the action of swerving was too dramatic in the circumstances
or whether
the speed of the vehicle was such as to not accommodate
the swerving action, is unknown. It however appears that the deceased
did
not use proper skill or care in his conduct to remain in control
of the vehicle and in this respect he was negligent and his
negligence
contributed to the collision and the injury and death of
the occupants of the vehicle. In my view, an apportionment of 30 per
cent
negligence on the part of the deceased would be appropriate.
[48]
In my view, in apportioning negligence on
the part of the driver of the unidentified vehicle, a percentage of
70 per cent would
be appropriate.
[49]
I accordingly make the following order:
[49.1]
The defendant is liable for payment of 70
per cent of the plaintiff’s proven damages.
[49.2]
The defendant is directed to pay the
plaintiff’s costs.
E
F DIPPENAAR
ACTING
JUDGE
APPEARANCES:
PLAINTIFF:
Adv T Lipshitz
Swartz
Attorneys, Johannesburg
DEFENDANT:
Adv TJ Mosenyehi
Sishi
Incorporated, Johannesburg
[1]
Bezuidenhout
v Road Accident Fund,
2003
(6) SA 61.
[2]
Exhibit
A at 51 and 57.
[3]
Exhibit
A at 69-70.
[4]
Exhibit
A at 68.
[5]
Exhibit
A at 71.
[6]
Exhibit
A p 41 para 3.
[7]
Relying
on
Motor
Vehicle Assurance Fund v Dubazane
1984 (1) SA 700 (A).
[8]
Relying
on
Claude
Neon Lights (SA) Ltd v Daniel
1976 (4) SA 403 (A).
[9]
Jennings
v Pararg
1955
(1) SA 290
(T);
Mayers
v Lemonsky
1924 CPD 125
;
Marais
v Caledonian Insurance
1967 (4) SA (E);
Goode
v SA Mutual Fire & General Insurance
1979 (4) SA 301
(W);
Khumalo
Ngcoco v Southern Insurance
1980 (3) SA 660 (D).
[10]
UG
v Buur
1914
AD 273
at 286;
Bennett
v President Versekering
1973 (1) SA 6764
(W) at 683 (C).
[11]
Mane
& Trade Insurance v Mariamah
1978
(3) SA 180
(A);
Sardi
v Standard & General Insurance
1977 (3) SA 776 (A).
[12]
Van
Staden v Stocks
1936
AD 18
at 22.