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[2016] ZAGPJHC 150
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Salumu Obo Medi v Road Accident Fund (12895/2014) [2016] ZAGPJHC 150 (13 June 2016)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO:
12895/2014
DATE:
13 JUNE 2016
In
the matter between:
Salumu,
Odette (obo Medi
Bless)
...............................................................................................
Plaintiff
And
Road
Accident
Fund
.................................................................................................................
Defendant
Judgment
Van
der Linde, J
:
Introduction
[1]
This is a claim by a mother, on behalf of
her minor son, for damages following injuries sustained on 6 August
2010 when he was knocked
down by a motor vehicle when crossing a
street. I was asked to deal only with two issues: whether the
plaintiff was in truth the
mother of the minor; and whether the
driver of the vehicle for whom the defendant statutorily accepts
liability (“the insured
vehicle”), was negligent in
relation to the collision.
[2]
I was informed that the parties had settled
quantum, but that I would only be informed of the amounts involved
when I handed down
judgment on the two issues to which I have just
referred.
[3]
In opening the plaintiff’s counsel
said that the minor was nine years old at time; that the insured
vehicle was a Toyota panel
van; that it was a robot-controlled
intersection; and that the minor’s injuries included a fracture
below the knee which
necessitated an operation to repair a femoral
artery, as well as a head injury evidenced by concussion during the
collision.
[4]
Three witnesses were called, all of
them for the plaintiff. The plaintiff herself testified; the minor
testified; and a Mr Moise
Mansita, who describes himself as a street
trader at the intersection where the collision occurred, was called.
I proceed to discuss
their evidence.
The plaintiff
[5]
She was called to say that the minor was
her son. That is all she said in chief. In cross-examination the
maternity issue appears
to have arisen because of two documents
issued by the Department of Home Affairs. According to one, an
“Asylum Seeker Temporary
Permit,” her nationality is
Congolean, and the DRC is her country of origin. The second, similar
permit was issued to “Medi
Bless,” a male born on 13
April 2000 (making him ten years old at the time of the collision),
also of Congolean nationality.
One of the conditions was:
“Accompanying mother in RSA (Appeal).”
[6]
The plaintiff said that both permits were
issued to her by the department. The second one referred to her son.
It was completed
by a Home Affairs official to whom she, the
plaintiff, gave the necessary particulars. She saw that her son’s
surname was
not correctly recorded. She has been to Home Affairs to
have it corrected, but administrative delays have resulted in it not
being
fixed. It did not bother her very much though, because her
sons’ permit was in her file, together with her permit, at Home
Affairs.
Demeanour
and discussion
[7]
The plaintiff, whose first language is
French and whose adroitness in English was somewhat lacking,
impressed me as an honest witness.
She gave her evidence in an open
manner, and her demeanour was helpful and, where expected, indignant.
[8]
Particularly, challenged that the minor was
not her son, her response was politely condescending when she said
that he was her boy,
and that no-one could say that she was not.
[9]
In argument the defendant submitted that
there was no documentary evidence to substantiate her version. There
was none, to be true.
But to my mind that is not surprising, given
her probable status as an asylum seeker.
[10]More
importantly, virtually any documentary evidence would most likely be
second-hand, if the plaintiff was conscious when the
minor was born;
and if there was no suggestion, as there was not, of a baby-swap at
hospital at birth.
[11]The
minor, when he was called, said that the plaintiff was his mother.
But is evidence can at best be that, so far as
her knows, she is his
mother. When he first acquired cognitive function he would have been
confronted by the presence of the plaintiff,
virtually as a
fait
accompli.
Although he would have been
present at birth, will not have observed or remembered anything about
it.
[12]The
best evidence that the minor was her son was therefore that of the
plaintiff herself. Since I believe her, the only remaining
question
is whether she could have erred. But that was not put to her, and so
there was no suggestion as to how such an error could
have come
about, as perhaps in the baby-swap scenario. Any potential error is
therefore speculative.
[13]
In these circumstances the conclusion must be that
the plaintiff has proved her
locus
standi
.
The minor
[14]He
said in chief that on the day in question, it was dry, hot and fine.
He was walking at around 14h00 on the pavement of Rose
Street,
Rosettenville, Johannesburg, towards the traffic light –controlled
intersection with Prairie Street. He proved a
sketch, exh A; and
explained that he crossed the intersection from the number 2, where
there was the Shul, towards the number 1,
where there was a Pick n
Pay. In argument the wind directions were added to the sketch; so he
was crossing east to west.
[15]He
crossed Prairie Street; the lights were green. The next thing, he was
knocked down by a car. He never saw the car, and found
himself
“down”. He lost consciousness. He was injured; his knee
was broken.
[16]In
cross-examination he said that he waited for the green light before
crossing. He did not see whether the car was from his
left or from
his right. In his opinion the car was speeding, since other cars had
stopped. He could not tell the point of impact.
There are two lanes
each direction in Prairie Street. The first lane is close to the
pavement; the cars that had stopped, had stopped
in that lane.
Demeanour
[17]I
will deal with the probabilities below, when discussing the parties’
submissions. Here it is only necessary to record
that I was not
impressed with the evidence of the minor. He was soft-spoken; and his
demeanour was generally woody, virtually robotic.
[18]This
may have been ascribed to a degree of apprehension in having to
testify; or in insecurity in having to recall what happened
virtually
six years ago.
[19]Either
way, the plaintiff submitted that allowance has to be made for the
fact that the minor’s memory was likely impaired;
and that, in
the event of a conflict between his evidence and that of Mr Mansita,
the evidence of the latter, who was said to be
“superior”
witness, was to be preferred.
Mr Moise Mansita
[20]In
chief, he explained that his first language was also French; in fact,
he knew the plaintiff’s family, the father of
which operated an
Internet Café, and such that after the collision he was able
to call the father on his phone to tell him
what had happened.
[21]He
described himself as a street trader, whose store was at the Shul on
the north eastern corner of the intersection. There
is a fixed
barrier that runs north to south across Rose Street, just on the
boundary of the intersection, so no vehicular traffic
accesses Rose
Street there. He sets up his two tables just on the inside of the
barrier, in Rose Street.
[22]On
the day in question he had just arrived, and had put down his two
tables. He observed that the traffic lights were green
for
pedestrians; pedestrians from the mall on the north western corner,
where there is a Pick n Pay, were crossing Prairie Street
from west
to east. Almost on his right hand side, he said, he could see the
minor crossing.
[23]Next,
he heard braking, a knock, and saw the minor lying on the road in
Prairie Street. He was trying to sit up. The witness
rushed to him to
tell him not to move. He phoned his father who came. The police
arrived and the minor was taken to hospital.
[24]In
cross-examination he explained, with reference to a tick and a “Y”
on exh A, where he was when he saw the minor,
and where the minor was
then. It depicts the minor slightly back from the traffic light on
the north eastern corner of the intersection,
and the witness just
into Rose Street, behind where the barrier would have been.
[25]He
explained that when he saw the minor at that position, the minor was
walking, but fast. They normally greet each other, but
on that day
the minor did not, because he was “in a hurry.” The
witness explained that he saw the minor and the
pedestrians crossing
from west to east over Prairie Street “almost simultaneously”.
[26]The
witness saw the colour of the traffic lights as the minor was walking
past once only (and then it was green); he did not
look again to see
the colour. He said that those traffic lights are for pedestrians.
[27]The
witnesses then paid attention to setting up his tables; he leaned on
the top table to remove it. It was while this was occurring
that he
heard the collision.
[28]He
did not see the minor enter the intersection, and cannot say what
colour the traffic light was when he entered the intersection.
Demeanour
[29]
Mr Mansita impressed me as an honest witness. His
evidence was lucid, and he tried to be helpful in giving as clear a
recollection
as he could. He engaged the cross-examiner meaningfully
and although he appeared to have sympathy for the minor, I did not
get
the impression that he was falsifying anything.
Submissions
The plaintiff
[30]The
plaintiff submitted that the only probable reconstruction of the
events, having regard to the probabilities and the evidence,
with an
appropriate slant in favour of the evidence of Mr Mansita, was as
follows.
[31]
The events commence with Mr Mansita looking north,
and observing the minor hurrying along. Although Mr Mansita does not
see it,
because he is not looking there, the traffic light for
pedestrians is red at that moment.
[32]Mr
Mansita then turns his gaze to his left, and observes the pedestrians
crossing from west to east across Prairie Street. As
his gaze is on
the pedestrians, the minor stops to wait for the traffic light to
turn green. So the light must then have been red
for the minor.
[33]In
that movement of Mr Mansita’s gaze from the minor to the
pedestrians, the pedestrians start walking across the road,
possibly
when the light had not actually turned green for them yet. It is
while they are doing this that the minor is waiting for
the light to
turn from red to green.
[34]Mr
Mansita drops his gaze to arrange his tables; the collision occurs.
[35]On
this argument the collision occurred just as the traffic lights had
turned from red to green for the pedestrians; in other
words, the
insured river would have approached the intersection with the lights
green, changing to amber and then red, for him.
He thus, in common
parlance, typically “jumped” the traffic lights.
[36]The
submission was also that this explanation fits with the minor’s
evidence of cars that had stopped; they would have
stopped at the
intersection in Prairie Street as the lights turned red for them,
having travelled from south to north.
[37]In
the course of the submissions for the plaintiff, Mr Mansita was
identified as the preferred witness. The minor may have suffered
from
memory challenges following the injury, according to the submission.
[38]The
plaintiff criticised the defendant for remaining shtum about the
insured driver. It was not explained why he was not called
to
testify. The plaintiff also submitted in the alternative that
even if the finding is that the insured driver had crossed
the
intersection with the lights green in his favour, he ought to have
made sure that there were no pedestrians, such as the minor,
still in
the intersection. He was negligent in not doing this, according to
the submission.
The defendant
[39]The
defendant argued that the court is not able to find what had
happened. The versions are conflicting; the defendant had no
onus;
and absolution from the instance was the indicated result.
Discussion
[40]It
is axiomatic that civil cases are decided on a balance of
probabilities. It is equally well-accepted that probabilities are
mixed in with credibilities: thus what is probable or not is related
to what is credible or not in the circumstances.
[41]One
also needs to record that human memory of events is usually fallible;
more so when they occurred as long ago as these, and
even more so
when they were played out in such a short space of time.
[42]Against
this background, it is often useful to distinguish between hard fact
and soft fact, and in-between fact. This distinction
helps to accord
appropriate wait to conflicts in evidence when these have to be
resolved.
[43]The
events of the afternoon begin with Mr Mansita, as the plaintiff in my
view correctly pitched. He observes the ten year old
boy, in a hurry,
on the pavement, along Rose Street, still a short distance away from
the traffic light. So driven is the minor
that he does not greet Mr
Mansita, as usually occurs. This first observation, and this first
scene, is what might be described
as a hard fact.
[44]The
second relevant event is Mr Mansita’s observation of the
pedestrians crossing from west to east across Prairie Street,
with
the traffic light green for them. This is an important piece of
evidence and more needs to be said about it. Mr Mansita presence
in
the witness box was justified because he was able to give this
evidence: he was called because he could thereby prove that the
light
was green too for the minor. So he gave this piece of evidence in
chief. I regard this too as a hard fact.
[45]There
was no suggestion by him that the traffic light was then red; or that
the pedestrians had precipitously stepped off the
pavement onto the
tarmac of Prairie Street, while the light was still red, and had then
started to move across before the light
had turned green. His
description of his observation was that of pedestrians normally
crossing an intersection with traffic lights
in their favour.
[46]The
timing of this second observation relative to the first is crucial.
If it occurred at more or less the same time, then the
traffic light
was green for the minor as Mr Mansita saw him hurrying along; and
then there could not have been a time when the
minor waited for the
light to change from red to green.
[47]The
answer lies in the evidence of Mr Mansita himself. He said that his
observation of the crossing pedestrians occurred “almost
simultaneously” with his observation of the minor. This
evidence was proffered in cross-examination, and not when he was
pressed to fix a time-differential between the two observations. In
my view, this evidence too is a hard fact, and thus credible.
[48]The
third relevant observation is that Mr Mansita did not actually
observe the minor cross into the intersection. This is not
contested
by the plaintiff.
[49]The
fourth relevant observation is that the court can accept that traffic
lights have cycles, and that their cycle changes from
green, to
amber, to red; and then back to green. There may be a flicker
interspersed also between green and amber.
[50]Having
regard to these four observations, it is not possible that the minor
actually stopped at the intersection, and waited
for the traffic
lights to turn from red to green. They were already green as he
approached the intersection, and there were people
crossing the
intersection on that green light.
[51]Further
inevitable inferences follow from this probability. Since there were
people crossing Prairie Street, vehicles travelling
from north to
south, as likely did the insured river, would have been faced by red
traffic lights in the way of their progression
down Prairie Street.
And they would have been faced by pedestrians crossing the road in
front of them. This explains the presence
of stationary vehicles in
the first lane of Prairie Street, north to south, as the minor
testified.
[52]That
makes it not impossible but improbable that the insured driver would
have been able to have sped down the second lane across
the
pedestrian crossing, into the intersection. He would have been
confronted by the crossing pedestrians, the red light, and the
stationary vehicles to his left.
[53]Far
more probable, it seems, that the traffic light cycle was changing
from green to amber for pedestrians, and then possibly
to red, as the
insured river was approaching. Far more probable that the insured
driver was observing the changing traffic light
cycle for
pedestrians; and that he was biding his time to cross the pedestrian
crossing just as the light turned favourably green
for him.
[54]
Of course, what this reconstruction is unable to
do, is to tell whether the insured driver actually called it right:
was the traffic
light already green for him, or was it still red, and
still amber or flickering for the minor? And did he therefore still
“jump”
the robot, but as it was about to change from red
to green, rather than as it was about to change from amber to red, as
one also
frequently observes in the streets of Johannesburg?
[55]One
cannot tell, on this evidence. Rather, it seems that the correct
conclusion is the following. The minor most probably did
not cross
into the intersection when the light was still green; it is more
probable that he did so when the light was changing
into amber, or
flickering, on its way to red. But one cannot conclude that it was
already red when he did so. The absence of the
insured driver,
without explanation, rather justifies an inference against him,
namely that his version does not immunise him.
Conclusion on the
cause of the collision
[56]So,
in conclusion, it seems more probable that the in-between scenario
prevailed: the light was changing in the direction towards
red for
the minor; he was in a rush; he skipped across, hoping to make it,
not looking out at all: after all, the first lane vehicles
were still
stationary. In the meantime, the insured driver was biding his
time to cross the moment the light would turn green
for him; but he
called it wrong, just so, and banged across when the light was till
red for him.
[57]On
this view of things, both were to blame; the insured river more than
the minor, because he skipped a red light, and the minor
an amber
one. Both were not keeping a proper look-out. I believe a fair
apportionment in the circumstances is 25/75 in favour of
the minor.
[58]According
I make the following order:
(a)
It is declared that the plaintiff has
locus
standi
to act on behalf of Medi Bless
in this action.
(b)
It is declared that the quantum of the
minor’s claim for damages is to be reduced by 25%.
(c)
The question of costs stands over for
determination once the quantum figures are conveyed to the court.
WHG
van der Linde
Judge,
High Court
Johannesburg
For
the plaintiff: Adv. C. Van der Spuy (083 610 0173)
Instructed
by: Raphael & David Smith Inc.
35
Cradock Avenue
Rosebank
Johannesburg
Tel:
011 447 6570
Ref:
SD/BJ246
For
the defendant: Adv. K.F. Phahlamohlaka
Instructed
by: Maribana Makgoka Inc.
13
th
Floor, Marble Towers
208-212
Jeppe Street
Johannesburg
Tel:
011 333 8533
Ref:
Makgoka/SM/RAF1/000420
Dates
of trial: Thursday, Friday 9 & 10 June 2016
Date
of judgment: Monday, 13 June 2016