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South Africa: South Gauteng High Court, Johannesburg
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[2016] ZAGPJHC 241
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Nkwanyana v Road Accident Fund (10937/15) [2016] ZAGPJHC 241 (9 September 2016)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 10937/15
DATE:
9 SEPTEMBER 2016
In
the matter between:
EPHRAIM
NKWANYAN
.................................................................................................
APLAINTIFF
And
ROAD
ACCIDENT
FUND
...............................................................................................
DEFENDANT
J
U D G M E N T
COLLIS
AJ:
INTRODUCTION
[1]
The plaintiff, an adult male has instituted a damages action against
the defendant for certain bodily injuries he sustained
in a motor
vehicle collision on 15 September 2012. At the time of the collision,
he was a driver of a motor vehicle bearing registration
letters and
numbers CA 4…… travelling on R101 Du Toits Kloof Pass,
when an unknown motor vehicle travelling behind
him, overtook him and
came to a sudden halt in front of the Plaintiff’s motor
vehicle.
[2] In the
particulars of claim at paragraphs 5 and 6 thereof, the plaintiff
alleged as follows:
“
5.
The sole cause of the accident was solely caused by the driving of
the driver of the unknown vehicle in that:
5.1
He applied brakes in front of a moving traffic for no reason;
5.2
He had no due regard to other road users;
5.3
He failed to adhere to traffic rules;
5.4
He failed to avoid the occurrence of the collision, where by the
reasonable care and skill he ought to have done so.
6.
As a result of the collision, the Plaintiff sustained bodily injuries
as follows:
6.1
Bilateral tibia/ fibula fracture;
6.2
Right clavicle fracture;
6.3
Degloving injury right forearm;
6.4
Poly trauma.”
[3] In its plea the
defendant denied negligence on the part of the unidentified insured
driver and in paragraph 4 thereof, specifically
pleaded the
following:
“
4.1
The allegations contained herein are denied as if specifically denied
as if specifically traversed and in particular the Defendant
denies
that the said unknown driver was negligent either as alleged or at
all.
4.2
The Defendant avers that the collision was caused by the sole
negligence of the Plaintiff who was negligent in one or more of
the
following respects:
4.2.1 He failed
to keep a proper lookout;
4.2.2 He drove at
an excessive speed in the circumstances;
4.2.3 He failed
to keep his vehicle under control;
4.2.4 He failed
to apply the brakes of his vehicle timeously or at all;
4.2.5 He failed
to pay due regard to other road users and in particular the said
insured motor vehicle;
4.2.6
He failed to so as to avoid the collision when by the exercise of
reasonable care he could and should have done so.”
[4]
During the pre-trial, which minutes were filed before court, the
parties had agreed that the issue of merits and quantum will
be
decided separately in terms of Rule 33(4). At the commencement
of the proceedings the parties applied for and the court
granted such
separation.
THE DISPUTE
[5]
The matter comes before me for the determination of the
liability
and in the event of the plaintiff being successful on the merits, the
trial on quantum is to be postponed
sine
die.
THE EVIDENCE
[6]
The plaintiff, Mr Mandla Ephraim Nkwanyana testified that on 15
September 2012 he was driving a goods truck along the R101 Du
Toits
Kloof Pass, Cape Town. At the time of the collision he was employed
as a driver by Zan Transport. The area that he was travelling
in, he
described as mountainous and the road that he was travelling on as a
tarred road with two lanes. As he was driving on a
downhill a vehicle
then came at a high speed from behind, overtook him and immediately
then applied its brakes in front of him
almost coming to a complete
stop. He testified that there were two occupants inside this vehicle
and one of them then waved his
hands and this vehicle then switched
on its hazards. His first thought was that the occupants of the
vehicle were trying to highjack
him. He then realised that he would
be involved in a collision and in an attempt to avoid the collision
he swerved to the right.
He then lost control of the truck and it
overturned. He described the truck as consisting of a horse and
trailer, with the horse
approximately 5 metres long and the trailer
approximately 12 metres long.
[7]
During cross examination he further testified that as this motor
vehicle came in front of him and applied its brakes, he also
applied
the brakes of his truck in order to avoid colliding with this motor
vehicle. Furthermore, that as the truck lost control
it overturned
and landed on its side outside of the road surface. This then in
essence was his evidence.
[8]
The plaintiff then closed his case.
[9]
The defendant closed its case without tendering any
viva
voce
evidence.
ON MERITS
[10]
The plaintiff’s evidence was that the collision occurred as he
was in the process of avoiding colliding with a vehicle
which had
overtaken him and came to a standstill in front of him. This
portion of his evidence is uncontradicted as no evidence
in rebuttal
was presented by the defendant.
[11]
In his Heads of Argument, counsel acting on behalf of the defendant
submitted that the plaintiff contradicted himself by testifying
that
the collision occurred on a straight stretch of the road whereas the
accident report depicts that the collision occurred where
the road
was making a curve. This description of the road depicting the scene
of the collision (was given to the author of the
report by the
plaintiff) and is more probable with the contention by the defendant,
that the plaintiff lost control of his truck
where the road was
curving and he was descending and that no other vehicle was present
at the scene. The plaintiff however when
confronted with this
proposition, was adamant that the collision occurred before the road
was making a curve. Furthermore, that
the failure by the plaintiff to
mention in evidence in chief that he also applied his brakes in
addition to swerving to his right
in order to avoid the collision,
ought to be construed by the court that the plaintiff made an
untruthful statement for which the
court should draw an adverse
inference against him. Similarly, when the plaintiff was confronted
with this aspect of his evidence
being omitted, he testified that he
was not specifically asked as to whether he had applied his brakes
and that it follows that
he would have applied his brakes under the
circumstances. In addition to the above, the plaintiff’s
inability to estimate
the time it took when he first noticed the
other vehicle overtaking him, to the time that he lost control, is
indicative of the
fact that there was no other vehicle present on the
day.
[12]
The plaintiff conceded under cross-examination that he gave the
police a statement which was recorded in the accident report.
Counsel
representing the defendant however failed to confront the plaintiff
with any other contradictions contained in the accident
report.
Although, the accident report under the heading ‘Description of
the accident’ makes no mention of another vehicle
overtaking
the plaintiff and braking in front of him resulting in the plaintiff
taking evasive action in order to avoid a collision.
In the absence
thereof, this court cannot merely reject the plaintiff’s
evidence in the absence of any rebuttal evidence.
[13]
In the result I find as regards the liability, that the defendant is
held liable to compensate the plaintiff 100% of such damages
as the
plaintiff is able to prove as a result of the collision which
occurred on 15 September 2012.
ORDER
[14]
As a consequence, the following order is made:
14.1
The defendant shall pay the plaintiff 100% of the plaintiff’s
agreed or proven damages;
14.2.
The trial on quantum is postponed
sine die
;
14.3
The defendant shall pay the plaintiff’s costs for the trial on
the merits on a high court scale.
C.J COLLIS
ACTING
JUDGE GAUTENG LOCAL DIVISION, JOHANNESBURG
APPEARANCES:
Counsel for the
Plaintiff : ADV. B.L.NGUBANE
Instructed by :
MKHABELA INCORPORATED
Counsel for the
Defendant :ADV. M.H.MOKALE
Instructed by
:MOLEFE DLEPU
Date of Hearing
:29 JULY 2016 & 4 AUGUST 2016
Date
of Judgment :9 SEPTEMBER 2016