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[2017] ZAGPJHC 49
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Ntsele v Road Accident Fund (2015/9589) [2017] ZAGPJHC 49 (1 March 2017)
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REPUBLIC
OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION
JOHANNESBURG
CASE NO.: 2015/9589
Reportable:
No
Of
interest to other judges: No
Revised.
1/3/2017
In
the matter between:
HLEZIPHI
DOVOZA
NTSELE
PLAINTIFF
and
THE
ROAD ACCIDENT
FUND
DEFENDANT
JUDGMENT
Hundermark
AJ:
INTRODUCTION
[1]
This is a delictual claim for damages
by the Plaintiff against the Road Accident Fund as a result of an
accident that occurred 1
September 2013 at about 20h00 on Chris Hani
Road, Soweto, Gauteng Province. The Plaintiff collided with the rear
of a Motor Vehicle
bearing registration letters and number S[…]GP.
These facts are common cause.
[2]
By agreement
between the parties there was an order sought and granted which
separated the issue of liability and quantum and therefore
this court
is only required to decide on the issue of liability.
PLAINTIFF’S
EVIDENCE
[3]
The Plaintiff was
returning home to Lawley from visiting his child in White City,
Soweto riding his motor bike along Chris Hani
Road, which has 2 lanes
in both directions. He was travelling in the left lane at a speed of
less than 60km/h.
[4]
The Plaintiff
confirms that there are street lights and that he had his headlight
on and that there was traffic on the road although
it was not heavy
and that there were vehicles ahead and behind him as well as passing
him.
[5]
He was behind the
motor vehicle with registration SH[…]GP, at a following
distance of 6 – 8 metres, when an unknown
motor vehicle
collided with the rear of his motor bike whereupon he lost control of
his motor bike which zig zagged and he then
collided with the rear of
the aforesaid motor vehicle.
[6]
The offending motor
vehicle shifted past him into the right lane and did not stop after
the collision.
[7]
As a result of the
collision the Plaintiff sustained serious injuries which rendered him
unconscious and he woke up in hospital
a week or 2 after the
accident.
DEFENDANT’S
EVIDENCE
[8]
The Defendant
presented the evidence of Mr Tshabuyo who lived in Chawelo, Soweto
and was employed by EPX Courier Services.
[9]
The evidence of Mr
Tshabuyo was that he was traveling along Chris Hani Road in the left
lane at a speed of less than 30km/h on his
way to purchase
electricity at the garage. He checked his review mirror and saw a
motor bike in the distance and behind the motor
bike were blue lights
far in the distance.
[10]
Upon seeing the
speeding motor bike he changed lanes from the left to the right lane
to avoid an accident but he then noticed the
motor bike behind him in
the right lane and so he then again decided to change lanes and moved
back to the left lane and then when
he went back to the left lane the
motor bike collided with the rear of his vehicle.
[11]
The collision was
of high impact that almost made him swerve into oncoming traffic.
When he got out of the car there was a metro
police car and the
traffic officer said he was chasing the Plaintiff. It was this metro
police officer that took the relevant details
from Mr Tshabuyo.
DISPUTED
FACTS
[12]
There are 2
mutually destructive versions that were placed before this court and
the following are the disputed facts between the
version of the
Plaintiff and the Defendant:
·
The Plaintiff’s version is that
his motor bike was knocked from behind by an unidentified vehicle
whereas the Defendant’s
version is that there was no other
vehicle involved that collided with the Plaintiff’s motor bike.
·
The Plaintiff states that he was
travelling at a speed of 60km/h or less whereas Mr Tshabuyo evidence
is that the Plaintiff was
travelling at a high speed as he was being
chased by the Metro Police and that he (Tshabuyo) changed lanes from
the left lane to
the right lane and then back to the left lane in
order to avoid an accident with the Plaintiff.
ANALYSIS
[13]
Ordinarily,
the party who bears the onus can discharge it only if that party has
adduced credible evidence, particularly where there
are mutually
destructive versions. The assessment of the witnesses and general
probabilities will usually be decisive. Eksteen
AJP in
National
Employers General Insurance v Jagers
[1]
formulated
the following approach when there are mutually destructive versions:
“
It
seems to me, with respect, that in any civil case, as in any criminal
case, the onus can ordinarily only be discharged by adducing
credible
evidence to support the case of the party on whom the onus rests. In
a civil case the onus is obviously not as heavy as
it is in a
criminal case, but nevertheless 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 scene that they do not
favour the plaintiff’s case any
more than they do the defendant’s, the plaintiff can only
succeed if the Court nevertheless
believes him and is satisfied that
his evidence is true and that the defendants version is false.”
[14]
In
the matter of
SFW
Group & Another v Martell et Cie & Others
[2]
the
court expounded the following technique as the basis for resolving
two mutually destructive versions:
“
On
the central issue, as to what the parties actually decided, there are
two irreconcilable versions. So, too, on a number of
I
peripheral areas of dispute which may have a bearing on the
probabilities. The technique generally employed by courts in
resolving
factual disputes of this nature may conveniently be
summarised as follows. To come to a conclusion on the disputed issues
a court
must make findings on
(a)
the
credibility of the various factual witnesses;
(b)
their
reliability; and
(c)
the
probabilities. As to
(a)
,
the court's finding on the credibility of a particular witness will
depend on its impression about the veracity of the witness.
That in
turn will depend on a variety of A subsidiary factors, not
necessarily in order of importance, such as (i) the witness'
candour
and demeanour in the witness-box, (ii) his bias, latent and blatant,
(iii) internal contradictions in his evidence, (iv)
external
contradictions with what was pleaded or put on his behalf, or with
established fact or with his own extracurial statements
or actions,
(v) the probability or improbability of particular aspects of his
version, (vi) the calibre and cogency of his
performance compared to
that of other witnesses testifying about the same incident or events.
As to
(b)
,
a witness' reliability will depend, apart from the factors mentioned
under
(a)
(ii),
(iv) and (v) above, on (i) the opportunities he had to experience or
observe the event in question and (ii) the quality, integrity
and
independence of his recall thereof. 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.
In the light of its assessment of
(a)
,
(b)
and
(c)
the
court will then, as a final step, determine whether the party
burdened with the
onus
of
proof has succeeded in discharging it. The hard case, which will
doubtless be the rare one, occurs when a court's credibility
findings
compel it in one direction and its evaluation of the general
probabilities in another. The more convincing the former,
the less
convincing will be the latter. But when all factors are equipoised
probabilities prevail.”
[15
]
The evidence of the
Plaintiff was of good quality and it was clear and he did not
contradict himself in any material respect having
regard to the
version contained in the pleadings or put to the Defendant’s
witness. He answered the questions put to him
in both evidence in
chief and in cross examination readily and without hesitation
especially in relation to his speed and following
distances.
[16]
The Defendant’s
witness was not a good witness and came across as hesitant and not
candid under cross examination particularly
when he was been cross
examined about where the Plaintiff’s motor bike was positioned
and the distance between of the Plaintiff’s
motor bike at the
time when he changed lanes. He also contradicted himself in evidence
where in evidence in chief he stated it
was only him and Plaintiff on
the road but in cross examination he contradicts this and states that
there were other vehicles in
the right lane.
[17]
In addition, the
evidence of the Defendant’s witness, Mr Tshabuyo, does not
accord with what was pleaded or put to the Plaintiff
in the following
respects:
·
There is no allegation in the
pleadings that the Plaintiff was speeding and/or that he was being
chased by the Metro Police. It
was only pleaded that he was negligent
in not wearing a helmet or properly fastening the helmet;
·
It was put to the Plaintiff in cross
examination that he was speeding but it was not put to the Plaintiff
that he was being chased
by the Metro Police.
[18]
Furthermore, the
Metro Police Officer, who arrived on the scene and recorded Mr
Tshabuyo’s details was not called to corroborate
his evidence
especially in relation to whether they had been pursuing the
Plaintiff or not. This court must therefore conclude
that this aspect
of Mr Tshabuyo was a recent fabrication.
[19]
In considering the
probabilities or improbabilities of the two versions as presented, it
has to be considered how a motor vehicle
could come close enough to
the Plaintiff without the Plaintiff being able to accelerate away
from such a vehicle. This must however
be juxtaposed to the Plaintiff
focusing on the vehicle driven by Mr Tshabuyo’s which was in
front of him.
[20]
It was argued by
the Defendant that the speed at which the accident is alleged to have
occurred is improbable having regard to the
injuries that the
Plaintiff sustained as well as the damages caused to the vehicle
driven by Mr Tshabuyo.
[21]
As
decided and emphasized in
Commissioner
for Inland Revenue v Pick ‘n Pay Wholesalers (Pty) Ltd
[3]
at
469F-G:
”
Human
memory is inherently and notoriously liable to error. One knows that
people are less likely to be complete and accurate in
their accounts
after a long interval than after a short one. It is a matter of
common experience that, during the stage of retention
or storage in
the memory, perceived information may be forgotten or it may be
modified, or added to, or distorted by subsequent
information. One is
aware too that there can occur a process of unconscious
reconstruction.”
The
Plaintiff’s evidence must therefore be seen in the light of the
fact that when he gave evidence more than 2 years that
had passed
since the accident as well as in the context of the severe injuries
that the Plaintiff sustained in the accident, which
would have been
traumatic for the Plaintiff.
[22]
Then one must
consider the probabilities or improbabilities of the Defendant’s
version that the Plaintiff was travelling at
a high speed as he was
being chased by the Metro Police and that Mr Tshabuyo who was
travelling at 30km/h in the left lane would
find the need to execute
a manuvoure of changing lanes, not one but twice, especially when
there were, according to his version,
no other vehicles in the right
lane which would restrict the Plaintiff from passing without
incident. It is improbable that this
manuvoure was required to avoid
an accident as put forward by the Defendant’s witness.
[23]
Having regard to
the principles as set out above as well as the analysis of the
evidence presented by both parties and weighed against
the
probabilities of the various versions, I find that the Plaintiff has
discharged the onus to prove his case on a balance of
probabilities
and this court accepts that the Plaintiff’s version is probably
true and that the version of the Defendant
is probably mistaken or
false.
[24]
Even if this court
were to have regard to the Defendant’s version, it would have
to be found that Mr Tshabuyo, while travelling
at 30km/h executed
what must be said to be a dangerous manuvoure, not once but twice, by
changing lanes when he on his own evidence
he did not know where the
Plaintiff was at the time when he changed lanes first from the left
to the right lane and then back to
the left lane.
ORDER
As a result the following
order is made:
1. That the unknown
driver of the unidentified motor vehicle was the sole cause of the
collision and that the Defendant is accordingly
liable for 100% of
the Plaintiff’s agreed or proven damages; and
2. That the Defendant
must pay the Plaintiff’s cost of suit.
___________________________
P
Hundermark
Acting Judge of the High
Court
Gauteng Local Division,
Johannesburg
Heard:
23 November 2015
Judgment
delivered: 1 March 2017
Appearances:
For
Plaintiff: Adv Makeleni
Instructed
by: Mchunu Attorneys
For
Defendant: Adv. R Saint
Instructed
by: Mothle Jooma Sabdia Incorporated
[1]
1984 (4) 437 (E)
at 440D-G
[2]
2003 (1) SA
11(SCA)
at 14I to 15D
[3]
1997 (3) SA 453
(A)