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[2017] ZAGPJHC 194
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Swart v van der Elst Attorneys (2014/08898) [2017] ZAGPJHC 194 (15 May 2017)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
LOCAL DIVISION, JOHANNESBURG)
CASE NO: 2014/08898
Not
reportable
Not
of interest to other judges
Not
revised
15
May 2017
In
the matter between
ANDRE
SWART
PLAINTIFF
And
VAN DER ELST
ATTORNEYS
DEFENDANT
JUDGMENT
NYATHI
AJ:
INTRODUCTION
AND BACKGROUND
(1)
The genesis of this matter is a motor vehicle
accident that occurred during the early hours of the 16
th
November 2008 at or near Victor Road in Brakpan North.
(2)
The plaintiff was the driver of the motor vehicle,
an olive green metallic coloured BMW 323i with registration
particulars JZM […]
GP, which was involved in the collision.
The plaintiff collided with a tree situated on the pavement adjacent
to Victor Road between
house number 17 and 19.
(3)
It is common cause that the plaintiff sustained
serious bodily injuries as a result of the collision.
(4)
Plaintiff alleges that the Road Accident Fund was
liable in terms of the provisions of section 17 of the Road Accident
Fund
Amendment Act (Act 19 of 2005) to compensate him for the
aforesaid injuries and subsequent damages.
(5)
The defendant is a firm of attorneys that formerly
acted on behalf of the plaintiff in prosecuting a claim against the
Road Accident
Fund. This was consequent to the accident at issue in
this trial.
(6)
A contract of mandate was thus entered into
between the plaintiff and the defendant.
(7)
Plaintiff now alleges that in breach of the
aforesaid mandate agreement, the defendant wrongfully neglected to
lodge his claim within
the two year prescriptive period from the date
of the accident in terms of section 17(1)(b)
of the Road Accident Fund Amendment
Act 19 of 2005.
(8)
The prescriptive period being such because, so
alleges plaintiff, the accident arose in that shortly before the
crash he had been
pursued by an unknown driver of an unidentified red
Toyota Conquest motor vehicle which had "clipped" the rear
of his
BMW, leading him to lose control. Plaintiff's version,
in short, is that the collision was caused by an unidentified second
vehicle.
(9)
It is common cause that if there was no second
vehicle involved in the collision, plaintiff would not have qualified
for compensation
in terms of the Road Accident Fund.
(10)
The
process to determine liability for professional negligence is
therefore a two-stepped enquiry. Namely, the plaintiff must present
credible evidence that on a balance of probabilities he would have
succeeded in proving a claim against the Road Accident Fund.
In other
words, but for the alleged negligence which deprived him of his
claim, he would have had a valid claim. If he does not
succeed in
showing a valid claim, "…the defendant's alleged
negligence would be negligence in the air."
[1]
(11)
Once plaintiff overcomes this hurdle then
the determination of whether or not there was professional negligence
may follow. If the
plaintiff is unable to clear the first hurdle, the
matter ends there as it will serve no purpose to take the next step.
(12)
The parties agreed to a separation of the
issues prior to the commencement of the trial.
PLAINTIFF'S
EVIDENCE
(13)
The sole witness for the plaintiff was Mr.
André Swart himself. He testified as follows:
(14)
That he worked a nightshift during the
night of 15/16 November 2008 and t
hat he
worked until approximately 05h00 in the morning.
(15)
That he had to travel approximately 30
kilometres from his place of work to his house situated in Victor
Road, Brakpan.
(16)
He explained in detail to the Court the
usual route that he drove. He referred specifically to turning off
the N17 main road into
Brakpan. He testified that he noticed at
this intersection two vehicles, one of which was a red Toyota
Conquest.
(17)
He continued to explain exactly the lay-out
of the different traffic lanes as one enters Brakpan exiting the N17
main road.
(18)
He narrated in detail about which traffic
lights were green and which ones were red. He related when and
at what stage of
his travel he picked up speed and slowed down.
(19)
He recalled in detail which traffic lights
he ignored and skipped.
(20)
He explained that he noticed that the
purported red Toyota Conquest followed him.
(21)
He declared that he became concerned for
his safety because:
i.
His uncle was recently hi-jacked and shot;
ii.
That he had just sold his own motor vehicle
and had the cash received from the purchaser on his person;
(22)
He conceded however that nobody knew of the fact
that he had the cash on his person.
(23)
He stated that he turned out of Hospital
Road into the road which he identified as “
Alice
”
Road; Whereafter he turned into Victor Road. At that stage he was
travelling at approximately 100 – 120 km/h but had
to slow down
to make the turn into Victor Road. He decreased his speed to
approximately 40-50 km/h. He skidded across the
concrete corner
epavement where he lost control of the vehicle, pulled the steering
wheel to the right and collided with the tree.
(24)
His initial testimony was that he was
travelling at approximately 40 – 50 km/h at the time when he
took the last corner before
losing control of the vehicle. He is
uncertain whether the alleged red motor vehicle collided with the
rear end of his car. According
to him, the red car must have been
travelling at a distance of 1 meter behind the plaintiff's car.
(25)
He avers that he did not complete the
documents and/or affidavit that appear on paginated pages 1 to 6 of
the trial bundle (Exhibit
A), but that these documents were completed
in part by him and in part by the defendant’s representatives.
(26)
He contended specifically that the
description of the collision as appears on paginated page 3 as well
as the sketch plan were not
filled in or completed by him.
(27)
He further recounted that the narrative of
the motor vehicle collision forming part of the affidavit that
appears on paginated pages
4 and 5 were not filled in or completed by
him; and that the contents in respect of the description of the
collision, as well as
the sketch plan, were left blank at the time
that he commissioned the affidavit before the South African Police
Services.
(28)
He declared quite emphatically, that the defendant
never contacted him to explain why his claim was repudiated by the
Road Accident
Fund. He denied to have undertaken to provide the
defendant with the registration particulars of the alleged second
vehicle involved
in the collision.
(29)
From the cross-examination of Mr Swart the
following evidence emerged:
a.
Mr Swart explained that he was afraid that
the occupants of the unidentified, red Toyota Conquest intended to
hi-jack or rob him.
b.
That he therefore decided to drive at high
speed to his house situated at No 9 Victor Road, where, according to
him, there were
three male persons, who would be able to assist him.
c.
He conceded that he could easily have
driven to the Brakpan Police Station that was situated approximately
one block away from the
main road down which he travelled.
d.
That he could have phoned for help using
his cell phone but that he did not do so.
e.
That on the probabilities all the persons
at his house to which he was speeding were fast asleep, yet he did
not phone to wake them
up and warn them of his impending arrival.
He could not explain how these persons would have been able to
protect him against
what he perceived to be a life threatening
situation.
f.
In light of Mr Swart’s testimony in
chief that he could recall which traffic lights, at the different
intersections through
which he passed were either red, yellow or
green (in most instances), he was invited to testify to the state of
these traffic lights
during the preceding morning that he travelled
from work. He accepted this challenge and attempted to convince
the Court
that he could recall which lights were green and which were
red on the preceding day as well.
g.
He was hereafter invited to recall which
traffic lights were red and which were green on the Friday preceding
the collision.
He again attempted to convince the Court that
most of the lights would have been green since he travelled the route
in the early
hours of the morning.
h.
On behalf of the defendant, it was pointed
out to Mr Swart that the time of the day was irrelevant with regard
to whether traffic
lights are red or green. He conceded that he had
just assumed what the colours of the different traffic lights were.
i.
He could not explain why he testified in
chief to the colour of the specific intersections and how it would be
possible for him
to remember such detail more than eight years after
the events.
j.
He could further not explain to the Court
why it was not possible then for him to remember the following
important detail:
i.
What the surname was of the person to whom
he sold his car as alleged?
ii.
What the registration plate details were of
the motor vehicle he had sold?
iii.
How much money he received from the
aforesaid motor vehicle sale? He offered differing versions. It
could either have been
R25, 000.00 or maybe R26, 000.00? Whereafter
he settled on a figure of R25, 500.00.
iv.
He could not remember how many occupants
were inside the alleged red Toyota Conquest.
v.
He could not provide the registration
number of the Toyota Conquest despite the fact that this motor
vehicle travelled behind him
for several kilometres and his attention
was focused on the car.
vi.
He could not provide a description of the
driver of the motor vehicle save for the fact that he was black.
vii.
He could not provide any detail of the
clothes or other distinguishing features of the occupants or the
motor vehicle itself.
viii.
He incorrectly identified his own motor
vehicle as being a BMW “
325
”
whilst it was in actual fact a BMW “
323
”.
ix.
He incorrectly referred to the road from
which he turned into Victor Road as Alice Road whereas it is in
actual fact Du Preez Road.
x.
He was not certain whether the alleged
unidentified vehicle collided with or clipped his vehicle.
k.
It was put to Mr Swart that he testified to
a selective memory of certain facts. He could not explain why
he could remember
certain detail clearly but other important facts he
could either not remember or chose not to testify to.
l.
He could not provide any explanation why he
did not inform any of the policemen or emergency personnel on the
scene of the collision
of the fact that he was a victim of an
attempted hi-jacking or why he did not inform them of the large
amount of cash on his person.
m.
He did not dispute that one would have
expected him to have made mention of the attempted hi-jacking and
cash to the police at the
scene.
n.
He could not dispute the testimony of the
defendant’s witnesses; being the police officers, Mr Roderick
Underhay and Ms McKenzie.
They stated that:
i.
As police officers attending the scene,
they did not observe any physical features indicative of a second
motor vehicle being involved
in the collision;
ii.
That they did not notice any damage to the
rear of the plaintiff’s motor vehicle which would indicate a
rear-end collision;
iii.
That they did not receive any communication
or indication of an attempted hi-jacking or any other criminal act
from the plaintiff
or anybody else.
o.
Despite Mr Swart’s
testimony-in-chief, he conceded that consultations were conducted
with him by the defendant’s Ms
Raath in respect of the merits
of his claim (i.e. how the collision occurred).
p.
He denied, despite the consultation notes
by Ms Raath indicating the contrary; that he undertook to provide her
with the registration
particulars of the alleged unidentified motor
vehicle.
q.
Most surprisingly, Mr Swart conceded at the
end of the cross-examination that he cannot even recall whether the
alleged unidentified
motor vehicle followed him into Victor Road or
not. He conceded that he does not even know if a red motor
vehicle turned
into Victor Road or carried on straight down Du Preez
Street.
r.
Regarding the sizable sum of money that had
been in his possession earlier, he told the court that he found it in
the drawer next
to his hospital bed some days later after he had
regained consciousness.
(30)
At this point, I have to turn to the
requisite onus of proof and the probabilities apparent
in this matter.
(31)
As
Van Oosten J held in
Masingi
v Road Accident Fund
[2]
,
"
The
credibility of the witnesses is decisive to a determination of the
dispute: the plaintiff, in order to succeed, must discharge
the
burden of proof that his version is true and that of the insured
driver false (see
Stellenbosch
Farmer’s Winery Group Ltd and another v Martell et CIE and
others
2003
(1) SA 11
(SCA);
Selamole
v Makhado
1988
(2) SA 372
(V);
Mabona
and
Another
v
Minister of Law and Order and others
1988
(2) SA 654
(SE); and
Ramakulukusha
v Commander, Venda National Force
1989
(2) SA 813
(V);"
(32)
Having regard to the totality of the
evidence in this matter, I come to the conclusion that the plaintiff
has discharged the burden
of proof that his version is true and that
of the defendant false.
(33)
The
various aspects of the plaintiff's version, when viewed in totality
and contrasted with the defendant's version appear to be
a
fabrication; to put it lightly. The plaintiff suffered serious
injuries which needed and will no doubt continue to need expensive
medical treatment. In the Masingi v. RAF matter already referred to
above, Van Oosten J said, in similar circumstances, "The
possibility of recent fabrication, having regard to the plaintiff’s
pecuniary interest in the matter, accordingly, cannot
be
discounted."
[3]
(34)
I accordingly find that the plaintiff's
negligence was the sole cause of the collision.
(35)
In the result the
plaintiff’s claim is dismissed with costs.
____________
JS
Nyathi
Judge
of the High Court
Date
of hearing: 16-18 May 2017
Date
of judgment: 23 July 2017
Counsel
for plaintiff: Adv D.A. Louw
Instructed
by:
Barbara
Cheiman Attorneys
152
Beyers Naudé Drive
Roosevelt,
Northcliff, Johannesburg
Tel:
(011) 782-4837
Fax:
(011) 782-2402
Ref:
MS B CHEIMAN/rn/S182J
Counsel
for defendant: Adv J.P. Van den Berg
Instructed
by: GILDENHUYS MALATJI INC.
C/O
SWANEPOEL ATTORNEYS
Schreiner
Chambers
17
th
Floor, No 94 Pritchard Street
JOHANNESBURG
Tel:
(012) 483-8600 & Fax (012) 482-8601
Ref:
JAQUES SWANEPOEL/MP
[1]
Rampai J, in Mlenzana v. Goodrich and Franklin Incorporated
Unreported case No 4423/2008 FSHC
[2]
Gauteng Local Division, Johannesburg Case No: 139004/12 delivered on
15 October 2013. also [SAFLII ZAGPJHC/2013/255.pdf]
[3]
Masingi v. Road Accident Fund 2013