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[2018] ZAGPJHC 51
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Legodi v Road Accident Fund (10078/2015) [2018] ZAGPJHC 51 (5 April 2018)
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Certain
personal/private details of parties or witnesses have been
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REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 10078/2015
Not
reportable
Not
of interest to other judges
Revised.
20/3/2018
In
the matter between:
DIMAKATSO
MIRRIAM
LEGODI
PLAINTIFF
and
ROAD
ACCIDENT
FUND
DEFENDANT
JUDGMENT
MOOSA
AJ
:
INTRODUCTION
[1]
The Plaintiff herein is Dimakatso Mirriam Legodi, an adult female
with full legal capacity of […] Zone […], Extension
3,
Sebokeng who claims damages in terms of the Road Accident Fund Act
[1]
for an amount of R 1 400 000.00 (one million four hundred thousand
rand).
[2]
In
casu,
she
sues the Road Accident Fund in her personal capacity as a result of
injuries sustained during a collision on 11 June 2014 at
approximately 18h45 on Frikkie Meyer Boulevard, Boipatong,
Vanderbijlpark.
[3] Pursuant to a judicial pretrial
conference held on 19 May 2017, the matter was set down for hearing
on 13 June 2017 in respect
of the merits only, and that the quantum
stand over for determination at a later stage. Accordingly, the trial
proceeded in respect
of defendant’s liability.
ISSUES
NOT IN DISPUTE
[4]
The plaintiff’s identity as alleged in paragraph 1 of the
plaintiff’s particulars of claim and the Defendant’s
citation are admitted.
[5]
The further detail of the defendant as alleged in paragraph 1 and 2
of the plaintiff’s particulars of claim read together
with the
allegations as set out in paragraph 1 of the defendant’s plea.
[6] The jurisdiction of this court to
adjudicate the plaintiff’s action.
ISSUES
IN DISPUTE
[7]
The occurrence of the collision on 11 June 2014, as alleged by the
plaintiff in paragraph 5 of her particulars of claim as follows
[2]
:
7.1 “The
plaintiff was travelling northbound on the left hand side lane of a
double lane road being Frikkie Meyer Boulevard;
7.2 An unknown person (hereinafter
referred to as the “insured driver”) and insured driver
in control of an insured
motor vehicle bearing unknown registration
number and letters, namely a Nissan truck (hereinafter referred to as
“the insured
motor vehicle”), was travelling in the right
hand side, travelling in the same direction as the plaintiff;
7.3 A group of dogs
were running along the Boulevard and entered the insured driver’s
lane of travel. The insured driver swerved
into the Plaintiff’s
lane of travel to avoid a collision with the dogs;
7.4 The plaintiff
swerved to avoid the insured motor vehicle and as a direct result
thereof the plaintiff lost control of the vehicle;
7.5 As a result of
the accident, the plaintiff suffered serious bodily injuries.”
[8]
The negligence of the insured driver as set out in paragraph 6 of the
plaintiff’s particulars of claim, as to whether
or not the
driver of the insured motor vehicle was solely negligent in one or
more of the following ways
[3]
:
8.1 failing to keep
a proper lookout;
8.2 failing to
exercise the necessary control of the insured vehicle;
8.3 driving the
insured vehicle at an excessive speed under the circumstances;
8.4 failing to take
steps to guard against the accident occurring which, by the exercise
of reasonable care and caution, the insured
driver could have and
ought to have avoided;
8.5 driving the
insured vehicle without due regard and consideration for the safety
of other road users and pedestrians, specifically
those of the
plaintiff;
8.6 failing to
exercise a level of care becoming of a reasonable person in the
circumstances;
8.7 driving into
the direction of oncoming traffic;
8.8 failing to use
his breaks timeously; and
8.9 causing the
vehicle he was driving to swerve into the plaintiff’s lane of
travel.
[9]
In essence, the plaintiff alleges from the pleadings that the
collision was caused solely by the negligence of the driver of
the
insured vehicle. The defendant disputes the aforementioned
allegation
[4]
and the plaintiff is accordingly called upon to prove all the aspects
of the collision.
[10] In order to determine whether the
plaintiff succeeded in discharging the onus, it is apposite to
consider the factual matrix
upon which the matter is predicated. The
plaintiff is the only witness who testified in the trial.
EVIDENCE
[11]
The plaintiff testified that on 11 June 2014 at approximately 18h45
she was proceeding along Frikkie Meyer Boulevard, Vanderbijlpark
on
her way home from work, whilst driving a Toyota Yaris motor vehicle
with registration number BF 60 FG GP. She is familiar with
the area
and travels on the aforesaid road on a daily basis. I will now
attempt hereunder to coherently summarise the plaintiff’s
disjointed recollection of the actual events regarding the collision.
[12]
She did not observe any motor vehicles travelling in front of her at
the time. She however observed the lights of a truck in
her rearview
and side mirror, and observed further that it was swerving from side
to side; it subsequently ended up in the right
lane. She observed
“Nyope guys” on the rear of the insured vehicle and they
were offloading the scrap whilst it was
travelling parallel to her.
She testified that the insured vehicle had been continually swerving
from side to side whilst it was
approaching her from the rear. It
appeared to her that the insured driver was attempting to shake off
the “Nyope guys”
from the rear of his truck. She was
nervous of the scrap metal that was coming off the insured vehicle
and continued driving. At
this stage, the insured driver hooted at
some dogs that were on his lane. The insured vehicle swerved into her
lane and kept on
driving. She testified that it had come very close
to her, but there was no contact between the vehicles. She had
observed that
the insured driver was attempting to shake off the
“Nyope guys” off the rear of the truck whilst hooting at
the dogs.
She subsequently lost control of her motor vehicle, as a
result of the insured vehicle coming into her path of travel and
swerving
into her lane.
[14]
During cross-examination the plaintiff admitted that English is not
her first language and that the motor vehicle that she
was driving at
the time of the accident belonged to her employer. She conceded that
she obtained knowledge to claim monies from
the Road Accident Fund,
as a result of the death of her brother in law pursuant to a
motor vehicle accident. She denied that
she was prompted with a
version from her legal representatives, in order to ensure that she
would be successful with her claim
against the defendant.
She
admitted that she had become nervous at some stage when she observed
the “Nyope guys” despite the fact that her
vehicle was
not being targeted by the aforementioned. She admitted that she
observed a crime being committed and agreed that there
was no scrap
on her motor vehicle and consequently accelerated her motor vehicle
when the insured vehicle drew closer to her.
[15]
She admitted that she failed to mention the presence and involvement
of the “Nyope guys” to the defendant’s
representatives, when she deposed to her affidavit
[5]
,
and whilst her memory of the incident was still fresh. In paragraph 4
of the said affidavit, she states that: “
The
insured driver was travelling in the same direction behind my motor
vehicle in the right hand lane when I noticed that he is
travelling
in both the lanes. I saw a pack of dogs crossing the road myself and
the driver of the truck started to hoot for the
dogs
to move out of the way. The truck then came into my lane of travel in
doing so I tried to avoid the collision and served (sic)
to the left
causing me to lose control of the motor vehicle and then the motor
vehicle rolled.”
[16]
She admitted that the version regarding the “Nyope guys”
was not contained in her affidavit and neither in her
statement to
the police
[6]
,
the contents of which she was satisfied with, at the time of making
such statement.
[17]
She further conceded that the version regarding the “Nyope
guys” was not contained in her affidavit of 06 August
2014,
which was made in pursuance of her claim against the defendant. In
addition, thereto she also conceded that the aforementioned
version
was also not contained in the hospital records, when she was admitted
to hospital.
[7]
She stated that she had told the hospital staff that the other
vehicle was a truck, despite the fact that in her statement to the
hospital staff she mentions the other vehicle involved being a car.
[18]
She denied that the cause of the collision was as a result of her
avoiding the dog that ran into her path of travel and further
denied
that she had not kept a proper lookout at the time in question.
[19]
She admitted that her attorneys had helped her with a strategy in
order to “win” this case. Further admitting that
the
particulars of claim did not mention the fact that there were dogs in
her path of travel.
[20]
That in essence concluded the evidence for the plaintiff and her case
was closed.
[21] The defendant had no witnesses to
call and accordingly the case for the defendant was closed.
EVALUATION
[22]
It is common cause that on 11 June 2014 at 18h45 the plaintiff was
the driver of a motor vehicle with registration number […]
GP,
which was travelling along Frikkie Meyer Boulevard, Vanderbijlpark
when she subsequently had an accident.
[23]
However, the dispute simply is whether there was any negligence on
the part of the insured driver and whether the insured was
causally
negligent; or whether the plaintiff was solely negligent or
contributory negligent.
[24]
The plaintiff in her particulars of claim pleaded that she was
travelling alongside an insured vehicle, which was on the right-hand
lane travelling in the same direction as the plaintiff. Further,
pleading that a group of dogs were running along the boulevard
and
entered the insured driver’s lane of travel. The insured driver
swerved into the Plaintiff’s lane of travel to
avoid a
collision with the dogs
[8]
.
The plaintiff pleaded that the insured driver swerved into the
plaintiff’s lane of travel to avoid a collision with the
dogs
and she lost control of the vehicle
[9]
.
[25]
The plaintiff submitted hospital records at the time of the lodgment
of the claim with the defendant on 21 October 2014
[10]
.
The version of the Plaintiff as depicted in the hospital records
reads as follows: “
A
female patient Mrs Legodi M.D of 30 years 11 months is admitted in
the unit from casualty. She is a patient of Agyebi diagnosed
with MVA
with head injury. Patient had an accident when she came from work at
Sikreyer Street (sic) here in Vanderbijlpark. Patient
was trying to
avoid a dog in the road and the dog did not get away. Then the other
vehicle was coming at the back of her car and
she went off the road
trying to avoid the other car and the dog. The car rolled with her
and she was unconscious during the whole
scene. When she woke up she
saw moving people and cars. Patient was well orientated when coming
in
the unit. Patient said she was wearing a seatbelt and was driving the
car alone”
.
[26] The plaintiff subsequently made a
statutory affidavit dated 06 August 2014, approximately two months
after the accident and
deposed as follows:
“
1. I am an
adult female, and confirm herewith that the facts contained in this
affidavit are to the best of my knowledge both true
and correct.
2. On the 11
th
of June 2014
at approximately 18h45, I was involved in an accident in which I was
the driver of the motor vehicle with registration
letters […]
GP.
3. The registration number of the
vehicle being driven by the insured driver at the time of the
accident is unknown to me.
4. I was travelling north on Frikkie
Meyer Boulevard from Vanderbijlpark to Sebokeng. The insured driver
was travelling in the same
direction behind my motor vehicle in the
right hand lane when I noticed that he is travelling in both of the
lanes. I saw a pack
of dogs crossing the road myself and the driver
of the truck started to hoot for the dogs to move out of the way. The
truck then
came into my lane of travel in doing so I tried to avoid
the collision and served (sic) to the left causing me to lose control
of the motor vehicle and then the motor vehicle rolled.
5. There was nothing I could do to
avoid the collision.
6. I sustained multiple injuries as a
result of this accident for which I received treatment in Emfuleni
Mediclinic.
7. This accident has been reported to
the South African Police Service.
8. This is all I
can declare at this time regarding the collision.”
[27]
It is trite that the onus rests squarely upon the plaintiff to prove
that the insured driver’s negligent conduct caused
the harm
giving rise to the claim
[11]
.
In this regard, it is clear that the only evidence that this court
has to solely rely upon is that of the plaintiff, regarding
the
accident and the negligence of the insured driver. The plaintiff is a
single witness and accordingly the necessary caution
must be applied,
as I am required to, when evaluating the evidence of a single
witness. For judgment to be given for the plaintiff
the court must be
satisfied that sufficient reliance can be placed on her story for
there to exist a strong possibility that her
version is the true
one
[12]
.
[28]
To this end, I have carefully applied my mind and taken due
cognisance of the fact that the viva voce evidence of the plaintiff
in court is diametrically opposed to the pleadings in her particulars
of claim; the evidence that is contained in the hospital
records; the
affidavit made to the South African Police Services and the affidavit
made by the claimant in pursuance of her claim
against the defendant.
What
is telling is the fact that the only time one becomes aware of the
direct involvement of the “Nyope guys” prior
to the
accident, is at the time when the plaintiff tendered her evidence
during the trial. In addition, her version of how the
accident
occurred and the involvement of the insured vehicle is inconsistent
with the various affidavits and documents of record
presented during
the trial. It is clear in my mind that the plaintiff is attempting to
colour and bolster the evidence in respect
of her claim against the
defendant. This fact is clearly telling on the credibility of the
plaintiff and ultimately affects the
weight that must be attached to
her evidence.
[29]
I find the numerous serious discrepancies fatal to the case of the
plaintiff and accordingly in my view, these should and must
sound the
death knell of the plaintiff’s case. I am unable to place any
reliance on the evidence of the plaintiff regarding
the manner in
which the accident occurred; the involvement of the insured truck and
insured driver; and consequently the negligent
conduct of the insured
driver. I accordingly find that the evidence of the plaintiff is not
satisfactory in all material respects
and stands to be rejected.
[30]
After carefully considering the totality of the evidence before me,
having due regard to the applicable law and the necessary
caution to
be applied regarding single witnesses, I am driven to conclude that
the Plaintiff has failed to discharge the burden
of proof that her
version is true and has failed to establish negligence on the part of
the defendant
[13]
.
ORDER
[31]
In the result, I make the following
order:
The Plaintiff’s claim is
dismissed with costs.
________________________________
C I MOOSA
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION
JOHANNESBURG
Counsel for Plaintiff: Mr R G
Maxwell
Instructed by: Moss &
Associates Inc
Randburg
Tel: 0117876111
Ref:
RAF/NM/bb/L480
Counsel for Defendant: Mr H Ngomane
Instructed by: Maluleke, Msimang &
Associates
Johannesburg
Tel:
0113332700
Ref:
ICM/mc/RAF.0392
Dates
of hearing 13 June 2017
14
June 2017
Date
of Judgment 20 March 2018
[1]
56
of 1996
[2]
Pleadings
bundle – page 6
[3]
Pleadings
bundle – page 7
[4]
See
paragraph 4 of the defendant’s plea – page 11 of the
pleadings
[5]
Claimant’s
affidavit – page 15 of the merits bundle (part 1)
[6]
Claimant’s
affidavit to SAPS – page 121 of the merits bundle (part 2)
[7]
Hospital
admission record – page 73 of the merits bundle (part 1)
[8]
Particulars
of claim – page 6, para 5.3 of the pleadings bundle
[9]
Particulars
of claim – page 6, para 5.4 of the pleadings bundle
[10]
Merits
bundle parts 1 & 2 – pages 63; 120-134
[11]
Guardian
National Insurance v Saal
1993 (2) SA 161
(C) at 162
[12]
International
Tobacco Co (SA) Ltd v United Tobacco Co (South) Ltd (1)
1955 (2) SA
1
(W) at 13 - 14
[13]
Stellenbosch
Farmer’s Winery Group Ltd and another v Martell et CIE and
others 2003 (1) SA 11 (SCA)