About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2021
>>
[2021] ZAGPJHC 559
|
|
Francois v Van Zyl (26612/2011) [2021] ZAGPJHC 559 (29 March 2021)
S
AFLII
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 REPUBLIC OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NUMBER: 26612/2011
REPORTABLE:
YES/NO
OF
INTEREST TO OTHER JUDGES: YES/NO
REVISED
Date:
29 March 2021
In
the matter between:
GRAU
FRANCOIS
PLAINTIFF
And
LEVIN
VAN
ZYL
DEFENDANT
Coram:
Molahlehi J.
Heard:
The trial was conducted as a videoconference on the
Microsoft
Teams
digital platform.
Delivered:
This judgment was handed down electronically by circulation to
the parties' legal representatives
via
email, by being
uploaded to the
CaseLines
system of the GLD and by release to
SAFLII. The date of the delivery of the judgment is deemed to be on
29 March 2021.
Summary:
Claim for damages - motor vehicle collision- 1% negligence of the
insured driver is deemed to sufficient to establish liability.
Collision not in dispute. Plaintiff establishing a
prima facie
case of negligence. The plaintiffs failure to call the insured
drive. The principle governing failure to call an available and
willing
witness restated.
Judgment
Introduction
[1]
The question to answer in this case is whether the injuries for which
Mrs Grau, the
Swiss national, (the plaintiff) is claiming
compensation for, is causally related to the negligent or otherwise
unlawful act and
further to the driving of the vehicle by the driver
insured by the Road Accident Fund on 19 December 2007.
[1]
The collision between the motor vehicle driven by the insured driver,
Mr p Naidoo under registration number, [....] and that driven by Mr
Grau, the plaintiffs husband under registration number [....]
is
common cause.
[2]
The plaintiff instituted these proceedings against the defendant,
Levin
Van Zyl Inc, for negligently causing her claim against the Road
Accident Fund to prescribe.
[3]
After protracted litigation, the parties have now agreed that the
defendant can be
held liable if she was able to show that the insured
driver contributed 1% negligence to the collision. Thus, the issue
before
the court is whether the plaintiffs injuries were due to the
negligent driving of the insured driver.
[4]
The only witness who testified in support of the case of the
plaintiff
was Mrs Venter, who testified virtually through the MS
Teams digital platform.
[5]
Mrs. Venter's testified that on the day of the accident they were
travelling
from an evening event with the Grau family when their car
was hit from the rear-end by the car insured by the Road Accident
Fund.
[6]
The Grau family was visiting their daughter, who was staying with
Mrs.
Venter whilst studying in South Africa.
[7]
Mrs. Venter testified that the accident occurred on 19 December 2007
on
the N2 Freeway, made of four lanes, in Kwazulu Natal and was a
passenger in the vehicle driven by Mr Grau. They were travelling
on
the second lane from the right. She suddenly heard a car passing them
at high speed. Just as they were discussing the speeding
car, their
car was suddenly hit from the rear-end by another vehicle. The
violent impact of the collision catapulted their car
into the air.
[8]
She further testified that at the time of the accident, they were
travelling
at between 100 and 110 km/h.
[9]
The plaintiff closed her case at the end of the testimony of Mrs
Venter.
[10]
The defendant elected not to cross-examine Mrs Venter and close its
case without calling
any witnesses.
Submissions
by the parties
[11]
The plaintiff's Counsel submitted that his only witness's evidence
was sufficient to establish
a
prima facie
case against the
defendant, showing that the accident's cause was the insured driver
whose negligent driving contributed at least
1% to the collision.
[12]
The defendant's Counsel contended that the plaintiff's case stands to
fail because there
is no evidence as to how the accident occurred. In
this respect, he argued that the insured driver ought to have been
summoned
to testify.
Legal
principles
[13]
It is trite that in civil matters, such as the present, the onus of
proof is on the party
alleging that the event's occurrence is
causally connected to the injuries he or she suffered. The onus rests
on the plaintiff
to prove negligence on the balance of probabilities.
[14]
It is equally trite that the defendant can avoid liability by
adducing evidence showing no negligence
on his or her part. Failure
to adduce such evidence presents the risk that the defendant may be
held liable for damages suffered
by the plaintiff.
[15]
It has not been disputed
in this particular case that the collision occurred at the rear-end
of the car in which the plaintiff was
travelling in. Although, as a
matter of law, there is no onus on the defendant to show that he was
not negligent, there is a duty
on
him
or her to adduce evidence to show that he was not negligent. The
evidence must be sufficient to dispel the
prima
facie
proof
of negligence.
[1]
[16]
In
Ex
parte Minister of Justice: In re V v Jacobson and Levy,
[2]
the court held that:
"Prima
facie evidence in its usual sense is used to mean prima facie proof
of an issue, the burden of proving which is upon
the party giving
that evidence. In the absence of further evidence from the other
side, the prima facie proof becomes conclusive
proof and the party
giving it discharges his onus."
[17]
In the context of motor
vehicle collisions,
it
is trite that the plaintiff, as a passenger claimant, has to prove
only 1% negligence on the part of the insured driver in
order to succeed his or
her with her claim against the defendant. It is equally trite that
where a vehicle collides with another
motor vehicle from behind, the
presumption is that the driver of the vehicle which rear-ended the
other vehicle was negligent in
failing to keep a proper look out,
failed to scan the road ahead and failed to avoid the collision in
not applying his brakes timeously
or at all.
[3]
[18]
The other issue that
arose during the submission by the defendant's Counsel concerned the
failure by the plaintiff to call the insured
driver to testify.
The principle
governing this issue
received attention in
Munster
Estates (Pty) Ltd v Killarney Hills (Pty) Ltd,
[4]
where the court held
that:
"...
Where a party fails to call as his witness one who is available and
able to elucidate the facts, whether the inference
that the party
failed to call such a person as a witness because he feared that such
evidence would expose facts unfavourable to
him should be drawn could
depend upon the facts peculiar to the case where the question
arises".
[19]
In
Tshishonga
v Minister of Justice and Constitutional Development and
Another,
[5]
the court held that
failure to call a witness is reasonable
in
certain circumstances, such as when the opposition fails to make out
a
prima
facie
case.
In that
case,
the court held that:
"The
failure of a party to call a witness is excusable in certain
circumstances, such as when the opposition fails to make
out a prima
facie case. But an adverse inference must be drawn if a party fails
to ... place evidence of a witness who is available
and able to
elucidate the facts as this failure leads naturally to the inference
that he fears that such evidence will expose facts
unfavourable to
him or even damage his case."
[20]
As alluded to earlier, the defendant did not lead evidence to rebut
the plaintiffs version
that the insured driver caused the accident.
[21]
The defendant's Counsel contended that the plaintiff has failed to
prove her case because
it failed to call the insured driver to
testify as to how the accident occurred.
[22]
It is trite that the court may draw an adverse inference against a
party that fails to
call a witness who is available and able to
testify.
Evaluation
[23]
The onus to prove that the insured driver was negligent rested on
plaintiff. It was contended
that the plaintiff failed to discharge
her onus in that she did not call the insured driver to explain how
the accident occurred.
[24]
In my view, the plaintiff succeeded in producing sufficient evidence
to establish a
prima facie
case of negligence on the part of
the insured driver, which was not challenged nor contradicted by any
other witness. Thus the issue
of failure to call the insured driver
to testify is unsustainable.
[25]
In conclusion, I find that the collision of the insured driver's
vehicle with that
of the plaintiff constitutes
prima facie
evidence of proof that at least 1% of negligence is attributable
to the insured driver.
Order
[26]
In the premises the following order is made:
1.
It is declared that the defendant is liable to compensate the
plaintiff for her proven
or agreed damages resulting from the
collision which occurred on 19 December 2007 on the N2 South just
before the lnanda off-ramp
in Kwazula- Natal.
2.
Costs are reserved.
E
Molahlehi
Judge
of the High Court,
Gauteng
Local Division,
Johannesburg
APPEARANCES
For
the Applicant: Adv. Piet Uys
Instructed
by: A Wolmarans Inc.
For
the Defendants:
Instructed
by: Maluleke Msimang and Associates
Date
of the hearing: 11 February 2021
Judgement
delivered: 29 March 2021.
[1]
See Ntsala v Mutual and Federal insurance
1996 (2) SA 184
(T) at
page 191 G - H.
[2]
1931 AD 466
at 478.
[3]
Groenewald v Road Accident Fund (74920/2014) [2017] ZAGPPHC 879 (5
October 2017).
[4]
1979(1) SA 621 AD.
[5]
(JS898/04)
[2006] ZALC 104
;
[2007] 4 BLLR 327
(LC);
2007 (4) SA 135
(LC) (26 December 2006).