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[2010] ZAWCHC 349
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Hoorniet v Road Accident Fund (A279/10) [2010] ZAWCHC 349 (10 December 2010)
Republic
of South Africa
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
CASE
No: A279/10
In
the matter between:
PIET
HOORNIET
….............................................................................................................
Appellant
And
THE
ROAD ACCIDENT FUND
….................................................................................
Respondent
JUDGMENT
DELIVERED ON 10 DECEMBER 2010
HENNEY,
AJ:
INTRODUCTION
[1
] The appellant sued the respondent in the Kuils River Magistrate's
Court for compensation in damages for injuries allegedly
sustained by
him in a motor vehicle accident. This is an appeal against the
determination by the court below that the respondent
was not liable
for any damages which the appellant might have
suffered.
|2)
The appellant had alleged that his claim arose out of a collision
that occurred on 20 January 2006 on the R300 near Brackenfell,
between an unidentified Golf Hatchback vehicle of which neither the
driver nor the owner could be identified and a bakkie motor
vehicle
with registration number CV11828, driven by Mr A Rooi in which he was
a passenger. The evidence that was adduced did not
support the
occurrence of a collision as alleged, but the witnesses who testified
on behalf of the plaintiff did say that the driver
of the bakkie had
lost control because of the manner in which a green VW Golf had
swerved recklessly between the traffic so as
to drive onto the Old
Paarl Road off-ramp in an apparent attempt to avoid a police road
block that was ahead on the R300.
[3]
The appellant had alleged that the collision was solely due to the
negligence of the driver of the unidentified Golf motor vehicle.
The
respondent would in fact be liable to compensate the appellant if the
unidentified driver allegedly to blame for the incident
was in any
degree causally at fault.
[4]
It was agreed between the parties prior to the commencement of the
proceedings that the issue of liability should be decided
separately
from and before the issue of quantum. The hearing in the court below
proceeded in accordance with that agreement.
[5]
After evidence was led in the court
a
quo,
the
magistrate dismissed the claim on the merits with costs The appellant
now appeals that decision. The main attack against the
judgment of
the court a
quo
is
based on the overall findings of the court on the merits of the case
of the appellant
[6]
In particular, counsel for the appellant contends that the magistrate
had erred in making adverse credibility findings about
the evidence
of the two witnesses. Leon Adams and Belinda Cassiem, due to
differences in their evidence.
[7]
It was further argued that the magistrate erred by accepting the
evidence of a policeman at the scene, Barend Swanepoel, and
by
rejecting the version of Adams and Cassiem that the driver of the
green VW Golf drove in a negligent manner which caused the
white
bakkie wherein the Applicant was a passenger to lose control and
cause an accident.
[8]
During the course of the trial, the appellantdid not testify but two
witnesses, Leon
Adams
and Belinda Cassiem testified. For the respondent, Barend Swanepoel
testified.
[9]
EVIDENCE
FOR THE APPELLANT
Briefly
stated, Leon Adams testified as follows:
On
the night of 20 January 2006, accompanied by his family, he travelled
in his
vehicle
in a northerly direction on the R300 freeway in the right hand lane
At the Old Paarl Road off-ramp, he observed that a number
of vehicles
in front of him had backed up for a police roadblock. As a result of
this, he also stopped his vehicle in the right
hand lane He observed
a police officer that was standing on the left hand side of the road
with his back towards the oncoming traffic
having a discussion with
some persons in a white Venture vehicle (this person later emerged to
be Swanepoel). In his rear view
mirror, he observed a green Golf
approaching in his direction, driving in the same lane wherein his
vehicle had been standing.
This
green Golf swerved in front of a white bakkie at the Old Paarl Road
off-ramp. The white bakkie thereafter veered into the
right lane,
and then swerved immediately to the right, passing the front of his
vehicle on the right hand side of the road onto
the sand and grass
island, dividing traffic travelling in the different directions on
the R300. It landed on a steel rope fence
on the grass island and
overturned. According to the witness, the accident would not have
occurred, had it not been for the green
Golf that swerved in front
of the white bakkie According to this witness, the bakkie had
swerved out of control as a consequence
of the manoeuvres by the
driver of the green Golf.
[10]
Belinda Cassiem's evidence, briefly summarised, was as follows:
She
was a passenger in the vehicle driven by Adams She confirmed the
evidence of the previous witness except that she said that
the
incident happened next to and in front of their vehicle. She also
stated that the green Golf was behind them and then in
front of
their vehicle. Thereafter the vehicle swerved to the right in front
of the bakkie. She further testified that they were
moving the whole
time when the incident happened
[11]
THE
RESPONDENT'S WITNESS
Barend
Swanepoel testified that he was an inspector in the South African
Police Services, and had 20 years of service On 20 January
2006. he
was on duty on the R300. He was standing next to his parked police
vehicle, about 2 kilometres from the roadblock. His
vehicle was
parked on a yellow parked island at the Old Paarl Road off-ramp. He
stood with his back to the oncoming traffic and
was busy talking to
another person. He then heard the screeching of tyres, turned around
and saw the white bakkie moving in his
direction and witnessed it
roll onto the sand and grass dividing island. He did not see any
green Golf. He went with a colleague
to the accident scene. His
colleague spoke to the driver who had told his colleague that he had
braked and lost control over
the vehicle. The driver did not mention
anything about a green Golf. He filled in an accident report from
information given to
him by the driver. He would have written in the
accident report if mention was made of a green Golf.
[12]
EVALUATION
The
appellant's main ground of appeal was that the magistrate erred in
his finding of facts against the appellant.
In
particular, where the magistrate erred in finding that Adams and
Cassiem were
not
credible and reliable witnesses. Also where the magistrate found
that there was not a green VW Golf vehicle that drove in
a negligent
manner by swerving in front of the bakkie which caused the driver to
take evasive action, whereby it lost control
of the vehicle causing
the accident.
[13]
It is trite that a court of appeal generally will not interfere in
the factual findings of a trial court unless, there are
compelling
reasons to do so; especially, where the findings are based on
credibility See R v Dhlumayo and Another 1948 (2)SA
677 (A) at 700
In
Santam Bpk v Biddulph
2004 (5) SA 586
(SCA) at page 589 para 5. it
was
held
that:
"Whilst
a court of appeal is generally reluctant to dismiss the Findings
which depend on credibility, it is trite that it
will do so where
such findings are plainly wrong".
The
court says further
"This
is especially so where the reasons given for the findings are
seriously flawed".
[14]
The magistrate in his assessment of the evidence was not impressed
with the evidence of Adams and Cassiem. His criticism
of their
evidence was largely based on the discrepancies and differences in
their evidence.
[15]
One of the major points of criticism levelled against the evidence
of these two witnesses was the differences in their respective
descriptions as to how and where precisely the green Golf had
swerved in front of the white bakkie wherein the appellant was
a
passenger
Adams
said it happened behind them; whilst Cassiem said it happened next
to and in front of them. Adams said in his evidence that
this green
Golf was at all times behind them.
[16]
Other points of criticism against their evidence were whether their
vehicle was stationary or moving when the incident occuned.
[17]
Another point of criticism, in my view of lesser importance, was
that the witnesses gave different versions with regards
to what
destination they were travelling to. There were other discrepancies
of lesser importance, but the magistrate was of the
view that the
cumulative effect thereof together with the main points of criticism
mentioned made the evidence of these two witnesses
untrustworthy.
[18]
Whilst being critical of Adams and Cassiem. the magistrate was
impressed by the evidence of Swanepoel He weighed the evidence
of
Swanepoel up against the evidence of these two witnesses and further
stated as regards the main issue, that is whether there
was a green
VW Golf involved or not, that Swanepoel would have seen it if there
had been. He further stated that the driver of
the vehicle did not
mention any green VW Golf when he spoke to Swanepoel after the
incident. In the light of this, he concluded
that was highly
unlikely that there was a green
Golf.
[19]
In my view, in his assessment and evaluation of the evidence, the
magistrate took a very simplistic view. He was more concerned
with
the number of contradictions in the evidence of the witnesses than
the importance thereof. He lost sight of the fact that
the
adjudication of evidence in a factual dispute is not dependant on
the number of times a witness contradicts him or herself
or is
contradicted by another witness. An assessment of the context of the
evidence is also required, as well as a consideration
of the
probabilities inherent in such context.
[20]
The magistrate was unfair in his criticism of Adams and Cassiem,
where he failed to take cognizance of the fact that when
the
incident occurred, it was not a static scene, but a sudden event
that was rapidly unfolding. He failed to have regard to
the fact
that under such circumstances, it is to be expected that after
almost 3 years, the eyewitnesses would not have a perfect
recollection of the events. It is not uncommon in cases like these
that there would be differences between the witnesses. Indeed
it
would be unusual in the circumstances if the witnesses' impressions
of a rapidly moving event were identical.
[21]
These two witnesses were independent civic minded people who at the
scene, presented themselves to assist with the injured
and made
themselves available as witnesses. They stopped and made a statement
about the VW Golf to one of the other policemen
attending at the
scene. They had no interest in the appellant's claim and had no
reason to fabricate or make up a version to
benefit any party. The
magistrate does not appear to have considered this.
[22]
The fact that there are differences in the detail of their evidence
should, if anything, rather have counted in their favour
because it
would tend to confirm that there was no conspiracy between them to
fabricate their evidence.
[23]
In my view, by accepting the evidence of Swanepoel who says that
there was no green Golf on the scene that would have caused
the
driver of the bakkie to have lost control of his vehicle, the
magistrate was clearly wrong. With his back turned to the R300
Swanepoel would not have seen the green Golf and at the stage when
it was driving on the off-ramp he would have no reason to
appreciate
the significance of how it came there or indeed to take any notice
of it whatsoever. The thing that caused Swanepoell
to turn around
and look at what was happening on the R300 was the sound of brakes
screeching just before the bakkie in which
the appellant was a
passenger overturned. Swanepoel s attention would in the
circumstances naturally have been focused on the
bakkie. It would
not have been on a vehicle travelling down the off-ramp to the Old
Paarl Road. His evidence therefore could
not have been used to
disprove the eye-witness evidence of Adams and Cassiem about the
presence of the green Golf.
[24]
On a conspectus of evidence, what stands out in the evidence of
Adams and Cassiem is the presence of the green Golf and their
common
impression that it was being driven in a way that endangered other
traffic on the R300.
[25]
It is also improbable in the absence of any other explanation that
the driver of the white bakkie would have manoeuvred his
vehicle in
this way had it not been for some intervening action, that had been
explained by the witnesses. In my view therefore
there is an
overwhelming probability in favour of the acceptance of the evidence
of the two witnesses for the appellant that
the actions of the
driver of the green VW golf caused the driver of the bakkie in which
the appellant was being conveyed to lose
control. It does not matter
that the driver of the bakkie might also have been contributorily at
fault.
[26]
FINDING
I
am therefore of the view, that the magistrate erred in holding in
favour of the respondent. He should have on the evidence of
Adams
and Cassiem found that there was a green Golf that was driven by an
unknown driver in a negligent manner. He should also
on the evidence
of Adams and Cassiem have found that as a result of this green Golf
that was driven negligently, it caused the
driver of the bakkie
wherein the appellant was a passenger to lose control, resulting in
the appellant sustaining injuries and
suffering damages. It follows
that the appeal should succeed.
[27]
The appellant has yet to prove that he suffered damages. The costs
of the hearing in respect of the issue reserved for separate
determination should therefore be costs in the cause.
[27]
THE
ORDER
In
the result, I propose that the following order should be made:
The
appeal succeeds with costs;
The
order of the trial court is set aside and replaced by the
following: The issue of liability reserved for separate
determination
is decided in favour of the Plaintiff. The costs of
the action incurred thus far, shall be costs in the cause.'
HENNEY,
AJ
I
agree, and it is so ordered
BINNS-WARD, J