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South Africa: North Gauteng High Court, Pretoria
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2010
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[2010] ZAGPPHC 13
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Sebothoma v Road Accident Fund (36885/07) [2010] ZAGPPHC 13 (4 February 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT, PRETORIA)
CASE
NO: 36885/07
DATE:
4 February 2010
IN
THE MATTER BETWEEN:
MALKE
ESTHER SEBOTHOMA PLAINTIFF
AND
ROAD
ACCIDENT FUND DEFENDANT
JUDGMENT
OMAR,
AJ
[1]
This is an action for damages arising out of a motor vehicle
collision on the 5
th
of September 2003 at or about the Pretoria - Pietersburg road and in
the vicinity of Dennilton.
[2]
The plaintiff alleges that she was a passenger in a motor vehicle
with registration number MKH 389 GP ("hereinafter referred
to as
"the taxi") when the collision occurred between the taxi
and a motor vehicle with unknown registration numbers.
("Hereinafter
referred to as "the unknown vehicle").
[3]
The matter was set down for determination of both quantum and merits.
The parties, however agreed that subject to a finding
in respect of
liability, the Plaintiff's damages shall be in an amount of R200
000,00.
[4]It
is common cause between the parties that:
a)The
plaintiff was a passenger in the taxi
b)The
vehicle in which the plaintiff was a passenger was involved in a
collision.
c)
The collision occurred at night on the Pretoria-Pietersburg road in
the vicinity of Dennilton on 5 September 2003.
[5]
In its plea, the defendant denies that the collision occurred as
alleged by the plaintiff in her particulars of claim or at
all.
[6]
The issues to be decided by the court as they appear from the
pleadings are:
a)
Whether the collision occurred as alleged by the plaintiff or at all
b)
If the collision occurred as alleged by the Plaintiff, or at all,
whether the collision was caused by the sale negligence of
the driver
of the taxi.
c)
If the collision occurred as alleged or at all, whether any
negligence of the driver of the unidentified motor vehicle causally
contributed to the collision.
[7]
The plaintiff testified herself and called no other witnesses. The
defendant called no witnesses.
[8]
The plaintiff's evidence in chief was very brief.
She
testified that she was a passenger in the taxi sitting behind the
driver. The road was straight, without any bends and consisted
of one
lane in each direction. A sedan travelling in the opposite direction
was approaching the taxi. A truck (the unidentified
motor vehicle)
was overtaking the sedan and moved onto the lane in which the taxi
was travelling. The taxi driver flickered his
lights and said that
the truck was going to collide with the taxi and the taxi driver then
swerved to the left in order to avoid
the truck and as a result the
taxi overturned.
On
cross-examination the plaintiff testified,
inter
alia,
that
there were nine (9) people in the taxi. She saw the truck approaching
when it was approximately thirty (30) metres from the
taxi. She saw
the truck flickering its lights and started screaming and told the
taxi driver, Leslie, that they were going to die.
The taxi driver
only got out of the way when the truck was approximately seventeen
(17) metres from the taxi.
She
further testified that she knows the driver of the taxi and that he
stays in Alexandra. He was hired by the plaintiff and the
other
passengers to transport them to a funeral. She still has his cell
phone number available.
[9]
The plaintiff conceded that on the 17
th
August 2005 she deposed to an affidavit containing a different
version, of events. In paragraph 2 of the said affidavit she states
the following:
"We
were travelling from Johannesburg to Pietersburg when an unidentified
motor vehicle drove behind us at high speed. Our
taxi driver turned
slightly to his left to let the unidentified fast travelling motor
vehicle pass and the taxi overturned."
This
affidavit was submitted to the Defendant by the plaintiff's attorneys
when lodging plaintiff's claim with the defendant.
The
plaintiff responded that she had explained to the person taking the
affidavit what had happened and that this explanation was
the same as
the one she gave to this court in her evidence in chief.
This
court was also provided with a third version of events by the
plaintiff which is contained in the medical-report of professor
E
Steyn which forms part of the court documents. The relevant part of
the report reads as follows:
"According
to her own account, the patient was travelling to Polokwane in a taxi
on 2003/09/06. At approximately 11 pm a truck
overtook the taxi at
speed, the taxi driver took evasive action by swerving, lost control
and the vehicle overturned."
The
Plaintiff responded that she did not remember meeting the doctor in
question and had no idea why such a version has been recorded
by the
doctor.
[11]
It is clear from the evidence of the plaintiff and the documents
before this court that there are three versions of events
by the
plaintiff and these versions are clearly contradictory.
[12]
I find the explanations by the plaintiff with regard to the affidavit
deposed to on the 17
th
of August 2005 and the report by Professor E Steyn to be untenable.
Why would her legal representative prepare an affidavit contrary
to
her instructions and similarly why would Professor E Steyn report her
history if this was not stated to him by the plaintiff.
[13]
The plaintiff was a single witness and her evidence must be viewed
with caution.
[14]
It was submitted by counsel for the defendant that the plaintiff
formulated the version presented before this court in order
to avoid
the limitation of liability provided for in section 18(1) of the road
Accident Fund Act 56 of 1996.
I
tend to agree with the submission by defendant's counsel.
[15]
The plaintiff's evidence in court was uncorroborated. It is clear
from her evidence that there were nine (9) passengers in
the taxi as
well as the taxi driver. The plaintiff testified that she and the
driver and the front passenger sustained injuries
as a result of the
accident. As indicated earlier, the plaintiff testified that she
knows the driver of the taxi and know where
he lives and still has
his cell phone number available. She could very easily have called
him as a witness to corroborate her evidence
in court. She could very
easily have called any of the other passengers as witnesses to
corroborate her evidence as it is apparent
that she knows the
passengers since they hired the taxi together to go to a funeral.
[16]
In my view, the plaintiff failed to call any of the witnesses
mentioned above at her peril and the court has to draw an adverse
inference on her failure to do so. The witnesses were clearly
available according to the evidence of the plaintiff. The court
invited plaintiff to call witnesses to clarify or corroborate her
version. However plaintiffs counsel elected not to do so.
[17]
The plaintiff bears the onus of proving all the issues before the
court.
[18]
The submission by counsel for the plaintiff that there is only one
version before the court is rejected with the contempt it
deserves,
as there are clearly three (3) contradictory versions before this
court.
[19]
The further submission by plaintiffs counsel that the plaintiff,
after putting her version before the court, has shifted the
evidentiary burden to the defendant and the duty then arises on the
defendant's part to adduce evidence in rebuttal, is further
rejected
by the court as this is clearly not so as the burden of proof remains
with the plaintiff.
[20]
In my view, the plaintiff has failed to convince the court that the
collision occurred as alleged by her.
[21]
I find that the collision was caused by the sole negligence of the
driver of the taxi.
Further
I cannot find any negligence on the part of the driver of the alleged
unidentified motor vehicle which casually contributed
to the
collision
Even
on the plaintiffs version in court the taxi driver only got out of
the way when the truck was about seventeen (17) metres away
from the
unidentified motor vehicle.
[22]
Accordingly the plaintiff cannot succeed in her full claim against
the defendant and her claim is limited in terms of
Section 18(1)
of
the
Road Accident Fund Act 56 of 1996
.
[23]
It is noted from the court documents that the defendant has in terms
of its notice in terms of
Rule 34
of the Rules of the Court dated the
23
rd
October
2009, offered to settle the plaintiff's claim and costs on a without
prejudice basis.
In
the result, I make the following order:
1.
The plaintiff's claim is limited in terms of
Section 18(1)
of the
Road Accident Fund Act 56 of 1996
.