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[2010] ZAGPPHC 173
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Combrinck v Road Accident Fund (29610/08) [2010] ZAGPPHC 173 (23 September 2010)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG, PRETORIA)
CASE
NO: 29610/08
DATE:
23/09/2010
In
the matter between:
SJ
COMBRINCK
....................................................................................................
Plaintiff
And
ROAD
ACCIDENT
FUND
..................................................................................
Defendant
JUDGMENT
LEDWABA,
J
[1]
Plaintiff instituted an action against the defendant for the damages
he suffered arising out of an accident which happened on
16 December
2005 at or near Hammanskraal within the jurisdiction of this court
wherein his Audi motor vehicle with registration
number DRB 591 GP
(theAaudi) collided with a vehicle with registration number FJL 684
NW (the insured vehicle) driven by Mr V.
Mtshwene (the insured
driver).
[2]
When the trial commenced the parties agreed that there should be a
separation of merits and quantum. I accordingly ordered that
the
trial would proceed on the merits and quantum was stayed. The
plaintiff's counsel further made an application to amend his
particulars of claim. The Defendant did not object to the proposed
amendment of the date of accident and paragraph 4 of the particulars
of claim. The application to amendment was granted and the defendant
did not amend its plea.
[3]
The plaintiff testified and called two police officers as his
witnesses. After the closing of the applicant's case, an application
for absolution from the instance by the defendant's counsel was
dismissed. The defendant closed its case without calling any
witnesses.
[4]
In paragraph 5 of the plaintiffs particulars of claim, it has been
alleged that the accident was caused by the sole negligent
driving of
the insured driver. The defendant pleaded to paragraph 4 of the
plaintiff's particulars of claim is as follows:
"4.1
Each
and every allegation contained in this paragraph is denied as if
specifically traversed and the Plaintiff is put to the proof
thereof.
4.2
The
defendant specifically pleads that
no
collision occurred either as alleged or at all, and that the
Plaintiff was not involved in a collision
either as alleged or at all."
(own
underlining)
[5]
This matter will therefore be adjudicated on the value of the
evidence presented by the Plaintiff and his 2 witnesses. Which
evidence will be summarised hereunder.
[6]
The plaintiff testified that on the day of the accident he was from
Radium, in the Limpopo district, driving the Audi and had
one
passenger, Mr Kobus Viljoen. As he was driving to the southern
direction towards Pretoria, when he was next to the scene of
the
accident, shown on the photo in bundle B, he had a heart attack and
he cannot therefore explain how the accident occurred.
He only
regained his consciousness on the 25 December 2005 and realised that
he had injuries o his head, chest and legs. During
cross examination
it was put to him that the defendant's witnesses will testify that
the point of impact was on the stop line of
vehicles from the eastern
direction from Murrayhill, and that the accident was solely caused by
his driving in a zig zag manner.
The plaintiff's response was that it
was impossible, however he could not give reasons why he says it is
impossible.
[7]
The two police officers Inspector Sammuel B. Sithole and Inspector
Johannes P. Chabalala testified that as they were busy with
their
duty patrol and were attracted to the scene of the accident by the
flashing lights of the tow trucks. They arrived at the
scene of the
accident between 20h00 and 21h00.
[8]
Inspector Sithole confirmed that he drew the rough sketch, which is
not according to scale, took measurements and noted the
key to the
plan, see Bundle A pages 77 and 78. He further said he used his torch
to check the debris on the road to determine the
point of impact.
There were no debris on the road next to the stop sign at the T
junction. He
marked
the point of impact with an alphabet 'C because of the broken glass
and the oil spots he noticed on the road. He further
said he spoke to
nobody at the scene of the accident.
[9]
Inspector Chabalala testified that he spoke to the insured driver and
asked for his driver's license. He further said the plaintiff
stuck
in the Audi. He said he knows that the plaintiff was involved in the
accident because he found his identity document in the
Audi.
[10]
In evaluating the evidence, notwithstanding the defendant's plea that
no collision occurred, it is clear from the evidence
that there was
an accident between the Audi and the insured vehicle. The defendant
further in the pre-trial minutes in stating
its version said
'plaintiff was the sole cause of the collision. This, in my view, is
an acknowledgement that the accident did
occur.
[11]
The plaintiffs counsel argued that having regard to the position of
the point of impact depicted on the rough sketch it could
be
reasonably inferred that the insured driver turned right at the
t-junction into the path of the Audi which had a right of way.
He
further argued that a negative inference should be made from the
defendant's failure to call the insured driver who was available
at
court to testify.
[12]
On careful analysis of the evidence of inspector Sithole I am not
convinced that his evidence concerning how the point of impact
was
depicted is reliable because of the following reasons:
12.1
he
said he was tired on that night in question, that is the reason why
he could not even reflect the registration numbers of the
vehicles on
the key to the plan,
12.2
he
said he prepared the rough sketch on page 78 of Bundle A based on an
initial rough sketch that he prepared at the scene of the
accident,
which rough sketch he could not produce,
12.3
ex
facie
the
sketch of Bundle A of on page 78 alphabet 'E' of represents the break
marks of the insured vehicle and vehicle A came to
a standstill
at position where it is shown on the sketch. I find it extremely
difficult to understand how vehicle A collided with
vehicle B at
point C considering the positions of the
vehicles
after the collision and the alleged brake marks of both vehicles.
12.4
Both inspectors said they do not know whose negligence caused the
accident and do not know if the vehicles were shifted after
they
collided with each other.
[13]
What compounds the uncertainties in this matter is that the court
does not have the version of the insured driver. What has
been put to
the plaintiff and his witness under cross examination can not be
regarded as evidence.
[14]
The passengers in the Audi and the insured vehicle were also not
called as witnesses to put their version before the court.
[15]
The onus is on the plaintiff to prove its case on the balance of
probabilities. Plaintiff can not testify as to how the accident
happened and the police officer can also not assist regarding how the
accident happened.
[16]
In deciding whether the plaintiff has discharged the onus which rests
upon it, the court must have regard to the totality of
the evidence
considered together with the documents presented to the court.
[17]
The other factor to be taken into account is that the defendant did
not call its witnesses in particular the insured driver
who was
available and whose evidence could assist the court. This case
depends mainly on the evidence of inspector Sithole who
prepared the
rough sketch. The strength and the weaknesses of the plaintiffs case
should be considered, see
Levy
NO v Rondaller Assurance Corporation of South Africa Limited 2971(2)
SA 598 AD
[18]
I have alluded to some of the problems in the evidence of inspector
Sithole. There are other facts that are unknown to the
court
concerning the accident. The witnesses who could possibly assist the
court regarding what happened did not testify.
[19]
I have also considered what Beadle CJ said on the distinction between
absolution at the close of the plaintiffs case, and absolution
at the
close of the case in
Supreme
Service Station (1969) (PVT) Ltd vs Fox and Goodridge (PVT) Ltd at
page 92 paragraph C-H
when
the learned Judge expressed himself as follows:
"The
locus classicus of the cases dealing with the procedure of absolution
from the instance is the old Transvaal case of Gascoyne
v. Paul and
hunter,
1917 T.P.D. 170.
In that case it was pointed out that an
application for absolution from the instance stands much of the same
footing as an application
for the discharge of an accused at the
close of the evidence for the prosecution, but it is stressed (see p.
173 of the judgement)
that it would indeed be curious if in civil
cases we were to apply a more stringent rule of practice than in
criminal cases. It
would seem to me that as in a criminal case the
onus of proof is always higher than in a civil case, evidence which
in a crminal
case would be insufficient to justify refusing an
application for the discharge of an accused, might well in a civil
case be sufficient
to justify refusing an application for absolution
from instance.
Gascoynes's
case stresses that it is perfectly competent for a court to refuse an
application for absolution from the instance when
the application is
made at the close of the plaintiff's case, but to grant it if the
defendant then promptly closes his case and
renews the application
without calling any evidence at all.
There
is no inconsistency in two such diametrically opposed orders, though
the evidence before the court in each application is
identical. The
reason why there is no inconsistency is because the test to applied
when application is made before the defendant
closes his case, is "
what might a reasonable court do", whereas the test to be
applied when the application is made
after the defendant has closed
its case is "what ought a reasonable court to do."
[20]
I
therefore, make the following order.
(i)
I
grant absolution from the instance in defendant's favour
(ii)
Plaintiff
is liable to pay the costs.
A.P
LEDWABA
JUDGE
OF THE HIGH COURT