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[2011] ZAGPPHC 51
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Sithole v Road Accident Fund (12297/09, 25295/09) [2011] ZAGPPHC 51 (1 April 2011)
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Certain
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IN THE HIGH COURT OF
SOUTH AFRICA
(NORTH GAUTENG HIGH
COURT, PRETORIA)
Case No.: 12297/09 and
25295/09
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER
JUDGES: NO
(3) REVISED.
DATE:01/04/2011
In
the matter between:
S
SITHOLE
................................................................................
Plaintiff
and
ROAD
ACCIDENT
FUND
..........................................................
Defendant
AND
Y
PHIRI
.......................................................................................
Plaintiff
and
ROAD
ACCIDENT
FUND
...........................................................
Defendant
JUDGMENT
MNGQIBISA-THUSI,
J
[1] On 25 April 2008 and
along the Ledig and Matooster Road, Rustenburg Road a motor vehicle
bearing registration number D[...]
and being driven by Sithole
collided with a motor vehicle bearing registration number W[...]
which was being driven by the insured
driver, Mr Braadt. The
plaintiff in the second matter was a passenger in the vehicle driven
by Mr Sithole.
[2] Since the causes of
action for both the plaintiffs arise from the same set of
circumstances, as per agreement between the parties,
the two claims
were consolidated and dealt with as one.
[3] The first and second
plaintiffs are claiming damages against the defendant as a result of
injuries they allegedly sustained
in a motor vehicle collision. Mr
Sithole and Mr Phiri are alleging that the collision was caused as a
result of the negligence
of the insured driver.
[4] Mr Sithole is
claiming a total amount of R1 500 000.00 as compensation made up as
follows:
(a) Future medical
expenses :
......................................
R
300 000.00
(b) General damages in
respect of pain and suffering loss of amenities of life,
permanent disability and
disfigurement
.................
:
......
R
700 000.00
(c) Loss of
earnings
......................................................
:R
5000 000.00
Total
.
...........................................................................
:R1 500 000.00
[5] Mr Phiri is claiming
a total amount of R1 000 000.00 as compensation made up as follows:
(a) Future medical
expenses
........................................
:R
400 000.00
(b) General damages
in respect of pain and suffering loss of amenities of life,
permanent disability and
disfigurement
......:..................
R
700 000.00
Total
..............................................................................
R1 000 000.00
[6] There was agreement
between the parties that the merits be separated from the quantum
which would be dealt with at a later stage.
I made a ruling
separating the merits from the quantum.
[7] The first plaintiff,
Mr Sithole, was the first witness. He testified that at the time of
the collision he was a taxi driver
and was carrying passengers,
including Mr Phiri, the second plaintiff, and was driving along the
Ledig and Matooster Road, Rustenburg
Road, travelling from west to
east in the direction of Sun City. He was at the time travelling at a
speed of between 70 and 75
km per hour and was driving behind a
cash-in-transit vehicle driven by the insured driver. In front of the
insured driver's vehicle
was another vehicle, a Toyota Landcruiser
(the Landcruiser). Along the way the insured driver tried to overtake
the Landcruiser.
When he was parallel to the Landcruiser, he saw an
oncoming vehicle. He noticed that the insured driver's vehicle brake
lights
were on and the insured driver tried to squeeze his vehicle
between the Landcruiser and the plaintiff's car. The insured driver
collided with the first plaintiff's car. He further testified that at
the time the insured vehicle was parallel to the Landcruiser,
he had
increased speed to about 4 paces and that by the time the insured
driver squeezed through the space between his car and
that of the
Landcruiser, the distance between his vehicle and the Landcruiser had
reduced to about two paces.
[8] The court sought
clarification of this alleged distance between the two vehicles as
the space was too small for a car. The first
plaintiff could not
offer any explanation. He demonstrated, using two cellphones that the
damage on the insured vehicle was at
the right rear and on his
vehicle on the driver's side. The demonstration indicated that the
insured vehicle's front right side
was on the correct lane and the
back rear was still on the wrong lane. He further testified that in
order to avoid the collision
he had swerved to the left of the road.
[9] During
cross-examination the first plaintiff confirmed that at the time of
the collision he was driving on the left lane of
the road. However,
he could not explain why, if he was travelling on the correct lane,
damage to the insured vehicle was at the
rear back of the insured
driver's vehicle, which according to his evidence in chief was on the
incorrect lane at the time of the
collision. The first plaintiff then
changed his version and said that the damage on the insured vehicle
was on the left rear part
of the vehicle. Further under cross
examination the first plaintiff conceded that in the light of the
speed he was travelling at
(approximately between 20 and 75 km per
hour) when he saw the insured vehicle's brake lights, and the
distance between his vehicle
and the Landcruiser, he could easily
have driven past the insured vehicle.
[10] The second
plaintiff, Mr Phiri, the plaintiff in the second matter. His evidence
did not add much to that of the plaintiff.
He testified that he did
not see how the collision occurred. He was only able to confirm the
damage to the two vehicles involved
in the collision. His evidence is
in tine with the statement he made to the police on 29 April 2008. Mr
Phiri made a contradictory
statement on 10 October 2008 which was
lodged with his claim with the Road Accident Fund in terms of
section
19(f)
of the
Road Accident Fund Act
56 of 1996
. In this
statement Mr Phiri alleges that the insured driver was trying to
overtake the Landcruiser which was in front of him. When
he saw an
oncoming car he returned to the correct lane. When confronted with
this statement Mr Phiri denied it was his statement
even though he
testified that he had made a statement to the police after the
accident, that the statement which was shown to him
bore his name and
his signature.
[11] The driver of the
insured car, Mr Braadt, testified that on the day in question he was
travelling along the Ledig and Matrooster
Road on his way to Sun
City. The first plaintiff was driving behind a Landcruiser and Mr
Sithole was behind him. As there was a
lot of traffic on the road the
Landcruiser had reduced speed and he accordingly also reduced his
speed when he suddenly heard the
first plaintiff's vehicle bumping
into his rear.
He was pushed forward and
ended up bumping into the Landcruiser's rear. He denied the first
plaintiff's evidence that he was at
the time of the collision trying
to overtake the Landcruiser and that when he realised it was not safe
to do so, returned to the
correct lane causing the plaintiff to
collide with him. Mr Braadt's testimony under cross examination
remained consistent with
his evidence in chief.
[12] The versions of the
plaintiffs and the defendant are mutually destructive. In civil
proceedings, where the onus rests on the
plaintiff and there are two
mutually destructive versions, for the plaintiff to succeed it has to
satisfy the court on a preponderance
of probabilities that its
version is true and accurate and also acceptable and that the other
version advanced by the defendant
is therefore false or mistaken and
falls to be rejected. National Employers Insurance Association v Gary
1931 AD 187.
[13] The first
plaintiff's description of the collision is inherently improbable.
According to the first plaintiff, Mr Sithole,
the collision occurred
as a result of the insured driver trying to return to the correct
lane after attempting to overtake a car
in front of him. His version
that the insured driver had managed to cut in front of his vehicle
and the Landcruiser, a distance
of two paces in length, is improbable
and unconvincing. His account as to how the collision occurred was
not convincing. Not much
weight can be put to the evidence given by
Mr Phiri in view of the contradictory statements he made to the
police and in his claim
against the Road Accident Fund. Both
plaintiffs were poor witnesses.
[14] On the other hand,
the version of the insured driver, which is consistent with the
accident report is that the three vehicles
(i.e. the Landcruiser, the
cash-in -transit van driven by the insured driver and the taxi driven
by the plaintiff Mr Sithole) were
travelling in the same direction
towards Sun City when the taxi suddenly collided with the back of his
vehicle is more probable.
Taking into account the damage to the
vehicles involved and the accident report it is more probable that
the three vehicles were
travelling in a straight line. The insured
driver was truthful and honest when giving evidence. Even when under
cross examination,
counsel for the plaintiff tried to make him
concede to counsel's speculation and assumptions which were not
supported by any objective
facts, that he drove recklessly as he was
carrying cash and was in a hurry to reach his destination. The
insured driver was an
impressive witness.
[15] Considering all the
evidence before me, I am satisfied that the evidence of the insured
driver was more probable than that
of the first plaintiff. I
therefore come to the conclusion that the plaintiffs have not proven
their case on a balance of probabilities.
[16] Accordingly, I
make the following order:
"The plaintiffs'
claims are dismissed with costs.
NP MNGQIBISA-THUSI
Judge of the North
Gauteng High Court