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South Africa: North Gauteng High Court, Pretoria
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[2011] ZAGPPHC 164
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Hopane v Road Accident Fund (30412/2010) [2011] ZAGPPHC 164 (15 September 2011)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT)
Case number: 30412/2010
Date: 15 September 2011
in
the matter between:
NOKO
MARGRAITE
HOPANE
.......................................................................................
…..
Plaintiff
And
ROAD
ACCIDENT
FUND
...........................................................................................
…......
Defendant
JUDGMENT
PRETORIUS
J.
The
plaintiff is claiming R500 000.00 in damages which he sustained
during a collision on 7 December 2006. The merits and quantum
were
not separated at the start of the trial, but the court was requested
by both counsel to proceed on the merits of the action.
The counsel
for the defendant requested the court to separate the merits and the
quantum of the action in terms of Rule 33(4) after
argument and this
application was granted.
Mr
Hopane, the plaintiff, testified that on 7 December 2006 at 19h45 he
was the driver of a four ton Tata Truck with registration
number
EBC5925L. He was driving from Dendron to Bochum on a tarred road
where the speed limit was 80 kilometre per hour. He was
accompanied
by his father and mother who sat next to him in the passenger seat of
the cab of the truck. His father sat in the middle
and his mother
next to the left hand passenger door. The truck was carrying a load
of mealie meal
He
was driving at 80km per hour and the truck's headlights were switched
on as it was already dark. Whilst driving in this manner
and at this
speed a car overtook his truck. This car moved in front of him and
immediately applied his brakes. This vehicle was
only approximately 4
metre in front of him when the insured driver applied the car's
brakes. The plaintiff applied the brakes and
swerved to the right
hand side to avoid a collision as he realised that a collision was
inevitable in the circumstances.
The
left side of the truck collided with the right back of the car. The
plaintiff stopped in front of both the car and the Audi
with which
the insured driver had collided. He alighted and confronted the
driver of the car, the insured driver, who informed
him that there
was an Audi in the road without any rear lights and that was the
reason that he had to stop suddenly. The plaintiff
could not swerve
to the left to avoid a collision as the road sloped to the left. The
plaintiffs further evidence was that he had
expected the car to
proceed on its way on the open road and did not expect it to slam on
brakes as soon as it had overtaken the
plaintiffs truck. No questions
were put to the plaintiff regarding the Audi vehicle without any
lights and the court can only speculate
as to why the plaintiff had
not noticed the Audi prior to the insured driver over taking him
prior to the accident. The court can
thus not make any finding
regarding this.
At
the time the insured driver's vehicle overtook the truck, he was
still travelling at 80km per hour and therefore the insured
driver
must have been travelling at a higher speed.
Mr
Hopane could not testify as to whether the insured driver's vehicle
had collided with the Audi without lights as a result of
his truck's
collision with the insured driver's car or whether the insured
driver's vehicle had already collided with the Audi
when he collided
with the insured driver's vehicle.
Mrs
Hopane, the plaintiffs mother, was a passenger in the truck sitting
in the passenger seat next to the left hand door. She corroborated
the plaintiffs evidence in all materia! aspects. She has a driver's
licence and confirmed that the speed that they were travelling
at was
between 70-80 kilometres per hour. She denied that the insured driver
had been driving in front of their vehicle for 10
kilometres before
the collision took place. She confirmed the plaintiffs version that
the insured vehicle had just overtaken the
truck when he slammed on
his brakes. Her estimate was that the car of the insured driver was
1.5 to 2 metre in front of the truck
when he suddenly braked, whilst
the plaintiff estimated the distance as approximately 4 metres.
Both
the witnesses impressed the court as being honest witnesses who did
not exacerbate the actions of any of the parties and conceded
facts
when necessary. The plaintiff had made a warning statement to the
South Africa Police Service, but this statement was made
in Pedi,
written down in English and read back to the plaintiff in Pedi. The
court takes cognisance of statements made in such
a manner and the
plaintiff explained that everything that had happened was not
contained in the statement. The court takes into
consideration that
Mrs Hopane is the mother of the plaintiff, but cannot agree with
counsel for the defence that it tainted her
evidence in favour of the
plaintiff.
An
application for absolution of the instance was denied.
The
defendant gave evidence that on 12 June 2007 he was driving his car
from Dendron when he overtook the plaintiff's truck. He
had travelled
5 kilometres after overtaking the plaintiff's truck when he saw a car
in front of him without rear lights. He reduced
speed waiting for a
chance to overtake this car when he felt a vehicle colliding with him
from the back and as a result he collided
with the Audi without rear
lights in front of him. At the time he overtook the plaintiffs
vehicle he was driving at 100 kilometre
per hour, but his speed was
only 60 kilometre per hour when the collision took place. He only
slightly reduced speed when he saw
the Audi in front of him.
According
to him the plaintiff's vehicle was travelling at a high speed when it
collided with his vehicle, although he could not
explain why his
vehicle was Still in the left hand lane after the collision and not
knocked off the road by the force of the collision
if the plaintiff's
vehicle was travelling at such a high speed. He had not seen the
plaintiff's vehicle after overtaking it until
after the collision had
taken place. He could not explain why he had not seen the plaintiffs
vehicle approaching in his rear view
mirror as the plaintiff's
vehicles' headlights were switched on. He contradicted his version as
his counsel put to the plaintiff
that he had driven for 10 kilometres
before the collision took place. He could not remember if there was
traffic approaching from
the opposite direction and later averred
that he thought there were cars approaching. According to him his car
was 1 to 2 metre
behind the Audi when the collision took place,
although he had known that it was not a safe following distance, but
was intending
to overtake the Audi. He could not explain why his car
was damaged in the middle front and the Audi in the middle at the
back,
although the plaintiff's car hit the insured driver's car on
the right back and side. Although he conceded that a safe following
distance was three car lengths he had travelled 1 tot 2 metre from
the rear of the Audi for some distance.
In
Govan v Skidmore
1952 (1) SA 732
(NPD) at 734 Selke J held:
"For,
in finding facts or making inferences in a civil case, it seems to me
that one may, by balancing probabilities select
a conclusion which
seems to be the more natural, or plausible, conclusion from
amongst several
conceivable ones, even though that conclusion be not the only
reasonable one." (Court's emphasis)
In
AA Onderlinge Assuransie Bpk v de Beer
1982 (2) SA 603
(AD) Viljoen
JA found in relation to the probabilities in deciding a case at p 614
H:
"Dit
is, na my oordeel, nie nodig dat 'n eiser wat horn op
omstandigheidsgetuienis In 'n siviele saak beroep, rnoet bewys dat
die afleiding wat hy die Hof vra om te maak die enigste redelike
afleiding moet wees nie. Hy sal die bewyslas wat op horn rus kwyt
indien hy die Hof kan oortuig dat die afleiding wat hy voorstaan die
mees voor-die-hand-figgende en aanvaarbare afleiding is van
'n aantal
moontlike afleidings." (Court's emphasis)
The
insured driver's own evidence was that he was not aware of the
plaintiff's vehicle behind him before the collision and could
not
explain why he did not see the lights of the plaintiffs vehicle in
his rear view mirror if the plaintiff had approached his
vehicle from
behind.
He
further could not give any explanation as to why he was driving 1 - 2
metre behind the Audi, after overtaking the plaintiff's
truck at more
than 80 km per hour. He wanted the court to believe that he was no
longer in a rush as he was close to his home and
content to drive
behind the Audi at 40-60 km per hour, although he overtook the
plaintiffs truck which was driving at 80 km per
hour.
I
find this version of the insured driver as so improbable that it
stands to be rejected. The version by the insured driver that
was
never canvassed with the plaintiff was that the plaintiff's truck's
lights were on bright and that the insured driver had passed
him and
indicated to him that he must dim his lights was never canvassed with
the plaintiff.
If
all the evidence, probabilities and improbabilities are considered
and weighed the court finds that the cause of the collision
was that
the insured driver overtook the truck and as soon as he had moved in
front of the truck he saw the Audi without lights
1 to 2 metre in
front of him and he slammed on his brakes thus causing the plaintiff
to take evasive action. This manoeuvre by
the plaintiff was however
not enough to avoid the accident and the collision took place. It was
reasonable of the plaintiff to
expect that the insured vehicle would
drive on after overtaking his truck and not expecting to slam on his
brakes immediately.
Counsel
for the defendant argued that paragraphs 6.3; 6.5 and 6.9 of the
plaintiffs claim had not been proved by the evidence. The
court finds
that even if these averments are disregarded the plaintiff has proved
the case on a balance of probabilities.
In
the circumstances the court finds that the insured driver's actions
were the sole cause of the collision and the defendant is
liable for
the plaintiffs damages.
It is ordered:
1.
That the defendant is liable to compensate the plaintiff for 100
percent (one hundred percent) of his or proven or agreed damages
suffered as a result of the collision;
2.
That the defendant has to pay the plaintiff's party and party costs
of the action on the High Court scale from 5 September 2011;
3.
That the defendant has to pay interest on the costs a tempore morae
at the rate of 15.5 percent per annum calculated from date
of the
taxing master's allocator, alternatively date of agreement in respect
of costs, to date of payment;
4.
The issue of the quantum of the plaintiff's damages is postponed sine
die.
Judge Pretorius
Heard
on : 5 September 2011
For
the Applicant / Plaintiff : Adv Maphelela
Instructed
by : RJ Ntimane Inc
For
the Defendant: Adv Schreuder
Instructed
by : Maponya Inc
Date
of Judgment : 15 September 2011