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[2018] ZAECPEHC 48
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Du Plessis v Road Accident Fund (3645/2016) [2018] ZAECPEHC 48 (21 August 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION, PORT ELIZABETH
CASE NO: 3645/2016
Date heard: 14 August 2018
Date
delivered: 21 August 2018
In
the matter between
PHILLIPUS
ARNOLDUS DU
PLESSIS Plaintiff
And
ROAD
ACCIDENT
FUND Defendant
JUDGMENT
GOOSEN,
J.
[1]
The
plaintiff seeks leave to appeal against the judgment of this court
dismissing his claim with costs. It was submitted that the
court
erred in failing to make a credibility finding as regards the
plaintiff’s evidence as opposed to that of the insured
driver.
It was argued that insufficient weight was attached to the fact that
the evidence of the insured driver was in conflict
with a version of
events contained in a statement made by the insured driver to the
defendant. It was further submitted that the
court had erred in its
assessment of the probabilities. In this regard it was argued that
the probabilities established that the
collision had occurred at a
point approximately 45 metres from the intersection of the two roads.
Once this is accepted it would
follow that the ‘rear-end’
collision was occasioned by the negligence (whether in part or in
whole) of the insured
driver. It was accordingly submitted that there
exists a reasonable possibility that another court would find for the
plaintiff.
[2]
The
essential basis for the finding made in the main judgment rests upon
an assessment of the inherent probabilities and improbabilities
of
the two versions. It is not necessary in this judgment to canvass
that assessment afresh. It suffices to state that the plaintiff’s
version was found to be improbable in regard to key elements, namely
that he had entered Buffelsfontein Road; driven a short distance
along it; left the road surface and brought his motorcycle to a halt
and had placed his right foot on the ground before the collision
occurred. That version offers no explanation for how the collision
could have occurred. The insured drivers’ version was
that he
had seen the plaintiff’s motorcycle approach the intersection.
This was never challenged. Although the insured driver’s
evidence regarding the fact that the motorcycle did not stop before
entering Buffelsfontein Road and its path of travel was disputed,
he
had consistently maintained that the point of impact was on the tar
surface and not off the surface on the gravel as the plaintiff
had
testified. In seeking to overcome this critical difference in the
versions, and its impact on the outcome of the matter, plaintiff’s
counsel argued (both at trial and in seeking leave to appeal) that
the collision occurred when the insured driver’s vehicle
skidded in the wet conditions, resulting in a collision with the rear
of the motorcycle “which was in the vicinity of the
edge of the
road surface”.
[3]
The
test for determining whether leave to appeal ought to be granted is
well established. Recent authorities suggest that the threshold
has
been raised by the introduction of s 17 (1) of the Superior Courts
Act, Act 10 of 2013. It is now required that there be a
measure of
certainty that another court will differ with the court’s
judgment sought to be appealed against (see
The
Mont Chevaux Trust (IT2012/28) v Tina Goosen and 18 Others
(LCC 14 R / 2014) (cited in Erasmus,
Superior
Court Practice
,
Vol 1 at A2-55, and in
Acting
National Director of Public Prosecutions and Others v Democratic
Alliance, In re: Democratic Alliance v Acting National Director
of
Public Prosecutions and Others
19577/09 [2016] ZAGHPHC 489 (24 June 2016) at par 25); see also
Ntshokovu
v S
(157/15)
[2016] ZASCA 112
(7 September 2016)).
[4]
The
assessment of inherent probabilities and improbabilities in evidence
are matters in respect of which there is reasonable scope
for
difference of opinion. In this matter, where neither witness
impressed and where there existed no definitive basis upon which
to
impeach the credibility of either witness, save on the ground that
one was more probable than the other, the scope for such
reasonable
difference is greater. I found that the plaintiff had not discharged
the burden of proving that the insured driver was
negligent, on the
grounds pleaded, in any respect. Although I need not be persuaded
that my assessment of the probabilities upon
which the finding was
based, is wrong, it is sufficient if there exists a reasonable
possibility that another court would find
that the insured driver was
in some degree negligent. I am satisfied that such reasonable
possibility exists. Accordingly leave
to appeal must be granted. It
was common cause that in the event that leave is granted it should be
to the Full Court of this Division.
[5]
In
the result I make the following order:
1.
The
plaintiff is granted leave to appeal to the Full Court of this
Division.
2.
The
costs of the application shall be costs in the appeal.
G.
G. GOOSEN
JUDGE
OF THE HIGH COURT
Appearances:
For the Plaintiff
Adv.
D. Niekerk
Instructed
by Mc Williams & Elliot Inc.
For
the Defendant
Adv.
N. Paterson
Instructed
by Ketse Nonkwelo Inc.