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[2023] ZAFSHC 93
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Meruti obo T.P.M v Road Accident Fund (3105/2021) [2023] ZAFSHC 93 (30 March 2023)
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IN THE HIGH COURT
OF SOUTH AFRICA,
FREE STATE
DIVISION, BLOEMFONTEIN
Case No.: 3105/2021
Reportable:
YES/NO
Of Interest to other
Judges:
YES/NO
Circulate to
Magistrates:
YES/NO
In the matter between: -
SEATILE MIRIAM MERUTI
OBO
T[....]1
P[....]
M[....]
Plaintiff
and
ROAD
ACCIDENT
FUND
Defendant
CORAM:
C. J.
MUSI, JP
HEARD
ON:
03 FEBRUARY 2023
DELIVERED
ON:
30 MARCH 2023
[1]
The plaintiff, the mother and guardian of a minor, instituted a claim
against the Road Accident Fund (RAF)
for damages sustained by the
minor as a result of an incident arising from the driving of a motor
vehicle by a driver insured by
the RAF.
[2]
In paragraph 4 of the plaintiff’s particulars of claim she
alleged that:
‘
On or about the
07
th
day of May 2017, and at, near or along Nthunya
street, Ikgomotseng in Soutpan, Free State province, the plaintiff’s
minor
T[....]1 P[....] M[....]
was a passenger of a motor
vehicle bearing registration letters and numbers
CKM [....] [....]
(the “Insured vehicle”), there and then been driven
by a certain
LIBELE LUKU KOTOYI
(the “Insured driver”)
when she fell out of moving vehicle.’
[3]
The defendant denied any knowledge of the incident. It further
pleaded that should it be found that the incident
occurred as alleged
by the plaintiff it specifically denies that the insured driver Mr LL
Kotoyi was negligent.
[4]
The merits were separated from the quantum, in terms of R33(4). The
plaintiff called two witnesses, the injured
minor and her friend. The
defendant called the insured driver.
[5]
T[....]1 Meruti (18) testified that on 7 May 2017 three males who
were selling chickens arrived at her friend,
Thandeka’s
parental home with a pickup (bakkie) and consumed beers there. After
consuming beer, the males asked her and her
friends to accompany
them. They drove around the township selling chickens and at some
stage they stopped at a tavern where the
males bought three quarts of
beer. They went back to Thandeka’s parental home. When the
males were about to leave they (she
and Thandeka) asked them to give
them a lift to the local shops. They agreed and she and her friends
(between 7 and 10 friends)
climbed unto the goods compartment of the
bakkie. The bakkie drove off. The driver sped and drove pass a stop
sign. They signalled
to the driver to stop. They did so by knocking
on the back cabin window to no avail. They unsuccessfully attempted
to wake one
of the males who was sleeping in the goods compartment of
the bakkie. There was a commotion and someone pushed her off the
bakkie.
She does not know who pushed her. She was injured and
hospitalised.
[6]
The second witness on behalf of the plaintiff, T[....]2Sebati, an 18
year old matriculant, is T[....]1 friend.
She confirmed that the
males arrived at her parental home in a Nissan 1400 bakkie. She
further confirmed T[....]1 testimony with
regard to what happened
during the cause of that day. She testified that they asked the males
for a lift to the shops. The vehicle
drove at an extremely high
speed. They signalled to the driver to stop, by knocking on the
window, but he did not. There was a
commotion and someone pushed
T[....]1 off the bakkie. She (Thandeka) jumped off the bakkie. The
car sped off as the males did not
see what had happened. Their other
friends subsequently told her that they too had jumped from the
moving bakkie.
[7]
Mr Lebele Luke Kotoyi testified that on 7 May 2017 he was the driver
of a Nissan 1400 bakkie with registration
particulars CKM [....]
[....] . He transported two males from Bainsvlei to Soutpan. On their
arrival at Soutpan they drove around
the Township selling chickens.
He did not know anyone at Soutpan but the two males knew people
there. They went to a house where
his two passengers consumed
alcohol. He did not consume alcohol on that day. One of the men took
the bakkie and left to try and
sell the rest of the chickens. He took
inordinately long and they sent children to go and look for him. The
children found him
and when he returned, they sat for twenty minutes
and decided to leave.
[8]
He went to the bakkie where he waited for his passengers. There were
chickens and a spare wheel in the goods
compartment of the bakkie.
The goods compartment was covered with a canvas and he did not see
any person in it. When his passengers
arrived they left for
Bainsvlei. In the township, he drove at an average speed of between
60 and 65km/h. They stopped at a filling
station at Bloemfontein and
someone called one of his passengers and informed him that they ‘let
a child fall’.
[9]
The RAF denied liability. The bases for holding the RAF liable are
set out in s17 of the Road Accident Fund
Act
[1]
which reads:
‘
(1)
The Fund or an agent shall –
(a)
subject to this Act, in the case of a claim for compensation under
this section arising
from the driving of a motor vehicle where the
identity of the owner or the driver thereof has been established;
(b)
subject to any regulation made under section 26, in the case of a
claim for compensation
under this section arising from the driving of
a motor vehicle where the identity of neither the owner nor the
driver thereof has
been established, be obliged to compensate any
person (the third party) for any loss or damage which the third party
has suffered
as a result of any bodily injury to himself or herself
or the death of or any bodily injury to any other person, caused by
or arising
from the driving of a motor vehicle by any person at any
place within the Republic, if the injury or death is due to the
negligence
or other wrongful act of the driver or of the owner of the
motor vehicle or of his or her employee in the performance of the
employee’s
duties as employee:’
[10]
In
Wells
v Shield Insurance
[2]
it was said that:
‘
Two pre-requisites
of liability upon the part of the registered insurance company for
loss or damage suffered by a third party as
a result of bodily injury
are thus laid down. They are (i) that the bodily injury was caused by
or arose out of the driving of
the insured motor vehicle; and (ii)
that the bodily injury was due to the negligence or other unlawful
act of the driver of the
insured vehicle or the owner thereof or his
servant. The decision as to whether, in a particular case, these
prerequisites have
been satisfied involves two separate enquiries.
Broadly speaking, the first pre-requisite is concerned basically
with the
physical or mechanical cause of the bodily injury,
whereas the second is concerned with legally blameworthy conduct on
the part
of certain persons as being the cause of the bodily injury
('due to' having the same meaning as 'caused by' -
Workmen's
Compensation Commissioner v S.A.N.T.A.M. Beperk
,
1949
(4) SA 732
(C)
at pp. 736 - 7). Accordingly, these enquiries
may follow wholly distinct lines.’
[3]
[11]
On the plaintiff’s version the first pre-requisite does not
pose any difficulty. A causal connection between the
driving of the
bakkie and the bodily injury was proved.
[4]
The bodily injury was caused or arose from the driving of a motor
vehicle. The controversy to be determined, on her version, is
whether
the insured driver was negligent. On the defendant’s version
both requirements are at issue. I now turn to look at
the unique
facts of the matter and then consider whether the plaintiff, who
bears the onus, has proved that the insured driver
was negligent.
[12]
T[....]2 and T[....]1 were 13 years old on the date of the incident.
T[....]2 made her statement during October 2022,
approximately 5
years and 5 months after the event. In her statement, T[....]2stated
that the driver was Lepelle Kotoyi. She, however,
testified that she
does not know a person by that name and that a certain Oupa was the
driver of the bakkie. She denied mentioning
the name or surname of
the insured driver. She could also not explain how his name came to
be mentioned in her statement. She could
not say whether Oupa and the
insured driver are the same person.
[13]
In her evidence-in-chief she testified that someone pushed T[....]1.
During cross-examination she testified that she
heard after the
incident, from one of ‘the other children’ that she was
pushed. She conceded that she does not know
how T[....]1 fell off the
bakkie because she had heard afterwards. She further testified that
the bakkie was driving at approximately
180 km/h in the township when
T[....]1 was pushed and when she (Thandeka) jumped off the bakkie.
She, however, sustained no serious
bodily injury; she only had
abrasions. None of the other children who jumped off the bakkie
sustained injuries.
[14]
T[....]1 testified that she does not know who pushed her. During
cross-examination it was put to her that according to
the accident
report she jumped off a moving vehicle. She insisted that she was
pushed by an unknown person. T[....]1 testified
that there was a male
who was sleeping in the goods compartment of the bakkie, but
T[....]2did not mention him, at all.
[15]
The insured driver testified that there was no one in the goods
compartment of the bakkie as it was closed with a canvas
to prevent
the chickens from flying out.
[16]
I am faced with two irreconcilable versions. The manner in which such
factual disputes are generally resolved has been
set out in
Stellenbosch
Farmers’ Winery v Matell
.
[5]
‘…
The
technique generally employed by courts in resolving factual disputes
of this nature may conveniently be summarised as follows.
To come to
a conclusion on the disputed issues a court must make findings on (a)
the credibility of the various factual witnesses;
(b) their
reliability; and (c) the probabilities. As to (a), the court’s
finding on the credibility of a particular witness
will depend on its
impression about the veracity of the witness. That in turn will
depend on a variety of subsidiary factors, not
necessarily in order
of importance, such as (i) the witness’s candour and demeanour
in the witness-box, (ii) his bias, latent
and blatant, (iii) internal
contradictions in his evidence, (iv) external contradictions with
what was pleaded or put on his behalf,
or with established fact or
with his own extracurial statements or actions, (v) the probability
or improbability of particular
aspects of his version, (vi) the
calibre and cogency of his performance compared to that of other
witnesses testifying about the
same incident or events. As to (b), a
witness’s reliability will depend, apart from the factors
mentioned under (a)(ii),
(iv) and (v) above, on (i) the opportunities
he had to experience or observe the event in question and (ii) the
quality, integrity
and independence of his recall thereof. As to (c),
this necessitates an analysis and evaluation of the probability or
improbability
of each party’s version on each of the disputed
issues. In the light of its assessment of (a), (b) and (c) the court
will
then, as a final step, determine whether the party burdened with
the onus of proof has succeeded in discharging it. The hard case,
which will doubtless be the rare one, occurs when a court’s
credibility findings compel it in one direction and its evaluation
of
the general probabilities in another. The more convincing the former,
the less convincing will be the latter. But when all factors
are
equipoised probabilities prevail.
[6]
[17]
The plaintiff tendered three different versions on how the incident
happened. First, the particulars of claim state that
T[....]1 fell
out of the moving bakkie. Second, T[....]1 and T[....]2testified that
the former was pushed off the bakkie. In the
accident report it is
stated that she jumped off the bakkie.
[18]
There is no sensible reason why the insured driver would have refused
to stop for them to alight. It highly improbable
that all the other
children would have jumped off the fast moving bakkie without any of
them sustaining serious injuries. On the
insured driver’s
version there were live chickens in the goods compartment, it would
not make sense to keep the chickens
in an uncovered compartment. It
is obvious that some if not all of them would have flown out of the
compartment, as they were not
in a chicken coop.
[19]
The danger of suggestions having been made to the children is also a
reality in this matter. T[....]2denied mentioning
the insured
driver’s name to the person who took her statement. Both of
them testified that they were between seven and ten
children on the
bakkie. T[....]2initially testified as if she had seen who pushed
T[....]1, in cross-examination she testified
that she subsequently
heard that she was pushed. Strangely, she does not know or enquired
as to who pushed T[....]1. Although it
is difficult to estimate the
speed at which a car is travelling, it is clear that T[....]2was
exaggerating.
[20]
The insured driver’s version is simple and straightforward.
There was no one in the compartment that he was aware
of. His version
is not improbable.
[21]
In my view, it is probable that T[....]1 alone or with
T[....]2clandestinely got onto the bakkie and T[....]1 fell off
the
moving bakkie. That explains why the insured driver was not aware of
her or them and why they could not give a coherent account
of how
T[....]1 sustained her injuries. Regard being had to the
probabilities and the fact that the plaintiff bears the onus, I
cannot find on a balance of probabilities that T[....]1 injuries are
due to insured driver’s negligence or other wrongful
act.
[22]
The claim ought to be dismissed. There is no reason why the costs
should not follow the success.
[23]
I accordingly make the following order:
1.
The claim is dismissed with costs.
C.J. MUSI, JP
Appearances:
For the
Plaintiff:
Adv. M.C. Baloyi
Instructed
by:
Matsepes Attorneys
Bloemfontein
For the
Defendant:
Ms. P. Banda
Instructed by:
State Attorney
Bloemfontein
[1]
Road Accident Fund Act 56 of 1996
.
[2]
Wells and Another v Shield Insurance Co and Others
1965 (2) SA 865
(C).
[3]
Ibid at 867H – 868A.
[4]
Protea Assurance Co Ltd v Matinise
1978 (1) SA 963
(AD) at 972C-D;
Pillay v Santam Insurance Co Ltd
1978 (3) SA 43
(D) at 45H –
46A.
[5]
Stellenbosch
Farmers' Winery Group Ltd. and Another v Martell & Cie SA and
Others (427/01) [2002] ZASCA 98 (6 September 2002)
[6]
Ibid para 5.