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[2023] ZAFSHC 107
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Makhele v Road Accident Fund (3417/2019) [2023] ZAFSHC 107 (5 April 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
no:
3417/2019
Reportable:
Of Interest to other Judges: NO
Circulate
to Magistrates: NO
In
the matter between:
AT
MAKHELE
Plaintiff
and
ROAD
ACCIDENT FUND
Defendant
CORAM:
JP
DAFFUE, J
HEARD
ON:
17
& 18 JANUARY 2023
DELIVERED
ON:
05 APRIL 2023
This
judgment was handed down electronically by circulation to the
parties’ representatives by email, and release to SAFLII.
The
date and time for hand-down is deemed to be 12h00 on 05 April 2023.
ORDER
1.
The defendant shall pay 100% of the plaintiff’s damages to be
proven
or agreed upon.
2.
The defendant shall pay the plaintiff’s costs of the action,
limited
to one set of attorneys, until and including 18 January 2023,
together with counsel’s fees, including his fees pertaining
to
the drafting of his written heads of argument, and also including the
reasonable costs of all medico-legal reports, the qualifying
and
reservation fees, if any, of the plaintiff’s experts.
3.
The matter is postponed to the pre-trial roll of 26 June 2023 in
order
for directions to be given pertaining to the trial on quantum.
JUDGMENT
INTRODUCTION
[1]
This is yet again one of those defended actions against the Road
Accident Fund
that could just as well have been placed on the
unopposed roll. It is
now
common cause that on 27 April 2018
at approximately 15h02 and in the area of Bloemspruit on the N8
national road between Bloemfontein
and Thaba Nchu, the plaintiff, Mr
Austin Tsokolo Makhele, was the driver of his motor vehicle with
registration DZC 463 FS which
vehicle left the road and overturned
resulting in injuries sustained by the plaintiff. I underlined the
word ‘now’
for a specific reason which will soon become
clear.
THE
PLEADINGS AND PRE-TRIAL PROCEDURE
[2]
It is the plaintiff’s case, both on the pleadings as well as in
his oral
evidence, that an unknown vehicle veered into his lane of
traffic as a result of which the plaintiff swerved to the left to
avoid
a head-on collision, lost control of the vehicle as it left the
road as a result of which it overturned. He sustained injuries in
the
process.
[3]
The
allegations in the plaintiff’s particulars of claim pertaining
to the incident and the unknown insured driver’s
negligence
have been met in the plea with bare denials.
[1]
This is the case notwithstanding the fact that the Accident Report
(AR) form of the South African Police Service (SAPS) and the
plaintiff’s explanatory affidavit accompanied his claim lodged
with the defendant during the first half of 2019. In fairness
to the
present attorney of the defendant, the plea was drafted by its
previous attorney. Insofar as the plea contains bare denials,
the
defendant failed to rely in the alternative on any contributory
negligence on the part of the plaintiff in the event of a finding
that the incident did in fact occur as alleged by the plaintiff. The
defendant also did not seek any apportionment of damages in
its plea.
[4]
The
parties’ pre-trial minute dated 7 April 2022 forms part of the
pleadings bundle.
[2]
The
plaintiff indicated his readiness to proceed on trial in respect of
both the merits and quantum. His expert reports had been
filed by
then. The defendant, on the other hand, requested that the merits and
the quantum be separated. However, on 13 June 2022
Van Zyl J declared
the matter trial-ready and ordered that both merits and quantum ought
to be adjudicated at the forthcoming trial.
The defendant did
virtually nothing to ensure that it would be ready to proceed on
trial, not in respect of the merits and most
certainly not in respect
of quantum.
[5]
At the stage when the parties held their pre-trial conference nearly
a year
ago, it was placed on record on behalf of the defendant that
it “may call 1 - 2 witness, but reserves its rights”.
Clearly, at that stage the defendant’s legal representative had
no idea as to who would be called and what such witness or
witnesses
would testify about, contrary to the peremptory requirements of rule
37A(10). This is a situation that is experienced
on a weekly basis in
this division.
[6]
In paragraph 11 of the pre-trial minute the parties considered the
status of
the discovered documents. They agreed that these discovered
documents were what they purported to be and might be used in
evidence,
without any admissions as to the contents thereof. I shall
return to this aspect.
[7]
On receipt of the court file after being allocated the matter, I
directed my
secretary to write an email to both parties, which she
did on 10 January 2023. I quote the contents thereof:
“
Dear
all
The
above matter and two others have been allocated to Daffue J for 17,
18 and 20 January 2023. He instructed me to communicate
with you.
Please respond to the following not later than Friday,
13
January 2023 at 16h00
:
What
does the RAF intend to do, bearing in mind the matter is on trial in
respect of merits and quantum and no expert reports have
been filed
by it?
1)
Is there a possibility of settlement, and if so, when can settlement
be expected?
2)
Is the RAF not prepared to make any admissions pertaining to either
the merits or the quantum or
both?
3)
Which of the expert reports are denied, and if so, on what basis?
4)
How many witnesses will be called by the parties in respect of the
collision?
5)
Is it expected that the matter will go on trial, and if so,
arrangements may well have to be made
for re-allocation of the matter
to another judge.
Your
urgent responses are awaited.”
The
plaintiff’s legal representative responded, but no response was
forthcoming from the defendant’s legal representative.
[8]
It will turn out later when I evaluate the evidence that the
defendant was ill-prepared
to even deal with the merits of the
matter. The defendant’s plea was filed in August 2019, ie more
than a year after the
occurrence of the incident. It is accepted that
copies of the contents of the SAPS docket as well as hospital records
were attached
to the plaintiff’s claim documents. In fact, Ms
Banda obtained an admission from the plaintiff in this regard during
cross-examination.
No doubt, at the stage when the plea was filed,
the person responsible for that (the defendant’s previous
attorney and not
Ms Banda), did not have a clue how to draft a proper
plea. If he/she was presented with witness statements of the two SAPS
officers,
or had the opportunity to consult with them, there would
have been no denial of the incident as pleaded in paragraph 3 of the
particulars
of claim. If it was really the defendant’s case
that the plaintiff experienced a tyre burst which caused him to lose
control,
as allegedly observed by the one SAPS officer who completed
the AR form, that would and should have been pleaded.
SEPARATION
OF ISSUES
[9]
On the date of the hearing Ms Banda requested a separation of issues
in order
for the court to adjudicate the merits only. Mr Marx
objected on behalf of the plaintiff. He pointed out that all
plaintiff’s
expert reports had been filed and although the
experts were not at court, they were on standby to testify if
required. In order
to assist the defendant who failed to file any
expert reports, I decided to grant a separation of issues in terms of
rule 33(4)
on the basis that paragraphs 5, 6 & 7 of the
particulars of claim, read with the corresponding paragraphs in the
plea, should
stand over for later adjudication if required.
Consequently, only the disputes contained in paragraphs 1, 2, 3, 4, 8
and 9 of the
particulars of claim, read with the corresponding
paragraphs of the plea, were to be adjudicated during the trial. I
did this to
assist the defendant who was clearly not ready to proceed
on quantum and bearing in mind that public funds were at play. Prior
to the leading of evidence Ms Banda placed on record that the
allegations contained in paragraphs 8 and 9 of the particulars of
claim were admitted and no longer in dispute. Therefore, as the
plaintiff’s locus standi had been admitted earlier, the only
outstanding issues were those contained in paragraphs 3 and 4 of the
particulars of claim, ie the incident as well as the grounds
of
negligence.
SUMMARY
OF THE EVIDENCE AND AN EVALUATION THEREOF
The
plaintiff’s evidence
[10]
Only one witness testified during the trial, to wit the plaintiff, Mr
Makhele. He was 60 years old
when the incident occurred and 64 when
he testified. At the time of the incident he was employed with PACOFS
at the Sand du Plessis
theatre in Bloemfontein. On the morning of 27
April 2018, a public holiday, he travelled from his residence in
Botshabelo to Bloemfontein.
He visited various shops and/or
businesses in Bloemfontein, but I must say, he was quite evasive in
this regard. On his return
home the incident occurred at about 15h00
the afternoon. He was alone in the vehicle. At the point where the
incident occurred
the road contained two lanes in a western
direction, ie from Botshabelo to Bloemfontein and as the plaintiff
was travelling from
Bloemfontein to Botshabelo, ie west to east, the
road contained only a single lane.
[11]
The plaintiff testified that the road contained gravel shoulders, but
it was pointed out to him by
the court with reference to the
photographs presented to court during his cross-examination that the
road had tarred shoulders.
He admitted this. He testified that a
vehicle travelling in the right hand lane (the fast lane from
Botshabelo towards Bloemfontein)
veered off to its right hand side
across the solid white line into his lane of travel. This occurred
when that vehicle was about
18 metres from him (he pointed out the
distance from the witness stand to the back of the court room). In
order to avoid a collision,
he swerved towards his left hand side.
There was no time to apply his brakes and if he would have done so,
there would have been
a head-on collision. In the process of swerving
to his left he lost control as the vehicle left the road where after
it overturned.
His speed at the time was 80 km/h. According to him
there was nothing that he could do to avoid the incident. There was
no contact
between his vehicle and the oncoming vehicle. He could not
identify this vehicle at all, not with reference to a registration
number,
or its make and/or colour. At the end of his
examination-in-chief he was asked whether he was able to resume his
work at PACOFS
after the collision to which he respondent: “not
at all”.
[12]
Before Ms Banda started her cross-examination, she handed in the
so-called merits bundle as exhibit
A, a notices bundle, marked volume
2, as exhibit B and a notices bundle, marked volume 1, as exhibit C.
Mr Marx did not object,
but he clearly reserved his rights. During
his cross-examination the plaintiff confirmed that these documents
were lodged with
his claim. The plaintiff was referred to his
statement to SAPS, the Accident Report (AR) form as well as the
hospital records contained
in exhibits B and C. He confirmed his
statement and that the hospital records were indicative of the
injuries allegedly sustained
by him and treatment received.
[13]
The plaintiff was subjected to severe cross-examination. He was on
the witness stand from Tuesday the
17
th
to Wednesday the
18
th
of January. He could not explain what exactly he was
doing in Bloemfontein on the day of the incident, but denied that he
consumed
alcohol insofar as he is a diabetic. He only drinks African
beer from time to time, but nothing else.
[14]
He was
referred to an inscription in the hospital records that he was
intoxicated, smelling of alcohol and presented with bloodshot
eyes.
[3]
He denied that he
consumed liquor that day and denied the correctness of the
inscription. Mr Marx objected to the cross-examination,
but I allowed
it on the basis that the documents were discovered by plaintiff and
the agreement of the parties in their pre-trial
minute referred to
earlier. In my view the defendant might have decided to call
witnesses in this regard or apply for the hearsay
evidence to be
admitted. Therefore, it was only fair to put this version to the
plaintiff to provide him an opportunity to respond.
I also found it
strange that the plaintiff’s attorney prepared these bundles
and filed them with the court beforehand, whilst
the plaintiff’s
counsel did not refer to a single document, sketch plan or photograph
contained in the bundles during the
plaintiff’s
evidence-in-chief. Consequently, disputed aspects were not dealt
with. Discovered documents are not to be presented
to the trial
court, save insofar as these might be presented as part of the
evidential material. At that stage I was fully aware
of the status of
the discovered documents, ie they were what they purported to be and
could be used in evidence without any admissions
as to the contents
thereof.
[15]
The plaintiff was also referred to the sketch plan and the note
contained in the AR report. This report
indicated that, where the
incident occurred, the road from Bloemfontein to Botshabelo contained
two lanes and the road from Botshabelo
to Bloemfontein one lane only.
Mr Marx again objected to the cross-examination which objection was
dismissed for the same reasons
as indicated in the previous
paragraph. The AR form and sketch plan are in direct conflict with
the viva voce evidence of the plaintiff
and he denied the correctness
of the sketch plan. He also denied the version that his tyre had
burst as stated in the AR report.
After questions by myself about the
area where the incident occurred, I drew a rough sketch in court
which was marked exhibit D
once it was admitted by the plaintiff to
be a correct indication of his evidence. The plaintiff could not say
whether there were
any cars following him immediately before the
incident, although there were other cars approaching him, but in the
slow lane.
[16]
It was put to the witness that he did not keep a proper lookout,
otherwise he would have observed the
vehicle swerving across the
solid white line into his lane, but he denied that. When asked about
the date of his statement to SAPS,
to wit 17 January 2019, he
explained that he could not make a statement earlier as he was
hospitalised all the time. It was put
to him that he was discharged
already on 24 June 2018 according to the records, but he denied this.
[17]
The plaintiff testified that he never went back to the scene of the
incident in order for photos to
be taken and/or a sketch plan to be
drawn on his instructions. Yet, he admitted that the photographs
contained in Exhibit B depict
the area of the incident and he was
adamant about this, specifically with the big tree shown on some of
those photos as his focal
point. If these photos were indeed taken at
the correct area, his version of the lanes on the road must be
accepted as correct.
[18]
The plaintiff conceded that his version in examination-in-chief that
he never went back to work after
the incident was not correct. He did
in fact start to work again in January 2019.
[19]
The
plaintiff was shown another sketch plan
[4]
.
It was put to him that this sketch plan was contrary to his version
in court. He denied that it was drawn by him or on his instructions
and he merely said that he knew nothing about it. He admitted that
when he attended to SAPS in order to present a statement to
them, a
sketch plan was drawn, but he could not explain the whereabouts
thereof. Fact of the matter is that no SAPS official was
called to
explain what was contained in the docket and what was the source
thereof. There is no information about the origin of
the sketch plan
and/or the identity of the draftsperson.
[20]
The same sketch plan appears on page 10 of Exhibit A and page 174 of
Exhibit B. This was clearly drawn
by an attorney or employee of an
attorney as it refers to ‘client’ and ‘client’s
lane’. It is similar
to the one drafted by me, Exhibit D,
whilst listening to the plaintiff’s evidence and confirms the
plaintiff’s version
about the lanes and the unknown vehicle
approaching in the fast lane before crossing the solid white line.
[21]
The plaintiff agreed that he did not hoot in order to warn the
oncoming vehicle and neither did he
flash his lights as a warning
sign. On his version and even at the speed of travelling at 80 km/h,
there was no time to do that.
It was also put to him that at that
speed, his vehicle would not have overturned if he merely moved to
the left to avoid the oncoming
vehicle, but he denied this.
[22]
On
questions by the court the plaintiff stated that: (a) he never went
back to the scene after the incident, although it is accepted
that he
knows the road well, having travelled it on a daily basis between his
residence and Bloemfontein and in this regard it
may be mentioned
that it appears from his affidavit served with his claim documents
that he has been employed by Pacofs in Bloemfontein
since 1986
[5]
;
(b) although the photographs on pages 175 to 185 of exhibit B depict
the scene of the incident, he could not say who took the
photographs
as he never went to the scene with an attorney; (c) he did not
provide any information of the incident to SAPS officers
at the
scene, but could not explain how they obtained his address and phone
number to be inserted on the AR form; (d) the weather
conditions were
good at the time of the incident and it was not raining at all.
[23]
It was finally put to the plaintiff by Ms Banda that he had a tyre
burst, that he was speeding on that
day and that he lost control of
his vehicle; also, that no vehicle crossed the solid white line into
his lane of traffic, but he
denied all these statements. Quite
surprisingly, Ms Banda never put it to the plaintiff that tyre marks
allegedly found on the
scene by the SAPS officer who filled out the
AR form were indicative of a tyre burst. I accept that it would be an
unethical way
of cross-examination in the absence of a proper
statement under oath by a witness who could vouch for the correctness
of his/her
observations pertaining to tyre marks and who was prepared
to draw conclusions of an expert nature that the marks had been
caused
by the tyre(s) of the plaintiff’s vehicle consequent
upon a tyre burst.
[24]
In re-examination the plaintiff confirmed that he was never charged
for driving under the influence
of liquor. He also said that he did
not understand the question when it was put to him whether he
returned to worked after the
incident.
ANALYSIS
AND EVALUATION OF THE EVIDENCE
[25]
After the closure of defendant’s case without leading any
evidence, Mr Marx presented the court
with his oral argument, but Ms
Banda needed time to present argument. I directed that she should
file written heads of argument
by Monday, 23 January 2023 to which Mr
Marx would have an opportunity to reply by Friday, 27 January 2023. I
timeously received
Ms Banda’s heads of argument, but Mr Marx’
heads of arguments were received much later than directed. However,
as I
was on circuit court for a whole month, I was not inconvenienced
by the delay.
The
viva voce evidence
Mr
Marx submitted that the plaintiff was a credible witness and that if
he wanted to fabricate his version, he could have given
details of
the oncoming vehicle that caused him to swerved to his left. He
submitted further that the court should not make a negative
inference
about the plaintiff’s inability to mention the make or colour
of the oncoming vehicle. The plaintiff’s version
about the
distance between the two vehicles when the offending vehicle came
across the solid white line was an estimate. When asked
by the court
about the distance between the two vehicles at that point in time,
the witness did not want to concede that the distance
must have been
much further than the 18 to 20 metres estimated by him. Bearing in
mind reaction time and the distance travelled
at a specific speed,
the plaintiff’s estimate is totally incorrect. However, I do
not intend to set out any mathematical
calculations, save to point
out that at a speed of 80 kph a vehicle travels a distance of 22.2
metres in a second. Thus, if the
approaching vehicle was travelling
at the same speed, the combined distance travelled in one second
would be 44.4 metres. It is
generally accepted that reaction time of
the average person is between three quarters of a second and one
second. If the distance
between the two vehicles was in excess of 44
metres, a collision might have been avoided by swerving, but surely
not if the distance
of 18 to 20 metres is accepted as correct.
However, experience has taught us that honest witnesses more often
than not make mistakes
when asked to estimate distance or time,
especially in the heat of the moment and/or when dealing with moving
vehicles or other
subjects. The plaintiff’s version cannot be
rejected based on the observation above.
[26]
I pointed out during questions put to the plaintiff that I was not
fully satisfied with each and every
piece of his testimony. The
version presented why he belatedly made a statement to SAPS nine
months after the incident appears
to be far-fetched. Also, his total
unawareness as to who took the photographs and drafted the sketch
plan relied upon, appears
to be unbelievable at first glance. Having
said this, one must consider the time lapse and the fact that the
plaintiff’s
child and/or other relatives were informed about
the incident and probably assisted with the process to obtain legal
advice. The
plaintiff was vague about his visit to Bloemfontein on
the 27
th
April 2018. He also contradicted himself as to
whether he returned to his employment after the incident.
Notwithstanding this and
bearing in mind the absence of evidence to
contradict his version, it is not possible to reject the crux of his
evidence as false.
Admissibility
of hearsay evidence
[27]
The documents contained in the police docket as well as the hospital
records were discovered, but the
contents thereof were never
admitted. Therefore, the allegations contained therein cannot be
accepted as evidence in the circumstances.
Ms Banda tried to persuade
the court in her written heads of argument that the hearsay should be
allowed as admissible evidence.
Although I allowed her to
cross-examine the plaintiff on the documents, it was always on the
basis that in the event of a dispute,
the defendant would either
present viva voce evidence by the authors of these documents or
request that the contents thereof be
allowed as part of the
evidential material based on the exception to the hearsay rule. The
defendant closed its case without calling
any witnesses and also
failed to apply for the admission of the hearsay evidence in
accordance with
s 3(1)
of the
Law of Evidence Amendment Act 45 of
1988
and/or s 34 of the Civil Proceedings Evidence Act 25 of 1965.
[28]
Ms Banda
relied on
S
v Shaik and Others
[6]
,
Le Roux
v Pieterse and Others
[7]
and
Van
Willing and another v The State
[8]
in
submitting that the court should allow the hearsay evidence. These
judgments are totally distinguishable and even if that was
not the
case, the defendant failed to apply for the hearsay evidence to be
admitted in accordance with s 3(1) of Act 45 of 1988.
In
Shaik
the Supreme Court of Appeal extensively dealt with s 3(1) and the
factors contained in s 3(1)(c). It held eventually that the
incriminating fax should be admitted as evidence in the interests of
justice. The court inter alia found that the cross-examination
of the
author of the fax would have served no other purpose than to
reinforce the impression that he is dishonest and unreliable.
[29]
Section 34 was considered in
Le Roux v Pieterse
. In that case
the medical doctor that prepared a J88 report after having examined
the complainant emigrated and it was not reasonably
practicable to
obtain her presence in this country. It was not in contention that
she was the author of the document and the contents
thereof were
largely confirmed under oath by the complainant. The trial court
admitted the J88. On appeal, the High Court held
that the J88 was
admissible under s 34(1).
[30]
In
Von Willing
the Supreme Court of Appeal considered the
admissibility of hearsay evidence in terms of s 3(1). It held
eventually that the statements
of the deceased person were correctly
accepted by the trial court as admissible, inter alia insofar as they
corroborated the version
of an identifying witness.
[31]
In regard to the submissions by Ms Banda I take into consideration
the following:
a.
Exhibit A contains the police docket which includes the AR form,
filled out by constable Lepele,
as well as a written statement by the
other SAPS officer that attended the scene, W/O Talo. W/A Talo did
not mention any smelling
of alcohol, although he stated that he
communicated with the plaintiff on the scene. He also failed to
mention any tyre marks on
the road. Ms Banda informally explained in
chambers that one of her witnesses passed on whilst the other witness
was in hospital
at the time. She did not explain when this person was
expected to be discharged from hospital. She also did not identify
the witnesses
referred to. I have not been told whether W/O Talo is
the one that passed on or whether he was hospitalised at the time of
the
hearing. In any event, his version does not take the matter any
further. The AR form completed by his colleague, constable Lepele,
is
dated 26 April 2018, to wit a day before the incident. There is no
explanation for this mistake. Also, the allegation that a
tyre had
burst is nothing more than an observation by a person who did not
state the facts for his opinion and who did not testify
to be
properly cross-examined. There is no objective evidence to
corroborate his observation. The scene depicted in the sketch
plan on
the AR form pertaining to the lanes on the road was severely disputed
by the plaintiff.
b.
Although one SAPS officer apparently passed on since then, no proper
explanation has been given
as to why the evidence of the second
officer could not be obtained. I was merely told that he was
hospitalised during the trial
proceedings. Nothing further was said
in this regard, ie as to the nature of his condition, since when he
was hospitalised and
when he was expected to be discharged. There was
also no application for a postponement of the trial in order to
obtain the evidence
of this witness.
c.
The same applies to the person that made the inscription hospital
records. The identity of
this person is not even disclosed, but over
and above that, there is no indication whether Ms Banda tried to
consult with this
person and if so, whether a statement was obtained
from such person and/or whether this person was available to testify
to confirm
the correctness of his/her observations. Also, the
inscription was not only disputed, but it contradicts the version of
W/O Talo
who allegedly spoke to the plaintiff on the scene without
mentioning anything about smelling of alcohol or blood-stained eyes.
d.
The Supreme
Court of Appeal authoritatively held in
Rautini
v Passenger Rail Agency of South Africa
[9]
as follows:
‘
[11]
The contents of the hospital records and medical notes constituted
hearsay evidence, and it is trite that hearsay evidence
is prima
facie inadmissible. The discovery thereof by the appellant in terms
of the rules of court does not make them admissible
as evidence
against the appellant, unless the documents could be admitted under
one or other of the common law exceptions to the
hearsay rule.
[12]
It is common cause that the respondent’s counsel made no
application for any of the hearsay evidence to be admitted in
terms
of
s
3
of
the
Law
of Evidence Amendment Act. In
the
circumstances, the full court’s finding that material
differences existed between the appellant’s version and the
medical records regarding where he fell from the train, the cause of
his fall and his first lucid recollection after the fall,
was
erroneous. The full court’s reliance on hearsay evidence in
that regard amounts to a material misdirection that vitiates
its
ultimate finding on the outcome of the appeal that was before it.’
[32]
This case is in line with the facts in
Rautini
. Not only did
Ms Banda fail to apply during the trial and before the close of the
plaintiff’s case, or even the defendant’s
case, for the
hearsay to be admitted, but the hearsay is disputed by the plaintiff
and contradicted by other hearsay. To sum up:
the defendant failed to
show that (a) it is entitled to relief in terms of
s 34
, particularly
insofar as it was not placed on record that the person or persons who
made statements relevant to the case are dead
or unfit to testify;
and (b) in respect of
s 3(1)
, that the court should allow the hearsay
in the interests of justice after having considered the factors set
out in
s 3(1)(c).
It would be unfair to allow it at this stage, but
in any event, the probative value thereof is about zero. Therefore,
even if it
was at all possible at this stage, I am not prepared to
consider a belated application, either in terms of
s 3(1)
or
s 34
of
the aforementioned Acts.
[33]
I agree with the submission in the defendant’s written heads of
argument that the plaintiff,
who is 64 years old, became irritated by
some of the questions put to him during cross-examination. There is
no reason to find
that his credibility was negatively affected as a
result thereof. Both Mr Marx and I allowed Ms Banda some leeway
pertaining to
her cross-examination which in many instances became
argumentative and/or repetitive.
Contributory
negligence
[34]
I repeat that the defendant did not rely on contributory negligence
in its plea and failed to lead
any evidence in this regard. The
plaintiff was subjected to cross-examination pertaining to other
measures that could have been
utilised to prevent the incident, such
as hooting, braking and flashing of lights, but he insisted there was
no time to act accordingly
and that swerving to his left was the only
option to avoid a collision with the oncoming vehicle. The issue of
contributory negligence
could not and did not arise. On the
plaintiff’s version which has to be accepted, he was confronted
with a sudden emergency
due to the negligence of the driver of the
unidentified vehicle. This was sudden and unexpected. He cannot be
blamed for reacting
as he did. Clearly, the vehicle overturned when
he left the tarred road as the veld next to the road is on a much
lower level than
the road surface as he testified. This is apparent
from the photographs.
CONCLUSION
[35]
The plaintiff was a single witness whose evidence was not wholly
satisfactory in all respects. His
evidence was not contradicted by
any admissible evidence and notwithstanding cross-examination he did
not contradict himself on
the crucial issues. The defendant had more
than enough time to investigate the circumstances surrounding the
incident and to ensure
that it was in a position to present evidence
to negate the plaintiff’s version. It failed to do so. I am
satisfied that
the plaintiff’s version as to how and where the
incident had occurred is the truth. He has proven his case on a
balance of
probabilities.
ORDER
[36]
The following orders are granted:
1.
The defendant shall pay 100% of the plaintiff’s damages to be
proven or agreed upon.
2.
The defendant shall pay the plaintiff’s costs of the action,
limited to one set of attorneys,
until and including 18 January 2023,
together with counsel’s fees, including his fees pertaining to
the drafting of his written
heads of argument, and also including the
reasonable costs of all medico-legal reports, the qualifying and
reservation fees, if
any, of the plaintiff’s experts.
3.
The matter is postponed to the pre-trial roll of 26 June 2023 in
order for directions to be given
pertaining to the trial on quantum.
J
P DAFFUE, J
On
behalf of the Plaintiff: Adv
DJ Marx
dmarxlaw@icloud.com
;
Instructed
by: VZLR
Inc
c/o Du Plooy Attorneys
BLOEMFONTEIN
On
behalf of the Defendant: Ms
P Banda
portiab@raf.co.za
;
Instructed
by: Road
Accident Fund
BLOEMFONTEIN
[1]
Pleadings bundle, paras 3 & 4 on pp 7, 8 & paras 3 & 4
on p 12.
[2]
Pleadings bundle, pp 17 – 23.
[3]
Exhibit B, p 136.
[4]
Exhibit B, p 186.
[5]
Exhibit A, para 6 on p 3.
[6]
[2006] ZASCA 105
;
2007 (1) SACR 247
(SCA) paras 170 – 178.
[7]
2013 (1) SACR 277
(ECG) paras 13 – 15.
[8]
(109/2014)
[2015] ZASCA 52
(27 March 2015).
[9]
(Case no 853/2020)
[2021] ZASCA 158
(8 November 2021) paras 7 –
18 & 21 – 24 in general and paras 11 & 12 in
particular.