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[2023] ZAFSHC 214
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Chauke v Road Accident Fund (A59/2022) [2023] ZAFSHC 214 (31 May 2023)
IN THE HIGH COURT
OF SOUTH AFRICA,
FREE STATE
DIVISION, BLOEMFONTEIN
Appeal No.: A59/2022
Reportable: YES
Of Interest to other
Judges: NO
Circulate to Magistrates:
NO
In the appeal between: -
GANYANI
PHANUEL
CHAUKE
Appellant
and
ROAD
ACCIDENT FUND
Respondent
CORAM:
C. J.
MUSI, JP
et
N.G. GUSHA, AJ
et
A.
P. BERRY, AJ
HEARD
ON:
20 MARCH 2023
JUDGMENT
BY:
C.
J. MUSI, JP
DELIVERED
ON:
31
MAY 2023
[1]
This appeal, which is with the leave of the court
a quo
,
is against a judgment of a single judge of this Division. The
appellant alleged that he sustained bodily injuries caused by or
arising from the negligent driving of a vehicle by an unknown third
party. He instituted a claim for damages against the Road Accident
Fund (RAF). The merits were separated from the quantum and the claim
was dismissed.
[2]
The facts as recounted by the appellant, the only witness, are as
follows. On 13 January
2018, he drove from Bloemfontein to Aliwal
North, a distance of approximately 200km, to visit a friend. During
the early hours
of the next day (14 January 2018), at approximately
04h00 or 05h00, he drove back to Bloemfontein on the N6 motorway.
This road
has a single carriage way with one lane per direction of
traffic. He was travelling alone in his BMW 320d. He drove at a speed
of approximately 80 to 90 km/h.
[3]
In the vicinity of Tierpoort, approximately 30 km from Bloemfontein,
whilst it was
still dark, a heavy vehicle (truck) approached from the
opposite direction. When he was approximately 30 meters from the
truck,
a vehicle emerged from behind the truck and veered into the
lane on which he was driving. In order to avoid a head-on collision,
he swerved to the left and his vehicle ventured unto the gravel verge
of the road. In an attempt to gain control of his vehicle
he swerved
to the right and in the process lost control of the vehicle, it
rolled and came to a standstill on the other side (right-hand
side)
of the road. Both the truck and the other vehicle did not stop after
the incident.
[4]
After his vehicle came to a standstill he heard voices but could not
recall what the
people had said. He could also not remember whether
there were any police officers on the scene. He was taken by
ambulance to Pelonomi
hospital. He could not provide any information
regarding the registration details, make or colour of the other
vehicle.
[5]
After the arguments, whilst drafting its judgment the court
a quo
requested the parties to indicate whether it can take judicial notice
of certain aspects. The parties reverted with the following
agreement:
‘
1. On
14 January 2018 the time of sunrise in Bloemfontein was 05h29;
2. A period
of approximately half an hour prior to sunrise, i.e. from 05h03 to
05h29 could not be described as daylight,
but as civil twilight.
3.
Civil twilight is defined and described as follows:
“
the period after
sunset or before sunrise ending or beginning when the sun is about 6
degrees below the horizon and during which
on clear days there is
enough light for ordinary outdoor occupations.
Civil twilight is the
brightest form of twilight. There is enough natural sunlight
during this period that artificial light
may not be required to carry
out outdoor activities.”’
[1]
[6]
In his pleadings, the plaintiff alleged that the incident occurred at
06h10. He, however,
testified that he does not know what time the
incident occurred. The accident report also indicated that it
occurred at 06h10.
[7]
The court
a quo
reasoned that the time of the incident is
extremely important because of the appellant’s testimony that
it was still dark
when the incident occurred and that all three
vehicle’s lights were on. Additionally, it found that sunrise
was at 05h29
as per the agreement between the parties. It concluded
that the appellant’s version was improbable because even if he
drove
at 90 km/h he would have travelled 180 km in two hours and at a
speed of 80 km/h he would have travelled 160 km. The distance from
Aliwal North to the scene is 170 km. The appellant stopped at a
filling station and at a roadworks ‘stop-and-go’ control
point. Therefore, regardless of whether his time of departure was
04h00 or 05h00 he would have reached the incident scene after
sunrise
and not while it was still dark.
[8]
Having found that the appellant’s version with regard to the
time of the incident
is unreliable, the court
a quo
accepted
the time on the accident report. It also accepted the incident
happened on a clear day in daylight. It said ‘it
does lie in
the mouth of the plaintiff (appellant) to say that the AR (accident
report) should be ignored completely insofar as
it was not properly
proven’.
[9]
The court
a quo
also found that his version that he was
approximately 30 metres from the truck when he saw it for the first
time is improbable
because there would not have been enough reaction
time for him to avoid a collision.
[10]
For these and other reasons, that will be discussed below, the court
a quo rejected his version, notwithstanding
the absence of any
contradictory evidence.
[11]
It was common cause that the appellant bore the onus to prove his
claim on a balance of probabilities.
[12]
In
Sardi
v Standard and General Insurance
[2]
Holmes JA stated the following:
‘
At the end of the
case, the Court has to decide whether, on all of the evidence and the
probabilities and the inferences, the plaintiff
has discharged the
onus
of proof on the pleadings on a preponderance of probability, just as
the Court would do in any other case concerning negligence.
In the
final analysis, the Court does not adopt a piecemeal approach of (a),
first drawing the inference of negligence from the
occurrence itself,
and regarding this as a
prima
facie
case; and then (b) deciding whether this has been rebutted by the
defendant’s explanation’
[3]
[13]
The preponderance of probabilities standard requires that the court
be satisfied that an incident or
event had happened if the court
considers that, on all the evidence before it, the occurrence of the
event is more likely than
not. Thus for the appellant to succeed the
court must be satisfied that it is more likely than not that the
incident happened as
recounted by him.
[14]
It has been said that:
‘
On the other hand,
the disconcerting truth is that, as judges, we can never actually
know what happened: we were not there when
whatever happened did
happen. We can only do our best on the balance of probabilities,
after which what we decide is taken to be
the fact…’
[4]
[15]
A
court of appeal is generally reluctant to disturb factual findings
which depend on credibility. It will, however, do so if the
factual
findings are plainly wrong or where the reasons given for them is
seriously flawed. It must be underscored that credibility
findings
should not be judged in isolation, but must be considered in the
light of the proven facts and probabilities of the matter.
[5]
I now turn to consider the evidence.
[16]
The appellant initially testified that he departed from his friend’s
house at ‘plus or
minus 4 in the morning’. He later
testified that he woke up early in the morning at ‘plus or
minus 5’. He insisted
that it was still dark when he departed
from his friend’s house and during the incident. During
questioning by the court
he conceded that he consulted a Dr Vlok, an
Orthopaedic surgeon, but he could not explain why the doctor
indicated in his report
that was attached to the particulars of claim
that the incident occurred at 03h00.
[17]
Assuming that the content of the accident report was admissible, it
stated that the incident occurred
at 06h10; that the report about the
incident was received at 06h10 and that the report was completed and
signed at 06h10. Was the
accident report properly admitted in
evidence? The parties agreed as follows:
‘
The parties record
that the status of documents discovered, to the extent that they are
what they purport to be, should be used
in evidence.’
[18]
The respondent’s legal representative, at some stage, based her
cross- examination on the accident
report. The appellant’s
counsel objected and pointed out that the contents of the accident
report is, at that stage, inadmissible
evidence until it is proven or
provisionally admitted. He requested his opponent to give an
indication whether she was going to
prove the contents of the
accident report. There was no response and the status of accident
report was not determined.
[19]
Documents can be either real or documentary evidence. The purpose for
which they are presented determine
their nature and the requirements
for their admissibility. The parties agreed that the discovered
documents may be used as real
evidence and not documentary evidence.
They merely agreed that the accident report, being a relevant
document, is what it purports
to be and there was no agreement with
regard to the admissibility of the contents of the documents.
[20]
If the respondent wanted to prove the contents of the accident
report, it had to prove its relevance,
originality and
authenticity.
[6]
That was not
done. The lack of compliance with the admissibility requirements for
documentary evidence meant that the contents
of the document was
hearsay evidence.
[22]
In
Rautini
v PRASA
[7]
the parties agreed that the discovered documents are what they
purport to be, but the correctness of the contents was not admitted.
The Court found that the contents of the discovered documents
constituted inadmissible hearsay evidence unless it could be proved
that they are admissible under one or other common law exception to
the hearsay rule or in terms of s 3(1) of the Law of Evidence
Amendment Act.
[8]
No attempt was
made, in this matter, to have the accident report admitted under any
statutory or common law exception to the hearsay
rule.
[23]
I will accept, for present purposes, that the accident report is a
public document because it was generated
by a public officer during a
public inquiry in the exercise of his duties. One of the common law
exceptions to the rule against
admitting hearsay evidence is that a
public document may, by its mere production, be admitted in
evidence.
[9]
There was no
application, by the respondent, to have the document admitted under
the common law exception to the hearsay rule.
In fact, the respondent
abandoned any reliance on the document.
[23]
Section 34 of the Civil Proceedings Evidence Act
[10]
(Act) provides:
‘
(1)
In any civil proceedings where direct oral evidence of a fact would
be admissible, any statement
made by a person in a document and
tending to establish that fact shall on production of the original
document be admissible as
evidence of that fact, provided-
(a)
the person who made the statement either-
(i)
had personal knowledge of the matters dealt with in the statement; or
(ii)
where the document in question is or forms part of a record
purporting to be a continuous record, made the statement
(in so far
as the matters dealt with therein are not within his personal
knowledge) in the performance of a duty to record information
supplied to him by a person who had or might reasonably have been
supposed to have personal knowledge of those matters; and
(b)
the person who made the statement is called as a witness in the
proceedings unless he is dead or unfit by reason of his bodily or
mental condition to attend as a witness or is outside the Republic,
and it is not reasonably practicable to secure his attendance
or all
reasonable efforts to find him have been made without success.
(2)
The person presiding at the proceedings may, if having regard to all
the circumstances of the
case he is satisfied that undue delay or
expense would otherwise be caused, admit such a statement as is
referred to in subsection
(1) as evidence in those proceedings-
(a)
notwithstanding that the person who made the statement is available
but is not called as a witness;
(c)
notwithstanding that the original document is not produced, if in
lieu thereof there is produced a copy of the original document
or of
the material part thereof proved to be a true copy.
(3)
Nothing in this section shall render admissible as evidence any
statement made by a person
interested at a time when proceedings were
pending or anticipated involving a dispute as to any fact which the
statement might
tend to establish.
(4)
A statement in a document shall not for the purposes of this section
be deemed to have been made
by a person unless the document or the
material part thereof was written, made or produced by him with his
own hand, or was signed
or initialled by him or otherwise recognized
by him in writing as one for the accuracy of which he is responsible.
(5)
For the purpose of deciding whether or not a statement is admissible
as evidence by virtue of
the provisions of this section, any
reasonable inference may be drawn from the form or contents of the
document in which the statement
is contained or from any other
circumstances, and a certificate of a registered medical practitioner
may be acted upon in deciding
whether or not a person is fit to
attend as a witness.’
[24]
The respondent did not adduce any evidence to show that the accident
report is admissible in terms
of s 34. It did not show that it was
not reasonably practicable to secure the witness’s attendance
or that all reasonable
efforts to find him have been made without
success. In fact, all that the defendant said was that the witness
was no longer attached
to the Reddersburg Police Station because ‘he
was shipped somewhere’ and that it could not get hold of him.
The Court
was not apprised of any efforts that were made to get hold
of him. No enquiry was held to determine whether there would be undue
delay or expense caused if the document was not admitted.
[25]
It surely is not enough for a litigant to state that a witness, a
police officer at that, had been
shipped somewhere. There was no
indication as to whether he is still a police officer. The defendant
did not indicate what ‘shipped
somewhere meant; was he
transferred to another station or was he shipped out of the country.
There must be an indication that reasonable
efforts were made to get
hold of the witness and, obviously, what those efforts were.
[26]
In my view there was no basis to allow the accident report as
documentary evidence because none of
the requirements for its
possible admission were proved or present in this matter. The
appellant therefore correctly objected against
being cross-examined
on its contents. The court
a quo
should not have relied on the
contents of the accident report as part of the evidential material to
determine this dispute. I now
turn to consider the admission of the
evidence relating to sunrise. On what basis did the court a quo take
judicial notice of the
rising of the sun?
[27]
It is trite that a court may take judicial notice of facts that are
so notorious as not to be the subject
of reasonable dispute or
controversy or which are capable of accurate demonstration by resort
to readily acceptable sources of
indisputable accuracy. A party who
requests the Court to take judicial notice of a fact bears the onus
of convincing the Court
of the notoriety of the fact or that it is
capable of accurate demonstration.
[11]
[28]
The court
a quo
did not investigate or indicate the
reliability of the source the parties used to determine the time of
sunrise in Bloemfontein
on 14 January 2014. In
Sibuyi
it was
said:
‘
An almanac or
diary or calendar may be considered and has been considered as
indisputably accurate in regard to days and months,
which is really
the reason for their existence, but certainly cannot be regarded as
indisputably accurate as regards the phases
of the moon or the
setting and rising of the sun or the state of the tides, let alone
any other interesting information that one
finds in these
publications.’
[29]
Proof of the times of sunrise and sunset has been made easy by the
legislature. Section 26 of the Act
states that:
‘
The Minister may
from time to time by notice in the Gazette approve of tables prepared
at any official observatory in the Republic
of the times of sunrise
and sunset on particular places in the Republic or any portion
thereof and appearing in any publication
specified in the notice, and
thereupon, until the notice is withdrawn, such tables shall on their
mere production in any civil
proceedings by any party thereto be
admissible of such times…’
[30]
Neither party in this matter made use of s 26. The statutory
regulation of the times of sunset and
sunrise is, in my view,
indicative of the fact that a court may not of its own accord take
judicial notice of such times. It must
be proved. The parties may not
grant a court permission to take judicial notice of a fact unless the
fact fulfils the requirements
set out above. It is proper for a court
to inform the parties that it intends to take judicial notice of a
fact and allow them
to address it on the aspect. However, asking them
whether the court may take judicial notice of a fact such as civil
twilight or
the time of sunrise – which is not a notorious fact
or capable of indisputably accurate demonstration – is
impermissible.
[31]
The calculations with regards to the time the appellant left Aliwal
North and the time he would have
reached the incident scene is based
on inaccurate information by the appellant, an inadmissible accident
report and impermissible
judicial notice. Wrong premises invariably
lead to wrong conclusions.
[32]
The reasoning of the court
a quo
is anchored in the time of
the incident and allied thereto the time the sun rose on that day.
The court
a quo
utilised two equally unreliable sources to
determine the time of the incident. These were the appellant and the
accident report.
[33]
The court
a quo
correctly criticised the appellant’s
version that he was approximately 30 metres from the heavy vehicle
when he saw it for
the first time. His version is indeed improbable,
regardless of whether it was dark or not, because the lights of the
heavy vehicle
and the other vehicle were on. His counsel correctly
conceded this improbability and argued that a distance of
approximately 100
metres is more realistic. The court
a quo
found that on the appellant’s version he would not have had
enough reaction time to avoid a head-on collision. It must, however,
be emphasised that witnesses’ estimates are mostly an
unreliable factor from which to make definitive conclusions.
[34]
In
Van
der Westhuizen and Another v S.A. Liberal Insurance Co. Ltd
[12]
it was said that:
‘
In my opinion,
however, the strictly mathematical approach, though undoubtedly very
useful as a check, can but rarely be applied
as an absolute test in
collision cases, since any mathematical calculation so vitally
depends on exact positions and speeds; whereas
in truth these latter
are merely estimates almost invariably made under circumstances
wholly unfavourable to accuracy.’
[13]
[35]
The finding related to reaction time in order to avoid the accident
is based on an unreliable estimate
by the appellant. There was
insufficient evidence for the court
a quo
to conclude that a
head-on collision would have occurred, regardless of the appellant’s
testimony that he veered to the left
and successfully avoided a
collision with any of the two other vehicles.
[36]
The court
a quo
also found it improbable that the drivers of
the heavy vehicle and the other vehicle would drive away after
witnessing the appellant’s
predicament. I do not think that the
conduct of the drivers is improbable. It is probable that the drivers
acted in the manner
they did in order to avoid involvement or even
being held liable.
[37]
The court
a quo
further found that the appellant:
(a)
Adapted his testimony to fit the timeframe indicated in the accident
report;
(b)
Had an ulterior motive when he testified that he did not see the
police
on the scene; and
(c)
Lied or misled the court.
[38]
I have already indicated that the accident report was inadmissible
and that it, in any event, contained
improbable or inaccurate
information. The appellant mentioned, as a fact, that he did not see
any police officer on the scene.
It is improbable that he would lie
about this fact. He had nothing to benefit from the lie. His
testimony is that he did not see
a police officer and not that there
was no police officer at the scene. There is no evidence as to
whether the police officer was
in uniform. The court
a quo
’s
concern about where the police officer obtained the information
contained in the accident report, is of no moment. It is
not
farfetched that he could have obtained the information from the
paramedics or Pelonomi Hospital. Assuming, for a moment, that
the
accident report was admissible, the inaccuracies contained therein
bolsters the proposition that the information was obtained
much
later.
[39]
An alternative hypothesis as to how the incident could have happened
or indeed happened was not put
to him. The fact that he would not
have had enough time to avoid the incident was also not put to him.
Furthermore, it was not
put to him that he adjusted his testimony to
fit in with the time on the accident report. The court a quo should
have been slow
to reject his evidence based on these aspects that
were never put to him because:
‘…
As
a general rule it is essential, when it is intended to suggest that a
witness is not speaking the truth on a particular point,
to direct
the witness’s attention to the fact by questions put in
cross-examination showing that the imputation is intended
to be made
and to afford the witness an opportunity, while still in the witness
box, of giving any explanation open to the witness
and of defending
his or her character. If a point in dispute is left
unchallenged in cross-examination, the party calling
the witness is
entitled to assume that the unchallenged witness’s testimony is
accepted as correct.’
[14]
[40]
I agree with the court
a quo
that the appellant’s
version contains apparent improbabilities. He was certainly not a
good witness. That said, can it be
said that the improbabilities or
possible lies are of such a nature that it is more likely that the
incident occurred in a manner
other than the version proffered by the
appellant?
[41]
Most of the appellant’s testimony was beside the point. The
court
a
quo
unfortunately made much of the testimony that was off the subject and
did not properly evaluate the impact of the improbabilities
or lies
on his testimony. It is well documented that witnesses regularly lie.
On the one hand a witness may lie in an unwise attempt
to fortify an
already good case. On the other the witness may lie because the
entire case is built on a lie.
[15]
The implication of a total rejection of his version as improbable is
that his entire case is based on a lie. The court
a
quo
did
not differentiate between the impact of the improbabilities in
respect of particular points of his testimony as opposed to
whether
his evidence was a complete lie. The failure to make this important
distinction is unfortunate and impacts negatively on
the court
a
quo
’s
assessment of the appellant’s evidence.
[42]
A consideration of the entire basket of evidence does not indicate
that the appellant’s
case as to how the incident occurred is a
complete lie. There is no evidence to gainsay his testimony. There is
no proof of deliberate
lies. In my judgment, regardless of the
shortcomings in his version, it cannot be said that the incident
occurred in a manner other
than the one recounted by the appellant.
[43] On
his version the driver of the other vehicle was negligent by
overtaking the truck in circumstances where
there was an oncoming
vehicle. The appellant did all that he could to avoid a head-on
collision. The other driver was the sole
cause of the incident.
[44]
In my view the appeal ought to succeed.
[45]
I make the following order:
1.
The appeal is upheld with costs.
2.
The order of the court
a quo
is set aside and replaced with
the following:
“
i.
The defendant is liable for 100% of the plaintiff’s damages.
ii.
The defendant is ordered to pay the plaintiff’s costs.
iii.
The plaintiff is directed to set the matter down on the pre-trial
roll within 30 days of this
order.”
C.J. MUSI, JP
I concur.
N.G. GUSHA, AJ
I concur.
A.P. BERRY, AJ
Appearances:
For the Appellant:
Adv. H. E. de la Rey
Instructed
by State Attorney
Bloemfontein
For the Respondent:
Adv. A. Stanton
Instructed
by Honey Attorneys
Bloemfontein
[1]
According
to the court a
quo
these
definitions were sourced from the internet at,
https://www.merriam-webster.com/dictionary/civil%20twilight
and
http://www.timeanddate.com/astronomy/different
-types-twilight.html
[2]
1977 (3) SA 776 (A).
[3]
Ibid at 780G-H.
[4]
Re L and B (Children)
[2013] UKSC 8
para 43.
[5]
Santam
BPK v Biddulph
2004 (5) SA 586
(SCA) para 5; R v Dhlumayo and
Another
1948 (2) SA 677
(A) at 706.
[6]
Bellengere et al: The Law of Evidence, Oxford University Press, 2019
p 99.
[7]
Rautini v Passenger Rail Agency of South Africa (Case no. 853/2020)
[2021] ZASCA 158
(8 November 2021).
[8]
Act 45 of 1988.
[9]
Hassim v Naik
1952 (3) SA 331
(A) at 338B.
[10]
Act 25 of 1965.
[11]
Master Currency (Pty) Limited v The Commissioner for the South
African Revenue Services (155/2012)
[2013] ZASCA 17
(20 March 2013)
para 8; S v Sibuyi and Others
1988 (4) SA 879
(T) AT 881H – I.
[12]
Van der Westhuizen and Another v S.A. Liberal Insurance Co. Ltd
1949
(3) SA 160
(C).
[13]
Ibid page 168.
[14]
President of the Republic of South Africa v South African Rugby
Football Union
2000 (1) SA 1
(CC) para 61.
[15]
S v Oosthuizen
1982 (3) SA 571
(T) at 576G-H.