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[2023] ZAECMKHC 93
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Kubukeli v Road Accident Fund (2405/2018) [2023] ZAECMKHC 93 (29 August 2023)
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IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE
DIVISION, MAKHANDA)
Case No: 2405/2018
In
the matter between:
BONGA
KUBUKELI
Plaintiff
And
ROAD
ACCIDENT FUND
Defendant
JUDGMENT
Beshe J
[1]
Section 17 (1) of the Road Accident Fund
Act
[1]
provides that the
defendant shall be obliged to compensate any person (the 3
rd
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
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 owner of the motor
vehicle. Based on
this provision, the plaintiff instituted action against the defendant
for injuries he alleges he suffered when
a vehicle he was driving was
involved in an accident on the 19 November 2016.
[2]
At the commencement of the proceedings, I ordered that the
determination of the merits of plaintiff’s
claim be separated
from the determination of the quantum of his claim and directed that
the question of liability be dealt with
first.
[3]
In his particulars of claim plaintiff pleaded that on the 19 November
2016 near the N6 Road in Cathcart
he was the driver of a white
Mercedes Benz motor vehicle with Registration Number CFM […]
when a certain motor vehicle came
straight towards his direction.
Plaintiff tried to avoid colliding with this motor vehicle. His
vehicle left the road and he suddenly
overturned. He further pleaded
that the accident was solely caused by the negligence of the driver
of the other vehicle. The manner
in which the other driver is said to
have been negligent is that:
He failed to keep a
proper lookout.
He drove the insured
motor vehicle at an excessive speed in the circumstances.
He failed to apply
brakes timeously or at all.
He failed to keep the
motor vehicle under proper control.
He failed to avoid an
accident when by reasonable care and skill he could and should have
done so.
Furthermore, he pleaded
that as a result of the accident he suffered bodily injuries.
[4]
Defendant in turn denied that the collision was due to the negligence
of a second driver. It was pleaded
that there was no other vehicle
involved in the collision. Plaintiff’s motor vehicle was the
sole cause of the collision
by:
Not keeping a proper
lookout;
By failing to keep his
vehicle under proper control;
By driving at an
excessive speed in the circumstances;
By failing to apply
his brakes timeously or at all; and
By failing to avoid a
collision, when, by exercise of reasonable care and skill, he could
and should have done so.
[5]
Plaintiff gave evidence after which he was subjected to
cross-examination. He thereafter closed his
case. Defendant did not
lead any evidence and closed its case without doing so.
[6]
Plaintiff’s testimony revealed the following:
During
November 2016 he was working at Komani where he also resided. On
Friday the 18 November 2016 he was at work and planned to
visit his
mother in Butterworth after work. He decided to rest before
undertaking the trip to Butterworth. He fell asleep and only
woke up
between 23h00 and 24h00. He then set out on his journey to
Butterworth and decided to drive via East London or take the
route
that will take him to East London first. As he was driving, he would
come across other vehicles. When he was nearing Cathcart,
he observed
the lights of a car that was coming from the opposite direction
crossing into his lane. He also observed that this
motor vehicle was
driving at a high speed. He sounded his hooter and swerved to the
left. In the process his tyres came into contact
with dirt road. When
he tried to swerve back into the tarmac, lost control of his motor
vehicle resulting in it overturning/capsizing.
He thereafter lost
consciousness. He regained consciousness at the Cathcart Hospital,
having sustained some injuries.
[7]
During cross-examination the following emerged:
He had knocked-off duty
at 16h00 on Friday the 18 November 2016. His job involves
inter
alia
developing websites. He felt tired after work, sat on a
couch and watched television. He must have slept for seven hours. He
left
his house after 00h00 midnight. The accident occurred ±
50km from his house and it must have been around 01h00. The weather
conditions were good. The stretch of the road where the accident
occurred was straight without any curves. His side comprised of
a
single carriage way and the opposite side comprised of a two-lane
carriage way. As far as the emergency lane demarcated with
a yellow
line is concerned, he is only certain that there was one on his side.
He thought that his motor vehicle could fit into
the emergency lane.
Beyond the emergency lane there was a slight slope. He saw the other
motor vehicle for the first time when
it was driving on its correct
lane approximately 25 to 30 metres away and driving at a high speed.
When asked if he observed the
other motor vehicle veering into his
side of the road or hearing screeching of tyres, he answered that he
only saw its lights crossing
to his side of the road. He was also
heard to say the motor vehicle encroached on his side of the road
with its right wheels already
on his side of the road ± 15
metres from his car. He does not know what ultimately happened to the
other vehicle. Asked
if the road is fenced off, he said yes. He could
not explain the reason why in his particulars of claim he pleaded
that his vehicle
overturned after it had left the road yet in his
evidence, he states that he swerved back to the road, and then
overturned. He
answered that he thought it amounted to the same
thing. He was also cross-examined about the account he apparently
gave to a specialist
orthopaedic surgeon Dr Kumbirai on 24 April 2017
about the incident. He confirmed that he told Dr Kumbirai that he was
involved
in a motor vehicle accident as a driver when he hit a pole
whilst trying to avoid an animal on the road. He explained that he
gave
this account because he did not know what happened to the driver
of the other vehicle. He did not know whether he had died. As
indicated, the plaintiff was the only witness who testified in
support of his claim. Defendant’s case was closed without any
witness being called.
[8]
In argument it was submitted on behalf of the plaintiff that he has
proved his case on a balance of
probabilities, in light also of there
being no evidence to gainsay his version. It was further submitted
that plaintiff gave evidence
to the best of his ability and answered
questions honestly, giving evidence from a layman’s point of
view. He gave an explanation
why he told Dr Kumbirai he was trying to
avoid an animal.
[9]
It turns out that was not the only aspect he misrepresented. He also
told Dr Kumbirai that he went
back to work after the accident as he
did not experience any problems at work related to the accident.
Plaintiff’s explanation
in this regard was that he did not want
to be boarded from work. And that it was still early stages after the
accident.
[10]
Defendant amended his plea to cater for contributory negligence on a
50-50 basis should the court find that there
was indeed a second
motor vehicle involved, which defendant maintained was denied.
[11]
It was correctly submitted on behalf of the defendant
that plaintiff can only succeed if he satisfies that court
that his
version is true and accurate and therefore acceptable. I was urged to
subject plaintiff’s evidence to the cautionary
rule in view of
the fact that he was a single witness. In this regard I was referred
to several decided cases. All of them dealt
with the evidence of a
single witness in criminal cases. Be that as it may, there is no
doubt that in order to avoid making a wrong
finding, a court is
required to view the evidence of any factual witness carefully. It is
also trite that the fact that there is
only positive version,
plaintiff’s version in this matter, the court is not obliged to
accept it. See in this regard Van
Meyeren v Cloete
[2]
where it was stated that:
“
[13]
The approach to this unsatisfactory and speculative evidence was
incorrect. It overlooked the fact that the onus of proof rested
on Mr
Van Meyeren. There is no obligation on a court to accept an
improbable explanation of events merely because no other positive
explanation is proffered, or the alternative seems to the judge even
less probable.”
A
similar warning was sounded in Denissova NO v Heyns Helicopters (Pty)
Ltd
[3]
where it was stated:
“
[33]
What I have before me, for purposes of making the required
determination, is the uncontested evidence of Steynberg which would
normally, in the absence of any contradictory evidence, be accepted
as being prima facie true. It does not, however,
follow
that because evidence is uncontested, therefore, it is true. The
evidence may be so improbable in the light of all the other
evidence
that it cannot be accepted (see in this regard Meyer v Kirner
1974 (4) SA 90
(N) at 93G-H). The fact that evidence stands
uncontradicted does not relieve the party from the obligation to
discharge the onus resting
on him. (see Minister of
Justice v Seametso 1963(3) SA 530(AD) at 534 G-H). In civil
matters the onus is
discharged upon a balance of
probabilities but, no doubt, this simplistic statement must be used
with caution since, even if the onus-bearing
party puts into his
“pan of the scale of probability” slender evidence, as
against no counter-balance on the part of
the opponent, and although
the scale should therefore automatically go down on the side of
the onus-bearing party, the court
may still hold that the
evidence tendered is not sufficiently cogent and convincing
(see Ramakulukusha v Commander, Venda
National Force
1989 (2) SA
813
(V) at 838H-I and other authorities cited
therein).
”
[12] The
plaintiff bears the
onus
of proving that he is entitled to
succeed on his claim. In other words, he must prove that the accident
in question was due to
the negligence on the part of the driver of a
second motor vehicle. This he has to show on a balance of
probabilities also referred
to as a preponderance of probabilities.
[13]
Regarding the discharging of the
onus
,
in National Employers’ General Insurance v Jagers
[4]
the following was stated:
“
It
seems to me, with respect, that in any civil case, as in any criminal
case, the onus can ordinarily only be discharged by adducing
credible
evidence to support the case of the party on whom the onus rests. In
a civil case the onus is obviously not as heavy as
it is in a
criminal case, but nevertheless where the onus rests on the plaintiff
as in the present case, and where there are
two mutually
destructive stories, he can only succeed if he satisfies the Court on
a preponderance of probabilities that his version
is true and
accurate and therefore acceptable, and that the other version
advanced by the defendant is therefore false or mistaken
and falls to
be rejected. In deciding whether that evidence is true or not
the Court will weigh up and test the plaintiff’s
allegations against the general probabilities. The estimate of the
credibility of a witness will therefore be inextricably bound
up with
a consideration of the probabilities of the case and, if the balance
of probabilities favours the plaintiff, then the Court
will accept
his version as being probably true. If however the probabilities are
evenly balanced in the sense that they do not
favour the plaintiff’s
case any more than they do the defendant’s, the plaintiff
can only succeed if the Court
nevertheless believes him and is
satisfied that his evidence is true and that the defendant’s
version is false.
”
[14]
In turn, in SFW Group Ltd and Another v Martell et Cie &
Others
[5]
the court had this to
say:
“
[5]
On the central issue, as to what the parties actually decided, there
are two irreconcilable versions. So, too, on a number of
peripheral
areas of dispute which may have a bearing on the probabilities. 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.
”
[15]
In Mabaso v Felix
[6]
the court pointed out that the
onus
of proof relates to factual and not legal issues.
[16] It is
with these principles in mind that I will assess plaintiff’s
evidence to determine whether plaintiff’s
version is on a
balance of probabilities the truth. Whether he was a credible witness
and whether his evidence can be relied upon.
[17] In
his particulars of claim plaintiff pleaded that a certain motor
vehicle came straight to the direction
of his motor vehicle. In his
evidence in chief, he testified that the lights of this second motor
vehicle crossed to his side of
the road. And that it was being driven
at a high speed. It was only during cross-examination that he stated
that the other motor
vehicle crossed into his line of travel when
asked if he saw it veer into his side of the road. Adding that its
right wheels had
already crossed into his side of the road. It is not
clear why if that is the case the plaintiff did not say so in his
evidence
in chief. And how he was able to see that its right wheels
had crossed into his side of the road. It is unclear from his
evidence
whether his motor vehicle capsized after he brought back
into the road surface or that it left the road and capsized after he
could
not control it after it came into contact with loose gravel on
the verge of the road. In his pleadings it was stated that in trying
to avoid the said motor vehicle his motor vehicle overturned and left
the road. In his evidence plaintiff stated that when he tried
to
swerve back to the tarmac, he lost control of the motor vehicle and
it overturned. When cross-examined about this aspect he
stated that
he thought it amounted to the same thing.
[18]
Plaintiff alleges that the accident occurred on the 19 November 2016.
It is common cause that he was examined/assessed
By Dr Kumbirai on
the 24 April 2017 when he informed him that he was involved in an
accident in which his motor vehicle left the
road and collided with a
pole in the process of avoiding an animal on the road. The date of
that incident is said to be the 19
November 2016. The same date that
plaintiff testified he was trying to avoid colliding with a motor
vehicle that was driving towards
his. That it is also alleged to have
occurred at Cathcart. He conceded that he was recounting the same
accident to Dr Kumbirai
but misrepresented the facts/details because
he did not know if the driver of the other vehicle died. According to
his evidence,
he did not do anything wrong. He was driving within the
speed limit on his correct side of the road when a motor vehicle that
was
being driven at an excessive speed drove towards his direction.
Even if the driver of the other motor vehicle had unfortunately
lost
their life, it would not have been his fault. The inescapable in my
view, is that the plaintiff is trying to reconstruct the
accident
hence the lack of clarity on the aspects I have already alluded to.
This, by creating the impression that the vehicle
capsized after he
had tried to bring it back to the tarmac. Had he stuck with the
version that his vehicle left he road and overturned,
that would have
accorded with the version that he collided with a pole when he was
trying to avoid an animal on the road. This
internal contradiction in
his accounts affects plaintiff’s credibility adversely. His
evidence is not reliable. Coupled with
a lack of clarity as to how
the accident occurred, I have expressed my doubt about the
probabilities of plaintiff having been able
to see that the other
vehicle’s right wheels had encroached onto his side of the road
when initially he made it appear as
though he could tell it had done
so through its lights that had crossed to his line of travel. The
probabilities in my view seem
to favour the version that there was no
second motor vehicle involved. Even though according to him the motor
vehicle must have
been less than 20 metres away from him and driving
at a high speed, it did not collide with his motor vehicle. He did
not hear
any screeching of tyres assuming the other motor vehicle
applied brakes or swerved suddenly to avoid hitting his motor
vehicle.
[19] I am
not persuaded that the plaintiff has succeeded in showing on a
balance of probabilities that the accident
was due to the negligence
of the driver of a second motor vehicle.
[20]
Accordingly, plaintiff’s claim is dismissed with costs.
N G BESHE
JUDGE OF THE HIGH
COURT
APPEARANCES
For
the Plaintiff:
Adv:
L Magadlela
Instructed
by:
S
BOOI & SONS ATTORNEYS
C/o
CLOETE & COMPANY
112
A High Street
MAKHANDA
Ref:
Mr Cloete
Tel.:
046 – 622 2563
For
the Defendant :
Adv:
K Naidoo
Instructed
by:
STATE
ATTORNEYS (GQEBERHA)
C/o
CARINUS JAGGA ATTORNEYS
67
African Street
MAKHANDA
Ref:
Ms J Jagga
Tel.:
046 – 940 0086
Date
Heard:
25
January 2023 , 30 January 2023
and 3 May 2023
Date
Reserved:
3
May 2023
Date
Delivered:
29
August 2023
[1]
Act 56 of 1996.
[2]
2021 (1) SA 59
SCA at 63 [13].
[3]
[2003] 4 All SA 74
(C) [33].
[4]
1984 (4) SA 437
ECD at 440 D-E.
[5]
2003 (1) SA 11
SCA at [5].
[6]
1981 (3) SA 865
SCA at 874 G.