Chauke v Road Accident Fund (1912/2020) [2022] ZAFSHC 40 (9 March 2022)

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[2022] ZAFSHC 40
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Chauke v Road Accident Fund (1912/2020) [2022] ZAFSHC 40 (9 March 2022)

IN THE HIGH COURT OF SOUTH
AFRICA
FREE STATE DIVISION,
BLOEMFONTEIN
Reportable:
Of
Interest to other Judges:
Circulate
to Magistrates:
NO
NO
NO
Case no:
1912/2020
In the matter between:
GANYANI PHANUEL
CHAUKE
Plaintiff
and
ROAD ACCIDENT
FUND
Defendant
CORAM:
DAFFUE J
HEARD ON:
25
JANUARY 2022
DELIVERED ON:
09 MARCH
2022
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 16:30 on 09 March 2022.
I
INTRODUCTION
[1]
A motor vehicle veered partly off the N6 national road between
Reddersburg and Bloemfontein
where after the vehicle was steered back
onto the tarmac by the driver in which process he lost control,
causing the vehicle to veer
off to the right hand side of the road
and overturn.  The vehicle became stationary on the farm land
next to the road.
[2]
The main issue to be adjudicated at the end of the trial is whether
the aforesaid manoeuvre
was a direct consequence of the negligence,
even recklessness, of an unidentified driver of an unidentified motor
vehicle who allegedly
tried to overtake a heavy vehicle at an
inopportune moment.
[3]
It will be kept in mind in this judgment that the Road Accident Fund
Act
[1]
(the Act) represents social legislation aimed at the widest possible
protection and compensation against loss and damages for the
negligent driving of a motor vehicle.
[2]
II
THE PARTIES
[4]
The plaintiff is Mr Ganyani Phanuel Chauke a major male attorney
employed as a State Attorney
in Bloemfontein.  The plaintiff has
been represented before me by Adv HE De La Rey, instructed by Honey
Attorneys.
[5]
The defendant is the Road Accident Fund, represented in the
proceedings before me by Mrs Bornman
of the office of the State
Attorney, Bloemfontein.
III
SEPARATION OF ISSUES IN TERMS OF RULE 33(4)
[6]
The parties agreed during their pre-trial conference to the
separation of merits and
quantum
on the basis that the
disputed allegations in paragraphs 1, 3, 4, 5, 6 and 11 of the
particulars of claim, read with the corresponding
paragraphs of the
plea, be adjudicated at the hearing and for
quantum
to stand
over for later adjudication if required.
IV
ISSUES IN DISPUTE TO BE ADJUDICATED
[7]
Subsequent to the agreement entered into between the parties
pertaining to separation of issues,
the defendant admitted the
following:
7.1
the defendant’s citation;
7.2
the plaintiff’s citation and
locus standi
; and
7.3
the plaintiff’s statutory compliance with s 24, read with s 19 of
the Act.
[8]
Consequently, the following issues are still in dispute regarding the
merits:
8.1
The particulars of the motor vehicle accident; and
8.2
The cause of the motor vehicle accident with “
particular
reference to the insured driver’s sole negligence and plaintiff’s
averred contributory negligence”.
[3]
Although no formal order was made
to separate issues as agreed upon, there cannot be any dispute what I
have to adjudicate.
Quantum
stands over.
V
THE PLAINTIFF’S PLEADED CASE AND THE DEFENCES
[9]
The plaintiff pleaded his case on the merits in paragraphs 3 to 6 of
the particulars of claim.
Paragraphs 3, 4 and 5 read as
follows:
[4]
“
3.
3.1   On
or about 14 January 2018 at approximately
06h10
and on
the N6 road between Reddersburg and Bloemfontein near Tierpoort, Free
State Province, within the jurisdiction of the above
Honourable
Court, a motor vehicle incident occurred involving the following
motor vehicles:
3.1.1
An unidentified vehicle with unidentified registration letters- and
numbers (hereinafter referred to as “the
insured vehicle”), at
the time driven by an unidentified driver (hereinafter referred to as
“the insured driver”) and
3.1.2
A black BMW 320d with registration letters and numbers FWY 984 FS, at
the time driven by the plaintiff.
4.
The abovementioned
road traffic incident occurred when the insured driver overtook a
heavy vehicle at an inopportune moment and entered
the plaintiff’s
lane of travel causing the plaintiff to swerve to his left in an
attempt to avoid a head-on collision, resulting
in the plaintiff
losing control over his vehicle and eventually rolling his vehicle.
5.
The motor vehicle
accident was caused as a result of the sole negligence of the insured
driver.”
(emphasis added)
[10]     One
of the causes of negligence specifically relied upon in the
particulars of claim is the unidentified
insured driver’s failure
to take reasonable precautions by ensuring that the road was clear of
oncoming traffic before executing
an overtaking manoeuvre.
[5]
[11]     The
defendant denied the allegations contained in paragraphs 3 and 4 of
the particulars of claim and
pleaded that the plaintiff was the sole
cause of the accident.  Alternatively, and if it is found “
that
a collision
(sic)
occurred as
alleged by the plaintiff”
it was denied that the unidentified driver was negligent.  The
usual further alternative defences in these kind of cases were
pleaded,
inter alia
relying on the plaintiff’s contributory negligence.
[6]
[12]     It
is emphasised that the plaintiff elected to plead that the incident
occurred at approximately 06h10
on the N6 road near Tierpoort between
Reddersburg and Bloemfontein.  This information is in line with
the SAPS Accident Report
Form (‘the AR”) filed with the
plaintiff’s claim documents with the defendant in accordance with
the plaintiff’s obligation
in terms of the Act.
[7]
The plaintiff repeated the time of 06h10 when he sought confirmation
from the defendant about the issue in dispute, which the
defendant
still denied.
[8]
VI
THE LEGISLATION AND AUTHORITIES
The Road Accident Fund
regulations and authorities pertaining thereto:
[13]
In
Pithey
v Road Accident Fund
[9]
the
Supreme Court of Appeal considered the differences between s 17(1)(a)
and 17(1)(b) and held that there is a fundamental difference
between
claims  filed in respect of either s 17(1)(a), or s 17(1)(b) if
the Act and regulation 2(3) are considered.
[10]
A claim in terms of the latter sub-section must be filed within two
years from the date of the accident which is a year shorter than
in
the case of identified vehicle claims.
[14]     The
plaintiff’s claim falls squarely within the parameters of s
17(1)(b) of the Act insofar as neither
the identity of the owner of
the motor vehicle, nor the driver thereof has been established.
For about a decade since the promulgation
of the Act, regulation
2(1)(c) of the regulations issued under the Act was accepted to be
good law, although the reasonableness of
the time limit in the
regulation was questioned from time to time.  The regulation to
be read with s 17(1)(b) read as follows:
“
(1)
In the case of any claim for compensation referred to in s
17(1)
(b)
of the
Act, the Fund shall not be liable to compensate any third party
unless -
. . .
(c)
the
third party submitted, if reasonably possible, within 14 days after
being in a position to do so an affidavit to the police in
which
particulars of the occurrence concerned were fully set out.”
[15]
It is unnecessary to deal with a long line of cases prior to the
eventual declaration of unconstitutionality
of the regulation by the
Constitutional Court in
Engelbrecht
v Road Accident Fund and Another,
[11]
save to have regard to some aspects that concerned our courts over
the years.
[16]
Although the period of 14 days provided for in regulation 2(1)(c) was
short which made compliance often
impossible bearing in mind so many
poor, illiterate and unsophisticated people in our country and also
that injured people were still
hospitalised during the particular
period, the purpose of the regulation was no doubt to ensure that the
relevant facts relied upon
were put on record as soon as reasonably
possible by injured persons and/or dependents in the case of death.
During the years
it became clear that neither the South African
Police Service, nor the Road Accident Fund used these affidavits
meaningfully during
their investigations.  The readers of this
judgment are also reminded of the statutory situation that applied
years ago in terms
whereof the regulations required physical contact
to have occurred between the vehicle involved in a
“
hit
and run”
case
and the claimant before liability could arise.  In
Road
Accident Fund v Makwetlane
[12]
the Supreme Court of Appeal had no difficulty to find that such a
regulation would infringe the principle of legality.
[13]
Although the majority held that a regulation which imposes a
reasonable time limit for the lodging of a claim was held not
to be
ultra vires
,
it went further to find that regulation
2(1)(c)
was
ultra
vires
.
[14]
The latter finding was overruled by the Constitutional Court in
Engelbrecht
v Road Accident Fund and Another supra
.
[17]
In
Road
Accident Fund
v
Thugwana
[15]
the
Supreme Court of Appeal agreed with the
dictum
of Harms JA in
Mbatha
v Multilateral Motor Vehicle Accidents Fund
[16]
and I quote:
“
In these cases
the possibility of fraud is greater; it is usually impossible for the
fund to find evidence to controvert the claimant's
allegations; the
later the claim the greater the fund's problems. . . .”
T
he court
noted that the purpose of regulation 2(1)(c) was to reduce the
problems mentioned by Harms JA in
Mbatha
.
[18]
In
Pithey
supra
the court considered the implications of s 19(f) of the Act and more
particularly the purpose thereof.
[17]
I quote:
“
[17]
Second, s 19 excludes liability in the event of a failure to
provide information in a particular form. Section 19(
f
)
provides that if the third party refuses or fails —
'(i)   to
submit to the Fund or such agent, together with his or her claim form
as prescribed or within a reasonable
period thereafter and if he or
she is in a position to do so, an affidavit in which particulars of
the accident that gave rise
to the claim concerned are fully set out;
or
(ii)   to
furnish the Fund or such agent with copies of all statements and
documents relating to the accident that
gave rise to the
claim concerned, within a reasonable period after having come
into possession thereof' —
the
Fund shall not be obliged to compensate the third party in terms of s
17 for any loss or damage. The affidavit and copies of statements
and
the documents mentioned in s 19
(f)
are required to
provide details of how the accident giving rise to the claim
arose.
It is abundantly clear that the purpose of this provision
is, inter alia, to furnish the Fund with sufficient information to
enable
it to investigate the claim and determine whether or not it is
legitimate.
[18]
I pause to say something about the primary purpose and
objectives of the Act. It has long been recognised in
judgments
of this and other courts that the Act and its predecessors represent
'social legislation aimed at the widest possible protection
and
compensation against loss and damages for the negligent driving of a
motor vehicle'. Accordingly, in interpreting the provisions
of
the Act, courts are enjoined to bear this factor uppermost in
their minds and to give effect to the laudable objectives of
the Act.
But, as the full court correctly pointed out,
the
Fund, which relies entirely on the fiscus for its funding, should be
protected against illegitimate and fraudulent claims
.”
(emphasis added and footnotes
omitted)
The limits
of judicial notice:
[19]
It is not appropriate for presiding officers to act on their personal
knowledge of facts and
“
be
allowed freedom to decide merely according to the secret knowledge of
their own minds without regard to evidence, for that would
be in the
way to make all legal proceedings capricious, ….”
[18]
Having
said this, facts that are well-known to all reasonable persons or to
a reasonable court in the specific locality may be taken
judicial
notice of.
[19]
Facts that are easily ascertainable, although not generally known,
may also be taken judicial notice of.  The sources
from which
the facts are ascertainable, should however be of indisputable
authority.  In
Sibuyi
and Others
[20]
the court held that although a court may take judicial notice of the
accuracy of almanacs, diaries and calendars regarding days and
months, that does not mean that these documents are indisputably
accurate as regards the phases of the moon, the setting and rising
of
the sun, or the state of the tides.
[21]
Reaction
time:
[20]
In order to establish whether it would be possible for anyone to
avoid a motor vehicle collision, aspects
such as the distance between
approaching vehicles or the distance between an oncoming vehicle and
a pedestrian as well as the reaction
time of the person that tried to
avoid the collision should be taken into consideration.
Although it is always difficult to
expect of a witness on the witness
stand to estimate aspects such as time and distances, especially
bearing in mind the fact that
the various objects are not stationary
at any given time prior to a collision, it is often worthwhile to
make use of a mathematical
exercise to establish probabilities.
Reaction time is often regarded by accident reconstruction experts to
be anything between
¾ of a second and one second.
[22]
Sudden emergency and
contributory negligence
[21]     It
is trite that, although it is the duty of every person to avoid an
accident, that does not mean that
he or she should be held liable for
negligence where it was clearly stated that a driver confronted with
a sudden emergency has a
split second or a second to consider the
pros and cons before he acts and surely cannot be blamed for
exercising the option which
resulted in a collision.
[23]
The Appeal Court held in
Rodrigues
v SA Mutual & General Insurance Company Ltd
[24]
that a mere error of judgment did not amount to negligence.
[25]
Distance travelled and speed
[22]     Most
grade seven pupils will be able to calculate that an object moving at
90 km/h travels 90 km in an
hour if that speed is maintained
throughout the period and 180 in two hours if the same principle
applies.  Simultaneously,
if the speed is 80 km/h, the distances
travelled in one and two hours will be 80 km and 160 km respectively.
[23]     The
same average learner will also be able to calculate that someone
travelling at 90 km/h, travels at
25 metres per second, ie 90 000
metres ÷ 3 600 seconds.  There are 3 600 seconds in an hour.
One may also divide
the speed in kilometres per hour by 3.6 as the
author of
Motor Law
preferred to do.
[26]
This means that two vehicles approaching one another from opposite
directions, each travelling at 90 km/h, will reach each
other from a
distance of 50 metres within 1 second.  Returning to reaction
time of 1 second, neither driver will be able to
make any attempt to
avoid the collision in this example.  If ¾ of a second reaction
time is accepted, the vehicles will travel
37.5 metres before any of
the drivers will react to avoid a collision.
VII
EVALUATION OF THE EVIDENCE IN LIGHT OF THE AUTHORITIES
[24]     The
plaintiff’s claim documents were properly bound, indexed and
paginated by his attorneys and a copy
was presented to the
defendant’s attorney before the start of the trial.  Mrs
Bornman appearing for the defendant sought leave
to hand the bundle
in during the trial.  Mr De La Rey did not object to the handing
in as such, although he had certain reservations.
I accepted
the bundle as Exhibit “A”.  Eventually only two documents
from the bundle, containing 208 pages, were referred
to during
evidence, to wit the AR
[27]
to which is attached an affidavit of a SAPS officer, Mr Ebersohn and
the plaintiff’s warning statement,
[28]
as well as the plaintiff’s s 19(f) affidavit.
[29]
I shall deal with this and the evidence in that regard later herein.
I wish to point out that the parties agreed as follows
during their
pre-trial conference:
“
DOCUMENTS THAT
WILL BE SERVED AS EVIDENCE WITHOUT FURTHER PROOF
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.”
[30]
[25]     It
is trite that where a litigant fails to adduce evidence about a fact
in dispute such party runs the
risk that his or her opponent’s
version might be believed and accepted.
[31]
The same applies to a litigant who merely denies the opponent’s
allegations, but fails to place specific facts before the
court to
support his or her version.
[32]
[26]
Having said this, it does not automatically mean that if no evidence
is adduced to contradict a litigant’s
version, that version must be
accepted.  It depends on the probative strength of the
evidence.  The failure to call an
available witness is only one
of the factors to be taken into account in drawing an inference
against the opposing party, as due
regard must be had to all the
circumstances of the case, including the strength of the case
presented.
[33]
[27]     The
following well-known
dictum
of
Galante v
Dickinson,
[34]
which is often applied in accidents and similar cases is for obvious
reasons not relevant
in
casu.
I quote:
“
It
is not advisable to seek to lay down any general rule as to the
effect that may properly be given to the failure of a party to
give
evidence on matters that are unquestionably within his knowledge.
But
it seems fair at all events to say that in an
accident case where the
defendant was himself
the driver
of the vehicle the driving of
which the plaintiff alleges was negligent and caused the accident,
the court is entitled, in the absence
of evidence from the defendant,
to select out of two alternative explanations of the cause of the
accident which are more or less
equally open on the evidence, that
one which favours the plaintiff as opposed to the defendant.”
(emphasis added)
[28]
Before I deal with my evaluation of the evidence I deem it apposite
to mention the following.  After
closing argument and during
preparation of the judgment I requested the parties to indicate
whether I could take judicial notice
of certain aspects.  The
following was agreed by the plaintiff and the defendant’s legal
representatives:
1.
On 14 January 2018 the time of sunrise in Bloemfontein was 05h29;
2.
A period of approximately half an hour prior to sunrise, ie 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.”
[35]
Also
as follows:
“
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.”
[36]
These
definitions were provided by the defendant’s legal practitioner,
but not objected to on behalf of the plaintiff.
4.
Insofar as the incident occurred in the vicinity of Tierpoort, it was
accepted that it occurred approximately
30 km from Bloemfontein.
[37]
[29]     The
plaintiff was the only witness called upon to explain what happened
in the early morning of 14 January
2018 close to Tierpoort on the N6
national road between Reddersburg and Bloemfontein.  It is
common cause that the incident
occurred approximately 30 km from
Bloemfontein, that the N6 is a tarred road carrying single lane
traffic in opposite directions
with gravel shoulders.
Insofar
as the plaintiff testified that Bloemfontein and Aliwal North are
approximately 215 km from each other, he was more or less
correct,
depending from where exactly in Aliwal North to where in Bloemfontein
he was travelling.   The distance between
the two places is
indicated as 199 km on a recognised map available in our country such
as MapStudio.
[38]
It is also common cause, alternatively not seriously disputed, that
the collision occurred near Tierpoort, 30 km south of Bloemfontein
and thus between 170 and 185 km from Aliwal North, depending on which
of the aforementioned distances are used.
[30]     It
is not the plaintiff’s case that he was coming around a curve
immediately prior to the incident
or that the road was sloped.
On his version he never went back to the scene of the incident.
Fact of the matter is that
he relied on the AR in accordance with the
provisions of s 19(f) of the Act in support of his claim filed with
the defendant.
It should be mentioned that the plaintiff’s
affidavit in terms of s 19(f) of the Act is dated 24 June 2019 and
although reference
is made therein to the road as the N8, it is no
doubt incorrect insofar as the road is indeed the N6.
[31]
It
is the plaintiff’s case in his pleadings that the collision
occurred at 06h10 although he did not say a word about this in his
evidence.  He testified that he left Aliwal North at
approximately 04h00 or 04h05.  Along the way he got lost for a
while,
had to stop for approximately 10 minutes at a “stop-and-go”
where road works were undertaken as well as to fill up his vehicle
with diesel and to buy water and snacks.  If it is accepted that
the stop at the filling station took another 10 minutes, the
plaintiff’s travel to Bloemfontein was delayed by 20 minutes,
effectively decreasing the time to reach the point of impact.
I
t would have taken him, travelling at a speed of 90 km/h,
just about two hours to arrive at the spot where the incident
occurred.
Logic dictates that the incident would have taken
place between 06h20 and 06h25 if he maintained that speed
throughout.  If
his average speed was 80 km/h, the time of the
incident would have been after 06h30.  For obvious reasons the
incident could
not have taken place on any of these times, unless it
could be held that the AR is forgery of some sort.  There is no
suggestion
in this regard.  It also does not lie in the mouth of
the plaintiff to say that the AR should be ignored completely insofar
as it was not properly proven.  Clearly, the time of the
incident is extremely important, bearing in mind the plaintiff’s
repeated version that it was still dark when the incident occurred
and that the lights of all three relevant vehicles were on at
that
stage.  In fact, accepting that an opportunity to observe was
also an issue, it is the plaintiff’s case that it was so
dark that
it was not possible to provide any information about the vehicle that
was allegedly in the process of overtaking the heavy
vehicle.
No information in respect of the make of the vehicle or its colour
could be provided.
[32]
Furthermore, and bearing in mind the evidence of the plaintiff and
the calculations made earlier based
on his evidence, the sun would
have arisen nearly an hour before the time of the incident, to wit at
05:29.  This explains why
the AR refers to daylight at the time
when the report was filled out.  It is uncertain exactly when
the AR was filled out.
If the incident occurred at 06h10, or if
the report of the incident was received at that time, it is
impossible that the report could
be signed at 06h10 as the signatory
indicated next to his signature.  I accept that the AR was
completed after 06h10, but this
does not change anything bearing in
mind when the sun has arisen that morning.   For a reason
unknown to the court, the
plaintiff who maintained that he was in
severe pain (which is accepted) tried to create the impression that
no police officer attended
the scene before he was taken to
hospital.  Logic dictates that at least the officer who
completed the AR must have obtained
the plaintiff’s personal
details such as his initials and surname, identity number and home
address.  Information pertaining
to the identity of the
Government EMS employee who took plaintiff to the Pelonomi hospital
as well as the registration number of
the ambulance are recorded on
the AR and also the name of the person from the breakdown business
and the name of that business.
[39]
[33]     I
accept that people are often making use of estimates pertaining to
time, distances and speed and that
eyewitnesses cannot always be held
to such estimates, especially when these later on appear to be
improbable or in conflict with
other reliable evidence or objective
facts. Even honest witnesses are from time to time caught out of
making innocent mistakes.
In
casu
, the plaintiff
never tried to rebut the version contained in paragraph 3.1 of his
particulars of claim indicating that the incident
occurred at
approximately 06h10.  On his version in court it was not
daylight, but still dark, although he was not prepared
to give even
an estimated time of the occurrence.  If the version that it was
still dark is accepted, he is either seriously
mistaken as to when he
left Aliwal North (which had to be much earlier than 04h00), or he
travelled at about 200 km/h in order to
reach the Tierpoort area in
the dark and thus before twilight.
[34]     What
is the court’s duty in regards to these estimates?  Should all
these just be ignored and
it be accepted that it was still dark when
an incident occurred as a direct consequence of an unidentified
driver in an unidentified
motor vehicle recklessly overtaking a heavy
vehicle in the face of the plaintiff’s oncoming vehicle, causing
the plaintiff to execute
the manoeuvre testified about, his losing
control of the vehicle and the eventual overturning thereof which in
turn caused severe
injuries to the plaintiff?  Can a court
accept this version without subjecting it to proper examination and
evaluation even
insofar as the defendant failed to rely on any
contradictory evidence in circumstances where it could not reasonably
be expected
of the defendant to find eyewitnesses, unlike as was the
case in
Galante v Dickinson
supra?
[35]     The
plaintiff is an admitted attorney.  Honesty and integrity are
expected of attorneys, particularly
pertaining to their professional
lives.  Does this mean that a court should in all instances
accept the mere say-so of an attorney
who is a litigant in a civil
suit claiming money for himself?  If that is so, this court
could just as well rubber-stamp the
particulars of claim and issue
judgment in favour of the plaintiff on the merits of the matter.
Unrelated to the issue
at hand, but not totally irrelevant, is
regulation 7(1) of the regulations issued under s 10 of the
Justices
of the Peace and Commissioners of Oaths Act
[40]
which stipulates that a commissioner of oaths shall not administer an
oath or affirmation relating to a matter in which he has an
interest.  It is trite that the commissioner of oaths shall be
impartial, unbiased and entirely independent of the office where
the
affidavit is prepared.  No doubt, an important object of the
rule is to prevent an attorney from drawing up an affidavit
and in
doing so putting words in the mouth of the deponent and then himself
taking the oath of the deponent.  There is also
the obvious
danger that the deponent may be influenced in regard to the contents
of the affidavit.
[41]
Caney J stated in
Royal
Hotel, Dundee and others v Liquor Licensing Board, Area 26 Durnacol
Recreation Club v Liquor Licensing Board, Area 26
[42]
that “
because
it is in the attorney’s interest to bring his client’s affairs to
a successful conclusion, he cannot be impartial and
unbiased; if he
functions as a commissioner of oaths in the matter, he is not
independent.”
[36]     I
raised the issue of judicial notice for a specific reason insofar as
I mentioned during the evidence
of the plaintiff that I, as a
cyclist, was fully aware of the time when the sun rises during summer
in the Free State and in Bloemfontein
in particular.  Thousands
of people travelling to work or doing outdoor exercises like jogging,
cycling and/or going to the
gym before work, and also reasonably
well-informed people in the Bloemfontein area will know that from at
least 05h00 in the middle
of January there is sufficient light for
ordinary outdoor activities and also that the sun rises long before
06h00.  The acceptance
by the parties that judicial notice could
be taken of the aspects mentioned above is confirmation of my
personal knowledge.
The same road atlas referred to earlier
shows that the N6 from Bloemfontein to the first town, Reddersburg,
follows a course directly
south of Bloemfontein.  The effect
hereof is that along this stretch of the road the sun will rise at
exactly the same time
as in Bloemfontein.
[37]     I
have serious issues with the plaintiff’s version and without being
unnecessary critical and bearing
in mind that I may repeat myself, I
mention the following:
37.1
Although the plaintiff many times referred to words like “more or
less”, he was certain that
he left Mpumalanga on the previous
Thursday evening at approximately 18h00 to arrive in Bloemfontein
after a 1000 km and 10-hour
drive at approximately 06h00 on Friday
morning.  The relevance of this information, especially insofar
as he was not asked to
tender this evidence, escapes me.
37.2
He left Bloemfontein on Saturday afternoon to arrive in Aliwal North
at approximately 16h00.
It was the first time that he used this
road and he made use of Google maps to find his way.  This in
itself is quite strange
if one considers that the N6 is the main road
between Bloemfontein and East London passing through
inter alia
a town like Aliwal North.
37.3
He and his old friend whom he knew from their working days in Gauteng
socialised until approximately
23h00 that Saturday evening.
They enjoyed some cold drinks and juice, but no alcohol.  He
woke up at about 04h00 and left
his friend’s house at approximately
04h05 after having “
said my good-byes.”
He
got lost and missed the filling station that he saw the previous day
on his arrival.  Therefore, he again made use of Google
maps to
find his way to the main road.
37.4
He eventually had his vehicle filled up with diesel and
simultaneously did purchases at the convenience
store.  He could
not say where this was which is quite extra-ordinary, bearing in mind
he was using Google maps to find his
way.  He merely mentioned
that it was whilst on route to Bloemfontein.  He waited for
approximately 10 minutes at a “stop-and-go”
in which process he
embarked from the vehicle to communicate with the person in control.
He travelled at approximately 80 to
90 km/h along the way
notwithstanding his BMW320d and the speed limit applicable to
national roads of 120 km/h as reflected on the
AR.  When he was
asked about this slow pace, he stated that “
I might
have driven a very fast motor vehicle at that time, but I am not, it
might sound like a cliché, but I am not really a speedy
type of
person.”
37.5
Instead of answering questions put to him by his own counsel
directly, he on more than one occasion
referred to other issues
instead of answering the questions directly.  The first example
is the instruction to tell the court
what happened from the Saturday
before the incident.  He decided to inform us that he went to
his family home in December the
previous year.  After his long
explanation, his counsel requested him again to explain what happened
the Saturday afternoon
and evening.  Instead of answering
directly, we were informed of the relationship with the friend he
intended to visit and their
relationship years back in Gauteng.
He was again evasive pertaining to the presence of police officers at
the scene of the
incident.  It is accepted that he was in pain,
but the impression was clearly created – in fact it was his direct
testimony
- that his only interaction with the police in regard to
the incident was when a female officer – apparently from Tierpoort
- visited
him at home to take his warning statement.
37.6
On his version he did not pass many vehicles before the incident.
He was under the impression
that he perhaps passed two vehicles.
In cross-examination he specifically said that he maybe passed two
vehicles, but he did
not particularly remember these vehicles.
He was confronted with his affidavit filed with the claim documents
wherein he said
the following in respect of people’s voices that he
heard on the scene:
“
They were
passengers in a taxi on their way back to Johannesburg.  I
remember overtaking this taxi sometime before the motor
vehicle
accident occurred.”
[43]
His attempt to explain why
that version is in conflict with his evidence is really futile and
not impressive at all.
37.7
Although the plaintiff testified that he was aware that people
stopped at the scene, that he could
hear their voices and that an
ambulance arrived to transport him to Pelonomi Hospital, he did not
remember seeing the police.
The impression was created
throughout his evidence that he did not want to place the police on
the scene which is contrary to the
objective facts.
37.8
When he was asked at what time does the sun rise in summer and
whether it is still dark outside
when he wakes up in the morning, he
replied that he did not know.  The reason provided for this
strange answer is that he stays
very close to his workplace and that
it takes him about five minutes to get to town.  He stated: “
I
normally don’t wake up in the dark myself, unless there is a
specific work I had to do”
.
37.9
When he was confronted with the inscriptions in the AR that it was
daylight and the weather was
clear when the form was filled out, he
replied as follows:  “
I will struggle to give you
a comment or to give you a comment M’Lord regarding that, because,
when this accident report was committed
I wasn’t there and I don’t
even know the police officer who completed this document.  So it
will be difficult for me to
say why did he mark daylight and why did
he mark clear.”
37.10    On the
plaintiff’s version he was approximately 30 metres from the heavy
vehicle when he saw it for the
first time.  This is already
strange, bearing in mind the apparently flat and straight road and
whether or not it was still
dark or daylight at the time is
immaterial as on his version the vehicles’ lights were on.  He
then responded to say that
as he was coming closer to this heavy
vehicle (closer than 30 metres), he saw another vehicle attempting to
overtake the heavy vehicle.
According to him “
almost
when I was now in front of this vehicle
(the heavy vehicle)
,
that is when the vehicle pulled as it attempted to overtake.”
It is only then that he veered off to the left-hand side and
immediately steered the vehicle back in a state of terror onto
the
tarmac, where after he lost control.  I have explained aspects
such as reaction time and distance travelled at certain speeds
and
time periods above and do not intend to repeat same. If that is kept
in mind, there was just not enough time for the plaintiff
to react in
order to avoid a collision with the approaching vehicle.
37.11    As shown, on
the plaintiff’s version he would have arrived at the scene long
after the sun had arisen and long
after 06h10.  When asked by
the court what his version was about the statement in Dr Vlok’s
report attached as annexure A
to the particulars of claim that the
collision according to him occurred at 03h00, he indicated that it
could not be at 3 o’clock.
No doubt, at 03h00 it would be
pitch dark.
37.12    If one
considers that the N6 in the area of the incident consists of single
lanes in opposite directions, it is
highly improbable that the heavy
vehicle, the plaintiff’s vehicle and the vehicle that was busy
overtaking the heavy vehicle did
not collide with each other,
notwithstanding the allegation that the plaintiff partly veered off
the tarmac.  On his version
only his vehicle’s left wheels
went onto the gravel shoulder.
37.13    I also
regard it as highly improbable that the driver of the heavy vehicle,
who should have noticed the plaintiff’s
predicament, would not stop
and enquire from the plaintiff whether he was injured and to summon
an ambulance and/or the police to
the scene.  The reasonable
driver would surely look into his rear view mirror to see whether the
vehicle that had to move rapidly
off the tarmac in a sudden emergency
managed to proceed safely or not.
37.14    I have
reason to believe that the plaintiff adapted his version to tie in
with the time of the incident mentioned
in the AR.  Therefore,
he decided to testify that he left Aliwal North at about 04h00 whilst
travelling at the slow speed of
90 km/h in a fast vehicle on a
national road where the speed limit is 120 km/h in order to arrive at
the scene of the incident about
two hours later as the AR indicates.
Unfortunately, he co-incidentally testified a few days after the
fourth anniversary of
the incident when it was still mid-summer.
If he testified later in the year and especially during winter it
might not have
been recognised that it was actually daylight before
06h00.  Once he committed himself to a departure time of 04h05,
there was
no turning back when the issue of daylight was raised.
He either had to concede that he was travelling at an excessive
speed
in order to arrive near Tierpoort in the dark, or suggest that no
police officers were at the scene before he was taken to
hospital and
that they were mistaken as to the time of the incident.  He
elected to rely on the second option.
[38]     In
my view, at best for the plaintiff, his evidence cannot be accepted
as probable, even in the absence
of contradictory evidence.  I
say this with hesitation, bearing in mind the plaintiff’s
profession, but he made a poor impression
on the witness stand and I
am not prepared to accept that he presented a credible version.
I therefore reject same.
VIII
ORDER
[39]     The
plaintiff’s claim is dismissed with costs,
JP DAFFUE J
On behalf of plaintiff:
Adv HE De La Rey
Instructed
by:
Honey Attorneys
BLOEMFONTEIN
On behalf of defendant:
Mrs Bornman
Instructed
by:
Road Accident Fund
BLOEMFONTEIN
[1]
56 of
1996
[2]
Bezuidenhout
v Road Accident Fund
2003
(6) SA 61
(SCA) at para 7 and cases therein cited pertaining to the
Act’s predecessor
[3]
Paragraph
24 of the Rule 37 minutes on p 62 of the pleadings bundle
[4]
Pleadings
bundle p 7
[5]
Para
5.5 (it is incorrectly numbered and should be 6.5) on p 8 of the
pleadings bundle
[6]
Paras
3 & 4 on p 38 & 39 of the pleadings bundle
[7]
Section
19(f)
[8]
Para
7.3 of the pre-trial minute on pp 57 & 58 of the pleadings
bundle
[9]
2014
(4) SA 112 (SCA)
[10]
Ibid
paras
24 & 25
[11]
2007
(6) SA 96 (CC)
[12]
2005
(4) SA 51 (SCA)
[13]
Ibid
at
para 25
[14]
Ibid
paras 26 & 47
[15]
2004
(3) SA 169
(SCA) at para 10
[16]
[1997] ZASCA 25
;
1997 (3) SA 713
(SCA) at 718 H – I
[17]
Pithey
supra
at
paras 17 & 18
[18]
R v
Tager
1944
AD 339
at 344-5 dealing with the presiding officer’s knowledge of
the ingredients of milk shakes
[19]
See
Schwikkard and Van der Merwe, Principles of Evidence 4
th
ed at p 518 and further; and Zeffertt v Paizes, The South African
Law of Evidence 2
nd
ed at p 867 and further; Schmidt and Rademeyer, Law of Evidence,
Lexisnexis loose leaf edition pp 6-3 – 6-13 for a general overview
[20]
1988
(4) SA 879 (T)
[21]
Ibid
at
881 F – G
[22]
See
for example the evidence of Professor Lemmer referred to and
accepted in
Road
Accident Fund v Grobler
2007 (6) SA 230
(SCA) footnote 1; In
Pretorius
v African
Gate
& Fence Works
1939
AD 567
at 575 and
R
v Goodall
1969 (3) SA
541
(RA) at 543 A – B a reaction time of ¾ second was considered
reasonable
[23]
See
Cooper
v Armstrong
1939
OPD 140
at 148
;
South
African Railways v Symington
1935 AD 37
at 45;
Sierborger
v
South African Railways
and
Harbours
1961 (1)
SA
498
(A) 506 D – G; and
Ntsala
and Others v Mutual
&
Federal
Insurance
Company Ltd
1996 (2) SA 184
(T) 192 G - H
[24]
1981
(2) SA 274
(A) at 280 H – 281 A
[25]
See
also
Road
Accident Fund v Grobler
2007 (6) SA 230
(SCA) at paras 8, 9 & 12
[26]
Cooper,
Delictual Liability in Motor Law, vol 2, 1996 ed at p 492
[27]
Exhibit
“A”, pp 15-24
[28]
Ibid,
pp 19
& 20 and 21 -23 respectively
[29]
Ibid
pp
25-27
[30]
Para
11, pleadings bundle p 59
[31]
Brand
v Minister of Justice and Another
1959
(4) SA 712 (A)
[32]
Van
Der Westhuizen NO v
Kleynhans
and
another
1969
(3) SA 174
(O) at 176 - 177
[33]
Ferreira
v Santam Insurance Co Ltd
1995
(3) SA 287
(SE) at 290 H - I
[34]
1950 (2) SA 460
(A) at 465
[35]
https://www.merriam-webster.com/dictionary/civil%20twilight
[36]
https://www.timeanddate.com/astronomy/different-types-twilight.html
[37]
www.timeanddate.com/sun/south-africa/bloemfontein
;
and www.meteogram/sun/south-africa/bloemfontein
[38]
See
MapStudio’s Glovebox Road Atlas or visit www.mapstudio.co.za
[39]
AR in exhibit “A”, p
15
[40]
Act 16
of 1963
[41]
Radue
Weir Holdings Ltd v Galleus Investments CC
1998 (3) SA 677
(ECD) at
680E – 681G
[42]
1966
(2) SA 661
(N) at 669H – 670A
[43]
See
2
nd
para
6 of affidavit on p 26 of exhibit A