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[2022] ZAFSHC 273
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Shosha v Road Accident Fund (3259/2018) [2022] ZAFSHC 273 (3 October 2022)
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IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
no
.
3259/2018
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
PUMLA
SHOSHA
Plaintiff
and
ROAD
ACCIDENT
FUND
Defendant
JUDGMENT
BY
:
VAN
RHYN J
HEARD
ON
:
7
JUNE 2022
HEADS
OF ARGUMENT- PLAINTIFF: 25
JULY 2022
HEADS
OF ARGUMENT- DEFENDANT: 12
AUGUST 2022
DELIVERED:
3
OCTOBER 2022
INTRODUCTION:
[1]
The plaintiff, a 36-year old female, instituted action against the
defendant
in terms of the provisions of the Road Accident Fund Act
[1]
(“the Act”) for
the
payment of the amount of R3 416 845.00 in damages arising from
an incident which occurred on 13 May 2015. In her
particulars
of claim the plaintiff averred that a motor vehicle with registration
letters and -number [....] (the “insured
motor vehicle”),
driven by I Rossouw (the “insured driver”) failed to slow
down and stop at the robot-controlled
intersection of Church- and
Cambridge Streets, Bethlehem and collided with her. The plaintiff was
a pedestrian and was crossing
the street at the intersection when the
incident occurred.
[2]
The matter was certified trial ready on 7 March 2022 and proceeded on
merits and quantum.
The plaintiff averred that the accident was
caused as a result of the sole negligence of the insured driver of
the insured motor
vehicle who was negligent in one or more of the
following respects:
“
2.1
He travelled at a high speed under the circumstances;
2.2
He omitted to keep a proper lookout;
2.3
He omitted to keep his motor vehicle
under proper control;
2.4
He failed to comply with the statutory
traffic rules;
2.5
He failed to avoid an accident when by exercising
reasonable care he should and could have done so;
2.6
He failed to adequately apply the controls and other
mechanisms of his motor vehicle in such a way that it does
not pose a
threat to other road users;
2.7
He failed to adequately consider the presence, movement
and clearly visible movements of the Plaintiff;
2.8
He failed to consider the rights of other road
users.”
[3]
As a result of the collision the plaintiff sustained severe bodily
injuries including
a fracture to the right tibia and fibula.
[4]
The defendant denied that the accident occurred as averred and
pleaded that, in the
event of the plaintiff establishing that the
insured driver was negligent, then the defendant pleads that such
negligence did not
cause or contribute to the collision which was
caused by the sole negligence of the plaintiff.
[5]
The defendant pleaded that the plaintiff was negligent in one or more
of the following
respects:
“
5.1
She failed to keep a proper look out;
5.2
She ran negligently inside (sic) the road utilized by motor vehicles
thereby causing the accident;
5.3
She entered the road without looking and running thereby causing the
accident;
5.4
She placed herself in a position of danger thereby
causing the accident;
5.5
She failed to avoid the collision when she should and could have done
so.”
[6]
In the alternative the defendant pleaded contributory negligence by
the plaintiff
and that any damages which the plaintiff may have
suffered fall to be reduced in accordance with the provisions of the
Apportionment
of Damages Act
[2]
.
[7]
On the date of the trial, the matter stood down at the request of Mrs
Banda, the attorney
appearing on behalf of the defendant, who awaited
instructions in respect of a possible offer to settle the matter.
When
the matter proceeded, the court was informed by Mr Cross,
who appeared on behalf of the plaintiff, in his opening address, that
a settlement proposal made by the defendant included an apportionment
of damages which was not accepted by the plaintiff and that
the
matter will proceed on trial.
ARGUMENTS ON BEHALF OF
THE PLAINITFF AND THE DEFENDANT.
[8]
Mr Cross argued that the defendant has in effect conceded negligence
on the part of
the insured driver by submitting an offer to settle
the matter. It was furthermore placed on record by Mr Cross that the
insured
driver is not available to present evidence. Mrs Banda argued
that she will be able to elicit contributory negligence through cross
examination of the plaintiff.
[9]
The plaintiff did not testify nor did any other witness on her
behalf. Mrs Banda confirmed
that the insured driver is not available
to testify and that she does not intend to call any other witnesses.
Mr Cross presented
argument in support of the plaintiff’s claim
and argued that the onus to prove contributory negligence rests on
the defendant.
The defendant did not adduce any evidence and
therefore the court should make an order declaring that the defendant
is 100% liable
for the plaintiff’s damages.
[10]
Mr Cross then proceeded to argue the quantum of the plaintiff’s
claim and referred to several
medico-legal reports compiled by expert
witnesses and filed by the plaintiff. The necessary affidavits
obtained from the experts
confirming their expertise, the facts and
their respective opinions as contained in the expert reports, where
filed by the plaintiff.
Mrs Banda proceeded to argue the
quantum of the plaintiff’s claim with reference to the medico
legal reports filed
by the plaintiff. These expert reports were
handed in by agreement between the parties.
[11]
On 18 July 2022 the legal representatives of the parties were
requested to submit written heads
of argument in respect of the issue
whether the plaintiff has proved that the negligence or other
wrongful act of the insured driver
caused the accident taking
cognisance of the fact that the defendant did not concede the merits
of the claim and the plaintiff
did not present any evidence regarding
the merits of her claim during the trial. The heads of argument were
filed on the dates
as indicated in the heading of this judgment.
[12]
In the heads of argument, Mr Cross submitted that the starting point
is to determine whether
the plaintiff has succeeded in establishing
that the insured driver acted negligently. The question
stands to be answered
in the affirmative in favour of the plaintiff
by virtue of the following: only the plaintiff adduced evidence in
relation to negligence.
Evidence may be presented by means of
viva voce
evidence, documentary evidence or evidence in the
form of
ex facie curia
admissions. He further argued
that the plaintiff’s evidence was presented in the form of the
compulsory section19 (f)
of the Act affidavit setting out the details
of the accident.
[13]
It is therefore submitted that the offer made by the defendant on the
day of the trial settled
the issue of negligence. Mr Cross contended
that the defendant’s version is thus that it does not take
issue with the negligence
of the insured driver and that the only
issue that remains is the contributory negligence (if any) of the
plaintiff. In this
matter, the evidence was therefore also
presented in the form of an
ex facie curiae
admission
contained in the offer that the defendant admitted that the
negligence of the insured driver caused the accident
[14]
On behalf of the plaintiff it was argued that the onus to prove
contributory negligence rests
on the defendant. The defendant did not
adduce any evidence to convince the court of the contributory
negligence of the plaintiff.
Once the negligence of the insured
driver has been admitted and the defendant bears the onus to prove
contributory negligence,
the failure to do so, concomitantly result
in a finding in favour of the plaintiff. On behalf of the plaintiff
it is contended
that the court should make an order declaring the
defendant to be 100% liable for the plaintiff’s damages.
[15]
Mrs Banda submitted in her heads of argument that the plaintiff’s
version of how the accident
occurred, as contained in her affidavit
in terms of section 19 (f) of the Act, was not admitted as evidence
tendered in the trial.
In the Minutes of the Rule 37 Pre-Trial
Conference it was recorded that the plaintiff intends to tender
evidence by means of affidavit
as contemplated in Rule 38(2) Uniform
Rules of Court in respect of five expert witnesses and requested the
defendant to respond
by indicating whether the defendant objects to
the proposed action. The names of the witnesses listed did not
include the plaintiff.
The defendant did not agree to the proposal
made by the plaintiff.
[16]
Rule 38(2) provides that the witnesses at the trial of any action
shall be orally
examined, but a court may at any time, for
sufficient reason, order that all or any of the evidence to be
adduced at any trial
be given on affidavit or that the affidavit of
any witness be read at the hearing, on such terms and conditions as
to it may seem
meet: Provided that where it appears to the court that
any other party reasonably requires the attendance of a witness for
cross-examination,
and such witness can be produced, the evidence of
such witness shall not be given on affidavit.
[17]
Mrs Banda argued that although the defendant made an offer in
settlement of the plaintiff’s
claim, such offer was made
without prejudice. Plaintiff rejected the defendant’s offer,
hence the matter proceeded to trial.
No evidence was presented
in the form of an
ex-facie curia
admission. In the
circumstances, plaintiff has not proved her version of the events as
to how the collision occurred nor
that the insured driver was
negligent. The burden of proof rested upon the plaintiff in
respect of the negligence of the
insured driver and the plaintiff
failed to discharge such burden. As such, absolution from the
instance should be granted.
THE APPLICABLE LEGAL
PRINCIPLES AND DISCUSSION.
[18]
Generally, evidence for either party must, in both criminal and civil
cases, be given orally
by the witness in the presence of the parties.
Evidence essentially consists of oral statements made under oath or
affirmation.
The purpose of this practice is that parties
should have an opportunity to confront the witnesses who testify
against them, and
should be able to challenge the evidence by
questioning the witnesses where they and the court can also observe
the demeanour of
the witness for purposes of assessing his or her
credibility.
[19]
The terms “burden of proof’ and “onus of proof”
refer to the duty that
is cast upon a litigant to adduce evidence
that is sufficient to persuade a court, at the end of the trial, that
the claim or the
defence, as the case may be should succeed. In
Pillay
v Krishna and Another
[3]
it was described as follows:
“
The
only correct use of the word ‘
onus
’
is that which I believe to be its true and original sense (cf D
31.22), namely, the duty which is cast on the particular
litigant, in
order to be successful, of finally satisfying the court that he is
entitled to succeed on his claim, or defence, as
the case may
be…”.
[4]
[20]
The burden of proof in an action will not necessarily fall on the one
party alone, but each of
the parties may bear a burden of proof in
relation to different issues. In
Pillay v Krishna
the
general approach was explained as follows:
“
If
one person claims something from another in a Court of law, then he
has to satisfy the Court that he is entitled to it.
But there
is a second principle which must always be read with it: Where the
person against whom the claim is made is not content
with a mere
denial of the claim, but sets up a special defence, then he is
regarded
quoad
that
defence, as being the claimant: for his defence to be upheld he must
satisfy the Court that he is entitled to succeed on it
… But
there is a third rule, which Voet states… as follows:
‘He who asserts, proves and not he who denies,
since a denial
of a fact cannot naturally be proved provided that it is fact that is
denied and that the denial is absolute’.
The
onus
is on the person who alleges something and not on his opponent who
merely denies it.”
[5]
[21]
Where there are a number distinct issues, for instance a claim and a
special defence, then there
are several and distinct burdens of
proof. These issues have nothing to do with each other, save of
course that the second will
not arise until the first has been
discharged.
[6]
[22]
In
South
Cape Corporation (Pty) Ltd v Engineering Management Services (Pty)
Ltd
[7]
Corbett JA (as he then was) explained the distinction between the
burden of proof properly so called and the evidential burden
as
follows:
“
As
was pointed out by Davis AJA in
Pillay v Krishna and Another
1946 AD at 952-3, the word onus has often been used to denote,
inter
alia
two distinct concepts: (i) the duty which is cast on the
particular litigant, in order to be successful, of finally satisfying
court
that he is entitled to succeed on his claim or defence, as the
case may be; and (ii) the duty cast upon a litigant to adduce
evidence
in order to combat a prima facie case made by his opponent.
Only the first of these concepts represents the onus in its true
and
original sense. In
Brand v Minister of Justice and Another
1959 (4) SA 712
(A) at 715 Ogilvie-Thompson JA called it ‘the
overall onus’. In this sense the onus can never shift
from the
party upon whom it originally rested. The second
concept may be termed, in order to avoid confusion, the burden of
adducing
evidence in rebuttal (‘weerleggingslas’).
This may shift, or be transferred in the course of the case,
depending
upon the measure of proof furnished by the one party or the
other.”
[23]
Rules 39(5) and (9) of the Uniform Rules of Court, read together,
provide that the party who
bears the burden of proof has the right to
adduce evidence first. Rule 39(13) provides as follows:
“
Where
the onus of adducing evidence on one or more of the issues is on the
plaintiff and that of adducing evidence on any other
issue is on the
defendant, the plaintiff shall first call his evidence on any issues
in respect of which the onus is upon him,
and may then close his
case. The defendant, if absolution from the instance is not
granted, shall, if he does not close his
case, thereupon call his
evidence on all issues in respect of which such onus is upon him.”
[24]
The “onus to adduce evidence” as it is used in the Rules
39(11) and (13) is no more
than the duty to adduce evidence and does
not necessarily coincide with the burden of proof. While the
incidence of the duty to
adduce evidence will often coincide with the
incidence of the burden of proof, or with the incidence of the
evidential burden,
what is referred to in the Rules is something that
is conceptually quite different. The onus to adduce evidence
has no bearing
upon the evaluation of the evidence. It is
merely a procedural duty that is imposed upon one or other of the
parties to enable
the trial to be conducted effectively. In
general, and as a matter of logic, the party who bears the burden of
proof will
have a duty to adduce evidence first on those issues upon
which he or she bears that burden, but the pleadings may alter the
position.
[25]
On 30 November 2021 a pre-trial conference in terms of the provisions
of Rule 37 was held between
the legal representatives of the
plaintiff and defendant. In terms of paragraph 8 of the signed
Minutes of the Pre-trial
Meeting, the parties agreed that each of the
parties bears the onus of proof in respect of the allegations made by
them and the
duty to begin rests on the plaintiff. In terms of
paragraph 11 of the said minutes, the parties agreed that with
regards
to the status of the discovered documents, the documents are
what they purport to be and may be used in evidence, without any
admissions
as to the contents thereof.
[26]
Regarding the issues in dispute, it was agreed that the following two
aspects remain in dispute:
26.1
whether the plaintiff has suffered any damages;
26.2
whether the damages suffered by the plaintiff was caused by the
negligence of the defendant.
[27]
In paragraph 17 of the Minutes of the Pre-trial Meeting, the
defendant was specifically asked
to admit that the collision occurred
on 13 May 2015 at the intersection of Church- and Cambridge Streets,
Bethlehem and took place
when the driver of the vehicle with
registration numbers and letters FFB 958 FS was driven by I Rossouw
when it collided with the
plaintiff. The defendant replied that any
admissions are limited to the defendant’s plea.
[28]
The plaintiff furthermore requested the defendant to admit or deny
that the insured driver was
negligent in one, more, or all the
grounds alleged in the plaintiff’s particulars of claim.
The defendant replied that
any admissions are limited to the
defendant’s plea. The defendant was requested to concede
the issue of merits based
on the negligence of the insured driver.
The defendant replied as follows: “Plaintiff is put to the
proof thereof”.
[29]
In a civil case the standard of proof is proof upon a balance of
probability. Proof of
a fact means that the court has received
probative material with regard to such fact and has accepted such
fact as being the truth
for purposes of the specific case. However,
evidence of a fact is not yet proof of such fact
[8]
- as the court must still decide whether or not such fact has been
proved in accordance with the standard of proof required.
[30]
Liability generally depends upon the wrongfulness of the act or
omission relied on by the plaintiff.
In order to claim compensation
for patrimonial loss, a claimant should establish that he or she
sustained harm which was
wrongfully caused by the defendant.
Wrongfulness, in cases against the RAF is inferred from the fact that
the third party negligently
caused the accident. The statutory nature
of the liability is such that the RAF insures the third party “for
any loss or
damage which the third party has suffered as a result of
any bodily injury to himself … if the injury … is due
to
the negligence or other wrongful act of … the insured
driver”
[9]
.
The
test for negligence is as set out in the matter of
Kruger
v Coetzee.
[10]
[31]
Thus, once negligence of the insured driver is proved, wrongfulness
is generally assumed. It
must then be shown that the loss suffered by
the claimant is due to the negligent/wrongful act in issue. Included
in a bundle,
marked “Merits” in the court file, is a copy
of an affidavit deposed to by the plaintiff on 11 November 2016.
The original affidavit deposed to by the plaintiff was not handed up
as an exhibit during the trial and for purposes hereof it
is assumed
that the original affidavit was submitted with the claim form as
required by the Act. Mr Cross, in his argument regarding
the quantum
of the plaintiff’s claim mentioned that certain scars on the
plaintiff’s leg was visible to him when he
consulted with her
on the day of the trial. It is therefore assumed that the plaintiff
was at court and available to testify in
her own case.
[32]
Mrs Banda disputed the admissibility of the affidavit deposed to by
the plaintiff. The admissibility
of evidence and the weight of
evidence are two different concepts not to be confused. In
South
African Criminal Law and Procedure
[11]
it
is explained as follows:
“
If
what is adduced can in law properly be put before the court, it is
admissible. It is only once it has been or could be
admitted
that its persuasiveness, alone or in conjunction with other evidence,
in satisfying the court as to the
facta probanda
has to be
considered.
[33]
Fisher J held as follows M S v Road Accident Fund
[12]
:
“
Rule
33 deals with the correct manner for the recording of admissions or
statement of issues. Compliance with these rules should
be insisted
on by courts unless compelling reasons exist for departing therefrom.
Lack of formality leads to a slipshod approach
to the conduct of the
trial, which serves only to pander to the wont of many legal
representatives to get in and out of court with
as little trouble to
themselves as possible and maximum returns.”
[34]
There are two basic rules governing the admissibility of a document,
namely the original document
must be produced and the document must
be authenticated. None of these two principles, have been complied
with in the matter at
hand. The argument that the plaintiff has
succeeded in establishing that the insured driver acted negligently
is being rejected
by the defendant on the basis that the plaintiff
did not testify during the trial and thus did not make out a prima
facie case.
I agree with the defendant’s submission in
this regard. The applicant furthermore relies on the offer made by
the defendant
during settlement negotiations on the day of the trial
in support of the argument that the defendant admitted that the
negligence
of the insured driver caused the accident.
[35]
Courts enforce the principle that: “Statements made expressly
or impliedly without prejudice
in the course of bona fide
negotiations for the settlement of a dispute may not be disclosed in
evidence without the consent of
both parties.”
[13]
The defendant objects against the disclosure and the admissibility of
the fact that a settlement proposal was made by the defendant
which
could be construed as an admission of the negligent conduct of the
insured driver. It is trite that communications exchanged
between
litigants in the course of legal proceedings in a bona fide endeavour
to settle their differences are protected from subsequent
disclosure
at the trial and from admission to evidence.
[36]
In Naidoo v Marine & Trade Insurance Co Ltd
[14]
Trollip JA observed that the rule is based upon considerations of
public policy to encourage resolution of disputes:
“
The
rationale of the rule is public policy: parties to disputes are to be
encouraged to avoid litigation and all the expenses (nowadays
very
high), delays, hostility, and inconvenience it usually entails, by
resolving their differences amicably in full and frank
discussions
without the fear that, if the negotiations fail, any admissions made
by them during such discussions will be used against
them in the
ensuing litigation.”
[37]
Also on this point, I agree with the contention made by Mrs Banda.
The fact that an offer in
settlement of the plaintiff’s claim
was made by the defendant is of no consequence and is inadmissible as
evidence
[15]
. In any
event the offer was not accepted by the plaintiff and is therefore
irrelevant to the proceedings.
[38]
I agree with the contention made on behalf of the defendant that the
plaintiff failed to place
evidence before court to enable the court
to evaluate the evidence as a whole and to determine whether the
plaintiff has discharged
the onus of proof. In the circumstances the
plaintiff failed to adduce any evidence pertaining to the negligence
of the insured
driver. There is no prima facie evidence and thus
proof before the court that the insured driver was negligent in any
respect or
that the insured driver thus caused the accident. At the
conclusion of the whole case no evidence was placed before the court
by
either of the parties in respect of the merits. In the
result the plaintiff failed to discharge the burden of proof and
absolution
from the instance should be granted.
[39]
As to the issue of costs, there are no good reasons for not ordering
the plaintiff to pay the
defendant’s costs.
[40]
ORDER:
1.
Absolution from the instance is granted.
2.
The plaintiff is ordered to pay the costs of the defendant.
VAN
RHYN J
On
behalf of the
Applicant: Adv.
C.G. CROSS
Instructed
by: DU
PLOOY ATTORNEYS
On
behalf of the Second Respondent: MRS.
P. BANDA
Instructed
by: RAF
STATE ATTORNEYS
[1]
Act 56 of 1996
[2]
Act 34 of 1956.
[3]
1946 AD 946.
[4]
at 952-3.
[5]
(
Supra
)
at 951-2.
[6]
Pillay v Krishna
supra
at 953.
[7]
1977 (3) SA 534
(A) at 548.
[8]
R v V 1958 (3) SA474 (GW).
[9]
Road Accident Fund Act 1996 (as amended): S 17(1).
[10]
1966 (2) SA 428
(A) at 430E-F.
[11]
A V Lansdown 7 J Campbell: Vol V, Criminal Procedure and Evidence
(1982) at 720.
[12]
(10133/2018) [2019] ZAGPJHC 84.
[13]
The South African Law of Evidence, 2
nd
Edition, DT Zeffert, AP Paizes at p 700.
[14]
1978 (3) SA 666
(A) at 677C-D.
[15]
Kotzé v Suidwestelike Transvaalse Landboukoöperasie
[2005] 2 All SA 232
(SCA).