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[2022] ZAMPMBHC 82
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Ubisi v Road Accident Fund (310/2021) [2022] ZAMPMBHC 82 (24 October 2022)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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IN
THE HIGH COURT OF SOUTH AFRICA
(MPUMALANGA
DIVISION, MBOMBELA)
CASE
NO: 310/2021
REPORTABLE:NO
OF
INTEREST TO OTHER JUDGES:YES
REVISED:
YES
24/10/2022
In
the matter between:
ATTEMPT
UBISI
Plaintiff
and
ROAD
ACCIDENT
FUND
Defendant
J
U D G M E N T
MASHILE
J:
[1]
This is a
delictual claim emanating from a motor vehicle collision between the
Plaintiff and motor vehicle with Registration letters
and numbers
[....]. The collision happened on 8
February 2020 at or
near Tintswalo Hospital in the district of Acornhoek in Mpumalanga
Province. When the collision occurred, the
Plaintiff was a
pedestrian. In consequence of the collision described aforesaid, the
Plaintiff sustained multiple injuries most
notably, a severe head and
maxilo-facial injuries.
[2]
Believing that the accident was as a result of the negligent driving
of the driver
of motor vehicle with registration letters and number
[....]
,
liable to
compensate him for the resultant injuries, he lodged a motor vehicle
accident claim in terms of the
Road Accident Fund Act, 56 of 1996
, as
amended (“the Act”) against it under the headings of
general damages, future medical treatment, past and future
loss of
earnings.
As
has become accustomed, the action was never defended because the
Defendant had, at the time of the institution of the action,
withdrawn its mandate that it had given to its attorneys.
[3]
When the matter served before me I was advised that the Court was to
adjudicate both
merits and quantum. Naturally, the first part to be
considered will be the merits. If the Plaintiff fails to establish
negligence
on the part of the insured driver, the claim will be
dismissed making it unnecessary to proceed to determine quantum. The
converse
will imply progression to the next leg, quantum.
[4]
As a result of the view that I take of the matter, I do not deem it
essential to assess
the evidence of the experts. The only testimony
critical to the outcome of this judgment is that of the Plaintiff who
testified
on his own behalf on merits and to a limited degree,
quantum. The evidence of the two witnesses contained in the two
affidavits,
which Counsel for the Plaintiff sought to improperly
introduce was, besides it not having been preceded by the application
envisaged
in
Rule 38(2)
and therefore inadmissible and valueless. I
now proceed to describe the evidence of the Plaintiff below.
[5]
The Plaintiff confirmed the date of accident as 8 February 2020.
He
said that he was in the company of his former girlfriend, Khanyisa
Ngobeni (“Ngobeni”), who had asked him to accompany
her
to her home.
They
were walking on a tarred road in the vicinity of Tintswalo Hospital
when
a
white NT200 Corsa vehicle (“the insured vehicle”) pulled
next to them. It is imperative to mention at this point that
there is
a discrepancy between the description of the insured vehicle in the
particulars of claim and the
section 19f
affidavit, on the one hand,
and the Plaintiff’s evidence. In Court, he described it as a
white NT 200 Corsa van whereas in
the particulars of claim and the
section 19f
affidavit its referred to as a White Opel Corsa vehicle.
A voice coming from the insured vehicle asked what was going on
whereupon
Ngobeni took flight. He decided to turn back to head back
into the direction of his home.
[6]
The insured vehicle followed him. He picked up pace. He noticed the
insured vehicle
gathering momentum too. The insured vehicle then
collided with him from behind. He did not know why the insured
vehicle pursued
him. Ngobeni was his ex-girlfriend. He Did not know
the driver of the vehicle that collided with him. He was totally
oblivious
of the relationship between Ngobeni, his ex-girlfriend, and
the driver of the insured vehicle. He subsequently learned that the
driver was one Mr M[....] (“the insured driver”), her
husband. He testified that he was convinced that the insured
driver
deliberately collided with him.
[7]
In reply to a question whether or not he had seen the vehicle that
collided with him,
he said that he did because while running away he
regularly looked back to see if the vehicle was still following him.
Furthermore,
there was no traffic in that road making the insured
vehicle the only one that was travelling behind him at the time. He
estimated
the speed to have been at its highest when the insured
vehicle collided with him. He testified further that the insured
vehicle
first collided with his lower limbs following which he fell
to the ground. The insured vehicle then drove over him and failed to
stop thereafter.
[8]
He explained that his lower limbs were not injured despite that the
first contact
was with them. He said that shortly before the impact,
he jumped and fell to the ground and the vehicle ran over him. His
explanation
was still insufficient as it was not a satisfactory
account for his limbs being free of injury especially after coming
into contact
with a fast-moving vehicle. His testimony in his
examination in chief was that the vehicle came from behind, collided
with him
and drove away. He was further adamant that he did not see
it collide with him but when the Court sought clarity, he
categorically
stated that he saw it.
[9]
Although he initially stated that Kenneth Ndlovu (“Ndlovu”),
the person
who drove him to hospital after the accident, witnessed
the accident, it later transpired that it was not true. This became
evident
when he testified that Ndlovu was called to come and assist a
person who had been knocked down by a vehicle. This made Ndlovu a
person who came after the fact of the accident. That said, he
testified that Ndlovu assisted the police officers to draw up the
officer’s accident report. Again, this could not have been
correct because Ndlovu was not present when the accident occurred.
[10]
As stated earlier, Counsel for the Plaintiff tried to introduce
evidence by affidavits. The Court
told him that it would be irregular
without an application setting out why the Court should accept such
evidence. In any event,
the evidence contained in those two
affidavits do not advance the Plaintiff’s case one step
further. If anything, they are
destructive to the version put forward
by the Plaintiff. Ndlovu says that when he arrived at the scene, he
found a stationary vehicle.
He also states that an injured person was
lying down on the ground. In the affidavit Ndlovu is silent on
whether or not the injured
person is the person that he ultimately
conveyed to hospital in his vehicle, the Plaintiff.
[11]
Ngobeni is the ex-girlfriend of the Plaintiff. The Plaintiff and
Ngobeni apparently retained
friendship relations after severing their
love relationship. Ngobeni confirms in her affidavit that she had
requested the Plaintiff
to accompany her to her parents’ home.
She further states that while walking together with the Plaintiff,
she received a
message on her mobile from her husband advising her
that he was on his way to Gandagaza village. At that point she told
the Plaintiff
that he could go back as her husband would be giving
her a lift. The Plaintiff did as requested.
[12]
Not long thereafter, her husband arrived and picked her up. She says
that while travelling in
the vehicle, her attention was on her mobile
phone. She suddenly heard a thud-like sound. She immediately stopped
her focus on
the mobile phone and checked what was happening. She was
shocked to notice that her husband had just collided with the
Plaintiff.
She got out of the vehicle and ran to Tintswalo Hospital
to seek assistance. She spoke to a nurse who gave her a telephone
number
to call an ambulance. She did so and thereafter she was again
on her way to her parents’ house in Thulamahashe albeit that
she does not state whether or not she continued the journey with her
husband.
[13]
Paragraph 4 of the amended particulars of claim describes the manner
in which the accident occurred
as follows:
“
On
or about the 08
th
of February 2020 at or near Tintswalo, Acornhoek, Plaintiff was a
pedestrian while trying to cross the road when a White Opel Corsa
motor vehicle bearing registration numbers and letters [....] (herein
referred to as insured motor vehicle) driven by one
Mr.
B[....] M[....]
(herein
referred to as insured driver) came at a high speed in a gravel road
without observing pedestrians crossing on the road
and knocked down
the plaintiff.”
[14]
In the
Section 19(f)
affidavit at paragraph 2, the Plaintiff
describes the way in which the accident happened almost in similar
terms as does the amended
particulars of claim and he states:
“
During
or on the 08
th
of February 2020 at or near Tintswalo Village, Acornhoek, Mpumalanga
Province at approximately 17h40, I was a pedestrian while
trying to
cross the road when a White Opel Corsa motor vehicle bearing
registration numbers and letters [....] driven by one, Mr
B[....]
M[....] knocked me down.”
[15]
The version of the driver of the insured vehicle is captured in the
officer’s accident
report. It is stated that the driver told
the police officer that he was driving into an easterly direction on
a gravel road when
a pedestrian suddenly entered his path of travel
in an attempt to cross. He collided with the pedestrian and could not
avoid the
accident.
[16]
The liability
of the Defendant must be assessed against the facts described above.
The Plaintiff
bears the onus of proving, on a balance of probabilities, the facts
upon which he claims the accident happened. The
issue is therefore,
aside from the fact that the Defendant did not contest the merits,
whether or not he has established that firstly,
he collided with the
insured vehicle and secondly, that the accident occurred as a result
of the insured driver’s negligent
driving.
[17]
Put differently, the issue is
simply
to determine whether or not the facts as outlined support a case of
negligence against the insured driver. Needless to state
that if the
facts underpin such a case, the Plaintiff should succeed. On the
other hand, if they do not, the claim must be dismissed.
Since the
case revolves around the negligent driving of the insured driver, it
will be helpful to refer to some case authority
on negligence.
[18]
The
locus
classicus
on negligence is set out in the case of
Kruger
v Coetzee
[1]
where it was stated:
“
For
the purposes of liability culpa arises if –
(a)
A diligens paterfamilias
in the position of the defendant –
(i)
would foresee the
reasonable possibility of his conduct injuring another in his person
or property and causing him patrimonial loss;
and
(ii)
would take reasonable
steps to guard against such occurrence; and
(b)
the defendant failed to
take such steps.”
[19]
The instances in which the insured driver is said to have been
negligent are stated in the particulars
of claim in the following
terms:
“
The
aforesaid collision was caused by the sole and exclusive negligence
of the driver of the insured motor vehicles, who was negligent
in one
or more or all of the following respects:
5.1.
He failed to keep any proper look-out pedestrian more
specifically Plaintiff;
5.2.
He executed an inherently dangerous maneuver without
exercising the degree of a skilled reasonably person required under
the circumstances;
5.3
He failed to avoid the accident by the exercising of the skills of a
reasonable person skill he could and
should have done so; and
5.4
He failed to apply the brakes of the motor vehicle either timeously
or at all, alternatively he drove the
said motor vehicles with
defective brakes.”
[20]
The discrepancies between the Plaintiff’s testimony in Court
and those alleged in the papers
are disturbing. The following are
glaring:
20.1
According to the
Section 19(f)
affidavit and the particulars of
claim, the Plaintiff was in the process of crossing a road when the
insured vehicle came driving
in a high speed, failed to observe the
rights of pedestrians and collided with him. In his evidence in
Court, the vehicle collided
with him from behind, knocked him down
and drove over him;
20.2
The Plaintiff was very explicit when asked about the condition of the
road. He said that the accident happened on a tarred
road yet in his
particulars of claim, he is unambiguous that it was a gravel road.
[21]
If it is correct that the vehicle collided with him from behind and
then drove over him, no explanation
was proffered why his injuries
were concentrated around his head. The Plaintiff had no noticeable
injuries to his lower limbs.
Save for the soft tissue lumbar spine
referred to by the occupational therapist, his back was free of
bruises or lacerations. I
find this lack of bruises or lacerations
inconsistent with someone who was run over by a vehicle from behind.
[22]
He contradicted himself on whether or not he saw the vehicle that
collided with him. At one point
he stated that he did not see it and
does not remember what transpired thereafter as he woke up in
hospital. In an answer to the
Court, however, he said that he saw the
vehicle collide with him and that his lower limbs came into contact
with the fast moving
vehicle. Asked why he did not have any serious
injuries to his lower limbs and his back, he explained that he jumped
thereby making
the impact with the insured vehicle less effective.
[23]
He did not state the direction into which he had jumped nor did he
say how doing so weakened
the impact of a fast-moving vehicle coming
into contact with him. The contradiction between colliding with a
vehicle while crossing
a road and running away from a vehicle that
was seemingly pursuing him is remarkable. These anomalies cannot be
ignored in favour
of simply wanting to find in favour of the
Plaintiff. The pleaded case ought to be supported by the evidence
that is ultimately
presented in Court. If there is incongruity
between the two, no Court can find for a Plaintiff.
[24]
The version of the insured driver as captured by the police officers
in the officer’s accident
report is that the Plaintiff suddenly
entered the road without first checking if there were motor vehicles
approaching from either
side. Assuming that the police docket was
properly introduced into evidence, the Plaintiff did not deal with
the version of the
insured driver. While there is convergence on
crossing of the road between the insured driver and the Plaintiff,
the latter in
his evidence never intimated that he was crossing a
road.
[25]
A further inconsistency pertains to Ngobeni’s statement and the
Plaintiff’s evidence
in Court, assuming that it was introduced
into evidence. The Plaintiff testified that he was walking with
Ngobeni when the insured
vehicle pulled next to them and the insured
driver asked what was going on. He stated that Ngobeni ran away. At
that juncture,
he turned back and the insured vehicle followed him.
He then picked up pace. Likewise, the insured vehicle accelerated.
[26]
From the perusal of the sworn statement of Ngobeni, this could not
have been possible because
according to her, she had received a text
message from the insured driver informing her that he was on his way
to Gandagaza Village
and that he would give her a lift. The message
prompted her to ask the Plaintiff’s to turn back because her
husband, the
insured driver, was on his way. So, at the time when the
insured driver picked her up, the Plaintiff had already turned back.
[27]
Furthermore, Ngobeni states that she was driving with her husband,
the insured driver, concentrating
on her mobile phone. She suddenly
heard a bang. When she checked, she noticed that her husband had
collided with the Plaintiff.
She got off the vehicle and went to
hospital to seek assistance in the form of ambulance. Thereafter, she
proceeded with her journey
to her parents’ house in
Thulamahashe.
[28]
These contradictions are enormous and they throw doubts on whether
the Plaintiff was in fact
involved in a motor vehicle accident at
all. I am mindful that the Defendant did not defend this action. That
said, the Court cannot
simply because of the lack of participation by
the Defendant in these proceedings assume that the insured driver was
to blame without
the Plaintiff, on a balance of probabilities,
demonstrating negligence on the part of the insured driver. In the
result, the action
fails.
[29]
My findings on the merits necessarily makes it gratuitous to proceed
to assess quantum. Accordingly,
I make the following order:
The
action is dismissed with costs.
B
A MASHILE
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
MPUMALANGA
DIVISION, MBOMBELA
This
judgment was handed down electronically by circulation to the parties
and/or parties’ representatives by email. The date
and time for
hand-down is deemed to be 24 October 2022 at 10:00.
APPEARANCES:
Counsel
for the Plaintiff: Adv
P Tshavhungwe
Instructed
by: Ngomana
& Associates Attorneys
Counsel
for the Defendant: No
Appearance
Instructed
by:
Date
of Judgment: 24
October 2022
[1]
1966
(2) SA 428