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[2022] ZAMPMBHC 84
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Mokone v Road Accident Fund (311/2021) [2022] ZAMPMBHC 84 (1 December 2022)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
(MPUMALANGA
DIVISION, MBOMBELA)
CASE
NO: 311/2021
REPORTABLE:NO
OF
INTEREST TO OTHER JUDGES:YES
REVISED:
YES
01/12/2022
In
the matter between:
LUCY
FORTUNATE MOKONE
Plaintiff
and
ROAD
ACCIDENT
FUND
Defendant
J
U D G M E N T
MASHILE
J:
[1]
The
Plaintiff sues in her
personal capacity in terms of the
Road Accident Fund Act, 56 of 1996
,
as amended, for damages stemming from serious bodily injuries
sustained in a motor vehicle accident on 8 May 2020 as a Passenger
in
motor vehicle with registration letters and number [....], which
collided with motor vehicle bearing registration letters and
number
[....]. The collision happened at or along
R40
Road at Matsikitsane Next to Greentile, Acornhoek, Mpumalanga
Province at approximately 08H50.
[2]
From a perusal of the pleadings, medico-legal reports and medical
records, the injuries
suffered by the Plaintiff are not readily
discernable. The records from Tintswalo Hospital describe them as
swollen left eye and
upper lip, and right leg 3CM abrasions. On
arrival at hospital, she was described as somewhat shocked but
orientated. In the evening
of 8 May 2020, it is noted that she
complained of forehead headache and painful finger.
[3]
Dr Matekane, an Orthopaedic Surgeon who examined the Plaintiff on 31
July 2021 and
compiled his report on 30 August 2021, sets out the
Plaintiff’s injuries as soft tissue injuries of the spine,
right leg,
right wrist and facial laceration. Dr Buatre who is also
an Orthopaedic Surgeon and completed the statutory RAF1 Form states
them
to be a head injury (concussion), facial STI, laceration of the
left eye lid (0.5 CM), STI chest and abrasion on the right leg.
Lastly, Dr Mkhonza, a Neurosurgeon, lists the injuries as soft tissue
injuries of the left side of the face, left shoulder, wrist
and right
lower limb.
[4]
There was no application to separate merits and quantum. As such, the
matter is proceeding
on both issues. To support her claim, the
Plaintiff testified on her own behalf followed by various experts.
These were Dr Matekane,
an Orthopaedic Surgeon, Dr Mkhonza, a
Neurosurgeon, Ms Sebapu, an Occupational Therapist, Ms Baloyi, an
Industrial Psychologist
and Dr Modiba, a Clinical Psychologist. The
experts’ testimony mainly related to quantum.
[5]
The testimony concerning the manner in which the accident occurred
was levied by the
Plaintiff as a single witness. She stated that the
Collision was caused by the negligent driving of the driver of motor
vehicle
[....] as she drove on the lane of oncoming traffic. In that
process, the vehicle collided with motor vehicle [....] travelling
into the opposite direction. She further told the Court that
following the impact, motor vehicle [....] lost balance, overturned
and its passengers injured. In consequence of the collision, she said
that she sustained the following injuries:
5.1
Swollen left eye;
5.2
Swollen upper
lip;
5.3
Forehead;
5.4
Right leg
abrasions;
5.5
Spine and
right wrist.
The
Plaintiff was treated and discharged on the same day.
[6]
In view of there being no separation of issues, the obvious starting
point has to
be a decision on whether or not the Defendant is liable
to compensate the Plaintiff at all given the merits. The Plaintiff’s
evidence was not rebutted at all as the Defendant did not participate
in the proceedings. That said, it is still incumbent upon
the
Plaintiff to persuade the Court that the case that she has presented
was solid and that on a balance of probabilities she should
succeed.
[7]
All the documents that pertain to the manner in which the collision
occurred were
not presented before Court notwithstanding that they
might have been discovered. I could not have regard to the officer’s
accident report (OAR) because the officer who drew it up was not
called to take the stand consequently it is unproved and as such,
hearsay. I alerted the counsel for the Plaintiff that the OAR would
have to be proved prior to admission into evidence. His answer
was
that it was properly before Court and that it has been discovered
anyway.
[8]
I cannot have regard to the injuries mentioned by the various experts
in their reports
as being somehow connected to the collision because
the collision itself has not been established. So, even though the
experts
testified about injuries having been sustained, there remains
no causal link to the collision. The medical records too allude to
injuries but they too were not proved as neither the nurse/s nor
doctor/s were called to prove them. The result is that I cannot
admit
them into evidence. Thus, the disconnect is not only between the
collision and the reports of the experts but also the medical
records.
[9]
As though the above was not sufficient, the Plaintiff was in the
company of other
passengers who were also injured. Her attorneys have
made no attempt to call these witnesses to support the Plaintiff’s
allegation
of involvement in a motor vehicle collision. Furthermore,
no effort was made to secure the evidence of the driver of the motor
vehicle in which she was a passenger and no attempt to explain why
these witnesses were not called was made.
[10]
What then is the impact of all these shortcomings? This simply means
that the evidence of the
Plaintiff on the collision ought to be
assessed as one presented to Court by a single witness with no
supporting documentary evidence.
The concept of the evidence of
single witnesses occurs more regularly in criminal matters but where
appropriate and, with the required
modification to suit its
applicability in civil trials, its efficacy should be employed. The
obvious adjustment should be that
the standard of proof in a civil
trial will be on a balance of probabilities as opposed to beyond
reasonable doubt.
[11]
It might be appropriate at this juncture to refer to
Section 16
of
the Civil Proceedings Evidence Act, 25 of 1965, which stipulates that
judgment may be given in any civil proceedings on the
evidence of any
single competent and credible witness. So, it is conceivable to find
in favour of a Plaintiff on the basis of the
evidence of a single
witness. The only requirement is that his or her evidence must be
competent and credible. See also the case
of
Daniels
v General Accident Insurance Co Ltd
[1]
.
[12]
The onus to establish, on a balance of probabilities, that this
collision happened rested on
the Plaintiff. The Court cannot simply
accept her uncorroborated allegation of a motor vehicle collision
especially in circumstances
where it is public knowledge that the
Defendant is fraught with multiple fraudulent claims that cause tax
payers millions of rands.
Apart from all this, the attorneys failed
to ascertain that all the documentary evidence necessary to prove the
collision was properly
before Court.
[13]
It is mind-boggling for this Court to comprehend that in a claim
where a Plaintiff is seeking
compensation for an amount that is
approximately
R3 Million
, no extra effort was made to allay
any fears that the Court might have of being seized with one of the
many fraudulent claims that
frequently serve before our Courts. More
disquieting is that it would not have involved or cost much to
subpoena the police, nurses
and/or hospital doctors, the driver
and/or one or two of the Plaintiff’s co-passengers to put the
Court’s concerns
at ease.
[14]
If this was as simple as issuing subpoenas to witnesses, which is a
matter of routine insofar
as attorneys are concerned, the question is
why was it not done? In the light of what I have stated above, I feel
compelled to
draw an adverse inference against the Plaintiff –the
witnesses do not exist hence they were not called or simply that the
Plaintiff has failed to prove her involvement in a motor vehicle
collision from which she sustained the injuries she claims she
has
sustained.
[15]
On whether or not an adverse inference can be drawn in these
circumstances, see
Sampson
v Pim
[2]
where Solomon JA stated that if a witness was available to confirm a
party's allegations and he was not called to give evidence
the
inference would be overwhelming that his evidence would have been
unfavourable to the party not calling him. See also
Galante
v Dickinson
.
[3]
[16]
In the circumstances, it would be proper to grant an absolution from
the instance. The law that
governs the granting or refusal of
absolution is trite. The test to be applied for absolution, usually
at the end of the Plaintiff’s
case, is not whether or not the
evidence levied before Court by the Plaintiff demonstrates what would
customarily be necessary
to be proved at the conclusion of the case
of both parties. Instead, a Court should ask itself whether or not
there is evidence
upon which a Court, applying its mind reasonably to
such evidence, ‘could or might’ and not should, nor ought
to’
find for the Plaintiff were the matter to proceed to
finality. See,
Claude
Neon Lights (SA) Ltd v Daniel.
[4]
[17]
It has been said that the test entails that a plaintiff has to make
out a
prima
facie
case such that there is evidence relating to all the elements of the
claim to survive absolution because without such evidence
no Court
could find for the Plaintiff. See,
Marine
& Trade Insurance Co Ltd v Van der Schyff
[5]
.
That said, a Court should not be too eager to grant absolution at the
end of the Plaintiff’s case unless doing so, after
a careful
consideration of the circumstances, will be in the interest of
justice. See,
Gordon
Lloyd Page & Associates v Rivera
[6]
.
I
have considered all the circumstances described above and am
persuaded that it will be in the interest of justice to grant
absolution.
[18]
In the result, the claim fails and I make the following order:
An
absolution from the instance is granted.
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 01 December 2022 at 10:00.
APPEARANCES:
Counsel
for the Plaintiff: Adv
Mabaso
Instructed
by: Ngomana
Attorneys
Counsel
for the Defendant:
No appearance
Instructed
by:
Date
of Judgment: 01
December 2022
[1]
[1992]
3
All
SA
484
(C)
[2]
1918
AD 657
662
[3]
1950
2 SA 460 (A)
[4]
1976
(4) SA 403 (A)
[5]
1972
(1) SA 26
(A) at 37G - 38A
[6]
2001
(1) SA 88
(SCA)