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[2022] ZAMPMBHC 85
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Tshole v Road Accident Fund (351/2018) [2022] ZAMPMBHC 85 (1 December 2022)
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IN
THE HIGH COURT OF SOUTH AFRICA
(MPUMALANGA
DIVISION, MBOMBELA)
CASE
NO: 351/2018
REPORTABLE:NO
OF
INTEREST TO OTHER JUDGES:YES
REVISED:
YES
01/12/2022
In
the matter between:
CHRISTINA
MATSHOLE TSHOLE
Plaintiff
and
ROAD
ACCIDENT FUND
Defendant
J
U D G M E N T
MASHILE
J:
[1]
This third party claim has been instituted in terms of the provisions
of the
Road Accident Fund Act, 56 of 1996
, as amended. The claim is
alleged to derive from a collision that took place on 4 May 2015 at
approximately 15:50 outside Mashishing
into the direction of
Daalstroom, Province of Mpumalanga. The collision was between motor
vehicles bearing registration letters
and numbers
[....],
in which the Plaintiff was allegedly a passenger, and [....]
.
[2]
Initially, the Defendant opposed the action and served a special plea
and a plea addressing
the merits generally. The special plea raised
non-compliance with
Regulation 3
dealing with seriousness of the
injuries sustained by the Plaintiff. However, the special plea and
plea seem to have fallen by
the wayside because no other pleadings
were forthcoming from the Defendant and was not present at the
hearing on 14 March 2022.
No application for separation of merits
having been requested, the case proceeded on both merits and quantum.
[3]
According to the particulars of claim, the injuries sustained by the
Plaintiff are:
3.1
Open fracture of the left fibula;
3.2
Amputation of the left leg;
3.3
Fracture of the left clavicle;
3.4
Fractured ribs; and
3.5
Laceration of the liver.
[4]
Insofar as liability is concerned, the Plaintiff testified on her own
behalf. She
called no other witnesses to support her version.
Thereafter, different expert witnesses testified. All the testimony
of the experts
is relevant to quantum. The first part of this
judgment will deal with liability. Depending on the outcome on
liability, I will
then proceed to consider quantum.
[5]
The Plaintiff testified that she was a passenger in motor vehicle
[....].
She
was a middle-seat passenger sitting three seats behind the driver.
She suddenly heard fellow passengers screaming and saying
that a
certain vehicle was driving towards them. She did not see the vehicle
that the other passengers were shouting about. She
said that she then
fell unconscious, which she thinks must have been after impact. In
short, she does not know how the collision
happened. Neither the
drivers of the respective vehicles nor the passengers were called to
give evidence. The Officer’s Accident
Report, sketch plan and
key (OAR) were not proved as the officer who drew them up was not
called. As such, they are hearsay.
[6]
From the evidence of the Plaintiff described above I need to decide
whether either
driver can be found to have driven negligently.
Needless to state that if either of them is so found, the Plaintiff
will succeed
with her claim against the Defendant. The aforesaid
issue cannot be decided independently of whether or not the
Plaintiff’s
evidence, as one adduced by a single witness who
turns out to be a claimant as well, required corroboration for her to
succeed.
[7]
For the Plaintiff to succeed with her delictual claim she is required
to establish
the following:
7.1
A wrongful act on either driver;
7.2
Fault, constituted by either negligence or intention. Again, this
must be on either driver;
7.3
Causation. There must be a causal link between the wrongful conduct
that was caused negligently or intentionally
and the loss;
7.4
Patrimonial loss that flows directly from the above.
[8]
It is not possible to raise the question of negligence without
mentioning
the
case of
Kruger
v Coetzee
[1]
where it was held as follows:
“
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.”
[9]
Insofar as I have raised the issue of the evidence of single
witnesses in civil trials,
it is worth mentioning that Section 16 of
the Civil Proceedings Evidence Act, 25 of 1965 provides that
‘
judgment
may be given in any civil proceedings on the evidence of any single
competent and credible witness.’ See also the
case of
Daniels
v General Accident Insurance Co Ltd
[2]
.
Thus, it appears from the provisions of Section 16 of the Civil
Proceedings Evidence Act aforesaid that the only requirements
are
that the witness must be competent and credible.
[10]
Another issue in this matter concerns whether or not this Court can
draw an adverse inference
as a result of the Plaintiff’s
failure to call witnesses to support her case in circumstances where
there is almost an obligation
to do so for her to succeed with her
claim against the Defendant. Adverse inferences in these instances
have been drawn in various
cases in the past. This is evident from
the remarks of Solomon JA in the case of
Sampson
v Pim
[3]
where he said 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
[4]
.
[11]
The first question is whether or not any negligence can be attributed
to one of the drivers of
the motor vehicles alleged to have been
involved in this collision. The only evidence that I have in this
regard is that levied
by the Plaintiff. Fundamentally, her testimony
was that she does not know what happened but she could recall hearing
her fellow
passengers screaming, saying that a certain vehicle was
driving towards them. Thereafter, she does not know what transpired
because
she probably fell unconscious.
[12]
The Plaintiff was in the company of her companion, one Rapatsa, who
according to her, had also
sustained injuries albeit that his were
minor. No attempt was made to call this passenger despite his
identity being obviously
known to the Plaintiff. Quite apart from the
failure to call Rapatsa, from the Plaintiff’s testimony it is
apparent that
she was in a taxi with many other passengers but
strangely, not even one of them was called. I am also at a complete
loss why both
or one of the drivers of the motor vehicles involved in
the collision were or was not called to corroborate or in fact
enlighten
this Court what transpired because the Plaintiff does not
know.
[13]
Other than leading the evidence of various expert witnesses, the
Plaintiff failed to prove documents
such as the OAR, sketch plan and
key by calling the police officer who drew them up. Consequently, I
cannot take the contents of
the OAR, sketch plan and key into
consideration because they are hearsay and therefore improperly
before me. It was manifest at
the end of the testimony of the
Plaintiff, especially on liability, that her evidence was
insufficient to sustain the allegations
of negligence in the
particulars of claim but still her legal representatives would not
call any witnesses to fill up this gaping
hole.
[14]
What then is the meaning of all this? The following constitute
answers to this question:
14.1
On the evidence of the Plaintiff alone, the collision has not been
proved;
14.2
I cannot attribute negligence to either driver because I do not know
who of them drove negligently despite the allegations
contained in
the particulars of claim;
14.3
I cannot take the OAR, sketch plan and key because no witness was
called to introduce into evidence;
14.4
The evidence of the expert witnesses is irrelevant insofar as
liability is concerned.
[15]
Given the gravity of the injuries sustained by the Plaintiff, as
described in the particulars
of claim, and that the claimed amount is
approximately
R2.5 Million
, it is shocking that the
Plaintiff’s legal representatives failed to anticipate and
circumvent these basic problems. The
ease with which Rapatsa or any
other passenger in motor vehicle DJF 564 GP or one of the drivers
could have been called to cure
the Plaintiff’s single witness
evidence, makes this a fertile ground from which this Court can draw
the negative inference
referred to in the cases of Samson and Galante
supra.
[16]
Overall, I am not satisfied that the Plaintiff has, as she is
expected, proved her case. That
is not so much because she was a
single witness but simply that no negligence has been shown on either
driver. Bearing in mind
that according to
Claude
Neon Lights (SA) Ltd v Daniel
[5]
,
the test for granting or refusing absolution from the instance,
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, absolution is appropriate in this matter.
[17]
In the result the action fails and I make the following order:
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 Applicant: Adv
M I Thabede
Instructed
by: Mphokane
Attorneys
Counsel
for the Respondent: No
appearance
Instructed
by:
Date
of Judgment: 01
December 2022
[1]
1966
(2) SA 428 (A)
[2]
[1992]
3
All
SA
484
(C)
[3]
1918
AD 657 662
[4]
1950
2 SA 460 (A)
[5]
1976
(4) SA 403
(A)