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[2022] ZAECELLC 33
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Shwele v Road Accident Fund (1340/2021) [2022] ZAECELLC 33 (22 November 2022)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law and
SAFLII
Policy
IN THE HIGH COURT OF
SOUTH AFRICA
(EAST
LONDON CIRCUIT LOCAL DIVISION)
CASE NO: 1340/2021
In
the matter between:
SAMSON
SHWELE
PLAINTIFF
A
nd
ROAD
ACCIDENT
FUND
DEFENDANT
JUDGMENT
NQUMSE
AJ:
[1]
This is an action for damages arising out of a collision involving a
motor vehicle driven
by the plaintiff with registration letters and
numbers C[â¦] 3[â¦] which occurred on 27 December 2016 at
or near Silindile Location
towards Sterkspruit. Since the fund
repudiated the plaintiff`s claim, both parties agreed that the matter
was to proceed only in
respect of the merits and that all other heads
of damages to be postponed pending the outcome on the merits.
[2]
The plaintiff testified that during the morning around 06`clock of 27
December 2016,
he was travelling with his vehicle a Ford Bantam with
the registration letters above from a village where he had visited
his aunt
who was indisposed. Whilst travelling on the road towards
Sterkspruit, which is well known to him, and whilst busy negotiating
a
bend the vehicle driven by the insured driver appeared on the bend
from the opposite direction at a high speed. It moved from its
lane,
crossed the barrier line and drove onto his lane, thereby collided
with his vehicle on the right wheel arch area towards his
driver`s
door.
[3]
He testified that he was travelling at 80KPH, however, due to the
fast pace with which
the accident happened there was nothing he could
do to avoid the collision.
[4]
Consequent to the accident, he sustained a fracture from his right
knee to his waist
area as a result of which he was hospitalised for
about a month. He still experiences difficulty in bending his knee
and unable to
walk for a long distance.
[5]
He disputes the description of the accident which is indicated in the
accident report
which was handed into evidence as exhibit âAâ.
His contention is that the police who attended the scene never
approached him
for information as to how the accident occurred. He
was therefore not given the opportunity to give his side of the story
on what
had happened. Even after his discharge from hospital his
attempts to search for the police official who was responsible for
the accident
came to naught. Whenever he visited the police station
he would be told that the said police official is not available until
he had
given up and left for Cape Town to search for employment
opportunities.
[6]
Under cross examination he confirmed that he drove cautiously since
that road has a
number of curves on its downhill. He was referred to
paragraph 3 of his affidavit in support of his claim which was
forwarded to
the fund wherein he indicated the time of the accident
as 16:00. His response was that he maintains that the accident
occurred in
the early hours of the morning and associates himself
with the time of 05:30 as indicated by the police officer in the
accident report.
When asked if he went to police station to report
the accident or for more enquiry, he said he went to the police
station in order
to report the accident as well as to collect his
driver`s license that was taken from him at the scene of the
accident.
[7]
In clarification to the questions by the court, the plaintiff placed
a mark on the sketch
plan which was drawn by the police official. He
depicted the point of impact as being on the lane he was travelling
on and showed
by means of making a mark where the insured driver`s
vehicle crossed the barrier line towards his lane of travel. He,
however, has
no recollection of where their cars became stationery
after the accident.
[8]
Before of the closing the plaintiff`s case, Mr Bester caused the
plaintiff to take the
witness stand to enable the court to make its
own observations on the visible scar on the plaintiff`s head. The
court observed an
indentation on the left side of the plaintiff`s
head which stretched towards the back of the head.
[9]
Furthermore, Mr Bester applied without any objection to amend
paragraph 6 of the Particulars
of Claim to substitute the time
indicated as 16:00 to 05:30 in the morning. Thereafter the
plaintiff`s case was closed.
[10]
The defendant`s case was also closed without adducing any evidence
save the introduction into record
of a document titled â
Advice
on Evidence for
Defendantâ.
What the defendant
sought to do in the said document was to refer the court to various
cases where judgment was granted in favour
of the defendant by reason
of the plaintiff being the sole cause of the accident. The defendant
further referred to the description
of the accident as captured by
the police officer which reads as follows:
â
It is alleged
that motor vehicle A coming from Sterkspruit to Silindini
Administrative Area and on the way of Silindini motor vehicle
C[â¦]
3[â¦] change its lane and came to the lane of motor vehicle
F[â¦] 6[â¦] F[â¦] and it was when the collision
occurred
â. (sic)
[11]
In argument before me, Mr Bester submitted that the only version
facing the court is that of the
plaintiff and there is no basis
established for the claim that the plaintiff was negligent nor was
there any version put to the plaintiff
to show that he was negligent.
Both the police officer and insured driver were not called to
contradict the evidence of the plaintiff
as to how the collision
occurred. Mr Bester further invited the court`s attention to the
pleadings by the defendant wherein no version
was pleaded for
negligence by the plaintiff nor any evidence that establishes
contributory negligence. The plaintiff contends that
it has proved
its case on the merits and should be entitled to 100% of its proven
damages in due course.
[12]
Mr Gona for the defendant argued that the court is faced with two
versions, that of the plaintiff
and the accident report. His
contention which is along the same vein as the document referred to
above, is that the court should
find that the plaintiff was the sole
cause of the accident or at the least he should be found as having
contributed negligently to
the accident.
[13]
He was invited to support his argument since there has been no
evidence from the side of the defendant
nor was there any version put
to the plaintiff which shows negligence albeit contributory on his
part. The court further asked what
reliance can be placed on the
accident report when the information recorded therein cannot be
attributed to the police officer nor
the insured driver. Instead what
is recorded is a vague note which says âIt is alleged â¦.â
However there is no mention from
which person the allegations came
from.
[14]
The court went further to seek his comment on the sketch plan which
was lacking material information
regarding the point of impact or the
position of the vehicles after the collision. It suffices to say Mr
Gona was at pains to show
in his argument in what manner was the
plaintiff negligent. He however, conceded that the issues raised by
the court were extremely
important and valid. As a result, he had
nothing further to add to his submissions.
[15]
As alluded above, the plaintiff is the only witness that had been
called to give evidence on how
the incident occurred. In fairness to
the defendant it has to be mentioned that their attempts to find the
police officer or the
insured driver bore no fruit. A question that
begs an answer is whether there is any evidence from the defendant to
which a comparison
can be made with that of the plaintiff. The only
evidence the court was directed to by the legal representative of the
defendant
is the documentary evidence in the form of the sketch plan.
[16]
As was pointed out by Mbenenge JP, in
EMV
Road Accident Fund
[1]
making reference to
Botha
v Kirk Attorneys
[2]
that âit is trite that the plaintiff bears the
onus
to prove that the accident was attributable to the negligence of the
defendant. The defendant bears an evidentiary burden, which
may be
discharged by pointing to inherent contradictions in the plaintiff`s
testimony and other cogent factors that belie the plaintiff`s
versionâ
[3]
.
[17]
The sketch plan that was introduced suffers a lot of serious
shortcomings as pointed out above.
More importantly it denotes no
point of impact nor was its compiler called to testify therein. This
is at the backdrop that its contents
save the details of the drivers
of the affected vehicles and the date and time of the incident are
vehemently disputed by the plaintiff.
[18]
Neither was there any evidence placed before me that shows the
collision to have occurred at another
point other than the one
pointed out by the plaintiff.
[19]
During his testimony, the plaintiff was never made aware of any
negligence that was imputed to
him as the cause of the accident. Nor
was his attention drawn to any specific allegation to which he must
comment on. In dealing
with the lack of cross examining a witness,
In
President
of the Republic of South Africa v South African Rugby Football Union
(SARFU)
[4]
the Constitutional Court was quite clear on this aspect and held as
follows:
â
The institution
of cross-examination not only contributes a right; it also imposes
certain obligations. As a general rule, it is essential
when it is
intended to suggest that a witness is not speaking the truth on a
particular point, to direct the witness`s attention
to the fact by
questions put in cross examination showing that the imputation is
intended to be made and to afford the witness an
opportunity, while
still in the witness box of giving any explanation open to the
witness and defending his or her character. If
a point in dispute is
left unchallenged in cross-examination the party calling the witness
is entitled to assume that the unchallenged
witness`s testimony is
accepted as correctâ¦â.
[20]
None of the questions put to the witness in cross-examination were
suggestive that he was not speaking
the truth. In fact, his entire
evidence was left unchallenged. I am therefore unable to find any
reason to disbelieve his explanation
of what had happened on that
fateful day. I am also satisfied that on a balance of probabilities
the essential features of his story
are true
[5]
.
Consequently, I find that the plaintiff`s version is within the
requisite degree of proof that there was negligence on the part
of
the insured driver and thus ,the sole cause of the accident, by
crossing the barrier line and driving into the lane of the plaintiff
and thereby colliding with the plaintiff`s vehicle. Needless to
say that the issue of contributory negligence which only arose
during
argument from the defendant`s legal representative is not supported
by any evidence and has no merit.
[21]
In the result the following order is made:
1.
The issue of liability and quantum are separated, with the issue of
quantum standing
over for determination on a future date to be
arranged with the Registrar of this court.
2.
The defendant is held 100% liable for the plaintiff`s proven or
agreed damages
in consequence of the motor vehicle collision which
took place along the public road from Silindile Location towards
Sterkspruit
on December 2016.
3.
The defendant shall pay the plaintiff`s taxed or agreed party and
party costs of
the action incurred to date, together with interests
thereon at the prescribed legal rate per annum from 14 days after
taxation or
agreement to date of payment.
M.V NQUMSE
ACTING
JUDGE OF THE HIGH COURT
Appearances
Counsel for the
Plaintiff
: Mr. Bester
Instructed
by
:
Matyeshana Towley
Inc.
EAST
LONDON
Counsel for the Defendant
: Mr.
Gona
Instructed by
:
State Attorney
EAST
LONDON
Date of
hearing
:
12 October 2022
Date
of delivery
:
22 November 2022
[1]
(263/2009)
[2021] ZAECELLC20 (27 July 2021).
[2]
(EL
257/2016; ECD 757/2016 [2019] ZAECELLC 1 (22 January 2019), para 32
above in para 15.
[3]
Above
N1 para 15.
[4]
2001
(1) SA 1
(CC) para 61.
[5]
Santam Bpk v Biddulph
2004 (5) SA 586
(SCA) at para 10.