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[2021] ZAGPPHC 420
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Mothemela V Road Accident Fund (Sentence) (29473/2016) [2021] ZAGPPHC 420 (15 May 2021)
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REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG
DIVISION PRETORIA)
Case No: 29473/2016
In
the matter of:
Phaledi
Reginald
Mothemela
Plaintiff
And
RAF
Defendant
SENTENCE
Maumela
J.
1.
This is a third party matter. In it, the
Plaintiff is Phaledi Reginald Mothemela, an adult male. The action,
which is defended,
is brought against the
Road
Accident Fund, “
the Defendant”.
The defendant is a statutory body, with
legal capacity, established in terms of Section 2 (1) of the Road
Accident Act 1996: (Ac
No 56 of 2996), ‘the Act’. The
registered address of the defendant is at No 38, Ida Street,
Menlopark, Pretoria in
Gauteng Province; South Africa.
BACKGROUND.
2.
In this case, plaintiff’s claim is
based on a motor vehicle collision
which
took place at around 22h00,
on the
14
th
of December 2013, (day of the accident). It happened along the R23
Road, (a public road).
Plaintiff claims to
have sustained bodily injuries in that accident. He told court that
he was driving a
white Citroen motor
vehicle with registration numbers […]. The defendant
was
driving a
white Nissan bakkie, (“the
insured vehicle”), with registration number of […]. The
driver of the “insured
vehicle” was Mr. Fanyana Edmon
Ngwenya, (“
the insured driver
”).
The above facts are common cause between
the parties.
3.
Plaintiff’s evidence is to the effect
that on the day of the accident, at the stated time and place,
he
drove his vehicle into the back of the “insured vehicle”.
The parties are in dispute in that the plaintiff alleges
that the
tail-lights of the “insured vehicle” were off and
therefore he was not able to see that there is a stationary
vehicle
inside the road ahead of him. The defendant on the other hand
contends that the tail-lights of his vehicle were on at the
time the
plaintiff drove his vehicle into its back. In other words, the
plaintiff claims that the defendant is the one who caused
the
accident; which claim the defendant disputes.
4.
The insured driver contends that his
tail-lights were on. The defendant submits that should the court find
that the tail-lights
of the insured vehicle were on, then the claim
shall stand to be dismissed. Should the court find that the
tails-lights of the
insured vehicle were not on, then liability and
apportionment shall have to apply. Plaintiff contends that in terms
of the provisions
of the Act, the defendant is liable to compensate
him in respect of his proven or agreed damages arising from the
accident.
The scene of this accident is
alleged to be located between Johannesburg and Standerton.
5.
For the
plaintiff
,
Adv. Coetzee called Phaledi Regionald Mothemela as his
first
witness. Under oath this witness testified that on the 14
th
of December 2013, he drove a vehicle, “the insured vehicle”,
along the R23 from Johannesburg to Standerton. He stated
that whilst
driving, he collided with a stationary vehicle driven by one Mr.
Ngwenya; “the insured driver”. The road
along which he
was driving is well known to him because he often travels along it.
He said that at the place where the collision
took place there was at
a stop-and-go signage and there were road works underway because the
road was under construction. The placement
of the stop-and-go signage
would the result in a 15 minutes’ delay. He stated that if one
was heading towards Standerton,
the road was uneven and it had a
bulge in the middle which compromised the lower clearance his
vehicle.
6.
He stated that this road is situated in a
mining area and it had up and down hills. According to him, the
accident happened at around
10h00 at night. He said that at that
time, there were signals indicating speed limits and they were
reflected on boards. According
to him, the said speed limits ranged
around 120, 100, 80 and 60 K/p/h interchangeably. There were also
signs in place to indicate
that roadworks are underway, much as other
signs displayed different speed limits that were applicable from
place to place. He
said that the stop-and-go signage was affixed onto
flip boards. The people operating the flipping board had cabin lights
at their
disposal. It was normal LED lights and there was no other
source of light.
7.
This witness stated that at the time of the
collision, he was under the impression that he was still far from the
flipping board.
He said that as he approached the stop-sign, he
slowed down intending to stop in the event where there is a vehicle
in the road
which is ahead of him. He said that he was driving a
Citroen C4 sedan with his headlamps on. There were vehicles heading
towards
the opposite direction. He told court that all of a sudden,
whilst he was slowing down, he saw an object in front of him as a
result
of which he swerved towards the right. This witness told court
that until the morning on which he was testifying; the 15
th
of November 2019, he had not established what vehicle it was in front
of him. He cannot tell whether it was the, second or third
first
stop-and-go traffic control signage that he was encountering.
8.
He said that he then swerved to the left
and the front-tight side of his vehicle made contact with an object.
At the time, he was
with his girlfriend, who has since become his
wife. His girlfriend was asleep at the time. He said that his
girlfriend woke up
at impact and told him that he drove into another
vehicle. His girlfriend was not injured. He on the other hand got
injured on
his pelvis and forearm. He told court that immediately
before impact, he applied brakes. The vehicle he was driving was
fitted
with a 5-speed manual transmission mechanism or gear and at
the time of impact he had in its 5
th
gear. He said that he could not see the vehicle into which he drove
at an earlier timing because the tail-lights of that vehicle
were not
on. He could not see it although visibility was clear. He said that
the road along which he was driving has numerous inclinations.
9.
He told court that the collision took place
at the beginning of a downslope. Around the time or day of the
accident, he was finding
himself driving along the same road twice to
four times per week and he would always obey the stop-and-go traffic
control signs.
He stated that whenever he stopped for about 15
minutes, he would turn off the engine of his vehicle and he would
check if there
is a vehicle approaching from behind. According to
him, most people would switch off the engines of their vehicles
whenever they
would have brought their vehicles to a standstill while
obeying the stop-and-go traffic control road-signs. He said that he
did
not see the tail-lights of the “insured vehicle”.
10.
Under cross-examination by Adv. Mashaba,
this witness reiterated that before he testified, no one had told him
that what he drove
into is the back of a Nissan bakkie. He said that
he holds a BSC degree in Mining Engineering. He made a statement at
the time
when he lodged his claim. He stated that the signature on
that statement is his. He signed the statement on the 2
nd
of December 2015. Around the time when the accident took place, he
would travel along that road about twice per month. He would
be
travelling along that road making that trip on a to-and-fro basis.
11.
This witness was adamant that he was not
fatigued at the time the accident took place. He said that around the
scene of the collision,
the road was not well lit and there was no
traffic light. He said that under other locations when he travelled
along that road,
there would be a swing board in place. However, on
the day of the accident he saw neither the cabin nor the board. All
he saw suddenly
was an object ahead of him. To the best of his
ability, he made concerted efforts to avoid colliding with it but he
failed.
12.
He does not know how long the que was that
had formed as vehicles waited in compliance with the stop-sign but he
disputes that there
were only two vehicles ahead of him. While his
vehicle was stationary, in compliance with the stop-and-go traffic
control sign,
he expected the vehicle behind him to also stop. He
said that he switched his engine off. Some of the vehicles headed
towards the
opposite direction had their bright lights on but the
drivers would dim on noticing his vehicle. He cannot recall whether
there
were vehicles headed towards the opposite direction at the
exact moment when the collision happened. He could not comment on
whether
there was a drizzle or not and on whether the road was wet or
not.
13.
The witness stated that he would have been
able to avoid driving into the back of the insured vehicle had it
been in motion as he
approached. The vehicles headed towards the
opposite direction were coming at random intervals. He did not check
the speed at which
he was driving before the collision took place. He
told court that as a result of the impact, he got trapped inside his
vehicle.
He conceded that in his affidavit, there is no mention of
the fact that the headlamps of the insured vehicle well not on. He
said
that he instinctively applied brakes a moment before the
collision. However, he stated that before seeing the boards erected
as
a warning about construction work that was underway and the speed
limits, he was travelling at 120km/h. According to him, there
were no
structures on the roads. He said that the R25 was in a very bad state
of repair. He said that this road is still under
construction even at
the time he gave testimony. Plaintiff then closed his case.
14.
Edmond Fanyana Ngwenya was the
first
to testify for the
defence
.
Under oath, he told court that on the 14
th
of December 2013, he was rear ended by a vehicle driven by the
plaintiff. He said that on that day he was diving from Johannesburg
to Natal. He said that the Standerton road along which he drove
was under construction and there was a stop-and-go traffic
control
sign in place. He said that a vehicle stopped before him in
compliance with the stop-and-go traffic control sign. As a
result, he
too stopped behind that vehicle. He said that although it was at
night, there where lights on along the road and visibility
was clear.
The lights in place was a movable type. He said that he stopped
because only one side of the road was in use and he
and others had to
yield to vehicles headed towards the opposite direction.
15.
He said that while his vehicle was at a
standstill, it was shoved onto the opposite lane and was consequently
hit by a vehicle headed
towards the opposite direction. As a result,
it spun around and faced the opposite direction. He insisted that the
tail-lights
of his vehicle, like his headlamps were on. According to
him, there were no road-blocks along that road.
16.
Under cross-examination by Advocate
Coetzee, this witness stated that he cannot recall the model of his
vehicle but he knows it
was about 10 years old. He would transport
people on this van. He told court that upon stopping should in
compliance with the stop-and-go
traffic control sign, he switched off
his engine and had his park lights and hazards on. At that time, it
was a turn for the vehicles
headed towards the opposite direction to
move. He stated that vehicles headed to the opposite direction did
not affect his sight.
He denied that his headlamps or tail-lights
were not on. According to him, it is not true that the only light was
the one at the
stop-and-go traffic control signpost. He said that a
hut had been constructed to accommodate people who were operating the
stop-and-go
traffic control sign. Of the two lights; one was red and
the other green. The defence then closed its case.
17.
Based
on the evidence adduced in this case, this court has to determine
liability as against both the insured driver and the plaintiff.
The
version of the plaintiff and that of the defence directly contradict
one another. In the case of
Stellenbosch
Farmers' Winery Group Ltd and Another v Martell et cie and Others
[1]
,
the court had to deal with versions by opposing parties which were
mutually exclusive to one another. The court laid out an approach
to
be applied in such instances. In that regard, the court stated the
following:
“
To
come to a conclusion on a disputed issue, a court must make findings
on:
(a). The credibility
of the various factual witnesses;
(b). Their
reliability; and
(c). The
probabilities.
As to (a), the court’s
finding on the credibility of a particular witness will depend on its
impression about the veracity
of the witness. That in turn will
depend on a variety of subsidiary factors, not necessarily in order
of importance such as:
(i). The witness’s
candour and demeanour in the witness box;
(ii). His bias, latent
or blatant;
(iii). Internal
contradictions in his evidence;
(iv). External
contradictions with what was pleaded or put on his behalf, or
with
established fact or with his own extra curial statement or actions;
(v). The probability
and/or improbability of particular aspects of his version;
and
(vi). The calibre and
cogency of his performance compared to that of other
witnesses
testifying about the same incident or events.
As
to (b), a witness' reliability will depend, apart from factors
mentioned under (a)(ii), (iv) and (v), above on (i) the opportunities
he had to experience or observe the event in question and (ii) the
quality, integrity and independence of his recall thereof. As
to (c),
this necessitates analysis and evaluation of the probability or
improbability of each party's version on each of disputed
issues. In
the light of its assessment of (a), (b) and (c), the court will then,
as a final step, determine whether party burdened
with onus of proof
has succeeded in discharging it. The hard case, which will
doubtless be the rare one, occurs when a court’s
credibility
findings compel court in one direction and its evaluation of the
general probabilities in another. The more convincing
the former, the
less convincing will be the latter. But when all factors are
equipoised, probabilities prevail.
EVALUATION.
18.
There is not much that is in dispute in
this case. There is consensus on the fact that plaintiff drove into
the back of the insured
vehicle and this was at night. There were
road works at the time and a stop-and go traffic control sign was in
use. The vehicle
of the insured diver obeyed a stop sign. The only
issues to be determined has to do with whether a reasonable driver in
the place
of the plaintiff could have seen the insured vehicle where
it was stationary as he approached. Plaintiff alleges that the
tail-lights
of the insured vehicle were not on and therefore he could
not notice the insured vehicle as he approached it. The insured
driver
contends that his tail-lights were on. Should the court find
that the tail-lights of the insured vehicle were on, then plaintiff’s
claim shall stand to be dismissed. However, should the court find
that the tail-lights of the insured vehicle were not on, then
the
defendant has to be liable and in that case, apportionment shall have
to be done in line with the degree of liability that
will be
attributed to each driver.
19.
On the other hand, if the court finds that
the tail-lights of the insured vehicle as well as its hazards were on
as the insured
driver claims, the plaintiff’s claim stands to
be dismissed. Plaintiff is adamant that he was not able to see the
insured
vehicle where it stood because its taillights were off thus
preventing him from noticing that there is a stationary vehicle ahead
of him. The roadworks underway were not new to the plaintiff who
would use the same road no less than twice per week. It is also
common cause between the parties that there were road signs drawing
the attention of road-users to the roadworks underway. It means
therefore that all drivers stood sensitized to be extra vigilant and
to expect conditions and features along the road which are
not usual.
20.
The above scenario connotes two
conclusions. Firstly, the court notes that the plaintiff should have
been more vigilant than he
would be under normal circumstances. He
would therefore have noticed the tail-lights of the insured vehicle
if they were on. Secondly,
it connotes that in the event where the
tail-lights of the insured vehicle were not on, the unusual
conditions along the road should
have induced increased vigilance on
the part of the plaintiff, therefore resulting in his ability to
avert a collision. The fact
that this did not happen insinuates that
contributory negligence on the part of the plaintiff played a role in
causing the accident.
Because of the unusual conditions along that
road on the day of the accident, the insured driver should even have
switched on his
“hazards” in order to warn drivers
behind him to the perilous situation obtaining which forced him to
bring his
vehicle to a stand-still at a place where he would normally
not be expected to do so.
21.
The insured driver took no extra measures
to warn drivers behind him of the unusual fact which brought his
vehicle to come to a
stand-still at a place where it would not be
normally expected that there is a stationary vehicle in the
middle-of-the-road. It
means therefore that negligence on the part of
the insured driver could not have been the sole cause of the accident
because contributory
negligence on the part of the plaintiff also
played a role. On that basis, the court finds that where negligence
on the part of
the insured driver played a role in causing the
accident; contributory negligence on the part of the plaintiff also
played a role.
22.
The court finds that the negligence on the
part of the insured driver partly gave rise to the collision that
took place. It finds
at the same time that plaintiff’s
negligence also contributed to the collision and that contribution
had a 40% effect in
causing the accident. Consequently, the court
makes the following order:
ORDER.
22.1.
The “insured driver” is found to have contributed on a
scale at 60% to the collision that took place between his
vehicle:
(“the insured vehicle”), with
registration number of […] and the plaintiff’s vehicle,
a
white Citroen motor
vehicle with registration numbers […].
22.2. The defendant is
ordered to compensate the plaintiff to the extent of 60% of
plaintiff’s proven damages.
22.3.
The defendant shall pay the costs of this application.
T.A. Maumela.
Judge
of the High Court of South Africa.
[1]
.
2003 (1) SA 11
(SCA).