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[2021] ZAKZPHC 63
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Makoba v Road Accident Fund (13541/2017P) [2021] ZAKZPHC 63 (6 August 2021)
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IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
No: 13541/2017P
In
the matter between:
S
MAKOBA PLAINTIFF
and
ROAD
ACCIDENT
FUND DEFENDANT
ORDER
I
make the following order:
1. The
defendant is liable for 100% of the plaintiff’s proven damages.
2. The
defendant is to pay the plaintiff’s costs of suit.
JUDGMENT
Mathenjwa
AJ
Introduction
[1] This
is a third party claim brought by the plaintiff in his personal
capacity. The plaintiff is claiming damages
from the defendant,
arising from injuries which he sustained from an accident involving a
motor vehicle with registration number
[…] (the vehicle), that
occurred on 15 September 2015 at approximately 10h00 on the Ntuthunga
Road, Kwambonambi, KwaZulu-Natal.
[2] The
liability of the defendant arises from
section 17(1)
of the
Road
Accident Fund Act 56 of 1996
which obliges the defendant to
compensate
‘
.
. . any person (the third party) for any loss or damage which the
third party has suffered as a result of any bodily injury to
himself
or herself or the death of or any bodily injury to any other person,
caused by or arising from the driving of a motor vehicle
by any
person at any place within the Republic, if the injury or death is
due to the negligence or other wrongful act of the driver
or of the
owner of the motor vehicle or of his or her employee in the
performance of the employee’s duties as employee. .
.’
[3] During
the course of the
rule 37
pre-trial conference, it was recorded by
agreement that the issues of merits and quantum would be separated
pursuant to the provisions
of
rule 33(4).
Therefore, only the merits
will be determined and the quantum stands over for later
determination.
The
plaintiff’s version
[4] The
plaintiff called two witnesses. The first witness was Mr Thulani Nene
who testified that he was walking
on the Ntuthunga road, away from
the T-junction when he came across the vehicle which was driving at
high speed towards the T-junction.
At the time the vehicle emerged,
he had just taken a foot path towards his homestead which is near the
scene where the accident
took place. As the vehicle drove past him,
he turned back, looked at the vehicle and saw the plaintiff standing
and holding steel
at the back of the vehicle. The plaintiff is
well-known to him, but not related to him. The vehicle stopped and
the plaintiff proceeded
to the tailgate of the vehicle. As the
plaintiff was alighting, the vehicle pulled off and the plaintiff
fell down. He went to
the plaintiff’s grandmother to report the
incident. When he returned to the scene, the plaintiff and the
vehicle were no
longer at the scene.
[5] The
plaintiff, Mr Siyabonga Makhoba, testified that he was walking from
the local clinic on the road to his
home when the vehicle emerged. He
waved the vehicle down to stop. It stopped and he boarded the vehicle
at the back through the
tailgate. When the vehicle was approaching
the place where he had to get off, he indicated by his hand to the
driver of the vehicle
that he was going to alight ahead. The vehicle
stopped and he proceeded to the tailgate to alight from the vehicle.
As he was alighting
from the vehicle, while his one leg was outside
the vehicle and the other leg still in the vehicle, the vehicle drove
off. Consequently,
he fell down and lost consciousness, and recovered
consciousness when he was at the Inkosi Luthuli hospital. Both
witnesses testified
that at the place where the vehicle stopped,
there was a footpath leading to the plaintiff’s home, and that
the vehicle stopped
about 100 metres towards the T-junction.
The
defendant’s version
[6] The
defendant admitted that the plaintiff was a passenger in the vehicle
that was involved in the accident,
and that the plaintiff had
sustained bodily injuries, but denied that the defendant was the sole
cause of the accident. The defendant
called two witnesses. The first
witness was Mr Mthandeni Makhathini, who was the driver of the
vehicle. He testified that while
he was driving on the Ntuthunga
road, the plaintiff waved the vehicle down, where after he stopped
and gave the plaintiff a lift.
He did not know the plaintiff and did
not know where he would get off. When he was approaching the
T–junction, he slowed
down and suddenly observed the plaintiff
jumping off and falling down from the moving vehicle. He stopped the
vehicle, proceeded
to the plaintiff who was lying on the ground, and
asked him why he had jumped off from the moving vehicle. The
plaintiff apologised,
and was assisted by Mr Madlala, who was his (Mr
Makhathini’s) co-employee and a passenger in the vehicle, to
pick up the
plaintiff and transport him to the local clinic. There
was no one, including the plaintiff’s witness, Mr Nene, at the
scene
when the accident occurred. He learnt of the particulars of the
plaintiff from his clinic card. He used that information to trace
the
plaintiff’s home and reported the incident to the plaintiff’s
grandmother.
[7] Mr
Sizwe Madlala testified in support of the defendant’s version.
He did not testify on the cause of
the accident, but testified that
after the accident, he and Mr Makhathini approached the plaintiff who
was lying on the road. Mr
Makhathini asked the plaintiff why he
jumped off from the moving vehicle and the plaintiff apologised. He
also testified that at
the time of the accident, the plaintiff’s
witness was nowhere near the scene.
Analysis
of the evidence
[8] There
are two mutual destructive versions that were placed before this
court. On the one hand, the plaintiff’s
version is that the
vehicle stopped to enable him to alight from the vehicle and then
pulled off while he was in the process of
alighting, thereby causing
him to fall down and sustain injuries. On the other hand, the
defendant’s version is that as the
vehicle was approaching the
T-junction, it slowed down and the insured driver suddenly observed
the plaintiff jumping off from
the moving vehicle, falling down and
sustain injuries.
[9] It
is trite law that in a civil case, as in the present case, the
plaintiff bears the overall onus of proof
on preponderance of
probabilities. In considering the issue of onus and the approach used
by courts when they are faced with two
mutual destructive versions,
Eksteen AJP in
National Employers’ General Insurance Co Ltd
v Jagers
1984 (4) SA 437
(E) at 440D-F held that:
'In a civil case
the
onus
is obviously not as heavy as it is in a criminal case, but
nevertheless where the
onus
rests on the plaintiff as in the present case, and where there are
two mutually destructive stories, he can only succeed if he
satisfies
the Court on a preponderance of probabilities that his version is
true and accurate and therefore acceptable, and that
the other
version advanced by the defendant is therefore false or mistaken and
falls to be rejected.
’
In
expressing the techniques generally employed by courts in resolving
two irreconcilable versions, it was held in
Stellenbosch Farmers’
Winery Group Ltd and another v Martell et Cie and others
2003 (1)
SA 11
(SCA) para 5 that:
‘
. . . To come to a conclusion
on the disputed issues a court must make findings on
(a)
the
credibility of the various factual witnesses;
(b)
their
reliability; and
(c)
the probabilities.’
[10] Turning
to the credibility of the witnesses, the plaintiff was a credible
witness, as there were no contradictions
in his evidence. He stood
firm on his version under cross-examination. His evidence on the
cause of the accident is corroborated
by the evidence of Mr Nene, who
was an independent witness. There were also no contradictions in Mr
Nene’s evidence. On the
other hand, the evidence of the
defendant’s witnesses was not satisfactory in various aspects.
The evidence of Mr Madlala
does not corroborate the evidence of the
insured driver, Mr Makhathini’s, in a material way on the cause
of the accident,
but supports his version of what happened after the
accident. He confirmed what was stated by Mr Makhathini that after
the accident,
they both approached the plaintiff who was lying on the
road, that Mr Makhathini asked the plaintiff why he jumped off the
moving
vehicle and that the plaintiff had apologised.
[11] Mr
Makhathini’s evidence that he learned from the plaintiff’s
clinic’s card about the particulars
and home address of the
plaintiff, is irreconcilable with his evidence that the plaintiff was
conscious after the accident, and
when he was attended to at the
clinic. When asked by the court why he had to learn from the
plaintiff’s card about his particulars
and home address, as
according to his own testimony, the plaintiff was conscious and able
to talk, he initially stated that he
did not ask the plaintiff
because he was in severe pain, and later stated that he asked the
plaintiff, but that he did not respond.
The contradiction by the
witness on this issue supports the version of the plaintiff that when
he fell, he lost consciousness and
could not talk.
[12] Furthermore,
the evidence of the plaintiff that he was alighting from the vehicle
through the back tailgate
is more probable than the evidence of the
defendant that the plaintiff jumped over the rails on the side of the
truck. When asked
by the court how long the rails were on the side of
the truck, the witness stated that depending on the size of a person,
the person
can alight from the side of the truck over the rails with
ease, but others cannot jump over the rails unless the rails are
removed.
The court observed that the plaintiff was a tiny and short
person. It is highly improbably that he would jump over the rails
when
alighting from a moving truck, instead of alighting from the
tailgate where he could easily alight from the vehicle without the
hassle of jumping over the rails. Furthermore, the failure by the
insured driver to report the accident to the police is not
reconcilable
with the conduct of a driver who was not hiding anything
about the details surrounding the accident. He confirmed that he was
aware
that when a vehicle was involved in an accident involving
serious injury of a person, as in the present case, he was required
to
report the accident to the police. However, he did not report the
accident even though he knew that the plaintiff was unable to
report
the accident to the police.
[13] Mr
Ndamase, for the defendant, referred this court to
Tshongoyi v
Road Accident
[2015] ZAECELLC 13, which he contended supports the
defendant’s version. The factual circumstances of that case are
distinguishable
from the case before this court. In
Tshongoyi
para
7
,
it was not in dispute that the plaintiff threw herself out
of a running vehicle as the driver of the vehicle allegedly had
passed
the drop off point, ‘. . . she became out of her mind
with fear because she had seen children being kidnapped on
television’.
In the present case, the plaintiff was not
threatened, and could not fear anything that would compel him to jump
off the moving
vehicle.
[14] What
is now left to consider is whether the insured driver was negligent
in causing the accident. The test
for determining negligence was
expressed in
Kruger v Coetzee
1966 (2) SA 428
(A) at 430E-G,
where Holmes JA held that:
‘
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.’
In
applying this test to the present case, it is reasonable to infer
that a reasonable driver, in the position of the insured driver,
would have foreseen that after having briefly stopped the vehicle,
and by failing to pay attention to and afford the plaintiff
an
opportunity to completely alight from the vehicle, that this would
have caused the accident and thus would have taken steps
to prevent
the accident.
[15] For
these reasons, I reject the version of the defendant, and accept the
version of the plaintiff that the
accident was solely caused by the
negligent driving of the insured driver, who drove the vehicle off
whilst the plaintiff was in
the process of alighting the vehicle.
Order
[16] In
the result the order is made as follows:
1. The defendant is
liable for 100% of the plaintiff’s proven damages.
2. The defendant is
to pay the plaintiff’s costs of suit.
MATHENJWA
AJ
DATE
OF HEARING: 8 June 2021
DATE
OF JUDGMENT: 6 August 2021
FOR
THE PLAINTIFF: Adv Moola
Instructed
by Moses Naidoo & Associates
Suite
107, 10
th
floor
Mercury
House
320
Smith Street
Durban
FOR
THE DEFENDANT: Adv Ndamase
Instructed
by Govindasamy, Ndzingi and Govender Inc.
211
Burger Street
Pietermaritzburg
3201