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[2021] ZAECMHC 7
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SN v Road Accident Fund (3967/2018) [2021] ZAECMHC 7 (23 February 2021)
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IN
THE HIGH COURT OF SOUTH AFRICA
[EASTERN CAPE LOCAL
DIVISION, MTHATHA]
[Not Reportable]
CASE
NO: 3967/2018
Heard
on: 10/02/2021
Delivered
on: 23/02/2021
In
the matter between:
S[…] N[…]
Plaintiff
and
ROAD
ACCIDENT FUND
Defendant
JUDGMENT
NHLANGULELA DJP
[1]
On or about 11 June 2016 and on the R394 Road situated in in Phepheni
Location, Mt
Ayliff two motor vehicles driven by the plaintiff and
Sakhephi Aron Timoti respectfully collided with the result that the
plaintiff
sustained bodily injuries which are described as a fracture
of the mid shaft of the right femur for which he claims payment of
damages against the defendant in terms of
s 17
(1) of the
Road
Accident Fund Act No. 56 of 1996
. The
quantum
of damages
sought is in the sum of R3 500 000,00 as computed under various
heads.
[2]
Both issue of liability and amount of the damages sought fell to be
determined at
the trial, it being obvious that the determination of
the amount to be paid will not be necessary if the plaintiff fails to
sustain
a case on the issue of liability.
[3]
To succeed in these action proceedings the plaintiff must prove on a
balance of probabilities
that Mr Timoti drove his vehicle in a
negligent manner. The test of negligence is stated succinctly
in the case of
Kruger v Coetzee
1966 (2) SA 428
(A) at 430E as
follows:
“
For
the purpose 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.”
[4]
As the
onus
bearing party the plaintiff led evident first in
order to amplify the allegations made on his behalf in the summons
that Mr Timoti:
(i)
drove at an excessive speed;
(ii)
failed to apply brakes of the vehicle he was driving, timeously or at
all, when he
should have done so;
(iii)
drove without due care and consideration for other road users,
including the plaintiff;
(iv)
failed to exercise proper control over his motor vehicle when he
could and should have
done so;
(v)
failed to avoid the collision with plaintiff’s motor vehicle
when by exercise
of reasonable care he would and should have done so,
[5]
The allegations that I have paraphrased in paragraphs (4) above are
not individually
decisive. The cumulative effect of those
allegations will assist the court in determining success or failure
of the plaintiff’s
claim.
[6]
Briefly stated, the evidence adduced by the plaintiff is that on 11
June 2016 he had
a passenger in his vehicle as he was driving in a
Nissan Almera on R394 Road in the direction of Phakade junction to
Bizana.
The road was narrow and having two lanes. The
road permitted all motorist driving in Phakade to Bizana direction to
occupy
one of the two lanes; the second one being the lane for
motorists driving in the opposite direction of Bizana to Phakade.
Two centre lines, broken on his side but solid on the opposite side,
divide the road. The weather was clear and visibility
good.
He was following a huge horse-and-trailer truck. He overtook it
on the right side such that his vehicle had to
occupy the opposite
side. The road was straight, and the vehicles on his side were
approaching a curve. Having overtaken
the truck, he regained
his correct side of the road but, suddenly, he saw
a
Toyota Quantum coming from the front and being followed by Mr
Timoti’s
motor vehicle. According to him, the
Toyota Quantum and Mr Timoti’s vehicle were driven on his
correct side and approaching
directly towards the front of his
vehicle. To avoid a head on collision with the Quantum he
swerved back to the incorrect
lane and, as he was swerving back to
his correct path of travel, a collision occurred between his vehicle
and that of Mr Timoti.
That is, the point of impact fell on his
incorrect path of travel. He located the point of impact in the
area that is towards
the solid line. As a result of the
collision his vehicle sustained damages beyond economic repairs.
He stated that
there was nothing wrong with the manner of his
driving, but that Mr Timoti’s negligent driving was the sole
cause of the
collision. He told the Court that the passenger he
had in his vehicle throughout until the collision occurred was
unknown
to him. He lost consciousness and later to regain it
when he was on the hospital bed.
[7]
Mr Timoti and his passenger, one Mr Siyabonga Mqikana, testified on
behalf of the
defendant. A third person, one Ms Nosisa Yebela,
also testified. Mr Timoti told the Court that the vehicle that
he
was driving at the time of the collision was the property of Ms
Yebela. She confirmed this when she testified. Ms Yebela also
confirmed that her vehicle was damaged beyond economic repairs.
She told the Court that Mr Timoti was her employee driver
who had
been on a business trip to Kokstad when the collision occurred.
Mr Mqikana also confirmed that he was occupying the
passenger seat
just near the driver’s seat when the collision occurred.
Mr Timoti’s version is that he was driving
in the opposite
direction to that of the plaintiff. Mr Timoti and Mr Mqikana
testified that long before they reached the
place where the collision
occurred they had passed
a Toyota Quantum which
was stationed near the road. They passed the first curve and as
they were approaching a
second curve they saw the
horse-and-trailer truck driven on its correct side of the road and
heading towards Bizana. The truck
was followed by three
vehicles, one of which was driven by plaintiff. Just as they
had commenced passing the truck, the plaintiff’s
vehicle
emerged from its incorrect lane overtaking the truck, and being
driven at a very high speed. As the plaintiff’s
vehicle
was approaching in the front, Mr Timoti applied the brakes and
swerved to the extreme left hand side of the road in order
to avoid a
head on collision. As Mr Timoti was about to exit the road on
his correct side the collision occurred. Mr
Timoti’s
vehicle sustained damages on the front part, through to the driver’s
side and the chassis. Both Mr Timoti
and Mr Mqikana contended
that had the plaintiff not overtaken the truck at an inopportune
moment, travelled on the incorrect lane
and failed to control his
vehicle to safety the collision would never occur. They
contended that the plaintiff’s reckless
driving was the
proximate cause of the collision.
[8]
The evidence adduced by parties is contradictory in material
respects. The proper
approach to resolving the conflicting
versions lies in the application of the guidelines that were
adumbrated in the case of
Stellenbosch Farmers Winery Group (Pty)
Ltd vs Martell Et Cie & Others
2003 (1) SA 11
(SCA) at 14i-j
that an evaluation must be made concerning the credibility of the
witnesses; their reliability; and the probabilities
of their
versions. Finally, upon ascertaining the side on which the
truth lies, it will be easy for a court to determine
if the overall
onus
cast upon the plaintiff has been discharged.
[9]
Mr Mbiko
, counsel for the defendant argued strenuously that
the version of the plaintiff cannot be true because he failed
dismally to tell
what became of the Toyota Quantum that was in front
of Mr Timoti’s vehicle; what became of the passenger that was
together
with plaintiff in his vehicle; and why it is that the
plaintiff’s evidence in chief was internally contradictory.
He
argued that the plaintiff’s version about double swerves in
front of the truck cannot be true if regard is had to the admission
of the defendant’s case that the collision took place at the
time when Mr Timoti was passing the truck and the plaintiff
still
overtaking the truck. It was argued further that it was
disingenuous of the plaintiff to locate the point of impact
both in
front of the truck and near the body of the truck. These
submissions made by
Mr Mbiko
are indeed persuasive.
[10]
I do not believe that the circumstances under which the accident took
place could have given
the plaintiff the luxury of time to make the
double swerves that he spoke about when he testified. It does
not come as a
surprise to me that the existence of a third vehicle
that allegedly was travelling in front of that of Mr Timoti, is a
mere fiction.
The version of the defendant that Mr Timoti was
at all material times of his driving before the collision occurred,
concentrating
the driving of his vehicle on his correct lane is
plausible. The plaintiff’s version that the point of
impact fixed
near the body of the truck is implausible. In
the same vein, had the collision impact taken place in the process of
the plaintiff’s alleged double swerving, the truck and the
vehicle alleged to have been travelling in front of Mr Timoti’s
vehicle would have been involved in the accident. The two
points of impact suggested by the plaintiff in his evidence is
an
unhelpful contradiction to his case. Instead, the point of
impact near the edge of Mr Timoti’s correct path of travel
coupled with the damage to the driver’s side of his vehicle
accords with the probabilities of the defendant’s case.
The plaintiff’s contradictions that emerged when he was cross
examined render his evidence totally unreliable. To illustrate
the point, the plaintiff conceded that he, not Mr Timoti, caused the
collision in that the collision took place on his incorrect
side of
the road. This concession cancelled the earlier version that a
collision took place after the truck had been successfully
overtaken
and during the manoeuvre that saw plaintiff’s vehicle swerving
back to the incorrect lane and again swerving towards
the correct
lane. Consequently, the plaintiff’s version of the events
is not correct.
[11]
The proven facts of this case point plainly to the conclusion that Mr
Timoti’s driving
did not place the safety of the plaintiff in
danger. But the reverse situation is proved by the facts.
The plaintiff’s
overtaking manoeuvre was not only ill timed but
also reckless.
[12]
During arguments Counsel for the plaintiff raised an issue of
contributory negligence on the
part of Mr Timoti. This issue is
not borne out of the pleadings and proved facts. For that
reason it suffices only
to be said that the contributory negligence
argument is baseless. Notwithstanding counsel’s
deliberate non-committal
to the plaintiff’s pleaded grounds of
negligence and the evidence led to support those pleadings, it is
necessary to be stated
that the plaintiff’s case is devoid of
merit. It falls to be dismissed.
[13]
The plaintiff has failed to discharge the
onus
to prove that
the defendant is liable to compensate him for the damages that he
suffered due to the occurrence of the accident
on 11 June 2016.
For that reason the quantification of damage(s) has aborted.
The defendant is entitled to the
costs of these proceedings.
[14]
The following order shall issue:
“
The
plaintiff’s claim is dismissed with costs.”
_________________
________
______________
________
Z. M. NHLANGULELA
DEPUTY JUDGE
PRESIDENT OF THE HIGH COURT
MTHATHA
Counsel for the
plaintiff : Adv. M. Rili
Instructed by
:
Msitshana Inc
c/o
Messrs Majali Inc
MTHATHA.
Counsel for the
defendant: Adv. B. N. Mbiko
Instructed by
:
Smith
Tabatha Inc
MTHATHA.