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[2021] ZAECELLC 20
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E.K.M.M v Road Accident Fund (263/2009) [2021] ZAECELLC 20 (27 July 2021)
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: 263/2009
ECD: 536/2009
In
the matter between:
E[….]
K[….] M[….] M[…]
Plaintiff
and
ROAD ACCIDENT
FUND
Defendant
JUDGMENT
MBENENGE
JP:
[1]
On 29 March 2004, the plaintiff was involved in a motor vehicle
accident whilst driving along the N2
road between East London and
King Williams Town. She was injured and, resulting from the injuries,
she seeks to recover damages
from the defendant.
[2]
In the plaintiff’s particulars of claim, it is alleged that the
driver of a bakkie with registration
letters and number CFG […]
[1]
was negligent in,
inter
alia
,
encroaching on the plaintiff’s lane of travel without giving
lateral berth between the plaintiff’s motor vehicle and
the
insured vehicle.
[3]
In resisting the claim, the defendant denies negligence on the part
of the insured driver and, in amplification
of such denial, avers,
inter alia
, that the plaintiff drove negligently by overtaking
the insured driver’s vehicle on the left-hand side and entering
the lane
and path of travel of the insured driver when it was not
safe to do so.
[4]
The defendant has pleaded, in the alternative, that in the event of
it being found that the insured
driver was, for the reasons already
mentioned, also negligent, the plaintiff’s negligence
contributed to the cause of the
accident, with the result that the
plaintiff’s claim should be apportioned.
[5]
The parties agreed to have the issues of liability and
quantum
separated, leaving the main issue for determination being whether the
insured driver was negligent, alternatively whether any harm
suffered
by the plaintiff resulted from the combined negligence of both
parties and, in such latter event, the degrees of negligence
to be
attributed to each party.
[2]
[6]
The plaintiff’s testimony was brief. On the fateful day, she
was driving a government-owned Nissan Twin
Cab along the N2 road to
East London. This is a freeway with double lanes on either
side. She had been driving on the
outer lane, at approximately
90 to 100 km per hour. The time was between 16:00 to 17:00.
When she was about 20 km to Nahoon
dam, she noticed, in the rear-view
mirror, a bakkie carrying a ladder driven from behind. As
the bakkie indicated an
intention to overtake her vehicle, she
observed yet another vehicle coming from behind the bakkie. The
bakkie overtook, but when
it was parallel to her vehicle, it ventured
into her path of travel and hit her vehicle on its right front
fender. She said
this happened when the bakkie was “
trying
to give way to the vehicle behind it
.” She thereupon
lost control of her vehicle and does not know what happened
thereafter because she lost consciousness.
[7]
The plaintiff eventually came around during hospitalisation.
Five weeks after her discharge from
hospital, she inspected the
vehicle she had been driving and observed that it was damaged on its
right side, “
the right fender and the rim
.” She
disputed the correctness of a sketch plan shown to her and depicting
the point of impact as having been on the
inner lane. She
was, at some point, visited by a policeman in connection with a
criminal case of negligent driving
that had been instituted against
her. In the course of time, she was found not guilty of that
offence.
[8]
Under cross-examination, the plaintiff was shown an unsworn statement
on which her signature is appended.
In relevant part, the statement
reads:
“
This
happened while I was approaching a gentle curve and I had notice[d]
that there was another m/vehicle . . . following. I was
driving at
the far left.
The
vehicle which was following did overtake me but it did not complete
that. This vehicle hit me on the right front fender and
m/vehicle
overturned.”
[9]
Upon a reading of the statement, more particularly the above-quoted
excerpt, no mention of a third vehicle
as having been part of the
scene immediately prior to the accident is made. The plaintiff
did not dissociate herself from
the statement, but contended that the
statement did not contain everything she had told the police.
[10]
Reference was made to the sketch plan, which also makes no mention of
the third vehicle. She responded that
she had no complicity
with the sketch plan because it was neither drawn by her nor at her
instance.
[11]
The plaintiff also disputed, as incorrect, the content of a statement
made by Mr Wanele Booi wherein it is alleged
that her motor vehicle
drove in front of the insured vehicle and hooked to the tow bar until
her vehicle lost control and overturned
several times.
[12]
Mr Wanele Booi is the only witness who was called to testify on
behalf of the defendant. He is a policeman.
He attended
upon the scene and drew the sketch plan at the instance of the driver
of the bakkie. However, he had no
independent recollection of
what he saw at the scene as the accident occurred some seventeen
years ago. He said his focus was on
the two vehicles that were
allegedly involved in the accident, and not on any other vehicle,
hence he could not testify as to the
existence or otherwise of the
third vehicle.
[13]
The parties ended up locking horns in relation to whether the point
of impact was on the outer lane, as alleged
by the plaintiff, or the
inner lane, as contended by the defendant.
[14]
A determination of the point of impact, either way, which is what I
turn to consider, will dispose of the issue
of negligence and, thus,
liability.
[15]
It 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 evidential burden, which may be discharged by
pointing to inherent contradictions in the
plaintiff’s
testimony and other cogent factors that belie the plaintiff’s
version.
[3]
[16]
I am also mindful of the fact that the evidence of the plaintiff, as
a single witness, does not translate to the
truth merely because it
is not contradicted.
[4]
[17]
The plaintiff testified coherently and satisfactorily. Her demeanour
as a witness was not in the least assailed.
I was at no stage tempted
to believe that her version of how the accident took place was a
fabrication. She refuted the alleged
version of the insured driver as
to the point of impact as being an untruth.
[18]
In my view, nothing turns on the sketch plan relied on by the
defendant’s camp during cross-examination.
The sketch plan is
what it purports to be, having not been admitted for the truth of its
contents. It was merely received subject
to its admissibility.
[5]
The police official who compiled the same relied on information
supplied by the insured driver, who was not called to testify.
Due to
passage of time, the police officer could not be of assistance
concerning other objectives facts observed at the scene.
[19]
When a litigant fails to adduce evidence about a fact in issue, for
example, by not calling a witness, he runs
a risk of his opponent’s
version being believed.
[6]
The
failure on the part of the defendant to call the insured driver to
testify is fatal to the defendant’s case.
[20]
Nor should the plaintiff be disbelieved purely because in the
statement “
under warning
” she said nothing about
the existence of the third vehicle. Her explanation that the
statement does not contain everything
he had informed the police is
worth believing. No testimony was led to gainsay her version on this
score.
[21]
The proper test is not whether a witness is truthful or indeed
reliable in all that it says, but whether on a balance
of
probabilities the essential features of the story, which he tells,
are true.
[7]
[22]
I am satisfied that the plaintiff’s version as to the point of
impact is the truth. From her testimony, it
is inferable that the
insured vehicle encroached on the plaintiff’s path of travel
without giving lateral berth between the
plaintiff’s vehicle
and the insured vehicle.
[23]
It is the duty of every driver overtaking a vehicle to leave a safe
gap between her/his vehicle and the vehicle
being overtaken, and not
to return to her/his lane of traffic until she/he is far enough past
the other vehicle to avoid a collision.
[8]
The plaintiff’s version establishes, by inference, with the
requisite degree of proof, that these rudimentary rules were
not
observed and that, therefore, there was negligence on the part of the
insured driver.
[24]
On the plaintiff’s version, the issue of contributory
negligence does not arise, and none has been
shown to have occurred.
[25]
The insured driver is, therefore, wholly to blame for the accident.
The liability of the defendant has thus been
established.
[26]
The plaintiff, being the successful party, is entitled to the party
and party costs of the action incurred to date.
[27]
In the result, the following order is made:
1.
The issues of liability and quantum are separated, with the
issue of quantum standing over for determination on a 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 N2 road on 29 March 2004.
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.
_______________________
S M MBENENGE
JUDGE
PRESIDENT OF THE HIGH COURT
Plaintiff’s counsel
:
L X
Mpiti
Plaintiff’s
attorneys Phillip
and Mabona Attorneys
East
London
Defendant’s
counsel
:
G N Mosala
Defendant’s
attorneys
: AMMM
Incorporated
Alberton
C/o
BV Law
East
London
Date
matter heard
: 09 June
2021
Date
judgment delivered
:
27 July 2021
[Also,
by electronic mail transmitted to the parties’ attorneys, in
terms of paragraph 68 of the Eastern Cape National State
of Disaster
Management Directions]
[1]
The
insured vehicle.
[2]
According
to the relevant minutes, the defendant is of the view that 50% of
negligence is attributable to the plaintiff.
[3]
Botha
v Kirk Attorneys
(EL257/2016, ECD 757/2016) [2019] ZAECELLC 1 (22 January 2019), para
32.
[4]
Siffman
v Kriel
1909
TS 1
538 at 543;
Botha
,
op
cit
para 36.
[5]
Cf
Bainton
v Road Accident Fund
(4559/2016) [2018] ZAGPJHC 10 (31 January 2018)
[6]
Gleneagles
Farm Dairy v Schoombee
1949 (1) SA 830
at 840; also see
Brand
v Minister of Justice
1959 (4) SA 712 (A).
[7]
Santam
Bpk v Biddulph
2004 (5) SA 586
(SCA), at para 10.
[8]
Ndayiragije
v Road Accident Fund
(16547/2009)
[2013] ZAWCHC 10
(13 February 2013), paras 25 and 27