About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Limpopo High Court, Polokwane
SAFLII
>>
Databases
>>
South Africa: Limpopo High Court, Polokwane
>>
2019
>>
[2019] ZALMPPHC 4
|
|
Elvis v Road Accident Fund (HCAA07/2018) [2019] ZALMPPHC 4 (6 February 2019)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO
DIVISION, POLOKWANE)
CASE
NO: HCAA07/2018
6/2/2019
In
the matter between:
TSHIVHASE
NKHANYELENI
ELVIS
APPELLANT
and
ROAD
ACCIDENT FUND
RESPONDENT
JUDGMENT
MAKGOBA
JP
[1]
This is an appeal against a decision of a single Judge in the Limpopo
Local Division, Thohoyandou
(AML Phatudi J). The Appellant was
successful with his claim to the extent that the Court a
quo
ruled
on 8 February 2017 that an apportionment of 90% of damages in a motor
collision be attributed against the Plaintiff and that
the Defendant
be liable to pay 10% of the proven damages to the Plaintiff. The
appeal is with leave of the Court a
quo
granted on 1 March
2018.
[2]
It is common cause between the parties that a collision occurred
between a BMW motor vehicle with
registration number [….]
there and then driven by one Lameck Dugishi (“the insured
driver”) and a motorcycle
with registration number [….]
driven by the Plaintiff. The collision occurred at the Shayandima T –
junction with
the Louis Trichardt / Thohoyandou road on the 14
September 2013 at about 01H30. The road from Louis Trichardt to
Thohoyandou consists
of four lanes, two eastbound lanes are from
Louis Trichardt to Thohoyandou and two westbound lanes are from
Thohoyandou to Louis
Trichardt. The collision took place at the T –
junction where the road from Shayandima in the south ends in the road
from
Louis Trichardt to Thohoyandou.
[3]
The Appellant testified that he travelled in the inner lane from
Thohoyandou to Louis Trichardt,
that is from east to west on his
motorcycle. He reach a robot in front of him at the T –
junction. On his left side, that
is on the outer lane there was a BMW
vehicle being driven in the same direction. The Appellant could not
recall any further incidents
and only regained consciousness later in
hospital.
[4]
A witness for the Appellant, one Lawrence Ramogashe, testified that
on that particular night
and at that particular time he was on his
way driving from Shayandima and stopped at the T – junction of
Louis Trichardt
/ Thohoyandou road. The robot that he was facing was
red for him. He could observe the area of the T – junction well
because
there were street lights and because of the lights of his
motor vehicle. While he was stationary, a BMW vehicle appeared from
the
direction of Thohoyandou (east) to Louis Trichardt (west) in the
outer lane and, in the T – junction it made a U – turn
from the outer lane. As the BMW made a right turn and still in the
process of making a U – turn, a motor cycle that was driving
in
the inner lane a few meters behind the BMW came and collided with the
BMW on its right rear door.
[5] One
witness, Mr Lameck Dugishi (the insured driver) testified for the
Respondent. He testified
that on that particular date and time he was
driving the BMW motor vehicle on his way from Shayandima to
Thohoyandou and he was
approaching the intersection (T –
junction) on the road from Louis Trichardt to Thohoyandou. The robot
was green for him
and he did not observe any other vehicles. He
proceeded to turn to his right at the T - junction.
When he turned,
and when he was already facing the direction of
Thohoyandou (eastwards), he heard a huge sound from the rear of his
vehicle. He
later discovered that it was a motor cycle that collided
with the rear of his vehicle.
[6]
On the basis of the evidence outlined above, the Court a
quo
made
a finding that the collision was caused mainly by the conduct of the
Appellant. An apportionment of 90% / 10% was made against
the
Appellant.
[7]
The Court a
quo
made a finding that the Plaintiff’s
version relied on that of a single witness. The Court disregarded the
testimony of the
Appellant and concluded that the testimony of the
Plaintiff did not contribute to the adjudication of the claim in any
way. In
my view, the Court a
quo
erred in this regard. It is
clear from the evidence as outlined above that the evidence of the
Appellant is relevant to the issue
and his version is corroborated by
the testimony of the independent witness, Mr Lawrence Ramogashe.
[8]
Furthermore the Court a
quo
made a finding that the version of
the insured driver (who is of course a single witness) is
corroborated by his own earlier
statement to the police which is
substantially in agreement with his testimony in Court. With respect,
the Court a
quo
erred in this regard by accepting and using a
prior statement of the insured driver as corroboration of his
testimony in Court.
There is a well-established common law
exclusionary rule operating against the acceptance of a previous
consistent statement of
a witness.
D
Zeffert et al: The South African Law of Evidence (2003) at page 403
,
laid the principle thus:
“
A
witness may not, at common law, be asked in chief whether he or she
has made some previous statement which tend to confirm his
or her
testimony. This rule applies whether the earlier statement was oral
or in writing. Nor may he or she be confirmed by calling
someone else
to prove that the witness made such a statement. This is often called
the rule against narrative or self-corroboration.
The principal
reason for the rule is that a witness’s previous consistent
statements are insufficiently relevant. It does
not ordinarily add
anything to the value of his or her evidence to be told that he or
she had always adhered to the same law.”
See
also
Holtzhansen v Roodt
1997 (4) SA 766
(W) at 774
.
[9]
The Court a
quo
relied on the contents of the accident report
to come to a conclusion that the version of the insured driver is
corroborated by
what was noted in the accident report. The accident
report was never proved in evidence by either the Plaintiff or
Defendant and
should, for that reason, not have been considered by
the Court a
quo
.
[10]
For reasons set out above, the Court a
quo
erred in its
approach to the evidence. At the end of the day the Court a
quo,
and this Court too, are faced with two mutually destructive
versions as to whose negligence contributed to or caused the
collision,
the Appellant or the insured driver.
[11]
It is trite law that when faced with two mutually exclusive versions,
the Court has to resolve the factual disputes
by making findings on
the credibility of the various factual witnesses, their reliability
and the probabilities.
See
Stellenbosch
Farmers’ Winery Group Ltd and Another v Martell ET CIE and
Others
2003 (1) SA 1
(SCA) at par [5]
.
[12]
In order to resolve this impasse, I have to consider and weigh the
probabilities to determine which
version is more probable than the
other. I also have to consider the credibility and reliability of the
witnesses who testified
for the Appellant and those for the
Respondent. The test to be applied in such a case was enunciated
lucidly as follows in
National Employers’ General Insurance
v Jagers
1984 (4) SA 437
(ECD) at 440D – 441A
:
“
It
seems to me, with respect, that in any civil case, as in any criminal
case, the onus can ordinarily only be discharged by adducing
credible
evidence to support the case of the party on whom the onus rests. In
a civil case the onus is obviously not as heavy as
it is in criminal
cases, 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
deciding whether that evidence is true or not the Court will weigh up
and test the Plaintiff’s
allegations against the general
probabilities. The estimate of the credibility of a witness will
therefore be inextricably bound
up with a consideration of the
probabilities of the case and, if the balance of probabilities
favours the Plaintiff, then the Court
will accept his version as
being probably true. If however the probabilities are evenly balanced
in the sense that they do not
favour the Plaintiff’s case any
more than they do the Defendant’s, the Plaintiff can only
succeed if the Court nevertheless
believes him and is satisfied that
his evidence is true and that the Defendant’s version is false.
This
view seems to me to be in general accordance with the views expressed
by Coetzee J in Koster KO-operatiewe Landboumaatskappy
Bpk v
Suid-Afrikaanse Spoorwee en Hawens (supra) and African Eagle
Assurance Co Ltd v Cainer (Supra). I would merely stress
however that
when in such circumstances one talks about a Plaintiff having
discharged the onus which rested upon him on a balance
of
probabilities that means that he was telling the truth and that his
version was therefore acceptable. It does not seem to me
to be
desirable for a Court first to consider the question of the
credibility of the witnesses as the trial Judge did in the present
case, and then having concluded that enquiry, to consider the
probabilities of the case, as though the two aspects constitutes
separate fields of enquiry. In fact, as I have pointed out, it is
only where a consideration of the probabilities fails to indicate
where the truth probably lies, that recourse is had to an estimate of
relative credibility apart from the probabilities.”
[13]
The version of the Appellant is corroborated by the version of
Lawrence Ramogashe to the effect
that the BMW and the
motor cycle were driving from the same direction when they reached
the T – junction. One was in the
outer lane (the BMW) and the
other was in the inner lane (the motor cycle). The witness, Lawrence
Ramogashe is an independent witness
who had no motive to lie or side
with any of the parties.
[14] The
point of impact in respect of the BMW is on the right rear door. The
version of Lawrence Ramogashe
that the BMW was making a U –
turn at the T – junction and that it had already turned and
facing Thohoyandou (eastwards)
when the motor cycle collided with it,
is therefore probable. The evidence of Ramogashe that his vehicle was
the only vehicle coming
from the direction of Shayandima destroys the
version of the insured driver that he too was coming from that
direction of Shayandima.
[15] The
version of the Appellant is supported by the version of the
independent witness, Ramogashe,
and both of them testified
satisfactorily in all respects. Their credibility was never
destroyed. They are both reliable witnesses
who testified on what
they saw happening and without any exaggeration. The Appellant did
not claim to have seen all what happened
at the scene of the
collision. He was honest and reliable in this regard. Their version
should be accepted.
[16]
Having accepted the testimony of the Appellant and Ramogashe, no
conclusion can be drawn other than
that the insured driver acted
grossly reckless by making a U –turn in the face of the motor
cycle. It cannot be said that
the Appellant contributed, even
minimally, to the occurrence of the collision. The appeal should
therefore succeed.
[17]
I accordingly grant the following order:
17.1.
The appeal is upheld with costs.
17.2
.
The order of the Court a
quo
is set aside and substituted with
the following order:
“
Judgment
is granted in favour of the Plaintiff and the Defendant is
liable to compensate the Plaintiff 100% of his proven
or agreed
damages arising from the motor collision that occurred on the 14
September 2013 at Louis Trichardt / Thohoyandou road”
E
M MAKGOBA
JUDGE
PRESIDENT OF THE HIGH COURT, LIMPOPO DIVISION, POLOKWANE
I
agree
M
G PHATUDI
ACTING
DEPUTY JUDGE PRESIDENT OF THE HIGH COURT, LIMPOPO DIVISION, POLOKWANE
I
agree
G
C MULLER
JUDGE
OF THE HIGH COURT, LIMPOPO DIVISION, POLOKWANE
APPEARANCES
Heard
on
: 01 February 2019
Judgment
delivered on : 06
February 2019
For
the Appellant
:
Adv G J Diamond
Instructed
by
: Diamond Inc
For
the Respondent :
Adv. M B Madavha
Instructed
by
: Mathobo Rambau &
Sigogo Attorneys