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[2019] ZAGPPHC 362
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Mofokeng v Road Accident Fund (62941/2015) [2019] ZAGPPHC 362 (13 August 2019)
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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH
AFRICA
GAUTENG DIVISION, PRETORIA
(1)
REPORTABLE:
NO/
YES
(2)
OF
INTEREST TO OTHER JUDGES: NO/
YES
(3)
REVISED.
CASE NO: 62941/2015
DATE OF HEARING: 10 MAY 2019
13/8/2019
In
the matter of:
MESHACK
THUHLANE MOFOKENG
PLAINTIFF
and
ROAD
ACCIDENT FUND
DEFENDANT
JUDGEMENT
N
N Bam AJ
A.
Introduction
1.
This case is about a claim for damages
arising from a motor vehicle accident. The claim is brought in terms
of section 17 (1) (b)
of the Road Accident Fund Act
[1]
.
2.
Before the start of the trial, both
counsel relayed that notwithstanding their holding of the pre-trial
conferences during 2017
and 2019, the merits remain disputed. By
agreement between the parties then, the issue of merits was separated
from the quantum
in terms of rule 33(4) of the Uniform Rules of Court
and the matter proceeded on merits only.
3.
Plaintiff, Mr Meshack Thuhlane Mofokeng,
is an adult male of 47 years (43 at the time of the event). He was
employed as a driver
by [….] at all times material hereto, and
he resides at [….] North West.
4.
Plaintiff issued a summons against the
Road Accident Fund (the Fund) during August 2015, following the
accident which occurred on
17 June 2014.
B.
Details of the
accident
5.
Plaintiff called no witnesses; he
testified as follows:
6.
On 17 June 2014 at about 17h00, he was
driving along Jericho and Mondiyane in Britz, Northwest, to deliver
some goods on behalf
of his employer when he was involved in an
accident. He was driving a Toyota Hilux Bakkie with registration
number [….].
[In several
instances in the record provided by the plaintiff, the registration
number is noted as [….] There was however,
nothing made of
this difference.]
Traveling with the
plaintiff on the day in question were two passengers who were also in
the employ of Britz Wholesalers. The accident
occurred when the
insured vehicle number (1) driving from the opposite direction to the
plaintiff suddenly overtook insured vehicle
number (2) and faced
oncoming traffic. To avoid a collision, plaintiff swerved his vehicle
to his left. It hit the gravel surface
and, in the struggle to bring
the vehicle back to the road, it hit a tree. As a result, plaintiff
was injured. He and his fellow
passengers were transported to a
hospital in Britz where he woke up the next day. He was hospitalized
for a month before he was
discharged. Neither the two drivers nor
their vehicles could be identified, which brings the claim within the
ambit of section
17 (1) (b).
7.
Plaintiff
did not see any police officers after the accident.
8.
After
discharge from hospital, plaintiff went to the police to report the
accident because his employer had instructed him to do
so. He could
not remember the date of the report to the police.
9.
In
his section 19 (F) affidavit
[2]
plaintiff declared under oath that he was the driver of the vehicle
[….] on the day in question. The details of the accident
are
noted in the affidavit as follows: An unknown oncoming vehicle
overtook another vehicle. This caused plaintiff to swerve to
the left
to avoid an accident; he lost control of the vehicle and it began to
roll.
10.
The narrative as to how the accident
occurred according to the plaintiffs particulars of claim is
confusing but I produce it as
best as I can in this paragraph.
According to the plaintiff
[3]
there was a collision on the day in
question between vehicle number one. number two, and the vehicle
driven by the plaintiff
. The
collision occurred when the insured driver of vehicle number one
overtook the second vehicle. In so doing, vehicle number
one was
facing oncoming traffic. As a consequence, the plaintiff swerved to
avoid a collision. He subsequently lost control and
his vehicle
overturned.
11.
The defence had put no version before
the court. It however denied the allegations made by the plaintiff as
to the cause the accident,
alleging that the accident was caused by
the plaintiffs negligence for, among others, failing to keep a proper
look out. In the
alternative, it pleaded that in the event the court
were to find that the accident was caused by the negligence of the
insured
driver, which it still disputed, then it alleged that the
accident was caused by both the insured driver and the plaintiff, in
which case it would ask that the damages be apportioned in terms of
the Apportionment of Damages Act 34 of 1956.
C.
Statement by Njuryl Islam, one of
the passengers
12.
Njuryl Islam (Njuryl), one of the
passengers traveling with plaintiff on the day of the accident along
with Jahir Islam, was interviewed
by DW/0 Jacob Julie D Sechele
(Sechele), with force number 05209081 , stationed at Jericho, in
connection with the accident noted
under case number 30/06/2014. The
interview took place on 24 July 2014 at 12h00. Although he was not
called to testify, his statement
formed part of the record
[4]
.
Speaking under oath, in English, Njuryl avowed that he is of
Pakistani origin and 30 years of age. He narrated the details of
the
accident as follows:
(i)
He
is employed by Moss Shop at Leganyane Village.
[It's
not clear whether Moss Shop is the same as Britz Wholesalers.]
(ii)
On
17 June 2014 at approximately 17h04 he and Jahir Islam were
passengers in a Toyota Hilux Bakkie, with registration number [….],
then driven by Justice Ramotso (Ramotso).
(iii)
They
were traveling along Maboloka Road at about 100km/hr when two rear
tires burst. He proffered it was because the road has potholes.
(iv)
Ramotso
had tried to control the vehicle but it rolled four times before
hitting a tree and then came to a standstill.
(v)
They
fell out of the vehicle and he sustained injuries to his right thumb,
finger, knee and face. The police were informed and they
were all
transported to Brits hospital where they were discharged after
treatment.
D.
Police investigate a
case of reckless and negligent driving
13.
On the same day of
Njuryl's interview, at about 14h00, a man was interviewed by the
police in connection with an investigation into
reckless and
negligent driving. The case number is noted as 30/06/2014 and the
interview was conducted by D W/0 Sechele. The man
interviewed
identified himself as Ramotso of Mahurnadiha Township, Tornstreet,
Britz. After he was informed refer to as the Ramotso
statement. He
stated:
(i)
On
Tuesday 17 June 2014 at approximately 17h10 , he was driving a Toyota
with registration plate [….] between Jericho and
Modinyane
Road at a speed of 100km/h when two of the rear tires burst.
(ii)
He
lost control and the vehicle overturned.
(iii)
He
suspected the cause to have been potholes.
(iv)
He
could not tell what had happened thereafter as he was unconscious and
woke up in hospital the next day with injuries on his left
hand and
chest. He was later transferred to Ga Rankuwa hospital.
(v)
He
also could not tell where the accident took place.
E.
Statement by
Constable Snyman Matube
14.
On 17 June 2014,
Constable Snyman Matube, (Constable Matube) of the SAPS was stationed
at Jericho when he received a report about
an accident.
He attended the scene and
thereafter made a statement under oath as follows:
(i)
On his arrival, he found an African male
sitting on the ground who introduced himself as Meshack Mofokeng
(plaintiff). With him
were two males from Bangladesh. The two
Bangladeshi men were standing next to the vehicle and there were
groceries strewn around
the vehicle.
(ii)
The Bangladeshi men introduced
themselves as Johrul Islam and Mansur.
(iii)
The two alleged that Meshack was the
driver.
(iv)
He summoned an ambulance and the injured
men were taken to hospital.
(v)
The victim's vehicle, a Toyota Hilux
with registration number [….], was towed to Jericho upon the
instructions of a man by
the name Mohamed Mansum who identified
himself as the brother of one of the injured males.
F.
Police sketch
[5]
14.
According
to the sketch drawn by Constable Matube, the vehicle was driving
between Jericho and Maboloka on the day in question.
The sketch
depicts one vehicle, the direction it was traveling and where it was
positioned after the accident. There is also a
police accident report
and the name of Constable Matube appears. The poor quality of the
report makes it exceedingly difficult
to follow what is recorded.
15.
During
his examination in chief, plaintiff was referred to an 'affidavit'
[6]
made to the police in connection with the accident. The 'affidavit'
turned out to be the same statement made by Ramotso. The statement
lacks the essentials to make it an affidavit. It has neither the date
nor the commissioner’s certificate at the end. Nonetheless,
plaintiff identified Ramotso as his cousin. Then came the blatantly
leading question about the circumstances under which the plaintiff
came to sign the statement. Plaintiff confirmed that he gave the
statement to the police but had not read it, thus, he did not
see
that it had his cousin's name on it. He testified that he was
accompanied by his cousin to the police station and relayed the
information through the cousin. He mentioned that he could not
remember where the accident had happened after his month's stay
in
hospital.
G.
Hospital records
16.
The
hospital records
[7]
note that plaintiff was admitted on 17 June 2014 at about 20h30 on
account of an involvement in a motor vehicle accident. At the
time of
arrival, he was alert and complained of painful wrists, chest and
back pain. On page 40 under retrospective notes, the
same details
about the plaintiff being alert upon arrival are repeated. It is
further noted that he was well hydrated and not bleeding.
Both wrists
were observed to be in full range of movements. A prescription note
with his name dated 18 June 2014 was issued. There
is a further
record which confirms that plaintiff was later hospitalized on 29
June to 17 July 2014
[8]
.
This hospitalization however, was preceded by a consultation for an
operation
[9]
.
It is not clear whether the later admission had any connection with
the accident.
H.
Analysis and
Conclusion
The driver
17.
I start with the most basic but essential detail of this case,·
the identity of the driver.
I had difficulties reconciling who the
real driver of the vehicle was. According to the plaintiff, he was
the driver but according
to Njuryl who was interviewed a few hours
before him on 24 July 2014, at the same police station, by the same
officer, in connection
with the same case, the driver was Ramotso.
First, I found it strange that neither Constable Matube nor Njuryl
were called to testify.
Njuryl was said to be in the same employ as
the plaintiff at the time.
18.
Second, plaintiffs testimony that he was rendered unconscious after
the accident and he woke up
in hospital the next day must be
questioned. In direct contradiction is the sworn statement of
Constable Matube which identified
the driver as the man he found
sitting on the ground who identified himself as the plaintiff. Matube
was informed by the two Bangladeshi
passengers that plaintiff was the
driver. Juxtaposed against Matube's statement, the hospital records
and the sworn statement of
Njuryl, the plaintiff's statement about
being rendered unconscious cannot be true. In the absence of evidence
that the hospital
personnel had any motive to provide him with false
records, his statement as to his state of consciousness falls to be
rejected.
Fortifying my view in this regard is Constable Matube's
sworn statement which makes no reference to the plaintiff being
unconscious.
On the contrary, Constable Matube described the
plaintiff as 'a man who was sitting on the ground'. The net result is
that from
the conspectus of evidence before this court, the driver
was either Ramotso or the plaintiff, a result that does not assist
plaintiff
in his claim.
The
cause of the accident
19.
The
difficulties do not only end with the identity of the driver, there
are some internal contradictions in plaintiffs own evidence
regarding
the description of the accident. In his particulars of claim and his
section 19 (F) affidavit
[10]
,
the vehicle rolled. In court, the plaintiff hit a tree while he was
trying to bring the vehicle back to the lane but there was
no mention
that the vehicle overturned. I may add at this point that not every
error made by a witness affects their credibility
[11]
.
Further, the test is not whether the witness was truthful or reliable
in all what he said but whether, on a preponderance of probabilities,
the essential features of the story are true
[12]
.
However, when one brings to the fore the statements made by Ramotso
and Njuryl, that the vehicle overturned following the burst
of two
rear tires then the credibility of the plaintiff is severely
attacked. Both statements went further and confirmed that the
cause
must have been the potholes on the road. These statements were both
made in July 2014, whereas the section 19(F) affidavit
and the
summons were drawn up during January and July 2015, respectively.
20.
Plaintiff's
explanation in court about how he signed a statement - which is
supposedly that of his cousin
[13]
- is undermined when one takes into account that his colleague, who
was interviewed two hours before him, also identified the driver
as
Ramotso. Both statements identified the cause of the accident as
burst tires due potholes. Surely, Njuryl had not been not aided
by
plaintiff's cousin when he made his statement. Also, having been
interviewed within two hours apart in connection with the same
case,
the interviewing officer would have easily picked up the
discrepancies as to the cause of the accident and the identity of
the
driver. Seen in this way, it is more probable that there were no
other vehicles involved in the accident, but that the vehicle
overturned due to the burst tires as narrated in both the Ramotso and
Njuryl statements. However, the two witnesses may have agreed
to
falsify the identity of the driver to protect the plaintiff from a
possible prosecution,
[the police had
informed him they were investigating a case of reckless and negligent
driving].
It is one thing for
plaintiff to state that he did not read the statement, which is
produced in English and quite another for him
to sign a statement as
his, where his own name did not appear anywhere.
21.
These
inexplicable inconsistenciespoint to the plaintiffs attempt to
obfuscate the truth. Further indicators of this attempt are:
the
plaintiffs decision not to call any of the witnesses who were with
him on the day of the accident, nor Constable Matube who
had attended
to the accident scene at the time; the different versions as to the
cause of the accident, first the version narrated
by the plaintiff in
court- in which a tree was involved-, and the version in his
particulars of claim and in his section 19(F)
affidavit, both of
which make it pellucid that plaintiffs vehicle rolled; the different
versions as to the plaintiffs state of
alertness after the accident
as set out in Constable Matube's, Njuryl's, statements, the hospital
records, and plaintiffs own testimony
in court. All these
inconsistencies indicate that plaintiff had decided to depart from
the original version and had conjured up
a new version which was
tailored for a particular purpose but failed dismally. It is also
highly unlikely that details such as
the vehicle hitting a tree would
escape a witness when the story is still fresh in his memory only for
it to come back five years
later. There is further no evidence that
Matube and the hospital staff had any motive to falsify the state of
alertness of the
plaintiff.
22.
The
discrepancies I have identified in this judgement are matters that
ought to have been addressed by the plaintiff to enable the
court to
properly assess the merits of his case.
23.
This
brings me to the issue of cross examination. Cross examination was
gentle. It left the plaintiffs case just as it was before
cross
examination, discrepancies included. I use two examples; it was
suggested to the plaintiff that the accident was caused by
a burst
tyre. Plaintiff simply denied that there was ever a burst tyre. So,
the defence moved on. It was further suggested that
he had failed to
apply his brakes. This, the plaintiff denied, but conceded that he
omitted to mention that he had depressed his
breaks during his
examination in chief. It was not only during his examination in chief
that plaintiff had failed to mention the
detail about the brakes, he
never mentioned it in any of the statements he had made to the police
and not even in his section 19
(F) affidavit. To sum up the issue of
cross examination, whatever the plaintiff had placed before the court
was left undisturbed,
internal contradictions and all.
24.
ln
Ngozo v Road Accident Fund
[14]
the court referred to the dictum in
Daniels v General Accident Insurance
Co
Ltd
[15]
and noted as follows in so far as
the evidence of a single witness is concerned:
'It is of course competent for a
court to find in favour of a party on the strength of the evidence of
a single witness - s 16 of
the Civil Proceedings Evidence Act 25 of
1965, which provides that judgment may be given in any civil
proceedings on the evidence
of any single competent and credible
witness......although there is apparently no 'cautionary rule' in
civil cases as in criminal
matters where proof beyond reasonable
doubt is required, the single witness, more particularly where he is
one of the parties,
must be credible to the extent that his
uncorroborated evidence must satisfy the Court that on the
probabilities it is the truth".'
25.
While
one is alive to differences in the degree of proof in both civil and
criminal cases, I consider this dictum from
Zamokwakhe
Madondo
&
2
Others v The State
[16]
quite useful in its exposition of
the test when dealing with a single witness:
'Central to a resolution of this
appeal, is a consideration of the approach to be adopted by a trier
of fact, when faced with the
task of assessing the evidence of a
single witness.
In an oft repeated dictum, it is
said that the evidence of such a witness must be "clear and
satisfactory in every material
respect", and that where the
witness "has an interest or bias adverse to the accused
[17]
"
the evidence must be approached with caution. In other words, the
evidence
"must not only be credible
but also reliable
[18]
"
, but it is clear that, "There is no rule of thumb, test or
formula to apply when it comes to a consideration of the
credibility
of the single witness
[19]
"
, and "The trial Judge will weigh his evidence, will consider
its merits and demerits and, having done so, will decide
whether it
is trustworthy and whether, despite the fact that there are
shortcomings or defects or contradictions in the testimony,
he is
satisfied that the truth has been told
[20]
"
.
26.
After
careful analysis of the evidence presented before this court and
taking into account the rules relevant to the testimony of
a single
witness, there can be no doubt that plaintiff failed to put a proper
case before this court. The myriad of contradictions
I have referred
to lead to one rational conclusion, that his story is not
truthful
[21]
.
Consequently, plaintiffs claim falls to be dismissed. The following
order is made:
27.
(i)
Plaintiff’s claim is dismissed with costs.
NN BAM
ACTING
JUDGE OF THE HIGH
COURT,
GAUTENG DIVISION,
PRETORIA
APPEARANCES
DATE
OF HEARING
:10 MAY 2019
DATE
OF JUDGMENT
: 13 AUGUST 2019
PLAINTIFF'S
ATTORNEYS
: GERT NEL ATTORNEYS
DEFENDANT'S
ATTORNEYS
: BORMAN DUMA
ZITHA
[1]
(Act 56 of 1996) as amended
[2]
deposed to on 5 January 2015
[3]
Page 6 – Pleadings bundle- paragraph 4.1
[4]
pages 21-22
[5]
page 31 of the record
[6]
page 29 of the record
[7]
page 38- 41
[8]
page 63
[9]
page 57
[10]
The affidavit was deposed to on 5 January 2015
[11]
Satani v Department of Education, Western Cape 447/201, delivered on
6 March 2019 (unreported), para 19
[12]
Santam Berperk v Vincent Biddulph 105/2003, SCA para 10
[13]
refer to paragraph 15 of this judgement
[14]
21866/2012) [2013] ZAGPJHC 390 (19 November 2013) para 67
[15]
1992 (1) SA 757
(C) at 7591-76 08
[16]
512/11 ZAKZPHC/2012/43 para 3.
[17]
R v Mokoena
1956 (3) SA 81
(A) at 85 H
[18]
S v Janse van Rensburg & Another
2009 (2) SACR 216
(C) at 220 G
[19]
S v Webber
1971 (3) SA 754
(A) at 758
[20]
S v Sauls & others
1981 (3) SA 172
(A) at 180 E - F
[21]
note 10 supra