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[2019] ZAFSHC 39
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Magokolo v The Road Accident Fund (42/2018) [2019] ZAFSHC 39 (29 April 2019)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA/
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
YES/NO
Of Interest to
other Judges: YES/NO
Circulate to
Magistrates:
YES/NO
Case
No: 42 /2018
In the
matter between:-
MOKONE
ANTHONY MAGOKOLO
PLAINTIFF
and
THE ROAD ACCIDENT
FUND
DEFENDANT
CORAM:
MBHELE, J
HEARD
ON:
4 FEBRUARY 2019
DELIVERED
ON:
29
APRIL 2019
MBHELE
J
[1] This is an
action for damages in terms of the
Road Accident Fund
Act, 56 of 1996
, as amended (the Act). The plaintiff
claims
an amount of R 1 545 197 .76 as a result of the injuries
he sustained on 31 January 2016, allegedly
as a result of a collision that occurred on the
N5 road Between Bethlehem and Paul Roux , Free
State. The plaintiff alleges, in his particulars of claim, that he
was the driver of a motor vehicle with registration numbers
[….]
when he
swerved off the road
to avoid an oncoming unidentified motor vehicle being driven at a
high speed while overtaking a truck at an
inopportune and unsafe
moment. His vehicle
veered off the
road into vegetation and overturned. As a result of the accident the
plaintiff suffered bodily injuries.
[2] The Plaintiff
alleges that the collision occurred as a result of the sole
negligence of
the unknown driver (hereafter referred to as an insured
driver) who was negligent in one or more of the following respects:
·
He travelled at a speed which was
excessive in the circumstances;
·
He failed to keep a proper lookout;
·
He failed to apply breaks vehicle at all,
alternatively timeously and/ or insufficiently;
·
He failed to avoid the collision when, by
taking reasonable and proper care, he both could and should have
avoided;
·
He overtook a truck when it was
inopportune and unsafe to do so.
[3] The
defendant has denied the allegations of negligence against the driver
of an unidentified vehicle.
Defendant, with reference to the
accident report, denies that the accident happened as alleged in
paragraphs 3 and 4 of the
particulars of claim. It pleaded that the
plaintiff’s motor vehicle was the only vehicle involved in the
accident. It denies
that there was an unidentified vehicle that
collided with the plaintiff’s vehicle.
[4]
The issues of quantum and liability were separated by the pre- trial
Judge. Accordingly,
the matter is before me for the
determination of liability.
[5]
Plaintiff
testified, inter alia, to the effect that on 31 January 2016 he was
travelling from Bethlehem to Paul Roux on the N5 road
when he saw a
vehicle emerging from the back of a large truck that was pulling two
trailers on the opposite lane. Both the
vehicle and the truck
were travelling towards Bethlehem and the former was overtaking the
truck. The overtaking vehicle came into
contact with the rear right
part of the plaintiff’s vehicle causing the plaintiff to lose
control of his vehicle. The vehicle
left the road surface, overturned
and landed in the vegetation. Neither the truck nor the insured
driver stopped after the accident
scene. When he first saw the
vehicle overtaking the truck it was at a distance of about 12 meters
advancing towards him.
He was taken to the hospital together
with his passenger. He denied that the accident was
caused by tyre burst when
put to him during cross examination. He
was driving at 85 kilometers per hour before the collision occurred.
In cross examination
he testified that the insured vehicle hit his
vehicle immediately after it completed its maneuver back to its
original lane, in
front of the truck. He explained failure to mention
a collision with another vehicle in his affidavit that
accompanied
his claim with the defendant as an omission on the part
of the person who reduced his affidavit into writing.
[6]
Themba Malinga confirmed the plaintiff’s testimony in relation
to how the accident occurred. He
denied that he told the doctor and
the police officer at the hospital that the plaintiff’s vehicle
had a tyre burst before
it strayed into the vegetation.
Defendant’s
case:
[7]
The defendant called two police officers who inspected the scene of
the accident as its witnesses.
Malefetsane
Simon Mphuthi, a warrant officer in the South African Police Service,
stationed at Bethlehem with 26 years’ experience
in the police
services. In the past 26 years he attended to about 100 accident
scenes. Him and his colleague, Mofumahadi Radebe
were called to the
accident scene where they did preliminary investigation on the
accident. They received information that the
accident occurred
between Bethlehem and Paul Roux. They drove from Bethlehem to the
scene of accident. While driving to the scene
they did not know the
exact spot where the accident occurred and had to observe the road
surface so as to know where the accident
occurred. They did not
observe anything on the surface that could indicate that there was a
contact between two vehicles.
He expected to see debris from
the vehicles that collided and skid marks on the road surface. Skid
marks on the road surface are
an indication that the driver tried to
apply breaks before the collision occurred. There was no indication
that there was a collision
from the second vehicle. The only marks he
observed were on the side of the road where the vehicle strayed into
the veld. There
was no indication that before the vehicle strayed
into the veld there was contact with another vehicle. They found the
plaintiff’s
vehicle in the veld, with two burst tyres in front,
damages on its sides and roof and without a wind screen. The
occupants of the
vehicle were already in hospital. On their arrival
at the hospital they found the driver with serious injuries and being
attended
to by doctors. They managed to speak to the passenger and
Radebe wrote down the information they obtained from the passenger
who
identified himself as Themba Malinga.
[8]
Mofumahadi Radebe, a constable with 10 years’ experience in the
South African Police Service stationed
at Bethlehem. He confirmed
Mphuthi’s version that they attended a scene of accident
together and found a motor vehicle that
had veered off the road and
overturned into the vegetation. There was no indication that the
vehicle collided with another vehicle.
They proceeded to the
hospital where she interviewed one Themba Malinga who informed him
that the vehicle had a tyre burst, veered
off the road and overturned
as a result. There was no indication that the vehicle found at the
scene collided with another vehicle.
CONTENTIONS BY THE
PARTIES
[9]
Mr. Ploos van Amstel submitted that submitted that the plaintiff
managed to prove his case on a balance
of probabilities. He contended
that the plaintiff’s version is the most probable. He further
contended that the plaintiff’s
version shows that an
unidentified collided with the plaintiff’s vehicle. He
implored me to reject the defendant’s
version as untrue.
Mr.
Nkhahle, on behalf of the defendant, submitted that the plaintiff’s
version is improbable and his claim falls to be rejected.
[10]
It is indeed so that the plaintiff, in order to succeed in his claim,
must show and prove that the insured driver’s
negligent conduct
caused the harm giving rise to the claim.
Section 17
(1)
(b)
of the
Road Accident Fund 56 of 1996, provides as follows:
“
(1)
the fund or an agent shall -
(a)……..
(b) subject to any
regulation made under
section 26
, in the case of a claim for
compensation under this section arising from the driving of a motor
vehicle where the identity of neither
the owner nor the driver
thereof has been established, be obliged 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."
[11]
In
ROAD
ACCIDENT FUND v ABRAHAMS 2018 (5) SA 169 SCA
Makgoka,
JA held as follows when dealing with the liablility of the defendant
in a single vehicle accident as laid down in
Section 17:
“
It
was
submitted on behalf of the appellant that the respondent was the
driver, and as such, cannot be a ‘third party’
for the
purposes of
s 17.
He could only be a ‘third party’ had he
been involved in a multiple vehicle collision arising from the
negligence of
the insured driver of another vehicle. I disagree.
Section 17
defines a third party as being ‘any person’.
This undoubtedly is wide enough to include a driver involved in a
single
motor vehicle accident, such as the respondent, provided the
injury arises from the negligence or wrongfulness of the owner, among
others.
……
..
As a consequence of its focus on the respondent, the appellant loses
sight of the pertinent provisions of
s 17
that liability arises from,
among others, blameworthy conduct of the owner of the insured
vehicle. In some instances, this may
have nothing to do with the
actual driving.”
[12
]
It
is clear that there are conflicting versions on how the accident
occurred. In determining the factual basis of the case,
all
probative material admitted during the course of the trial must be
evaluated.
In
Stellenbosch
farmers’ winery group Ltd v Martell et Cie
2003 1
SA 11
(SCA)
the following was said in resolving factual dispute
:
“
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. As to (a), the court’s finding on the
credibility of a particular witness
will depend on its impression
about the veracity of the witness. That in turn will depend on a
variety of subsidiary factors, not
necessarily in order of
importance, such as (i) the witness’s candour and demeanour in
the witness-box, (ii) his bias, latent
and blatant, (iii) internal
contradictions in his evidence, (iv) external contradictions with
what was pleaded or put on his behalf,
or with established facts or
with his own extracurial statements or actions, (v) the
probability or improbability of particular
aspects of his version,
(vi) the calibre and cogency of his performance compared to that of
other witness testifying about the
same incident or events. As to
(b), a witness’s reliability will depend, apart from the
factors mentioned under (a) (ii)
and (v) above, on (i) the
opportunities he had to experience or observe the event in question
and (ii) the quality, integrity and
independence of his recall
thereof.
As to (c), this necessitates an
analysis and evaluation of the probability or improbability of each
party’s version on each
of the dispute issues. In the light of
its assessment of (a),(b) and (c) the court will then, as a final
step, determine whether
the party burdened with the onus of proof has
succeeded in discharging it. The hard case, which will doubtless be
the rare one,
occurs when a court’s credibility findings compel
it in one direction and its evaluation of the general probabilities
in
another. The more convincing the former, the less convincing will
be the latter. But when all factors are equipoised probabilities
prevail”
[13] I have to
evaluate the evidence, assess the credibility of witnesses, consider
prospects of any partiality, prejudice
or self-interest on their
part, and look into probabilities and improbabilities.
[14] Both
plaintiff and Malinga’s testimonies differed materially with
their extracurial statements. Malinga denies
ever having had
communication with Radebe nor that did he give her information
relating to the accident. It is unfathomable how
Radebe obtained his
names and address if the two never had a conversation. The
plaintiff’s version that his vehicle
was hit on its right rear
while the insured driver was overtaking a truck defies logic. The
plaintiff’s version during his
testimony is that he applied
breaks and could not swerve to the left because there was a bump on
the road side. The vehicle was
hit while on the road surface before
it veered off the road and overturned. This version is in contrast
with his affidavit where
he said that he turned the steering wheel to
avoid collision and as a result his vehicle overturned. In his
affidavit there was
no mention of a contact with the insured driver’s
vehicle. If the plaintiff applied breaks, reduced speed and remained
on
the road surface before his vehicle was hit on its rear right to a
point of overturning into the vegetation, it is inconceivable
how
there would be no debris found at the point of impact and how the
insured driver would have survived the collision unscathed
regard
being had that the insured vehicle was driving at a much higher speed
than the plaintiff. It is unfathomable how a head
on collision was
avoided in the circumstances of the plaintiff’s version in
court.
[15] Paragraph 3
of plaintiff’s particulars of claim state the following:
“
a
motor vehicle accident
occurred when the plaintiff, who was the driver of a motor vehicle
with registration letters and numbers
TTR
592 GP,
tried to avoid a head on collision with the driver of an unidentified
vehicle, (hereinafter referred to as the insured driver)
who was
trying to overtake a truck, where after the vehicle with registration
letters and numbers
TTR
592 GP
,
left the road and overturned”.
In the statement that he
gave to the police he stated the following:
“
I then tried to
avoid a head on collision and moved to the left. The other vehicle
bumped into the back of my vehicle and I bumped
into the pole nest to
the road and lost control of my vehicle. It then span several times
and came to stand half on the road and
the other half on the side of
the road. ”
[16] The
undisputed evidence of Mphuthi and Radebe shows that they
were driving from Bethlehem when approaching
the scene, the same
direction the plaintiff was travelling from. In their testimonies
they both indicated that they were observing
the road surface while
heading to the scene to check if there was any debris thereon
indicating the point of impact. They
stopped where they saw
marks on the edge of the road showing the spot where the vehicle left
the road surface into the vegetation.
In his testimony, Mphuthi
indicated that the experience he gathered in about 100 accident
scenes he attended to shows that
in case of a collision
there would always be loose particles on the road surface indicating
a contact between colliding
vehicles.
[17] I have
taken due cognizance of the fact that the
viva voce
evidence
of the plaintiff in court is diametrically opposed to the pleadings
in his particulars of claim; the evidence that is
contained in the
hospital records; the affidavit made to the South African Police
Service and the affidavit made by the claimant
in pursuance of his
claim against the defendant.
[18] I find the
numerous discrepancies detailed above fatal to the plaintiff’s
case. Of the two versions presented
before me I find the defendant’s
version more probable. I am unable to rely on the plaintiff’s
version regarding how
the accident occurred with specific reference
to the involvement of the insured truck and insured driver and the
negligent conduct
of the insured driver.
[19] In
ABRAHAMS
supra
it was held that the driver of a single vehicle is
entitled to claim from the defendant provided such driver relies on
the wrongful
conduct of the owner of the vehicle. In the
current matter, even if I were to find that the vehicle overturned as
a result
of a tyre burst resulting from negligence on the part of the
owner, there is no evidence to show that the plaintiff was not the
owner of the vehicle.
[20] After careful consideration I am not
persuaded that the plaintiff has succeeded to discharge the burden of
proof
that his version was true and has failed to establish
negligence on the part of the defendant.
ORDER
Plaintiff’s claim is dismissed with costs.
N.M. MBHELE, J
On
behalf of the plaintiff:
Adv.
PLOOS VAN AMSTEL
Instructed
by:
VAN AARDT ATTORNEYS
c/o
HONEY ATTORNEYS
BLOEMFONTEIN
On
behalf of the defendant:
Adv. NKHAHLE
Instructed
by:
Maduba Attorneys
BLOEMFONTEIN