About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2018
>>
[2018] ZAGPPHC 328
|
|
Van der Walt v RAF (64522/2016) [2018] ZAGPPHC 328 (6 February 2018)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
INTHE HIGH COURT OF SOUTH
AFRICA GAUTENG
LOCAL DIVISION,
JOHANNESBURG
(1)
NOT REPORTABLE
(2)
NOT OF INTEREST TO OTHER JUDGES
(3)
REVISED.
CASE
NO: 64522/2016
6/2/2018
In
the matter between:
VAN
DER WALT, L
Plaintiff
and
ROAD
ACCIDENT
FUND
Defendant
JUDGEMENT
SENYATSI
AJ
INTRODUCTION
1. This
is a claim for damages arising out of a collision between the car
driven
by the Plaintiff and a truck insured by the Defendant.
2. At
the hearing of evidence, the parties agreed to have the quantum of
damages
postponed sine die. It was further agreed by the parties'
Counsels that the evidence to be adduced would pertain to the merits
only. Accordingly, the judgment deals with the merits of the claim.
FACTS
3. The
Plaintiff, Mrs Van der Walt was travelling from Rustenburg on 30
September 2015 on the N4 high way. She was heading westwards and it
was at 7pm when she left her home to visit her mother's friend
out of
Rustenburg.
4. The
Plaintiff was driving a Toyota Yaris black in colour with
registration
[….] and was alone. She had switched on her
headlights, as it was dark. The traffic on the N4 high was not
congested.
5. As
she was driving between Rustenburg and Swasttruggens at 120km per
hour, she noted that there were two oncoming cars from the opposite
direction. She could see that one of those cars was a truck.
6. As
she approached to pass the truck, she collided with the rear right
wheel of the trailer of the truck. She lost consciousness and was in
comma for five days in hospital.
7. The
police took a statement about the collision from her seven months
after the collision. In her statement to the police, she averred that
the truck caused the collision by creating the wind that
caused her
car to loose control.
8. In
her evidence in chief, the Plaintiff stated that the truck and the
car from the opposite side drove too close to the yellow line. This
yellow line is the one depicting the edge of the road and can
serve
as an emergency lane. The line is on the extreme side of both lanes
of the road.
9. The
Plaintiff stated furthermore that she could not remember how the
collision took place as the collision happened so quickly.
10. She
could not explain the material contradiction in her evidence in chief
when she
failed to mention that the collision took place because of
the wind created by the truck with registration number [….]
driven
by Mr T P Tshabalala.
11. The
Plaintiff did not call any witness to corporate her evidence and she
closed her
case after giving evidence.
12. Mr
Masombuka on behalf of the Defendant argued that absolution from the
instance had
to be granted, as no court applying its mind reasonably
to the evidence would find that the prima facie case had been made
and
may find for the Plaintiff.
13. Judgment
was reserved.
ISSUE
FOR DETERMINATION
14. The
issue for determination is whether the application for absolution
from the instance
should be favourably considered given the evidence
adduced thus far by the Plaintiff.
LEGAL PRINCIPLES
15.
The
test for absolution from the instance at the end of the Plaintiff's
case is well established in our law. In Gordon Lloyd Page
&
Associates v Rivera and Another,
[1]
the Supreme Court of Appeal stated as follows in dealing with the
test:
"The test for absolution
to be applied by trial Court at the end of a Plaintiff's case was
formulated in Claude Neon Lights
(SA) Ltd v Daniel
1976 (4) SA 403
at
409G-H in these terms:-
If absolution from the
instance is sought at the end of the Plaintiff's case, the test to be
applied is not whether the evidence
led by the Plaintiff establishes
what would finally be required or to be established, but whether
there is evidence upon which
a Court, applying its mind reasonably to
such evidence, could or might (not should nor ought to) find for the
Plaintiff...
This implies that
a
Plaintiff
has
to make
a
prima facie
case -
in
the sense that there
is
evidence relating to all elements of
the claim to survive absolution because without such evidence no
court could find for the Plaintiff...
As
far
as
inferences
from the evidence are concerned, the inference relied upon by the
Plaintiff must be reasonable one, not the only reasonable
one...
Having said this, absolution at the end of a Plaintiff's case, in the
ordinary course of events, will nevertheless be granted
sparingly but
when the occasion arises
a
Court should order it in the
interest of justice".
16.
Should
the court at the end of the evidence adduced by the Plaintiff be
certain whether the Plaintiff's evidence has satisfied the
test
whether at the end of the Plaintiff's evidence, apply its mind
reasonably to the evidence that it can find in favour of the
Plaintiff, the application for absolution ought to be refused.
[2]
17.
I have been referred to
Jadezweni v Santam Insurance Co. Ltd and Another
[3]
where the Court said the following:-
"....if either of the
vehicles was to cross the centre line at the time of the collision
the inference would be that the driver
of the vehicle was negligent."
18. In
applying the above principles to the instate case, I am not persuaded
that upon
applying my mind reasonably to the facts, I am satisfied
that I can find for the Plaintiff. The Plaintiff has two versions on
how
the collision took place. Firstly in the statement to the police
that the truck blew wind causing her loss of control of her car,
which resulted in the collision. Secondly, she does not remember how
the collision took place as it happened too quickly.
19. She
stated furthermore that prior to the collision the truck coming from
the opposite
direction was driving close to the yellow line. It was
not clear whether she referred to the yellow line of the opposite
lane,
which is the truck's lane or the lane she was travelling in.
She stated that she does not remember what happened thereafter as she
collided with the rear right wheel of the trailer of the truck. It is
difficult to even apply the principles in Jadezweni v Santam
as the
point of impact has not been established through her own evidence and
no inference can therefore be made.
20. Mr
Masombuka questioned her about the contradiction of her evidence and
the statement
given to the police that her car was blown off by wind
created by the truck, which caused her to lose control and collide
with
the truck. As stated, she failed to provide an answer to this
contradiction.
21. The
diagram and the sketch handed in Court were not helpful either. They
were not drawn
to scale and not even drawn at the time of the
collision. We do not know which of the two drivers crossed the centre
line and encroached
on the other's lane.
22. No
expert evidence was adduced on to how the collision possibly took
place. The Jadezweni
v Santam Insurance Co. Ltd principles on
presumption of negligence if the collision was as a result of either
of the drivers crossing
the centre line will not find application in
the instant matter. No evidence was adduced stating that the truck
had crossed the
centre line.
23. Following
the application of the principles to the instate matter, I hold the
view
that the application absolution must succeed.
ORDER
24.
In the result the following order is made:-
a)
Application for absolution from the instant is granted with costs.
M L SENYATSI AJ
ACTING JUDGE OF THE HIGH COURT
OF SOUTH AFRICA
GAUTENG
PRETORIA
On
behalf of the Plaintiff : MR
L VAN DER WALT
INSTRUCTED BY
ADAMS
& ADAMS ATTORNEYS,
PRETORIA
On behalf of the
Plaintiff MR
A MASOMBUKA
INSTRUCTED BY
ADAMS & ADAMS ATTORNEYS,
PRETORIA
[1]
2001 (1) SA 88
(SCA) AT 92E-93A
[2]
See Build-A-Brick BK en 'n Ander v Eskom 1996(1) SA 115 (0) at
123A-E
[3]
1980 (4) SA 310(C)