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 446
|
|
Poopedi v Road Accident Fund (84568/2014) [2018] ZAGPPHC 446 (2 March 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
FLYNOTES:
LOSS OF INCOME – PROOF
ACTUARIAL
– Loss of income – Proof – Injuries including
impaired wrist – Contradictory and vague explanation
for
unemployment after accident – Past loss of income not proven
– Plaintiff taking up career in welding to which
not suited
especially considering wrist injury – Claim for loss of
earnings premised on circumstances that plaintiff
created herself
– She had other career options – Absolution granted on
past and future loss of income claim.
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
HIGH COURT DIVISION, PRETORIA
(1)
NOT REPORTABLE
(2)
NOT OF INTEREST TO OTHER JUDGES
(3)
REVISED.
Case
No: 55813/2014
10/5/2018
PHAKED
I JOSEPH KOTSINKWA
PLAINTIFF
and
ROAD
ACCIDENT FUND
DEFENDANT
JUDGMENT
SENYATSI
AJ:
A.
INTRODUCTION
[1]
This is an application for damages for injuries arising from a motor
vehicle collision
on 29 January 2012, in Mohodi Village, Bochum,
Limpopo.
[2]
The parties applied for separation of
the merits and quantum at the hearing of the matter and that quantum
to be postponed
sine die
for
later determination.
The
application was granted. The defendant disputed the merits of the
accident.
B.
THE EVIDENCE
[3]
The plaintiff, Phakedi Joseph Kotsinkwa,
was a single witness, who testified to prove the merits of his claim.
[4]
He was travelling on the tarred road
from Dendron to Bochum on the day of the collision at about 08h00. He
noted an Isuzu light
delivery vehicle in front of him as he
approached Mohodi Village and claimed that the driver of the Isuzu
vehicle, one Joseph Mashudu
Ramavhoya ("Ramavhoya"),
indicated that he was going to turn right to the side junction that
led to Mohodi Village. The
plaintiff was driving a Nissan NP200 light
delivery vehicle with registration [….]. He was in the company
of an unknown
female passenger whom he had given lift from Polokwane.
[5]
At the time when the plaintiff became
aware that the insured vehicle was indicating to turn right, the
plaintiffs vehicle was approximately
4 to 5 meters behind Ramavhoya's
car. He stated that as Ramavhoya proceeded towards making the right
turn, he accelerated with
the intention to continue straight in the
direction of Bochum. Suddenly, Ramavhoya realised there was an
approaching vehicle from
the opposite direction and he subsequently
swerved back into his lane. The plaintiff attempted to avoid the
collision by swerving
to the left but his vehicle collided with the
rear left corner of the insured car.
[6]
The plaintiff's vehicle veered off the
road, to the left side where the vehicle came to a standstill. The
plaintiff sustained injuries
to his waist and to his right leg. He
was trapped in his vehicle and was taken to hospital where he was
treated for his injuries
and discharged the same day.
[7]
In leading his evidence in chief, the
plaintiff referred to the affidavit which was signed on 25 February
2018, in Senwabarwana.
This affidavit states that the insured vehicle
with registration number [….], signalled to turn to the left.
After the insured
vehicle changed lanes, it suddenly went back to the
lane in which the plaintiff was approaching in order to avoid
colliding with
an oncoming vehicle from the opposite lane. The
plaintiff sought to correct the affidavit by stating that in fact.
the insured
driver was turning to the right and not left as stated
therein.
[8]
The plaintiff conceded under
cross-examination that he paid for the damages caused to the insured
vehicle, after his movable property
was attached by the sheriff
presumably pursuant to a claim, by the owner insured vehicle for the
damages caused by the plaintiff
to the insured vehicle. The plaintiff
proceeded to close his case without calling further witness to
corroborate his version of
events.
[9]
The driver of the insured vehicle,
Ramavhoya was the first witness to testify for the defendant. He
testified that he was travelling
from Matombisa Village towards
Bochum. He had three passengers with him in the insured vehicle,
Willy Mudau ("Mudau''), the
latter's younger brother, as well as
an unknown elderly lady whom he offered to give a lift to Bochum and
picked up at Dendron.
The two male passengers were in the front cab
of the insured vehicle whilst the lady where seated in the back.
[10]
Ramavhoya testified that the purpose of his trip to Bochum was to
fetch the belongings of Mudau's younger
brother, who was attending
school in Bochum and was in future intending to proceed with
schooling in Thohoyandou.
[11]
Ramavhoya further testified that as he
approached Mohodi, he looked in his rear view mirror, and observed a
Nissan NP200 light delivery
vehicle, approaching from behind at a
high speed. He testified that he shared his concern regarding the
high speed at which the
Nissan NP200 was approaching them with his
two passengers.
[12]
Ramavhoya further testified that he knew
Mohodi well as his wife's father was from that Village. He denied
that he indicated that
he was going to turn right into Mohodi as the
plaintiff alleged. He confirmed that he was proceeding to Bochum on
the day of the
collision and that the plaintiffs vehicle collided
with his vehicle, from behind. Ramavhoya testified that he was not
the owner
of the insured vehicle and in fact, he had to pay the owner
of the vehicle an amount of R4000 for the damages caused by the
collision.
Ramavhoya submitted that he was unaware of the fact that
the owner of the vehicle also claimed damages from the plaintiff in
respect
of the damage caused and of the fact that the plaintiff paid
the amount as claimed. Ramavhoya, subsequently purchased the insured
vehicle from the owner as the owner did not want the vehicle anymore.
[13]
Ramavhoya testified that upon the
plaintiff's vehicle colliding with his, his vehicle overturned,
however, he suffered no injuries.
The elderly passenger at the back
of the insured vehicle told Ramavhoya that she was concerned about
the plaintiff. Ramavhoya approached
the plaintiff on her advice and
noted that the plaintiff had both his hands on the dash board. He
noted that there was a pack of
alcohol bottles inside the plaintiff's
vehicle, one of which was opened. He did not speak with the plaintiff
but confirmed that
the plaintiff together with the elderly lady was
later taken to hospital.
[14]
The female passenger of the plaintiff
was not injured in the collision, caught a lift and left the scene of
the collision. Mudau
and his brother were also uninjured.
[15]
Ramavhoya stated that the plaintiff,
driving at high speed, was the sole cause of the collision. He denied
that he had indicated
to turn to the right to Mohodi Village as
alleged by the plaintiff, as he had no reason for doing so and
confirmed his destination
was Bochum
[16]
Mudau was the second witness to testify
for the defendant. He confirmed that he and his younger brother where
passengers in the
insured vehicle driven by Ramavhoya and they were
on their way from Matombisa to fetch the personal belongings of his
younger brother
from Bochum. His younger brother had attended school
at Bochum and was now going to continue with school in Thohoyandou.
[17]
Mudau testified that he was alerted to the approaching speeding
Nissan NP200, by Ramavhoya. He looked
in the left side mirror of the
vehicle and saw the speeding vehicle approaching their vehicle from
behind. Mudau was unable to
estimate a distance between the
plaintiff's vehicle and the insured vehicle, at this point in time.
Mudau testified that the plaintiffs
vehicle collided with the insured
vehicle from behind. causing their vehicle to veer to the right,
overturning onto its left side,
where it came to a standstill.
C.
ISSUES FOR DETERMINATION
[18]
The first issue to be determined is whether the plaintiff has
discharged the
onus
of proving that the insured driver was the
cause of collision and whether the insured driver drove negligently.
The other issue
to determine is whether the burden of proof of
negligence, had been discharged, given the two mutually destructive
versions by
the witnesses.
D.
THE LEGAL PRINCIPLES
[19]
The
approach that a Court should follow in instances where it has to deal
with mutually destructive versions has been dealt with
previously by
our Courts. Coetzee J had this to say in
African
Eagle Life Assurance Company Ltd v Cainer
[1]
:-
quoting his own judgment in Koster Ko-operatiewe Landboumaastskappy
Bpk v Suid-Afrikaanse Spoorwee en Hawens
[2]
at
425:-
"Where
there are two stories mutually destructive, before the onus
is
discharged
the Court must be satisfied that the
story
of
the litigant upon whom the onus
rests
is
true and the other false. It is not enough to
say
that
the story told by Clarke is not satisfactory in every respect, it
must be clear to the Court of first instance that the version
of the
litigant upon whom the onus rests is the true version.
...’
[3]
And
Coetzee J went on to say:-
"
Ek ag my verbonde aan die uitspraak in die Gany-saak. Afgesien
daarvan dat die Appelhof nog nooit sedertien met hierdie genadering
weg gedoen het nie, wat nie sander betekenis is nie, sou ek my graag
respekvol met die onderliggende logika daaraan wit vereenselwig,
en
paar opemerkings oor die verband daartussen en welbekende
bewysmaatstawwe waag."
[20]
The learned Judge went on to state that
his judgment had been quoted out of context. He stated at 231F that:
"..
.I had hoped to make it clear what I thought what Wessels, J.A.
meant (in
National Employers Mutual General Insurance
Association v Gany
1931 AD 187)
,
and something which does
not seem to have been sufficiently clearly stated (judging by the
frequency with which this further portion
of the judgment is not
quoted) is that this approach in this type of
case
only
applies in cases where there are no probabilities one way or the
other. Where there are probabilities, inherent or otherwise,
there
is
no room for this approach. On the other hand, where there are no
probabilities
-
where, for instance, the
factum
probandum
was
whether
a
particular thing was white
or black, with not the slightest evidence
as
to the
preponderance of white or black things in that particular community,
there are clearly no probabilities of any sort.
…
.
The
position
is
simply
that there is no proof, by any criterion, unless one is satisfied
that one witness evidence is true and that of the other
is false.'
[4]
[21]
In
National
Employers' General Insurance
Co
Ltd
v Jagers,
[5]
it was also held that where two versions. are in effect, mutually
destructive in the sense that the acceptance of the one must
necessarily lead to the rejection of the other, the Court must be
satisfied upon adequate grounds that the story of the litigant
upon
whom the
onus
rests
is true and the other is false. If the case can be decided on
probabilities, this test does not apply.
[22]
It
is trite law, with issues pertaining to a rear-end collision that the
driver who collides with the rear of a vehicle in front
of him, is
prima
facie
negligent.
Such person is regarded as negligent, if the reasonable person in the
same position as such driver would have reacted
differently and if
the unlawful conduct causing damage, was reasonably foreseeable and
preventable.
[6]
In this matter,
there are probabilities and the test, is therefore not applicable.
E.
REASONS FOR JUDGMENT
[23]
I have considered the evidence led by
the witnesses in this case. I have also considered the demeanour of
the witnesses during their
testimony. In my view, the plaintiff was
evasive when pressed during cross-examination. He was unable to
provide a reasonable explanation
for deviating from his own affidavit
in regard to the sequence of events. His version of the sequence of
the collision was contained
in two affidavits. The first affidavit
did not explain how the collision took place and the second
affidavit, done during February
2018, indicated that the collision
happened when Ramavhoya signalled that he was going to turn left.
However, this version as contained
in the second affidavit was
changed during his evidence in-chief and the explanation provided was
that it was a mistake. The plaintiff
did not come across as a
truthful, although he tried hard to persuade this Court to accept his
version, no matter how improbable
his version was.
[24]
Ramavhoya and Mudau on the other hand were calm and collected
witnesses. Ramavhoya was willing to provide
an explanation as to why
he did not lodge a claim for injuries. He clearly stated that he was
not injured. He was willing to concede
that the owner of the insured
car was paid by both himself and the plaintiff. something that only
came to his knowledge at this
trial. I found both of the defendants'
witnesses to be credible and truthful.
[25]
The probabilities are that the plaintiff
was driving at an excessive speed and that he did not maintain a safe
following distance
from the vehicle in front of him, driven by
Ramavhoya.
[26]
Furthermore, the plaintiff failed to
provide a reasonable explanation, for paying for the damages to the
vehicle driven by Ramavhoya,
to the vehicles' owner. His explanation
that he wanted to release his movable assets from the attachment by
the local sheriff,
leads to an inescapable conclusion that those
assets were attached following a judicial process. There is, however,
no need to
make a determination on this point.
[27]
Having considered all the evidence, I am
of the view that the plaintiff has failed to discharge the
onus
of proving that the insured driver
was the cause of the collision.
[28]
Ms Van Rooyen submitted on behalf of the
plaintiff that if, a finding is made that the plaintiff was the cause
of the collision,
a subsequent finding should be made that the
insured driver was a contributor to such negligence. I disagree with
this submission.
It has not been argued before me, as to what else
Ramavhoya could have done to avoid the collision.
[29]
In light of my finding that on a balance
of probabilities, the vehicle driven by Ramavhoya, was not signalling
to turn to the right,
there cannot be an expectation that he could
have done anything else to avoid the collision. No evidence or
submissions was led
that Ramavhoya, ought to have moved out of the
way to avoid the collision. The doctrine of contributory negligence
finds no application
under these circumstances.
ORDER
[30]
Consequently the following order is
made:-
(a)
The claim is dismissed with costs.
M.
SENYATSI
ACTING
JUDGE
GAUTENG
DIVISION
PRETORIA
Appearances
For
Plaintiff:
Adv M van Rooyen
Instructed
by:
Savage Jooste & Adams
For
Defendant:
Adv SB Vukeya
Instructed
by:
Diale Mogashoa Attorneys
[1]
[1980] 1 All SA 122 (W), 1980 (2) SA 234 (W).
[2]
[1974] 2 All SA 420 (W), 1974 (4) SA 420 (W).
[3]
See also Stellenbosch Famer's Winery Group Ltd & Another v
Martell & Others
2003 (1) SA 11
(SCA); National Employer's
General Insurance Company Ltd v Jagers
1984 (4) SA 437
(E) at 4400 ;
African Eagle Life Assurance Company Ltd v Cainer
1980 (2) SA 234
(W) at 237; Oosthulz en v Van Heerden t/a Bush Africa Safaris
2014
(6)
SA 423
(GP) at 430 .
[4]
Supra.
[5]
(1984) 4 All SA 622 (E).
[6]
See
Kruger v Coetzee
1966 (2) SA 428
(A) at 430; Santam
Versekeringsmaartskappy Bpk v Swart 1987 (4) SA (A) at 819-820;
Minister of Safety and Security v Rudman
2005 (2) SA 16
(SCA) at 39