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[2018] ZAGPJHC 707
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Mahlokoane v Road Accident Fund (36670/2017) [2018] ZAGPJHC 707 (28 November 2018)
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Certain
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO:
36670/2017
In the matter between:
MATHEWS
MATOME
MAHLOKOANE
Plaintiff
and
ROAD
ACCIDENT
FUND
Defendant
JUDGEMENT
RAMAPUPUTLA, AJ
INTRODUCTION
[1] The Plaintiff
instituted a claim for personal injuries against the Defendant on the
basis that on 25 November 2015 the insured
driver negligently caused
a collision which resulted in him suffering injuries and subsequently
suffering damages. Liability was
separated from quantum in accordance
with Rule 33(4) of the Uniform Rules of Court.
FACTS OF THE CASE
[2] On the 25th November
2015, at about 17h45, the plaintiff was driving on the N14, (R511)
Mulderdrift, Randburg, driving from
south to north, from the garage
where he had fixed a fridge.
[3] A little while of
entering the N14 a collision occurred when his motor vehicle was
rear-ended by the insured motor vehicle.
After that collision his
motor vehicle landed on the right lane of the road. The plaintiff
suffered a fracture to his right arm
and was thereafter taken to
Milpark Netcare Hospital where he received medical treatment for his
injuries.
[4] The following facts
are common cause:
[4.1] This action arises
as a result of a collision of the 25th November 2015 between motor
vehicles bearing registration […]
GP driven at the time by the
plaintiff and […] GP driven by the insured.
[4.2]
In terms of the Road Accident Fund Act
[1]
the defendant is liable to handle claims and compensate claimants for
damages arising out of the negligent driving of a motor vehicle.
[4.3] The collision
occurred on the N14 north bound carriageway. N14 is a dual carriage
road and has a speed limit of 120 km/h.
The collision occurred at
around 17H45 in the afternoon. The collision occurred during daytime
and visibility was clear. The plaintiff
had just joined the N14
roadway from a slipway exiting a petrol station located alongside the
N14.
[4.4] The parties
admitted into evidence a “photo plan and key” with 13
photos depicting the N14 road surface.
ISSUES TO BE
DETERMINED BY THE COURT
[5] The court is seized
with the determination of liability. In particular, the court
is tasked with a determination of who
is responsible for the
accident. The court is further requested to determine whether there
was any contributory negligence, if
so, its extent.
REASONS FOR JUDGMENT
[6] The plaintiff
testified that on 25 November 2015 at about 17h45 he was driving on
the N14 from south to north, from the garage
where he had fixed the
fridge. He drafted a sketch plan which was marked as “Exhibit
C” depicting the direction of
his travel and the position of
the vehicle he was driving and marked its position before the
collision as ‘A1’ and
after the collision as ‘A2’.
He testified that there are no road signs between the on-ramp and the
N14 but he was aware
that he must stop and ensure that there is no
traffic/vehicles before entering the N14.
[7] He stopped at the
on-ramp and entered as he did not see any vehicles on the N14 at the
time. He was driving at 40 km/h
from the garage to join the N14
from the left lane and he observed there was no car and subsequently
entered the highway.
He drove a little while after entering the
N14 and was rear-ended by the insured vehicle. There is a steep hill
towards the south
of the N14 which impedes visibility of north bound
oncoming traffic but the insured driver could see his vehicle. He
disputed the
depiction of his motor vehicle and the description of
the accident on the accident report. He testified that the insured
driver
is responsible for the collision because he was rear-ended by
him and the latter could have avoided the collision but failed to
see
the vehicle in front of him.
[8] Counsel for the defendant argued
that the insured driver had a right of way. Under cross-examination
the plaintiff conceded
that the insured driver had a right of way.
This cannot be disputed but the right of way is not absolute.
[9]
The duties of a driver executing a turn to the right and those of
following and oncoming drivers have been authoritatively stated
in
Sierborger
v South African Railways and Harbours
[2]
as follows:
“
The
heavy flow of urban traffic would be seriously interfered with if, on
each occasion when a signal is exhibited by a motorist
intending to
turn across the line of traffic, such traffic were required to come
to a stop or slow down. Such signal is of course
a notification to
following and oncoming traffic that the driver intends to turn across
the line of traffic, but equally implicit
in it is that he intends to
do so at an opportune moment and in a reasonable manner. It is also,
more particularly, a signal to
following traffic that the driver in
question intends to move over towards the middle of the road
preparatory to choosing the opportune
moment to cross over on to that
half of the road being used by traffic coming in the opposite
direction. A driver of a vehicle
proceeding in this latter direction
does not, with reference to a vehicle whose driver has signalled an
intention to turn across
his path and who is directing his vehicle
towards the middle of the road preparatory to doing so, incur an
obligation to stop or
slow down. Certainly he must keep such vehicle
under observation and as soon as it is clear that, despite the
inopportuneness of
the moment, it intends to cross in front of him,
he must take all reasonable steps that may be necessary to avoid
colliding with
it.”
[10] From this I
conclude that even if the Plaintiff entered the N14 at an inopportune
moment, the insured driver failed to take
reasonable steps that were
necessary to avoid colliding with the Plaintiff’s motor
vehicle. This I readily conclude because
the insured driver who was
outside court did not come inside the witness box to testify what he
had done to avoid the collision.
[11] The Defendant’s counsel
argues that the Plaintiff did not see the insured motor vehicle and
could not explain its presence.
He explained that the steep hill was
very far from the point of impact. The Defendant’s counsel
further argues that there
is no impediment to a proper lookout being
maintained to the road where the insured driver had been travelling
and that Plaintiff
ought to have seen the insured driver’s
vehicle. He argues that failure to see the insured’s vehicle
does not absolve
the Plaintiff from his duty to keep a proper lookout
and ensure that it was safe to join the N14.
[12] It is argued that the failure by
the Plaintiff to keep a proper lookout and entering the N14 as he
did, was the cause of the
accident. It is argued that he should have
foreseen that this action could endanger other road users and he was
therefore negligent.
This argument is flawed because the plaintiff
had already testified that he stopped at the on-ramp and entered as
he did not see
any vehicles on the N14 at the time. He was
driving at 40 km/h from the garage to join the N14 from the left lane
and had
observed no vehicle and subsequently entered the
highway.
[13] I conclude that he could not have
foreseen that his action could endanger other road users and there
were no road users at
the time he acted. If anything, he might have
misjudged his action. The Plaintiff’s misjudgement cannot be
regarded as culpable
in the absence of evidence to the contrary. In
Steenkamp v Steyn
[3]
it was stated that the plaintiff misjudged the situation and that was
an error of judgement, but unless such judgement was culpable,
in the
sense that a reasonable careful driver would not have been guilty of
it, it was not negligence.
[14] It is trite that a driver who
collides with the rear of a vehicle in front of him is
prima
facie
negligent unless he
or she can give an explanation indicating that she or she was not
negligent.
[4]
[15]
It is further argued that Plaintiff failed to discharge the onus
placed on him to prove the insured driver’s negligence.
Counsel
for the Defendant relied on
De
Maayer v Serebro and Another,
[5]
the SCA continues and refers to another judgment of
Milton
v Vacuum Oil Co
1932 AD 197
where it is stated
that:-
“…
[T]urn[ing]
across the line of oncoming traffic…is an inherently dangerous
manoeuvre and a driver who intends executing such
a manoeuvre to do
so by properly satisfying himself that it is safe and choosing the
opportune moment to do so”.
However
this quote does not end there. It further goes on to say “This
rule, however, does not create a general presumption
of negligence
since each case has to be considered on its own special facts and
circumstances. It does not confer on a throughdriver
an absolute
right of way”.
A throughdriver has to be
vigilant and in appropriate circumstances reduce his speed to
accommodate a driver who turns across his
path of travel.
There is no evidence from the defendant that he reduced
his speed to accommodate the plaintiff. The only evidence before us
is that
the plaintiff entered the road cautiously by driving at a
speed of
40 km/h from the
garage to join the N14 from the left lane and he observed there was
no car and subsequently entered the highway
.
He did not see the insured motor vehicle nor know from where it had
come.
[17] Although the
Plaintiff looked before entering the road, he erred in concluding
that it was safe to enter the N14. Although
with hindsight the
plaintiff made an error of judgement, this should not be visited with
negligence given there is no evidence
to suggest that he had been
negligent.
[18]
Before court there is only one version, that of the Plaintiff.
There is no factual evidence of any negligence attributable
to the
Plaintiff and consequently the version of the Plaintiff remains
uncontested. The Plaintiff had discharged the onus of proving
on a
balance of probabilities that the driver of the insured vehicle was
solely to blame for the collision.
[19]
I was informed by the Defendant’s counsel that the insured
driver was outside the court but was not called to come and
testify
despite his presence in court. The Defendant’s failure to call
the driver of the motor vehicle to testify may play
an important if
not decisive role in the determination of liability.
[20]
In
Galante
v Dickinson
[6]
the defendant opted not to call witnesses including the insured
driver.
It
was found to be fair (at all events) to say that in an accident case
where the defendant was himself the driver of the vehicle
the driving
of which the plaintiff alleges was negligent and caused the accident,
the court is entitled, in the absence of evidence
from the defendant,
to select out two alternative explanations of the cause of the
accident which are more or less equally open
on the evidence that one
which favours the plaintiff as opposed to the defendants.
[21]
The Plaintiff is a single witness. Judgement may be given in any
civil proceedings on the evidence of any single competent
and
credible witness
.
[7]
The Defendant did not put the insured driver’s version to the
Plaintiff. The Defendant’s counsel did not cross-examine
the
Plaintiff on the version that his motor vehicle was rear-ended by the
insured motor vehicle. In the case of
President
of the Republic of South Africa and Others v South African Rugby
Football Union and Others
[8]
the court made it clear that the institution of cross-examination not
only constitutes a right, it also imposes certain obligations.
As a general rule it is essential, when it is intended to suggest
that a witness is not speaking the truth on a particular point,
to
direct the witness’s attention to the fact by questions put in
cross-examination showing that the imputation is intended
to be made
and to afford the witness an opportunity, while still in the witness
box, of giving any explanation open to the witness
and of defending
his or her character. If a point in dispute is left unchallenged in
cross-examination, the party calling the witness
is entitled to
assume that the unchallenged witness’s testimony is accepted as
correct.
[9]
[22] In the absence of
the Defendant’s evidence to rebut the Plaintiff’s
evidence, I conclude that the Plaintiff has
discharged his obligation
to adduce evidence that gives rise to an inference of negligence on
the part of the insured driver. The
version by the Defendant that the
Plaintiff entered the left lane and went into the fast lane when it
was unsafe to do so is not
supported by evidence and therefore not
before the Court. Before me is one version which is not controverted.
[23]
The plaintiff was not an impressive and good witness. There are
inconsistencies and/or contradictions in his testimony.
According to the assessor’s
report the distance from the point of impact towards the peak or
uphill estimation is 111.25 meters.
The Plaintiff however said he
estimated the distance to be about three cars. He conceded the
accident occurred on the flat portion
of the road. It is further
argued according to the photographs, there is no impediment to
visibility for a distance of 111.25 meters
and therefore the
Plaintiff ought to have seen the insured driver’s vehicle.
[24]
I, however, find that the Plaintiff’s inconsistencies and/or
contradictions are more of a reflection of his intellect
that his
integrity. The inconsistencies and/or contradictions do not insult
the evidence that enables the Plaintiff to discharge
the burden of
proof incumbent on him.
[25]
The Defendant pleaded in the alternative that the Plaintiff’s
claim be reduced in terms of the Apportionment of Damages
Act
[10]
.
Section 1(a) provides where any person suffers damage which is caused
partly by his own fault and partly by the fault of any other
person,
a claim in respect of the claimant but the damages recoverable in
respect thereof shall be reduced by the court to such
an extent as
the court may deem just and equitable having regard to the degree in
which the claimant was at fault in relation to
the damage. There is
to my mind no evidence to suggest that the Plaintiff was himself
negligent. In this instance I am satisfied
that Plaintiff has
discharged the onus of proving on a balance of probabilities that the
driver of the insured vehicle was solely
to blame for the collision
.
Apportionment
is not applicable in this case.
[26]
I conclude that the Plaintiff has on balance of probabilities
established the
prima
facie
case that the
insured driver negligently rear-ended the vehicle he was driving. As
a result he suffered personal injuries.
The Defendant is therefore
the sole cause of the collision.
[27] Wherefore I make the
following order:
1.
The Defendant is wholly
liable for the Plaintiff’s agreed or proven damages.
2.
Judgement is entered in
favour of the Plaintiff with costs.
______________________
N.E. RAMAPUPUTLA
Acting Judge of the High
Court,
Gauteng Local Division
For the Plaintiff: Adv M
J Sethunya
Instructed by: Sepamla
Attorneys
7
th
Floor,
Carlton Centre
150 Commissioner Street
Johannesburg
For the Defendant: Adv P.
Mashishi
Instructed by: Nozuko
Nxusani Inc
69 Jan Smuts Avenue
Johannesburg
Date of hearing: 26
October 2018
Date of delivery: 28
November 2018
[1]
56 of 1996
as amended by Act 19 of 2005.
[2]
1961
(1) SA 498
(A) at 505A-C.
[3]
1944 AD
536.
[4]
H
B Kloppers
The
Law of Collision in South Africa
7
th
Ed
page 78.
[5]
[2005] 2
All SA 553
(SCA) 557.
[6]
1950(2) SA
460 (A) 465.
[7]
Section 16
of the Civil Proceedings Evidence Act 25 of 1965 (“CPEA”).
[8]
2000 (1) SA
1
(CC) at 5.
[9]
Ipid 36-37
para 61.
[10]
Section
1(a) of Act 34 of 1956.