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2017
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[2017] ZALMPPHC 17
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Huma obo Self and Minors v Road Accident Fund (2379/2016) [2017] ZALMPPHC 17 (11 July 2017)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
CASE
NO: 2379/2016
Not
reportable
Not
of interest to other judges
Revised.
11/7/2017
In
the matter between:
CONTSANCE
MOYAHABO HUMA obo SELF and MINORS PLAINTIFF
And
ROAD
ACCIDENT
FUND DEFENDANT
JUDGMENT
MOKGOHLOA
DJP
1.
The plaintiff, in her personal capacity and as
the mother of her two minor children, sues the defendant for damages
occasioned by
the death of her husband (the deceased) in a collision
between the motor vehicle (Toyota Tazz) driven by the deceased and
another
motor vehicle (Volkswagen microbus) driven by insured driver.
2.
The said collision occurred on 19 July 2015 at
around 5h00 along the N1 South Road, Botlokwa, Limpopo. The plaintiff
avers that
the collision was caused solely as a result of the
negligence of the insured driver in that he failed to keep a proper
lookout
and failed to give due regard and consideration to the safety
of other road users, in particular, the deceased. The plaintiff
further
alleges that the insured driver parked his motor vehicle in a
dangerous position on the road thereby causing a dangerous unlit
obstruction or alternatively failed to take sufficient steps to warn
other road users more specifically the deceased of his presence
on
the road surface.
3.
The defendant filed a plea in which it denies
liability and alleges negligence on the part of the deceased. The
defendant alleges
that the deceased was negligent in one or more of
the following respects, namely that he failed to keep a proper
lookout and drove
at an excessive speed; he failed to apply the
brakes of his motor vehicle timeously or at all; he failed to observe
other motor
vehicles travelling on the road in particular the insured
driver’s motor vehicle.
4.
The defendant pleaded in the alternative that
should the court find negligence on the part of the insured driver
and that such negligence
contributed to the collision, then the
collision was caused by the joint negligence of both the insured
driver and the deceased.
5.
The issue that I have to determine is the
question of negligence which led to or caused the accident which
would then establish
which party is liable for damages caused.
6.
At the commencement of the trial, the parties
agreed that the issue of liability be separated from the
determination of quantum.
I have accordingly ordered the separation
of those issues in terms of R33 (4) of the Uniform Rules of Court.
7.
Three witnesses were called by both parties that
is, two by the plaintiff and one by the defendants. The plaintiff
further handed
in Bundle ‘B’ containing a photo album
compiled by W/O Nelushi, depicting the position of both vehicles
after the collision.
This album was extensively used by both parties
during the trial.
8.
The first witness to testify was Constable Baloyi
from Botlokwa police station. She stated that she received a message
regarding
an accident that had occurred along the N1 road to
Polokwane. She proceeded to the scene where she found a microbus and
Toyota
Tazz involved in an accident. Both cars were stationed as it
is depicted on the photo album. The driver of the Toyota was in his
car and was certified dead at the scene. Constable Baloyi obtained a
statement from the insured driver, Mr Rhangani. According
to
Constable Baloyi the lights and emergency lights of the microbus were
off. She did not see or notice any reflective triangle
on the scene
of the accident.
9.
The next witness was W/O Nelushi who is a crime
scene reconstructive expert. He was called as an expert testify as to
the point
of impact, the general observation of the scene of the
accident and to also give his opinion as to how the accident could
have
happened in relation to the damages to both vehicles and marks
or debris found on the road surface. W/O Nelushi stated that he
arrived at the scene and certain points were indicated to him. He
made his own observations, took photographs of the scene of the
accident and prepared a sketch plan marking out all relevant points.
10.
W/O Nelushi investigated the scene of the
accident looking for other evidence that can assist him in the
reconstruction. According
to him, the lights and emergency lights of
the microbus were off. He looked around specifically searching for a
reflective triangle
if same was put up by the insured driver but he
could not find it.
11.
As to the point of impact, W/O Nelushi stated
that the point of impact is on the emergency lane (normally termed
the yellow lane).
He pointed the said point of impact to be on point
B as depicted on photos 1 and 2 in Bundle B. He stated that he was
able to determine
the point of impact because of the pieces of
glasses on that spot and the brake marks. He conceded that the brake
marks were not
easily identifiable through the naked eye and he had
to take photos of such brake marks in an elevated position to capture
them.
This, according to W/O Nelushi, is a skill normally used by
expert photographers in such situations. He stated that the reason he
was not able to capture the brake marks in a normal way was that on
impact, and depending on whether the handbrake of the microbus
was
engaged and the speed at which the Toyota Tazz was travelling, it is
possible that the microbus would have been forced to move
forward
leaving superficial brake marks on the road surface. He however could
not state whether those brake marks were from the
microbus or the
Toyota Tazz.
12.
Regarding the positions of both motor vehicles
after the accident, W/O Nelushi stated that the momentum at the time
of collision
would have made the two vehicles to move forward and
swerve out of the road surface (point of impact). He stated that the
microbus
after being hit from the rear moved forward and turned into
the westerly direction.
13.
W/O Nelushi testified further that he inspected
both motor vehicles to check their roadworthiness. He inspected their
tyres and
found that tyres on both motor vehicles were in good
condition. He did not observe any flat or burst tyre.
14.
The insured driver, Mr Musa Rhangani testified.
He stated that he was travelling from Vleifontein to Johannesburg
along the N1 South
Road. He had passengers in the microbus. Whilst
driving, and at around 3h30 he had a tyre puncture on the front right
wheel. He
managed to drive his motor vehicle off the road onto the
gravel side. He called his mother to bring him a jack, switched on
the
emergency lights and put a reflective triangle at the back of the
vehicle to warn other road users of his presence.
15.
His mother arrived at the scene around 4h30. He
got out of the car to show her the punctured tyre. He walked towards
the puncture
tyre whilst his mother stood at the sliding door of the
microbus talking to the passengers. Whilst standing next to the
punctured
tyre, he heard a loud bang. He immediately checked for his
mother and found her injured lying on the ground. He attended to her
and moved to the rear of his microbus that is when he realised that a
Toyota Tazz had collided with his motor vehicle. He proceeded
to
check the driver of the Tazz and he found him already dead. He peeped
through the window of the Tazz and he noticed a bottle
of whisky and
a bottle of water with some concoction or mixture like drugs.
16.
The insured driver stated that it was possible
for W/O Nelushi to have not noticed that the microbus had a
flat/punctured tyre because
the microbus had 17 inch rim tyres. He
further stated that it was possible that the lights of the microbus
were off at the time
W/O Nelushi arrived at the scene because the
electric cables were damaged during the collision.
17.
In order to determine negligence, one has to
first locate the point of impact in the accident. In W/O Nelushi’s
version, the
accident occurred on the emergency lane whilst the
insured driver’s version is that it occurred outside the road
surface
on the gravel road.
18.
These two
versions are mutually destructive in the sense that the acceptance of
one must necessarily lead to the rejection of the
other. In deciding
which version to accept and which one to reject, Esteen AJP (as he
then was) stated the following in National
Employers’ General
Insurance v Jagers
[1]
:
“…
.where
the onus rests on the plaintiff as in the present case, and where
there are two mutually destructive stories, he can only
succeed if he
satisfies the Court on a preponderance of probabilities that his
version is true and accurate and therefore acceptable,
and that the
other version advanced by the defendant is therefore false or
mistaken and falls to be rejected. In deciding whether
that evidence
is true or not the Court will weigh up and test the plaintiff’s
allegations against the general probabilities.
The estimate of the
credibility of a witness will therefore be inextricably bound up with
a consideration of the probabilities
of the case and, if the balance
of probabilities favours the plaintiff, then the Court will accept
his version as being probably
true. If however the probabilities are
evenly balanced in the sense that they do not favour the plaintiff’s
case any more
than they do the defendant’s, the plaintiff can
only succeed if the court nevertheless believes him and is satisfied
that
his evidence is true and that the defendant’s version is
false.”
19.
In
Stellenbosch Farmers’ Winery Group Ltd and Another v Martell et
Cie and others
[2]
, the Supreme
Court of Appeal stated:
“
The technique
generally employed by courts in resolving factual disputes of this
nature may conveniently be summarised as follows.
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. 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.”
20.
Taking considerations of the above principles, it
appears that the evidence which has to be believed is that of W/O
Nelushi. I find
his evidence to be more probable and reliable. I can
however not say the same with the evidence of the insured driver
which was
fraught with inconsistencies and improbabilities on the
following material aspects:
20.1. He testified that
the emergency lights of the vehicle were switched on before the
accident and the impact caused the electrical
wires to be
disconnected. Whether this is possible or not is not clear from the
evidence. He however changed tack under cross examination
to say that
after the accident, the engine of his car started to emit smoke and
he removed the battery as he feared that it may
catch fire.
20.2. According to him,
he put a reflective triangle at the back of his vehicle immediately
after he stopped on the gravel side
of the road because of the tyre
puncture. This he did to warn other road users of his presence. The
question is why did he do this
if he had stopped on the gravel side
outside the road surface. Furthermore, W/O Nelushi’s evidence
is to the effect that
he did not find anything that resembled the
reflective triangle’s particles on the gravel road. W/O Nelushi
testified about
pieces of glasses that he found on the yellow line.
20.3 As regards his
discovery or notice of alcohol/drugs in the deceased’s vehicle,
both counsel agreed and conceded that
it was still dark at that time
of the morning and visibility would have been poor. It was therefore
not possible for the insured
driver to have noticed that.
20.4. He did not see the
deceased’s vehicle approaching immediately before the accident.
If indeed the insured driver was
parked on the gravel road, and being
outside of his vehicle, then it would have been expected of him to at
the least have heard
the sound of the engine of the deceased’s
vehicle and observed its lights approaching.
20.5 Regarding the tyre
puncture, W/O Nelushi and Constable Baloyi did not notice any tyre
puncture on the insured driver’s
wheels. The insured driver’s
mother was not called to testify and confirm his evidence. In my
view, the size of the rim makes
no difference, if there was a
puncture, W/O Nelushi would have noticed.
I
therefore find the insured driver’s evidence unreliable.
21.
The
defendant’s counsel argued that the insured driver’s
version should be preferred to that of W/O Nelushi. He referred
me to
a case of Stacey v Kent
[3]
where
the court held that, because the expert witnesses rely on assumptions
and because of the natural tendency of an expert to
build a case in
favour of his own side, a court is compelled to weigh expert
testimony carefully, especially if it conflicts with
apparently
reliable direct evidence. I fully agree - However, I have already
found that the insured driver’s evidence is
not reliable. I
therefore cannot find any reason to reject W/O Nelushi’s
evidence.
22.
To sum up, I find that the insured driver had
stopped his vehicle on the emergency (yellow) lane where the accident
occurred. The
insured driver failed to switch on the emergency
lights. He failed to put the reflective triangle. I therefore find
that he was
negligent and thereby caused the accident. I find it
unnecessary to consider the question of contributory negligence
because this
is a loss of support matter that requires the plaintiff
to prove only 1% negligence. In my view, the plaintiff succeeded to
discharge
the
onus
placed on her.
23.
Having stated the above, the following order
shall issue:
Order
1.
The defendant is ordered to compensate the
plaintiffs’ proved or agreed damages arising out of the
collision.
2.
The defendant is ordered to pay costs of suit
MOKGOHLOA
DJP
REPRESENTATIONS
1.
For
the Plaintiff : Advocate Molai
Instructed
by : NK Vukeya Incorporated
2.
Counsel
for the defendant : Adv Motlatle
Instructed
by : Pule Incorporated
3.
Date
of hearing : 07 June 2017
4.
Date
handed down : 11 July 2017
[1]
1984 (4) SA 437
(E) at 440 E-G
[2]
2003 (1) SA 11
SCA at [5]
[3]
1992 (4) SA 495
(C)