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
>>
2017
>>
[2017] ZAGPPHC 347
|
|
Agnelli v Road Accident Fund (16198/2015) [2017] ZAGPPHC 347 (23 March 2017)
IN
THE
HIGH
COURT
OF
SOUTH
AFRICA
(GAUTENG
DIVISION, PRETORIA)
DATE: 28/3/2017
CASE
NO: 16198/2015
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
In
the matter between:-
R
AGNELLI Plaintiff
And
THE
ROAD ACCIDENT
FUND Defendant
JUDGMENT
NKOSI
AJ
INTRODUCTION
[1]
This is an action for damages
in respect of loss of
support
instituted by the first and second
plaintiffs against the Road
Accident
Fund. The first plaintiff is the
biological mother to the
2
nd
plaintiff.
[2]
It is common cause that on the 27 June 2014 at
approximately 07:30 and at Marievale a
collision
occurred between a motor vehicle with registration number
[F...] driven by IB Mbonani ("the insured driver")
and motor vehicle with registration [S...] driven
by Fermo Luigi Agnelli ("the deceased")
.
[3]
The parties agreed to the separation of the issue of liability and
quantum. The matter proceeded to trial only on issue of liability.
The parties further agreed that the only issue
to be determined and decided
upon
by the court is that of negligence.
In doing so, the court has to make
a ruling on the
admissibility of hearsay evidence.
[4]
I should also mention that the other technical evidence relating to
locus standi, jurisdiction and compliance with requirements
of the
Road Accident fund Act and Regulations was dealt with by the parties
during their first and subsequent pre trials and admitted
by the
defendant. I must also add that the deceased was the 1
st
plaintiff's husband and the natural father to the second plaintiff.
[5]
The first and second plaintiffs testified and were both cross
examined. No witnesses were called and the plaintiff's case was
closed. There was no witness called to testify on behalf of the
defendant and the defendant elected to close its case.
FIRST
PLAINTIFF'S EVIDENCE
[6]
The fist plaintiff testified that she was married to the deceased for
34 years and knew her husband very well. On the day of
the motor
vehicle collision in question, the deceased left home in the morning
driving a VW Polo motor vehicle which he was driving
to springs for
service.
[7]
Approximately 20 minutes later, her husband called her in her
cellphone. She could not answer the call because
she was in the bathroom .The second
plaintiff answered shortly thereafter she established that it
was her
husband who called she returned the call but a stranger answered her
husband's cellphone and informed her that her husband
was involved in
a car accident. She rushed to the scene accompanied by the second
plaintiff.
[8]
Upon arrival at the scene, she saw her husband sitting inside an
unknown car and he was bleeding from a head injury. She asked
him
what happened . He told her that he was travelling and the other car
swerved into his side and crashed into his car. The second
plaintiff
was with her when her husband told her what happened.
[9]
During cross examination, she admitted that she never made a written
statement to the police and that she was not presnt when
the
collision took place. She further conceded that she
has no knowledge of the contents of paragraph s
4.1 to 4.5 of her
particulars of claim.
SECOND
PLAINTIFFS EVIDENCE
[10]
He answered the first plaintiff's cellphone on the day of the
collision and it was his father on the phone.
He was busy
swearing angrily at someone and the line went dead. He immediately
knew that there was something wrong because he knew
his dad.
[11]
When he and the first plaintiff arrived at the scene, he saw
his father sitting in a car unknown to him he had a head injury and
was bleeding. His father told the first plaintiff that the other car
encroached into his lane and collided with his car. He took
photos of
both vehicles using his cellphone. The photos are on page 61 to 63 of
the Bundle entitled "INHOUDPGAWE: MARIETE".
On page 61, the
top left photo depics the insured motor vehicle stationery outside
the road with damage to the right side and
towards
the front on the driver's side. The other photo at the top right
depics the deceased's motor vehicle with damage
on the driver's side
at the right side of the car.
[12]
He conceded during the cross examination that he cannot tell
how the collision occurred.
DEFENCE
CASE
[13]
There was no witnessed called to testify on behalf of the
defendant. The defended opted to close its case without leading
evidence.
[14]
It was submitted by counsel for the defendant that the
plaintiffs action should fail on the basis that
1.
Plaintiff's have failed to
prove
that the
insured driver was negligent. The first plaintiff conceded that she
has no knowledge of paragraphs 4.1 to
4.5
of her particulars
of claim.
2.
Plaintiff's action depends solely on hearsay evidence
in
order
to
prove
negligence on the
part
of the
insured driver. Such hearsay is
inadmissible.
These
submissions formed the thrust of the defendant's defence.
[15]
I will first deal with the defendant's first submission, the
alleged failure by the plaintiff to prove negligence as alleged in
paragraphs 41 to 4.5 of plaintiff's particulars of claim which
provide that :
4.1
"Hy teen 'n hoer spoed gery het as wot die omstandighede
toegelaat het,
4.2
Hy versuim het om 'n behoorlike uitkyk te
hou:
4.3
Hy versuim het om die voertuig behoorlike te beheer;
4.4
Hy
versuim het
om
die
ongeluk te vermy deur die uitoefening van redelike
sag;
4.5
Hy versuim het om die kotroles en ander hulpmiddels van sy
voertuig op so 'n wyse aan te wend dot dit veilig was vir ander
padgebruikers.
[16]
The first plaintiff is the only witness who testified about
paragraphs 4.1 to 4.5 she was asked during cross examination what she
meant by each of the aforesaid paragraphs. Her reply prompted
the defendant to conclude that the plaintiff
failed to prove negligence.
[17]
She instituted this action believing that the insured
driver was negligent because of what the
deceased
told her. According to her, the deceased's words
were
"the other driver swerved into my side and
crashed into my
car". Should this be proven to be
true, it would support paragraphs 4.1, 4.2 and 4.3
of the particulars
of claim.
[18]
It was argued by the defendant that what was said by
the deceased ought to have been expressly
pleaded in the particulars of claim. I do not agree,
the particular of claim as it stands is
not
excipieable because it contains the necessary averments
to sustain the cause of action. In Mc Kenzie v Farmers
Co -
operative Meat Industries Ltd.
Adopting
the definition of "cause of action "the count held
that
"every fact which
it would be necessary for the plaintiff to prove, if traversed, in
order to support his right
to judgement of the
court. It
does
not
comprise every piece of evidence which is necessary to
prove each fact, but every fact which is
necessary to be
proved
[1]
"
[19]
"Care
must be taken in any given case to distinguish the facts which
probantia must be proven in order to disclose a cause
of action
(the facto probanda) from the facts which
prove them (the facto probantia )
[2]
.
What is alleged in the paragraphs 4.1 to 4.5 of the
particulars of claim constitute facto probanda.
These paragraphs relate to the issue of negligence which must
be alleged for the particulars of claim not to be excipieable.
On the
other hand what was said by the deceased regarding how the collision
occurred, constitutes facto probantia. It is that piece
of evidence
necessary to prove that the insured driver failed to keep a proper
lookout (para 4.2), failed to keep
his vehicle
under proper control (4.3) and he failed to avoid the collision
when by exercise of reasonable care and
skill he ought to have
done so (4.4) . The fact that the facto pro bantia was not expressly
pleaded in the particulars of claim
may not and in
this case
does not render the particulars of claim excipieable. Such evidence
is admissible if
it is
relevant
and material.
[20]
The question whether the plaintiff has succeeded in proving
negligence on the part of the insured driver depends on whether what
the deceased said to the first plaintiff is admissible or not .
[21]
It is not disputed that the deceased told the first plaintiff
that the insured driver swerved into his side and crashed
into
his car. The fact that the deceased spoke to the
first plaintiff and what he said is not hearsay;
however
what the deceased said is hearsay when the first
plaintiff repeats it in court. It is therefore
the admissibility of
this hearsay evidence which is placed in dispute.
[22]
Section
3
[3]
of Act 45
of 19883 provides
that
3.
Hearsay evidence
(1)
Subject to the prov1s1ons of any law ,hearsay
evidence shall not
be admitted as evidence at
criminal or civil proceedings, unless-
a.
each party against whom the evidence is to be adduced
agrees
to the admission thereof as evidence at such
proceedings:
b.
the
person
upon whose credibility the probative
value of such evidence depends, himself testifies at such
proceedings:
c.
the court having
regard
to
(i).
the nature of the proceedings
(ii).
the nature of the evidence;
(iii).
the purpose for which the evidence is tendered; (iv). the
probative value of the evidence;
(v).
the reason why the evidence is not given by the person upon whose
credibility the probative value of such evidence depends,
(vi).
Any prejudice to a party which the admission of such evidence might
entail; and
(vii).
Any other factor which should in the opinion of the court be
taken into account.
Is
of the opinion that such evidence should be admitted in
the interests of justice.
Section
3 (1) (c) is relevant to the circumstances of this case. In
Makhathini v Road Accident Fund
[4]
the court cautioned that the factors referred to in
section 3(1) (c) (i) to (vi) should not
be considered in isolation because they are
interrelated and overlap
[23]
I now turn to deal with the provision of section 3
(l) (c) (i) to (vii)
23. 1
The action pertains to a claim against the road accident
fund
for loss of support. The Road Accident Fund is a
statutory body established with the purpose to
compensate
the victims of motor vehicle
accidents.
23.2
The deceased gave an explanation to his wife
in the
presence of his son of what happened
or put otherwise, how the accident
occurred,
at the scene and shortly after the
collision. There is no evidence on record
to
contradict what the deceased said. There is further no
evidence on record to suggest that the deceased had an ulterior
motive
and lied purely to sustain a claim
against the Road Accident Fund. If the
deceased was alive and gave the
same explanation in court , his evidence would have been
admissible and would certainly prove the alleged acts of negligence
on the part of the insured
driver as stated in paragraph 4.2 to 4.4 of
particulars of claim.
23.3
I agree with Adv Venter that the probative value of the
evidence in casu is
of a high value. The fact that the deceased spoke
to the first plaintiff in presence of the second
plaintiff at the
scene, makes it probable that the deceased may have
told them how the accident occurred. Both plaintiff's evidence
was criticised
on the ground that they have a vested interest in the
case and would therefore protect their interest at all costs. I do
not agree,
the plaintiff's were impressive on the witness stand.
Their evidence was clear and logical, it was not exaggerated. Of
significant
note is the fact that the second plaintiff testified that
when he heard his father swear on the phone he immediately
knew that there was something wrong. The most reasonable inference to
be drawn is that there was a sound father and son relationship
to an
extent that the son knew his father temperament, nature and
behaviour. Further, of significant note is the fact that the
first
plaintiff was married to the deceased for
34 years. In her testimony she said
"I knew my
husband "She is therefore in a better space
to confirm whether the
deceased lied when he
told her how the accident happened.
There is no evidence
on record to suggest
that he lied.
23.4
The purpose of the hearsay evidence is clearly to establish
negligence on the part
of the insured driver and consequently to hold
the defendant liable to compensate the plaintiff. If it is held to be
admissible,
it would have to be considered in light of the alleged
negligence as stated on the particulars of claim. The second
plaintiff took
photos of the vehicles at the scene. He conceded, and
correctly so, that he cannot testify about how the accident
happened.
The plaintiffs did not appoint an accident
reconstruction expert who could have found
the photos helpful
for his postulations. The hearsay evidence is the
only source of proving negligence.
23.5
I am not persuaded that the defendant will be prejudiced if the
hearsay is admitted
into evidence. To the contrary, it will be in the
interest of justice to admit such evidence. The defendant failed to
call any
witnesses to testify. This matter was before court for trial
on a previous occasion. It was postponed at the request and instance
of the Defendant because the insured driver was not in attendance.
Subsequently and during a further Pre-Trial Conference, the
defendant
indicated that it would be leading the evidence of the insured driver
and the Accident Reconstruction Expert. During
this trial, they were
both absent and no reasonable explanation was
given. The defendant is
a statutory
body established to compensate motor vehicle accident
victims. It, therefore, has a duty to investigate
each claim
submitted to it. It must further ensure the attendance of its
witnesses in court. Failure to do so militates against
the very
object of the Road Accident Fund Act and is undesirable. In casu the
defendant has nothing on record to challenge Plaintiff's
evidence. In
this case, any prejudice claimed by the defendant is self
manufactured. If the defendant's witnesses were in
court
they would probably have given evidence either resisting
plaintiff's claim and in particular, such
evidence to
demonstrate that the deceased was not telling the truth or evidence
corroborating the hearsay evidence.
In Road Accident Fund v
Klisiewitz, Hewe.JA had this to say at para
42;
[5]
"A
special cost
order
is therefore not only appropriate
but necessary. The Fund exists to administer, in the interest
of the road accident
victims, the Fund it collects
from
the public. It has the duty to effect
that administration with integrity and
efficiency.
This entails the thorough investigation of claims and,
where litigation is responsibly contestable, the adoption of
reasonable
and timeous steps in advancing its
defence. These
are
not exacting
requirements. They must be observed
In Madzunye and Another v
Road Accident Fund
[6]
M aya JA
stated that,
"
......the respondent, which relies on the public purse
for
its
existence and does not, therefore, have unlimited financial
resources, conducted itself"
In
a
manner which cannot be reconciled with
the requirements set out in the Klisiewitz
case.
This
is particularly
so
having
regard
to the fact that
the intention of the act, in terms of which the respondent functions,
is to give the greatest
possible
protection to victims of negligent driving of motor
vehicles.
[24]
The Defendants repeated failure to call its witness whose
evidence would have been material constitutes a
compelling
justification for drawing a negative inference. Firstly,
the insured driver is the one who was involved in the motor
vehicle
with the deceased. He would have been
very helpful to the court and the parties. Secondly, the Accident
Reconstruction
Expert would have at least formulated an expert
opinion of how the accident happened. Their
failure
to testify leads me to draw a
negative inference, that both defendants' witnesses
must
have known that there is no defence to
the plaintiff's claim.
[25]
I have already expressed my view on the reliability of
evidence of both plaintiffs. Their evidence is reliable truthful and
as already
said, impressive. They both conceded
that they did not know how the accident happened. They
had not exaggerated in an attempt to convince
the court. They allowed the fate of
their
claim against the defendant to be decided only
on hearsay. They were prepared
to take that
risk. They did not contradict themselves on
any material evidence. They were both
consistent.
[26]
In S v Ramavhele, Schultz JA said:
"A
judge should
hesitate long in admitting or relying
on
hearsay evidence or even significant part in convicting
an
accused unless there is compelling justifications for
doing
so".
I
am persuaded that the hearsay statement qualifies in terms of section
3 (1) (c) of the Law of Evidence Amendment Act
to be
admitted into evidence. This evidence as
I
have mentioned before has the effect of proving allegations
contained in paragraphs 4.2 to 4.4 of the particulars of claim.
I therefore find that on the balance of probabilities the plaintiffs
have discharged the onus of proving negligence on the part
of the
insured driver and consequently succeed in proving the merits in
their favour.
[27]
I have been furnished with the draft order prepared by the
plaintiffs and I have perused it. I make the following order.
1.
. The defendant is liable to pay 100% of the first
and second plaintiffs proven or agreed
damages
2.
The draft order is made and order of court.
______________________
N
NKOSI
ACTING
JUDGE OF
THE
GAUT NG DIVISION, PRETORIA
[1]
1922 AD 16
at 23 also see Evins v Shield Insurance Co ltd
1980
(2) SA 814
(A) at 838 E-F
[2]
Erasmus.Van Loggerenberg Jarlma - Superior court Practice (main
volume) at Bl - 156; also see Dusheiko v Milburn
1964
(4) SA 648
(A)
[3]
Law of evidence amendment Act 45 of 1988
[4]
Makhathini v Road Accident Fund 2002 ( 1)
SA 511
[5]
Road Accident Fund v Klisiewitz [2002] ZASCA 57 (29 May
2002)
[6]
MAdzunye and Nother v Road Accident Fund 2007 ( l) SA 165 (SCA) AT
PARA 17-18