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[2017] ZAGPPHC 397
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Volmink obo Minors v Road Accident Fund (57900/2014) [2017] ZAGPPHC 397 (28 April 2017)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE NO: 57900/2014
NOT REPORTABLE
NOT OF INTEREST TO OTHER JUDGES
NOT
REVISED
In
the matter between:
E.
V obo
MINORS
Plaintiff
and
THE
ROAD ACCIDENT
FUND
Defendant
JUDGMENT
Baqwa
J
[1]
This is an
action in terms of the
Road Accident Fund Act No. 56 of 1996
("the
Act')
in
which the plaintiff sues in her personal as well as her
representative capacity as natural guardian and mother of the
following
minors:
1.1
T
M born […] 2008
1.2
S
M born […] 2004
1.3
R
M born […] 2005
1.4
P V born […]
1999
[2]
The matter is defended and all forms of negligence have been denied
by the defendant. The Court made an order for the separation
of
issues in terms of Rule 33 (4) of the Uniform Rules of Court and the
matter proceeded only on the question of liability. The
issue of
quantum has been held over for later determination.
[3]
The claim
arises out of an accident which occurred on 30 October 2011 at
approximately 21h15 on the N3 highway in the area of Warden
in the
direction of Harrismith when a motor vehicle with registration
letters and numbers B[..] GP, a silver Polo Vivo driven by
M M (the
deceased) was allegedly forced off the road by an unidentified
vehicle driven by an unidentified driver.
[4]
As a result
of the collision, the deceased was fatally injured and died on the
scene of the accident.
[5]
Only two
witnesses were called by the parties, namely, E M for the plaintiff
and Mufirifiri Dlamini for the defendant.
[6]
The versions
presented by the two witnesses are mutually destructive in that
according to the plaintiffs witness the accident was
caused by a
Nissan Sentra which obstructed the deceased's line of travel in a
manner which caused him to swerve thereby causing
his vehicle to
overturn whereas according to the defendant's witness the accident
occurred due to the deceased losing control of
his vehicle.
[7]
E M was a
passenger in the deceased's vehicle together with the deceased's
young daughter who was sleeping at the back seat of the
vehicle when
the accident occurred. The portion on which they were travelling was
a dual carriage road in each direction. It was
a tarred roadway with
road markings. It was a dark rainy night even though Eric Molise
could not state whether it was still raining
at the time of the
accident.
[8]
He testified that he was seated at the front
passenger seat conversing with the deceased when he suddenly saw an
old Nissan Sentra
motor vehicle moving slowly in front of them. He
warned the deceased about it. Without verbally reacting to the
warning, the deceased
swerved his vehicle firstly to the right and
apparently, upon realising that there was oncoming traffic, he
swerved again to the
left and at that point lost control of his
vehicle which overturned. Molise was later assisted out of the
overturned vehicle by
a stranger. He requested the use of a cell
phone from the stranger so that he could inform his other brother and
his sister in
law about the accident.
[9]
It was common cause that about thirty minutes
thereafter the police and ambulances arrived on the scene and all
three, namely, M,
the deceased's daughter and the deceased were taken
to hospital in one ambulance and the deceased was certified dead upon
arrival
in hospital.
[10]
Molise confirmed that prior to being taken to hospital he spoke to
one of the two policemen who were the first to arrive on
the scene
being Constables Mufirifiri Dlamini and female Constable Mofokeng. He
also stated that he was surprised when Dlamini
called him by his
first name whereupon he realised that Dlamini was a childhood friend
with whom he had grown up. He confirmed
that Dlamini enquired as to
what had happened and that he gave him a brief explanation to the
effect that he had been a passenger
in the deceased's vehicle when
the deceased lost control of his vehicle.
[11]
Dlamini also testified on behalf of the defendant and by and large
confirmed the version given by M. He testified that he was
on patrol
in his capacity as Constable from the Warden Police Station when he
received a report about an accident which had occurred.
It took him
about thirty minutes to reach the accident scene where he found an
African male and female seated on the pavement whilst
another African
male was lying face down on the road surface. He immediately
recognised M and had a brief conversation with him
as narrated above.
[12]
What this Court has to determine therefore is which of the two
versions is more probable than the other.
[13]
The correct approach to be adopted regarding mutually destructive
versions was set out in the case of
National
Employers General Insurance Ltd v Jagers
1984
(4) SA 437
E at 440 E – G, where Eksteen AJP said:
“…
where
the onus rests on the plaintiff as in the present case, and where
ther 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, 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.
”
[14]
The defendant's counsel submits that the
plaintiff's version ought to be rejected because the plaintiff has
presented three versions
before the Court which are irreconcilable.
The first version is the one which M first narrated to Dlamini at the
scene of the accident.
[15]
The second version is contained in an affidavit
which was sworn to by Molise at Warden Police Station three days
after the date
of the accident. That version was presented in the
form of exhibit B83 which is a sworn statement dated 3 November 2011
which was
signed and sworn to by M before a Commissioner of Oaths.
Paragraph 3 thereof reads as follows:
"As we were travelling on the
N3 road about 25km towards Warden, the late M M lost control from the
slow lane and straddled
over fast Jane facing the on coming traffic
and the car rolled over the road, overturned. We all three sustained
injuries and the
ambulance took us to Harrismith hospital."
[16]
The third version is contained in the police
report which was referred to during the evidence of Dlamini which was
also to the effect
that the accident was caused by the deceased
losing control of his vehicle.
[17]
These versions have to be weighed against the
evidence given by Molise in court, to the effect that it was the
presence of a Nissan
Sentra vehicle in front of the deceased's
vehicle which caused the accident.
[18]
It is trite that the plaintiff always bears the
onus of proving negligence on the part of the insured driver on a
balance of probabilities.
See
Sardi and
Others v Standard and General Insurance Co. Ltd
1977
(3) SA 776
(A) at 780 C - H. In deciding whether the plaintiff has
succeeded in discharging this onus the Court has to view the totality
of
the evidence led during the trial.
[19]
It is common cause that there is a consistency in
the versions presented by Molise prior to his testimony in court. The
common thread
in those versions is that the accident occurred as a
result of the deceased losing control of his vehicle. Those versions
are irreconcilable
with the version presented in court. The
inevitable consequence of the aforesaid contradiction is a serious
dent to the credibility
of Molise who is the plaintiff’s sole
witness.
[20]
The only conclusion that this Court can come to
therefore is that the plaintiff has failed to discharge the onus to
prove her case
on a balance of probabilities.
[21]
In the result I make the following order:
21.1
The
plaintiffs claim is dismissed.
21.2
The
plaintiff is ordered to pay the defendant's costs.
F
f
S. A. M. BAQWA
JUDGE OF THE HIGH COURT OF SOUTH
AFRICA
GAUTENG DIVISION, PRETORIA
Heard on:
28 April
2017
Delivered
on
: 28 April 2017
For
the Plaintiff:
Advocate R. G. Bowles
Instructed
by:
Savage Jooste & Adams
For the
Defendant:
Advocate
R. Strydom
Instructed
by:
Tau Phalane Incorporated