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[2017] ZAFSHC 131
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MEC for Police, Roads and Transport v Bornman (A51/2016) [2017] ZAFSHC 131 (17 July 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
YES
Case
No.: A51/2016
In
the matter between:-
MEC
FOR POLICE, ROADS AND
TRANSPORT
Appellant/Defendant
and
BORNMAN,
CHRISTIAAN HIERONYMUS
Respondent/Plaintiff
CORAM:
MUSI, AJP
et
DAFFUE,
Jet
HEFER, AJ
HEARD
ON:
19 JUNE 2017
DELIVERED
ON:
17 AUGUGST 2017
[1]
This is an appeal against the judgment of a single judge of this
division. The appeal is with the leave of the court
a quo.
[2]
On 4 June 201O at approximately 17h30, Mr Bornman (respondent) was
driving his motor vehicle on the R59 road between Vredefort
and
Viljoenskroon. A collision occurred as a result of which he sustained
serious injuries and his car damaged beyond repair. The
court a
quo
found that the collision occurred because he drove over a
pothole, lost control over his vehicle which veered off the road,
overturned
and came to a stop in bushes adjacent to the road. It also
found that the Member of the Executive Council for Police, Roads and
Transport in the Free State Province (MEC) (appellant)
was
negligent by not properly maintaining the road. It further found that
the MEC is liable for 60% of the respondent's damages.
[3]
Mr. Bornman, who worked at Krugersdorp and stayed at Vredefort,
testified that on 4 June 2010 he was on his way home from work
on 4
June 2010 at approximately 17h30. He knows the R59 well because he
travels on it to work every Sunday and back home every
Friday. He was
driving at approximately 100km/h when he approached potholes in the
road. He normally avoided the potholes by driving
in the lane of
oncoming traffic. On this particular day he could not do so because
there was an oncoming car that was about hundred
meters away from
him. He reduced speed to 80 km/h and drove over the potholes, bumped
his head against an object in the car and
cannot recall what happened
thereafter. The potholes were spread over a distance of approximately
hundred meters. They were approximately
5cm deep and 50cm wide.
[4]
Mrs. Elizabeth Margaretha Bornman testified that she is the
respondent's wife. On 4 June 2010 at approximately 18h00 she was
at
home when she received a phone call from an unknown person. The
person informed her that her husband was involved in a collision.
She
rushed to the scene where she saw her husband. She tried to
communicate with him but he was disorientated and only
said: 'the pothole, the pothole'. He also asked her about the
children because he thought they were with him in the car. She
informed
him that the children were not with him at the time of the
collision. She noticed that he had an open wound above his right eye
which was bleeding profusely. She took him to Potchefstroom
Medi-Clinic, where she was asked general questions relating to,
inter
alia,
what he ate and what previous medical procedures he had
undergone. He was treated and thereafter transferred to
Netcare Krugersdorp hospital. She could not communicate
properly with him because he was disorientated.
[5]
She knows the R59 well because she travels daily on that road.
There were potholes on the road. Some
of them were
approximately 20 to 30 cm deep
and
approximately half a meter wide or in circumference.
Approximately five or six months after the incident, she took
photographs
of potholes which were already repaired on that road.
[6]
The
medical records of Medi-Clinic Potchefstroom and Netcare Krugersdorp
were 'discovered'
[1]
by the
respondent. The following notes were made at Medi-Clinic
Potchefstroom by the
nurse:
"Pasient
was 'n passasier, betrokke in m.v.a. kan nie onthou of hy
sitplekgordel gedra het nie. (R) oogbank het 'n Jasersie,
kla van
nekstyfheid en lae rugpyn."
[2]
And
"19:50
Manlike pasient loop afdeling in alleen. hy is verwelkom en gemaklik
gemaak, pasient bekend aan omgewing en pasientregte.
Vitale data soos
aangedui. Pasient gee bogenoemde geskiedenis, hy kom oak
gedisorienteerd voor. Laserasie (R) oogbank. Dr K. v.
Zyl in
afdeling, sy sien pasient:
-
Medikasie voorgeskryf
-
vir X-trale.
20:10
Pasient na radiografie afdeling op 'n bed, toestand bevredigend.
Nekstut
in posisie.
21:00
Pasient terug vanaf radiografie, wond geheg met vicryl rapide en
nylon 4/0 21:20
Pasient terug na
x-trale vir 'n scan.
22:30
Pasient terug vanaf x-trale, toestand bevredigend."
[3]
[7]
According to the medical records the respondent was admitted at
Netcare Krugersdorp on 5 June 2010. The following note was made
on
the medical record:
“
Pasient
kan nie gebeure 100% verduidelik nie, a.g.v nekbesering +
harsingskudding. Aankomende motor horn klaarblyklik verblind met
hoofligte en aan die verkeerde kant
v.d.
pad gery. Pasient het van die pad gery, daar was 'n wal, die bakkie
moes "deur die lug getrek het" - boom getref,
rol,...
Ongelukstoneel was baie bebos en moeilik sigbaar
a.g.v.
"donkerte" -17:50nm.”
[4]
[8]
On 5 June 2010 he was seen by Dr. Fourie, a neurosurgeon, who
recorded that there is no history of loss of consciousness and
further that he was neurologically intact.
[9]
An accident report was also 'discovered'. In terms of the accident
report, which was ostensibly made on 5 June 2010, although
the date
stamp reads 4 June 2010, the respondent drove over a pothole, lost
control of the vehicle as a result of which the vehicle
overturned.
[10]
Mr. Matthews Manyike testified that between 1 June 2010 and 3 June
2010 he repaired the potholes on the R59, between Vredefort
and
Viljoenskroon. There were no potholes on that road on 4 June 2010.
[11]
Mr. Cornelius Dykman testified that he is an insurance broker. The
respondent's son called him in order to process the claim
for the
motor vehicle which the respondent drove. Mr. Bornman Jr. informed
him that the collision occurred as a result of the head
lights of an
oncoming vehicle which blinded the driver of the insured vehicle as a
result of which it veered off the road and the
vehicle overturned. He
confirmed that the insurance company accepted the claim and paid the
respondent for his loss as a result
of what his son told Dykman and
by extention the insurance company.
[12]
Mr Motlalentoa Jacob Motshoane testified that he is the Hospital
Manager of Krugersdorp Netcare Hospital. He confirmed that
although
he is not the author of the notes referred to above, they were indeed
taken from the respondent's hospital file.
[13]
It
is trite that a court of appeal should defer to the factual findings
of the trial court. As a result of this, an appellate court
is always
slow or reluctant to upset the factual findings of the trial court.
Where there has been no misdirection on fact it is
presumed that the
factual findings of the trial court are correct, unless the appellate
court is convinced that the factual findings
of the trial court are
wrong.
[5]
[14]
Mr Moerane, on behalf of the appellant, contended that the trial
court misdirected itself on various aspects. He submitted
that the
trial court did not give proper consideration to the totality of the
facts. He further submitted that the respondent and
his wife were
unsatisfactory witnesses and that the respondent's version was
wrongly accepted as credible.
[15]
Mr Botha, on behalf of the respondent, contended that the trial court
was correct in its findings, judgment and order. He submitted
that
the respondent and his wife were credible witnesses and that their
version was probable. He further submitted that the hospital
records
or notes were inadmissible hearsay evidence, which should not have
been admitted by the trial court.
[16]
It is not clear, from the record and the judgment of the court a
quo,
on what basis the hospital records were admitted as evidence.
Initially the court
a quo
intimated that it would accept it
provisionally subject to the authors thereof testifying. Regardless
of Mr Botha's countless objections
that it is inadmissible hearsay
evidence and Mr Moerane's insistence that it is admissible because it
was discovered by the respondent,
the trial court failed to make a
finding with regard to the admissibility of the evidence. The trial
court went directly to the
weight to be attached to the evidence
without first considering whether that evidence is
admissible. This in my view
was a misdirection. One can only attach
weight to admissible evidence. Inadmissible evidence, by its very
nature, carries no weight.
[17]
The trial court found that the potholes in question were in the area
where the collision occurred. It was common cause that
the potholes
were situated approximately 900 metres from where the respondent's
car left the road. Although the word 'area' is
wide enough to include
a place in a radius of 900 metres to a kilometre, on the facts of
this case it can hardly be said that 900
metres is in the vicinity or
area of the accident.
[18]
The trial court found that 'the fact that the respondent only left
the road some 900 metres away from the area of the potholes,
after
hitting a pothole seems to indicate that his speed was excessive at
the time'. Speed can never scientifically or logically
be calculated
or determined devoid of time and distance. In order to say a motor
vehicle was driven with excessive speed
one needs time and
distance. In this case the trial court only knew the distance that
the motor vehicle travelled without any evidence
relating to the
other crucial ingredient: the time it took the car to travel that
distance.
[19]
The trial court failed to properly assess the probability of a motor
vehicle hitting a pothole and only veering off the road
900 metres
from the place where it drove over the pothole. It failed to properly
consider the failure by the respondent to call
important witnesses.
It failed to properly assess and evaluate the improbabilities in the
respondent's version.
[20]
The appellant denied that his negligence caused the collision. In the
alternative it pleaded that the respondent was contributory
negligent
inter alia,
because he failed to avoid the potholes in the
road when he could and should have done so. The trial court found
that the appellant's
alternative plea 'indicates that it was aware of
the condition of the road in question and of the presence of potholes
thereon'.
Although the appellant did not preface the alternative plea
to the effect that it is only if his plea is rejected that the
alternative
should be considered; it is standard practice that the
alternative plea is only considered after the
plea
has been rejected. The trial
court misdirected itself by finding that the alternative plea is
indicative
of knowledge of the presence of potholes.
[21]
T
he court a
quo
misdirected itself by giving unsatisfactory or insufficient
reasons for its conclusions and it overlooked or misinterpreted
important
facts and probabilities. This court is therefore at large
to disregard most of the factual findings of the court
a
quo.
[22]
I propose to deal with the hospital records first because they have a
bearing on the testimony of the respondent and his wife.
Although the
hospital records were not discovered in terms of the uniform rules,
they were delivered in terms of Rule 36(4) of
the Uniform Rules by
the respondent to the appellant. They were therefore discovered in
the wider sense of the word. There was
no agreement between the
parties as to the admissibility of the hospital records. The contents
of the documents were also in dispute.
The respondent objected to the
documents being used during cross-examination, without the authors
thereof testifying. As
stated above the trial judge did not
make
any finding with regard to the
admissibility of the documents.
It is
however
implicit in the trial judge's judgment that the documents were found
to be admissible but scant weight was given thereto.
[23]
At some stage the trial judge, correctly, intimated that
cross-examination on the documents would be allowed subject to the
authors thereof testifying. The authors of those documents did not
testify. The trial judge did not make any express finding about
the
admissibility of the evidence after the failure by the appellant to
call those witnesses.
[24]
Discovery
is a pre-trial mechanism to facilitate a fair hearing. It prevents
trial by-ambush. It ensures that before trial
both parties are
aware of all the relevant documents. The issues to be taken to the
trial
are
thereby delineated and disputes narrowed so that only the
controversial aspects of the trial
need
to be adjudicated upon. In
Air
Canad
a
[6]
the purpose of discovery was described
as follows:
"Discovery
is one of the few exceptions to the adversarial character of our
legal process. It assists parties and the court
to discover the
truth. By so doing, it not only helps towards a just determination;
it also saves costs. A party who discovers
timeously a document fatal
to his case is assisted as effectively, although less to his liking,
as one who discovers the winning
card; for he can save himself and
others the heavy costs of litigation."
:
[25]
A discovered document is not
ipso
facto
admissible.
Even if a party admits the authenticity of a document it does
not automatically become admissible. There
is a difference between
the admissibility of a document and the authenticity thereof. It is
not enough to aver that a document
has been discovered by
the
opposition and that therefore the
correctness
of
its
contents
need not be proved. The legal position was explained thus in
Knouwds
[7]
"Hofrear
35 (10) skep 'n uitsondering tot die algemene reel dat 'n dokument
nie sondermeer van die Balie af ingehandig kan
word nie. Die algemene
reel is dat 'n dokument alleenlik ingehandig kan word deur 'n persoon
soos, byvoorbeeld, die outeur daarvan
of 'n persoon wat die auteur se
handskrif kan identifiseer. Wanneer 'n
dokument deur 'n gedingvoerder se
teenstander blootgel
word en hy versoek om dit by die
verhoor voor te le, hoef die dokument
nie deur getuienis
geTdentifiseer of as eg bewys te word nie. (Sien Schmidt
Die
Bewysreg
te
234.) 'n Dokument is egter nie normaalweg getuienis van die inhoud
daarvan nie. Dit is alleenlik bewys van die feit dat die brief
deur
die outeur geskryf is. Die inlewering van 'n dokument deur 'n getuie
wat in staat is om dit te identifiseer, bewys
nie dat wat
die auteur daarin geskryf het waar is nie.
(Sien
Weintraub
v Oxford Brickworks (Ply) Ltd
1948
(1) SA 1090
(T) te 1093 en
Da
Mata v Otto NO
1971
(1) SA 763
(T) te 769.) Wat die betrokke dokument bevat is
hoors$ getuienis en daarom ontoelaatbaar tensy dit onder een of ander
uitsondering
op die hoarse reeI ingebring kan word. (Vgl
Smith
and Others v Strydom and Others
1953
(2) SA 799
(T) te 805 - 6.) Die reel dat die inhoud van 'n dokument
hoors getuienis is, geld oak met betrekking tot 'n dokument wat
ingevolge
Hofreel 35 (10) ingehandig word. Die
inhoud
van so
'n
dokument is derhalwe ontoelaatbaar as getuienis van
wat
in die brief staan tensy dit onder een of ander van die uitsonderings
op die hoors reel val."
[8]
[26]
The authors of the hospital records did not testify. The
contents of the hospital records irrespective of whether they
were
discovered by the respondent remain hearsay evidence. They are
inadmissible unless they can be admitted under one or other
common
law exception to the hearsay rule or the Law of Evidence
Amendment Act
[9]
or the Civil Proceedings Evidence
Act.
[10]
[27]
They do not fall under any common law exception to the
inadmissibility of hearsay evidence. The applicability of the two
other
bases for the admissibility of hearsay evidence must therefore
be explored. Section 3(1) of the Law of Evidence Amendment Act reads
as follows:
"Subject
to the provisions of any other 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; or
(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."
[28]
Sections
3(1)(a) and (b) are not applicable. It has correctly been stated that
the factors mentioned in
section
3(1)(c) are inter-related and should be
considered cumulatively
[11]
.
I turn to consider those factors in light
of the
circumstances
of this
case.
(i)
The nature
of the proceeding
s
:
These
are civil proceedings wherein the admissibility of discovered
documents is in dispute.
(ii)
The
nature
of the evidence:
It
is documentary evidence relating to what the hospital personnel, at
the two hospitals, were told and by whom they were told what
they
recorded. The party who has discovered the documents contended that
they are inadmissible hearsay because the authors thereof
did not
testify. The other party contended that the documents are admissible
because they were discovered.
(iii)
The
purpose of the
evidence:
The
appellant wants to prove that the source of the contents of the
documents is the respondent.
(iv)
The
probative value
of
the
evidence:
The
relevant considerations here are relevance and reliability.
[12]
The evidence is indeed relevant because it speaks to the credibility
of the respondent. Insofar as its reliability is concerned
the
respondent demonstrated that the information on the hospital records
is not consistent and therefore unreliable. There are
many issues
which are not properly explained in the medical records. In the
medical records of Medi-Clinic it is stated that the
history
was given by the
respondent
but
it
is also stated that he appeared to be disorientated. At the Netcare
Krugersdorp Hospital it was recorded that the respondent
could not
explain the events hundred percent because of the neck injury and
concussion. In the absence
of
an
explanation
by
the
medical
staff at
both
hospitals it would be risky to selectively choose the correct state
of affairs. The trial court had the same difficulty.
(v)
Why evidence is not given by the authors or creators of the
documents:
There is no evidence whatsoever on record as to why
the authors of those documents were not called as witnesses.
The
respondent indicated from the beginning that the evidence is
hearsay evidence and that he would cherish the opportunity to
cross-examine
those witnesses. The appellant therefore knew from the
beginning that there was vociferous objection against the admission
of the
hearsay evidence. The trial court at some stage provisionally
allowed, as it may, cross examination based on those documents
subject to the witnesses being called to testify. The condition was
not fulfilled. The non-fulfilment of the condition meant that
the
evidence became inadmissible.
(vi)
Prejudice:
Every
party has the right to cross-examine any witness called to testify on
behalf of another party. Hearsay documentary evidence
curtails that
right. The respondent was put at a disadvantage because he was unable
to point out the incongruity in the statements
and to solicit a
response from its authors. It would be extremely prejudicial to the
respondent to find that what is alleged to
have been said by him in
the hospital records was indeed said by him, without him being able
to cross-examine the authors.
(vii)
Other
factors:
There
are no other factors relevant to the facts in this case which require
consideration.
[29]
In my view, after considering all the relevant factors mentioned
above, the hearsay evidence contained in the hospital records
cannot
be admitted on the basis of the factors set out in section 3(1)(c).
This is so, specifically, in light of the prejudice
to the respondent
and the absence of a reason why the witnesses were not called.
[30]
The other statutory basis on which the hearsay evidence could be
admitted is in terms of the Civil Proceedings Evidence Act.
Section
34 of the Civil Proceedings Evidence Act reads as follows:
"(1)
In any civil proceedings where direct oral evidence of a fact would
be admissible, any statement made by a person in a
document and
tending to establish that fact shall on production of the original
document be admissible as evidence of that fact,
provided-
(a)
the person who made the statement either-
(i)
had personal knowledge of the matters dealt with in the statement; or
(ii)
where the document in question is or forms part of a record
purporting to be a continuous record, made the
statement (in so far
as the matters dealt with therein are not within his personal
knowledge) in the performance of a duty to record
information
supplied to him by a person who had or might reasonably have been
supposed to have personal knowledge of those matters;
and
(b)
the person who made the statement is called as a witness in the
proceedings unless he is dead or unfit by reason of his bodily or
mental condition to attend as a witness or is outside the Republic,
and it is not reasonably practicable to secure his attendance
or all
reasonable efforts to find him have been made without success.
(2)
The person presiding at the proceedings may, if having regard to au
the circumstances of the case he is satisfied
that undue delay or
expense would otherwise be caused, admit such a statement as is
referred to in subsection (1) as evidence in
those proceedings-
(a)
notwithstanding that the person who made the statement is
available but is not called as a witness;
(b)
notwithstanding that the original document is not produced, if in
lieu thereof there is produced a copy of the original document
or of
the material part thereof proved to be a true copy."
[31]
It is clear that the medical records could not be admitted on this
basis too. First, because the authors of the statement were
not
called as witnesses, there was also no indication that it was not
reasonably practicable to secure their attendance at court
neither
was there evidence that any, let alone, all reasonable efforts to
find them were made without success. Second, because
there was no
inquiry whatsoever by the trial judge as to whether undue delay or
expense would be caused if the statements were
not admitted.
[32]
The hospital records were not generated by people employed by the
state but people employed by private hospitals. Those documents
are
therefore private documents because they are not public documents.
The accident report on the other hand was
ex
facie
generated by a police officer, who
is a public
officer.
Is the accident report a public document which is on mere production
admissible?
[13]
A public document is a document made by a public officer
in
the
execution of a public duty, which is
intended
for public use and
to
which the
public
has
a
right
of
access.
[14]
[33]
It
cannot be gainsaid that a police officer is a public official. Did
the police officer in this matter make the accident report
in the
execution of a public duty? The
public
official
is
required
to
make
the
report
in
the
performance
of
a
duty to ascertain the truth and to record it accurately
[15]
.
In
Doe
dem.
France
v
Andrews
[16]
it
was
stated
that:
"The
principle upon which entries in a register are admitted is not that
the person who makes the entry does it contemporaneously
or of his
own knowledge... It depends upon the public duty of the person
who keeps the register to make such entries in it,
after satisfying
himself of their truth. If he does so satisfied himself, and makes
the entry, it is not open to the contesting
party to exclude the
evidence by showing that he might have obtained the information on
which he acted in a more businesslike manner."
[34]
It is clear that a police officer who completes an accident report or
notes the particulars thereof in an occurrence book has
a duty to
ascertain the truth as to how the accident occurred and to record it
accurately. The accident report form
inter alia
states that a
police officer or traffic officer must make an attempt to
obtain witnesses to an accident. It states that attempts
must be made
to find a person or persons who can give valuable information about
the circumstances relating to
the
accident and/or who can assist
with the identification of deceased or seriously injured
persons
involved in the accident. It further states that in the event
of a reliable witness residing or working in another
city or town an
affidavit must as soon as possible be taken from that person either
at the scene or at the police station or traffic
department, where a
police docket is opened.
[35]
It is therefore clear that there is a duty on a police officer to
satisfy himself or herself of the truth of the information
contained
in the accident report. In this case it cannot be said that the
police officer concerned attempted to satisfy himself
about the truth
of the report. The information in the report was given by the
respondent's son-in-law or his daughter. Neither
of them was at the
scene when the collision occurred. Neither of them was the driver of
the vehicle concerned. The information
contained in the report was
given by a person who had no personal knowledge of how the collision
occurred. The report is based
on hearsay and is unreliable. It does
not meet the requirement that the document must be made in the
execution of
a public duty.
[36]
It also does not meet the requirements for the admissibility of a
private document because it contains hearsay evidence and
the person
who made the statement was not called. It must suffer the same fate
as the medical records.
[37]
The statement made by the respondent's son to the insurance broker,
Mr Dykman, is on a different footing. It is admissible
because the
probative value of that evidence depends on the credibility of Mr
Dykman. It is therefore not hearsay evidence. It
is admissible. I now
turn to consider the merits and demerits off all the admissible
evidence.
[38]
The parties correctly agreed that the onus to prove that the
appellant was negligent rests on the respondent. The appellant
on the
other hand was saddled with the onus to prove that the respondent was
contributory negligent, in the event that the trial
court found that
the appellant was negligent.
[39]
The respondent is the only witness who testified about how the
collision occurred. He is for all intents and purposes a single
witness. In terms of section 16 of the Civil Proceedings Evidence
Act, judgment may be given in any civil proceedings on the evidence
of any single competent and credible witness. In
Daniels
v General Accident Insurance Co Ltd
[17]
it was said:
“
...
although there is apparently no 'cautionary rule' in civil cases as
in criminal matters where proof beyond reasonable doubt
is required,
the single witness, more particularly
where
he is one of the parties, must be credible to the extent that his
uncorroborated evidence must satisfy the Court that on the
probabilities it is the truth.”
[18]
[40]
The respondent alleged that there were potholes in that road on 4
June 2010, while the appellant alleged that there were no
potholes on
that road in the vicinity where the collision occurred. The proper
approach to follow when faced with two mutually
destructive versions
was succinctly set out in
National
Employers General Insurance Co Ltd v Jagers
[19]
where it was stated that:
"It
seems to me, with respect, that in any civil case, as in any criminal
case, the
onus
can ordinarily only be discharged by adducing
credible evidence to support the case of the party on whom the
onus
rests. In a civil case the
onus
is obviously not as heavy
as it is in a criminal case, but nevertheless 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 plaintiffs
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.
This
view seems to me to be in general accordance with the views expressed
by COETZEE J in
Koster
Ko-operatiewe Landboumaatskappy Bpk v Suid-Afrikaanse Spoorwee en
Hawens (supra
)
and
African
Eagle Assurance
Co
Ltd
v Gainer (supra
).
I would merely stress however that when in such circumstances one
talks about a plaintiff
having
discharged
the
onus
which
rested
upon
him
on
a
balance
of
probabilities
one really means that
the
Court is satisfied on a balance of probabilities that he was telling
the truth
and
that his version was therefore acceptable. It does not
seem
to me to be desirable for a Court first to consider the question of
the credibility of the witnesses as the trial Judge
did
in
the present case, and then, having concluded that enquiry, to
consider
the
probabilities
of the
case,
as
though
the two
aspects
constitute separate fields
of
enquiry.
In
fact,
as
I
have
pointed
out,
it
is
only
where
a
consideration of
the
probabilities
fails
to
indicate
where
the
truth
probably
lies,
that
recourse
is
had
to
an estimate of relative credibility apart from the
probabilities.”
[20]
[41]
The respondent's testimony was that after he hit the pothole he
bumped his head against something as a result of which he lost
consciousness or had memory loss. However when he was asked by his
attorney, during an inspection
in loco
which was held by the
parties, to explain exactly what happened on the day of the accident,
he did not mention that he bumped his
head against something. When
this inconsistency was pointed out to him, during cross-examination,
he initially said that he was
never asked, at the inspection
in
loco,
to explain what happened on the day of the accident. He was
constrained to admit that he was indeed asked after the video of the
inspection was shown to him.
[42]
He confirmed that he deposed to an affidavit on 14 February 2011 and
that he did not mention bumping his head against something
in the
vehicle. When he was asked why he did not mention it he said that he
did not think that it was important to explain how
the accident
happened. This is a senseless answer. The reason for making the
affidavit was indeed to explain the accident damage
to his vehicle
and the injuries sustained by him. He conceded that the fulcrum
of his version was that he hit a pothole as
a result of which he
bumped his head and could not keep his motor vehicle under control.
It was also pointed out to him that in
his affidavit he categorically
stated that 'the vehicle collided with trees along
the road which caused
injuries to myself.
When
this incongruity was pointed out to him his response was that the
injuries that he sustained were caused more by the trees
than by him
bumping his head in the car.
[43]
According to the respondent the potholes were spread over a 100 metre
area. His vehicle veered off the road approximately 900
metres from
the last pothole therefore a kilometre from the first pothole. He
could not explain how the vehicle travelled this
distance. His
explanation was that he was unconscious after hitting the pothole or
he cannot remember what happened after he hit
the pothole. If he was
conscious it stretches credulity to accept that he could drive the
vehicle for a distance of 900 metres
after having driven over the
pothole and still blame the pothole for veering off the road. On the
other hand, if he was unconscious
after driving over the pothole it
is highly improbable that an unconscious person would be able to
'drive' a motor vehicle
for 900 metres. If his motor vehicle
drove over the first pothole it means that he was unconscious behind
the steering wheel for
an entire kilometre before the vehicle veered
off the road. This is highly improbable.
[44]
The respondent could also not explain why he could not stop his
vehicle before the potholes, wait for the oncoming vehicle
to pass
and then execute the manoeuver that he is used to executing in order
to avoid driving over the potholes.
[45]
The respondent failed to call his son as a witness. An
unexplained failure to
call
a witness may lead to a negative inference. In
Elgin
Fireclays Limited v
Webb
[21]
it was said that:
“
...
With regard to this request, it is true that if a party fails to
place the evidence of a witness, who is available and able
to
elucidate the facts, before the trial Court, this failure leads
naturally to the inference that he fears that such evidence
will
expose facts unfavourable to him. See
Wigmore
(secs.
285 and 286}.) But the inference is only a proper one if the evidence
is available and if it would elucidate the facts.”
[22]
[46]
Whether such inference should be made is case specific and grounded
in common sense. A negative inference should not be made
in order to
fill gaps in the evidence or to convert speculation into inference.
The court should be careful not to create evidence
from non-evidence
by attaching undue significance to a failure to call a witness. The
uncalled witness must be able to shed
light on an important
factual controversy. An adverse inference should not be drawn
if a case may have been sufficiently
presented without the witness.
The relationship between the absent witness and the party who did not
call him or her is also important.
The closer the relationship, the
stronger the inference that the witness was not called out of fear
that he
or
she
will contradict the party's case.
[23]
[47]
The respondent's son who instituted the insurance claim on his behalf
told the insurance broker that the collision occurred
because the
respondent was blinded by the lights of an oncoming vehicle and he
veered off the road. He did not mention anything
about a pothole. The
claim was paid out by the insurance company based on this version.
There is no explanation whatsoever as to
where or from whom his son
got this version. His son is the only person who could explain from
whom he got that version. The
respondent elected not to call
his son in order to clarify this important aspect of his case.
There was no indication from
the respondent that his son was
unavailable to testify. No reason was given for the failure to call
his son. The ineluctable inference
is that he feared that his son
would give testimony that is destructive to his case. This failure
surely calls for a negative inference
to be made against the
respondent. The respondent's version that he informed Mr Dykman of
the correct reason for the accident was
not put to Mr Dykman during
cross-examination.
[48]
Mr Botha requested us to make a negative inference against the
appellant for his failure to call Mr Manyike's supervisor. The
facts
of this case do not justify such inference. The supervisor's
testimony would not have elucidated any factual dispute; it
would
have served to corroborate or contradict a case that was already
sufficiently presented. Doing so would amount to creating
evidence
from non-evidence.
[49]
The respondent testified that he was unconscious or that he cannot
recall what happened immediately after the collision. He
however had
the presence of mind to give his wife's cellular phone number to the
stranger who was the first person at the scene.
This selective
unconsciousness or memory loss was also not properly explained.
[50]
The respondent's wife testified that when she got to the scene her
husband was disorientated and said: 'the pothole, the pothole'.
He
also asked her where the children were whereas the children were not
present in the vehicle. I find it improbable that his wife
would not
have told her son that the respondent mentioned a pothole as the
cause of the accident. She testified that after the
accident she saw
the unrepaired potholes. Strangely though, she does not take a
photograph of the potholes. She took photographs
of a repaired
pothole months after the collision.
[51]
The trial court found that Mr Manyike's testimony was improbable
because he remembered the exact dates, 1 - 3 June 2010, when
he
repaired the potholes in that road but could not remember the dates
of the other occasions on which he worked on that road.
The trial
court did not factor in Mr Manyike's testimony that records were kept
of the repairs done on that road and that he checked
the records
before testifying. Although the records were not discovered by the
appellant, Mr Manyike's evidence on thisI score
stood
uncontroverted. Although he testified that the repairs were of a
temporary nature, his testimony that such repairs last for
approximately 5 to 6 months was unchallenged. Therefore on his
version there could not have been potholes the day after he repaired
the potholes in that road.
[52]
I am satisfied that the respondent's version was neither credible nor
probable. Considering the incidence of the onus I am
not satisfied
that the respondent succeeded in proving on a balance of
probabilities that the appellant's negligence was the cause
of the
collision.
[53]
There is no reason why the costs in the court
a quo
and in
this court should not be paid by the respondent.
[54]
I accordingly make the following order:
(i)
The appeal succeeds with costs.
(ii)
The order of the court a
quo
is set aside and replaced with
the following: The claim is dismissed with costs.
___________________
C.J.
MUSI, AJP
I
concur.
___________________
J.P.
DAFFUE, J
I
concur.
___________________
J.J.F.
HEFER, AJ
On
behalf of Appellant:
Adv M.T.K. Moerane SC with
Adv T.L. Manye
Instructed by
State Attorney
BLOEMFONTEIN
On
behalf of Respondent:
Adv J.N.W. Botha
Instructed by
Van Der Merwe &
Sorour
BLOEMFONTEIN
[1]
The documents were not discovered in terms of Rule 35 of the Uniform
Rules.
[2]
"Patient was a passenger, involved in motor vehicle accident,
cannot remember whether he wore his safety belt. (R) Eyebrow
had a
laceration, complaining of stiffness in the neck and pain in the
lower back."
(My
Translation
[3]
"19:50 Male patient walks in alone, he is welcomed and made
comfortable, patient familiar with environment and
patient
rights.
Vital
data as
indicated.
Patient
gives
the
above-mentioned
history,
he
also
appears
disoriented.
Laceration
(R)
eyebrow.
Dr.
K.
v.
Zyl
in
section,
she
sees
pa
ti
ent:
Medication
prescribed for X- rays.
20:10
Patient send to radiography department on a bed, condition
satisfactory.
Neck
brace in position.
21:00
Patient back from radiography, wound attached with
vicryl rapide and nylon 4/0.
21:20 Patient returns to x-rays for
a scan.
22:30
Patient back from x-rays, condition satisfactory."
(My
translation)
[4]
"Patient cannot
explain
events
100%,
due
to
neck
injury+
concussion.
Oncoming vehicle
apparently
blinded with headlamp and on the wrong side of
the
road. Patient veering off the road, there was
a
culvert, the bakkie had to 'travel through the
air'
·
hit
the
tree, roll,
...
Accident
scene had thick bushes and visibility was poor
due
to 'Darkness'· 17: 50nm."
(My
translation)
[5]
R
v Ohlumayo and Another
1948
(2) SA 677
(A. D.) at 706
[6]
Air
Canada v Secretary of State
for
Trade
(1983)
2 AC 394
, as quoted in
Santam
v Sega
l
2010
(2) SA 160
(NPD)
at para 6.
[7]
Knouwds
v Administrateur, Kaap
1981(1)
SA 544 (KPA).
[8]
At 551G to 552 A
[9]
Act 45 of 1988.
[10]
Act 25 of 1965.
[11]
Maize
Board v Hart
2005
(5) SA 480
(0) at p487.
[12]
Maize
Board
supra at 488.
[13]
See section 18 of the Civil Proceedings Evidence Act which reads:
"(1)
Whenever any book or other document Is of such a public nature as lo
be admissible in evidence
on
its mere production from proper
custody, any copy thereof or extract therefrom proved to be an
examined copy or extract or purporting
to be signed and certified as
a true copy or extract by the officer to whose custody the original
is entrusted, shall be admissible
in evidence.
(2)
Such officer shall furnish such certified copy or extract to any
person applying therefor, upon payment of an amount in accordance
with the tariff of fees prescribed by or under any law or, if no
such tariff has been so prescribed, an amount in accordance
with
such tariff of
fees
as the Minister in consultation
with the Minister of Finance may from time to time determine."
[14]
Northern
Mounted Rifles v O'Callaghan
1909
TS 174
at 176-177.
Matthyssen
Busvervoer (Edms) Bpk v Voorsitter, Plaaslike
Padvervoerraad.
Kimberley
1987
(4) SA 490
(NC) at 503.
[15]
Rex
v De Villiers
1944
(AD) 493 at 500 - 502.
[16]
15 Q.B. at p. 758, as quoted in
De
Villiers
fn 10
[17]
1992 (1) SA 757 (C).
[18]
At 760A·
B.
[19]
1984
(4)
SA
437
(ECD).
See
also
SFW
Group
&
Another
v
Martell
et
Cle
&
Others
2003
(1)
SA
11
(SCA)
at
141
- 150.
[20]
At 440-441.
[21]
1947 (4) SA 744
(A).
[22]
At 749 - 750.
[23]
Galante
v Dickinson
1950
(2) SA 460
(A) at 465;
ABSA
Bank Ltd v Natasha Investment Company Pty Ltd
(1996)
ZASCA 59
(29 May 1996) para 15;
S v Ramokolo
(2011) ZASCA 77
{26 May 2011) para 19.