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[2016] ZAGPPHC 252
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Nhlapo NO v Moeketsane (30183/2003) [2016] ZAGPPHC 252 (20 April 2016)
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IN THE HIGH COURT OF SOUTH AFRICA
NORTH GAUTENG, PRETORIA
20/4/2016
30183/2003
Not reportable
Not of interest to other judges
Revised
In the matter between:
D R NHLAPO
N.O.
PLAINTIFF
and
P
MOEKETSANE
DEFENDANT
JUDGMENT
MOLOPA-SETHOSA J
[1] The plaintiff, David
Rajane Nhlapo N.O. ("plaintiff '), in his capacity as the
curator
ad litem
to Ramphale Jacob Nhlapo ("claimant"),
has instituted an action against the Defendant for damages arising
out of a motor
vehicle collision which occurred on 4 March 1994 at
Witsieshoek, Qwaqwa, between a motor vehicle with registration
letters and
number […] ("the insured vehicle"),
there and then driven by one T Motloung ("the driver of the
insured vehicle")
and the claimant who was a pedestrian at the
time of the collision.
[2] It is common cause
that the claimant, R J Nhlapo was entitled to pursue a claim against
the Multilateral Motor Vehicle Accidents
Fund ("the MMF"),
in respect of that accident and pursuant to those rights he
instructed attorney Moeketsane ("the
defendant"), to lodge
and prosecute that claim for compensation. That claim would have
fallen and/or would have been dealt
with pursuant to the Multilateral
Motor Vehicle Accidents Fund Act 93 of 1989 ("the 1989 Act"),
and not the Road Accident
Fund Act 56 of 1996 ("the 1996 Act"),
which is currently applicable. In essence both acts provide for the
same remedies
for a person having been injured in a collision.
[3] The defendant,
Moeketsane, settled this claim with the MMF, and issued a cheque in
favour of the claimant in the amount of R10
105.30 on the basis of
him having agreed with the fund, in accepting their tender of an
appointment of 60/40 in favour of the MMF.
The plaintiff, on behalf
of the claimant, disgruntled with the aforesaid settlement has now
instituted an action against the Defendant
for damages as set out in
paragraph [1] here above.
[4] At the commencement
of the trial, the parties by agreement made an application for the
separation of merits and quantum in terms
of Rule 33(4) of the
Uniform Rules of the Superior Court, which order was granted. The
matter thus proceeded on the merits and
quantum was postponed
sine
die.
[5] The only issue for
determination before this court is whether there was negligence on
the part of the driver of the insured
vehicle, T Motloung, and
whether there was contributory negligence on the part of the claimant
and the extent thereof, if any.
[6] The Plaintiff led the
evidence of Morake Johannes Morake. He testified that he is a tracer
and a Methodist church preacher involved
in church affairs. That he
is 59 years old. Further that he has lived in the Witsieshoek area,
Qwaqwa, since 1970.
[7] He testified that he
knew the Tseki shopping centre very well. That he knows the main road
leading through the shopping centre
very well, and that the shopping
centre does have lots of lights and is well lit. Further that the
surface of the road leading
to the shopping centre is a tarred
surface, and that the road has got an edge; that soon after the
yellow line there is gravel.
He further testified that the shopping
centre itself has a pavement which runs for about 200m.
[8] He testified that in
March 1994 he was resident at Witsieshoek. That the shopping centre
was there and/or existed in March 1994.
He further testified that he
does not drive a motor vehicle at all.
[9] He testified that
Tseki road comes from a Northerly direction, turns around and runs
from the East to the West. That there are
houses on the side and the
shopping centre is situated on the left hand/Southern side of the
road.
[10] He testified that
the area is high up and that the lights can brighten an area for a
distance of about 600 m, also considering
the built up/residential
area alongside the road.
[11] Under cross
examination he stated that he was not present when the accident
happened and that he does not know how the accident
in question
happened.
[12] The next witness
that testified is Rachel Puleng Nhlapo, the claimant's wife. She
testified that she was 52 years old, and
that she was married to the
claimant, and had been so married to the claimant for 21 years.
Further that her highest educational
qualification was junior
certificate [JC], known as standard 8 or grade 10.
[13] She testified that
on the day of the collision in question herein, on 4 March 1994 she
was at her home when a certain man came
and told her that her husband
had been knocked by a vehicle. She then rushed to the scene of the
accident and she found her husband
lying still on the side of the
road, she thought he was dead. That they waited there where husband
got injured [at the scene of
the accident], waiting for an ambulance.
[14] She further
testified that her husband was bleeding and that he was unconscious
when he was taken to hospital. That the claimant
was rushed to Manapo
hospital but was then transferred to Bloemfontein hospital. That the
claimant was hospitalised in the Bloemfontein
hospital for 5 to 6
days (about a week). Further that she does not know if he was
operated on because she did not accompany him
to the hospital.
[15] She testified that
there was a shopping complex in the area and that she knows it, they
use/shop at the shopping complex. Further
that the distance from
where her husband lay to the shopping centre was about 3 to 4 m. That
the lights of the complex were on
when she arrived at the scene.
[16] Under cross
examination she stated that she does not know how the accident
happened; that she does not know how her husband
was knocked by a
car.
[17] The next witness to
testify was the claimant, Ramphale Jacob Nhlapo. He testified that he
was born in 1957; that he was 54
years old; and that he lived/resided
in Tseki village, not far from the shopping complex. That his house
is on the same street
as the shopping complex.
[18] He testified that he
was told that he had been involved in an accident; further that he
was told that at some stage he ended
up in hospital. That he does not
know that he was in hospital or how he ended up in hospital. That he
was told that he was hit
by a motor vehicle.
[19] He further testified
that when he was hit by a vehicle he was either going to or coming
from the shopping centre. That he has
forgotten, he has lost his
memory.
[20] Under cross
examination he stated that now he can recall the accident because of
the injuries on his right leg and on his head
as he was told at
Bloemfontein hospital. That he also had an operation on his abdomen.
[21] He stated that he
does not know how the accident happened. That he was walking on the
side of the road.
[22] That concluded the
plaintiff's case. The defendant closed its case without calling any
witnesses, and asked the court to grant
absolution from the instance
as the plaintiff had not made out any case.
[23] After argument,
judgement was reserved. Prior to judgement being handed down the
plaintiff brought an application to re-open
its case, on the basis
that new evidence which was material to plaintiff's case had emerged;
that plaintiff needed to lead evidence
of a material witness. The
application was heard on 29 May 2014, and in the interests of justice
the application to re-open the
plaintiff's case was granted.
[24] The plaintiff thus,
subsequently led further evidence by calling one Motlalepule Daniel
Makgwadi. He testified that he is a
lieutenant in the South African
Police Services ("SAPS") stationed at Phuthaditjaba with 27
to 28 years' service. That
on 04 March 1994 he was stationed at Tseki
police station.
[25] He confirmed that he
had a police docket, under case no. 0103194 relating to the accident
in question herein; that he had the
original sketch plan and report
which contained the report and the diagram and key thereto,
pertaining to the accident that took
place on 04 March 1994, which
were handed in as exhibit AA.
[26] He testified that he
attended to the scene of the accident herein on 04 March 1994. That
on his arrival at the scene the claimant/injured
person was no longer
on the scene. That the driver of the insured vehicle pointed out the
point of impact to him [depicted as C
on the sketch plan], as well as
the stationery insured vehicle [depicted as F on the sketch plan].
That he is the one who wrote
down the measurements contained in the
key and diagram.
[27] He testified that
the road where the collision occurred is a very busy road.
[28] Under cross
examination he stated that the driver of the insured vehicle merely
mentioned to him that there were other vehicles
parked outside the
road on point
E
on the sketch plan. He confirmed that there is
no point
E
depicted on the sketch plan, stating that the space
between the two boxes on the left hand side of the road on the sketch
plan
should have been marked
E
.
[29] He stated that he
cannot recall as to how many cars the driver of the insured vehicle
had told him were parked at point
E
. that he believes that it
was not just one car parked at point
E
.
[30] He stated that he
did not write out his report and sketch plan at the scene of the
accident; further that he did not show the
driver of the insured
vehicle the sketch plan after he had drawn it. I may just state that
the date on the draft sketch plan and
key is 05 March 1994, a day
after the collision in question herein. He stated that point
C
/the
point of impact, is what he was told [by the driver of the insured
vehicle], that a car hit a pedestrian. That he was told
that the
insured vehicle stopped on the yellow line at point
F
after
the collision. That he and the driver of the insured vehicle were
communicating in Sesotho.
[31] He stated that he
did not ask the driver of the insured vehicle why he ended up
stopping at point which he indicated on his
key to the sketch plan to
be 48.20 from the alleged point of impact [
C
].
[32] He further stated
that he is not the person that prepared/completed the police road
traffic report ("'the accident report").
That he only drew
the sketch plan and the key thereto. He could not explain the
discrepancy between the sketch plan and the accident
report, which
mentioned that the claimant appeared in front of parked vehicles
between cars supposed to be marked point
E
and walked into the
path of travel of the insured vehicle.
[33] Under re-examination
he stated that he prepared the formal sketch plan and key on 13 March
1994. That he had prepared the rough
sketch the day after the
collision, on 05 March 1994. That he believes that his sketch plan is
the correct version as to what happened
because he was assisted by
the driver of the insured vehicle.
[34] On the court's
questions [for clarity] he stated that he does not know who prepared
the accident report, handed in as exhibit
AB
; that the author
might be established from the signature appended to the original
report. I may state that the original accident
report was never
furnished to the court, and there was no attempt to trace the author
of the accident report.
[35] That concluded the
evidence of the Plaintiff, and the evidence pertaining to the whole
matter. The defendant closed his case
without calling any witnesses,
and asked for the dismissal of the plaintiff's claim with costs. The
plaintiff s counsel argued
that on the evidence before court the
plaintiff's claim should be upheld with costs; at worst that the
court should find that there
was contributory negligence on the part
of the driver of the insured vehicle.
[36] As already stated
above, the only issue for determination before this court is whether
there was negligence on the part of
the driver of the insured
vehicle, T Motloung, and whether there was contributory negligence on
the part of the claimant and the
extent thereof, if any.
[37] In essence counsel
for the Plaintiff argued that the court should accept, amongst
others, the hearsay evidence of the witnesses
that testified on
behalf of the plaintiff, and that of the claimant.
[38] Counsel for the
defendant on the other hand argued that the court should dismiss the
plaintiff s action with costs, on the
basis that the plaintiff has
failed to make out a case for negligence on the part of the driver of
the insured vehicle. That the
evidence before court is mainly based
on hearsay and riddled with contradictions; especially the evidence
of the police that attended
to the scene of the accident, vis-a-vis
the sketch plan and the accident report.
[39] It is so that all
the witnesses that testified on behalf of the plaintiff could not
give an account of how the accident in
question herein happened.
Morake and Mrs Nhlapo never witnessed the accident. They both
conceded that they do not know how the
accident happened. Their
evidence is simply not helpful to this court.
[40] Morake may have
testified about lighting around the Tseki shopping complex, however,
that on its own, without any explanation
as to how the collision
itself may have occurred, and/or how the claimant ended up on the
side of the road after the collision,
is not helpful. The court
cannot just draw an inference that there was negligence on the part
of the driver of the insured vehicle
merely from the fact that there
was a collision wherein the claimant was injured; and that the area
was well lit. It not even known
whether on the day or night of the
collision in question there were lights on or not.
[41] Mrs Nhlapo's
evidence that when she arrived at the scene the claimant was lying
injured on the pavement also does not help.
There is no evidence
whatsoever on how the claimant landed on the pavement or side of the
road. Counsel for the plaintiff sought
to argue that the court should
draw an inference that the claimant was hit by the insured vehicle on
the side of the road, solely
based on the evidence of the claimant
that he was walking on the side of the road. This is in fact
contradicted by Lieutenant Makgwadi,
who testified that according to
the driver of the insured vehicle the point of impact was at point
£.of the sketch plan,
which is inside the lane of travel of the
driver of the insured vehicle. According to the accident report
[exhibit AB] the point
of impact would have been next to parked
vehicles [supposedly at what would according to Makgwadi, have been
point E, which is
further away from what he depicted as the point of
impact, at point C.
[42] It is clear from the
evidence of the claimant that he has no idea at all as to how the
accident happened. His evidence is to
the effect that he was told at
the Bloemfontein hospital that he had been involved in an accident.
He himself does not even know
whether prior to the accident he was
going to or coming from the Tseki shopping complex. He was clearly
confused and he clearly
had no recollection of how the accident
occurred. One may sympathise with him, but that cannot be the basis
to draw an inference
that there was negligence on the part of the
driver of the insured vehicle. The plaintiff bears the onus to prove
on a balance
of probabilities that the driver of the insured vehicle
was negligent. On the totality of the evidence before court this
cannot
be said, and on the facts and evidence before court there is
no basis upon which the court can draw an inference that there was
negligence on the part of the driver of the insured driver. I have
had regard to the cases referred to by parties and on the evidence
at
hand no case comes to the assistance of the plaintiff.
[43] Makgwadi 's evidence
is also hearsay; it is allegedly what he was told by the driver of
the insured vehicle. The driver of
the insured vehicle was not called
to confirm the alleged point of impact. Makgwadi did not even show
the driver of the insured
vehicle the sketch plan after he had drawn
it to confirm with him that he correctly depicted what was allegedly
shown/pointed by
the driver of the insured vehicle.
[44] On the sketch plan
drawn by Makgwadi, exhibit AA, there is an indication of some two
boxes/vehicles on the left side of the
road, which were supposed to
depict point
E.
however, there is no Point
E
. On the
key to the sketch plan point
E
is said to be "alleged
position where at the
other vehicles had parked". Makgwadi stated in his evidence that
he cannot say and/or does not know what
the significance of point
E
would have been. According to him he drew a draft sketch plan a day
after the collision in question, i.e. 05 March 1994, in the
presence
of the insured driver, and drew a formal sketch on 13 March 1994. It
is surprising that he would have specifically mentioned
point
E
without any specific significance.
[45] According to the
police accident report, exhibit AB, the complainant surfaced in
between parked vehicles, depicted by Makgwadi
at what was supposed to
be point
E
, and walked into the lane of travel of the insured
vehicle, hence the collision. This aspect as well could not be
confirmed as
the author of the police accident report is not known.
Obviously there was no effort by the plaintiff to establish who the
author
of the report was and to call such as a witness; for obvious
reasons I guess, the version in the accident report does not favour
the plaintiff s case. In any event I find Makgwadi to have been very
dodgy on this aspect. It does not make sense at all that he
would not
know and/or would have forgotten why he referred to point
E
.
Anyway there t s a contradiction between his sketch plan and the
police accident report. His hearsay evidence does not in any
way
assist the plaintiff s case.
[46] On the totality of
the evidence before court it cannot be said that the plaintiff has
made out a proper case for the relief
sought. This is a case where in
my considered view, absolution from the instance should be granted
and that the plaintiff, who
is the one that has instituted these
proceedings, be ordered to pay the costs of suite.
[47] In the result I make
the following order:
1.
Absolution
from the instance is granted.
2.
The
Plaintiff is ordered to pay the costs of suite, which costs shall
also include the costs of the hearing on 09 May 2011, costs
of 10
September 2013 and costs of the hearing on 29 May 2014.
JUDGE OF THE HIGH COURT
APPEARANCES
FOR THE PLAINTIFF:
MR KN RONTGEN
INSTRUCTED BY:
RONTGEN & RONTGEN INC
HB FORUM, 5th FLOOR
13 STAMVRUG STREET
VAL DE GRACE
P.O. BOX 74224
LYNWOOD RIDGE, 0040
c/o DOCEX, 171 MADIBA
STREET
GENERAL POST OFFICE BLD
CHURCH SQUARE
PRETORIA
TEL: 012 481 3624
FOR THE DEFENDANT:
ADV FJ NALANE
INSTRUCTED BY:
MALULEKE
MSIMANG & ASSOCIATES
SUITE 101, FIRST FLOOR
BANK TOWER
Cnr of CHURCH &
ANDRIES STREETS
PRETORIA
TEL: (012) 323 3845