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[2016] ZAGPPHC 410
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Madonsela v Road Accident Fund (69374/14) [2016] ZAGPPHC 410 (10 June 2016)
SAFLII
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Case
Number: 69374/14
10/6/2016
Not
reportable
Not
of interest to other judges
Revised
In
the matter between:
K.J.F
MADONSELA PLAINTIFF
and
ROAD
ACCIDENT
FUND DEFENDANT
Coram:
HUGHES J
JUDGMENT
HUGHES
J
[1]
On 5 June 2011 at 14h10 and on the Evander/ Embalenhle Road, the
plaintiff, K. J. F. Madonsela, was involved in motor vehicle
collision which resulted in bodily injuries.
[2]
From the outset the parties sought a separation of the determination
of liability and quantum in terms of section 33(4) which
order was
granted by consent.
[3]
The plaintiff’s version of how the collision unfolded and the
insured driver, Ms Ndlovu, account of the collision are
totally at
odds with each other on the facts.
[4]
The evidence of the plaintiff is that she was alone in her vehicle
travelling from Embalenhle to Evander at a speed of 80 to
100kymph.
She drove on her way and she observed veld fire on both sides of the
road. The fire on her side was not so intense and
the visibility on
her side of the road was good. Whilst on the other side of the road,
on the oncoming traffic side, the fire was
intense, the smoke was
dense and visibility was not good.
[5]
She further testified that whilst she was driving, suddenly, a
vehicle travelling in the opposite direction came into her path
of
travel. She only saw the vehicle which drove into her when the
collision took place and could do nothing to avoid the collision
this
was because of the dense smoke on the side of the oncoming traffic.
[6]
The impact on the plaintiffs vehicle was on the right hand side of
her vehicle. She states that after impact she lost control
of her
vehicle and it careered into the veld on the right hand side of the
road, being on the side of the oncoming traffic.
[7]
The insured driver testified that she was traveling at a speed of
120kmph from Kinross on her way to Standerton. She was traveling
in
the Evander to Embalenhle direction. She had passengers in her
vehicle one of whom was her mother, Mrs Ndlovu, a witness in
this
trial.
[8]
Whilst she was traveling she noticed a veld fire in the distance on
the oncoming side of the road. She states that at this stage
the fire
was not close to the road but as she drove closer, the fire was
suddenly close to the road. The smoke from the fire was
really
intense and visibility was bad.
[9]
Whilst the visibility was bad and the smoke was dense she drove into
this dense smoke without reducing her speed. She testified
that it
came to a stage where her visibility was so bad that she could not
see past the end of her bonnet. She states that is when
she reduced
her speed and gradually brought her vehicle to a stop. In doing so,
stopping, she stopped her vehicle in the middle
of that lane she was
travelling in and when the vehicle had stopped, she her hazards on.
She says that even though she put had
hazards on because the smoke
was so dense she doubts if anyone could see them.
[10]
At some stage a taxi drove past in front of her vehicle, she could
not say where this taxi came from. The taxi careered in
front of her
towards the left side of her vehicle eventually traveling in the
emergency lane past her stationary vehicle.
[11]
Suddenly a vehicle collided with the front of her vehicle. After the
smoke dissipated and the visibility was good she noticed
a vehicle in
the burning veld on her side of the road. This she discovered was the
plaintiff's vehicle and she cannot say how the
plaintiff's vehicle
ended where it did in the veld.
[12]
The evidence of Mrs Ndlovu corroborated her daughter's evidence, to
the extent that they could not see ahead because of the
smoke being
dense and her daughter stopping in the middle of her lane. Mrs
Ndlovu's reasoning for stopping was the appearance of
the taxi from
nowhere and driving in the emergency lane, they thought that other
vehicles on the road would engage in the very
same manoeuvre like the
taxi.
[13]
Turning to the cross examination of the plaintiff. During this
exercise by counsel for the RAF the counsel put a version to
the
plaintiff, professing it to be that which the insured driver would
say which is totally different to the version testified
by the
insured driver at the trial.
[14]
It was put to the plaintiff that the insured driver would say that
the visibility was very bad in her lane. That she was stationery
on
the road when the plaintiff collided into her vehicle and the reason
why the plaintiff veered onto her path of the road was
because there
was a taxi in front of plaintiff's vehicle. The collision having just
occurred, the plaintiff then 'took the initiative
to reverse. In
doing so she ended on the right side of the road in the veld fire.
The insured driver will also say that she could
not go onto the
yellow lane because of the veld fire on her side of the road.
[15]
Adv. Dredge, represented the plaintiff, during his cross examination
of the insured driver it emerged that the insured driver
made a
concession that in the situation of poor visibility she could have
veered onto the plaintiff s side of the road. This is
a pertinent
concession argued Adv. Dredge.
[16]
He also heighted the inconsistencies between that which was put to
the plaintiff by the defendant's representative and that
which was in
fact testified by the insured driver. Firstly, the insured driver and
Mrs Ndlovu were adamant that they did not know
how the plaintiff
landed in the veld fire whilst it was put to the plaintiff that she
'took the initiative to reverse' into the
veld fire. The later was
supposedly obtained from the insured driver by those representing the
RAF.
[17]
There is also the evidence of the taxi. On the one hand the insured
driver states that she was stationery when the taxi travelled
in
front of her vehicle then onto the emergency lane. On the other hand
Mrs Ndlovu's evidence is that they were in motion when
the taxi
passed them on the left in the emergency lane.
[18]
Adv. Dredge argued the plaintiffs evidence, that the visibility was
good on her side as the fire was not so intense, was never
disputed
by the defendant at all. He further, argued that it was also never
put to the plaintiff that the veld fire was so bad
on her side that
it came as far as the road. Thus again appears a contradiction
between what was testified by the insured driver
and what was put to
the plaintiff.
[19]
Adv. Dredge pointed out yet another contradiction in the evidence of
the insured driver and that put to the plaintiff, in that
the insured
driver never testified that the plaintiff veered because of the fact
that there was a taxi in front of her, as was
put to the plaintiff by
the defendant's representative.
[20]
In circumstances such as these were we have two irreconcilable
versions by parties a useful reminder on how the courts are
to
approach such evidence is found in
Stellenbosch Fanners' Winety
Group Ltd and Another v Martell and Cie
SA
and Others
2003 (1)
SA
11
SCA
paragraph [5}
set out below
:
"[5]
On the central issue, as to what the parties actually decided, there
are two irreconcilable versions. So too on a number
of peripheral
areas of dispute which may have a bearing on the probabilities. 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. As
to (a), the court's
finding on the credibility of a particular witness will depend on its
impression about the veracity of the
witness. That in turn will
depend on a variety of subsidiary factors, not necessarily in order
of importance, such as (i) the witness's
candour and demeanour in the
witness-box, (ii) his bias, latent and blatant, (iii) internal
contradictions in his evidence, (iv)
external contradictions with
what was pleaded or put on his behalf, or with established fact or
with his own extracurial statements
or actions, (v) the probability
or improbability of particular aspects of his version, (vi) the
calibre and cogency of his performance
compared to that of other
witnesses testifying about the same incident or events. As to (b), a
witness's reliability will depend,
apart from the factors mentioned
under (a)(ii), (iv) and (v) above, on (i) the opportunities he had to
experience or observe the
event in question and (ii) the quality,
integrity and independence of his recall thereof. As to (c), this
necessitates an analysis
and evaluation of the probability or
improbability of each party's version on each of the disputed issues.
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. The hard case, which
will doubtless be the rare one, occurs when a court's credibility
findings
compel it in one direction and its evaluation of the general
probabilities in another. The more convincing the former, the less
convincing will be the latter. But when all factors are equipoised
probabilities prevail."
[21]
I note that the insured driver persisted with her version as
testified. She refuted the version that had been advanced by the
representative of the RAF. In fact she went so far as to say she had
not advanced that version put to the plaintiff and it was
not her
version as she had not sufficiently consulted with the defence team
as regards her version of how the collision took place.
[22]
Clearly this creates two contradictory versions between what the
insured driver's evidence was and that which was put to the
plaintiff
as what the insured driver would say by the defendant's
representative.
[23]
There are also problems with the insured driver's version itself.
Firstly, she is not able to explain how a veld fire appeared
on her
side of the road after the collision. Her evidence was consistent
that prior to the collision there was no veld fire on
her side of the
road at all.
[24]
Secondly, I cannot understand regarding this veld fire, the insured
driver sees the hazard, in the form of a fire, but she
still
continues to travel towards and into the hazard at 120kmph with no
attempt at reducing her speed at all.
[25]
Thirdly is the contradiction between the insured driver's evidence
and Mrs Ndlovu's regarding the reason why they stopped in
the middle
of their lane. The latter states that it was a result of the taxi
which drove alongside them in the emergency lane.
On the other hand
the insured driver states that it was because she could not see
beyond her bonnet.
[26]
The above is of importance and significance. I say so because
according to the insured driver the collision occurred immediately
after the taxi passed. In my view this lends itself to the
probability that the insured driver was still in motion when the
collision
occurred, on Mrs Ndlovu's version. If so the probability of
colliding with the plaintiffs door, as testified by the plaintiff, is
not a remote possibility.
[27]
Taking the above together with the concession made by insured driver,
she could have veered in the path of oncoming traffic
it is not
difficult to actually find that this is in keeping with the
plaintiff's evidence.
[28]
On the probabilities the insured driver's version that 'she just stop
in her lane' is just farfetched and does not ring of
truth. Which
driver will stop in her/his lane causing a danger to other road users
when her/ his visibility was impaired by dense
smoke, and not moving
over to the emergency lane, which is designated for that purpose,
when she was confronted with a hazarder's
situation.
[29]
The plaintiff s evidence stands uncontested and her evidence was not
challenged at all by the defendant' representative. Even
in the face
of that put to her as the insured driver testimony, which was refuted
by the insured driver, the plaintiff stood her
ground and kept
steadfast as to her version of the collision.
[30]
It is evident that the version put to the plaintiff in
cross-examination did not existent and this was confirmed by the
insured
driver. In the circumstances that evidence is rejected.
[31]
I accepted the untested and unchallenged version put forward by the
plaintiff. The plaintiff's evidence was straight forward
and she was
a credible witness, she did not endeavour to embellish her evidence
in anyway whatsoever.
[32]
In the circumstances the evidence and version of the plaintiff is
more credible, probable and as such it can only be concluded
that the
sole cause of the collision is the insured driver.
[33]
The matter was set down for the 3rd May 2015 it stood down due to the
non availability of judges. The matter proceeds
on the 4th and
5th May 2015.
[34]
Consequently the following order is made:
[34.1]
The defendant, the Road Accident Fund, is liable to pay the
plaintiff, K. J. F. Madonsela, her agreed or proven damages.
[34.2]
The defendant is ordered to pay the plaintiff's costs on a party and
party scale for the 3rd, 4th and 5th May 2015 respectively.
[34.3]
The issue of quantum is postponed sine die.
___________________
W.
Hughes
Judge
of the High Court Gauteng, Pretoria
Date
of hearing: 3rd, 4th and 5th May 2015
Date
delivered: 10th June 2015
Attorneys
for the plaintiff: Gert Nel Inc.
Reference:
GN8124/mjb
Telephone:
012 333 829
Attorney
for the defendant: TSEBANE MOLABA INC
Reference:
Mr Mphahlele/KWK/ 9157
Telephone:
012 342 492117076