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[2016] ZAGPPHC 693
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Molefe v Road Accident Fund (86183/2014) [2016] ZAGPPHC 693 (12 August 2016)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been redacted
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Policy
I
N
THE
NORTH
GAUTENG
HIGH
COURT
,
PRETORIA
[REPUBLIC
OF
SOUTH
AFRICA]
CASE NUMBER: 86183/14
DATE:
12 AUGUST 2016
REPORTABLE
OF
INTEREST TO OTHER JUDGES
In
the matter
between:
LEHLOHONOLO
VINCENT
MOLEFE
.
......................................................................
Plaintiff
THE
ROAD ACCIDENT
FUND.
............................................................................
Defendant
JUDGMENT
Makamu
AJ
[1]
The Plaintiff an adult male born on the 3
rd
of October
1960 instituted an action against the defendant, Road Accident Fund
as a result of motor vehicle1 collision between
vehicle registration
number [SD 2..] N driven by the insured driver Tebogo Koki who will
be referred to as the insured driver and
vehicle [PLN 1.. GP] driven
by the Plaintiff on the 29th of June 2013 at approximately 22h40 on
the Golden Highway, between Elephant
Street and Tumeric Drive,
Lenasia South.
[2]
I was addressed by the respective Counsels at the commencement of the
matter for the following that both parties agreed that
the matter
proceed only on the merits and that
q
uantum
be
separated from the merits and shall be dealt with later. In terms of
rule 33(4) of the Uniform Rules of this court the separation
wipes
granted as agreed.
[3l
The Plaintiff and the insured driver testified and thereafter both
parties through their respective Counsels addressed the Court.
I was
specifically referred to, the case of President of the Republic of
South Africa v South African Rugby Football Union 2000(1)
SA 1(T) and
Stellenbosch Winery Group LTD and another v Martell et Cie and others
2003(1) SA 11 (SCA), where the Plaintiff through
Mr Mphela asked the
Court to find in favour of the Plaintiff and Mr Seima for the
defendant asked the Court to dismiss the action
with costs or at
least find an apportionment of negligence on both drivers.
[4]
The following are common cause viz:
4.1The
Plaintiff was a driver of motor vehicle [PLN1… GP].,
4.2A
Collision occurred between the said motor vehicle driven by the
Plaintiff and motor vehicle Honda Civic black in colour registration
number [SD 2… N] driven by the insured driver on the 29
th
of June 2013
4.3
The motor vehicle [PLN 1… GP] was coming from the Southern
direction at Orange farm ( Avaton) to the Northern direction
(Soweto).
4.4
The insured vehicle [SD 2… N] was driving from Eldorado park
(Soweto) to Avaton where the insured driver resides.
[5l
The only issue to be determined is whether the insured driver or the
Plaintiff was negligent and if such negligence was the
sole cause of
the collision.
[6]
It is trite law that Plaintiff needs prove only 1 % negligence on the
part of the insured driver and receive 100% claim award.
[7]
Both parties agreed following pre-trial conference to hand in bundles
named bundle A to F and reference was made by both parties
to
photographs taken by the police and sketch plan drawn by the police
in the absence of both drivers, to make it easy for the
Court to
understand the scene and the condition of both vehicles.
[8]
Photographs depict the two motor vehicles involved and the damage to
both vehicles, and the sketch plan shows a Highway with
dual carriage
ways to one direction and dual carriage to the opposite direction.
[9]
Collision occurred on the lanes direction from Elephant street to
Tumeric drive according to the sketch plan.
[l0]
The vehicle of the insured driver was stationery and he admitted that
it is his car almost in the centre of the road but partially
towards
the left lane and the vehicle driven by the Plaintiff is depicted as
being stationery outside the tarred road on the extreme
left but the
Plaintiff denied that it was his vehicle and the vehicle's last
resting place.
[11]
The evidence in brief is as follows that Plaintiff was driving from
Orange Farm. Approximately 4 to 5 kilometres before the
scene of
accident he picked a man who was a stranger but looked like a
security officer. He saw a crowd of people on the side of
the road
and heard screeching of tyres as he approached the stop sign at
Tumeric drive and he reduced speed significantly to about
5km/h.
He
looked around and also used his rear view mirrors but could not see
the vehicles the tyres of which were screeching but he could
see four
vehicles coming from ahead of him, two on each lane going to the
opposite direction.
All
of a sudden he heard a bang on his resulting from the collision
whilst driving on his correct lane. He was trapped inside his
vehicle. When his vehicle came to a rest he could see the left rear
door of the Honda vehicle driven by the insured driver and
the damage
to the insured car. He believed that it was one of the four cars that
were coming from ahead, heading to the opposite
direction. Because he
was trapped, he was the last person to be evacuated and taken to
Chris Hani Baragwanath hospital. He was
only informed later that one
passenger died from the insured's vehicle.
According
to the particulars of claim, he suffered injuries in this fashion: a
bilateral tibia and fibula fracture of his patella,
Facial and head
injuries, He contends that the collision was caused by the negligence
of the insured driver who was negligent in
inter alia,
one or
more or all of the following respects:
1:1.1He
drove the vehicle without a valid driver's licence;
11.2
He failed to keep a proper and or adequate lookout;
11.3
He failed to keep his vehicle under proper or adequate control;
11.4
He failed to apply the brakes of his vehicle timeously or that he did
not apply them at all;
11.5
He drove his vehicle at an excessive speed, given the circumstances;
11.6
He overtook traffic when it was unsafe to do so;
11.7
He drove into the path of travel of the Plaintiff;
11.8
He failed to avoid the collision when by the exercise of reasonable
care and sill he could and should have done so.
[12]
The insured driver testified that he was from Eldorado Park with two
passengers in his vehicle when he was driving the Plaintiff
drove
from a dusty road and collided with the insured vehicle. The insured
driver lost consciousness and he only regained it at
the hospital. He
was informed that one of his friends died as a result of the
collision.
[13]
The Plaintiff was confident whilst testifying. He came across as
being very certain of what he was saying at all times. He
was open
amongst others about the fact that he did not see exactly where the
car that collided against his came from. He stated
that he only
assumed that it was from ahead of him as there was no car coming from
behind or ahead of him heading to the same direction.
[14]
On the other hand the insured driver buried his head down from the
beginning of his testimony and only lifted it much later.
He avoided
eye contact with the cross examiner or the Court. He testified that
he was driving from North to South but after lunch
break he changed
his testimony saying that he was from South to North in accordance
with the compass on the sketch plan. If that
was so it :means he was
heading towards Soweto and not Avaton or he was executing a U,turn or
spinning.
[15]
As I indicated supra that the road or Highway comprises of a dual
carriage way on each side. Considering the sketch plan, it
occurred
on Northern direction carriageway heading to Soweto.
There
was no inspection in loco conducted. However, the Court took liberty
to look at the map of the area and took judicial notice
of the fact
that Tumeric drive is on the Soweto side whereas Elephant Street is
towards the Avaton side.
It
is not possible that collision took place on the Southern direction
carriageway as the vehicles rested on the Northern direction
carriageway. There is no explanation why the insured vehicle was on
the Northern direction carriageway where the Plaintiff was
travelling
except hearsay evidence which is not admissible. The hearsay evidence
is to the effect, that there were vehicles spinning
in the area and
possibly the insured vehicle took part in the activity.
There
was no accident expert who could help in accident reconstruction
however the damage on the insured vehicle is excessive enough
to
suggest that it hit the plaintiff's vehicle at an excessive speed,
with its front portion, more so the damage on its left side
and, the
damage on the plaintiff's vehicle was only on the driver’s door
stretching towards the end of its front portion.
The principle of
facts speak for themselves applies.
[16]
The two versions of the two witnesses are not reconcilable at all,
they are mutually destructive. The reality is that one of
the
versions is true when the other is false.
I
was referred to the case of National Employers Mutual General
Insurance association v Gany
1931 AD 187
where the Court stated “
Where
t
here
are
t
w
o
stories mutually destructive, before the onus
is
discharged,
the Court must
be satisfied
that
the
story
of the
litigant upon
whom
the
onus rests
is
true
and
the other false”
This technique was followed in Stellenbosch Farmers Winery Group
Ltd and Another V Martell et Cie and others
2003 (1) SA 11
(SCA)
where the Court said • 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
issue a court must make findings on (a) the credibility of the
various factual witnesses; (b) their reliability; and (c) the
probabilities".
[17]
The insured driver did not have a valid driver's licence but he
wanted to convince the court that he possessed a learner's
licence,
Later admitted that the very learner's had expired, A version by such
a witness cannot be trusted.
[18
] He also contradicted himself about the direction to which he was
driving but h later changed and said he could read a compass
which
was used on the sketch plan and he was driving towards North. The
truth of the matter is that he realised later that the
collision took
place on his wrong side of the road and he had to justify why his
vehicle is on the on-coming traffic.
[19]
The two controversial averments by the insured driver should prove
fatal to his case as they cast aspersions on his truthfulness
as
witness.
[20]
When it comes to apportionment of damages there is no need to start
with an argument as the insured driver is obviously on
the incorrect
side of the road and he is 100% to be blamed for the collision.
[21]
I therefore find that the plaintiff has discharged the onus borne by
him in pjroving that the sole cause of the collision was
the
negligence of the insured
driver.
[22]
I also find that the insured driver did not have valid driver's
licence.
[23]
I find that the insured driver did not keep proper look out, or
adequate lookout.
[24]
The insured driver drove at an excessive speed given the
circumstances.
[25]
He failed to exercise reasonable care and skill whilst driving so as
to avoid the collision.
[26]
The insured driver was 100% negligent and the plaintiff could not
have done anything to avoid the collision.
[27]
As a result I make the following order
ORDER:
1
The Draft Order marked
"X",
which is attached to the
Plaintiff's heads of argument, be and is hereby made an order of
court.
S
MAKAMU
ACTING
JUDE OF THE HIGH COURT
DATE
OF THE JUDGEMENT
....... .
: 12/08/2016
PLAINTIFF'S
COUNSEL
…........... ..
: ADV R B
MPHELA
Instructed
By
….............................. ..
:
J K MALATJI ATT
DEFENDANT'
S COUNSEL
........... .
: ADV S Z SEIM
Instructed
By
….................................
:
LEKHU PILSON ATT
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
ON
THE 12
th
OF AUGUST 2016
BEFORE
THE HONOURABLE MR JUSTICE MAKAMU AJ
Case No: 86183/14
In
the matter between:
LEHLOHONOLO
VINCENT
MOLEFE
.......................................................................
Plaintiff
and
THE
ROAD
ACCIDENT
FUND
.............................................................................
Defendant
DRAFT
ORDER
HAVING
HEARD THE EVIDENCE PRESENTED BY THE PARTIES AND HAVING HEARD COUNSEL
FOR THE PARTIES, THE FOLLOWING ORDER IS MADE:
1. The
defendant is liable to 100% of the Plaintiff's agreed or proven
damages arising out of the motor vehicle accident occurred
on 29
June 2013.
2.
The defendant is ordered to pay the plaintiff's taxed or agreed
party and party costs of action to date, on the applicable
High
Court Scale, which
costs
shall include but not limited to the following:
2.1
The costs of the preparation of 6 trial bundles as per the
Directive and as agreed upon in the Pre-Trial Minutes.
2.2
Costs of counsel, including counsel's reparation fees: full day fees
for the 05
th
and the 08
th
of August 2016 and
costs for preparing heads of argument as directed by the Presiding
Judge.
2.3
The costs of attorney, which includes travelling costs, attendance
to court, all costs for preparing for Pre-Trial Conferences,
formulation of Pre-Trial Minutes and costs for actual attendances to
Pre-Trial Conferences.
2.4 The
costs for preparation for trial for attorney.
2.5 The
reasonable costs and / or disbursements of the Plaintiff in
attendance who is hereby declared a necessary witness.
2.6 The
reasonable costs of consultation with counsel for trial purposes.
3.
In the event that the parties do not agree on the costs referred to
in prayer 2 above, the Plaintiff shall serve notice of
taxation on
the defendant's attorney of record and the Defendant is ordered to
pay the Plaintiff's taxed and/or agreed costs
within 14 days from
date upon which the accounts are taxed by the taxing master and or
agreed between the parties.
4.
Quantum is postponed
sine
die.
BY
ORDER OF COURT
REGISTRAR
For
the Plaintiff
Adv.
R.B Mphela
(012)
303 7400
Instructed
by JK Malatji Attorneys
For
the
Defendant
Adv.
M Seima.
Instructed
by LekhuPilson Attorneys