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[2016] ZAGPPHC 1234
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Mabunda v Road Accident Fund (74277/2014) [2016] ZAGPPHC 1234 (16 November 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
REPUBLIC
OF SOUTH AFRICA
Case
number: 74277/2014
Date
of hearing: 11 November 2016
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
In
the matter between:
GODLEY
GAUTA
MABUNDA
Plaintiff
and
ROAD
ACCIDENT
FUND
Defendant
JUDGMENT
BRENNER
AJ
1.
The plaintiff, Godley Gauta Mabunda ("Mabunda") was
involved in a motor vehicle accident on Sunday, 4 March 2012, at
about 17h00, along the R101, (being the old Warmbaths Road), a tarred
public road accommodating one lane of traffic in each direction.
The
road is used by commuters travelling from Hammanskraal to Pretoria
and back. Mabunda was driving a 2006 Hyundai Getz ("the
Getz")
when a collision occurred with a red Golf driven by an unidentified
driver. Mabunda's particulars of claim assert that
the driver of the
other vehicle was
"travelling in the opposite direction in
the Plaintiff's lane of travel'.
2.
Mabunda sustained several injuries, namely, a compound right patella
fracture, soft tissue injury to the left shoulder, a deep
laceration
over the right knee, a laceration of the left hand, and a minor
traumatic brain injury.
3.
The defendant, the Road Accident Fund, ("the RAF"),
repudiated liability on the merits, and the case proceeded on the
issue of merits only. The issue of quantum was reserved for
determination by another Court in due course.
4.
At inception of proceedings, a bundle of documents was handed up on
the premise that the parties had concurred that the status
of the
documents was that they were proof of what they purported to be
without any admission that they were proof of the veracity
of their
contents.
5.
For the plaintiff, evidence was adduced by Mabunda, personally,
whereafter, the plaintiff's case was closed. For the defendant,
the
RAF, evidence was advanced by a pedestrian who was standing on the
side of the road at the time, namely, Azwidohwi Kwinda ("Kwinda").
The defendant elected not to call the evidence of the driver of the
Golf, asserting that it was prepared to take the risk of closing
its
case without his testimony, after the driver had advised the RAF that
he had taken ill.
6.
Mabunda testified that his wife was travelling with him as a
passenger, and they were proceeding in the left lane, in a southwards
direction from Hammanskraal, where he lived, to Pretoria. They were
on their way to the Shoprite supermarket in Gezina, (where
his wife
worked), as his wife had received a phone call of an alarm being
activated at the Shoprite and she had been unable to
contact the
security personnel who usually responded to activated alarms. The
road went slightly uphill but then straightened to
a flat road at the
area where the collision occurred. It was a sunny day and had not yet
become dark. He testified that he was
travelling at a speed of about
80 km per hour.
7.
As Mabunda arrived at the flat section of the road, he suddenly
observed the Golf on his side of the road. His initial thought
was
that the driver intended to turn left into the same road and proceed
towards Pretoria, but then he saw that it was turning
to face him in
his lane. When he saw it, it was about 100 metres away from him. It
had apparently driven from a gravel side road
to the left of the lane
in which Mabunda was driving, where there was a Zionist Christian
Church and some farms.
8.
When Mabunda realised that the Golf was in his lane facing him, he
swerved to the right, into the lane for oncoming traffic.
He did not
brake or hoot, or swerve to the left of the Golf. He did not swerve
to the left because, after the left-hand yellow
line, there was
gravel and grass and what appeared to be a culvert on the left of
this. He was concerned about the Getz turning
over if he swerved
left. He was sure there was no oncoming traffic at the time he
swerved right. In cross-examination, however,
he conceded that he had
had no time to check whether there was oncoming traffic in the right
lane. In the result, Mabunda said
he collided with the Golf.
9.
Mabunda could not state where the parts of each vehicle collided, as
he was disorientated after the accident. He recalled that
both
vehicles landed on the side of the lane for traffic from south to
north. He could recall nothing more about the accident and
testified
that he was admitted to hospital immediately after the accident.
Mabunda's wife also sustained severe injuries and subsequently
passed
away on 2 November 2012.
10.
In cross-examination, it was put to Mabunda that the collision
occurred in a totally different way from that described by him.
It
was put to him that the RAF's witness would testify that Mabunda was
driving behind another vehicle, proceeding in the same
direction,
when Mabunda tried to overtake the vehicle in front of him and
collided with a red Golf which was travelling in the
other lane for
oncoming traffic proceeding from south to north.
11.
Mabunda was referred to an affidavit prepared by his lawyer, signed a
year later, on 5 March 2013. The operative part of this
affidavit
reads,
"I was travelling
on the Old Warmbaths Road from Hammanskraal towards Pretoria. Near
Pyramid an unidentified oncoming motor
vehicle was travelling in my
lane. I tried to avoid the collision by swerving to the right at the
same time
as
the insured driver was returning to his lane and
a
collision occurred."
12.
It was put to Mabunda that his affidavit omitted to mention that the
other vehicle was facing him in the same lane. His answer
was that
his evidence before Court was the correct version. It was put to him
that he was in a hurry that afternoon to reach Shoprite
Gezina
because of the alarm. He denied this, and reaffirmed that his speed
was about 80km per hour. Mabunda repeated that there
were only two
cars in the accident and denied that he was trying to overtake the
Golf when an accident occurred with another vehicle
in the opposite
lane. He conceded that his memory after the collision had been
affected, owing to his head injury and a heart condition.
13.
After the plaintiff closed its case, Kwinda testified for the RAF. He
was a pedestrian standing on the left side of the R101
at about 17h30
on 4 March 2012. It was still light. He observed two cars following
one another on the road proceeding from north
to south. A blue/grey
vehicle (which I may assume was the Getz) was driving behind another
car which Kwinda could not describe.
Kwinda saw the Getz trying to
overtake the car in front of him when the Getz was about three to
four metres away from the front
car and, in the process, the Getz
collided with a car coming from the opposite direction and this was a
red Citi Golf. Kwinda was
unable to say whether the collision
affected the car in front of the Getz or whether the car in front
proceeded onwards, as he
said he was observing the Getz.
14.
He said he was facing northwards in the direction of Hammanskraal. He
immediately went over to the right side of the road from
Pretoria to
Hammanskraal to attend to the occupants of the Golf. He recalls that
the Getz and the Golf landed in the right side
of the R101 itself,
and not on the side.
15.
Kwinda denied that a gravel road entered the left side of the R101
from the left near where the accident occurred. He drew a
gravel lane
which proceeded parallel with the R101 southwards, for cars coming
from the church to use. He denied having seen a
car entering the road
from the left of the R101.
16.
He conceded that, because he was facing northwards at the time of the
accident, towards Hammanskraal, he could not have observed
any
vehicle to his left behind him.
17.
On 4 March 2012 at 20h40, at the Pretoria North police station, it
appears that Kwinda signed an affidavit testifying to what
had
occurred that day. The contents are entirely inconsistent with the
version advanced by him in Court.
18.
In Court, when the affidavit was shown to him, he denied emphatically
that he had signed same or that he had gone to the Pretoria
North
police station that day. I will deal with these denials later. The
contents of the statement are inciteful:
1. I Azwindohwi Kwinda
I am a black adult male age 28 years old born 1983-05-25 and
residence Plot 16 Pyramid. Work at City of Tshwane
Bon Accord quarry
contact no none.
2. State under oath
that on 2012-03-04 Sunday 17:15 I was standing next to the road on
Warmbad Road next to Post Office and Pyramid
restaurant.
3. There was a cream
white motor vehicle registration unknown and model which went to pick
up a person who was asking lift and it
was standing in the road.
4. A blue car was
traveling south and a red car was travelling south. A blue car try to
avoid a car which was standing in the road
by passing to its right.
5. And the red car was
coming and it collided with the blue car which was trying to avoid
the car in the road. It was a head on
collision and the blue car roll
and came to a standstill on its top."
19.
I wish to make one observation concerning this affidavit. If there
was a head on collision between the blue car (the Getz)
and the
red car (the Golf), then the Golf must have been travelling from the
south, and not the north. This much is consonant with
Kwinda's
version in Court, and Mabunda's version that he was travelling from
the north. The accident report form supports this
fact.
20.
The only material difference is that, in his vive voce evidence,
Kwinda disingenuously omitted to mention the white car obstructing
Mabunda's lane before the accident occurred.
21.
Kwinda admitted having told a policeman about what he had seen that
day and that they had both spoken to one another in Kwinda's
language, Sesotho. The policeman had written down Kwinda's statement
but when Kwinda asked him to read it, (and Kwinda said he
understood
and could read English), according to Kwinda, the policeman refused.
Kwinda said that the statement was also not interpreted
to him in
Sesotho.
22.
Kwinda persisted in his evidence that there was no stationary car on
the road, and that the accident occurred because Mabunda
overtook the
front car when it was dangerous to do so, and collided with the Golf
coming from the opposite direction.
23.
The accident report form provides a brief description of the accident
as follows:
"Motor
vehicle A (the Getz) was travelling from north to south and motor
vehicle B (the Golf) was travelling from south to
north when motor
vehicle A try to avoid a collision with a motor vehicle which was
standing on the road and collided with motor
vehicle B head on."
24.
The RAF thereupon closed its case, without leading the evidence of
the driver of the vehicle which had collided with Mabunda's
Getz.
25.
I have afforded due consideration to the evidence, the admitted
facts, and the circumstantial facts, as also the fact that no
evidence was adduced by the driver of the Golf.
26.
In my view, the collision occurred as follows. An unidentified cream
vehicle picked up a pedestrian on the left side of the
road, and
drove into the road in which Mabunda was travelling but was
stationary for a while. When Mabunda saw this car from 100
metres
away, he thought that it was going to turn in the same direction in
which he was travelling, that is, from north to south,
but when it
failed to do so, he took one evasive step, which was to swerve right
into the face of oncoming traffic.
27.
He said he had no time to observe whether there was oncoming traffic,
when indeed there was oncoming traffic in the form of
the Golf. The
red Golf was travelling on the opposite side of the road from south
to north and Mabunda collided with it. And this
is why the Getz and
the Golf landed on the right hand side of the R101.
28.
It appears that the white stationary car escaped the collision, and
the scene. This is why the police plan identifies only two
vehicles
at the scene. The accident report form identifies two vehicles
involved in the collision, namely, the Getz and the Golf,
and a brief
description of the accident corroborates the versions of Kwinda in
his affidavit and the version of Mabunda in his
evidence that a third
car obstructed Mabunda's path of travel and he swerved to avoid it.
29.
In arriving at this conclusion, I have taken the following into
account. Mabunda's recollection was sub-optimal and he appears
to
have been genuinely mistaken about what had happened. Kwinda's
evidence was unimpressive, disingenuous and unreliable.
30.
But their versions, in vive voce evidence before Court and in their
affidavits, both contained probative value in the form of
consistencies from which certain inferences may be drawn. Mabunda's
affidavit that he tried to avoid a collision when he saw an
unidentified oncoming vehicle in his lane is consistent with his
observing a vehicle in his path which appeared to have turned
to face
him, and the particulars of claim support this.
31.
This inference is consistent with Kwinda's affidavit, given on the
date of the accident, which confirmed that a cream car which
had
fetched someone from the left side of the road was standing in
Mabunda's path and Mabunda tried to avoid it by swerving to
the right
and thereby colliding with the Golf. This is why both the Getz and
the Golf landed on the right hand side of the road,
for traffic going
from south to north. Kwinda's evidence in Court also placed the
accident between the Getz and the Golf on the
right-hand side on the
road for oncoming traffic, and where they landed was further to the
right of the accident.
32.
By irresistible inference, Mabunda was mistaken in his belief that he
had collided with the stationary vehicle in his path.
He must have
collided with the Golf travelling in the opposite lane from south to
north. He conceded in cross-examination that
he had not looked to see
whether there were oncoming vehicles in the opposite lane.
33.
In my view, I can take cognisance of the correctness of Kwinda's
affidavit for the following reasons. His version that he did
not sign
it and that he did not go to the police station is patently false and
inherently improbable. He confirmed in Court that
the personal
details at paragraph 1 of the affidavit and the details of his
witnessing the accident at paragraph 2 were true. He
confirmed having
spoken in his own language, Sesotho, to the policeman who wrote notes
of his statement.
34.
It is incomprehensible and highly improbable that, this being the
case, the policeman who wrote the affidavit could have conjured
up
the rest of Kwinda's version.
35.
I turn to the question of contributory negligence under section 1 of
the
Apportionment of Damages Act, 34 of 1956.
Under
this section, the Court may reduce damages having regard to the
degree of fault attributable to the driving of the claimant
driver.
36.
I refer to the case of
Burger v Santam Versekeringsmaatskappy
Bpk
1991 (2) SA 703
A.
In this case, the Court found that
when a reasonable driver approaches another vehicle over a
considerable distance, which had been
veering onto the wrong side of
the road, the reasonable driver would take at least three steps. He
would brake, move his vehicle
to the left as far as possible and hoot
continuously. In
Burger,
the driver failed to hoot and was
held to be 25% at fault as a result.
37.
Reverting to the facts in this case, Mabunda's conduct contributed to
the collision because he did not take any reasonable steps
to avoid
it. His own version supports this fact. He did not brake. He did not
hoot. He did not swerve to the left when the police
plan indicates
that there was an area on the side of the road, and any culvert, if
there was one, would have been further away
from this part of the
road. He did not check for oncoming traffic in the opposite lane.
38.
It has been noted that Mabunda had come from a rise in the road
before the collision and this may have obstructed his vision
before
he saw the stationary car in his lane in front of him, apparently
facing him. He was faced with a sudden emergency, on his
version, but
he failed to take reasonable precautionary measures to avoid the
accident.
39.
Taking all of the above into consideration, I find that Mabunda was
at least 60% to blame for the accident.
40.
The following order is made:
a. The defendant is found
liable for 40% of the plaintiff's proven or agreed damages;
b. The defendant is
directed to pay the costs of the action in respect of the merits.
T
BRENNER
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
14
November 2016
Appearances
For
the Plaintiff:
Advocate AA Lubbe
Instructed
by:
N S Swan Inc Attorneys
Counsel
for Defendant:
Adv AM Masombuka
Instructed
by:
Diale Magoshoa Attorneys