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[2016] ZAGPPHC 1156
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Mmowa v Road Accident Fund (24162/2016) [2016] ZAGPPHC 1156 (7 December 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
REPUBLIC
OF SOUTH AFRICA
Case
Number: 24162/2016
Date:
7/12/2016
In the
matter between:
RAMOHLOPI
WILBUR
MMOWA Plaintiff
and
ROAD
ACCIDENT FUND
Defendant
JUDGMENT
JANSE
VAN
N
I
EUWENHU
I
ZEN
J
[1] The
plaintiff instituted a claim for damages
he suffered due to
injuries he
sustained
in a motor vehicle collision that occurred on the 9
th
of
May 2014 in Duvenhage Avenue, Kempton Park.
[2] The
parties agreed to a separation of the merits and quantum of the
plaintiff's claim and an order in terms of rule 33(4) of
the Uniform
Rules of court was accordingly granted.
EVIDENCE
Facts
common cause
[3] There
is not much in dispute regarding the facts giving rise to the
collision.
[4] It is
common cause that the plaintiff and Mr Nzimande ("the insured
driver'') were travelling, at approximately 21:00,
in the same
direction along Zuurfontein road on the evening in question.
Zuurfontein road is a dual carriage way with a built up
cement island
between the lanes going in opposite directions.
[5] The
insured driver was driving in the left lane and the plaintiff in the
right lane. It is common cause that the plaintiff's
vehicle veered to
the left lane and scratched the right front bumper of the insured
vehicle ("the first collision").
A high speed chase ensued.
Both vehicles turned into Duvenhage Avenue, which road had several
speed bumps and sharp curves.
[6] At
some stage during the chase, the plaintiff hit a speed bump at high
speed, lost control of his vehicle and collided with
a wall next to
the road. The plaintiff lost consciousness and cannot recall what
transpired thereafter.
[7] The
dispute between the parties pertains to the reason for the high speed
chase.
Facts
in dispute Plaintiff's version
[8] The
plaintiff testified that he stopped along the road after the first
collision to apologise to the insured driver. The insured
vehicle
stopped some meters behind him. The plaintiff alighted from his
vehicle and proceeded to the vehicle of the insured driver.
The
insured driver alighted from his vehicle and whilst alighting took
out a firearm from his waist belt. The insured driver's
demeanour was
aggressive and the plaintiff ran back to his vehicle, got in and
drove off at high speed. He believed that his life
was in danger.
[9] The
insured vehicle was in hot pursuit. The plaintiff turned into
Duvenhage Avenue and, according to his evidence, the insured
vehicle
was a few meters behind him. The insured vehicle would gain ground
when the plaintiff manoeuvred a speed bump, where after
the plaintiff
would reclaim the ground on the stretch of road between the speed
bumps. The result of the second collision has been
referred to
supra.
[10] The
plaintiff alleges that he verily believed his life was in danger and
as a consequence, he was acting in a state of emergency.
In the
premises, he is not to be blamed for the second collision.
Defendant's
version
[11] The
insured driver denied that the plaintiff stopped after the first
collision. He testified that the insured vehicle is the
property of
his employer and he deemed it prudent to obtain the details of the
plaintiff. Consequently, he chased the plaintiff
at high speed.
[12] In
reaction to the plaintiff's version, the insured driver testified
that he neither had a firearm licence nor a firearm.
[13]
According to the insured driver, a police vehicle approached from the
opposite direction whilst he was chasing the plaintiff
in Duvenhage
Avenue. Due to the high speed the plaintiff was travelling at, the
police vehicle executed a U-turn and chased after
the plaintiff. The
police vehicle was in between his vehicle and that of the plaintiff
and he lost sight of the plaintiff's vehicle.
Consequently, he did
not witness the accident. Upon his arrival at the scene of the
collision, he was informed that the plaintiff
had hit a pedestrian
prior to colliding with the wall.
[14] He
wanted to report the first collision, but was told by the police
officials at the scene to report the collision at the nearest
police
station.
[15] The
Accident Report Form indicates that he reported the matter at Norkem
Park Police Station at 23:00 on the 9
th
of May 2014.
EVALUTION
[16] The
version of the plaintiff and the insured driver in respect of the
motive for the high speed chase are mutually destructive.
[17]
Referring to previously decided cases, Grosskopf JA summarised the
applicable legal principles applying in a case of mutually
destructive versions in
Banng
Eiendomme BPK v
Roux
[2001] 1 All SA 399
SCA at para [7] as
follows:
"Die
uiteenlopende weergawes van die partye is wedersyds onversoenbaar.
Wat ‘n hof in so ‘n geval te doen staan,
word soos volg
uiteengesit in die beslissing van die volle hof in die saak van
National Employers' General Insurance Co Ltd v Jagers
1984 (4) SA 437
(E) op 440E-441A (per Eksteen Wnd RP):
''...
where there are two mutually destructive stories, [the plaintiff} can
only succeed if he satisfies the court on a preponderance
of
probabt7ities 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 plaintiffs a/legations against the general probabilities.
The estimate of the credibility of a witness
will
therefore be inextricably bound up with
a
consid
e
ration of the probabll1lies of the
case and, if the balance of
probabi
l
ities
favours the
pla
i
ntiff, then the Court
will
acc
e
pt his version as
being
proba
b
ly true.
If
however,
the probabilities are
evenly
balanced in
the sense
that they do not
favour the
pla
i
ntiffs
c
ase any more th
a
n th
e
y do
the
d
ef
e
ndant's,
the
plaintiff c
a
n on
l
y
succeed
if
the
C
ourt
nevertheless
be
l
ieves
h
i
m
and
is
satisfied
t
h
at
h
i
s evidence is true
and that
the
defendant's version
is false.
This
view
seems
to
me
to
be
in
general
accordance
w
1lh
the
views
e
xpressed
b
y
C
oet
z
ee J in Koster Ko-operatiewe
Landboumaatska
p
py
B
pk
v
Suid-Afrikaanse
S
poorwee en Hawens [19
7
4
(
4
)
SA
4
20
(W
)
J
and Afric
a
n E
a
gle Assurance
C
o Ltd v
G
ainer
[1
9
8
0
(
2
) SA
234
(W
)
J.
I would
mere
l
y
stress
however t
h
at
when
in such circumstances one talks
a
bout a
plaintiff having d
i
scharged the onus w
h
ich
rested
upon
h
i
m
on
a
b
alance
of
probabilities
one
really
means
that
the
C
ourt
i
s sat
i
sfied on a balance of
probabillties that he was tell
i
n
g the
truth and t
h
at h
i
s version was therefore
acceptable.
It
does
not
seem to
me to
be desirable for
a
Court
first
to
consid
e
r
the
question
of
the
credibility
of
the
witn
e
sses
as
the
tr
i
al Ju
d
ge did
in the present
case, and then,
h
avi
n
g
concluded that
e
nquiry,
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 probab
l
y lies,
that recourse
is
had
to an
est
i
mate of relative
credibility apart
from
the probabilities.
"
[18] In
considering the probabilities of the plaintiffs version, it is
noteworthy that his account of the events directly after
the first
collision was extremely vague. He did not indicate where exactly he
stopped his vehicle after the first collision. This
lack of clarity
is significant if one has regard to the lay out of the road. He could
not merely stop, because he was in the right
lane next to the cement
island. He would have had to cross the left lane and thereafter found
a suitable place to park next to
the road.
[19] From
the evidence, I do not know whether it was at all possible to simply
park next to the road. The plaintiff was equally
vague in his
description of the firearm.
[20] Ms
de Meyer (Olivier), counsel for the defendant, correctly pointed out
that, having regard to the mere scratches on
the insured
vehicle, the alleged aggressiveness does not make sense and is
improbable.
[21] The
fact that the insured driver immediately proceeded to a police
station
to
report the accident, contributes to
the probability of his version. It is highly unlikely that he will
willingly report the incident
if he knew he had threatened the
plaintiff with a firearm. Criminal liability would surely follow upon
a police investigation into
the accident.
[22] In
the premises, the plaintiff did not discharge the onus, on a
preponderance of probabilities, that he acted in an emergency
situation.
[23]
Having accepted the insured driver's version, the question pertaining
to contributory negligence arises. The insured driver
was negligent
in driving at an excessive speed in the prevailing circumstances.
[24] In
my view, his negligence contributed equally to the cause of the
second collision. In the premises, he was 50% negligent
and the
defendant is only 50% liable for the damages suffered by the
plaintiff as a result of the second collision.
[25] The
plaintiff did succeed in proving that the insured driver's negligence
contributed to the collision and is consequently
entitled to the cost
of suit.
ORDER
In the
premises, I grant the following order:
1.
The defendant is liable for 50% of the plaintiff's proven or agreed
damages.
2.
The defendant is ordered to pay the cost of suit.
_____________________________
N
JANSE VAN NIEUWENHUIZEN
JUDGE
OF THE
OF THE HIGH
COURT OF SOUTH AFRICA
GAUTENG
DIVISION,
PRETORIA
APPEARANCES
Counsel
for the Applicant:
:
Advocate
A
L
Legong
Counsel
for the Defendant :
Advocate M de Meyer (Olivier)