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[2016] ZAGPPHC 1056
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Chipwatali v Road Accident Fund (6629/2015) [2016] ZAGPPHC 1056 (15 December 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
15/12/2016
CASE
NO: 6629/2015
Reportable:
No
Of
interest to other judges: No
Revised
In
the matter between:
GN
CHIPWATALI
Plaintiff
and
ROAD
ACCIDENT
FUND
Defendant
JUDGMENT
DE
VILLIERS, AJ:
1.
The quantum of the plaintiff's claim was separated in terms of
Uniform Rule 33(4).
2.
The issue in this case should simply have been if the opening of the
driver's door of a vehicle, forms part of the driving of
a motor
vehicle as contemplated in
section 17(1)(a)
of the
Road Accident Fund
Act 56 of 1996
. The section reads (underlining added):
"The Fund or an
agent shall-
(a)
subject to this Act, in the case of
a
claim for
compensation under this section
arising from the driving of
a
motor vehicle
where the identity of
the owner or the driver thereof has been established;
(b)
...,
be obliged to
compensate any person (the third party) for any loss or damage which
the third party has suffered as
a
result of any bodily injury
to himself or herself or the death of or any bodily injury to any
other person, caused by or
arising from the driving of a
motor vehicle
by any person at any place within the
Republic, if the injury or death is due to the negligence or other
wrongful act of the driver
or of the owner of the motor vehicle or of
his or her employee in the performance of the employee's duties as
employee: Provided
that the obligation of the Fund to compensate
a
third party for non-pecuniary loss shall be limited to
compensation for
a
serious injury as contemplated in
subsection (1A) and shall be paid by way of
a
lump sum."
3.
The particulars of claim averred that the plaintiff's damages were
caused by, or arose, from the driving of the (insured) vehicle
as
contemplated in
section 17.
The plea thereto read:
"The Defendant
admits allegations contained in these paragraphs in so far as they
accords with provisions of the
Road Accident Fund Act of 56
of 1996
(as amended)."
[1]
4.
This plea seems to be an admission that the
Road Accident Fund Act
would
cover the incident:
4.1. See Uniform Rules
18(4) and (5:
"(4) Every
pleading shall contain
a
clear and concise statement of the
material facts upon which the pleader relies for his claim, defence
or answer to any pleading,
as the case may be, with sufficient
particularity to enable the opposite party to reply thereto.
(5) When in any
pleading
a
party denies an allegation of fact in the previous
pleading of the opposite party, he shall not do so evasively, but
shall answer
the point of substance."
4.2. See Uniform Rule
22(3):
"Every allegation
of fact in the combined summons or declaration which is not stated in
the plea to be denied or to be admitted,
shall be
deemed to be
admitted. If any explanation or qualification of any denial is
necessary, it shall be stated in the plea."
5.
Yet, and despite the plea that seemed like an admission to the
contrary, in the end the defendant's only case in argument was
that
section 17(1)(a)
of the
Road Accident Fund Act 56 of 1996
did not
apply.
6.
The
plaintiff did not plead that the insured driver opened his door when
it was not safe to do so, its real case.
[2]
Instead, the plaintiff pleaded the normal grounds of a failure to
keep a proper lookout, as well as a number of other standard
negligence grounds (including a failure to brake timeously and
driving at an excessive speed). The defence was a plea that the
defendant had no knowledge of the matter,
alternatively
that
the plaintiff cycled too fast, did not apply his brakes in time and
other similar standard defences. There appears to have
been no reason
to plead a
"no
knowledge"
version as the primary defence.
[3]
7.
The common cause facts were uncomplicated:
7.1 The plaintiff, a
worker at a diary, was on his way to work on his bicycle at 13H00 on
14 January 2014 when he collided with
a door of a vehicle that was
opened in his path of travel;
7.2 He had been cycling
on Nellmapius Road, a tarred road, with a lane in each direction;
7.3 Visibility was good;
it was a clear day;
7.4 The road carried
traffic, it was especially the opposite lane that was busy;
7.5 According to the
photographs tendered, the road was a straight, flat road both leading
up to the place of collision and where
the collision occurred;
7.6 The insured vehicle
was Toyota Hilux bakkie. It had been travelling in the same direction
as the plaintiff. The insured driver
was also on his way to work;
7.7 Immediately prior to
the collision, the insured vehicle was stationary at a tarred parking
area to the left of the lane where
busses or taxis can stop to
collect or offload passengers;
7.8 The insured driver
did not have his vehicle's hazard or indicator lights on;
7.9 The insured driver
freely admitted that he had not look to the back when he opened his
door. He was apologetic from the start
and had taken the plaintiff to
the hospital immediately after the collision.
8.
Not all the facts turned out to be common cause:
8.1 On the plaintiff's
version, when he came alongside the vehicle, it started moving and
the driver's door was opened in his path
of travel. He did not
describe a sudden swerve by the insured vehicle;
8.2 On the insured
driver's version, he had collected his vehicle from a mechanic in the
area, upon driving away, he was not satisfied
that the fault had been
repaired. He had stopped to open the bonnet and to inspect the fault.
He was stationery when he opened
his door.
9.
On this aspect (moving vs stationary), I am faced with two mutually
destructive versions. In such a case I have to approach the
matter as
set out in
Oosthuizen v Van Heerden t/a Bush Africa Safaris
2014
(6) SA 423
(GP) at Para 31 and 32:
"[31] Where
a
court is faced with mutually destructive or irreconcilable
versions on the part of the plaintiff and the defendant, it must
proceed
as follows. It must first determine whether the matter may be
resolved on the probabilities. This involves considering the
credibility
of the witnesses, their reliability and,
finally,
determining on the probabilities whether the party with the onus has
succeeded in discharging it. See in this regard
Stellenbosch
Farmers' Winery Group Ltd and Another v Martell et Cie and Others
2003 (1) SA 11
(SCA) para
5;
National Employers'
General Insurance Co Ltd v Jagers
1984 (4) SA 437
(E) at
4400 - F.
[32] If there are no
probabilities upon which to assess the irreconcilable versions, then
the court must apply the approach set
out in the often- cited dictum
of Wessels JA in
National Employers' Mutual General Insurance
Association v Gany
1931 AD 187
at 199:
'Where there are two
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.
. . .
It must be clear
to the court of first instance that the version of the litigant upon
whom the onus rests is the true version.
. . .'
See also
African
Eagle Life Assurance Co Ltd v Gainer
1980 (2) SA 234
(W) at
237."
10.
The
cross-examination of the plaintiff consisted in essence of questions
aimed at a repetition of the evidence in chief. No version
was put
the plaintiff, nor was he told that it would be argued that his
evidence should be disbelieved. The only mildly critical
question put
to the plaintiff was if the plaintiff had applied a safe following
distance from the insured vehicle when it started
moving.
[4]
11.
In President of the Republic of South Africa and Others v South
African Rugby Football Union and Others
2000 (1) SA 1
(CC) the court
dealt with cross-examination as follows in paragraphs 61 to 66. I
highlight the following four principles:
11.1.
" The
institution of cross-examination not only constitutes
a
right,
it also imposes
certain obligations. As
a
general rule
it is essential, when it is intended to suggest that
a
witness
is not speaking the truth on
a
particular point, to direct the
witness's attention to the fact by questions put in cross-examination
showing that the imputation
is intended to be made and to afford the
witness an opportunity, while still in the witness-box, of giving any
explanation open
to the witness and of defending his or her
character';
11.2.
"If a point
in dispute is left unchallenged in cross-examination, the party
calling the witness is entitled to assume that
the unchallenged
witness's testimony is accepted as correct' ;
11.3.
" The rule
... (referred to above)
is not merely one of professional
practice but 'is essential to fair play and fair dealing with
witnesses"' ;
11.4.
"It should
be made clear not only that the evidence is to be challenged but also
how it is to be challenged. This is so because
the witness must be
given an opportunity to deny the challenge, to call corroborative
evidence, to qualify the evidence given by
the witness or others and
to explain contradictions on which reliance is to be placed" .
12.
At the end of the examination-in-chief and cross-examination I did
not know:
12.1. Exactly where the
collision occurred with reference to the three lanes that exist at
the bus stop;
12.2. The dimensions of
the insured vehicle and its door.
13.
As stated, the plaintiff's evidence was not challenged as untruthful
in cross examination and he was not given an opportunity
to
comment on the insured driver's version. It therefore came as no
surprise that the plaintiff closed its (unchallenged) case
and did
not call the reconstruction expert.
14.
The insured driver testified on behalf of the defendant. The
plaintiff objected to his evidence as the defendant had pleaded
that
it had no knowledge of the collision as its primary defence. However,
the defendant did not plead a bald denial in that it
had pleaded in
the alternative why it averred the plaintiff was negligent and caused
the collision. I allowed the testimony.
15.
At the end of the examination-in-chief and cross-examination I did
not know:
15.1. Where the
mechanic's workshop was in relation to the scene of the collision;
15.2. What was wrong with
the insured driver's vehicle;
15.3. If the insured
vehicle was in gear or in neutral when the insured driver prepared to
open his door and opened his door;
15.4. If the insured
driver had kept the engine running when he opened his door;
15.5. If the insured
vehicle's key was still in the ignition;
15.6. If and when in the
sequence of events the insured driver had used a functioning hand
brake;
15.7. Exactly where the
collision occurred with reference to the three lanes that exist at
the bus stop.
16.
The counsel for the plaintiff suggested in cross-examination that the
insured driver had made up a version in that he had already
inspected
the vehicle earlier, then drove off to return to the mechanic, when
the collision occurred. The insured driver denied
the suggestion. No
other possible explanation was put to him to for the vehicle to have
been in motion when the driver's door was
opened.
17.
The defendant closed its case.
18.
Based on the limited facts known to me, the insured driver's version
is the more probable. One rarely sees the driver's door
of a moving
vehicle being opened. In addition, the insured driver had no reason
to lie about whether or not his vehicle was stationary
or not. His
explanation was logical. He freely (even in evidence in chief and in
re-examination) stated that he had not looked
to the rear before he
opened his door. This was an honest admission. I could not find on
the probabilities that the insured vehicle
was in motion when the
insured driver opened the door, leaving aside for the moment the
pleadings and the cross-examination on
behalf of the defendant. I
cannot reject the insured driver's evidence as false, as suggested in
cross-examination.
19.
The real issue then is if the words in
section 17(1)(a)
of the
Road
Accident Fund Act
"arising
from the driving of a motor
vehicle"
on the face thereof carries a meaning of a vehicle
in motion.
20.
The counsel for the plaintiff quoted
Van Der Poel v AA Onderlinge
Assuransie Assosiasie Bpk
1980 (3) SA 341
(T) at 353 to 354 as a
basis for an extended interpretation of
"driving''
to
include the opening of the driver's door. This case dealt with a
parked tractor that started moving. This was covered by a further
section that allocated liability in the case of a parked vehicles
Uudgment at 350E to F and 352H).
21.
Corbett J, as he then was, dealt in Wells and Another v Shield
Insurance Co Ltd and Others
1965 (2) SA 865
(C) with the following
facts (underlining added):
"According to the
declaration and two sets of further particulars filed by plaintiffs
at the request of second defendant, the
third defendant, one Johan
Jacobus Spies,
parked his motor c
ar, C.A. 26828,
at approximately 8.45
a.m.
on the above-mentioned date
in
a
parking bay
on the eastern side of
Long
Street and
opened the right front door
of
his motor car. The precise sequence of events, as particularised in
the particulars dated 15th March, 1965 (which were handed
in from the
Bar) was as follows:
Spies manoeuvred his motor car into
the parking bay; he switched off the engine; he applied the
hand-brake; he
reached behind him to remove an
article from the back seat; and he then opened the door preparatory
to alighting from the motor
car
. At this moment
a
trackless tram owned by the City Tramways Ltd. and being driven by
one Robertson was proceeding in the eastern carriage-way of Long
Street from north to south. The opened door of Spies' motor car
protruded into the path of
the oncoming trackless tram with
the result that the trackless tram struck the door. This caused the
trackless tram to career onto
the western carriageway and to crash
into motor car C.A. 3308 which at the time was being driven by first
plaintiff along Long
Street in
a
northerly direction.
22.
At that stage the relevant section in the then applicable act also
required a finding that the bodily injury was caused by or
arose out
of the driving of the insured motor vehicle. The court held at 871H:
"Upon
consideration I do not think that the opening of the door can be said
to be part and parcel of the 'driving' of Spies'
motor car, using the
word 'driving' in
both its ordinary and its extended sense. In
the ordinary sense of the word the 'driving' of the vehicle in this
case had terminated
before the door was opened and this latter act
had nothing to do with the urging on, direction or control of the
vehicle while
in motion. The door was opened in order to enable the
driver to gain exit from the vehicle but that, in my view, does not
make
it part and parcel of driving in its ordinary sense
..."
23.
The judgement is in point, even although a tram and not a bicycle was
involved.
24.
A case involving facts in point, namely a collision between a cyclist
and a door opened by the driver, is
Khoza v Netherlands Insurance
Co of South Africa Ltd
1969 (3) SA 590
0/V) a judgment by
Nicholas J as he then was. In that case the court came to the same
conclusion as Corbett J did. The court held
at 952 that the opening
of a door is
"entirely independent of the driving of the
vehicle".
25.
The counsel for RAF quoted
section 17(1)(a)
of the
Road Accident
Fund Act
56 of 1996
as his contribution to the legal argument,
and again referred to a failure to keep a proper following distance
(from the stationery
vehicle).
26.
I am not prepared to interpret plain words in a legislation to mean
more than what they clearly mean, as found by Nicholas and
Corbett.
The views of IWB de Villiers AJ in the
Van Der Poel
-case at
354E to F, in my understanding, are obiter.
27.
My function is to interpret legislation, not to legislate. The
legislature is aware of the dangers faced by a very large number
of
cyclists who cycle in traffic to get to work. One sees them every
day. The legislature has been so aware for fifty years. Yet,
the
legislature has not changed the legislation to give RAF protection to
the cyclists. I cannot do so based on the interpretation
of the
relevant section.
28.
At the end of the matter I was faced with:
28.1. An admission in a
plea about the applicability of the legislation that is wrong in law
(if the plea were an admission);
28.2. A trial potentially
conducted in an unfair manner in that the defendant's counsel failed
in his duties with regard to cross
examination. However, I do
not believe that the plaintiff suffered real prejudice in presenting
its case; and
28.3. Facts where I
cannot find that the plaintiff s version is the more probable.
29.
In the end, I have decided the matter on the facts. There was no
evidence before me that the defendant is liable for the plaintiff’s
losses.
30.
Due to the conduct of the attorney and counsel acting for the
defendant, I make the order set out below. I believe that the
attorney ought to bring this judgment to the attention of a senior
official of his client.
31.
The attorney acting for the defendant and the counsel for the
plaintiff saw me in chambers at about 11H10. The attorney told
me
that his counsel was on his way to court, but that he believed that
the matter could be settled if he were to be given until
11H40.
Against the practice in this court, I agreed not to commence at the
normal time 11H30.
32.
When I arrived in court at 11H40, the attorney was nowhere to be
seen. The counsel for the plaintiff informed me that no settlement
negotiations took place. According to him, the request for time was a
ploy to give the counsel for the defendant time to come to
court.
33.
The counsel for the defendant did not apologise for not having
introduced him to me. He informed me that he was a member of
the
Pretoria Bar. Upon questioning, he based this on having served his
application for admission of an advocate upon them.
34.
I told the counsel for the defendant to get his attorney to court.
Upon being asked to explain himself, the attorney said that
he had
asked for a higher offer from the defendant as the matter had been
allocated to a judge. If this is indeed how the defendant
operates, I
would find it offensive. Its function is to compensate claimants
fairly, and not to encourage litigation. This request,
for which he
did not need half-an-hour, was the attorney's alleged attempt to
settle the matter and for which he had asked for
extra time.
35.
At the end of the matter it transpired that the counsel for the
defendant was briefed at about 09H00, and only obtained his
brief
when he arrived at court. Initially he said that he had consulted
with the insured driver before the trial commenced. Upon
being
questioned on the time-line, he conceded that he had not done so and
relied on what his attorney had told him in presenting
the case.
Consequently,
I make the following order:
1. I grant absolution
from the instance, each party to pay its own costs.
____________________
DP
de Villiers
Acting
Judge of the High Court
Gauteng
Division
Heard
on:
2 December 2016
On
behalf of the Applicant:
Adv EJJ Nel
Instructed
by:
Erasmus-Scheepers
On
behalf of the Respondent:
Adv Mahlaba
Instructed
by:
Maluleke Msimang & Associates
Judgment
handed down:
15 December 2016
[1]
I endeavor to avoid the use of "sic";
[2]
The counsel who appeared did not sign the particulars of claim;
[3]
The counsel who appeared did not sign the plea;
[4]
There are several textbooks available from which the art can be
learned, and every day there are opportunities to attend to court
to
observe cross-examination by other counsel;