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[2015] ZAGPPHC 145
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Mosebekoa v Road Accident Fund (10973/2013) [2015] ZAGPPHC 145 (27 March 2015)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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SAFLII
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IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE NO: 10973/2013
DATE: 27 MARCH 2015
NOT REPORTABLE
NOT OF INTEREST TO
OTHER JUDGES
IN THE MATTER
BETWEEN
MADIBO CALVIN
MOSEBEKOA
..............................................................................................
PLAINTIFF
AND
ROAD ACCIDENT
FUND
........................................................................................................
DEFENDANT
JUDGMENT
KGANYAGO. AJ
[1] The plaintiff in
this matter is claiming damages for bodily injuries arising out of a
motor vehicle accident. It is common cause
that the accident occurred
on 27 June 2009. At the time of the accident the plaintiff was the
driver of motor vehicle with registration
number DML […] ,
that collided with motor vehicle with registration number BFL [...]
driven by the insured driver.
[2] The plaintiff
alleges that the insured driver was the sole cause of the accident.
The defendant in its plea denies that the
insured driver was
negligent. In the alternative the defendant has pleaded contributory
negligence.
[3]
At the commencement of the trial the parties agreed to separate
issues of merits and
quantum
of
damages of the plaintiffs claim. I ruled that the matter proceed on
the issue of merits of the claim only.
[4] The plaintiff
was the only witness to testify for his case. He testified that on 27
June 2009 he was the driver of motor vehicle
with registration number
DML[...]. He was involved in a motor vehicle accident with motor
vehicle with registration number BFL[...].
The accident occurred at
about 20:00.
[5] What happened
that night is that he arrived at a crossroad and stopped at the stop
sign. He was travelling from a southern direction
and turning to the
eastern direction. The stop sign on that crossroad is for vehicles
which are coming from the northern and southern
directions only. For
vehicles that are from the eastern and western directions there is no
stop sign.
[6] After stopping
at the stop sign, he looked to the left and right, and again looked
to the right and left to check whether there
were no vehicles. He did
not see any vehicle and he proceeded to turn to the eastern
direction. Suddenly a vehicle came from the
eastern direction
travelling to the western direction and collided with him on the
right hand side of the drivers seat. The road
which the insured
driver was travelling from has got a curve.
[7] The insured
driver came at a high speed whilst in that area the speed-limit was
60kph. He was having three passengers in his
car. Two of his
passengers died as a result of the injuries sustained in the
collision.
[8] There was
nothing he could have done to avoid that collision. After the impact
his vehicle landed at the corner of the stop
sign whilst the insured
vehicle landed in the yard next to the stop sign.
[9] When his claim
was lodged with the Road Accident Fund ("the Fund") his
attorney had made him to sign several documents
without their
contents being explained to him. The lodgement affidavit that he had
signed was not explained to him and therefore
he does not know its
contents.
[10] The plaintiff
was cross-examined and he conceded that the lodgement affidavit that
he had signed was the basis of his claim
with the Fund. He conceded
that his attorney wrote what he was telling him. He conceded that the
insured driver was having a right
of way.
[11] That concluded
the evidence of the plaintiff and he closed his case. Both parties
have submitted their written heads of argument
and I am indebted to
them. I have read their written heads of argument and have considered
them in my judgment.
[12] The issues
which must be determined by the court are the following:
12.1 whether the
injuries sustained by the plaintiff has been caused by or arising out
of the driving of the insured vehicle by
the insured driver;
12.2 should I find
that the injuries were sustained as a result of the driving of the
motor vehicle by the insured driver, I must
determine whether the
insured driver was negligent or not;
12.3 the
apportionment of negligence, if applicable.
[13] It is not in
dispute that the plaintiff has lodged his claim with the Fund, and
that the Fund did not object to the validity
of the claim in terms of
section 26 of the Road Accident Fund Act 56 of 1996 ("the Act").
In terms of section 19(f)(i)
of the Act, a claimant is compelled to
lodge an affidavit with the Fund when he/she lodges his/her claim.
The plaintiff has lodged
his affidavit with the Fund and it read as
follows:
"CLAIMANT'S
AFFIDAVIT
I the undersigned
Calvin Madibo
Mosebekoa
ID no: [...]
do hereby state
under oath and say that:
1.
1 am the claimant
in this matter, an adult male person presently residing at 2585
Mphalatsane c/o Landuma Shop, Paelong Free State
Province. I am
competent to depose to this affidavit and the facts herein contained
are, unless the context indicates otherwise,
within my personal
knowledge and are to the best of my belief both true and correct
unless stated otherwise.
2
.
On or about the
27
th
June 2009 I was involved in a motor vehicle accident.
At the time of the accident I was a driver of motor vehicle bearing
numbers
DML [...].
3.
On the day of the
collision I was driving motor vehicle DML [...] from south to north.
The road which I was driving does not have
a stop sign or a line
indicating that I should stop.
4.
Another
motor vehicle bearing registration letters and numbers BFL [...]
driven by Motlalepula Paul Sofe, was driving from east
to west
.
On the road that
motor vehicle bearing registration letters and numbers BFL [...]
there is a stop sign
.
5.
When I was about
to complete the intersection motor vehicle bearing letters and
numbers BFL[...] failed to stop at a stop sign and
collided with the
right and midfront and right mid back of the motor vehicle 1 was
driving.
6
.
I verily state
that the collision was occasioned by the sole negligence of the
driver of motor vehicle bearing registration letters
BFL [...] when
he failed to stop at a stop sign.
7.
As a result of
the collision I sustained injuries as mentioned in the statutory
medical report of the RAFfrom 1 and the clinical
notes attached
hereto."
[14] At the trial
the plaintiff gave a completely different version from the one that
appears in the affidavit filed with the Fund.
The plaintiff is now
disowning this affidavit and blames his attorney. No supplementary
affidavit or fresh affidavit was ever lodged
with the Fund to rectify
this discrepancy. The attorney who prepared the affidavit was not
called as a witness by the plaintiff
to verify this aspect.
[15] In terms of
section 19 of the Act, liability is excluded in the event the third
party refuses or fails to submit an affidavit
or statement in terms
of section 19(f). Section 19(f) requires the third party to submit an
affidavit in which particulars of the
accident that gave rise to the
claim concerned are fully set out. The purpose of the statement or
affidavit is to furnish the Fund
with sufficient information to
enable it to investigate the claim and determine whether or not it is
legitimate. The investigation
of the plaintiffs claim was based on
the affidavit which he is now disputing its contents.
[16]
The plaintiff conceded under cross-examination that the attorney who
prepared the affidavit wrote what he was telling him.
The attorney
who prepared the affidavit was not called to defend himself. In
Motswai
v
Road Accident Fund
2014
6 SA 360
(SCA) the court held that judges must be astute not to
pontificate or be judgmental about persons who have not been called
to defend
themselves. Therefore in my view it is opportunistic for
the plaintiff to resile from his affidavit without calling the
attorney
to defend himself. It is therefore my finding that the
attorney wrote what was related to him by the plaintiff.
[17] It is clear
that the evidence that was presented to this court is materially
different from what has been stated in the affidavit
in all material
respects. The evidence tendered in court contradicts the plaintiffs
affidavit that was submitted to the Fund to
investigate his claim.
[18]
It has now been established that the affidavit in terms of section
19(f) of the Act which has been logged with the Fund by
the plaintiff
does not depict the correct information of how the accident occurred.
According to the plaintiff the accident occurred
the way he had
explained at court. The evidence presented at the court shows that
the insured driver had a right of way. In
Milton
v
Vacuum Oil Co of
SA Ltd
1932
AD 19
at 205 the court stated:
"
Where there are
two streams of traffic in a road in opposite directions, a person in
a vehicle proceeding in one direction is entitled
to assume that
those who are travelling in the opposite direction will continue in
their course and that they will not suddenly
and inopportunely turn
across the line of traffic. A person travelling in one direction can
assume that one travelling in the opposite
direction will continue
his course, but he may only assume that until he is shown a clear
intention to the contrary. When a clear
and undoubted warning is
given, then there is no longer any room for the assumption that the
other person will continue in his
former course."
[19] The plaintiff
under cross-examination testified that he saw the insured vehicle
when he was leaving the stop sign. Despite
being aware that the
insured vehicle had a right of way, he still proceeded to turn,
instead of stopping and allowing the insured
vehicle to pass. Under
cross-examination the plaintiff could not present a proper picture of
how the accident occurred. At some
stage he stated that the collision
occurred after he had already turned. When it was put to him that if
he had already turned the
damage should have been in the front of the
vehicle, he changed his version and stated that the insured vehicle
had changed lanes.
When asked whether he saw the headlights of the
insured vehicle he stated that he saw them when he was leaving the
stop sign. When
it was pointed to him that according to the point of
impact on the sketchplan, he had already turned to the eastern
direction,
he agreed with the sketchplan and further stated that he
saw the insured vehicle when he left the stop sign and that the
insured
vehicle was at the curve at about 20 metres.
[20] Taking into
consideration what the plaintiff has stated in his affidavit in terms
of section 19(f), the evidence which he had
presented at court which
does not give a clear picture of how the accident happened, that
leaves me with no option, but to conclude
that the plaintiff is
untruthful about how the collision occurred. This aspect impacts
adversely upon his credibility.
[21] Under the
circumstances in my view the plaintiff has failed to prove negligence
on the part of the insured driver. I am of
the view that the
defendant is entitled to absolution from the instance.
[22] In the result I
make the following order:
1. The defendant is
absolved from the instance with costs.
M
F KGANYAGO
ACTING
JUDGE OF THE GAUTENG DIVISION, PRETORIA
10973-2013
HEARD ON: 06 MARCH
2015
FOR THE PLAINTIFF:
MR. BALOYI
INSTRUCTED BY:
CHUENE ATTORNEYS
FOR THE DEFENDANT:
CH BADENHORST
INSTRUCTED BY: