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[2015] ZAGPPHC 479
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Thantsa v Road Accident Fund (18357/13) [2015] ZAGPPHC 479 (22 June 2015)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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REPUBLIC
OF SOUTH AFRICA
IN
THE HICH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO:
18357/13
DATE:
22 JUNE 2015
In
the matter between:
THANTSA,
BASIL MABUELA
And
ROAD
ACCIDENT FUND
JUDGMENT
KUBUSHI,
J
INTRODUCTION
[1]
The plaintiffs claim is that on the 14 November 2012 at
approximately 19hOO and at the R55 off ramp along the N14 highway, he
sustained
injuries arising out of the driving of a motor vehicle
bearing registration letter and numbers unknown to him and the driver
he
could not identify, and a motor cycle bearing registration number
and letters [V……….] of which he was the driver.
SEPARATION
OF ISSUES
[2]
At the commencement of the trial, and on application by the
plaintiff, which application was not objected to, an order was
granted
in terms of uniform rule 33 (4), separating the issues of
liability from those of
quantum
of damages. In terms of the separation order, the only issue for
determination in this trial is that of liability and the issue
of
quantum
was postponed
sine
die.
THE
EVIDENCE
[3]
The evidence was brief and straightforward. The plaintiff was
the only witness in the trial. The defendant closed its case without
leading any evidence.
[4]
The plaintiff’s evidence is that: on 14 November 2012 he
was driving his motor cycle with registration number [V……..],
from East to West along the N14 highway. He was travelling from work
on his way home. His home is in Thatchfield. From the N14
highway, in
order for him to get to Thatchfield he has to exit the N14 highway at
the R55 off ramp.
[5]
His further evidence is that, the N14 highway has two lanes
going from East to West, that is, in the direction he was travelling.
However, at the R55 off ramp, the two lanes devide into four lanes.
Two lanes to the right travel towards the R55 Pretoria West
and the
other two lanes to the left go towards Thatchfield. At the top of the
road, the road to the R55 Pretoria West and the road
to Thatchfield
are separated by an island. The island is flat on the road and is
painted black and gold in a triangle formation.
[6]
When he was about to exit the N14, he was travelling behind a
white Volkswagen Coif motor vehicle (the Golf). The Golf was
travelling
at a distance of two motor vehicles in front of him. Both
the plaintiff and the Golf exited the highway at the R55 off ramp.
The
Golf chose the route going towards the R55 West and the plaintiff
chose the one going towards Thatchfield. As they were moving towards
the island they were parallel to each other. The plaintiff was in the
second left lane and the Golf was travelling in the first
right lane
next to the plaintiffs motor cycle.
[7]
Without any indication from the Golf, it swerved to the left
and moved into the lane of travel of the plaintiff. The front
passenger
door of the Golf hit the plaintiff on the right knee and
its left side mirror hit the motor cycle's handle bars. The plaintiff
lost control of the motor cycle. The motor cycle rolled over and the
plaintiff fell off the motor cycle and landed on the first
left lane
and the motor cycle proceeded to move further and stopped in the left
lane up the road. At the time of the collision
there was another
motor vehicle travelling behind him but on the first left lane. The
motor vehicle managed to stop without hitting
him. The driver of that
motor vehicle assisted him out of the road.
[8]
According to the plaintiff, he did not have enough time to react to
the sudden movement of the Golf because it happened too
suddenly. He
only saw the motor vehicle moving to his side of the road and there
was not much he could do before the Golf collided
with him. He did
not even have the time to think of what to do. The Golf moved from
its lane of travel into the lane of travel
of the plaintiff without
indicating its intention to do so. It also moved into the plaintiffs
lane when it was not supposed to
do so because there is a solid line
between its lane of travel and that of the plaintiff; it also went
over the island in order
to get to the lane of travel of the
plaintiff. The plaintiff suffered serious injuries and spent a few
days in hospital. The bones
of his wrist were broken into six pieces,
he fractured his ribs and his right shoulder and right knee were also
injured.
[9]
He was certain the motor vehicle that collided with him was a white
Golf with an ND registration number. He did not see the
full
registration number. The occupant of the Golf was a single gentleman.
He did not see the Golf after the collision because
it did not stop
after hitting him. He did not remember the speed at which he was
travelling at the time the collision occurred
but intimated that he
must have reduced speed because he had only entered the off ramp and
where the collision occurred there is
a bend in the road - the bend
is a long curve that goes into another road.
[10]
At the time of the collision, the plaintiff had been driving a
motor cycle for over seven to eight years. The motor cycle was his
regular mode of transport. He had been travelling along that route,
that is, the N14 highway and exiting at the R55 off ramp since
2007.
He knew that road very well. He was also clothed in the correct gear.
[11]
After being discharged from hospital he reported the matter at
the Oliewenhuis police station. He went to the scene of the collision
with two police officers who took measurements. He went back to the
police station to complete the report. He was not able to write
then
but a police officer completed the police report for him - he only
attached his signature. He was sent a case number by short
message
service (sms) which he read out in court as 142/12/2012. He did not
follow up on the case because he thought the police
would give him
information whenever it is available. He does not know what
eventually happened to the case. Almost three months
after the
collision he went with his attorney to the Rose bank police station
and deposed to another affidavit pertaining to the
collision.
[12]
Under cross examination he was made aware that, in the
affidavit he deposed to in Rosebank police station, he did not
mention that
the Golf had an ND registration number and he responded
by saying that it maybe because it did not come up. He was also made
aware
that the defendant and the court were not provided with copies
of the accident report from the Oliewenhuis police station.
ARGUMENT
Plaintiff
[13]
The submission by the plaintiffs counsel is that the
uncontested evidence of the plaintiff proves that there was another
driver.
The evidence also shows that there was nothing he could have
done to avoid the collision. According to the plaintiffs counsel, the
insured driver was reckless in crossing the island without
indicating.
[14]
The test for negligence is whether he should have foreseen
that the Golf will change its direction and should have taken steps
to
avoid the collision. There is no evidence that the plaintiff
should have foreseen that the Golf would change its direction in an
abrupt movement. If the collision was not foreseeable the plaintiff
must succeed 100% for damages, he argued.
[15]
Counsel submitted further that if I find against the plaintiff
in that he could have taken steps to prevent the collision, the
contention
is that he did what any reasonable person could have done.
He tried to swerve left but there was no time. There is no evidence
to suggest the contrary, it was not even put to the plaintiff that he
could have avoided the collision. He said it is impossible
on a motor
cycle to have avoided the collision.
[16]
The
onus
is on the
defendant to prove contributory negligence. The defendant failed
dismally to prove it. There was no suggestion of contributory
negligence. The defendant must therefore be found 100% liable for the
proven or agreed damages resulting from the collision that
occurred
on 14 November 2012 together with the costs pertaining to the
liability until the date of judgment, so the argument went.
Defendant
[17]
The submission by the defendant’s counsel is that
although the defendant received the plaintiffs claim and investigated
its
integrity, it did not receive the accident report nor was the
report discovered. There is therefore no basis for the claim. It is
also clear that due to time lapse there seems to be no follow up by
the plaintiff or the plaintiffs attorneys and there is no evidence
from the plaintiffs attorneys of record about what happened to the
report. This gives doubt as to whether a collision happened.
The
plaintiff cannot recall the speed at which he was travelling and had
no time to avoid the collision. The plaintiff is a single
witness
whose evidence must be approached with caution, so it was argued
[18]
A further contention is that the defendant must not be held
liable. Alternatively a risk contingency of 50% must be applied
giving
the circumstances of how the collision occurred.
ANALYSIS
OF EVIDENCE
[19]
At the commencement of the trial, the defendant's counsel put
it on record that even though the defendant had in its plea admitted
the collision, his instruction was not to admit that the plaintiff
collided with the unknown person.
[20]
The plaintiffs counsel submitted that since there was no
formal amendment to the plea, the matter will be argued at the end of
trial.
The contention being that the plaintiff will in any event
prove the collision in his evidence.
[21]
The first issue which requires determination is whether a
collision as described by the plaintiff occurred. Put differently,
the
question is whether the plaintiff sustained the injuries as a
result of a collision which was caused by the identified motor
vehicle.
[22]
From the evidence it appears that it is common cause that on
14 November 2012 the plaintiff was involved in a motor cycle
collision
which resulted in him sustaining serious injuries. The
plaintiffs contention is that the said collision was caused solely by
the
negligence of an unidentified motor vehicle which collided into
him and caused him to fall off his motor cycle and injure himself.
The defendant on the other hand contents that the plaintiff failed to
prove the collision mainly because, other than what the plaintiff
said is what happened, there is no other proof that the collision
actually occurred.
[23]
It is indeed so that the plaintiff, in order to succeed in his
claim, must show and prove that a collision with the alleged
unidentified
motor vehicle occurred. Section 17 (1)
(b)
of the Road Accident Fund 56 of 1996, provides that:
“
(1)
The fund or an agent shall -
(a)
(a)
subject
to any regulation made under section 26, in the case of a claim for
compensation under this section arising from the driving
of a motor
vehicle where the identity of neither the owner nor the driver
thereof has been established, 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."
[24]
As already stated, the plaintiff is the only witness in the
trial. His evidence is therefore unchallenged. The defendant’s
argument is that as a single witness his evidence must be approached
with caution.
[25]
The court in
S v Sau/s
'when analysing the evidence of a single witness held that there is
no rule of thumb in which to deal with the evidence of a single
witness. A court is expected to consider the merits and demerits of
the evidence before it, and on the totality of such evidence
to
determine whether the truth has indeed been told. Although the
principle was enunciated in a criminal case I am of the view
that the
principle finds application in a civil case as well.
[26]
On evaluation of the evidence before me, I found the plaintiff
to be an impressive witness. He was honest and related his story as
he recalled the incident Where he did not know the answer to a
question put to him, he simply indicated that he does not know and
did not exaggerate. He did not contradict himself when giving
evidence either in his evidence in chief or under cross examination.
In my view he simply told the truth.
[27]
His uncontested evidence is that when he was discharged from
the hospital he went to report the collision at the Oliewenhuis
police
station and was given a case number which he read out in
court. There is no evidence to the contrary as to whether he went to
the
police station or that the police provided him with a case
number. It was not even suggested to him under cross examination that
he might be lying when he says he reported the collision to the
police or that he was provided with a case number or that the case
number he read out in court was fabricated. The submission by the
defendant’s counsel that there should have been evidence
by the
plaintiffs attorneys as to what happened to the police report is not
correct, in my view. Much as I agree that the availability
of the
police report would have served as corroboration that the collision
did actually happen, however, absent any evidence to
the contrary,
the unchallenged evidence of the plaintiff provides proof that there
was a collision as he describes it. Even after
careful scrutiny of
his evidence, I couid find no well-founded suggestion that the
plaintiff was engaged in a fraudulent claim.
NEGLIGENCE
[28]
It
is trite law that the
onus
is on the plaintiff to prove, on a balance of probabilities that his
injuries were caused as a result of the negligent driving
of the
unidentified driver of the insured motor vehicle.
[1]
[29]
It is also expected that he should prove that there was
contact between the unidentified motor vehicle and him. See s 17 (1)
(b)
above.
[30]
To my mind, on the evidence before me, the plaintiff has
succeeded in proving on a balance of probabilities that the collision
was
caused by the sole negligence of the driver of the unidentified
motor vehicle and that there was contact between the unidentified
motor vehicle and him. His evidence as to how the collision occurred
is clear, credible and remains uncontested
[31]
The defendant did not prove contributory negligence on the
part of the plaintiff, neither was it argued on its behalf that the
plaintiff
contributed to the collision. Consequently, the defendant
must be held 100% liable for the plaintiffs proven or agreed damages.
1.
The defendant is liable in full for the plaintiffs proven or
agreed damages consequent upon the injuries the plaintiff sustained
during the collision on 14 November 2012.
2.
The defendant is ordered to pay the costs of the trial on the
merits.
3.
The determination of the plaintiffs
quantum
of damages is postponed
sine die.
E.
M. KUBUSHI JUDGE OF THE
APPEARANCES
1
1981 (3) SA172 (A) at 180E - F
[1]
See Loras v RAF
2012 (1) SA 610
(6NP).
HEARD ON
THE
i
15 JUNE 2015
DATE OF
JUDGMENT
i
22 JUNE 2015
PLAINTIFF**
COUNSEL
i
ADV. P j VAN DER BERG
PLAINTIFF*!
ATTORNEY
i
DE BROGLIO INC
DEFENDANT*!
COUNSEL
i
ADV. P W SPRINGFIELD
DEFENDANT*!
ATTORNEY
» SEKATI MONYANE INC.