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[2015] ZAECELLC 7
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Mntonitshi v Road Accident Fund (EL136/14, ECD436/14) [2015] ZAECELLC 7 (4 June 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION :
EAST LONDON
CASE NO. EL
136/14
ECD 436/14
In
the matter between:
BONGA
CHRISTOPHER
MNTONITSHI
Plaintiff
and
ROAD
ACCIDENT
FUND
Defendant
JUDGMENT
GRIFFITHS,
J.:
[1]
The plaintiff in this matter has instituted action against the
defendant for damages arising out of a collision which occurred
on 3
September 2011 on the Brakfontein road near East London. It was
agreed between the parties at the outset of the matter that,
at this
stage, all I am to deal with is the question of the liability of the
defendant for whatever damages the plaintiff might
ultimately prove
to have suffered as a consequence of the collision. I accordingly
made a ruling to this effect in terms of Rule
33(4).
[2]
During the course of the proceedings it became clear that the main
point in issue between the parties was as to whether or not
the
insured vehicle had been travelling on its incorrect side of the road
or, at the least, straddling the centre of the road so
that portion
of this vehicle entered upon the lane of travel of the plaintiff, or
whether, obversely, the plaintiff had been on
his incorrect side of
the road, alternatively straddling the centre thereof.
[3]
The plaintiff relied on the evidence of a single witness, that is, of
the plaintiff himself, whilst the defendant called the
evidence of
two witnesses, one Ms. Venske and one Mr. Symons, the driver of a
white Ford Bantam bakkie which collided with the
plaintiff's red Opel
Cadet.
[4]
It was common cause that a form of head on collision occurred between
these two vehicles at about 20 past midnight on the day
in question.
It was dark, there being no streetlights and the road was tarred
although it was very narrow without any shoulders
and, according to
the undisputed evidence of Symons, was 5 m wide. Thus the lanes of
travel in either direction were 2.5 m wide.
There was apparently an
extremely faint line in the centre of the road which was not visible
at night time. For all intents and
purposes therefore when travelling
on that road at night it was very difficult to discern precisely
where the centre of the road
was or as to whether or not there was a
barrier line or a broken line. On either side of the road there
appear to have been either
trees and/or bushes which were apparently
fairly close to the road and at different points there were turnoffs
to farms and to
a school known as Lilyfontaine.
[5]
On the plaintiff's version he had left a prayer meeting which had
been held on a farm adjacent to the Brakfontein road. He had
been
driving his vehicle from the farm back to his home in Beacon Bay. He
had had four passengers in the vehicle totalling a contingent
of five
people in his vehicle at the time. He had been travelling at a
reasonable speed of 40 to 50 km/h and had not yet changed
out of
second gear when he noticed the lights of another vehicle coming at
great speed towards him on his side of the road. Things
happened so
quickly because of the "manner in which the other vehicle drove"
and it was within an extremely short time
after he had noticed these
lights, which were on bright, that there was a collision and he lost
consciousness. He was adamant that
he was on his correct side of the
road whilst the other vehicle was in his lane of travel. Because it
was dark he was unable to
say whether the other vehicle had been in
the curve which was up ahead of him immediately prior to the
collision.
[6]
The version of the defendant was that Venske had requested Symons to
accompany her from Beacon Bay to her home on a farm off
the
Brakfontein road which was adjacent to the farm where the plaintiff
had attended the prayer ceremony. They had left the freeway
and were
travelling on Brakfontein road with Venske approximately 200 m ahead
of Symons with her headlights on bright, and his
on dim. Shortly
before the turnoff to her home there was a very long and continuous
curve and it was whilst she was travelling
through this curve that
she noticed a vehicle travelling in the opposite direction directly
in her path of travel. This vehicle
had its park lights on with no
headlights and she was forced to leave the road to her left where
there was a grass verge in order
to avoid a collision. She continued
to her home and whilst doing so, tried to phone Symons who was
travelling approximately 200
m behind her to warn him of the
impending danger. Because of a lack of reception she could not
contact him and it was only when
she turned into her driveway that
Symons contacted her to tell her of the collision. She returned along
the road and found that
Symons had collided with the very vehicle
that had forced her off the road. Symons himself testified that when
he, in turn, came
around the same corner he noticed a vehicle in
front of him on the incorrect side of the road. This vehicle was 30
to 40 m away
from him and he did not notice any lights but conceded
that it may have had some lights on but that he had not noticed them.
Because
of the fact that there was no verge on the left-hand side of
the road, as there were trees and bushes situated there, he had no
option but to take evasive action by swerving to the right hand side
of the road where he knew there was some form of a verge as
he had
been approaching a turnoff to the right. He also applied his brakes
but notwithstanding these evasive measures, his, and
the plaintiff's
vehicles collided. He ascertained from the positioning of the
vehicles post the collision that the point of impact
must have been
slightly towards his side of the centre of the road.
[7]
Because of the paucity of independent evidence, such as evidence from
the policemen who attended the scene or perhaps accident
reconstruction experts or the like, I am placed in the invidious
position of having to decide which of these two versions is the
correct one, they being mutually destructive. Furthermore, apart from
the evidence of Symons as to the width of the road, there
is no
independent evidence describing the precise and objective nature of
the road, it's exact dimensions, the precise nature of
the verges on
either side of the road and the nature, density and height of the
bushes and trees on either side of the road, precisely
how tight the
corner was, the nature of the damage to the vehicles so as to
indicate precisely where each vehicle was struck or
indeed precise
evidence as to exactly where the vehicles ended up after the
collision. I do not even have the assistance of a set
of photographs.
[8]
The approach to dealing with mutually destructive versions was dealt
with in the case of
National Employers
General Insurance CO Ltd v Jagers
1984 4 SA 437
(E) at p 440 as
follows
:
“
It
seems to me, with respect, that in any civil case, as in any criminal
case, the onus can ordinarily only be discharged by adducing
credible
evidence to support the case of the party on whom the onus rests. In
a civil case the onus is obviously not as heavy as
it is in a
criminal case, but nevertheless where the onus rests on the plaintiff
as in the present case, and where there are two
mutually destructive
stories, he can only succeed if he satisfies the Court on a
preponderance of probabilities 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 plaintiff's allegations
against the general
probabilities. The estimate of the credibility of a witness will
therefore be inextricably bound up with a
consideration of the
probabilities of the case and, if the balance of probabilities
favours the plaintiff, then the Court will
accept his version as
being probably true. If however the probabilities are evenly balanced
in the sense that they do not favour
the plaintiff's case any more
than they do the defendant's, the plaintiff can only succeed if the
Court nevertheless believes him
and is satisfied that his evidence is
true and that the defendant's version is false.
This
view seems to me to be in general accordance with the views expressed
by COETZEE J in Koster Ko-operatiewe Landboumaatskappy
Bpk v
Suid-Afrikaanse Spoorweë en Hawens (supra ) and African Eagle
Assurance Co Ltd v Cainer (supra ). I would merely stress
however
that when in such circumstances one talks about a plaintiff having
discharged the onus which rested upon him on a balance
of
probabilities one really means that the Court is satisfied on a
balance of probabilities that he was telling the truth and that
his
version was therefore acceptable."
[9]
The plaintiff's case, as I have mentioned, rests on the evidence of
the single witness who clearly has an interest in the success
of his
case, that being the plaintiff. Before I can find in his favour on
the point in issue, I must find that his evidence is
credible, true
and accurate to the extent that I can safely reject that of the
defendant's witnesses. In analyzing his evidence,
it must be
remembered that the plaintiff cannot wish away the fact that Venske
was also travelling on the same road in the opposite
direction to him
and that he must have passed her very shortly before the collision
occurred. He did not see her despite the fact
that she was travelling
with her lights on bright and it was a dark night.
[10]
I watched the plaintiff closely during the course of his evidence. It
did appear to me that he was attempting, at the very
least, to give
an accurate description of what had happened but it very soon became
apparent that he was extremely confused with
regard to a number of
matters. At a later stage during his evidence when he again appeared
to be confused, he candidly admitted
that since the accident
happened, and presumably because of his injuries incurred during the
course thereof, he had been having
a memory problem. There were a
number of aspects of his evidence which clearly could not have been
true and about which he was
clearly confused. Obvious examples of
this were the fact that he was determined that Symons vehicle was
travelling at a high speed
although he only saw the lights of the
vehicle coming towards him at the very last moment. Precisely how he
could have ascertained
the speed of the oncoming vehicle in the
circumstances is anyone's guess but to make matters worse he
testified that Symons was
indeed travelling at 170 – 180 km/h.
Given the nature of the road, the type of vehicle Symons was driving,
his reason for
being there that night, the time of night and Symons
sobriety, it seems almost impossible that he could have been
travelling around
a tight curve at those speeds. The upshot of all
this is that, in my view, whether or not the plaintiff was in his own
mind telling
the truth as he knew it, he was not by any stretch of
the imagination, a reliable witness.
[11]
As against his evidence is the evidence of both Venske and Symons.
Venske had no reason whatsoever to be untruthful to the
court and her
evidence fits hand in glove with that of Symons. They testified that
the reason they were following one another with
Venske taking the
lead was precisely because of the fact that it was dangerous to
travel that road at that time of night. Venske
mentioned that there
were often cattle in that road at night and in the circumstances it
would be most surprising had both of them,
or either one of them,
been travelling at a high speed. Whilst they were unable to testify
as to the precise speed because they
did not look at their
speedometers, they estimated that they were travelling at a speed of
70 to 80 km/h which appears to have
been reasonable. Furthermore,
both of these witnesses readily made concessions where concessions
were due, as, for example, when
Mr. Symons conceded that although he
could not remember seeing any lights on the plaintiff's oncoming
vehicle, they may have been
on but that he did not see them. Although
Mr. Bester, who has appeared on behalf of the plaintiff, submitted
that I should not
allow Venske's evidence to affect my decision as
she did not see the actual collision, it is so on her evidence, at
the very least,
that shortly before the collision with Symons the
plaintiff was travelling on his incorrect side of the road so much so
that he
forced Venske off the road and onto the verge. Because they
were some 200 m apart and travelling at 70 to 80 km/h, it would have
been seconds later that Symons would have encountered the plaintiff
and the probabilities are overwhelming that he would have still
been
on the incorrect side of the road as testified to by Symons himself.
Venske's evidence is furthermore of importance in highlighting
the
unreliability of the plaintiff's evidence. Not only did the
plaintiff, on his version, not see any other vehicle passing him
prior to the accident but he had no knowledge and indeed denied that
he had been on the wrong side of the road causing Venske to
swerve to
her left so as to avoid his vehicle. Accordingly, once one accepts
Venske's evidence, as I do, such evidence simply cannot
square with
the evidence of the plaintiff and one must accept that he was either
telling an untruth or that his memory as to these
events is so bad
that one simply cannot rely on it.
[12]
Mr. Bester furthermore pointed to certain contradictions as between
the evidence of Symons and Venske and as between an affidavit
made by
Symons and his evidence in court. To my mind, whilst it is so that
there are certain contradictions, these contradictions
serve to do
nothing more than support the credibility of these two witnesses in
that they establish that there has clearly been
no collusion between
them with regard to their evidence. In fact, Symons testified that
when Venske returned to the scene of the
collision she was upset
about what had happened and that the two of them had not even spoken
to one another.
[13]
When one weighs the evidence of the defendant as against the quality
of the evidence of the single plaintiff, I have to conclude
that the
version tendered by the defendant is the far more probable version.
In fact, it seems to me that the manner in which the
plaintiff
testified lends itself to a conclusion that the plaintiff did indeed
see Venske who had bright lights on when she swerved
to avoid him and
that very shortly thereafter Symons came around the corner and, as
the plaintiff himself said, swerved not because
he lost control in
coming at high-speed around the corner as testified to by the
plaintiff, but indeed as Symons said, in an effort
to avoid the
collision with the plaintiff. It must be remembered that all these
things happened very quickly and that this was
an extremely narrow
road with no clear demarcation as to where the centre was. When one
rolls all these factors together, it seems
that the only conclusion
one can come to was that indeed the plaintiff was on the wrong side
of the road but that he has since
lost his memory as to precisely
what occurred and that all these facts have become gelled into one,
in his mind.
[14]
It follows from what I have said that I accept the defendant's
version and find that the plaintiff has not established his
version
on a balance of probabilities.
[15]
However, the matter does not end there. Mr. Bester has submitted that
even on the evidence of Symons, there is room for a finding
that he
was negligent in failing to avoid the collision by taking reasonable
measures in the circumstances. He has pointed to the
fact that Symons
said that he had seen the plaintiff's vehicle when it was 30 to 40 m
ahead of him and had swerved to his right.
Had both vehicles been
travelling at the speeds testified to by the plaintiff and Symons, he
ought to have had time to swerve completely
out of the path of travel
of the plaintiff.
[16]
Ms. Ayerst, who appeared on behalf of the defendant, has submitted
the contrary pointing me to the case of
Road
Accident Fund v Grobler
(2007 (6) SA 230
SCA)
amongst others where it was said that where a driver who is faced
with an emergency situation such as where another driver enters
upon
his lane of travel, each case must be measured on its own facts but
that as a point of departure a driver ought not in the
normal course
to drive onto his incorrect side of the road in order to avoid the
oncoming vehicle. It was, however, stressed in
those cases that each
case must be decided on its own facts and it is necessary also to
take into account the options available
to the driver faced with such
a situation. For example, where there is a clear and open verge on
the left-hand side of the road
and there is time for such driver to
brake and to move off to safety on the left side, driving onto his
right hand side would,
in the circumstances, amount to contributory
negligence.
[17]
In my view, having examined this case very closely, Symons had very
little option but to move on to the right hand side of
the road, or
attempt to do so. On his evidence the left-hand side was not viable
due to the fact that there were trees and bushes
which, on his
evidence, "hung right over the road". In addition, the road
was an exceptionally narrow one with no shoulders
on either side to
provide a margin of safety. In these circumstances, an attempt to
swerve to the left would almost certainly have
resulted in his
colliding with the bushes or a tree and there is no certainty at all
that he would have avoided the collision with
the plaintiff in any
event. I accordingly, and as I have said after examining this matter
very closely, conclude that Symons evasive
action cannot be
questioned in these circumstances.
[18]
In the result, I have to find that the plaintiff has not established
his case on a balance of probabilities and, accordingly:
The
plaintiff's action is dismissed with costs.
___________________________
JUDGE
OF THE HIGH COURT
HEARD
ON
: 02 JUNE 2015
DELIVERED
ON
: 04 JUNE 2015
COUNSEL
FOR PLAINTIFF :
Mr Bester
INSTRUCTED
BY
: Matyeshana Moodley
Inc.
COUNSEL
FOR DEFENDANT :
Mrs Ayerst
INSTRUCTED
BY
: Bate Chubb &
Dickson Inc.