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[2014] ZAGPPHC 31
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Meso v Road Accident Fund (11400/12) [2014] ZAGPPHC 31 (17 February 2014)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION: PRETORIA
CASE
NO: 11400/12
DATE:
17 FEBRUARY 2014
REPORTABLE
In
the matter between:
MANAPE
ALFRED MESO
…........................................................
PLAINTIFF
and
ROAD
ACCIDENT FUND DEFENDANT
JUDGMENT
KHUMALO
J
Date
of hearing: 11 October 2013
INTRODUCTION
[1]
In an action instituted against the Road Accident Fund (“the
Defendant”),
a
juristic person established in terms of the provisions of s 2 (1) of
the Road Accident Fund
Act
56 of 1996
(“the
Act”) liable for compensation of victims of motor vehicle
accidents in accordance with the Act,
for
damages for personal injuries sustained in a motor vehicle accident
by the Plaintiff, t
he
Defendant is challenging the cause of action to be inaccurate and
raises prescription as a defence.
[2]
The
Plaintiff is a 46 year old police officer holding the rank of captain
in the South African Police Service (“SAPS”).
O
n
4 May 2008 at about 8 o’clock in the morning, he was driving an
SAPS
motor
vehicle with registration number V[…]
along
the
Mongwadi-Polokwane
Road at Mongwadi location towards Polokwane when
he
lost control of the motor vehicle. It overturned and tipped over the
barrier on the left hand side of the road. He sustained
serious
bodily injuries.
[3]
Consequently, on 14 March 2011, he lodged his claim with the
Defendant in accordance with the provisions of the Act.
[4]
On
23 February 2012, summons were on his behalf issued against the
Defendant for a claim of
an
amount of
R3 100 000.00
for damages for the injuries he sustained. In the particulars of
claim, he alleges that the accident occurred
as a result of the sole
negligent driving of a motor vehicle bearing registration numbers L
[...] (“the insured vehicle”)
that obstructed him, driven
by a driver (“the insured driver”) whose further
particulars are unknown to him and whose
sole negligent caused the
accident in one or more of the following ways, he;
[4.1]
failed to keep a proper lookout;
[4.2]
drove his vehicle at a speed that exceeded the speed limit;
[4.3]
failed to apply brakes of the insured vehicle timeously, adequately
or at all;
[4.4]
failed to give any/ or adequate clearance when attempting to pass
Plaintiff, who was a pedestrian at the said time;
[4.5]
failed to avoid the collision when, by the exercise of reasonable
care and consideration, he could and should have done so;
[4.6]
failed to give any /or adequate warning of his approach;
[4.7]
failed to keep the insured vehicle under proper and/or adequate
control.
A
mechanical recital of the standard averments that are usually
mentioned in damages claims resulting from motor vehicle accidents.
Plaintiff was not a pedestrian at the time of the accident.
[5]
Except for
admitting
to the name of the plaintiff, its own
locus
standi
and
the
occurrence of the accident
between
the two vehicles mentioned by the Plaintiff,
the
Defendant in its Plea
denied
every
other
allegation
in the Plaintiff’s particulars of claim, particularly that the
unknown driver was negligent as alleged by the Plaintiff
or at all,
putting the Plaintiff to the proof thereof and pleading that
if
the court finds that the accident occurred as alleged by Plaintiff,
or at all but that insured driver was negligent, it denies
that such
negligence caused the collision and stated that the Plaintiff was the
sole cause of the accident, in that he either:
[5.1]
failed to keep a proper look out; and or
[5.2]
failed to avoid a collision when by the exercise of reasonable care
and skill he could and should have done so; and or
[5.3]
failed to take the rights of the other road users, more particularly
that of the insured driver into account; and or
[5.4]
omitted to brake, alternatively brake timeously, alternatively brake
at all, alternatively the braking system of the vehicle
he was
driving was defective; and or
[5.5]
was travelling too fast under the traffic conditions; and or
[5.6]
failed to keep control alternatively, keep proper control of the
vehicle.
Pleading
also contributory negligence as aforementioned and apportionment of
damages, if the court finds the insured to have been
negligent.
[6]
The Defendant also pleaded in the alternative that, if the court
finds that Plaintiff sustained injuries and suffered damages
as a
result of insured driver’s negligence
,
then
Plaintiff negligently contributed to causing the injuries sustained
in that he failed to fasten, alternatively to properly
fasten the
safety seat belt and had he done so he would have either avoided
injury or suffered injury to a lesser extent, as a
result praying for
Plaintiff’s claim to be dismissed.
[7]
Subsequently both parties amended their pleadings. The Plaintiff by
notice delivered on 11 September 2013, increased his claim
to R4 100
00.00, whilst the Defendant, three (3) days before trial, delivered
his Plea as amended, setting forth a Special
Plea of Prescription
that
“
The
Plaintiff’
claims damages in terms of the Act for personal injuries allegedly
sustained in a motor vehicle on 4 May 2008.
The Plaintiff’s
claim was lodged on 14 March 2011, which is after the prescribed two
(2) year period for unidentified claims.
The
Defendant pleads that it does not incur any liability in respect of
the Plaintiff’s claim as it has become prescribed
in terms of
the provisions of the Act.”
[8]
The Defendant also amended its Plea to the effect that it admits to
the accident involving only the motor vehicle driven by
the
Plaintiff, whilst persisting with the other denials. Also that, if
the court found that Plaintiff’s path of travel was
indeed
obstructed by another vehicle that was negligent as alleged or at all
then it denies that the negligent driving of that
other motor vehicle
was the sole cause of the accident, and continued to claim in the
alternative, contributory negligence and
the apportionment of damages
in terms of the Apportionment of Damages Act 34 of 1956, as amended.
[9]
It also persisted in its Plea
that
the Plaintiff was the sole cause of the accident
in
one or more ways as previously mentioned.
[10]
I have to mention that the formulation of the particulars of claim
and both Pleas, to an extent, lacked clarity and order,
signifying
some kind of sloppiness.
[11]
In their pre-trial minutes dated 10
th
October
2013, the parties agreed that:
[11.1]
Plaintiff file a Replication to Defendant’s Special Plea.
[11.2]
that the issue of merits, specifically whether or not there was
another vehicle involved in the collision, remained to be
decided, as
well as that of the Special Plea.
[11.3]
if Plaintiff’s claim is an unidentified claim as envisaged in
terms of the Act then in that event the claim has
become
prescribed at the time it was lodged
and
if it is an identified claim then the Plaintiff’s claim has not
prescribed.
[12]
At the beginning of the trial,
an
agreement between the parties under rule 33(4) of the Uniform Rules,
separating
the
issue of liability from that of the extent of damages
was
made
an
order of court and the latter issue postponed for later
determination
.
The
trial then proceeded on the issue of liability.
THE
APPLICABLE LAW
[13]
In terms of s 17 (1) of the Act, the Defendant is obliged to
compensate any person (the third party) for any loss or damage
which
a 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 negligent driving of motor
vehicles whether or not the identity of the owner or
driver of the
motor vehicle that caused the accident is established.
[14]
The claims are generally differentiated and referred to as
“identifiable claims” and “hit and run”
or
“unidentifiable claims”. The section provides, in respect
of unidentifiable claims, for the claim to be made against
the
Defendant subject to any regulation made under s 26 and for those
identifiable, the Act in s 24 provides for compliance before
the
right to claim can be exercised.
[15]
Regulation 2 (1) (b) promulgated under s 26 of the Act prescribes
that if the driver or owner of the negligent vehicle is unidentified,
the claim is to be lodged with the Defendant within two (2) years
from the date of accident or resultant death. In terms of this
section, a claim instituted outside the prescribed time limit becomes
extinct, that is non-existent. Therefore, not
withstanding
anything to the contrary contained in any law, a claim for
compensation shall be sent or delivered to the Fund within
two years
from the date upon which the cause of action arose, failing which the
right to enforce the claim, terminates. See regulation
2 (2);
Msomi
v SA Eagle insurance
1983
(4) SA 592
at 597.
[16]
It is of cardinal importance to note that in the case of an
unidentified driver or owner of the negligent motor vehicle, it
is
the lack of establishment or proof of identity of the driver or owner
of the negligent motor vehicle that determines the prescription
period applicable, notwithstanding
any
legal disability to which the third party concerned may be subject
as
provided in regulation 2(2)
.
[17]
Also, strictly speaking, it is not the vehicle that is unidentified
but the driver and owner thereof; see H B Klopper,
The
Law of Third-Party Compensation
,
3ed. accordingly, a person will not be regarded as
prima
facie
identified:
[17.1]
if only a registration number and the description of the vehicle is
submitted;
[17.2]
if only a registration number is submitted;
[17.3]
if only a name is given.
[18]
The identity of the negligent driver or owner of the negligent
vehicle is established if his name and residential, postal or
work
address, are furnished at the time of lodging the claim, even without
the vehicle registration number, however if known they
should be
furnished together with the identity number. The address can also be
a telephone number, or a description of where the
person may be
found.
[19]
For proper assessment of claims, strict and accurate compliance with
the procedure prescribed by the Act is required to give
the
Defendant the opportunity to undertake the investigations necessary
so as to safeguard its resources against fraud. See
Road
Accident Fund v Thugwana
2004
(3) SA 169
(SCA)
and
Moskovitz
v Commercial Union Assurance Co of SA Ltd
1992
(4) SA 192
(W).
[20]
T
he
Defendant’s liability is imposed in circumstances contemplated
in the Act, only to a third party, it is not, under any
liability to
a negligent driver who inflicts loss or damage to himself or herself.
Therefore a
person
who is solely responsible for their own injury does not have a claim,
however a person whose injuries were caused partly
by his own fault
and partly by the fault of another motorist is entitled to
compensation. See
Smith
v RAF
[2006] ZASCA 15
;
2006
(4) SA 590
SCA. Then again,
if
the identity of this other motorist is unknown or not established the
claim is unidentifiable and should be instituted in terms
of s 2 (1)
(b) within the prescribed 2 year period.
[21]
In this matter on the two questions to be answered, that is, if there
was another car that caused the accident? and whether
it was
identified? The second question does not arise if the answer to the
first one is in the negative.
LODGMENT
OF THE CLAIM
[22]
When Plaintiff lodged his claim with the Defendant on 14 March 2011,
almost 3 years from the date of accident, it consisted,
inter alia,
of a Form 1 as
per
provisions
of s 23 of the Act signed by the Plaintiff on 29 May 2009. On item 2
of the Form, the particulars of the motor vehicle
from the driving of
which the Plaintiff’s claim arose are stated as “V[…]“,
which is the registration
number of the SAPS motor vehicle that
overturned driven by the Plaintiff. Further on, Plaintiff’s
details are completed where
the particulars of the driver of the
negligent vehicle are required. The question relating to the steps
taken to identify the driver
or owner was left blank. On Item 4 that
requires the particulars of the other motor vehicle involved in the
accident, the registration
number “L[…]” was
completed and the name of the owner stated as “
unknown
”
.
The field in respect of the name and address of the driver and
address and occupation of owner were left blank. The lodged documents
included a sketch, plan and key that was not disputed by the
Plaintiff. It shows brake marks only from the Plaintiff’s line
of travel to the left and off the barrier. The accident is described
in the plan and key as only of a car as ‘
one
car that lost control towards left side after the bridge and
overturned.’
[23]
Attached to the form was also Plaintiff’s Affidavit made to the
police a month after the accident on 15 June 2008. In
the relevant
part of the Affidavit he states the following:
I
was travelling +-110 km/h while a certain car I saw was coming to my
direction. When that car was approaching me another vehicle
overtook
that said car and I had to avoid a head on collision then I swerved
to the left hand side of the road whereby I lost control
of the
vehicle and my vehicle overturned.
[24]
Consequently at the time when Plaintiff’s claim was lodged with
the Defendant, the message conveyed by the documents,
particularly on
Form 1, was that the motor vehicle from which the claim arose was the
one driven by the Plaintiff and the name
and address of the driver of
the other motor vehicle involved was not known to the Plaintiff. The
claim would therefore have been
assessed by the Defendant as a
non-liability claim since the driver of the motor vehicle from whose
negligence the claim is lodged,
is identified as the Plaintiff who is
non-suited as a claimant. The Defendant repudiated the claim. It
would have regarded itself
as not liable on the basis that the
Plaintiff is not a third party but the wrongdoer (according to Form
1) to whom a right of recourse
against the Defendant is not extended.
[25]
It is evident that Plaintiff’s Form 1 was completed
incorrectly.
[26]
As a result when Plaintiff instituted the action for damages, he
alleged in his particulars of claim that it was the negligent
driving
of the other motor vehicle with registration number L[…] (the
insured motor vehicle) driven by an
unknown
driver
that
caused the accident. After delivering its Plea, the parties held a
pre-trial meeting on 17 May 2012, the Defendant confirmed
that it
will investigate the identity of the driver or owner of the vehicle
and indicate its position with regard to Plaintiff’s
claim on
the merits. Defendant later amended its Plea denying that there was
another car involved in the accident and adding a
Special Plea that
at the time of lodgement, the claim had prescribed as it was an
unidentifiable claim.
[27]
Regardless of what the Plaintiff pleaded in its particulars of claim,
he persisted in alleging that his claim is an ‘identifiable
claim’ and also to challenge the proposition that no other
motor vehicle was involved in the accident, but failed to file
a
Replication.
[28]
On the other hand, irrespective of Plaintiff being bound by the cause
of action set out in his particulars of claim, the parties
agreed
that on trial the onus was with the Plaintiff to prove that there was
another car that was involved in the accident with
its driver or
owner identified to refute prescription as
per
Defendant’s
Plea.
[29]
In
Cf
Pretorius
v SA Eagle Versekeringsmaatskappy Bpk; Pretorius v Multilaterale
Motorvoertuigongelukkefonds
1998
(1) SA 33
(T)
at 46I-47E, the judgment was upheld on appeal on
[1997]
ZASCA 107
;
(1998
(2) SA 656
(SCA))
though this particular aspect was not discussed, Swart J held that:
“
in
deciding whether liability under the Multilateral Motor Vehicle
Accidents Fund Act 93 of 1989 lay with the insurance company
or the
Fund, the question whether the owner and driver were unidentified had
to be decided at the time of the trial, not at the
time the claim
form was lodged.”
EVIDENCE
[30]
On trial,
evidence
was submitted on behalf of the Plaintiff
,
by the Plaintiff himself and one Mamathiki Lodwick Mphaho (“Mphaho”).
T
he
defendant did not put forward its version, leaving the merits to be
decided on the basis of Plaintiff’s evidence.
[31]
According to the Plaintiff, during that period he
worked
as an enforcement officer and a fieldworker. On the day of the
accident he was driving from Dendron going to Pietersburg
to meet
with an informer. He placed himself on duty. It was an early sunny
morning and the tarred road was in a good condition.
He was driving
at a speed of 110 km/h and approaching and about to enter a bridge,
when a motor vehicle from the oncoming traffic
that was overtaking
moved into his lane from a distance of about 500 metres. The accident
happened near the bridge when he had
already entered the bridge
.
H
e
tried to swerve to the right hand side then lost control
.
There
are cross bars on both sides of the bridge. It happened very quickly
and the car capsized. He sustained injuries and was trapped
in the
car.
[32]
Under cross examination his evidence was that
he
received the information about an informant on that Sunday morning.
The
previous night he slept at Dendron with family, having travelled with
them from his home in Mamelodi and arrived at Dendron
on Saturday
morning. He stayed with family until Saturday night. He then turned
around and said he
received
his first call on the informant on that friday whilst still in
Mamelodi.
Even
though
it is standard procedure to make an entry in the Occurrence Book
(“OB’), he did not make an entry when he took
the state
motor vehicle as he was supposed to be discreet. The standard
protocol is not to reveal the identity of the source or
reason for
going out. He wanted to contact his boss the Station Commissioner
Mothle first and could not locate him on his phone.
He normally
phones and inform him that there is a possibility he might go out
because when they work with informers they don’t
disclose the
whole information. At the time he ran intelligence and made arrests.
His family was with him in the motor vehicle
when the accident
occurred and they also made statements about the accident, but he did
not tell them anything and they were not
going to assist him with the
arrest.
[33]
Further on, still under cross examination he testified that he
received the calls from an informant before he took the motor
vehicle
and
placed
himself on duty
that
Friday
afternoon
.
He then drove straight to Dendron, but because the informant and the
people shifted from where they had the dagga to another place,
he
then on Sunday early in the morning drove to Pietersburg where they
were supposed to be at a house with the drugs with the informer
watching, to make the arrest but they moved to somewhere else that is
when he passed on to Dendron. The informer was in Pietersburg,
slept
at Dendron that night.
[34]
When he was confronted with the inconsistencies in his police
statement, evidence in chief and during cross examination, namely,
inter alia, the day he received information on the informant and
placed himself on duty if it was on Sunday, as in accordance with
his
evidence in chief and police statement, or Friday, as testified under
cross examination. His response was that he made the
police statement
whilst he was paralysed, so he could not read the statement after it
was written by the police, however he told
them that he took the car
on Friday afternoon and placed himself on duty. He subsequently gave
the following version to explain
the other inconsistencies:
[35]
A blue sedan came into his lane at
about
500 metres,
trying
to overtake 5 cars in front of it
.
He saw that it was going to collide with him head on so
he
swerved to the right and when he went back to the left lane that is
when the car capsized
.
There
are 2 lanes on each side going the opposite direction (dual
carriageway). There was no space on the side. There are barriers
and
he did hit a barrier on the left side of the road and tipped over. In
front of the five cars that the blue sedan was overtaking
was a
Quantum Combi.
He
went to the right first as the brake marks show on Makgabo’s
report as he was trying to give the overtaking car a chance
to pass
without
colliding
with the 5 cars
.
His affidavit to the police is not correct that he only swerved to
the left.
The
car was a Toyota sed
an
,
when they were facing each other he swerved to the right and the
insured car passed him on the left, that is, when he swerved
back to
the left
.
He
was very close to the wall 8 to 10 metres away from the oncoming
cars.
H
e
swerved back to the left and hit the iron bars after all the cars
have passed on the left
.
He
did not collide with any of the oncoming cars. He did not contact any
of the cars as he was hospitalised for
nearly
a year
and
on discharge on 28 August 2008, he was charged with negligent
driving. The charges were later withdrawn.
He
does not dispute the sketch, plan and key of the accident but could
not explain why it had only break marks of his car and why
the
accident report by Inspector Seanego states that only 1 car was
involved.
[36]
He met the witness Mpheho, a day before trial when he called him as
he was told that Mpheho has to come to court.
They
discussed the matter on their way to court.
He
could not explain why when he was charged with reckless driving 7
months later he did not point out that there was another vehicle
that
caused the accident, even when he was making a statement to the
police and said he never thought of doing so. He also could
not
explain the inconsistencies of his testimony with the police
statement on how the accident occurred. On re-examination he
explained that the description of the accident scene on the report is
what Inspector Seanego observed on his arrival at the scene.
Seanego
did not ask him anything, and could not explain the inconsistency
with his testimony.
[37]
Plaintiff’s statement to the police stated that on Sunday
2008-05-04 at about 8h30 he was off duty when he received sensitive
information from a registered informer who happened to stay in
Polokwane and he decided to place himself on duty as he had to follow
that particular information. He was driving the state owned motor
vehicle. He decided to place himself on duty as a result of the
unavailability of the station commissioner who was out of town,
knowing that if he was available he could have placed him on duty
and
allowed him to use the state vehicle for the purpose of visiting the
registered informer. He was travelling +-110 km/h when
he saw a
certain car travelling to the opposite direction approaching. When
that oncoming car was approaching him another vehicle
overtook that
car and he had to avoid a head on collision so
he
swerved to the left hand side of the road whereby he lost control of
the vehicle
and
his vehicle overturned.
[38]
Mphaho, testified that he was employed at Imvula Quality Production
in Polokwane as a security officer at the time and patrolling
Telkom
sites between Dendron and Polokwane. On 4 May 2008 while on patrol
and driving behind a white Toyota Corolla on a speed
limit of about
100 to 110km/h at a 120km/h zone on the Mongwadi Road, a
blue
golf from the oncoming traffic moved into their lane, whilst
overtaking.
They
were going to collide with it head-on as it was heading towards the
white Toyota and him. He took his foot off the accelerator
and
reduced speed.
The
blue golf was overtaking the cars in front of it and these cars were
not giving it a chance to go back to the lane.
He
realised that the car was going to collide with the Toyota in front
of him and the
Toyota
driver saw that the blue car was close and tried to swerve to the
right a little bit and swerved to the left
.
He was already out and used the brakes. If the blue car missed the
Toyota it was going to collide with him on the wrong lane
.
The blue golf did not stop, it drove off.
He
managed to quickly take the number plates
of
the golf that was passing and the white Toyota fell into a ditch.
[39]
Since the day of the accident he
saw
the Plaintiff the day he came to see him at his work
.
Plaintiff phoned him and asked him about the accident. After he told
him the story he then asked for permission at his work to
come with
the Plaintiff to court.
He
did see the car falling over the bridge but he did not stop. Since
then he could not stop wondering what happened to the passengers.
It
bothered him, so on 30 December 2010, 2 and a half years later he
went to the police to find out if the people in the car survived.
He
gave the police the date and the registration number of the blue golf
that was involved to the investigator, Mr Moraka.
[40]
He testified under cross examination that he was driving a 1400
Nissan bakkie and several cars were behind him. There were
about 4
cars that the blue golf was overtaking and could not go back to its
lane. When it moved into their lane it was not far,
it was clear that
it was going to cause an accident. He reduced speed and moved out of
the road, not sure of the distance of the
blue golf at the time.
The
Plaintiff
swerved
slightly to the right and then left, afraid of the head on collision
,
the
blue golf was passing at the time that is
when
he got a chance to write down the number plate
.
The total number of the people in the SAPS motor vehicle was about 5
and 2 out of the 5 were trapped in the vehicle. There was
another
vehicle, a combi, whose occupants started helping. He did not wait
for the police or the paramedics, when cars started
stopping at the
scene, he went to work. There was no way he could have helped them
and
he
also did not help the police
that
is why the whole thing was troubling him
.
He
realised that the car was not going to stop and quickly memorised the
number plates and wrote them down after the accident on
an occurrence
book.
He
did not have the idea to help because he was still on duty. Always
when he passed the place of accident he wondered about the
people in
the accident.
[41]
He could not explain why Plaintiff’s version was that the
insured vehicle passed first and then he swerved to the ditch,
although he could see what was happening all around him. When he went
to the police station he was going to enquire about the lives
of the
people involved and not to report the accident.
The
number he wrote is the registration number he saw on the motor
vehicle that was overtaking
.
He could not explain how he could have avoided the accident if he was
20 metres behind the Plaintiff and with several cars behind
him and
why the number plates reported in the particulars of claim are of a
Ford Corum that has been reported stolen and driver
not involved.
ANALYSIS
OF THE EVIDENCE:
[42]
The Plaintiff’s evidence had material inconsistencies which
remained unexplained or got more bewildering as he tried
to explain
them and continued to testify. He entangled himself in
incomprehensible explanations, making it difficult for anyone
to
understand as to which version he was exactly standing by. The
version he finally chose is so improbable to can be conceived
as the
truth. In certain instances during cross examination he was so
obviously untruthful that it is difficult to imagine any
word that he
said to be true.
[43]
It is obvious that he took the SAPS motor vehicle without permission,
whilst on leave and when he got involved in an accident,
he
fabricated a story about the informant, to explain his possession of
the vehicle at the time, which explains the inconsistencies
in his
version, namely,
inter
alia
,
the exact day that he got the information about the informant and
placed himself on duty and what he did when the motor vehicle
alleged
to have been overtaking was approaching, which were too many and
serious. It further explains his changing story on how
exactly the
accident occurred that his whole evidence could not be held to be
credible. It is not necessary to repeat all of the
inconsistencies
since his evidence is dealt with at length.
[44]
Mphaho’s evidence, regrettably carries not much weight either,
since he not only contradicted the various versions by
the Plaintiff
on how the accident happened, and on the make of the motor vehicle
alleged to have been overtaking, which he said
was a blue golf whilst
Plaintiff identified it as a blue Toyota sedan. The explanations he
gave also for his irrational behaviour
did not make sense.
[45]
His reason for not stopping and assisting the injured or submitting
the registration number of the alleged offending motor
vehicle when
in accordance with his testimony, he was aware that the people in the
Plaintiff’s car could have been dead,
dying or seriously
injured is unconvincing. It therefore begs the question as to what
was his reason for writing down or memorising
the registration number
if he was not going to tender it to the police or the people
involved? Since it is also his testimony that
his visit to the police
station, 2 and a half years later, was not to hand over the
registration numbers but to check whether the
people died or
survived. The alleged conduct was highly irrational. Furthermore, the
occurrence book wherein he wrote the number
was not discovered,
neither submitted as evidence in court nor was much said about it.
[46]
Furthermore, according to them the move of the motor vehicle that was
overtaking into their lane was inopportune, and Mphaho
was 20 metres
behind the Plaintiff with other motor vehicles behind him, it is
therefore highly improbable that he could manage
to manoeuvre a move
so quickly to avoid the accident, as the situation required, and at
the same time stop and memorise the registration
number, if the
overtaking motor vehicle did not stop or reduce its speed. There was
also no indication of how long after the accident
occurred did he
then write the memorised number in the OB, to allay the fear of
falsification, fabrication or error. He also could
not explain how he
managed to preserve or keep the information for all those years
seeing that the OB belongs to the company and
unlikely that he would
have his own OB to keep as he alleged.
[47]
Plaintiff had 4 other passengers in his motor vehicle who were
injured when the accident happened, who could have corroborated
his
story but he suspiciously left these witnesses out. Whilst Mphaho’s
sudden change of heart after 2 and a half years the
accident occurred
to respond to a sense of morality and go to the police station and
supply the missing link is very opportunistic.
His conduct is not
only inexplicable but his evidence leave many questions unanswered
that the truthfulness and genuineness thereof
is questionable.
Besides, the contradiction between Plaintiff and his version make the
credibility of their evidence doubtful and
therefore unreliable.
[48]
The evidence therefore put forward by the Plaintiff lacks credibility
and cannot be relied on to determine the issues between
the parties.
Plaintiff has as a result failed to prove on a balance of
probabilities that the accident was caused by another motor
vehicle.
The second question therefore does not arise.
[49]
Mr Wastenbaar’s submission, that the evidence that was led
before court by the Plaintiff is the direct opposite of what
is
alleged by the Defendant, as the driver of the guilty vehicle was
duly identified by the independent witness and there is no
evidence
to the contrary to dispute that. In consequence this means that the
Plaintiff’s claim has not prescribed and its
duly identified
thus lodged within period of three years, is way off the mark. The
evidence was an unsuccessful attempt to put
the blame on the other
car. Then again, the registration number of the car does not identify
the driver or owner.
[50]
This validates the concern that Bertselman J sitting as a full bench,
raised when he encouraged compliance with the Act facilitating
the
ability of the fund to be able to identify deserving claims in
Pithey
v Road Accident Fund
(A375/2010)
[2012] ZAGPPHC 158;
2013 (5) SA 226
(GNP) (10 August 2012); opining
that:
“
the
respondent is funded by and administers public funds obtained from
the taxpayers' pockets. It must therefore take care that
it is not
duped by dishonest plaintiffs or greedy legal representatives
prepared to fraudulently enrich themselves from the funds
intended to
compensate road accident victims, the majority of whom are poor. It
must also guard against honest but mistaken claims
advanced by
persons who may not be entitled to any award because they cannot
bring their claim within the ambit of the Act and
the Regulations
promulgated thereunder.”
[51]
Under the circumstances, the following order is made:
[51.1]
Plaintiff’s claim is dismissed with costs.
N
V KHUMALO J
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION
Appearing
for Plaintiff: Advocate D E Westebaar
Instructed
by: T R Rampatla Inc, Pretoria
(012)
321 4660
Appearing
for Defendant: Advocate S G Maritzl
Instructed
by: Dyason Incc, Pretoria
(012)
452-3500