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South Africa: North Gauteng High Court, Pretoria
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[2014] ZAGPPHC 23
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Sekwati v Road Accident Fund (33687/12) [2014] ZAGPPHC 23 (20 February 2014)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
(NORTH GAUTENG,
PRETORIA)
CASE
NO: 33687/12
DATE:
20 FEBRUARY 2014
In the matter
between:
TAWANYANA PIETER
SEKWATI
..............................
Plaintiff
And
ROAD ACCIDENT
FUND
.....................................
Defendant
DATE: 20/2/2014
JUDGMENT
KGANYAGO AJ
[1] The plaintiff in
this matter is claiming damages arising out of a motor vehicle
accident. It is common cause that the accident
occurred on the 15th
August 2009. At the time of the accident, the plaintiff was a driver
of a motor vehicle with registration
number MTG 178 GP. The insured
driver was driving motor vehicle with registration number WXZ 368 GP.
[2] The plaintiff
alleges that the insured driver was the sole cause of the collision.
The insured driver denies the allegations
levelled against him.
[3] At the
commencement of trial, the parties agreed to separation of the issue
of merits and quantum of damages of the plaintiff’s
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 he
was driving from east to west on Church Street.
At Church and Hill
Street he found the insured vehicle which was stationery indicating
to turn right into Hill Street. When he
was about 3 metres from the
insured vehicle, the insured driver turned into Hill Street, and that
is when the collision occurred.
He tried to apply brakes but as the
insured vehicle was too close, he could not succeed.
[5] The whole front
portion of his (plaintiff) vehicle was damaged. He was taken to
hospital.
[6] Under
cross-examination the plaintiff stated that the point of impact was
on the lane in which he was travelling. He denied
that initially he
was indicating to turn left into Hill Street. He denied that he
collided with the insured vehicle which was stationery,
but that at
the time of the collision it was turning into Hill Street. He could
not state where on the body was the insured vehicle
damaged.
[7] The insured
driver testified. He testified that he was travelling from west to
east on Church Street. At corner Church and Hill,
he stopped and
indicated to turn right into Hill Street. The plaintiff was
travelling from east to west on Church Street and was
indicating to
turn left into Hill Street. The plaintiff did not turn into Hill
Street, but proceeded straight on Church Street
and he collided with
his stationery vehicle.
[8] His vehicle was
damaged on the right front corner. He could not avoid the collision
as his vehicle was stationery.
[9] The insured
driver was cross-examined and he denied that he was the sole cause of
the accident.
[10] It is common
cause that both were vehicles travelling in opposite directions. No
sketch plan of the scene of the accident was
presented during the
trial. It was the insured driver who drafted his own sketch plan
during cross-examination. There is a dispute
in in relation to where
the point of impact occurred.
[11] The court is
confronted with two mutually destructive versions of how the accident
occurred. I must decide on a balance of
probabilities, whether the
plaintiff’s version, that the insured driver was turning into
Hill Street when the collision occurred,
is more probable than the
insured driver’s version that he was stationery when the
collision occurred.
[12] In the case of
Stellenbosch Farmers Winery Group Ltd and another v Martell et Cie
and others 2003 (1) SA (SCA) at paragraph
5, the court said the
following:
“On the
central issue, as to what the parties actually decided, there are two
irreconcilable versions. So, too, on a number
of I peripheral areas
of dispute which may have a bearing on the probabilities. The
technique generally employed by courts in resolving
factual disputes
of this nature may conveniently be summarised as follows. To come to
a conclusion on the disputed issues a court
must make findings on (a)
the credibility of the various factual witnesses; (b) their
reliability; and (c) the probabilities. As
to (a), the court's
finding on the credibility of a particular witness will depend on its
impression about the veracity of the
witness. That in turn will
depend on a variety of subsidiary factors, not necessarily in order
of importance, such as (i) the
witness' candour and demeanour in the
witness-box, (ii) his bias, latent and blatant, (iii) internal
contradictions in his evidence,
(iv) external contradictions with
what was pleaded or put on his behalf, or with established fact or
with his own extracurial statements
or actions, (v) the probability
or improbability of particular aspects of his version, (vi) the
calibre and cogency of his performance
compared to that of other
witnesses testifying about the same incident or events. As to (b), a
witness' reliability will depend,
apart from the factors mentioned
under (a)(ii), (iv) and (v) above, on (i) the opportunities he had to
experience or observe the
event in question and (ii) the quality,
integrity and independence of his recall thereof. As to (c), this
necessitates an analysis
and evaluation of the probability or
improbability of each party's version on each of the disputed issues.
In the light of its
assessment of (a), (b) and (c) the court will
then, as a final step, determine whether the party burdened with the
onus of proof
has succeeded in discharging it. The hard case, which
will doubtless be the rare one, occurs when a court's credibility
findings
compel it in one direction and its evaluation of the general
probabilities in another. The more convincing the former, the less
convincing will be the latter. But when all factors are equipoised
probabilities prevail.”
[13] The facts of
how the collision occurred are in dispute. However, both parties
contend that their vehicles were damaged on the
front portion of
which in my view will now look like a head on collision.
[14] If I were to
take the plaintiff’s version that the collision occurred when
the insured vehicle was in the process of
turning into Hill Street,
the plaintiff’s vehicle would have been damaged on the front
portion whilst the insured vehicle
would have been damaged on the
left passenger side.
[15] If both
vehicles are damaged on the front portion, that support the version
of the insured driver that the plaintiff collided
with him whilst he
was stationery facing to the east and indicating to turn right to
Hill Street.
[16] The plaintiff
has failed to submit a sketch plan or photos of the scene which shows
the point of impact. The sketch plan drawn
by the insured driver
support his version.
[17] The plaintiff
testified that there was a combi which was driving on the extreme
lane and he was driving on the right lane.
According to the
plaintiff, he and the said combi were travelling in the same
direction. The impression created is that he would
not swerve to the
left lane because of the combi. However, he could not tell what
happened to that combi. The insured driver denies
that there was any
combi. Therefore, in my view, the version that there was a combi, I
find to be improbable.
[18] In my view, it
is highly improbable that the insured vehicle can be damaged in the
front portion if indeed it was already in
the process of turning
right into Hill Street. The probable version is that the plaintiff
collided with the insured vehicle which
was stationery facing east,
hence both vehicles were damaged in front. I therefore, find that on
a balance of probabilities, the
collision occurred in the insured
driver’s lane and that at the time of the collision, the
insured vehicle was stationery.
Therefore, there is no negligence
that can be attributed to the insured driver.
[19] Under the
circumstances, the plaintiff’s case is dismissed with costs.
M F KGANYAGO
ACTING JUDGE OF
THE HIGH COURT