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South Africa: North Gauteng High Court, Pretoria
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[2014] ZAGPPHC 28
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Sakwati v Road Accident Fund (33687/12) [2014] ZAGPPHC 28 (20 February 2014)
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Certain
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REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
(NORTH GAUTENG, PRETORIA)
CASE NO:
33687/12
DATE:
20/2/2014
In the
matter between:
TAWANYANA
PIETER
SEKWATI
...........................................................
Plaintiff
And
ROAD
ACCIDENT
FUND
....................................................................
Defendant
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 15
th
August 2009. At the time of
the accident, the plaintiff was a driver of a motor vehicle with
registration number M[…]. The
insured driver was driving motor
vehicle with registration number W[…].
[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