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2014
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[2014] ZAGPPHC 178
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Rankuwe and Another v Road Accident Fund (A457/13) [2014] ZAGPPHC 178 (4 April 2014)
REPUBLIC OF SOUTH
AFRICA
GAUTENG HIGH
COURT DIVISION, PRETORIA
Appeal
Case No.: A457/13
DATE:
04 APRIL 2014
In the matter
between:
HARRY
RANKUWE
..........................................
1st
Appellant
HARRY
RANKUWE
........................................
2nd
Appellant
(obo MPYE KARABO)
And
ROAD ACCIDENT
FUND
..............................
Respondent
MNGQIBISA-THUSI,
J
1. The appellant
(first plaintiff in the court a quo) is appealing against the whole
judgment of Magistrate Louw, granting absolution
from the instance
against the appellants' claim for damages from the respondent. In
these appeal proceedings I will refer to the
parties as in
convention.
2. The plaintiff
instituted a claim for damages in his personal capacity and in a
representative capacity on behalf of his minor
daughter, Mpye Karabo
Rankuwe ("Karabo"), against the respondent for the loss
suffered as a result of injuries he and
Karabo sustained in a motor
vehicle collision that occurred on 14 May 2007. The collision
occurred between a motor vehicle bearing
registration number FMJ 603
NW, driven by the plaintiff and motor vehicle bearing registration
number KHZ 214GP, driven by the
insured driver.
3. By agreement, the
claims of the plaintiff and Karabo were consolidated.
4. At the beginning
of the trial proceedings the Magistrate was informed by counsel for
the plaintiff that there was agreement between
the parties on the
point of impact as indicated by an "X" on the rough sketch
plan of the accident scene, drawn by Constable
Ngwako Johannes Mnisi
("Mnisi"). Mnisi was the first police official to arrive at
the accident scene. The respondent's
counsel did not dispute this
assertion and it was accepted as such by the court. The "X",
as the point of impact is indicated
on the correct driving lane on
which the plaintiff was driving.
5. In brief the
plaintiff's evidence was that on the morning of 7 May 2007, he was
driving with Karabo as his passenger along an
unnamed road in
Ga-Rankuwa. He was driving in an east-westerly direction towards a
T-junction where there is a stop sign. At the
T-junction he stopped
and when it was safe for him to enter the road, going from south to
north, he turned right towards the northerly
direction, driving at
approximately 20km per hour. After making a complete right turn he
saw the insured driver's car coming from
a sharp curve on the road,
travelling from north to south. He testified that the insured driver
was travelling at an estimated
speed of 80-100 km and appeared to be
losing control of his vehicle. The insured driver swerved to the
right
towards his lane,
colliding with him just inside his correct driving lane, at the point
of impact agreed upon.
6. As a result of
the collision he and Karabo, including the insured driver sustained
injuries. The plaintiff's vehicle's front
portion was damaged and
that of the insured driver in the middle of the left side. Further,
it was the plaintiff's evidence that
as a result of the collision,
his car spun around and ended up facing in a westerly direction.
7. During
cross-examination the plaintiff did not deviate from his evidence in
chief. The version put to the plaintiff was that
the insured driver
would testify that at the time of the accident, he was driving at
60km per hour that the plaintiff turned right
at a high speed without
stopping at the stop sign, driving onto the incorrect lane after
cutting across the T-junction and collided
with the insured driver.
However, the point of impact as described above was not disputed.
8. Constable Mnisi
also testified. Mnisi corroborated the plaintiff's evidence as to the
point of impact. His evidence was that
when he arrived at the scene
of the accident for the purpose of drawing a sketch plan of the
accident, both drivers involved indicated
to him the point of impact,
being "X" on the sketch plan. He further testified that
around the point of impact, being
"X", he found debris
which appeared to be that of a motor vehicles lights, strewn around.
He also checked the damage
to both vehicles which was on the right
front part of the plaintiff's vehicle and on the mid-left of the
insured driver's vehicle.
During cross examination Mnisi conceded
that the sketch plan does not reflect a curve on the road. Mnisi
confirmed that on the
road where the road travels from north to
south, the direction in which the insured driver was travelling,
there is a sharp curve
which is about 24m from the stop sign at the
T-junction. However, he did concede that the sharp curve he alludes
to is not depicted
in the sketch plan he drew.
9. The insured
driver's testified as follows. He was driving at 60km per hour, in a
North-Southerly direction when he suddenly saw
the plaintiff's
vehicle cutting across the T-junction without stopping at the stop
sign and coming on his correct driving lane,.
In order to avoid
colliding with the plaintiff's vehicle, he swerved to the right,
towards the centre lane and the plaintiff collided
with the left
middle side of his vehicle. He described the curve on the road as
being gentle.
10. During
cross-examination the insured driver put the point of impact on his
travelling lane. He testified that the plaintiff
was travelling very
fast when he made the right turn, straddling the lanes and ending on
his correct lane of travel.
11. The court a quo
came to the conclusion that, even though there were two mutually
destructive versions as to how the collision
occurred, all the
witnesses who testified were credible witnesses. However, the court
surprisingly went on to criticize the plaintiff
for not disclosing to
Mnisi and other police officers investigating the accident that he
was a police officer, his failure to pursue
the speedy investigation
of the collision to its conclusion and the possible prosecution of
the insured driver for reckless driving.
The court a quo concluded
that the plaintiff's lack of motivation for the investigation into
the causes of the collision was indicative
of his lack of confidence
in his own case and as a result casts doubts on his credibility.
12. The court a quo
is clearly wrong and misplaced in its criticism of the plaintiff. The
fact that the plaintiff is a police officer
is irrelevant to the
determination of where fault resides. Had the plaintiff interfered
with the investigations, a perception would
have been created that he
was trying to influence the outcome of such an investigation. I am of
the view that the plaintiff conducted
himself with honesty and
integrity. It is inexplicable why the Magistrate would make a finding
that the plaintiff was a credible
witness and at the same time find
his version incredible on facts totally irrelevant to the issue to be
determined.
13. The court went
on to conclude that the plaintiff's version was improbable merely
because he could not explain why the insured
driver would "suddenly
at the very convenient moment lose control to come into a collision
with the plaintiff's vehicle if
there was no obvious cause as he was
going around a curve."
14. The court a quo
was faced with two mutually destructive versions as to how the
collision occurred. In Stellenbosch Farmers Winery
Group Ltd and
another v Martel I et Cie and others
2003 (1) SA 11
(SCA), Nienaber
JA stated that:
"The technique
generally employed by the 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 various factual
witnesses; (b) their reliability
and (c) the probabilities. As to (a), the court 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 extra
curia) 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's 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 the
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 the latter. But when all factors are equipoised
probabilities prevail."
15. At the start of
the proceedings it was common cause that the point of impact was
where Constable Mnisi put an "X"
on the sketch plan.
Furthermore, the location of the point of impact was never put in
dispute during the cross-examination of the
plaintiff and Constable
Mnisi. There is no explanation why only when the insured driver
testified that a dispute on this point
arose. I am of the view that
the evidence of the insured driver with regard to the point of impact
ought to be rejected as that
was not the version the plaintiff
expected to dispute. If it is taken that the point of impact is where
the parties had agreed
it was and also taking into account where both
vehicles ended after the collision, I am satisfied that the version
of the plaintiff
is more probable,. I am of the view that the insured
driver changed his version with regard to the point of impact in
order to
align it with his version that the plaintiff made a sharp
right turn onto his lane. It is particularly so if one takes into
account
the following:
15.1 the evidence of
the insured driver that in order to avoid the collision he swerved to
the right. Since the insured driver was
travelling in a
North-Southerly direction, swerving to the right would have landed
him on the centre line and most probably on
the wrong lane, which was
the plaintiff's correct lane of travel.
15.2 the testimony
of Constable Mnisi was that, the point of impact was as indicated to
him by both drivers and that he found glass
debris around the area of
impact, is indicative of the place where the two vehicles collided.
15.3 the position in
which the two motor vehicles landed after the collision. It was the
plaintiff's testimony that after the collision
occurred, his car spun
around and landed on a westerly direction close to the point of
impact. On the other hand, the insured driver
was travelling in a
Southerly direction and his vehicle landed on the South-Westerly
direction of the road.
15.4 There is also
no explanation why the insured driver did not timeously apply his
brakes when he saw the plaintiff making a right
turn onto his lane.
16. I am satisfied,
taken into account all the evidence before the Court, that the Court
a quo misdirected itself in granting absolution
from the instance in
the face of clear evidence that the version of the plaintiff,
corroborated by the evidence of Constable Mnisi
in as far as the
point of impact and the debris found at the scene and the position of
the respective vehicles after the collision,
was more probable than
that of the insured driver. Furthermore, the court a quo erred and
misdirected itself in taking into account
irrelevant factors
pertaining to the plaintiff being a police officer and his failure to
pursue the investigation. I am of the
view that the plaintiff proved
its case on a balance of probabilities and that the appeal ought to
succeed.
17. Accordingly the
following order is made:
ORDER:
1. The appeal is
upheld with costs.
2. The order of the
court below is set aside and replaced by the following:
2.1 The defendant is
liable to pay damages to first and second plaintiff.
2.2 Costs are
reserved until final determination of the action.
NP
MNGQIBISA-THUSI Judge of the High Court
I agree GC MULLER
ActingJUrdge of
the High Court
Appearances:
For Appellants:
Adv L Bolt
Instructed by:
Searle Attorneys
For Respondent:
Adv J A Kloppers
Instructed by: T
M Chauke incorporated