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[2014] ZAGPPHC 298
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Mabuza v Road Accident Fund (64196/11) [2014] ZAGPPHC 298 (16 May 2014)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NUMBER; 64196/11
DATE:
16 MAY 2014
In
{he matter Detween.
SKHUMBUZO
SIBUSISO
MABUZA
.......................................................................................
PLAINTIFF
and
ROAD ACCIDENT
FUND
........................................................................................................
DEFENDANT
JUDGMENT
MOSEAMO.
AJ
[1] This is an
action for damages brought by the plaintiff following injuries he
sustained which injuries were caused as a result
of a collision that
took place on the Nelspruit-Barberton road
[2] At the
commencement of the trial the parties applied for a separation of the
merits and the quantum m the matter, which order
was granted and the
matter proceeded to be dealt with purely on the merits.
[3] It is common
cause that the plaintiff was the driver a motor vehicle bearing
registration letters and numbers C[...] and Mr
Makamo was the driver
of a motor vehicle bearing registration letters and numbers D[...]
when the coiiision occurred.
[4] Plaintiff
testified and called two witnesses, Ms Monyane and Mr Ngwenyama. Ms
Monyane testified that she is a police constable.
On the 25 January
2009 she got a call that there was an accident on the R40 road. She
found two motor vehicles at the scene that
were involved in an
accident. She does not know how the accident happened. During
cross-examination Ms Monyane confirmed that Mr
Ngwenyama told her
about the accident. Mr Ngwenyama identified the drivers of the two
vehicles to her. She made a statement which
is contained in Exhibit 6
page 28 of record.
[5] Mr Ngwenyama
testified that he was driving towards Barbeton when he heard a loud
bang from, behind. He made a u-turn and found
that there was a
collision between a Jetta and a Hyundai, He took the driver of the
Jetta out of the vehicle as it was burning.
Both drivers were taken
by ambulance to the hospital. He testified that there were no cars
coming from opposite direction before
he heard the loud bang. During
cross-examination he admitted that he made a statement on the 02 May
2013. He said he did not know
Plaintiff by name but only got to know
him after the accident. He denied having given the name of the
plaintiff to the police He
did not make a statement on the day in
question. He was asked why he mentioned that there were no cars
coming from the opposite
direction, he said that he was stating his
observation. The Defendant s version was put to him and he said it is
not true as he
did not see either the plaintiffs vehicle or the
insured vehicle before the collision.
[6] Mabuza testified
that he was travelling from Nelspruit to Baberton. He saw headlights
of the vehicle coming from behind through
a rear view mirror The
vehicle collided into his vehicle from behind. He lost consciousness
and he regained consciousness during
March 2009. He sustained
injuries to his right hand, right leg. soma! chord and neck. During
cross-examination he stated that there
were vehicles ahead but he
cannot say how many vehicles as the road was steep. There was no
vehicle coming from the opposite direction.
He lost consciousness as
soon as the collision occurred He was referred to Exhibit 2 of record
page 235 . clinical psychologist's
report, where it is mentioned that
'he has complete amnesia of this ent.re period' He admitted that is
what he told the clinical
psychologist and further admitted that he
is sometimes forgetful He said that he knew Mr Ngwenyama from before
the accident, he
knows nim from Baberton. When he was told that Mr
Ngwenyama said that he did not know him from before the collision He
said he
did not know him by name but only knew his face. Defendant's
version was put to the Plaintiff but he denied it.
[7] Norman Makamo,
also known as Sibusiso Malambela, (insured driver) was the only
witness for the defense. He testified that he
was travelling from
Baberton to Nelspruit He saw two vehicles coming from the opposite
direction overtaking each other The driver
of the overtaking vehicle
left the road and went to the gravel on the side of the road There
was a crescent on the side of the
road, he went on the crescent and
went back to his side of the road. He saw darkness and did not see
anything He hit the vehicle
from his side of the road. He collided
with it on the side from the boot of the plaintiff’s vehicle.
He was informed of the
identity of the driver of the vehicle he
collided with afte
r
he regained consciousness. He
mentioned that he was told by his brother that he collided 'with a
vehicle that was overtaking. The
driver stays at the same location as
Mr Makamo. He did not give the constable his details on the day It
was his brother who gave
the police his details. He only gave details
to the police after a month
[8] During
cross-examination he mentioned that he collided with the plaintiff’s
vehicle cn the right-hand side behind the
driver's side It was put to
him that the car was hit from the left at the back. Defendant denied
that the Exhibit 5 of record photo
16 depicted the damage to the
vehicle, he said he cannot be sure that st is the same vehicle.
[9] It was put to
him that the version that the car was hit from the right is not
conect. He insisted that it was hit from the left.
Defendant was
asked about driver’s licence and he stated that at the time of
the collision he only had a learner's licence.
He later changed and
confirmed that he did not have a learner's licence. He admitted that
he knew that he was not supposed to drive
without a licence.
[10]
It is on the evidence before me that 1 have to determine the two
issues, whether the insured driver was negligent and whether
the
negligence of the insured driver resulted in or caused the injuries
of the plaintiff.
[11]
It is trite that tne plaintiff bears the
onus
of
proving negligence on the part of ins insured driver on a balance of
probabilities. See
Madyosi
and Another v SA Eagle Insurance Co Ltd it)
[1990] ZASCA 65
;
1990
(3) SA 442
at 444D-F
[12]
There are two
mutually destructive versions as to how the collision occurred. The
version testified to by the parties are entirely
different and are
mutually destructive with regard to.
a)
The
direction in which the plaintiff’s vehicle and the insured
drivers vehicle
were
travelling:
b) Whether tne
collision took olace as a result of the insured driver colliding into
the rear of plaintiff’s vehicle or not:
c) Whether the
collision took place as a result of plaintiff overtaking at an
inopportune .moment and colliding with the insured
driver.
[13]
The correct approach to be adopted when dealing with mutually
destructive versions was set out in the case of
National
Employers General Insurance Co Ltd v Jagers
1984
(4)
SA 437
(E) at 440E-G.
“
...
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 orobabilities that hts
version is true and accurate ana therefore acceptable and
;hat the
other version advanced by the Defendant is therefore false or
mistanen and fans :o be rejected in deciding whether that
evidence is
true or not the court wiii weigh up and test the Plaintiff's
allegations against the general probabilities. The estimate
of trie
credibility of a witness will therefore be tnextricaoly bound up with
a consideration of the probabilities of me case and,
if the Balance
of probabilities favours the Piamtiff tnen the court will accept his
version as being probably true. If however
the probabilities are
evenly balanced in tne sense that they ao not favour the Plaintiff s
case any more than they ao the Defendant,
tne Plaintiff can only
succeed if the court nevertheless believes mm and satisfied that his
evidence is true and that the Defendant's
version is false "
[14]
In the case of
Stellenbosch
Farmers Winery Group Ltd and Another V Martell Et
Cie
and Others
2003
(1) SA 11
(SCA) at 14
the
court dealt with an approach employed by the courts to resolve
factual disputes and it stated that to come to a conclusion on
the
disputed issues, the court must make findings on (a) the credibility
of the various factual witnesses, (b) their reliability,
and ( c) the
probabilities,
[15] Plaintiff
testified that the insured driver s vehicle collided into his vehicle
from behind The testimony of Mr Ngwenyama is
that he heard a loud
bang from behind him. he did not see how the collision occurred. He
also stated that there were no vehicles
travelling m the opposite
direction prior to the collision, therefore confirming that the
collision could nave occurred in a manner
as explained by the
plaintiff.
[16] In the summons,
paragraph 4 of the annexed particulars of claim reads as follows
On
or about the 25
th
of January 2009 Plaintiff was a driver of a motor vehicle bearing
registration letters and numbers CLP 709 MP. He was travelling
at
Barberton when a
head-
on
collision occurrea between a motor vehicle bearing registration
D[...] and the motor vehicle C[...] which was driven by the
Plaintiff,
(my
emphasis)
[17] Counsel for the
plaintiff referred this court to Exhibit 5 of record photo 16 which
depicts the damage to the plaintiff’s
vehicle. Defendant
initially objected to the photo being used but then later withdrew
their objection
[18] Counsel for the
plaintiff used the above photo to disprove the insured driver s
testimony that he collided into the right-hand
rear of the
plaintiff's vehicle It was put to the insured driver that the
plaintiff's vehicle was hit from the left at the back
It was also put
to the insured driver that his vehicle was going to Barbeton
direction when the collision took place and that is
the reason why
his vehicle was facing Barberton after the collision
[19] The first
question that I have to answer is whether the plaintiff has proven
that the
(
n$ured driver was negligent
[20] The plaintiff
has put forth a number of versions as to how the collision occurred,
which are as follows:
a) In the summons it
is alleged that the collision was a head-on collision;
b) Before me
plaintiff testified that insured driver hit his vehicle from behind;
c) Exhibit 5 of
record photo 16 shows damages to the left-hand side rear of the
plaintiff's vehicle.
d) It was put to the
insured drive' that he collided in to left-hand rear of the
plaintiff's vehicle
[21] The versions
advanced by trie plaintiff are contradictory. The version that the
collision was a head-on collision is not supported
by the plaintiff
in his evidence nor by the evidence before me. According to the
accident report, Exhibit 1 of record page 41,
tne damage to insured
driver's vehicle is recorded as front centre while the damage to the
plaintiff’s vehicle is recorded
as multiple. Exhibit 5 of
record photo 18 snows damage to the left-hand side rear' of the
plaintiff vehicle.
[22] The damage on
the plaintiff's vehicle i.e the damage on the left-hand side rear, as
depicted in Exhibit 5 of record photo 16
does not support his
testimony before me that the insured driver's vehicle collided in to
the rear of his vehicle (even though
it was not pleaded). It however
partly supports the insured drivers version that he hit the
plaintiffs vehicle on the side towards
the boot. Although there is a
discrepancy regarding the sice on which the insured driver hit the
plaintiff’s vehicle.
[23] It is common
cause that both drivers were unconscious after the collision It is
also not in dispute that plaintiff suffered
from amnesia immediately
after the collision. The insured driver testified that he immediately
saw darkness when the collision
took place He furtner testified that
he was informed by his brother after regaining consciousness, a month
later, that he had collided
with a motor vehicle that was in the
process of overtaking. As a result I find that the post-collision
evidence, for example, the
positions of the vehicle after the
collision, the damage to the vehicles ccuid only have been obtained
from other sources
[24]
Although Mr Ngwenyama was ostensibly an independent witness, he was
indirectly involved ;n the events leading up to the collision
and
from his evidence ! get the distinct impression that, he was
partial,
he
wished to
favour
the plaintiff's case
[25] Mr Ngwenyama
testified that he made a u-turn and saved plaintiff from the burning
vehicle and later went to visit him in the
hospital: he testified
that he did not Know what happened to the insured driver.
[26] Mr Ngwenyama
denied that he knew the plaintiff prior to the collision: Constable
Monyane in her testimony and in the statement
she made immediately
after the collision stated that Mr Ngwenyama identified both the
plaintiff and the insured driver to her at
the scene of the collision
Mr Mabuza testified that he knew Mr Ngwenyama from Barberton and when
it was put to him under cross-examination
that Mr Ngwenyama testified
that he did not know him prior to the collision, he changed and said
he only knew Mr Ngwenyama facially
and not by name.
[27]
Mr Ngwenyama’s unsolicited explanation that there had been
no
vehicle
going in the opposite direction prior to the collision, seems
to
have been
tailored
to support the plaintiff's evidence that the insured driver
and
the
plaintiff were travelling m the same direction when the insured
driver
collided
in
to
the
back of the plaintiff's vehicle.
[28]
Mr Ngwenyama testified that he noted
at
the
scene of the collision that the plaintiff's vehicle was damaged at
the back; the damage on the plaintiff’s vehicle, as
per Exhibit
5 photo 16, which is on the left-hand side rear contradicts Mr
Ngwenyama's version.
[29] Due to the
abovementioned facts ! find Mr Ngwenyama s testimony to be inaccurate
and unreliable,
[30] In my view the
evidence of the plaintiff taken as a whole is full of inconsistencies
and material contradictions and cannot
be said to be true and
accurate. I therefore find that plaintiff nas failed to prove on a
balance of probabilities that the insured
driver was negligence.
In the result I make
the following order:
1. Plaintiff's claim
is dismissed with costs.
P D MOSEAMO
ACTING JUDGE OF THE
HIGH COURT