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[2014] ZAGPPHC 445
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Sedumemanyatela v Road Accident Fund (65678/2012) [2014] ZAGPPHC 445 (30 May 2014)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE NO:
65678/2012
In the matter
between
HARRY
SEDUMEMANYATELA
...............................................................................................
PLAINTIFF
And
ROAD ACCIDENT
FUND
........................................................................................................
DEFENDANT
JUDGMENT
MOLEFE J:
[1] On 6 June 2010,
at approximately 18h45, and at Kalkfontein Road, Tuinplaas \
Modimolle R576, Marble Hall, Settlers, an accident
occurred involving
a motor vehicle being driven by Mr F.L. Themba (“the insured
driver”) and a vehicle being driven
by Mr H.S. Manyatela (“the
plaintiff’).
[2] As a result of
the aforesaid collision, the plaintiff sustained bodily injuries for
which he had to receive medical treatment.
The plaintiff instituted
an action against the defendant in terms of the Road Accident Fund
Act No 56 of 1996 (“the Act”)
for damages suffered as a
result of the injuries so sustained. The plaintiff’s claim is
based on negligence of the insured
driver.
[3]
At the commencement of the trial, the parties agreed to separate the
issues of liability (“merits”) and quantum
in terms of
Rule 33 (4). The trial proceeded with the issues of merits and the
issue of quantum was postponed
sine die.
[4] Two witnesses
testified on behalf of the plaintiff; Mr Harry Sedume Manyathela the
plaintiff and Mr Thabo Ephraim Manyatela.
4.1
.
Mr
Harry Sedume Manvatela
(“plaintiff”)
testified that on 6 June 2010 at approximately 18h45, he was the
driver of a Ford Ikon vehicle travelling
along the gravel road from
Modimolle to Vaalbank. He was travelling towards Kadjibane village
and was with four passengers in his
vehicle. He was travelling on the
left side of the road, which was the correct lane of his travel. He
noticed another vehicle travelling
along the same road by from the
opposite direction. The other vehicle (“the insured vehicle”)
was approximately 7 meters
away when plaintiff noticed that the
vehicle was travelling along the plaintiff’s lane of travel and
its lights were not
fully functional. The left head light was bright
and visible but the right head light was not working properly and was
dim. Plaintiff
flicked his lights in an attempt to warn the oncoming
vehicle but the vehicle kept on approaching on the plaintiff’s
lane
of travel.
4.2. In an attempt
to avoid the collision, the plaintiff swerved the vehicle to his
right and reduced his speedand at the same time,
the insured vehicle
driver also swerved his vehicle to the left, his correct lane of
travel, causing a collision between the two
vehicles.
4.3. Plaintiff
testified that prior to the collision he was travelling at a speed of
55-65 kilometres per hour. The road was gravel
and bumpy and did not
allow plaintiff to travel at a higher speed. Plaintiff and some of
the occupants in his vehicle sustained
serious injuries from the
accident. Plaintiff testified that there was nothing he could have
done to avoid the accident.
4.4. Under
cross-examination plaintiff testified that the road was straight and
the width of the road approximately 2 metres and
that he applied
brakes to reduce speed before he swerved. The visibility was clear
except for the fact that it was in the evening
and dark. Plaintiff
was cross-examined on the discrepancy of his testimony in chief and
the statement he gave to the police. In
the police statement he
testified that prior to the collision he was travelling at a speed of
70-80 kilometres per hour and that
a Mr Jonathan Manyatela was
following his vehicle at a distance of approximately 600 meters.
Plaintiff denied that he gave the
police that information when he
gave a statement.
[5]
Mr Thabo Ephraim
Manvatela
testified
that the vs the plaintiff’s nephew and his evidence can be
summarised as follows:
5.1 On 6 June 2010
he was a passenger in the motor vehicle being driven by the plaintiff
and was occupying the front passenger seat.
They were travelling from
Modimolle where they had been attending a wedding and were on their
way to Kadjibane, Vaalbank. He possesses
a driver’s licence and
was from time to time observing the road. They were travelling on the
gravel road, on the left lane
of the road when he noticed another
vehicle travelling from the opposite direction along the same gravel
road but on their lane
of travel. When Mr Manyatela noticed the
vehicle (for the first time), it was at a distance of approximately
8-10 meters and one
of its lights was not working properly and was
dim. The park lights were on.
5.2 The plaintiff
flicked the lights and hooted to the vehicle in an attempt to warn
the oncoming vehicle to move to its right lane
but the insured
vehicle kept approaching along the plaintiff’s lane. Plaintiff
reduced speed and swerved to his right side
of the road to avoid the
oncoming vehicle. At the same time, the insured vehicle swerved back
to its right lane of travel and a
collision between the two vehicles
occurred on the insured driver’s lane.
5.3 Mr Manyatela
further testified that immediately prior to the collision, the
plaintiff was travelling at a speed of approximately
60-80 kilometres
per hour. The plaintiff’s vehicle was damaged on the left front
fender and the windscreen was shattered.
According to Mr Manyatela,
there was nothing more that the plaintiff could have done to avoid
the collision; he could not swerve
the vehicle to his left side as
there are bushes and a heap of soil on the left side of the road. The
visibility was clear except
that it was dark.
5.4 Under
cross-examination, Mr Manyatela testified that he was watching the
road during their travel and that the gravel road was
wide enough to
accommodate three vehicles. Mr Jonathan Manyatela was with them at
the weddingbut he drove past them whilst they
were filling up petrol
at the petrol station. The insured driver did nothing to attempt to
avoid the collision.
The plaintiff closed
his case.
[6] The insured
driver Mr FransThema and one of the occupants of the insured vehicle
Mr Sello Robert Ringane testified on behalf
of the defendant.
6.1
Mr FransThema
(“the
insured driver”) testified that on 6 June 2010, he was the
driver of the motor vehicle, a Nissan Tonner travelling
from
Kadjibane village to Modimolle. Prior to departing, he claims to have
done a pre-trip inspection and all was well including
the lights. He
was travelling with two passengers in his vehicle. The road he was
travelling along was gravel with a width which
could accommodate
three vehicles. From Kadjibane, a Mazda vehicle drove past him on the
opposite side of the road and towards the
opposite direction. He then
noticed the lights of another vehicle travelling from the opposite
direction, approximately 50 metres
away. When the car was approaching
he noticed that the plaintiff’s vehicle was travelling along
his lane of travel. The insured
driver flicked the lights twice to
warn the oncoming vehicle. The vehicle kept on coming and when it was
20 metres away, Mr Thema,
on realising that the vehicle was not
moving to its correct lane of travel, applied brakes.
6.2 The insured
driver testified that he decided not to swerve to his right side (the
plaintiff’s lane of travel) in case
the plaintiff also swerves
to his correct lane of travel. He also did not want to swerve to the
other lane because he did not want
the collision to occur on the
wrong lane of his travel as he would be blamed for causing the
accident. The two vehicles collided
on the insured driver’s
lane of travel.
6.3 The insured
driver testified that prior to the accident, he was travelling at a
speed of approximately 70 kilometres per hour.
He was adamant that
the headlights in his vehicle were in good working condition; because
prior to departing from Kadjibane he
did a pre-trip inspection of the
vehicle.
6.4 After the
collision, the insured driver and his passengers went to the
plaintiff’s vehicle and assisted the occupants
out of the
vehicle. There were babies crying in the plaintiff’s vehicle.
Police were summoned and the insured driver and
his passengers were
taken to Modimolle hospital in an ambulance.
6.5 Under
cross-examination, Mr Thema testified that the visibility on the road
was dark as it was in the evening. He also confirmed
that he did give
a statement to the police on how the incident occurred even though
the statement was not in the police docket.
He conceded under
cross-examination that he did not swerve his vehicle to the other
lane in an attempt to avoid the collision because
if the collision
would have occurred on the wrong lane of his travel he would have
been blamed as the negligent driver. According
to the insured driver,
the wrong negligent party is the plaintiff due to the fact that the
accident occurred on his (insured driver’s)
lane of travel. At
the time of the accident, the insured driver possessed a valid
learner’s driving licence and not a valid
driver’s
licence.
[7]
Mr Sello Robert
Rinqane’s
evidence
can be summarised as follows:
7.1 On 6 June 2010,
in the evening, he was a passenger in a Nissan Tonner vehicle being
driven by the insured driver. They were
travelling from Kadjibane
village on their way to Modimolle. He was seating in the middle front
seat of the vehicle. They were
travelling on a gravel road with a
width which could accommodate four vehicles. The road was flat. From
Kadjibane he noticed, a
Mazda vehicle driving towards the opposite
direction which drove past their vehicle.
7.2 Approximately
5-10 minutes after the Mazda vehicle had driven past, he noticed the
lights of another vehicle approached also
from the opposite
direction, but Mr Ringane could see from its lights that the oncoming
vehicle was travelling on the insured driver’s
lane of travel.
He alerted the insured driver about this oncoming vehicle and the
insured driver flicked the lights at the oncoming
vehicle to warn the
driver and reduced his speed. When the plaintiff’s oncoming
vehicle got nearer, Mr Ringane commented
to the insured driver that
he doubted that the plaintiffs vehicle would move to the correct
lane.
7.3 Mr Ringane, when
he saw the imminent collision, lifted his feet and put them on the
dashboard and the two vehicles collided
on the insured driver’s
lane. After the collision, Mr Ringane and the insured driver rushed
to the plaintiff’s vehicle
to assist in taking out the
occupants of the vehicle. Mr Ringane disputed that Mr Thabo Ephraim
Manyatela was a passenger in the
plaintiff’s vehicle. He
testified that he saw Mr Manyatela driving the Mazda vehicle which
drove past them prior to the collision.
The plaintiff was sitting
with a female passenger in the front seat. Three ladies and two
babies were sitted at the back seat.
Mr Ringane summoned the police
and the injured people were taken to the hospital in an ambulance.
7.4 The collision
occurred just outside the Kadjibane village and the plaintiff’s
relatives came with blankets to the scene
of the accident and covered
the injured people with blankets. Mr Ringane sustained injuries to
his forehead because he hit the
windscreen with his forehead when the
collision occurred.
7.5 Under
cross-examination Mr Ringane confirmed the insured driver’s
ground for not swerving to the opposite direction in
an attempt to
avoid the collision being that the insured driver was on his correct
lane of travel and to swerve to the right side
or middle of the road
would attract the blame should the collision have occurred on the
plaintiff’s correct lane of travel.
Although he testified that
the width of the road could accommodate four vehicles, he was adamant
that the insured driver could
not have swerved to the right to avoid
the collision. Despite the road being wide enough, Mr Ringane was
adamant that the insured
driver could not have done any other thing
to avoid the collision.
[8] It is common
cause between the parties that the accident occurred on the evening
of 6 June 2010 between the vehicle being driven
by the plaintiff and
the vehicle being driven by the insured driver. The collision
occurred along a gravel road on the insured
driver’s lane of
travel and the two vehicles were travelling towards opposite
directions.
[9] The issues to be
determined by the court are the following:
a) Whether the
insured driver was negligent;
b) Whether the
plaintiff was negligent;
c) The apportionment
of negligence, if applicable.
[10] Both the
insured driver and the plaintiff are adamant that they were both
travelling on their correct lane of travel. The plaintiff’s
witness testified that the plaintiff swerved to his right side, to
avoid the insured driver’s vehicle which was travelling
on the
plaintiff’s lane of travel. Both the plaintiff and his witness
testified that the plaintiff swerved to the right side,
to avoid the
insured driver’s vehicle which was travelling on the
plaintiff’s lane of travel. Both the insured driver
and his
witness testified that the insured driver was travelling on his right
lane of travel, and noticed the plaintiff’s
vehicle from a much
longer distance travelling on the wrong lane. They both confirmed
that despite noticing the plaintiff’s
vehicle approaching on
their lane of travel, the insured driver could not swerve towards his
right hand side to avoid the collision
occurring on his right hand
side because then the insured driver would be blamed because the
collision would have occurred on his
incorrect lane of travel. No
expert evidence was led which could have assisted the court in
determining exactly how the collision
occurred.
[11] The versions of
the plaintiff and the insured driver are irreconcilable in material
aspects regarding how the collision occurred
and are mutually
destructive. The success of the plaintiff’s case is predicated
upon a finding that the insured driver was
driving on the incorrect
lane of travel and by swerving to his right lane of travel at the
same time the plaintiff was swerving
to his right side in an attempt
to avoid the collision.
[12] Plaintiff and
his witness corroborated each other regarding the manner in which the
collision occurred. They both confirmed
that the lights of the
insured vehicle were defective and the insured vehicle could be seen
from a distance beyond 7-10 meters.
Save for the discrepancies on
whether the plaintiff applied brakes or hooted for the insured
driver, they both corroborated each
other regarding the actions taken
by the plaintiff in an attempt to avoid the collision.
[13] Both the
insured driver and his witness were evasive when answering questions
and elaborated on irrelevant issues not being
asked. The insured
driver’s witness contends that the plaintiff’s witness
was not a passenger in the plaintiff’s
vehicle despite the
plaintiff’s witness name being recorded as such in the police
accident report. This testimony was not
disputed under
evidence-in-chief and during cross-examination of the plaintiff’s
witness. There is contradictions on the
part of the insured driver
and his witness: the fact that the witness alerted him of the
oncoming vehicle twice; the witness’s
evidence that the
plaintiff’s relatives came to the scene of the accident and put
blankets on the injured people.
[14]
The technique generally adopted by the courts in resolving factual
disputes when dealing with two irreconcilable versions is
set out in
SWF
Group Limited and
Another
v Martell ET CIE and Others
1
wherein
the following relevant applicable principles are stated:
14.1 Findings
must be made on:
14.1.1 the
credibility of the various factual witnesses which depends on a
court’s impression about the veracity of the witnesses;
14.1.2 their
reliability;
14.1.3 the
probabilities.
14.2 In regarding
to the credibility of a witness, a number of factors must be taken
into consideration:
i) the witness’s
conduct and demeanour in the witness box;
ii) his latent
and blatant lies;
iii) internal
contradictions in his evidence;
iv) external
contradictions with what was pleaded or put on his behalf, or with
the established facts or with his own extra curial
statements or
actions;
v) the
probability or improbability of particular aspects of his versions;
vi) the calibre
and cogency of his performance compared to that of other witnesses
testifying about the same incident or event.
14.3 A witness’
reliability will depend in addition to the aforesaid factors
mentioned above and on:
i) the
opportunity he had to experience the event in question;
ii) the quality,
integrity and independence of his recall of the event.
14.4 Having
regard to the probabilities, this necessitates an analysis and
evaluation on the probability or improbability of each
party’s
version on each of the disputed issues.
14.5 In light of
its assessment of the factors in 14.2 and 14.4 above, a court should
then, as a final step, determine whether the
party burdened with the
onus of proof, has succeeded in discharging it.
14.6 When a
court’s credibility findings compel it in one direction and its
evaluation of the general probabilities compels
it in another
direction, the more convincing the former, the less convincing will
be the latter. But when all factors are equipoised
probabilities will
prevail”.
[15] The opinions
tendered by both the plaintiff and the insured driver are by and
large irrelevant and do not assist in determining
the probabilities.
[16]
The test propounded by WesselsJA in
National
Employers’ Mutual General
Insurance
Association v Ganv
2
is
to the effect that
"where
there are two stories mutually destructive, before the onus is
discharged, the court must be satisfied upon adequate
grounds that
the story of the litigant upon whom the onus rest is true and the
other false”.
[17]
In a civil case, the onus is obviously not as heavy as it is in a
criminal case, but nevertheless, where the onus rests on
the
plaintiff as is in the present case, and where there are mutually
destructive stories, the plaintiff can only succeed if he
satisfies
the court on a preponderance of probabilities that his version is
true and accurate and therefore acceptable, and that
the other
version advanced by the defendant is therefore false or mistaken and
falls to be rejected. In deciding whether that evidence
is true or
not, the court will weigh up and test the plaintiff’s
allegations against the general probabilities.
(
See
National
Employers’ General Insurance v
Jagers
3
.
[18]
The plaintiff
in
casu
appeared
to be basically honest and there is no reason for preferring the
insured driver as being better or more reliable witness
than the
plaintiff. I found both the plaintiff and his witness to be more
reliable witnesses than the insured driver and his witness.
On the
evidence before me, the plaintiff’s version is clear; he
observed the insured vehicle on his lane of travel, attempted
to warn
him, attempted to avoid the collision by swerving towards his right
hand side as he could not swerve to his left side due
to heaps of
soil.
[19] The insured
driver’s version of how the collision occurred is in my view
improbable for various reasons. It is improbable
for the insured
driver to observe the plaintiff’s vehicle at a very far
distance but, failed to avoid the oncoming vehicle
on the insured
vehicle’s lane of travel to another part of the road when there
was enough chance to avoid the collision.
The insured driver’s
version is that the collision was reasonably foreseeable and
preventable but he chose not to avoid it.
The probability is that the
insured driver was driving on the plaintiff’s lane of travel
prior to the collision.
[20] I therefore
find the plaintiff’s version on how the accident occurred to be
more probable and that the insured driver
was negligent.
Contributory
negligence
[21] I therefore
consider the causative negligence and whether there was contributory
negligence to be attributed to the plaintiff.
Because the observance
of the rule of road which requires traffic to keep to the left of the
centre of the road is of such importance,
a motorist keeping to his
side of the road is entitled to assume that approaching traffic will
do likewise. Even when an approaching
vehicle is on its incorrect
side of the road, a driver on his correct side may assume that the
former will return timeously to
its correct side of the road. But
this assumption does not entitle a driver on the correct side of the
road to remain passive in
the face of threatening danger. As soon as
the danger of the collision becomes evident he is under a duty to
take reasonable steps
to avert one.
[22]
In
Burner v SantamVersekerinamaatskappyBpk
1991
(2) SA 703
A
the
court states that when a reasonable driver approaches a motor vehicle
over a considerable distance, which had been veering onto
the wrong
side of the road, that driver would take at least three steps. The
driver would brake, moves his motor vehicle to the
left as far as
possible and would hoot continuously. In this case the motor vehicle
travelling on the correct side of the road
failed to hoot and thereby
bringing the other motor vehicle driver’s attention to his
presence and was found to be 25% at
fault as a result thereof.
[23]
In
casu,
even
if the insured driver’s testimony is accepted that the
plaintiff was on the incorrect side of the road, he remained passive
in the face of a threatening danger. The plaintiff’s counsel
4
submitted that the insured driver has largely contributed towards the
collision and damages should therefore be apportioned at
90% to 10%
against the defendant.
The
defendant’s counsel
5
submitted that an apportionment should be at 50% against the
plaintiff.
[24] Section (1) (a)
of the Apportionment of Damages Act 34 of 1956, enjoins the court to
reduce the damages recoverable by a negligent
claimant to such an
extent as the court may deem just and equitable having regard to the
degree to which the claimant was at fault
in relation to the damages.
The plaintiff in this case only observed the insured vehicle when it
was relatively close to him. He
could not move his vehicle to the
left due to the heap of soil and bushes on his left side of the road.
There is no evidence that
he hooted repeatedly not did he brake his
vehicle. In my view, the plaintiff’s negligence should be
assessed at 20% and the
insured driver’s negligence at 80%.
[25]
I therefore make the
following order:
1. The issues of
merits and quantum are separated in terms of Rule 33 (4);
2. The aspect of
quantum is postponed sine die;
3. The defendant
is liable to pay 80% of the plaintiff’s proven or agreed
damages;
4. The defendant
is liable to pay the costs in respect of the merits portion of the
plaintiff’s action on a party and party
High Court Scale.
D.S. MOLEFE
JUDGE OF THE HIGH
COURT
APPEARANCES:
Counsel on behalf
of Plaintiff: Adv. M S Mangolele
Instructed by:
Maubane Attorneys
Counsel on behalf
of Defendant: Adv. K L Mmanasoe
Instructed by:
TsebaneMolaba Inc.
Date Heard 19
& 20 May 2014
Date Delivered:
30 May 2014
1
2003
(1) SA II SCA at paragraph (5)
2
1931
AD 187
at 199
3
1984
(4) 432
4
Adv.
M S Mangolele
5
Adv.
K L Mmanasoe