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South Africa: North Gauteng High Court, Pretoria
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2014
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[2014] ZAGPPHC 317
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De Lange v Road Accident Fund (37360/2012) [2014] ZAGPPHC 317 (3 June 2014)
IN THE HIGH COURT
OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NUMBER: 37360/2012
DATE:
03 JUNE 2014
In the matter
between:
LOUIS ALMERO
FRANCOIS DE LANGE
.......................................
Plaintiff
And
ROAD ACCIDENT
FUND
.............................................................
Defendant
HEARD ON: 2 JUNE
2014
DELIVERED: 3 JUNE
2014
JUDGMENT
STRAUSS, AJ:
1. These are civil
proceedings. The plaintiff instituted action against the defendant in
terms of Section 17 of the Road Accident
Fund Act 56/1996. He seeks
to recover damages he suffered as result of bodily injuries he
sustained in a collision on 19 December
2009, at the intersection of
Lynwood and Jacobson road, Pretoria.
2. The parties
agreed that the adjudication of the quantum should be kept in
abeyance and that the merits should be adjudicated
first. I did so in
terms of Rule 33(4) of the Uniform Rules of Court.
3. The defendant
also moved for an amendment in terms of Rule 28 of the Uniform Rules
of Court in so doing, including in their plea,
a ground of negligence
being “that the plaintiff did not stop at a red traffic light”.
4. I allowed the
amendment in terms of Rule 28(10) and the pleadings therefore as
amended placed two mutually destructive versions
before court, as to
which driver adhered to the red traffic light or not, as both parties
averred in their pleadings that the other
party failed to stop at a
red traffic light.
5. I heard evidence
to determine the relative negligence of the insured driver and that
of the plaintiff, if any, seeing that the
defendant had pleaded
contributory negligence on the part of the plaintiff.
6. Two persons
testified on behalf of the plaintiff, Mr. S M Crawford an independent
eye witness, the driver of a red Honda Ballade
sedan, and the
plaintiff Mr. L A F de Lange, the driver of a Honda motor cycle, and
the defendant’s insured driver, Mr M
M Maluleke, the driver of
a white minibus taxi testified for the defendant. After hearing
evidence both parties addressed me as
to the evidence and I reserved
judgement to the following day.
7. Now turning to
the evidence, Mr Crawford testified that on 19 December 2009 he was
driving in Lynwood road in a red Honda Ballade,
he was on his way to
The Grove shopping centre. He was driving in the middle lane of a
three lane road approaching the intersection
of Lynwood and Jacobson
street, as he was approaching the traffic light controlled
intersection, he noticed the traffic light was
green but turned amber
and as he was too far from the intersection to make the amber light,
he slowed down and eventually braked
when the light turned red and
stopped at the intersection. As he stopped, a white minibus taxi
travelled past him on his left
hand side, and also on the most left
hand lane of Lynwood road, and proceeded to cross into the
intersection when the light was
red. At the intersection of Jacobson
and Lynwood road, on his left hand side, he saw a motor cycle which
was stationary at the
red light, and who in turn proceeded to drive
from a stationary position into the intersection, when the lights
turned green. At
that time the taxi crossed the intersection and
collided with the motor cycle. The witness stopped his vehicle behind
the motor
cycle to prevent that any traffic from behind could collide
with the plaintiff lying on the ground, he said the taxi stopped 80
–
100m further up in Lynwood road, on the built up middle man. He did
not know the plaintiff or insured driver and he gave
his details to
the plaintiff’s father who had arrived on the accident scene.
From his home he could not use Jacobson road
to get to The Grove
shopping centre and had to use Lynwood road.
8. The plaintiff
testified that it was in the afternoon, he was the driver of a motor
cycle 125cc Honda, he was returning from weekend
work, it was a
Saturday and he was on his way home. He was in grade 11 scholar at
the time. He was driving in Jacobson road in
a southerly direction.
He approached the intersection and stopped at the red light, he saw
two vehicles on his right hand side
proceeding from Lynwood road, a
red Honda Ballade in the middle lane, and a taxi approximately 20- 30
metres behind the Honda,
in the left hand lane. The Honda braked
approaching the intersection as the vehicle’s “nose
dipped” and he also
saw the taxi reducing speed and its “nose
dipping”, he accepted after noticing this that both vehicles
would indeed
stop at the intersection. The traffic light turned green
for him and he proceeded forward into the intersection, to turn right
into Lynwood road, the next moment everything became dark and he had
no further recollection of the accident.
9. All the witnesses
made use of a sketch plan marked “A18” which emanated
from an investigation undertook by the defendant.
The plan depicted
Lynwood and Jacobson road and the intersection and depicted one
vehicle marked “A “in Lynwood road,
and a motor cycle “B”
in Jacobson road and one unmarked vehicle next to “B” in
Jacobson road. Counsel for
both parties informed me that there was a
dispute as to the positions of the vehicles prior to and after the
collision as depicted
on the sketch plan, but they agreed that it
correctly depicted the road and the intersection at which the
collision took place.
10. Mr Crawford
indicated his position on the road prior to the accident as “1”
the middle lane in Lynwood road, and
the insured driver as” 2”
also in Lynwood road but on the far left lane, the lane to his left.
The plaintiff was depicted
as “3” in the right hand side
of a two lane road in Jacobson road. The plaintiff thus being on
northern side of the
intersection and on the left hand side of both
Mr Crawford and the insured driver.
11. In cross
examination the following was put to the witnesses who testified in
the plaintiffs case:
That Mr. Crawford
was not in Lynwood road but stationary in Jacobson road at position
“3” (the right hand lane of Jacobson
street).
There were only
three parties in the intersection, at the time of the collision,
being the red Honda, the motorcycle and the taxi
and no other
vehicles.
The insured driver
did not brake approaching the intersection as the light was green for
him and he proceeded to drive into the
intersection.
The red Honda of
Mr.Crawford was in Jacobson street stationary at the intersection,
and the motor cycle (plaintiff) came from the
same direction.
The insured would
testify that the plaintiff did not stop at the red traffic light.
12. The insured
driver Mr Maluleke testified that he was travelling on Lynwood road
from west to east, he was in the middle lane
there were no vehicles
in front of him in Lynwood road. He approached the intersection and
he saw the red Honda ballade stationary
in Jacobson road at position
“B’ being the left hand lane of the two lane road. As he
entered the intersection the
light turned amber, only in the
intersection he saw the motor cycle next to him, he swerved to the
right but collided with the
motor cycle, he ended up further in
Lynwood road on the pavement. He had one passenger in the taxi. He
did not know where the motor
cycle came from as he first observed it
when he was already in the intersection. After the collision he went
to see if the plaintiff
was injured and a while later the father of
the plaintiff arrived and grabbed him by the clothes and threatened
him. The father
of the plaintiff provided him with his own cell phone
number and his id number.
13. In cross
examination it came to the fore that his passenger had a clear view
to the front of the road, but that the passenger
immediately left
after the accident and hailed another taxi and that he did not think
it necessary to obtain the passenger’s
details.
He made a sworn
affidavit at the police station but none was provided to the parties
and subsequently did not form part of the trial
bundle.
He had never
consulted with the attorney or counsel appointed by the defendant
prior to the trail date, and he has no knowledge
of the averments in
the pleadings.
He can only recall
speaking to the investigators appointed by the defendant and he did
give them certain factual information but
he denied having seen the
sketch plan “A18 “prior to trial.
He did not inform
the police in his brief statement on the accident plan, that there
was a stationary Honda, that it might have
obscured his view, and
that the light had turned amber for him in the intersection.
He never saw the
motor cycle either behind the Honda ballade or next to it, although
he had a proper look out towards Jacobson street
and observed the red
Honda of Mr. Crawford, and he only saw the plaintiffs motor cycle
when it was already in the intersection,
He stuck to the
version that the traffic light was green for him.
He did reduce speed
when approaching the intersection but did not brake.
He denies that Mr.
Crawford was travelling in Lynwood road and insisted that Mr.
Crawford was in position “3” on the
sketch plan.
14. Question from
the court brought the fowling to the fore:
The plaintiff had a
learner’s license to drive the motor cycle and had been driving
it for a year when the collision occurred.
The sketch plan and
report completed by the investigator who interview the insured
driver, was incorrect according to the insured
driver on three
crucial aspects:
a) he did not state
that he had three passengers in his vehicle, b) he had not hooted to
the motor cycle prior to the collision
to warn him, c) he had not
applied his brakes to prevent the accident, the balance of the
factual content of the report was correct.
He also disagreed
with the sketch plan and insisted that the red Honda was at the left
hand lane of Jacobson road and not as drawn
on the sketch plan being
on the right hand lane.
15. When faced with
two mutually destructive and irreconcilable versions, in Stellenbosch
Farmers’ Winery Group Ltd &
Another v Martel et cie &
Others
2003 (1) SA 11
(SCA) the test is set out:
“To come to a
conclusion on disputed issues the Court must make findings on –
(a) the credibility
of 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 of the veracity of
the witness. That in
turn will depend on the variety of subsidiary factors such as (i) the
witness’ candour and demeanour,
(ii) his bias, latent and
blatant, (iii) internal contradictions in his evidence, (iv) external
contradictions, contradictions
with what was pleaded or put on his
behalf or with established fact or with his own extra curial
statements or actions; (v) the
probability or improbability of
particular aspects of his version and (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 facts as mentioned under (a)
(ii), (iv) and (v) on (i) the opportunities
he had to experience and
observe the events 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 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
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 equipoise probabilities prevail.”
In Selamolele v
Makhado
1988 (2) SA 372
(V) the court reconfirmed the principle that
where there are two mutually destructive version in a civil trial,
the correct approach
to be adopted in deciding the issue, is to
determine which of the two version is more probable than the other.”
16. This court when
having regard to the credibility of the witnesses was impressed by
the demeanour of the plaintiff’s witnesses,
they were concise,
to the point, and testified to the facts in a sequenced fashion, they
did not contradict each other on any material
aspect and the
independent witness Mr. Crawford had no motive or bias to testify in
favour of the plaintiff. Both witnesses corroborated
each other as to
the position of their vehicles prior to the accident , and the
position of the insured driver prior the accident,
as well as the
point of impact indicated by them on the sketch plan.
17. The insured
driver however was not a very impressive witness, his version of the
events were inconsistent , differed from the
version put to the
witnesses by counsel, and was also in contrast to the information he
provided to the investigator appointed
by the defendant. The only
person who could have provided the investigators with the information
in their report was the insured
driver, but the information mention
in a, b and c supra contradicted his testimony on material issues,
this points to his credibility
as a witness having regards to
previous statements made by him, being inconsistent with his
testimony.
18. This court
however will not consider the contradictions contained in his version
to the investigators or his evidence in court,
to determine the
probabilities in this matter or to determine his negligence.
19. Having regard to
the totality of the evidence, I can find no reason not to believe the
independent witness, Mr. Crawford, he
testified that he stopped at
the intersection, but that the insured driver came from behind him,
and proceeded to drive through
the red traffic light and collided
with the plaintiff in the intersection. The insured driver testified
that he saw the independent
witness Honda vehicle at point B, the
left hand lane of Jacobson street, even though it was put to the
witnesses by his counsel,
in total contradiction, that he, the
insured driver will testify that the red Honda was on the right hand
lane of Jacobson street,
bring me to the conclusion that the insured
driver adapted his version through the trial in order to make himself
less blame worthy.
20. It was also put
to the witnesses that the plaintiff failed to stop at the red traffic
light but the insured driver did not testify
to this event as on his
version he did not see the motor cycle, and the first time he was
aware of the motor cycle was when it
was already in the intersection.
The insured driver also failed to keep a proper look out having
regard to his evidence on this
point. At the end the court was left
with the evidence of the independent witness, and having regard to
the mutually destructive
versions of the plaintiff and insured
driver, the independent witness corroborated the version of the
plaintiff in every material
aspect and swayed the probabilities in
his favour.
21. I thus find on
the probabilities and credibility of the two witnesses who testified
on behalf of the plaintiff that the insured
driver was the sole cause
of the collision.
22. I can find no
contributory negligence against the plaintiffs as his evidence that
he had a proper look out and saw both vehicles
slow down remained
undisputed and is somewhat confirmed by the insured driver himself
who admitted that he slowed down when approaching
the intersection.
23. Also having
regard to the case law as argued by counsel for the plaintiff in the
matter of Netherlands Co V Bruwer
1978 (4) SA 824
(A) I can find no
negligence on the part of the plaintiff.
Accordingly I make
the following order:
1. The defendant is
liable for 100% of the plaintiff’s proven or agreed damages.
2. The defendant is
liable for the plaintiff’s costs to date.
S STRAUSS
ACTING JUDGE OF
THE HIGH COURT,PRETORIA
Counsel for the
Applicant: ADV.: J A DU PLESSIS
Attorney for the
Plaintiff: RIETTE OOSTHUIZEN PROKUREURS
Counsel for the
Defendant: ADV.: W BINASE
Attorney for the
Respondent: MOTHLE JOOMA SABDIA INC