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[2014] ZAGPPHC 330
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Road Accident Fund v Malatje (A799/2012) [2014] ZAGPPHC 330 (6 June 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NUMBER: A799/2012
DATE:
6/6/2014
Not
Reportable
Not
of interest to other judges
In
the matter between:
THE
ROAD ACCIDENT FUND
…........................................................................................
Appellant
And
MAGALAGWANE
JONAS
MALATJE
..............................................................................
Respondent
CORAM:
MAKGOBA J,
HUGHES J, STRAUSS AJ
HEARD
ON: 14 MAY 2014
DATE
DELIVERED: 06 JUNE 2014
J U D G M E N T
STRAUSS
S, AJ:
1)
The Appellant appeals against a
judgment of the High Court, North Gauteng, Pretoria in which it was
held by the trial court, that
a collision between two motor vehicles
on 6 June 2004 was caused by the negligent driving of one Daniel
Makwane, the driver of
the insured vehicle. Leave to appeal was
granted by the SCA after the
court a quo
had refused the application for leave
to appeal by the Appellant.
2)
It is common cause that a collision
occurred on the day in question on a public road known as the
Ga-Debella to Ga-Moraswi / Ga-Nchabeleng
in the Limpopo Province. The
respondent was the driver of one of the vehicles involved whilst the
appellant, one Daniel Makwane,
was the driver of the insured vehicle.
3)
By agreement between the parties the Court
a quo
only
dealt with the issue of liability and the matter now before us on
appeal is against the finding by the Court in favour of
the
respondent. The sole issue is whether the trial court was correct in
coming to the conclusion that Daniel Makwane was solely
the cause of
the collision, and whether the trial court in finding so, had adopted
the proper and correct approach when faced with
two mutually
destructive versions.
4)
The respondent as plaintiff instituted
action against the Road Accident Fund as defendant in the Court
a
quo
. The respondent claimed
damages for injuries suffered as a result of the collision, which
occurred on 6 June 2004, at which
time the respondent was the driver
of a taxi conveying passengers, and whose vehicle collided with that
of the insured driver,
one Daniel Makwane.
5)
The appellant pleaded that the insured
driver was not negligent and that the sole cause of the collision was
the negligent driving
of the respondent.
6)
The particular ground of negligence on
which the appellant relied were and I pause the mention as set out in
paragraph 5.2.10 to
paragraph 5.2.11 of the plea as aforementioned,
and pause to mention the specific material facts of negligence as
pleaded in paragraph
5.2.10:
“
He
travelled on the incorrect side of the road
”.
And paragraph
5.2.11:
“
He
obstructed the lane of traffic in which the driver of the insured
vehicle was travelling in a negligent way and at an inopportune
moment.
”
7)
Forming part of the record were certain
documents relevant to the respondent’s claim inter alia witness
statement contained
in the police docket and a sketch plan and key to
such plan drafted the South African Police Service in their police
investigation
of the collision under docket “
Appel,
Case CR19/06/2004
”. Appel being
the place which has jurisdiction over the area in which the road is
situated on which the parties travelled
on, the specific day.
The relevance of this sketch plan will be dealt with later.
8)
The respondent ostensibly included this
document together with statements of witnesses for the respondent and
the driver of the
insured vehicle, which all formed part of the
police docket and were contained in the trial bundle, as these
documents were discovered
during the course of pleadings.
9)
The respondent proceeded to lead the
evidence of one Mr Pine Moraswe who was a passenger seated behind the
respondent, the driver
of the taxi transporting the passengers on 6
June 2004 around midnight, on the road from Ga-Debella to Ga-Moraswi
in the Limpopo
Province. The respondent chose not to call the
plaintiff, Mr Malatje, himself due to the fact that evidence from the
Bar
was tendered as well as doctors’ medico-legal reports later
included in the bundle, that confirmed that the plaintiff had
a
speech impediment and a hearing problem as a consequence of the
sequelae
of his injuries sustained.
10)
There was a discourse between counsel
appearing on behalf of the appellant and respondent in regard to the
respondent not being
called as a witness, as the respondent’s
counsel stated that the plaintiff himself would not be able to
testify although
available, and the appellant’s counsel arguing
that the plaintiff was able to testify and that according to the
medical records
he could not recall the collision, so he would not be
of any assistance, although he would be able to testify.
11)
The respondent nevertheless chose not to
call the plaintiff due to the fact that he would not be able to
testify without some difficulty.
12)
The trial court did not deal with the fact
that the plaintiff himself did not testify and the trial Judge in the
circumstances drew
no negative inference from the failure of the
respondent to testify. I agree that no negative inference has
to be drawn from
the fact that the plaintiff himself did not testify,
as both parties were in agreement that he could or would not be able
to assist
the Court, albeit for different factual or medical
reasons.
13)
Mr Moraswe, the witness, testified that he
was seated behind the plaintiff in the motor vehicle and that he is
related to the plaintiff,
as his cousin. They were travelling
after midnight to their village in Ga-Moraswi from a westerly to an
easterly direction.
At this juncture the respondent’s
counsel handed in a set of photographs depicting the road leading to
Ga-Moraswi (east)
and Appel Cross (west). Counsel stated that
these photographs were indeed prepared by the appellant. In
total 20 colour
photographs were handed in and formed part of the
record, marked exhibits A1 to A20.
14)
The photographs depicted a tar road without
any solid or broken lines, either in the middle or on the edge of the
road. The
surface next to the tar road was gravel and ran past
a rural area that depicted houses and a building containing fuel
reservoirs
next to the road, no street lights were visible on the
photographs.
15)
In his evidence-in-chief Pine Moraswe,
looked at all the photographs, but denied that any of the photographs
depicted the scene
where the collision took place according to his
recollection. He stated that the collision occurred further
east on the same
road, but that the photographs did not depict the
place of collision or point of impact as per his recollection.
The witness
could therefore not be requested to make any markings on
these photographs as to the point of impact or to the position of the
vehicles prior to and after the collision in relation to the road
depicted on the photographs. He was quite rightly not requested
by counsel to make any markings on these photographs, although now
other photographs depicting the place of collision as per him
were
ever shown to him. It was simply recorded by the Court
a
quo
that this was the correct road on
which the collision took place. The witness was unaware of the
speed limit. He testified
that the insured vehicle came from an
easterly direction facing their vehicle. He said that the
plaintiff remarked during
his driving on the said evening, “
he
was being blinded by the headlights
”
of the oncoming vehicle and that he thereafter proceeded to dim and
bright his lights for the approaching vehicle.
16)
Pine Moraswe further testified that the
oncoming vehicle deviated from its lane of travel and collided with
their vehicle in their
lane of travel. Their vehicle capsized
and ended up on the left-hand side of the road in an easterly
direction, thus on their
side of the road and not on the opposite
side of the road. He testified that after the collision he
could not wake the plaintiff.
He climbed out of the vehicle and
went to the village nearby for assistance. He thereafter
proceeded to remove the respondent
from the vehicle and took him to
hospital in another vehicle whose driver assisted him, and who it
later transpired were also people
known to him.
17)
He testified that the respondent was not
intoxicated, that he was with him the whole day and he had not been
drinking. He
testified that the respondent flicked his lights
to the oncoming vehicle to show that he was being blinded and the
respondent also
took evasive action by swerving to the left-hand side
of the road, without leaving the road in order to prevent the
collision.
18)
After counsel for the respondent showed him
his statement that he had given to the police, he denied signing the
statement and no
page could be found with his signature thereon.
He testified that the policeman wrote down the answers that he gave.
He did not read the statement back to him and he did not sign it.
He only gave a verbal account to the police of the collision
and they
wrote it down. On this point the page depicting his signature
is not part of the record as his statement ends with
the oath being
administered and a certain policeman, one Mahlatsi, commissioning the
statement and setting out the oath.
The statement ends with the
oath being administered, but the next page does not continue with
further averments for the oath, but
is simply the certification of
the statement by one Mahlatsi. It is unfortunate that counsel
for the respondent did not take
this issue any further due to the
fact that I surmise that it is due to an incomplete record of the
statements handed in during
discovery, that the signature of the
witness does not appear in the record. It is probable that the
statement was indeed
signed by the witness, but that this page was
simply not included in the documents before Court. Be that as
it may, it therefore
prevented any subsequent cross examination by
the appellant’s counsel on his statement as he denied signature
thereof.
19)
During cross-examination the following was
brought to the fore. He was seated directly behind the driver
in the Venture used
as a taxi and that the other three passengers
were seated at the back behind him and were all sleeping. He
denied that the
respondent sitting in front of him driving the
vehicle, obstructed his view in any manner of the road to the front
of the vehicle.
Even though the blinding of the headlights was
communicated to him by the respondent he also noticed the oncoming
vehicle’s
headlights and bright lights himself. He did
not know at what speed the respondent was driving and the respondent
also flicked
his headlights approximately three times to the insured
vehicle, at the same time reduced speed and also at some stage
swerved
to the left without leaving the road. The fact that he
reduced speed also now came to the fore for the first time as
evidence
and he testified that he could see the markings on the road
dividing the two lanes of traffic and he saw the oncoming vehicle
directly
turning towards their vehicle. The oncoming vehicle
deviated into their lane of travel, and the right front and right
rear
wheels of the oncoming vehicle travelled into their lane of
travel. He could see this by the lights reflecting on the road,
their vehicle’s and the oncoming vehicle’s lights.
20)
He says the impact on their vehicle was on
the right-hand side of the front headlamp. He did not know
where the impact was
on the other vehicle or the make of the insured
vehicle. He was further not sure about the impact, but he says
he assumed
it was more or less a head-on contact and more to the
sides of both vehicles on their headlights. After the collision
he
says the insured driver ended up on the opposite side of the road
from their direction on four wheels next to the road. He
says
he was concerned with the respondent and he did not assist any other
passengers of either their vehicle or any of the occupants
of the
insured vehicle. He did not proceed to go and look in the
appellant’s vehicle or try and find any of its occupants
or the
insured driver.
21)
He did not deny that the insured driver’s
vehicle ended up next to the road on the left-hand side of the road,
thus on the
appellant’s own side of the road. He conceded
that the police could have been at the scene of the collision after
he
had left to take the plaintiff to hospital. He disputed the
fact that the collision happened between 18h00 and 19h00 and said
that it was after midnight.
22)
He said that there was no speed limit of 30
kilometres before the bend on the road which they were travelling
coming from the east,
as he knows the area. He denied that the
respondent was driving at an excessive speed coming around the bend
and due to this
lost control of his vehicle. He denies that the
appellant’s driver flicked his lights and that their vehicle
encroached
into the appellant’s lane of travel and collided on
the appellant’s side of the road. Their vehicle after the
collision
ended up on their side of the road, capsized, on the gravel
next to the road, the appellant’s vehicle after the collision
ended up on his left hand side of the road also on the gravel not
capsized. He denied that the road was wet and that the conditions
were not safe.
23)
The appellant called the insured driver, Mr
Daniel Tlaesego Makwane. He testified that he could not recall
the date of the
collision, but said that it was in 2004 around 19h00
in the evening. He was travelling from Bronkhorstspruit driving
towards
Appel Cross in a maroon Jetta. He says the weather conditions
were cloudy and the road surface was wet. He confirms that on
the specific evening he was driving from an easterly to a westerly
direction. His vehicle’s lights were on as it was
dark
and he was driving at approximately 40 kilometres per hour when the
collision took place.
24)
The photographs handed in as exhibits A1 –
20 were shown to him and he marked an X on exhibit A7 indicating the
point of impact
on his side of the road, i.e. the left-hand side,
near the building with the fuel reservoirs I referred to earlier . He
also indicated
on A9 where he first saw the respondent’s
vehicle and marked it with a Z. In regards to the photographs,
it depicts
Z to be at the bend of the road and the appellant’s
vehicle plus-minus 150 metres marked with an "A" on the
left-hand
side of the road. The witness used exhibit A9 and
made his markings indicating when he first saw the vehicle of the
respondent
when it was approaching in the bend of the road
approximately 150 metres ahead. He testified that he saw the
vehicle coming
at a high speed around the bend with his bright lights
on. He applied brakes and swerved to the left-hand side, but
the respondent’s
vehicle swerved into his lane of travel and
collided with his vechile on his side of the road.
25)
He says that in 2004, there was a white
line dividing the road, but currently on the photographs no such
white line is depicted.
At least this fact is common cause
between the parties as confirmed by both the witnesses who testified
in this matter that in
2004 there was a white line. He says he
flicked his lights approximately twice.
26)
He testified that the respondent’s
vehicle landed past the point of impact on the left-hand side of the
road, off the road,
on his side of the road. He marked “D”
on A7 as the place where the respondent’s vehicle ended up
after
the collision. “D” was at the same place were the
witness had marked A when he first saw the vehicle of the respondent,
it indicated a place on the gravel next to the road on the left hand
side of his lane of travel. This was never disputed in the
cross
examination of the witness.
27)
The police arrived at the scene after
approximately five minutes. He did not speak to any of the
occupants in the respondent’s
vehicle although he did proceed
to go and look if he could find anybody in the respondent’s
vehicle to assist, but he waited
for the police to come to the scene.
28)
In cross-examination of this witness the
following evidence came to the fore. After his statement made
to the police was put
to him and he said that he had signed it, he
denied that it was ever read back to him or that the contents thereof
were explained
to him before he signed it. He said that the
police arrived after 19h00. His statement says that the
collision occurred
at 19h00 and that he was alone in the vehicle.
He denied specifically that he was not alone due to the fact that he
had a
learner’s licence and indeed needed someone to accompany
him who was in possession of a valid driver’s licence.
He
also further denied that the collision was around midnight.
29)
Questions by the Court brought out the
following facts: that he was first at Mohaleng to pick up children
and that he had to then
fetch his wife. Due to the fact that he
had been working the morning he first rested. He was doing
piece jobs.
Although in his evidence-in-chief he said that he
was unemployed. He testified that he was at Mohaleng up until
18h00 the
evening. He could not recall the name and surname of
the person driving with him and he only gave his nickname. He
had been in possession of a leaner’s driver’s licence for
two months. Currently he has no driver’s licence.
30)
The discrepancy in regard to the speed in
his statement to the police that he was driving at 60 kilometers per
hour was put to him
why he had testified that he was driving 30 to 40
kilometers per hour. He explained that he reduced his speed due
to the
road conditions and the speed and bright lights of the
respondent’s vehicle. The trial court asked if he had
told the
police that he had flicked his lights and that he had
swerved out for the oncoming vehicle. He confirmed that he had
told
the police, but that they did not put everything in his
statement. He said that it was not read back to him and that he
made
the statement at about 20h00 at the police station. I
pause to state that if one has regard to his statement no time is
depicted
on the statement. He continued to deny that the
collision occurred after midnight.
31)
Thereafter counsel for the respondent
continued with cross-examination. It was put to him that the
respondent moved to the
left and if the respondent indeed moved to
the left, how could he then have collided with the appellant’s
vehicle on the
right. It was then put to him that he had
encroached on the respondent’s lane of travel. At this
juncture the
appellant’s counsel objected to this version being
put to him on the grounds that it was not pleaded as a ground of
negligence
in the summons, and therefore that the appellant had not
been made aware that this is the case they had to meet, in that the
insured
driver had encroached on the lane of travel of the respondent
and was therefore negligent.
32)
The
Court a
quo
rule that, having regard to
paragraph 5.5 and 5.6 of the pleadings of the respondent which state
that the insured driver “
failed to
give regard to other road users, in particular the plaintiff, and
that the insured driver failed to avoid the collision
when by
exercise of reasonable care he could have done so
,”
was broad enough to include evidence that the insured driver
encroached in the lane of travel of the Respondent.
33)
He further testified that he only signed
his statement the next day and that his statement was never read back
to him.
34)
That being the totality of the evidence, I
pause here to say that it is most unfortunate that no inspection
in
loco
was conducted in this case and
that the parties could not agree to hand in photographs that depicted
the scene of the collision,
albeit it different places on the road,
photographs which could be used for the appellant and the respondent
to indicate point
of impact and the like. The photographs used in the
trial court also went missing and after enquiry by the appellants
could not
be traced by the respondents attorney, however in the
appeal the respondent filed together with their heads of argument,
photographs
which they state were the photographs used in the trial,
which they found in their counsels brief. The parties could not agree
if these were indeed the photos used in the trial, this court
allowed the photos to be handed up and it forms part of the
appeal
record, it does seem to be the photographs used in the trial court as
the markings as previously discussed indicating “A”
“Z”
and “X” do appear thereon.
35)
The court therefore only had one
photographic version depicting the point of impact and the position
of the vehicles prior to and
after the accident, and this evidence is
supplemented by the oral testimony of the appellant’s insured
driver. In contrast
to that, the court had the respondent’s
version not from him directly but from a passenger travelling in the
vehicle, who
could give no evidence of speed, point of impact, except
to say that it was on their side of the road, or positions of the
vehicle
after the collision, and whose version was not supplemented
by any photographs.
36)
I turn to consider the findings of the
Court
a quo
on the facts. The Court had to decide which of the two
versions, so to speak, to accept. In doing so it had to
consider
the facts, the credibility of the witness and the
probabilities in this case. The trial court accepted the version of
the respondent
in doing so the Court found that the passenger in the
respondent vehicle was a credible witness, and that the probabilities
supported
the respondent’s version of how the collision
occurred.
37)
The
Court a
quo
also found that the probabilities
were in favour of the respondent due to the fact that the appellant’s
insured driver had
no driver’s licence, and even though this
issue was not addressed in cross-examination, it indicated an absence
of skill
and also therefore led to an indication of negligence.
The Learned Trial Court found that a “learner driver”
being in the position of the insured driver on that road after
midnight in the condition as it was, accepting that the road was
wet
and not in a very good condition, would have had difficulty in
driving his vehicle in those conditions.
38)
The appellant’s counsel submitted
that the Court
a quo
erred in various respects on the facts and had an incorrect approach
to resolve the factual disputes between the two versions.
Counsel for appellant argued that the Court had too much regard to
the collateral issues put to the insured driver and found him
not to
be a credible witness on those collateral issues.
39)
With regard to the specific ground of
negligence not pleaded but testified to under oath, an objection by
counsel for appellant
was raised against the positive statement put
to the witness of the appellant, that he caused the accident due to
his flickering
lights and the fact that he encroached on the lane of
travel of the respondent vehicle. This was the first time in the
trial that
this version of the respondent came to the fore, it was
never alleged either in the particulars of claim or in replication
even,
after the appellant pleaded this specific ground of negligence
in their plea. The respondent counsel also did not request amendment
of the particulars of the claim before judgment.
40)
The rule that parties are limited to their
pleading is apposite in these circumstances, and the first error of
the Court
a quo
was to not uphold the objection of the counsel in regards to this new
material fact that was being testified to without it being
contained
in any pleadings. The appellant was therefore caught unawares and
could not prepare its case in reply to this evidence.
41)
The Court
a
quo
erred in finding that the factual
statement that another vehicle encroached on the lane of another
could be included as a ground
of negligence as pleaded in paragraphs
5.5 and 5.6 of the pleadings of the respondent, which stated that the
insured driver “
failed to give
regard to other road users, in particular the plaintiff, and that the
insured driver failed to avoid the collision
when by exercise of
reasonable care he could have done so
.”
42)
The issue, with respect, should not be if
the factual statement of “encroaching on another lane”,
which is a material
fact and is a specific ground of negligence,
could be in general incorporated in the maxim “having regards
to other road
users or exercising reasonable care”, but the
issue was that it was a material fact on which the respondent relied
to prove
its case, and the respondent had to prove that fact in order
to prove that the appellant insured driver drove in a negligent
manner.
43)
By neglecting to allege the said fact in
the particulars of claim the respondent then at trial attempted, and
succeeded in canvassing
another issue which was not pleaded.
44)
Further to the law in general, Rule 18(4)
of the Uniform Court Rules states that “
every
pleading shall contain a clear and concise statement of the material
fact/s upon which the pleader relies for his claim, with
sufficient
particularity to enable the opposite party to reply
”.
A party is limited to its pleadings and cannot direct attention
to one issue and at trial attempt to canvass another.
The court must
be able to determine the real issues, and the tendering of this
evidence as a ground of negligence was widening
the issues.
45)
This is set out in
Nyandeni
v Natal Motor in
1974 (2) SA 274
(D)
,
Shil v Milner
1937 AD 101
at p106
and
Mosterd NO v Old Mutual Life
Assurance Co SA Ltd
2001
(4) SA 159
SCA at 180 A- B
.
46)
What is further important on this material
fact of negligence, is that it remained the central issue between the
parties and, indeed
the most important single and factual dispute
between the parties, being the point of impact in relation to the
middle line on
the road, and which vehicle would then have encroached
on the other vehicles side of the road, and moved over the middle
line.
47)
The approach of the Court, 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.
”
48)
As to the credibility of the respondent
witness, Mr Moraswa, this court cannot remark on his candour as this
is solely within the
trial court’s knowledge, indeed as set out
in judgment by the trial court that he was “edgy”. I must
agree with
counsel of the appellant that the remark in regards to him
being "edgy" must be seen in the light that he became
“edgy”
after the court had interposed the
cross-examination and asked him several questions, he is a simple man
and in all probabilities
found the court intimidating even though no
bias can be deducted from the court’s questions to the witness.
49)
The internal contradictions of the
appellant’s witness were as to speed at the time of the
collision, compared to his statement,
time of the accident that was
clearly incorrect, and the fact that he testified he was unemployed,
but later testified that he
was doing a piece job on the day.
Also the fact that he was travelling alone in the vehicle and the
fact that he did not
state in his police statement that the
respondent had encroached in his lane.
50)
This Court will not rely on the statements
as made to the police to find contradictions and to make any findings
of credibility
based on the contradictions of both witnesses having
regard to their evidence and their statements made to the police.
Both
witnesses testified that they made oral statements after
questioning by the police, which answers were written down and in the
respondent’s case the witness did not sign his statement, and
the appellant’s witness signed his, but denied that it
was read
back to him or the contents thereof explained. Thus, having
regard to the shoddy police work in taking down the
statements of
witnesses in this case, as well as the undisputed evidence that both
witness statements do not comply with the rules
of evidence, this
Court cannot have regard to the contradictions put to the appellant’s
witness in regards to his statement.
51)
The respondent’s witness also had
contradictions and the quality of his evidence was not as good as
that of the appellant’s
witness as he firstly testified to a
ground of negligence not pleaded on the papers.
52)
The reliability of the respondent’s
witness warrants some criticism. He had no idea of speed of their
vehicle or speed limits
on the road, but in cross-examination denied
that the speed limit was 30 km on the road, did not even know the
make or colour of
the appellant’s vehicle.
53)
His view of the road was obscured by the
driver sitting in front of him, it was dark and there were no street
lights. In these circumstances
one can make no other logical finding
than that this would have affected his observation opportunity and
the quality thereof.
54)
This Court must now consider afresh the
probabilities and the improbabilities of both versions of the
witnesses in this matter,
and I now turn to do so:
55)
It is probable that the respondent,
proceeding out of a bend in the road, could lose control of his
vehicle when driving too fast
and more than 30 kilometres per hour,
being the speed limit set when entering the bend. This, in contrast
to the improbabilities
that the appellant’s insured driver
would for no apparent reason all of a sudden swerve to the right out
of his lane and
encroach onto the lane of travel of the respondent,
on a straight road.
56)
The police sketch plan and key compiled by
a police officer after the collision indicated that both vehicles
were stationary after
the collision on the left-hand side of the road
in an easterly direction, thus both vehicles were on the left-hand
side of the
road of the lane of travel of the insured driver, thus
corroborating, firstly, the appellant’s witness testimony that
both
vehicles ended up on his side of the road, and in contrast to
the total opposite evidence of the respondent, testifying that his
vehicle was on his left-hand side of the road opposite that of the
appellant’s vehicle, also on his left-hand side of the
road.
57)
The sketch plan and key and the objective
facts depicted therein were not canvassed by any of the parties in
the court
a quo
.
It seems as if the court
a quo
was also not made aware of the sketch plan. The version as to where
the vehicles ended up after the collision was testified to
by each
party, and this evidence was also mutually destructive of each other
due to the fact that the appellant witness testified
that both
vehicles ended up on the left-hand side of his side of the road on
the gravel, and the respondent witness testified that
their vehicle
was on their left-hand side of the road and the appellant’s
vehicle further away on the opposite side of the
road thus on the
right side of their vehicle.
58)
The sketch plan points to a probability in
favour of the appellant as it is corroboration of an objective party
(the police). The
respondent’s counsel argued that the police
plan could not be correct, as the police were not called to testify,
the evidence
stood in a vacuum before the Court, and should not be
considered in light of the fact that the appellant’s witness
contradicted
himself in his evidence and was not a credible witness.
59)
He also criticised the appellants witness,
due to his police statement being contradictory to his testimony and
that the markings
he had made on the photographs were inconsistent.
The evidence is clear that his statement was not read back to him and
he
did not read it, and I have dealt with that so the discrepancies
does not take a finding on probabilities any further. Therefore,
by
the same token the correctness of the Respondent’s statement
could not be tested due to him not signing his statement,
the
discrepancies in the appellant’s evidence could be explained
due to the fact that the appellant’s witness did not
read his
statement.
60)
I find that this police plan is admissible
evidence, it is prima facie evidence from the police who compiled a
plan post collision
of the position of the vehicles. I find
that having regard to the sketch plan that it is more probable that
the respondent’s
vehicle would have ended up on the left-hand
side of the road i.e. the appellant’s side of the road, if one
has regard to
the testimony of the appellant, the point of impact
described and marked on the photographs, and the damage on the
appellant’s
vehicle, being on the front right-hand side. It
also points to the probable route the vehicle would have taken after
impact with
the appellant’s vehicle in the left lane.
61)
It is improbable that the respondent’s
vehicle, having regard to his evidence, that the point of impact was
on his side of
the road in his lane, the appellants vehicle would
have ended up, on the complete other side of the road, after the
collision.
It is improbable having regard to sketch plan that the
respondent vehicle would end up on the complete opposite side to
which he
swerved prior to the collision as he testified that he
swerved left, thus even further away from the direction of the
oncoming
appellant’s vehicle. The fact that he testified that
the vehicle were on different side of the road was disputed by the
appellant,
but the evidence as per the appellant that the vehicles
ended up after the collision on the same side of the road, his left
hand
side, was not disputed in cross examination.
62)
The probabilities favour the appellant
further in that his evidence was a direct and first-hand account and
testimony of the collision
as to speed, distance, point of impact and
positions of the vehicles prior to and after the collision. The only
direct evidence
the passenger in the respondent’s vehicle could
give was that he saw the headlights on bright and he saw the
appellant’s
vehicle encroaching on their lane, his evidence was
not helpful in reaching any conclusion or finding on probabilities.
63)
It is also more probable that the view of
the witness sitting behind the respondent travelling in the dark, on
an unlit road, was
obscured by the respondent in front of him.
64)
The strange behaviour of the respondent in
leaving the scene of the collision immediately with the driver and
not waiting for the
paramedics or police to arrive, warrants some
negative conclusion in that the witness indeed did not want the
police to find the
respondent in the vehicle on the scene of the
collision for some obscure reason.
65)
The probabilities in favour of the
respondent are that the collision definitely did not occur at 19h00
and that the appellant’s
insured driver is mistaken about the
time, as the medical records of the plaintiff indicate his admission
to hospital, at approximately
03h00 am in the morning, which
corroborates the testimony of the respondent.
66)
On the factual findings the trial court
erred in finding that appellant’s insured driver was unskilled
due to the fact that
he only had a learner’s license, in the
absence of any evidence to that effect, and in the absence of it
being put to him
in cross-examination.
67)
Counsel for the respondent argued
strenuously on this point and asked this Court to regard the fact
that he did not have a valid
driver’s license as
prima
facie
proof and an indication of him
being an unskilled driver. It was argued further that there is
rebuttable presumption that
the absence of a driver’s license
indicates lack of skill, and that this Court could also take judicial
notice of this fact,
which is a clearly wrong.
68)
Counsel quoted the Law of Collision in
South Africa as per H B Klopper in this regard to substantiate his
argument in this regards.
I quote the relevant passage from the
author at page 22 paragraph 4 (4
th
edition)” “
however it does
not necessarily follow that an unskilled unlicensed person or someone
with a learners license, is by virtue of the
fact of his lack of
skill or license ipso facto negligent. Nor can such persons driving
skill be judged with mere reference to
his driving experience. In our
law a person is not negligent merely because he is unskilled. The
negligence of the unskilled driver
arises when such driver being
aware of his lack of skill, nevertheless elects to drive a motor
vehicle and causes an accident.
Consequently the actions of an
unskilled and unlicensed driver generally have to be determined, with
reference to the reasonable
person test.”
69)
I can find nothing in the National Road
Traffic Act or in any judicial notice or presumptions, as well as in
reported cases that
justifies a
prima
facie
conclusion that a learner driver
is an unskilled driver, especially if no such evidence was elicited
in cross-examination.
70)
The trial court therefore erred in making
such a finding and on that basis finding on the probabilities in
favour of the respondent.
I therefore make
the following order:
The appeal is
upheld with costs.
The Court a quo’s
granting judgment in favour of the respondent on the merits is set
aside and substituted with an order that
absolution from the instance
is granted with cost.
_______________________________
STRAUSS S
ACTING JUDGE OF THE
HIGH COURT
I
agree
________________________________
pp MSIMEKI M W
JUDGE OF THE HIGH
COURT
I
agree
_______________________________
HUGHES W
JUDGE OF THE HIGH
COURT
Date
of judgment:
Counsel
for the Applicant: ADV.: A VOSTER
Attorney
for the Appellant: GILDENHUYS MALATJI INC
Counsel
for the Respondent: ADV.: M SHOKOANE
Attorney
for the Respondent: MR PHALA ATTORNEYS