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[2014] ZAGPPHC 388
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Moyo v Road Accident Fund (31116/12) [2014] ZAGPPHC 388 (6 June 2014)
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Case
Number: 31116/12
Date:
6/6/2014
Not
Reportable
Not
of interest to other judges
In
the matter between:
JONATHAN
MOYO
PLAINTIFF
and
ROAD
ACCIDENT FUND
DEFENDANT
Coram:
HUGHES J
JUDGMENT
Delivered
on: 6 June 2014
Heard
on: 19 to 21 May 2014
HUGHES
J
1.
The plaintiff Jonathan Moyo, a male born on
[…] was involved in a motor accident collision on 19 June 2011
in the vicinity
of Lavender Road Onderstepoort Pretoria. At the time
of the collision plaintiff was the drive of a Toyota Hilux bakkie
with registration
and numbers P[…]. The insured driver, Mr C
Pholosi, was the driver of a Toyota Tazz with registration letters
and numbers
M[…].
2.
By consent of the parties the issues have
been separated and I am only assigned to deal with the matter of
merits. This motor vehicle
collision involves only two vehicles and
as to its occurrence I am faced with two mutually destructive
versions.
3.
The insured driver states that on the day
in question he was alone in his vehicle travelling to work. Whilst
the plaintiff states
that as it was a Sunday he was on his way to
church with passengers totalling eight (8) inclusive of himself. He
and a female passenger
sat in the front cab of the bakkie whilst the
rest of the passengers sat in the bin which was without a canopy.
4.
The road that the accident occurred on was
that from Hammerskraal to Pretoria, also known as the Old Warmbaths
road.
5.
From the documents immediately filed in the
docket after the collision, the plaintiff is alleged to have given an
account and made
a statement to the South African Police Services.
6.
Firstly I propose to deal with the common
cause facts of the case:
6.1
On the day in question it was recorded that
the plaintiff was driving with seven (7) other passengers in his
bakkie without a canopy
;
6.2
The plaintiff was traveling towards
Hammerskraal whilst the insured driver was travelling towards
Pretoria;
6.3
The insured driver was alone in his vehicle
and at the time of the collision he was on his way to work;
6.4
The plaintiff and his passengers were on
their way to church;
6.5
The geographic makeup of the road was that
of a road with a single carriage on either side, with the plaintiff
travelling in a northerly
direction and the insured driver was
travelling in a southerly direction;
7.
On the accident report, completed by the
South African Police Service on arrival at the scene, it is recorded
that: A - being the
bakkie and B - Tazz:
“
Driver
A alleges that he was travelling toward Hammerskraal when a vehicle
white Toyota Tazz collided with his vehicle
head on”.
8.
On 20 June 2011, a day after the collision,
the plaintiff gave a statement to the police that reads
as follows:
“
On
2011/06/19 I was driving in a Maroon Toyota Hilux bakkie with
registration no. P[…] I was driving from Cosmo driving to
Hammerskraal using Old Warmbath road it was at about 06:40 when I saw
a white Toyota tazz with registration no. M[…] that
was
travelling from Hammerskraal to Pretoria changing from right lane to
lane to the left which I was travelling on as it was coming
towards
me I tried to change lane to aviode (sic) colliding with the vehicle
the driver of the white Toyota followed me and
we collided all cars
came to stand still. That’s all I can declare.”
9.
The plaintiff’s statutory affidavit
duly compiled on 5 May 2014 reflects that the collision occurred as
follows:
“
On
19 June 2011 at approximately between 06h30 I was the driver of the
motor vehicle bearing registration letters and numbers P[…]
along Lavendar (sic) and Old Warmbaths road in Onderstepoort,
Pretoria.
As
I was driving my motor vehicle on the aforementioned road when a
collision occurred with a motor vehicle bearing registration
letters
and number M[…] there and then driven by Mr Cornelius Pholosi,
Mr Pholosi lost control of his motor vehicle and
we had a collision.”
10.
In the plaintiff’s plea the
negligence plead of the insured driver is set out as:
“
5.1.1
He failed to keep a proper lookout;
5.1.2
He failed to take any, alternatively, sufficient, cognisance of the
presence, the actions and the visibility intended and
alternatively
probably further actions of the Plaintiff;
5.1.3
He travelled at a speed which was excessive in the circumstances
5.1.4
He failed to apply the brakes of the insured vehicles at all
timeously and / or sufficiently, alternatively he drove the insured
vehicle whilst the braking system and / or one or more of the tyres
thereof was or were in a defective and unroadworthy condition,
the
fact of which he was aware.
5.1.5
He failed to avoid the collision when by taking reasonable and proper
care (including but not limited to traveling more slowly,
serving) he
could and should have done so;
5.1.6 He
travelled on the incorrect side of the road at an inopportune moment
when it was not safe to do so;”
11.
The plaintiff’s case comprises of his
evidence and two female passengers who were in his vehicle. On the
other hand the insured
driver gave evidence together with an
independent witness. This independent witness was travelling in a
vehicle behind the insured
driver’s vehicle.
12.
The insured driver admits that the
collision occurred on 19 June 2011 and on the road between
Hammanskraal and Pretoria, however
he denies that he was negligent in
any way. He states in his plea that the plaintiff was in fact
negligent in one or all of the
following respects
“
5.3.1
He failed to keep a proper lookout;
5.3.2
He failed to avoid the collision when by the exercise of reasonable
care he could and should have done so;
5.3.3
He failed to take any, alternatively sufficient cognisance of the
presence, the actions and the visibly intended and or alternative
probable further actions of the insured driver.
5.3.5
He omitted to brake, alternatively brake timeously, alternatively
brake at all, alternatively the braking system of the vehicle
he was
driving was defective;
5.3.6
He was traveling too fast under the traffic conditions;
5.3.7
He failed to keep control alternatively, keep proper control of the
vehicle.”
13.
In the statement of the insured driver
taken from him on 7 July 2011, he states the following:
“
that
on Sunday 2011/06/19 at about… I was the driver of a white
Toyota Tazz with registration numbers M[…]. I was
travelling
along R101/ Old Warmbad (sic) road from north to south. It was misty
on the road so I was concentrating on my lane.
And suddenly a car
travelling from the opposite direction south to north collided with
my vehicle head on on (sic) my lane. The
accident happened so fast
that I didn’t have time to swerve or avoid that accident. I
sustained serious injuries due to that
accident and I was taken to
Pretoria Academic hospital where I was admitted for 17 days. The
other car involved was a Maroon Toyota
Hilux bakkie with registration
P[…]”.
14.
The independent witness made a statement to
the South African Police Services after the collision and the
important extract appears
below:
“
3.
On 2011-06-19 at about 06:45 I was travelling along Old Warmbad road
from North to South. I was going to work at the above mentioned
work
address. I was a passenger in a vehicle which was traveling behind a
white Toyota Tazz.
4.
I was sitting in a passenger front seat. We were at a distance of
+-20 meters behind the Toyota Tazz and I then saw a Maroon
Double Cab
bakkie traveling from the opposite direction (South to North)
colliding with the said Toyota Tazz.
5.
Furthermore the Maroon Double Cab bakkie collided with the Toyota
Tazz on the left lane and they both landed on the pavement
(extreme
left of old Warmbad road). That is all I can declare.”
15.
From the statement it is evident that the
versions of both the plaintiff and the insured driver are two totally
different versions
and thus two mutually destructive versions. I will
revert to this aspect after I have set out the testimony of all those
who gave
evidence.
16.
The plaintiff’s testified that on 19
June at about 5:45am he was travelling along the Old Pretoria Road on
his way to Hammerskraal.
In essence he was travelling in a northerly
direction and the road in question was a single carriage in opposite
directions. He
noticed a vehicle approach from the opposite direction
travelling in southerly direction.
17.
The plaintiff states that he noticed that
this vehicle was “
too much on his
lane
” and he saw that this
vehicle would cross in front of him. He screamed, flashed his head
lights and did not move towards
his left as he did not know if there
was a furrow off the road. He then decided to move towards his right
because he saw a space
on the left side of the other driver. As he
was conducting this manoeuvre the driver of the other vehicle also
moved toward his
correct path of travel.
18.
Both vehicles were moving sideways and in
the same direction. The plaintiff states that this is how the
collision occurred
close to the centre of the road but on the
plaintiffs path of travel. The other vehicle came to rest in the
centre of the road
whilst his vehicle came to rest on the verge or
end of the road of the traffic travelling in a southerly direction.
19.
At the time of the collision he stated that
there were eight (8) passengers in his bakkie, one sat as a front
seat passenger with
him and the other six (6) sat in the bin portion
of the bakkie which had no canopy.
20.
During cross-examination it emerged that
the insured driver entered the plaintiff’s lane “gradually
driving fast”.
It also came to the fore that the insured driver
was conducting a zigzagging movement before impact with the
plaintiff’s
vehicle.
21.
In re-examination the plaintiff stated that
he noted the insured driver zigzag from the lights of the vehicle and
that he first
noticed the insured vehicle approaching towards him by
its lights. He testified that the insured driver had already passed
the
passenger side of his vehicle when the insured vehicle entered
his lane.
22.
In re-examination the plaintiff testified
that he flashed his lights continuously and hooted at the same time.
He also slowed down,
and then applied brakes when he was close to the
centre line where the collision occurred. This testimony came to the
fore when
the plaintiff was shown a sketch compiled by the South
African Police Service which indicated brake marks thereupon.
23.
Two passengers who were in the plaintiff’s
bakkie testified. The first, Caroline Ndebele, the front seat
passenger testified
that the insured driver was driving a Toyota Tazz
on the day in question. The Tazz proceeded straight for their vehicle
in a zigzag
fashion. The collision occurred on the centre line. She
testified that when the plaintiff hooted the insured driver who was
in
their lane moved back to his correct lane.
24.
In cross-examination she stated that the
plaintiff did attempt to swerve to the left but the insured driver
kept coming so the plaintiff
swerved to the right, so too did the
insured driver and the collision occurred. The insured vehicle’s
final resting position
was on his correct side of the road being
blocked by the pavement. Whilst the plaintiff’s vehicle came to
rest on the incorrect
side of the road. Caroline Ndebele at this
stage of the proceedings testified that the plaintiff flashed his
lights, hooted, swerved
and applied brakes before the collision. This
was a response to questions on what evasive action the plaintiff took
on the say
in question.
25.
The second witness, Nthombi Zodwa Ndebele,
stated that she was seated at the back of the bakkie in the bin area,
directly behind
the plaintiff with her back against the side of the
bakkie facing the left hand side of the plaintiff.
26.
Nthombi’s evidence is that according
to her they were travelling on a road that was a double carriage in
both directions.
Her testimony is that the point of impact in her own
words was “
towards the end of the
road…crossing over our lane
”.
She recanted her entire description of the collision that she had
advanced and proceeded to say she was not sure anymore
how the
collision occurred.
27.
The insured driver’s testified that
all he remembers is that he was on his way to work on that fateful
day. He was driving
from south to north and looking in front when he
realised that there was an oncoming vehicle. He noticed this vehicle
from its
head lights. As this vehicle approached it proceeded to
encroach on his path he. He states that he tried to avoid the
collision
but it was too late to do so. He testified that he did not
hoot or apply brakes as he was so frightened and it happened so fast.
He denied that he was zigzagging on the road and persisted that he
was travelling straight in his path of travel when the plaintiff
encroached and moved into his path of travel. He lost
consciousness and does not remember much thereafter
28.
An independent witness, Clifford Khoza gave
evidence on behalf of the defendant. He testified that on the day in
question he had
obtained a lift, as he was hitch hiking, from a
motorist on route to Pretoria from Hammerskraal. He said that
he can’t
recall the make of the vehicle but he was seated in
the front passenger seat, three other occupants were seated at the
back. He
stated that the vehicle that he was travelling in was
following a Toyota Tazz, being the insured driver’s vehicle,
29.
The testimony of Khoza is that as the
plaintiff’s vehicle approached it was still in its correct path
of travel and as it
got closer to the insured driver’s vehicle
it left its path of travel and entered the path of travel of the
insured driver.
None of the vehicles hooted, flickered their lights
and neither did the vehicles apply brakes to reduced their speed. He
was emphatic
that the insured driver’s vehicle did not zigzag
on the road and neither did it leave its path of travel.
30.
He pointed out the point of impact on the
sketch plan provided as having occurred in the vicinity of the
beginning of the bus stop
which was situated on the edge of the south
bound lane. He pointed out that where the collision took place the
insured driver’s
vehicle came to rest and the vehicle of the
plaintiff came to rest at the other end of the bus stop in a
northerly direction as
compared to the insured driver’s
vehicle.
31.
This witness explained that he did not know
the parties at all and that he was approached by the police after he
had advised a college
at work, who spoke of the collision, that he
had witnessed the collision.
32.
Both counsel for the plaintiff and the
defendant agree that the main issue in this matter is the fact that
this court is faced with
a situation of two mutually destructive
versions.
33.
The approach when faced with two mutually
destructive versions is set out in the case of
Stellenbosch
Farmers’ Winery Group Ltd And Another v Martell Et Cie And
Others
2003 (1) SA 11
at paragraph [5] on page 14-15:
“
[5]
On the central issue, as to what the parties actually decided, there
are two irreconcilable versions. So, too, on a number of peripheral
areas of dispute which may have a bearing on the probabilities.
The
technique generally employed by courts in resolving factual disputes
of this nature may conveniently be summarised as follows.
To come to
a conclusion on the disputed issues a court must make findings on (a)
the credibility of the 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 about the veracity of the witness. That in turn
will depend on a variety of subsidiary factors, not
necessarily
in order of importance, such as (i) the witness' candour and
demeanour in the witness-box, (ii) his bias, latent and
blatant,
(iii) internal contradictions in his evidence, (iv) external
contradictions with what was pleaded or put on his behalf,
or with
established fact or with his own extracurial statements or actions,
(v) the probability or improbability of particular
aspects of his
version, (vi) the calibre and cogency of his performance compared to
that of other witnesses testifying about
the same incident or events.
As to (b), a witness' reliability will depend, apart from the factors
mentioned under (a)(ii), (iv)
and (v) above, on (i) the opportunities
he had to experience or observe the event in question and (ii) the
quality, integrity and
independence of his recall thereof. As to
(c), this necessitates an analysis and evaluation of the probability
or improbability
of each party's version on each of the disputed
issues. In the light of its assessment of (a), (b) and (c) the court
will then,
as a final step, determine whether the party burdened with
the onus of proof has succeeded in discharging it. The hard
case,
which will doubtless be the rare one, occurs when a court's
credibility findings compel it in one direction and its evaluation of
the general probabilities in another. The more convincing the former,
the less convincing will be the latter. But when all factors
are
equipoised probabilities prevail.
”
34.
On an application of the above test to the
facts of this case it is trite that the onus rest upon the plaintiff
and the only way
this can be discharged is if credible evidence is
adduced. In this matter where there are two mutually destructive
versions the
plaintiff can only succeed if I am satisfied on a
preponderance of probabilities that the plaintiff’s version is
true and
accurate, thus acceptable and that the other version, of the
defendant, is false, mistaken and falls to be rejected.
See
National Employers’ General Insurance v Jager
1984 (4) SA 437
ECD at 440D-G
35.
The plaintiff together with his witnesses
provided this court with different accounts or versions of how the
collision took place.
Both the plaintiff and his front seat passenger
depicted the point of impact at different place on the sketch. In
addition they
gave different accounts of how the plaintiff’s
and the insured driver’s vehicle careered on the road before
the collision.
The passengers in the bin of the vehicle, depicted the
collision on a totally different road. She was adamant that the road
was
a double carriage road to cater for her evidence which she later
recanted and said she was not sure as to how the collision took
place.
36.
The plaintiff and his two witnesses were
not impressive at all, they were confused, not concise with regards
to the facts and sequence
of events. They contradicted each other in
all material respects.
37.
In accessing this against the evidence
adduced on behalf of the defendant, the insured was candid that he
could not recall but for
the fact that the plaintiff entered his path
of travel, that he was frightened and everything happened fast.
However the independent
witness could not be faulted as he gave a
clear and concise account of what had transpired. He was to the point
and he testified
to the facts in a sequenced fashion. He was not
motivated or biased in testifying. I was impressed with his
demeanour.
38.
There is also the matter of the statements
made shortly after the collision. That of the independent witness is
in sync with his
testimony whilst that of the plaintiff differs in
material respects. The plaintiff’s statement even differs with
the case
pleaded by the plaintiff and the evidence presented. This is
evident from the various extracts set out above.
39.
Having regard to the totality of the
evidenceand examining the probabilities it is common cause that the
parties were travelling
on a single carriage road, one heading north
and the other heading south. The collision occurred early on a
Sunday morning
on the road between Pretoria and Hammankraal.
40.
Even in the face of the insured drivers
limited memory of what transpired his evidence was consistent with
that of the independent
witness. Both testified that the collision
took place on the insured driver’s side of the road and both
stated that the plaintiff
moved over and encroached on the path of
travel of the insured driver.
41.
The rest positions pointed out by the
independent witness though different to what was depicted by the
police doesn’t detract
from the fact that they are situated on
the side of the road that the insured driver was travelling along.
The evidence adduced
on this aspect is clear that the rest
position of the vehicles was on the side of the insured driver’s
path of travel.
42.
After the aforesaid analysis it is evident
that the probabilities are in favour of the insured driver and the
independent witness
as to how the collision occurred. Having reached
the said conclusion on the probabilities and on the credibility
highlighted above
I cannot in the circumstances set out in this case
attribute any negligence or blame upon the insured driver. The
situation and
circumstance that the insured driver was faced with in
my mind he did the best that he could and as such I can but only
conclude
that no negligence can be attributed to the insured driver.
43.
In the circumstances the plaintiff having
failed to discharge the onus and prove its case against the
defendant, the following order
is made:
43.1
The plaintiff’s claim is dismissed
with costs.
_____________________________
W.
Hughes
Judge
of the High Court
Delivered
on: 6 June 2014
Heard on: 19
to
21 May 2014
Attorney
for the Plaintiff
BORMAN
DUMA ZITHA ATT
Tel:
011 886 4628
Ref:
DM2285/AV DUMA/TANGA
c/o
CHUENE THEMA
136
Main Street
New
Muckleneuk
Brooklyn
PRETORIA
Attorney
for the Defendant
DYASON
INC
134
Muckleuneuk Street West
Nieuw
Muckleuneuk
PRETORIA
Tel:
012 452 3500
Ref:
M H MOSTERT/ac/KL1123