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2012
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[2012] ZAGPPHC 51
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Masilela v Road Accident Fund (64322/2010) [2012] ZAGPPHC 51 (3 April 2012)
NOT
REPORTABLE
IN
THE HIGH OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT, PRETORIA)
CASE
No: 64322/2010
DATE:
3 April 2012
In
the matter between:
MASILELA,
DUMA
KHOLWA
.....................................................................................
PLAINTIFF
AND
THE
ROAD ACCIDENT
FUND
.............................................................................
DEFENDANT
JUDGMENT
RANCHOD
J:
[1]
This is a matter in which the plaintiff claims damages arising out of
a motor vehicle accident. It is common cause that the
accident
occurred on 12 August 2008 and not 2009 as stated in the summons. The
Plaintiff was a passenger in the motor vehicle with
registration PMD
650 GP and is required to prove 1% negligence on the side of the
defendant's insured driver if his claim is in
excess of R25 000.00
which is the limited amount he can claim if the driver of the vehicle
in which he was a passenger was negligent.
This limit has since
apparently been declared unconstitutional but is not applicable in
this case.
[2]
The driver of the vehicle in which plaintiff was a passenger was Mr
Sandile Mokoena. The driver of the vehicle ('the insured
vehicle')
which plaintiff alleges was the sole cause of the collision was Mrs
Lerato Gambu ('the insured driver'). The registration
of the insured
vehicle in the particulars of claim is stated to be ERL 273 GP.
Again, it is common -cause that it is in fact ERL
273 MP.
[3]
At commencement of trial the parties agreed to separation of the
issue of negligence or merit and the quantum of damages of
the
plaintiffs claim. I deemed it appropriate to do so and ruled
accordingly and the matter proceeded on the issue of merits of
the
claim only.
[4]
Two witnesses testified for the plaintiff: Mr Mokoena the driver of
the vehicle in which plaintiff was a passenger and Mr. Salebena
Dhlamini, who was himself a passenger seated next to Mokoena. The
Plaintiff did not testify.
[5]
Three witnesses testified for the defendant: the insured driver and
her husband who were both seated in the insured vehicle
and the
driver of a vehicle travelling directly behind the insured vehicle at
the time of the collision.
[6]
It is common cause that both vehicles travelled in the same
direction. The defendant's evidence that a friend of the insured
driver, Ms Pascalina Khopu and her husband were travelling behind the
insured driver is disputed by the plaintiff's witnesses.
[7]
The evidence of the two witnesses for the plaintiff was almost
identical on the material aspects of what happened immediately
prior
to the accident, how it happened and what transpired after the
collision. Both of them testified that immediately prior to
the
collision the insured vehicle was travelling in the left hand lane of
the two lanes from west to east on the old Potchchefstoom
road. The
two of them, together with the plaintiff and another person were
returning home around midnight to Vosloorus after attending
a night
vigil in Pimville. As they approached the Baragwanath taxi rank they
stopped at a robot and the insured vehicle had stopped
as well but in
the left lane. When the traffic light turned green in their favour,
both vehicles pulled off. About 100 to 150 metres
from the robot
there is a slight curve to the right and thereafter to the left. Both
of them testified that at the time they were
travelling about 50- 60
km per hour. Whilst negotiating the first curve the insured vehicle's
right rear tyre protruded onto the
right hand lane of travel and
collided with their vehicle's front left part. In an attempt to avoid
the collision, Mr Mokoena swerved
to his right and his vehicle landed
on the island and collided with a lamp post.
[8]
Both the witnesses testified that the insured driver came to them and
apologised. The insured driver and her husband denied
this.
[9]
Mr Mokoena said he was taken to Lesedi Hospital and was discharged
two days later. He was adamant that he was taken there by
ambulance
and not, as alleged by the insured driver and her husband that he was
taken away by his wife, whom he had called telephonically
to come to
the scene.
[10]
The insured driver testified that she was travelling in the left hand
lane and her friend Ms Khopa was travelling behind her.
Both of them
stopped at the traffic light and, when it turned green, they pulled
off. There was no other car at the traffic light.
As she pulled off
she heard a bang. That's when she noticed the plaintiff's car for the
first time and also realised that her car
had been hit on its side.
The impact caused her to move to the left. She hit the kerb and came
back on the road. She stopped and
went to where the plaintiff's car
had landed on the island. Her friend Khopa took details from the
other driver. A pregnant lady
came and took away one of the men in
her car. She did not know who the lady was. Her husband took photos
of the car as they were
angry that the person was taken out of the
ambulance and he left with the lady. She candidly admitted that she
did not see how
the accident happened. Ms Khopa testified that she
smelt alcohol in the plaintiff's car. Again, the insured driver
readily admitted
that she did not smell any alcohol there and did not
know if any of the occupants of the car smelt of alcohol. If there
was any
collusion Detween her and Ms Khopa one would expect her to
corroborate her on this point but she did not. She denied apologising
to anyone after the accident. She said she was in her lane of travel
when the impact took place. I find her to be a credible witness.
[11]
Mr Jacob Gambu is the insured driver's husband. He corroborated his
Wife's evidence that Mrs Khopa and her husband were travelling
behind
them, that after his wife pulled off from the traffic light he heard
a loud bang and their car veered to the left hand side
but his wife
managed to keep it on the road. He saw plaintiff's car go onto the
island and hit the lamp pole with a huge impact.
He speculated that
plaintiff's driver must have been driving at 120 kilometres per hour.
He telephoned the emergency services and
an ambulance arrived. The
occupants of the plaintiff's vehicle got into the ambulance. However,
a pregnant lady took the driver
of the plaintiff's vehicle out of the
ambulance and left with him. This made him angry and he took
photographs of the lady's vehicle
as evidence. Photos 27 and 28 of
the album tendered in evidence show the registration number of the
vehicle, he said. He testified
that the vehicle in which he was
travelling was in the left lane at the time of impact.
[12]
Ms Khopa testified that she was travelling behind the insured vehicle
and had stopped behind it immediately before the accident
at the
traffic light. She said she saw plaintiff's vehicle, after passing
her, moving to the left, colliding with the insured vehicle
and then
losing control and hitting the lamp post. The plaintiff's motor
vehicle had not stopped at the traffic light next to the
insured
vehicle, she testified. She said she smelt alcohol in the white car
(plaintiff's car) when she was near it and for that
reason wanted to
phone the police herself. She took particulars of Mr Mokoena from his
wife when she arrived at the scene as "they"
(plaintiff's
vehicle's occupants) did not want to furnish them. She further
testified under cross- examination that plaintiff's
vehicle had sped
past her and the insured vehicle. When it passed her she got the
impression that it wanted to come in front of
or overtake the insured
vehicle. She was sure that the accident occurred in the left hand
lane as the insured driver was in that
lane, although she could not
say exactly how the accident occurred. She also smelt alcohol on a
passenger of the plaintiff's motor
vehicle who had been put inside
the ambulance. She could not tell whether the plaintiff's driver had
consumed alcohol.
[13]
This court is confronted with two mutually destructive versions of
how the accident occurred. I must therefore adjudicate,
on a balance
of probabilities, whether plaintiff's version, that the insured
driver veered into his lane of travel is more probable
than the
defendant's three witnesses' evidence that the plaintiff's motor
vehicle came from behind the insured vehicle at high
speed and
scraped the rear right side of the insured vehicle, and then lost
control and collided with a lamppost on the island
separating the two
lanes of travel in each direction.
[14]
In Stellenbosch Farmers' Winery Group Ltd and Another v Martell et
cie and Others
2003 (1) SA 11
SCA 14-15 the Court stated that where
it is faced with two conflicting versions, the court must make its
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, . . . 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 extra-curial
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".
[15]
It is common cause that both the insured vehicle and Mr Mokoena's
vehicle were travelling in the same direction on the old
Potchchefstoom Road, that a collision occurred between their
vehicles, that Mokoena's vehicle ended up on the traffic island and
collided with a lamp post.
[16]
The material facts for the purposes of this judgment that are in
dispute are whether Ms Khopa was also travelling there at
the same
time behind the insured driver, whether the insured driver and
Mokoena had both stopped at the traffic light at the same
time,
whether the impact took place in the left hand lane or the right hand
lane, whether the insured driver apologised to Mokoena
and whether
he, Mokoena, was taken away in an ambulance to hospital or by his
wife in her car.
[17]
Ms Khopa made a particularly good impression as a witness. Even
though she is a friend of the insured driver there is no evidence
to
suggest that she was deliberately giving evidence only favourable to
the defendant. She was confident in the witness stand and
her
demeanour could not be faulted. The two witnesses for the plaintiff
testified that they did not see her vehicle behind the
insured
driver. No reason suggests itself from her evidence and that of the
insured driver and her husband that they were falsely
stating she was
there. Her evidence had a clear ring of truth about it. She gave
evidence of the events in such detail that it
could not be said she
was either coached into giving that evidence or that she was lying.
[18]
I accept that Ms Khopa was travelling behind the insured driver as
well as her other evidence, including that immediately before
the
collision the insured driver was in the left hand lane. In my view,
the only reason why both witnesses for the plaintiff deny
the
presence of Ms Khopa at the scene is she may serve to corroborate the
insured driver's evidence as indeed has happened. I view
the evidence
of the plaintiff's witnesses with particular caution as their
evidence was almost identical, including that both of
them said
Mokoena was driving between 50 - 60 km/h. Mr Dhlamini did not explain
how it is that he happened to know the speed at
the time.
This,
together with the other aspects of his evidence, leaves me with the
distinct impression that they colluded with each other
about the
evidence they would give in court. The occupants of the plaintiff's
vehicle were allegedly returning from the funeral
of one James Nkosi.
Mr Dhlamani said Nkosi had been his friend. When cross- examined, he
was unable to state the cause of Nkosi's
death. He did not know how
long he had been ill nor had he asked him what his illness was. He
did not even know where his friend
Nkosi had lived and was not even
sure whether he had been married.
[19]
In his evidence-in-chief Dhlamini testified that the insured vehicle
left its lane as it approached the curve and came into
their lane and
he heard a noise. Under cross - examination he conceded that the
damage to plaintiff's motor vehicle was severe.
When it was put to
him that the plaintiff's vehicle could not have been travelling at 50
to 60 km/h his response was that he did
not see it. On another aspect
he contradicted Mr Mokoena. Mokoena said he had sustained head
injuries, whereas Dhlamini said no
one had sustained head injuries
when it was put to him that the damage to the windscreen may be due
to a head colliding with it.
[20]
Mr Dhlamini testified that Mokoena was not with him in the ambulance
but did not know whether he had left with his wife. Mr
Mokoena,
however, insisted he did not leave with his wife but went to the
Lesedi hospital which is much further than Baragwanath
hospital,
which was close to the accident scene, by ambulance. There is no
evidence that there was more than one ambulance at the
scene.
[21]
Photographs 27 and 28 of plaintiff's bundle "A" were put
before Dhlamini, who confirmed that the registration letters
and
numbers thereon, namely, TVZ 847 GP, were that of Mokoena's wife's
vehicle. As I stated earlier, Mr Gambu, the insured driver's
husband,
testified that he took these photographs as evidence of the vehicle
in which Mr Mokoena left. The note to the copies of
the photographs
states, "Photos E & F indicating the vehicle that took the
plaintif s (sic) driver from the scene."
This was not disputed.
[22]
The insured driver testified that she had pulled off from the traffic
light and the collision took place a short distance later.
Ms Khopa
confirms this. Both Mokoena and Dlamini testified that plaintiff's
motor vehicle was also travelling slowly, having pulled
off from the
traffic light as well. Yet the extensive damage to plaintiff's
vehicle and the fact that it veered to the right after
merely
scraping the insured vehicle, mounted the raised kerb of the traffic
island, spun around and hit the lamp post indicates
that in all
probability the vehicle was travelling at a much higher speed than
testified to by Mokoena and Dhlamini. It in fact
serves to
corroborate the evidence of the defendant and the probabilities are
that plaintiff's motor vehicle had not stopped at
the traffic light.
The extent of the damage to the plaintiff's vehicle is consistent
with a vehicle travelling at high speed.
[23]
In my view it is highly improbable that the three witnesses for the
defendant would lie when they had no reason to do so, whereas
the
plaintiff has everything to gain from the version that would suit his
case. Both the plaintiff's witnesses were in my view
not credible
witnesses.
[24]
It is most probable that a vehicle will veer to the left, that is,
the plaintiff's vehicle, at a point in the road where it
curves
slightly to the right. I find, on a balance of probabilities, that
the collision took place in the insured driver's lane
and no
negligence can be attributed to her.
[25]
In all circumstances, the plaintiff's claim is dismissed with costs.
N
RANCHOD
JUDGE
OF THE NORTH GAUTENG HIGH COURT, PRETORIA.
Counsel
for the Plaintiff: Adv D. Mtsweni. Attorneys for the plaintiff:
Freeman Dube Attorneys, Pretoria. Counsel for the defendant:
Adv C. H
Badenhorst. Attorneys for the defendant: Sekati Monyane Inc,
Pretoria.