About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Kwazulu-Natal High Court, Durban
SAFLII
>>
Databases
>>
South Africa: Kwazulu-Natal High Court, Durban
>>
2012
>>
[2012] ZAKZDHC 21
|
|
Sithole v Lion of Africa Insurance Company Ltd (8729/07) [2012] ZAKZDHC 21 (3 May 2012)
IN THE KWAZULU-NATAL HIGH COURT,
DURBAN
REPUBLIC OF SOUTH AFRICA
CASE NO: 8729 /07
In the matter between:
MUZIWAKHE
EMMANUEL SITHOLE
….....................................................
PLAINTIFF
and
LION OF AFRICA INSURANCE COMPANY
LTD
…...............................
DEFENDANT
JUDGMENT
Delivered
on: 3 May 2012
MURUGASEN J
[1] The plaintiff, Muziwakhe Emmanuel
Sithole, instituted an action against the defendant, Lion of Africa
Insurance Company Limited,
for payment in the sum of R122 000,
interest thereon and costs arising from the repudiation by the
defendant of an insurance
claim lodged by the plaintiff.
[2] The plaintiff sued in his capacity
as the owner of a motor vehicle, an ISUZU KB 300 bakkie (the
vehicle), bearing the registration
letters MUZZY-ZN (MUZYZN as per
licence registration), alternatively as the legal possessor of the
aforesaid vehicle under a credit
agreement, in terms of which all
risk in and to the vehicle vested in the plaintiff.
[3] The plaintiff relied on an
agreement of insurance entered into on 1 October 2002 (the policy),
in terms of which the defendant
undertook to insure the plaintiff’s
vehicle, against the risks specified in the policy,
inter alia
,
damage to the vehicle.
[4] On or about 20 August 2006 the
vehicle was damaged in a collision which occurred at Osborne Street
in Eshowe. The damage to
the vehicle was assessed at R122 000,
being the difference between its pre-accident and post-accident
value. The plaintiff
lodged a claim for the damage to his vehicle
with the defendant in terms of the policy, alleging that he was the
driver of the
vehicle at the time of the collision, which the
defendant repudiated. The plaintiff instituted this action for
payment of the aforesaid
damages pursuant to such repudiation.
[5] In repudiating the claim, the
defendant alleged that it indemnified the plaintiff on the terms and
conditions contained in the
policy. It was however not obliged to
make payment to the plaintiff in terms of the policy because at the
time of the collision
the vehicle was driven by an unidentified third
party who, with the general consent or knowledge of the plaintiff,
was driving
the motor vehicle whilst under the influence of
intoxicating liquor or drugs.
The plaintiff had misrepresented to
the defendant that he was the driver of the motor vehicle at the time
of the collision. As it
was a material term of the policy that if any
claim under the policy was in any respect fraudulent, or if the
plaintiff or anyone
acting on his behalf or with his knowledge or
consent, utilised any fraudulent means or device to obtain a benefit
under the policy,
the benefit under the policy would be forfeited,
the cover under the policy was invalidated, alternatively the
plaintiff had forfeited
the right to claim the benefits afforded
under the policy.
[6] At the commencement of the trial,
the court ordered a separation of issues in terms of the provisions
of Rule 33(4) of the Uniform
Rules and the trial proceeded on the
issue of liability only.
[7] Although only a portion of the
policy was annexed to the summons, the parties agreed that the whole
of the relevant portion
of the agreement was before the court and
there were no conflicting clauses or clauses requiring consideration
in the remainder
of the policy document. Both counsel placed on
record that the court could, in its determination of the issues,
restrict its attention
to the extract of the policy furnished. Each
party furnished the court with a bundle of documents (Exhibits A and
B respectively).
A sketch plan (not to scale) drawn by the plaintiff
was admitted as Exhibit C.
Common Cause
[8] The following was common cause or
not in dispute :
The identity of the plaintiff.
The plaintiff was
the legal possessor of the vehicle.
3 In terms of the insurance policy
dated 1 October 2002, the defendant undertook to compensate the
plaintiff for damages to his
motor vehicle on the occurrence of
certain events, subject to various terms and conditions
inter
alia
,
3.1 the defendant would not compensate
the plaintiff if the event occurred and the vehicle was damaged while
the Plaintiff or any
person, with his knowledge and consent, drove
the vehicle while intoxicated or under the influence of alcohol or
other substance;
3.2 if the plaintiff misrepresented
the circumstances under which the event occurred or the vehicle was
damaged, the plaintiff would
forfeit the benefit due under and in
terms of the insurance agreement.
The plaintiff’s vehicle was
damaged in a collision which occurred in the early hours of 20
August 2008 when it collided
with a pole, electricity fuse box and a
roller door on the pavement in Osborne Street, Eshowe.
The plaintiff lodged a claim dated 21
August 2008 with the defendant on 30 August 2006.
By way of a letter dated 13 October
2006 the defendant repudiated the plaintiff’s claim relying on
the grounds set out in
Clause 8 of the General Conditions of the
policy, viz that the claim was fraudulent in that the plaintiff was
not the driver
of the vehicle as he alleged and that the benefit due
under the policy was consequently forfeited.
The Issue for Determination
[9] The issue for determination is
whether the plaintiff has discharged the
onus
he bears to
prove on a balance of probabilities that :
he was the driver of the Isuzu Twin
Cab vehicle bearing registration plates Muzzy ZN on 20 August 2006
at approximately 1h45 when
the said vehicle was involved in a
collision in Osborne Street, Eshowe.
in terms of the insurance policy with
the defendant, he is entitled to payment of the damages to his
vehicle consequent to the
collision.
The Plaintiff’s Case
[10] The plaintiff testified and
called one witness, Ntokozo Sifiso Cebekhulu, also known as Skwili.
The plaintiff testified at the time of
the collision he was paying instalments in liquidation of the
purchase price of the vehicle
to ABSA bank, which had financed the
purchase. After the collision and the repudiation of the claim, he
paid several instalments
and retained possession of the vehicle until
he had it repaired in 2009 and thereafter sold it.
[11] The plaintiff testified that when
the collision occurred he was driving the vehicle and was its sole
occupant. He was sober
and not under the influence of any
intoxicating liquor or substance. The police had made notes at the
scene of the collision before
a breakdown vehicle from Eshowe had
towed the vehicle away from the scene of the collision. He thereafter
reported the accident
at the Eshowe police station to a police
officer Ngcobo and then submitted the claim to the defendant.
[12] Under cross examination the
plaintiff testified that the vehicle had hit a light pole, an
electricity fuse box and then capsized
with its side against the
roller door of a shop. The vehicle was damaged on the left front and
side, the front grill and the bonnet.
The damage to the left mirror
was exacerbated when the vehicle was towed. There was no mechanical
damage of damage to the engine
or to the bottom, right or rear of the
vehicle, but he could not remember if there was any further damage to
the top of the vehicle.
[13] Further damage in the form of
body rust occurred to the vehicle after the collision, which was also
repaired in 2009. He had
paid the panel beater for the repairs not
more than R60 000. The radiator and the air conditioner were
also not functioning
as a result of the accident and he had paid
approximately R30 000 for those repairs. He thereafter ‘sold’
it to
his own company by merely effecting a change of registration of
owner.
[14] The plaintiff clarified that the
reason he had recorded in the claim form that the vehicle was damaged
beyond economical repair
and had sued for the difference between the
pre-collision and the post-collision value was that, although he had
eventually effected
repairs to the vehicle, he had taken the motor
vehicle immediately after the collision to the panel beaters
authorized by the defendant,
who had advised him that the vehicle
could not economically be repaired. He was insistent that he was
entitled to enforce the claim
because of the assessment and report by
the defendant’s panel beaters that the vehicle was damaged
beyond repair.
[15] When he instituted the claim, he
was still paying the instalments for the vehicle. He was therefore
entitled to claim the difference
between the pre-collision and
post-collision value. It was only after the claim had been repudiated
and the insurers failed to
repair the motor vehicle that he had to
accumulate the funds before he could attend to the repairs.
[16] The plaintiff testified that from
about 18h00 on the evening of 20 August 2006, he had been at a social
gathering at a carwash
outside the town. He had left the carwash to
drive to the BP Garage in Eshowe just after midnight to purchase the
cool drink. The
collision occurred between 01h00 and 02h00, although
he inserted the time of the collision as 01h45 in the claim form as
he was
trying to be specific.
[17] He testified that his home was in
the opposite direction from the direction he approached the garage
and a distance from the
car wash. When he reached the garage
Cebekhulu approached him for a lift to Umlalazi which is in the
direction of Melmoth and the
plaintiff’s home but is also far
into the rural area. The plaintiff therefore did not give Cebekhulu a
lift but left him
at the garage. He left the garage shortly
thereafter to return to the carwash.
[18] The plaintiff described Osborne
Street as a dual road, as the traffic on it travelled in two
directions. It is wide because
there were two lanes on each side of
the road and a parking lane. At the time of the collision there were
no vehicles parked on
the side of the road. He estimated that the
collision occurred about 6 kilometres from the garage.
[19] Just after he left the garage he
noticed two vehicles which appeared to be racing each other,
travelling toward him. He first
saw the vehicles when they were
approximately 500 - 600 metres away from his vehicle. He was
travelling at approximately 60 kilometres
per hour on the slow lane
or the left of the two lanes, when he observed the approaching
vehicles in his rear view and side mirrors.
The vehicles were
travelling very fast and occupying both the fast and the slow lanes.
He was unable to see whether they were travelling
parallel to each
other because the light affected his vision.
[20] He attempted to take evasive
action by swerving left but lost control of the vehicle, and collided
into the pole and the electricity
fuse box on the pavement and then
into the roller door which was on the window of a shop on the other
end of the pavement. He did
not brake but his foot remained on the
accelerator. The speed of the approaching vehicles did not allow him
to consider manoeuvring
the motor vehicle into the parking lane or
pulling his vehicle to the side. He was unable to estimate how long
after the collision
the vehicles passed his vehicle as he was
concentrating on the evasive action he had taken.
[21] The plaintiff denied that he was
not the driver of the vehicle or that he only arrived at the scene of
the collision after
the collision occurred or that the occupants of
the vehicle were two other male persons or that the driver of the
vehicle had smelt
of alcohol and appeared to be intoxicated.
[22] Cebekhulu testified that he knew
the plaintiff as at 20 August 2006; he used to meet him when he was
looking for employment
in Eshowe. On 20 August 2006 at approximately
1h00, while hitching a lift at the BP Garage to his home in Umlalazi,
Cebekulu saw
the plaintiff alone in his Isuzu double cab bakkie with
registration plates MUZZY-ZN in the parking area of the garage. He
had
asked the plaintiff for a lift but the plaintiff advised him that
he was not going to Umlalazi and shortly thereafter, the plaintiff
left the garage.
[23] Cebekhulu confirmed that when the
plaintiff left he was still alone in his vehicle. Shortly after the
plaintiff left the garage,
Cebekhulu heard a crash. He then walked
approximately ten minutes to the scene of the collision. The police
were already there
and the plaintiff had alighted from the vehicle.
[24] Under cross examination Cebekhulu
testified that while standing outside the garage still hitching, he
had observed the plaintiff
exit the shop at the garage with some cool
drinks and drive off. Shortly after the plaintiff left he heard a
noise but as it sounded
like a car crash, he walked at a normal pace
about ten minutes from the garage to the scene of the accident.
[25] Cebekhulu testified that he could
not estimate the distances, but when advised that the width of a
soccer field is a 100 meters,
he estimated the distance from the
garage to the collision to be between 50 to 100 meters. Although the
accident took place fairly
close to where he was standing at the
garage, he could not see the collision because of a slight bend in
the road.
[26] He disputed the evidence of the
plaintiff that the collision occurred 5 to 6 kilometres away from the
garage, when it was put
to him that if the collision had occurred 5
to 6 kilometres away, he could not have heard the sound of the
collision.
[27] Cebekhulu described Osborne
Street as a long street which passes the garage in both directions.
He confirmed that there are
no intersections between the garage and
the scene of the collision. Before the car crash, he only saw
vehicles that were travelling
in the opposite direction to the
direction the plaintiff had driven. He denied seeing any vehicles
travelling in the same direction
as the plaintiff after the plaintiff
left. He refused to furnish a reason why he had not noticed any
vehicles passing him in the
same direction as the plaintiff, alleging
that he was not paying any attention to vehicles travelling in the
opposite direction
because he was looking for a lift.
[28] Cebekhulu testified that on 18
April 2007 he had volunteered to make a statement to the police
although he had not observed
the collision, because he met the
plaintiff who told him the police had been looking for him and it was
necessary that he made
the statement. The police had been unable to
locate him as he was no longer employed where he had been previously.
In the statement
Cebekhulu confirmed that he arrived at the scene of
the collision after the accident.
The plaintiff then closed its case.
The Defendant’s Case
[29] The defendant called two
witnesses, Ivan Roestoff and Athanasils Galanopoulos.
[30] Roestoff testified that he was
travelling with a friend Jean-Pierre Smith along Osborne Street in
the early hours of 20 August
2006. After they passed the BP garage,
they saw a collision that had occurred approximately 50 meters from
the garage. As they
passed the collision, Roestoff heard someone
whistling as though to gain their attention. They turned back and
stopped at the scene
of the accident. He noticed that the vehicle was
on its side but could not recall if anyone was in the vehicle. He had
spoken to
the owner of a bakery in town at the scene. When he and
Smith were about to leave, a young black man approached them and
asked
for a lift. They gave him a lift and dropped him off somewhere
near Smith’s home. Roestoff could not remember what the man
looked like and could not comment on his state of sobriety or whether
he smelt of alcohol.
[31] Roestoff confidently estimated
that the distance from the garage to the accident was 50 metres and
was certain that one would
be able to hear the crash from the
forecourt of the garage.
[32] Galanopoulos who owns a bakery
which is situated in the same building as the BP garage, testified
that about 1h00 on 20 August
2006 while working in the bakery, he
received a report from his assistant that there had been an accident
on Osborne Street. Galanopoulos
proceeded to the scene of the
collision. He estimated the distance from the forecourt of the garage
to the scene of the collision
to be between 100 - 130 meters. He also
confirmed that if one had stood in front of the bowsers in the
garage, the scene of the
collision would have been visible.
[33] When he arrived at the scene
there were people milling around. He noticed that there was one
person seated inside the cab of
the vehicle and another person was
climbing out of the vehicle. The spectators in the area were
reluctant to get close to the motor
vehicle because of the electrical
wires lying around as the fuse box had been destroyed during the
collision.
[34] Galanopoulos testified that he
knows the plaintiff well although at that time he did not know that
he was the owner of the
vehicle. He also did not notice the plaintiff
when he arrived at the scene of the collision. However shortly
thereafter he saw
him standing near the vehicle, which was at the
same time as when he observed the two people in the cab of the
vehicle: the person
inside the cab and the other person who was
climbing out of the vehicle. He specifically saw the plaintiff
standing near the vehicle
while the one person was still inside the
cab of the vehicle.
There was no cross examination of this
witness. The defendant closed its case.
Argument
[35] In argument, Mr Mfungula
submitted that much of the evidence was common cause: the contract of
insurance, the fact that the
plaintiff’s motor vehicle was
insured in terms of the contract, and that the vehicle was damaged as
a result of the collision
that took place on 20 August 2006. The
issue in dispute was whether the plaintiff was the driver of the
vehicle. Mr Mfungula submitted
that the plaintiff’s evidence
was satisfactorily corroborated by his witness. The defendant’s
witnesses however did
not support its version as they could not
confirm how long after the collision they arrived. Although
Galanopoulos ‘created
the impression that there was a person
inside the vehicle who required assistance’, it did not detract
from the plaintiff’s
version that he was the driver of the
vehicle. The accident report recorded by the police at the scene of
the accident is consistent
with the plaintiff’s evidence.
Further the defendant’s witness places the plaintiff at the
scene of the accident.
Mr Mfungula contended in conclusion
that on a consideration of the conspectus of evidence, the plaintiff
had satisfied the onus
on him to prove on a balance of probabilities
that he was the driver of the vehicle and had therefore proved the
liability of the
defendant.
[36] In response Mr Topping submitted
that the contract of insurance demanded good faith, honesty and full
disclosure on the part
of the plaintiff. Although the defendant had
originally relied on two clauses in the policy viz clause 1 (c) of
the specific exceptions
and clause 8 of the general conditions which
related to claims tainted with fraud or dishonesty and the forfeiture
of benefits,
he conceded that the defendant had failed to place any
evidence before the court that the driver was intoxicated or that the
person
who had taken a lift with Roestoff was in any way involved in
the collision. The defendant therefore relied only on clause 8 which
was extremely broad.
He submitted that the defendant’s
witnesses did not deny that they had not seen the plaintiff driving
the vehicle, but it
was clear from the undisputed evidence of
Galanopoulos that there had been at least two people in the cab of
the vehicle. There
was therefore no truth in the claim of the
plaintiff, which leads to the irresistible conclusion that the claim
was fraudulent.
In contrast, the plaintiff and
Cebekhulu were inconsistent and dishonest. The plaintiff’s
testimony that the collision had
occurred 6 kilometres away from the
garage was an indication that he was not at the scene of the
collision when it occurred. His
evidence that there were two vehicles
racing down the road was not corroborated by Cebekhulu. Further
Cebekhulu’s statement
was intended to corroborate the
plaintiff’s version only as it did not assist with the
investigation as Cebekhulu was not
present when the collision
occurred.
Mr Topping submitted in conclusion
that the court should grant absolution from the instance because of
the plaintiff’s attempts
to mislead the defendant and his
connivance to obtain a benefit in terms of the insurance.
[37] Both counsel agreed that if the
court were to determine the issue of liability in favour of the
plaintiff, the costs should
be granted for the plaintiff but reserved
for finalization together with quantum. But if the court were to find
for the defendant,
costs ought to be ordered on the High Court scale,
as the plaintiff had chosen to litigate in the High Court.
Evaluation
[38] The court was faced with two
contradictory and mutually destructive versions, which lay to be
resolved in accordance with the
technique set out in
Stellenbosch
Farmers Winery Group Ltd & Another v Martell et Cie & Others
2003 (1) SA11 SCA
at Paragraph [5] at 14I - 15E :
‘
The
technique generally employed by courts in resolving factual disputes
where there are two irreconcilable versions before it may
be
summarised
as follows. To come to a conclusion on the disputed issues the 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 of 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 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, and (vi) the calibre and cogency of his performance
compared to that of other witnesses testifying
about same incident or
events. As to
(b)
,
a witness' reliability will depend, apart from the factors mentioned
under
(a)
(ii),
(iv) and (v), on (i) the opportunities he had to experience and
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.’
[39] The plaintiff displayed an
impressively confident and artless demeanour when he testified
clearly and coherently. Under crossexamination
he was able to respond
to questions leading up to the actual occurrence of the collision in
a convincing and frank manner. He is
clearly an intelligent and
articulate person. However his convincing artlessness began to show
cracks when he was cross examined
on the collision and the cause
thereof.
[40] The plaintiff testified that just
before the collision, he was driving at 60km an hour down Osborne
Street which was clear
of vehicles and there were no vehicles parked
on the side. According to the plaintiff, after he had travelled about
6 km from the
garage, he saw 2 vehicles approximately 500-600 metres
behind him, apparently travelling adjacent to each other, approaching
at
a great speed. He then took evasive action by swerving to the
left; however he did not brake and his foot remained on the
accelerator
of the vehicle. He lost control of the vehicle which
crashed into the pole, then the power box and finally came to rest
with its
side against the roller door on the far side of the
pavement.
[41] Although the court could not
fault the plaintiff’s evidence that it was night and he could
not estimate the distance
of the vehicles accurately and that he was
concentrating on the collision and was therefore unable to estimate
how soon thereafter
the two vehicles passed the scene of the
collision, there were a number of improbabilities in his evidence and
material discrepancies
between his evidence and that of his witness
Cebekhulu, whose testimony was intended to corroborate the
plaintiff’s version
that he was the driver and sole occupant of
the vehicle at the time of the collision.
[42] Although not an impressive
witness and clearly lacking the sophistication of the plaintiff,
Cebekhulu testified satisfactorily
in his evidence in chief about his
encounter with the plaintiff at about 1h00 on the night of 20 August
2006 at the BP Garage.
He corroborated the evidence of the plaintiff
that he did not give him a lift as he was not travelling in the
direction that Cebekhulu
needed to travel, and confirmed that the
plaintiff was alone in his vehicle.
[43] However when under
crossexamination, he was required to furnish details of the period
between when the plaintiff drove off
and his arrival at the scene of
the collision, Cebekhulu was clearly uncomfortable; he hesitated
before responding and was not
convincing in the responses elicited
from him. Even allowing for the intimidatory court environment and
the lapse of time since
the date of the collision, in my view, his
hesitation and uncertainty arose from his inability to respond
frankly and unhesitatingly
as the events he testified to, were not
within his own knowledge, but a fabrication intended to corroborate
the plaintiff’s
version.
[44] This was apparent from his
responses. He refused to commit himself about whether 2 cars passed
him at great speed shortly after
the plaintiff drove off from the
garage, eventually admitting that he may have heard the sound if they
did drive past him but he
had not noticed or heard such vehicles as
he was concentrating on hitching a lift. Given the undisputed
evidence that there were
no intersections between the BP Garage on
Osborne Street and the scene of the collision, if the vehicles did
approach the plaintiff’s
vehicle as he alleged, then they would
have had to pass the garage, while Cebekhulu was still there.
Although Cebekhulu denied
seeing or hearing the 2 vehicles, he heard
the noise of the collision which according to his version occurred 50
– 100 metres
from where he was. He then walked approximately
ten minutes to cover that distance, in a direction opposite to the
one he was travelling
in to observe the collision. This testimony not
only contradicted his allegation that he was concentrating on getting
home rather
than paying attention to other events around him but also
impacted adversely on his credibility.
[45] I turn to the improbabilities and
material discrepancies in the evidence in support of the plaintiff’s
case.
[46] The first improbability arises
from the inability of the plaintiff to move off the traffic lanes on
Osborne Street and onto
the parking lane without losing control of
the vehicle and his failure to brake, if as alleged, he was only
driving at a speed
of 60 km per hour and in the lane next to the
parking bays, while the approaching cars were still 500 – 600
metres away.
Instead the number of points of contact with objects
until the vehicle came to rest are indicative of a speed greater than
the
plaintiff alleges he was driving at. Further his evasive action
is extreme if the approaching vehicles were at a distance of 500
–
600 metres.
[47] There is a material discrepancy
in the evidence of the plaintiff and Cebekhulu about the distance
from the garage to the scene
of the accident. Cebekhulu testified
that the plaintiff drove off leaving him in the forecourt of the
garage. Shortly thereafter
he heard the sound or noise which caused
him to walk ten minutes to the scene of the collision. The plaintiff
testified that he
drove 6 km from the garage before the collision
occurred. If this was true, the sound certainly would not have
carried to the garage
where Cebekhulu was, no matter how acute his
hearing. Even allowing for a marginal error and acknowledging that
the plaintiff had
estimated the distance, the discrepancy is far too
great to dismiss as insignificant or a mere error. Both Cebekhulu and
Roestoff
testified that the collision occurred about 50 – 100
metres from the garage. Galanopoulos estimated the distance as
between
100 – 130 metres. If the accident occurred 100 - 130
meters from the garage it would not have taken Cebekhulu ten minutes
to get to the scene of the collision.
[48] The next material discrepancy
arises from the evidence of the plaintiff that he first sighted the
two vehicles approaching
while they were 500 – 600 meters away
and Cebekhulu’s evidence that, although the collision took
place only 50 –
100 meters away from the garage, he was unable
to see the accident scene as there was a bend in the road. Their
evidence is in
direct contradiction.
Cebekhulu
was also coy in his responses when asked about the vehicles. This
calls into question the existence of the two vehicles
that allegedly
caused the plaintiff to swerve, and renders his version as to how the
collision occurred improbable and untrue.
Galanopoulos’s
testimony that the scene of the collision would have been visible
from the forecourt of the garage, in the
area where Cebekhulu was
hitching also renders Cebekhulu’s evidence unreliable.
[49] The statement which Cebekhulu
volunteered to the police was of no assistance to the police
investigation as he was not present
at the time of the collision. Its
value lay in its corroboration of the plaintiff’s version in
respect of the dispute between
the parties. In any event as pointed
out by Mr Mfungula, the police had already taken a statement on the
accident report which
was consistent with the plaintiff’s
version. Cebekhulu’s statement was therefore not necessary to
the police. Given
that the statement was made after the repudiation
and at the instance of the plaintiff’s advices to Cebekhulu,
the veracity
and objective thereof is called into question. It is
also notable that in his statement Cebekhulu states that he looked
‘immediately
I heard a noise of collision then when I looked
because it was not too far from where I was, I then saw Mr Sithole
vehicle capsize
after collided with a transformer and a street light’
. A reading of the statement seems inconsistent with his oral
testimony
as it appears that he was able to observe the collision
from where he was standing.
[50] Therefore even without reliance
on the evidence of the defendant’s witnesses the plaintiff’s
case fell short, particularly
as a result of the lack of credibility,
reliability and consistency which permeates the evidence in support
his claim.
[51] Although there was no need to
disbelieve Roestoff, who had no interest in the matter, he did not
assist the defendant’s
case in that he did not observe who was
driving the vehicle at the time of the collision, and as conceded by
Mr Topping, there
was no value to be attached to his evidence about
the person they had given a lift from the accident scene. He did
however testify
that the collision occurred in proximity to the
garage.
[52] Similarly Galanopoulos had no
interest in the case. He knew the plaintiff well and merely observed
his presence at the scene.
Although Galanopoulos’s evidence on
its own did not conclusively sustain the defendant’s version
that the plaintiff
was not the driver of the vehicle when it crashed,
his evidence that there was one person in the cab of the vehicle
while the plaintiff
was standing outside the vehicle, places in
dispute the plaintiff’s allegation that he was the sole
occupant of the vehicle.
[53] This militates against the
probability and credibility of the plaintiff’s version. The
irresistible inference to be drawn
from the evidence that there must
have been at least one person other than the plaintiff in the vehicle
and therefore the plaintiff’s
allegation that he was the sole
occupant of the vehicle cannot be true. The further inference that
follows logically is that the
plaintiff has alleged that he was the
sole occupant of the vehicle because he was not the driver when the
collision occurred and
that his false allegation was intended to
sustain his insurance claim.
[54] From the aforegoing evaluation of
the conspectus of evidence, in particular the material discrepancies
and improbabilities
as set out
supra
which weigh against the
credibility of the plaintiff’s case and the reliability of his
witnesses, I am not persuaded that
the plaintiff has discharged the
onus on him to prove on a balance of probabilities that he is
entitled to the relief he seeks.
Costs
[55] There is no reason why costs
should not follow the result of the action. I am in agreement with
the submission that the defendant
ought to be indemnified by an order
for costs on the high court scale as the plaintiff instituted the
action within the jurisdiction
of this Honourable court.
Order
[56] In the premises the following
order do issue:
The defendant is granted absolution
from the instance.
The plaintiff is ordered to pay the
defendant’s costs, taxed or agreed, on the High Court Scale.
_____________________________
Murugasen J
Counsel for the Applicant: Mr M
Mfungula
Instructed by: c/o MH Mathonsi &
Associates
205 Langalibalele Street
PIETERMARITZBURG
Counsel for the Respondent: Mr IL
Topping
Instructed by: Askew & Associates
c/o Venn Nemeth & Hart
281 Pietermaritz Street
PIETERMARITZBURG