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[2010] ZAFSHC 17
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Van der Merwe v Road Accident Fund (802/2007) [2010] ZAFSHC 17 (18 February 2010)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No.: 802/2007
In the case between:
STEFANUS JOSUA
BENJAMIN VAN DER
MERWE
Plaintiff
and
THE ROAD ACCIDENT
FUND
Defendant
JUDGMENT:
VAN DER MERWE, J
_____________________________________________________
HEARD ON:
26, 27 and 29 JANUARY 2010
_____________________________________________________
DELIVERED ON:
18 FEBRUARY 2010
_____________________________________________________
[1] This is an action for
damages instituted in terms of the
Road Accident Fund Act, no. 56 of
1996
. At the commencement of the trial an order in terms of
Rule
33(4)
was made by agreement between the parties. The effect of this
order was that only the issue of negligence was to be determined
initially and that all other issues stood over for later
determination, if necessary.
[2] It is common cause
between the parties that at approximately midnight on 2/3 February
2003 a collision took place between a
Volkswagen Golf vehicle (“the
Golf”) and a Ford pick-up (“the Ford”). The Golf
and the Ford approached
each other from opposite directions on a dark
but dry night on a straight and level portion of the tarred road
between Frankfort
and Villiers. This road has one lane for traffic
in each direction with a broken line in the centre of the road. The
towns of
Frankfort and Villiers are approximately 34km apart. The
collision took place approximately 10km from Frankfort in the
direction
of Villiers. The Golf was a marked police vehicle driven
by the plaintiff in a northerly direction in the direction of
Villiers.
Sergeant (then Constable) Jacobus Petrus Carelzen and Mr
Nkosinate Jim Rabede were passengers in the Golf. The Ford was
driven
by Mr Jan Molahlehi Gatebe in the opposite direction, that is
in the direction of Frankfort. Mr Piet Makanda at the time was a
passenger in the Ford. The Ford incidentally belonged to a police
officer stationed at Frankfort, namely Inspector Sampie Motloung.
[3] The plaintiff
testified that he is an inspector in the South African Police Service
(“SAPS”) stationed at Villiers.
On the evening in
question he travelled with Sergeant Carelzen with the Golf from
Villiers to Kroonstad in order to transport
Mr Radebe, who was then a
prisoner, from Kroonstad to Villiers. On the way to Kroonstad he
heard an unusual sound emanating from
the vehicle, but upon
inspection he could find nothing wrong. As a result, however, on the
way back to Villiers, he drove at the
reduced speed of approximately
80km/h. Whilst approaching Frankfort he received a telephone call on
his cellphone from his station
commander at Villiers, namely
inspector Ludick. Inspector Ludick inquired as to the whereabouts of
the plaintiff and his passengers.
According to the cellphone records
of the plaintiff, handed in without objection and confirmed by the
plaintiff, this call was
received by the plaintiff on his cellphone
from the Villiers Police Station number at 23h40 and lasted for 30
seconds. After concluding
this call the plaintiff placed his
cellphone in his right trouser pocket. The next thing that the
plaintiff remembers is that
he was lying injured on the tar road.
The plaintiff has no recollection of how the collision occurred.
[4] The aforesaid
Inspector Gert Jacobus Ludick confirmed that he made the telephone
call to the plaintiff. He testified that upon
enquiry the plaintiff
said that they were close to the Wilge River, that is about 2km
before Frankfort from Kroonstad. Inspector
Ludick testified that
this conversation was ended normally and that it was not interrupted
by a collision taking place.
[5] Sergeant Jacobus
Petrus Carelzen confirmed the evidence of the plaintiff, including
the evidence in respect of the telephone
call received from Inspector
Ludick. He testified that thereafter he closed his eyes in order to
rest. He said that he then heard
the sound of the hooter of the Golf
as well as the plaintiff cursing and immediately thereafter the
collision took place. He was
unable to say which vehicle was on its
incorrect side of the road. He testified that after the collision
the plaintiff was unconscious
in the Golf. Sergeant Carelzen did not
at the time have a cellular phone. He then removed the cellular
phone of the plaintiff
from the latter’s right trouser pocket
and called the emergency number 10111. The aforesaid cellphone
records of the plaintiff’s
cellphone confirm that this number
was called at 23h59 on 2 February 2003 and that the call lasted 44
seconds. After this call,
Sergeant Carelzen removed the plaintiff
from the vehicle so that the plaintiff lay on the tar surface of the
road.
[6] Mr David Anthony
Nigel Gibb was called by the plaintiff as an expert witness in
respect of reconstruction of accidents. I do
not find it necessary
to refer to the evidence of Mr Gibb in respect of his reconstruction
of the collision. It is suffices to
say that Mr Gibb conceded that
it is very difficult to make any inference from the movements of
vehicles after a collision, especially
when the respective speeds of
the vehicles are not known. What is important though, is the
following, as explained by Mr Gibb.
It is common cause between the
parties that essentially a head-on collision took place. The first
impact of the collision on
both vehicles must therefore have been on
the right front parts thereof. As is depicted clearly on the
photographs of the damaged
vehicles, the first impact involved
approximately one third of the right front part of the Ford but only
a limited part of the
right front part of the Golf, so much so that
even the right front headlamp of the Golf was to a large extent still
intact. From
these objective facts it follows as a matter of logic
that the collision could only have taken place whilst the Ford was
angled
to its right towards the Golf. From this follows that the two
vehicles could not each have been travelling virtually straight,
albeit with one of them over the middle line, because then the extent
of the first impact damage on the Golf would have been similar
to
that on the Ford. It also follows that the collision could not have
taken place whilst the Golf was angled towards its right
towards the
Ford travelling straight in its lane. Such collision is in turn
incompatible with the extent of the first impact damage
on the Ford.
[7] Mr J M Gatebe was the
first witness for the defendant. He borrowed the Ford from Inspector
Motloung. At about 5pm on the day
in question he travelled from
Frankfort to Secunda in order to take his brother to Secunda. He was
accompanied by Mr Piet Makanda.
On his way back to Frankfort at
about midnight, he saw the lights of a vehicle approaching from the
opposite direction, that is
from Frankfort to Villiers. The
headlights of this vehicle were on bright. He then switched the
headlights of the Ford to bright
and dim in succession in order to
indicate to the oncoming vehicle to dim its lights. The headlights
of this vehicle however remained
on bright. He was to some extent
blinded by the headlights of this oncoming vehicle. He travelled at
approximately 80km/h as
he used to do. He reduced the speed of the
vehicle somewhat by releasing the accelerator a bit but with his foot
remaining on
the accelerator. He however kept on driving
approximately 50cm from the centre line of the road. According to
the evidence of
Mr Gatebe, as was also put to the plaintiff, the Golf
must have travelled over the centre line of the road on its incorrect
side
of the road for some time. It was therefore not the evidence of
Mr Gatebe that the Golf suddenly or at the last moment swerved
to its
right over the centre line.
[8] Mr Makanda confirmed
the evidence of Mr Gatebe except for the following. According to Mr
Makanda the Golf swerved to its right
over the centre line
immediately before the collision and that caused the collision. He
also testified that although even he was
blinded by the bright
headlights of the oncoming vehicle, the Ford continued travelling
straight approximately 30cm from the centre
line.
[9] The defendant then
called Inspector Lucas Mokhutu Mokoena of the SAPS stationed at
Frankfort. During the night in question,
he was on patrol duty with
Inspector Sampie Motloung. As a result of a report received the two
of them proceeded to the scene
of the collision, where they were the
first to arrive. According to Inspector Mokoena pieces of broken
glass from a headlight
or headlights lying in the lane of the road
leading towards Frankfort only, clearly indicated that the area of
impact was in that
lane, in other words in the lane in which the Ford
travelled. He marked an area of impact on that side of the centre
line by making
a mark on the tar with a stick. He also said that he
saw gouge marks of the type that would be made by the chassis of a
vehicle
and not the tyres thereof. He said that three or four gouge
marks, leading from the area of impact towards Frankfort and towards
where the Ford came to a standstill approximately in the middle of
the road, were clearly visible. He said that each of these
gouge
marks were each approximately 15mm deep and approximately 10cm long
and 5cm wide. He was then shown a police photo plan
forming part of
exhibit “C”. He said that he pointed out the points
depicted thereon to the police photographer and
pointed out that he
is indeed himself depicted on the photograph. He said that the mark
that he made with the stick to indicate
the area of impact on the
incorrect side of the road of the Golf, was clearly visible and that
he pointed that out to the photographer
who then was standing next to
him. He said that he did not notice then and could not explain why
the photographer placed the cone
indicating the area of the impact on
the other side of the road, that is in the lane leading to Villiers
in which the Golf travelled
before the collision. He also said that
he pointed out the aforesaid gouge marks to the photographer.
According to this witness
it was clear to him that the area of impact
was on the incorrect side of the road of the Golf. Although he
regarded this as an
important aspect, he did not mention it his
police statement made on 3 February 2003.
[10] Mr Radebe, the
prisoner transported from Kroonstad in the Golf, testified that on
the way the plaintiff spoke on his cellphone
on several occasions.
He said that the plaintiff was driving at “a higher speed”.
He also said that every time that
the plaintiff spoke on the
cellphone the vehicle was not steady but moved to the left or the
right. He said that he does not deny
that the cellphone of the
plaintiff was taken from the trouser pocket of the plaintiff after
the collision. He also said that
he could not say that the driver
was speaking on his cellphone at the time of the collision.
[11] It is clear that the
plaintiff anticipated that the defendant’s case would be that
whilst talking on the cellphone with
only one hand on the steering
wheel, the Golf moved to its right over the centre line causing the
collision whilst the plaintiff
was still speaking on the cellphone.
It was indeed put to the plaintiff during cross-examination that that
would be the evidence
of Mr Radebe. As was pointed out already, in
the end that was not evidence of Mr Radebe. The evidence of Mr
Radebe that the plaintiff
spoke on his cellphone on several
occasions, resulting in erratic driving, is contradicted by the
objective cellphone record evidence
indicating that there was no
activity on the plaintiff’s cellphone for more than an hour and
a half before 23h40. I accept
the evidence of Inspector Ludick that
the call made by him to the plaintiff at 23h40, lasting 30 seconds,
ended normally. I accept
the evidence of Sergeant Carelzen that he
retrieved the cellphone from the right trouser pocket of the
plaintiff after the collision,
which is a strong indication that the
plaintiff was not talking on the phone when the collision took place.
I accept the evidence
of Sergeant Carelzen that he made next the
call recorded on the plaintiff’s cellphone records, namely to
the emergency number
at 23h59. I find that the collision was not the
result of the plaintiff speaking on his cellphone at the time.
[12] The evidence of
Inspector Mokoena to the effect that the area of impact was clearly
in the lane towards Frankfort, that is
on the incorrect side of the
road of the Golf, falls to be rejected. Sadly, the inference is
irresistible that Inspector Mokoena
ex
post facto
attempted to assist his colleague, Inspector Motloung. It will be
remembered that Inspector Mokoena said that on the scene of
the
collision it became clear to him that the accident was caused by the
police vehicle, that is the Golf, that moved over the
centre of the
road to its incorrect side of the road. He also said that he
regarded this as an important aspect, which is obviously
the case.
Nevertheless, he made no mention of this in his police statement made
shortly afterwards. He could not provide a satisfactory
explanation
for this. Also, according to Inspector Mokoena the mark that he made
on the road representing the area of impact was
pointed out by him to
the police photographer standing next to him and was clear to see.
That the police photographer immediately
thereafter placed the cone
representing the area of impact on the other side of the road, is in
these circumstances so improbable
that it cannot be accepted. I fear
that the evidence of Inspector Mokoena of the gouge marks on the road
is an obvious fabrication.
He said that he indicated these gouge
marks to the photographer who could in any event see them clearly.
Nevertheless the photographer
did not photograph these marks. The
fact is that marks of this kind would have been seen on the police
photo plan before me.
For this too, this witness provided no
acceptable explanation.
[13] As I already pointed
out, the objective evidence shows that the collision could not have
taken place whilst both vehicles were
travelling straight but with
the Golf partly on its incorrect side of the road (as Mr Gatebe
testified) nor could it have been
caused by the Golf veering to its
right into the path of the Ford travelling straight in its lane (as
Mr Makanda said). This evidence
of Mr Gatebe and Mr Makanda can
therefore not be accepted. It has been said that direct or credible
evidence of what happened
in a collision generally carry greater
weight than the opinion of an expert seeking to reconstruct the
events from his experience
and scientific training. See
MOTOR
VEHICLE ASSURANCE FUND v KENNY
1984 (4) SA 425
(ECD) at 436H – 437B. This is however not a
case to which this statement can apply. In this case, objective
factual evidence
and the inferences therefrom indicate that the
eyewitness evidence of the defendant cannot be correct.
[14] By reason of the
aforegoing, it must in my judgment be accepted that the right front
parts of the vehicles collided whilst
the Ford was angled to its
right toward the Golf and not the other way around. In these
circumstances it is hardly possible that
the collision could have
been caused by the Ford swerving to its right in view of the Golf
travelling straight but over the centre
line. In my judgment it was
shown on a balance of probabilities that the negligence of the driver
of the Ford in causing the Ford
to move to its right over the centre
line of the road, contributing to the collision.
[15] Even though the Ford
moved to its incorrect side of the road, it is clear that the
collision took place very close to the centre
of the road. In cases
such as this, both drivers are generally held to be equally at fault.
Generally in these circumstances
the inference is made that the
driver that did not stray onto his/her incorrect side of the road was
also and equally negligent
in driving close to the centre of road and
failing to keep a proper lookout or failing to take reasonable
avoiding action. See
CANTAMESSA
v REINFORCING STEEL COMPANY LTD
1940 AD 1
at 6;
VAN
STADEN v AVENANT & ‘N ANDER
1971 (2) SA 456
(NC) at 458 – 459;
JADEZWENI
v SANTAM INSURANCE COMPANY LTD AND ANOTHER
1980 (4) SA 310
(C) at 311H and further. As the plaintiff in this
case does not have any recollection of the collision, he gave no
evidence to
displace this inference. This was conceded by counsel
for the plaintiff, fairly and from the outset. It appears that there
was
plenty of space to the left of the Golf. The lane in which it
was travelling was approximately 3.4m wide whereas the width of the
Golf was probably less than 1.5m. I find therefore that the
negligence of the plaintiff and of the driver of the Ford contributed
equally to the collision.
[16] I should add that
the same result must follow on the acceptance of the version of Mr
Gatebe and/or Mr Makanda. On this evidence
even though the driver
was partially blinded by the bright headlights of the oncoming Golf,
he continued to travel approximately
30 - 50cm from the centre line
of the road. The Ford was approximately 1,6m wide, travelling in a
lane approximately 3,4m wide.
Despite sufficient space to its left,
the Ford collided with the oncoming Golf that had moved only slightly
over the centre line.
[17] In the result the
following orders are issued:
1. It is declared that
the collision in question was caused by equal degrees of negligence
on the part of the plaintiff and of Mr
J M Gatebe.
2. The defendant is
ordered to pay the costs of the trial.
_________________________
C. H. G. VAN DER
MERWE, J
On behalf of
plaintiffs: Adv. J. P. Daffue SC
Instructed by:
Naudes
BLOEMFONTEIN
On behalf of defendant:
Adv. S. M. Malatji
Instructed by:
Krohn Inc.
BLOEMFONTEIN
/em