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[2009] ZAGPPHC 139
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Coetzee v Road Accident Fund (42690/2007) [2009] ZAGPPHC 139 (6 November 2009)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT, PRETORIA)
DATE: 06/11/2009
CASE NO:
42690/2007
UNREPORTABLE
In
the matter between:
JACOBUS
CORNELIUS COETZEE
Plaintiff
And
THE
ROAD ACCIDENT FUND
Defendant
______________________________________________________
JUDGMENT
LEDWABA,
J
[1] Plaintiff
instituted an action against the defendant claiming damages for the
injuries he sustained on 27
th
November 2004. Plaintiff was the driver of a Mitsubushi four ton
truck with registration number RDS 761 GP, which collided with
an
Isuzu bakkie with registration number KB 260 LDV (insured vehicle).
The driver of the insured vehicle, Mofokeng Moliko Jacobs
and his
passenger died at the scene of the accident.
[2] Merits
and quantum were separated in terms of
section
33(4) of the Rules of the High Court
as
the parties could not reach an agreement on quantum. Trial proceeded
on the merits and issues concerning quantum were stayed.
[3] The
witnesses in describing the weather conditions stated that it was
cloudy, the tarred road was wet, it had just stopped raining
or it
was drizzling. Exhibit A in pages 3 and 4 has coloured photos of the
scene of the accident. Plaintiff’s vehicle was
damaged on the
left front side as shown on exhibit A page 6.
[4] The evidence of the
plaintiff can be summarised as follows:
4.1 Plaintiff testified
that he saw the insured vehicle at a distance of about 50 meters
away from the opposite direction approaching
at a high speed and
there were no other vehicles in the vicinity except the insured
vehicle.
4.2 At a
distance of about 20 metres the insured vehicle swerved to its
right, bumped against the zinc, barrier shown on the
bottom coloured
photo in page 3 of exhibit A, plaintiff swerved slightly to his left
and to his right again. In that process,
the insured vehicle
swerved to its left again and the two vehicles collided with each
other and the path of the plaintiff’s
vehicle as indicated
on the rough sketch on page 2 exhibit N prepared by the plaintiff
about two months after the accident.
[5] The
defendant’s witness, Ms. Rose Karrim, described the accident as
follows:
5.1 She had
followed the plaintiff’s vehicle for some time metres and the
space between her vehicle could be the length
of about two vehicles.
Plaintiff’s vehicle was travelling at a speed of about 60-70
kilometres per hour. This implies that
she was travelling at the
same or lesser speed than the plaintiff.
5.2 She
explained that she was surprised to see the plaintiff’s
vehicle swerving to the right and colliding with the oncoming
vehicle. Plaintiff was flung out of the truck on impact and he
landed on the side of the zinc barrier of the oncoming vehicles.
5.3 She
also made rough sketches indicating the positions of the vehicle
after the accident, see the point marked X on the right
side of the
bottom photo on page 3, sketch A represents plaintiff vehicle and B
sketch represents the insured vehicle.
5.4 She
further said after stopping she went to the plaintiff and covered
him with an object to protect him from the sunlight.
She made a
statement to the police at the scene of the accident see page 9
exhibit A. When she left the scene the ambulance had
not yet
arrived.
[6] The
plaintiff’s witness, Mr. Ronnie C. Kotze, plaintiff is his
brother and said when he arrived at the scene of the accident
plaintiff had already been taken to the hospital. This implies that
when he arrived at the scene Ms. Karrim had already left the
scene.
[7] From the
evidence presented in court the three witnesses indicated different
points of the positions of the vehicles after the
accident. The said
positions also differ from the rough sketch made by the police on
exhibit A page 11. The position of the vehicles
as indicated by the
witness cannot assist the court much. The exact point of impact is
not known.
[8] The court should now
determine which version is more probable between the plaintiff and
Ms. Karrim.
[9] The
plaintiff’s statement to the police dated 3
rd
February 2005 further alleged that on page 8:
“…Ek
was toe alreeds besig om na die anderkant van die pad te beweeg toe
die voertuig my op die linkerkant gestamp
het. Beide die voertuie het
aan die regtekant van die pad tot stilstand gekom, ek is by die
voorste venster uitgeslinger en ek
het op die barrier van die brug te
lande gekom.”
[10] Ms. Karrim in her
statement to the police on paginated page 9 said the following:
“…It
appeared that the Mitsibusi lost control and smashed head on into an
Isuzu””
[11] It is
not very clear from Ms. Karrim’s statement that the plaintiff’s
vehicle swerved to its incorrect side of
the road nor does she state
that the insured vehicle swerved to the path of the plaintiff’s
vehicle.
[12] However,
she clearly stated in court that the plaintiff’s vehicle moved
to the path of the insured vehicle. Ms. Karrim
is an independent
witness. I carefully analysed her evidence and her demeanour in
court, she is a credible witness and the plaintiff
has not proved
that she had a motive to falsely testify against the plaintiff.
[13] Plaintiff’s
counsel conceded, correctly in my view, that she was a credible and
reliable witness. When Ms. Karrim testified
that she was following
the plaintiff before the accident happened that was not disputed.
[14] On the
contrary the plaintiff cannot be regarded as a credible and reliable
witness. Plaintiff testified that there were no
other vehicles in the
vicinity prior to the accident. This is an indication that he never
kept a proper look-out.
[15] The
onus is on the plaintiff to prove his case against the defendant on
the balance of probabilities. In
African
Eagle Life Assurance Co Limited v Cainer
1980 (2) SA 234
(W)
the court said:
“The
approach laid down in National Employers Mutual General Insurance
Association v Gany
31 AD 187
, namely: “Where there are two
stories mutually destructive, before the onus is discharged the Court
must be satisfied that
the story of the litigant upon whom the onus
rests is true and the other false”, which was applied in Koster
Ko-operatiewe
Landboumaatskappy Bpk v Suid-Afrikaanse Spoorweë
en Hawens
1974 (4) SA 420
(W), where there are probabilities,
inherent or otherwise, there is no room for this approach.”
[16] In
evaluating the evidence before me properly, I cannot find that the
evidence of Ms. Karrim is false. The plaintiff has therefore
failed
to discharge the onus on him.
[19]
I
therefore make the following order:
The plaintiff’s
claim is dismissed with costs.
A. P. LEDWABA
JUDGE OF THE HIGH
COURT