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[2009] ZAGPPHC 370
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Van Der Westhuizen v Padongelukkefonds (25434/2005) [2009] ZAGPPHC 370 (24 November 2009)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
AND SOUTH GAUTENG HIGH COURT. PRETORIA)
DATE:
19 November2009
CASE
NO: 35677/2006
In
the matter between
WILFRED
KHAMA
TLHWAELE PLAINTIFF
AND
ROAD
ACCIDENT
FUND DEFENDANT
JUDGMENT
PHATUDI
(J)
[1]
The Plaintiff instituted this action against the Defendant claiming
damages he sustained as a result of the motor vehicle accident
that
occurred on 24 July 2004 on the R511 road.
[2]
At the commencement of the hearing Mr Bezuidenhout, counsel for the
Plaintiff, placed on record that the matter is only proceeding
on the
determination of liability. He further placed on record that quantum
has been settled.
[3]
The following were submitted as common cause:
3.1
The collision occurred on the 24 July 2004 on the R5112 road;
3.2
The insured motor vehicle bearing registration number […..]
was driven by the insured driver
Mr CHB Lemmer.
3.3
The Plaintiff was the driver of the other motor vehicle bearing
registration number […...].
3.4
The accident occurred in the rightful lane of the Plaintiff.
[4]
The Plaintiff testified that he, on the night in question, though not
sure of the time was travelling alone in his vehicle from
his Britz
home. He reduced speed when approaching the curve. He could not
estimate the distance between the curve and his motor
vehicle at the
time he started to reduce the speed. He noted that there was an
oncoming motor vehicle with its bright lights on.
He heard a roaring
sound coming from the said motor vehicle.
[5]
He then saw the motor vehicle cross the barrier line over towards
him. He drove to his left close to the gravel on the shoulder
of the
tar road. He realised that the insured motor vehicle was on him and
he closed his eyes.
[6]
He stood firm on his version despite cross examination on the
different sketch plans as they appear on pages 2 and 5 of exhibit
B.
He denied knowledge of the sketch plan on page 2 and further denied
that' depicting how the road was He further denied that
the road
where the accident occurred had 3 lanes. He denied further the
version of the insured driver put to him.
[7]
The Defendant called the insured driver Casper Hendrik Badenhorst
Lemmer (Mr Lemmer). who testified that he was indeed the driver
of
the insured motor vehicle on the night in question. It was almost
after 21H00. He was travelling from South to North on the
R511 road.
[8]
He was travelling on a single lane. He noted the oncoming motor
vehicle approaching from the curve being driven straight on
his lane.
[9]
He presumed the place of impact as the place marked “F" on
the sketch plan appearing on page 2 of Exhibit B. He was
not sure of
the actual place of impact.
[10]
He further said that he had his bright lights on and at a later stage
on beam. He, under cross examination, said that he was
not sure how
fast he was driving. He was driving downhill. He further said that he
could not dispute that his lights were ever
bright and those of the
Plaintiff on beam.
[11]
He conceded the sketch plan at page 2 of Exhibit B is incorrect and
does not depict the actual scene. He, with certainty said
that the
sketch plan is definitely not correct. He further stated that he
never assured the defence counsel that the sketch plan
is correct.
[12]
It is trite law that the Plaintiff has to prove its case on a balance
of probabilities. I agree with Mr Bezuidenhout, counsel
for the
Plaintiff, that if the balance of probabilities favour the Plaintiff,
as a principle, the court should accept his version
as being probably
true.
[13]
Mr Bezuidenhout submitted that the Plaintiffs version is, on the
balance of probabilities, probably true and that this court
should
find in his favour. He submitted further that Mr Lemmer is not a
credible witness. Notwithstanding the 4(four) beers he
had at Ellis
Park stadium earlier before the collision, he in fact, does not know
what actually happened.
[14]
Mr Roos, counsel for the Defendant, submitted that both witnesses are
not credible witnesses and both of them are not innocent.
He,
however, submitted that Mr Lemmer version is probable.
[15]
In evaluating the evidence tendered I find that the sketch plan on
page 2 of Exhibit B does not depict the actual occurrence
of the
accident and cannot be accepted as evidence and should be regarded as
pro non scrioto
.
Mr Lemmer stated that the sketch plan is definitely incorrect. He
mentioned that the accident occurred at or near the curve. He
said
that the said curve is not shown on the sketch plan appearing on page
2 exhibit B.
[16]
The testimony of the Plaintiff that the accident occurred almost at a
curve is corroborated by Mr Lemmer's rejection of the
sketch plan and
insisting that there was a curve almost at a place where the accident
occurred.
[17]
In my view, the Plaintiff's version is probably true. He explained
how he tried to avoid the collision but the insured motor
vehicle
kept on coming to a point where he gave up by “closing his
eyes”. I find him to have been a credible witness.
He stood by
his version through out.
[18]
The probabilities are far from being evenly balanced and regard the
Defendant s version as being improbable. The Defendant
is thus
obliged to compensate the Plaintiff as agreed
[19]
The costs will as well follow the event.
[21]
I, thus make the following order
[21.1]
Defendant is ordered to pay the Plaintiff an amount of R370 000.00
[21.2]
Defendant is to cause issue of an undertaking as provided in terms of
Section 17 (4) (a) of
Road Accident Fund Act 56 of 1996
[21.3]
Defendant is ordered to pay Plaintiffs costs.
AMLPHATUDI
JUDGE
OF THE NORTH GAUTENG HIGH COURT
Heard
on
18 November 2009
For
the Appellant
: Adv F Bezuidenhout
Instructed
bv
Messrs Friedland Hart Solomon &
Nicolson
For
the Respondent
Adv J Roos
Instructed
bv
: Messrs Dyason Inc
Date
of Judgment
19 November 2009