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South Africa: Kwazulu-Natal High Court, Pietermaritzburg
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[2009] ZAKZPHC 80
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Gwala v Road Accident Fund (10252/08) [2009] ZAKZPHC 80 (23 October 2009)
IN THE KWAZULU-NATAL
HIGH COURT, PIETERMARITZBURG REPUBLIC OF SOUTH AFRICA
Case No: 10252/08
In the matter between
Musawenkosi Joshua
Gwala
….................................................
Plaintiff
versus
Road Accident Fund
…...........................................................
Defendant
JUDGMENT
Delivered on: 23 October
2009
STEYN J
[1] In this action the
plaintiff claimed damages in the sum of R1 628 000,00 arising from a
road accident that occurred on 7 August
2004 at 15h35 on the
Bulwer/Boston Main Road, when the plaintiff’s vehicle,
registration number JWK 003EP, collided with
the insured driver’s
vehicle, to wit a Combi, with registration number NIM406.
[2] Plaintiff averred in
the particulars of claim that the accident was caused by the
negligence of the driver of the insured vehicle,
Mr Mkuswa Mvelase.
The alleged principal grounds of negligence that should be attributed
to him are:
“
(a) He
failed to keep a proper lookout;
(b) He failed to keep the insured
vehicle under proper
control;
(c) He failed to apply the brakes
of his vehicle timeously or at all;
(d) He failed to avoid the
collision when, by the exercise of reasonable care and skill, he
could and should have done so;
(e) He drove at a speed which was
excessive in circumstances where it was incumbent upon the insured
driver to reduce his speed
substantially;
(f) He failed to swerve or take the
necessary avoiding action, when by doing so a collision could and
would have been avoided.”
[3] At the start of the
trial the parties lodged an application that liability and quantum be
separated and such order was made
in terms of Rule 33(4). The matter
proceeded on liability and henceforth the judgment concerns the
merits only.
[4] The parties by
agreement handed in exhibit A, which is a bundle of documents, that
includes
inter alia
photographs of the scene where the
collision took place.
[5]
Facts
It is common cause that
the two motor vehicles were involved in a collision on 7 August 2004
on the Bulwer Road. It is further common
cause that the collision
occurred near the intersection at the Eshowe turn off. The issue in
dispute is whether either the plaintiff
or defendant was negligent in
driving their vehicles when the collision took place.
[6] For the plaintiff the
following witnesses testified, Mr Musawenkosi Gwala, the plaintiff,
and Mr Jabulani Chebekulu.
In brief the version of
Mr Gwala is that he was the driver of a Volkswagen Jetta and that he
had 4 passengers with him in the vehicle.
On the day in question he
was a duly licensed driver and sober. The vehicle that was driven by
him is a left hand drive vehicle;
it being an imported motor vehicle.
According to him he was travelling on Bulwer road on 7 August 2004 in
the direction of Pietermaritzburg.
Shortly before the accident
occurred there were five motor vehicles in front of his vehicle and a
bus in front of the said vehicles.
In his evidence in chief
he explained that he indicated to turn right into the road that leads
to Eshowe and as he was executing
the turn, he noticed the motor
vehicle of the insured driver. He then tried to change gears at that
moment because he realised
that the insured vehicle, a Combi, was
travelling at a high speed. It is his testimony that the Combi
collided with the left panel
of his vehicle and the left driver’s
door of the vehicle.
According to him there is
a ditch in the road and he did not see any cars. Mr Gwala’s
version was that he attempted to avoid
the collision by swerving to
the left of the road but to his mind the insured driver did the same
and hence the collision could
not be avoided.
[7] In cross-examination
Mr Gwala stated that he and the occupants in his vehicle had all left
for a funeral in the morning at 6
o’clock and that they had
bought KFC chicken to eat. According to him only 2 beers were
consumed by his passengers, whilst
he only had a cold drink to drink.
He was asked why he did not accelerate to get out of the way and
avoid the collision. In response
he answered that he was not able to
do so, since he had passengers in his vehicle. He was asked why he
never mentioned in an earlier
statement to the police that there were
other vehicles in front of him and his response was that at the time
of making that statement;
he suffered from a mental illness and had
not fully recovered from his injuries.
Upon a further question
by Counsel for the defendant, he blamed the discrepancy in his
earlier version on his inability to recall
all the events. According
to him his re-collection of the events improved after he had a
consultation with his legal representative.
The second witness for
the plaintiff, Mr Chebekulu, is related to the plaintiff. He is the
cousin of Mr Gwala and was a passenger
the vehicle. He sat in the
front passenger seat on the right hand side of the car. According to
this witness he had a better view
than Mr Gwala to see the oncoming
traffic and he only noticed the Combi when they were executing the
turn into the Eshowe Road.
In cross-examination he
contradicted Mr Gwala on the time that they had left for the funeral,
the food they had to eat and the amount
of alcohol consumed. These
contradictions may appear to be insignificant because it refers to
aspects other than the cause of action.
In my view they remain
relevant since it impacts on the credibility of the witness. He also
stated that the vehicles that had travelled
in front of them were far
ahead of them and not close, as the plaintiff stated.
Upon further questions he
insisted that whilst Mr Gwala executed the turn, he kept on looking
at the road towards Pietermaritzburg.
Mr Chebekulu never explained
why there was a need for him to keep on observing this road if it was
clear at the time when they
turned into the Eshowe road.
After this evidence,
plaintiff closed its case.
[8] For the defendant Mr
Mvelase, the driver of the insured vehicle, and Ms Zuma, a passenger
in the said vehicle testified.
Mr Mvelase’s
testimony was that he is a taxi driver. He confirmed that he was
involved in an accident on 7 August 2004. He
stated that on the day
he was coming from Pietermaritzburg, travelling towards Impendle on
the Bulwer road. The road is well known
to him and as he approached
the intersection he reduced speed. There were no vehicles ahead of
him. He observed, however, a vehicle
travelling in the opposite
direction. He expected this vehicle, which turned out to be the
plaintiff’s vehicle, to go straight
but against those
expectations it turned suddenly in front of him. At this moment he
was almost on top of this vehicle and he could
only apply his brakes
before colliding with this vehicle. In his taxi there were also
passengers.
According to him he, his
speed prior to the collision was 60km/h but when he came nearer the
intersection his speed was less, because
he had reduced his speed.
In cross-examination he
conceded that there is a steep blind rise in the road and that
visibility is not good until a person gets
to the top of this rise,
which is at the intersection. This rise is clearly depicted in photos
15 and 16 contained in exh “A”.
He also conceded that the
collision occurred not far from the blind rise. He was confronted by
counsel for the plaintiff that he
was travelling at a higher speed as
stated by him. He vehemently denied this proposition and
spontaneously stated that what he
expected to happen, is that the
plaintiff would have stopped since he (the defendant) had the right
of way. He also denied that
he swerved to any side. It is his version
that the conduct of the plaintiff driver was unexpected and when he
turned in front of
him, he only had time to apply the brakes. Mr
Mvelase indicated in court that he was +- 4 metres away from the
plaintiff’s
vehicle when it turned in front of him.
Ms Zuma was an
independent passenger in the taxi of Mr Mvelase, and was seated
directly behind the driver. It is her version that
where she was
seated she had a clear view of the road ahead. Her evidence
corroborated that of Mr Mvelase and I do not find it
necessary to
repeat it.
This concluded the
evidence of the defendant.
[9] Mr Chetty on behalf
of plaintiff submitted that there are two mutually destructive
versions before the Court. He urged the Court
to consider the
probabilities and in his view, the probabilities favour the version
tendered by the plaintiff. Accordingly he asked
that this Court finds
the insured driver liable and finds in favour of the plaintiff.
Mr Nirghin on behalf of
the defendant argued that the credibility of the defendant’s
witnesses far outweighed the version
tendered on behalf of the
plaintiff, and asked the Court to accept their version with regard to
how the accident occurred as being
correct and true. Henceforth it
was asked that the plaintiff’s claim be dismissed with costs.
[10] In
Stellenbosch
Farmers’ Winery Group Ltd and Another v Martell et cie and
Others
2003 (1) SA 11
(SCA) at para [5] Nienaber JA redefined the
techniques generally to be applied by a court in dealing with two
irreconcilable versions
before it as follows:
“
To come
to a conclusion on the disputed issues a court must make findings on
(a) the credibility of the various factual witnesses;
(b) their
reliability; and (c) the probabilities ….. 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.”
(Also see
Dreyer and
Another NNO v AXZS Industries
2006 (5) SA 548
(SCA) at para 30
for approval of the said approach).
[11] In my view there is
an onus on the plaintiff to prove on a balance of probabilities that
the defendant was negligent. This
can only be done having regard to
all the evidence adduced, and having done so, determining whether it
on a balance of probabilities
proved the negligence averred by the
plaintiff.
(See
Arthur v
Bezuidenhout and Mieny
1962 (2) SA 566
AD at 574 A-B).
[12]
Analysis of
the evidence:
In looking at the
objective facts of this case, it is clear that the plaintiff, is
either not telling the truth in his evidence
or he is deliberately
omitting to explain the exact cause of the collision. In his evidence
he failed to clarify why he could not
accelerate and get out of the
way of the oncoming Combi. It defies logic how he could consider it
safe to execute a right hand
turn with a left hand vehicle without
bringing the vehicle to a halt to observe whether there are oncoming
vehicles travelling
towards Impendle. According to him there were
five vehicles in front of him, excluding the bus in front of these
vehicles, so his
view was not clear and unobstructed to observe the
road ahead. Even on this aspect, the plaintiff contradicted himself.
Months
after the collision, no mention was made of vehicles
travelling in front of him, and yet he wanted this Court to believe
that five
years after the collision his memory is better than shortly
after the accident. This part of his evidence seems highly improbable
and defies any logic.
The objective factors,
like the scene of the collision, the surface of the road, the
visibility on this day and the area of impact
on the plaintiff’s
vehicle favours the version of the defendant, that the vehicle of the
plaintiff unexpectedly turned in
front of him. Mr Gwala under
cross-examination was at pains not to concede to any suggestion made
by the defendant, in circumstances
where it was expected of him to
concede.
The only plausible
version, based on the evidence adduced, is that of the Defendant and
his witness, especially when one considers
the objective facts. His
version as to how he was not able to avoid colliding with the
Plaintiff’s vehicle is clear and consistent.
The defendant and
his witness, struck me as honest, competent, truthful persons whose
evidence can safely be relied upon. On the
other hand the plaintiff
and his witness contradicted each other on certain events, and
appeared to be confused about what happened
directly before the
collision took place. In all probability more alcohol was consumed
than admitted and there is a strong probability
that it impacted on
the witness, Mr Chebekulu’s, observation powers. For the
reasons stated I have come to the conclusion
that the credibility of
the plaintiff and his witness had been seriously tarnished. Mr
Cebekulu, who is related to the plaintiff
showed that he was prepared
to help the plaintiff. It did not go unnoticed that when he was asked
about what the plaintiff could
do to avoid the collision, he used the
exact explanation as the plaintiff, namely ‘he could not
reverse the vehicle’.
When the plaintiff delivered his
testimony he also stated that he could not reverse the vehicle.
[13] As regards the
probabilities it must be kept in mind that the plaintiff wanted to
execute a right hand turn, him being the
driver of the vehicle and
seated not nearest to the oncoming traffic but further away than his
passenger. Given this predicament,
the plaintiff did not stop to
observe whether it is safe to turn, and whether there are oncoming
vehicles, he wanted to convince
this court that in his position he
could sufficiently make the necessary observations.
In my view the testimony
of the plaintiff has some worrying and improbable features.
[14] Given the
circumstances of this case, I came to the conclusion that from the
evidence as a whole, the deduction can be made
that the accident was
occasioned exclusively by the negligence of the plaintiff. I have
come to this conclusion on the grounds
that it is clear that he, did
not keep a proper lookout and that he turned into the Eshowe road
when it was not safe to do so.
Further to this it seems that he did
not accelerate to get out of the way of the oncoming traffic but
elected to change gears and
in so doing he failed to avoid the
collision.
Under the circumstances I
cannot find that there was attributing negligence to the driver of
the insured vehicle. The facts decisively
establish that there is no
negligence on the part of the defendant’s insured driver.
[15] The plaintiff failed
to discharge the onus of proving on a balance of probabilities, the
negligence as averred against the
defendant.
[16] Accordingly I make
the following order:
The plaintiff’s
action is dismissed.
Plaintiff to pay the
defendant’s costs of suit.
____________________________
Steyn, J
Date of Hearing: 12
October 2009
Date of Judgment: 23
October 2009
Counsel for the
applicant: Adv M Chetty
Instructed by: Chetty,
Asmall & Maharaj
Counsel for the first
respondent: Adv R Nirghin
Instructed by: Shereen
Meersingh & Associates