About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Western Cape High Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Western Cape High Court, Cape Town
>>
2008
>>
[2008] ZAWCHC 181
|
|
Hassan v Road Accident Fund (488/2006) [2008] ZAWCHC 181 (23 April 2008)
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCfAL DIVISION)
CASE
NO: 488/2006
In
the matter between:
TAURIQ
HASSAN
Plaintiff
and
THE
ROAD ACCIDENT FUND
Defendant
JUDGMENT
DELIVERED ON 23 APRIL 2008
CROWE
A. J.:
[1]
Plaintiff was involved in a motor vehicle accident and claims
compensation from the Defendant in terms of the provisions of
the
Road Accident Fund Act, No 56 of 1996
. The issues have been separated
in terms of
Rule 33(4)
and I am required to determine the merits only
at this stage.
[2]
It is common cause that the accident in question occurred at
approximately 19h00 on 24 December 2004 at Searle Street, Woodstock
between an Opel Corsa motor vehicle driven by one Geordie Patrick
Mackenzie and a 400cc Honda motorcycle on which the Plaintiff
was
being conveyed as a passenger.
[3]
Three witnesses testified for the Plaintiff, namely Constable R Moos
(the municipal police officer who attended the scene of
the accident
and who completed the accident report form at pages 1 to 4 of Exhibit
"A"), Mr Abdullah Jappie (who testified
that he was the
driver of the motorcycte) and the Ptaintiff (who testified that he
was a passenger on the motorcycle). Two witnesses
testified for the
Defendant, namely Mr Mackenzie (the driver of the Opel Corsa) and his
wife Mrs Suzette Mackenzie (a front seat
passenger in the Opel
Corsa).
[4]
It is common cause between the two drivers that the Opel Corsa was
stationary on its correct side of the road shortly before
the
accident. Mr Jappie testified that as he and the Plaintiff came up
Searle Street he noticed a car coming down and as they got
close, the
car was stationary in the middle of the read. Just before they passed
this car, it turned right and hit them. He flew
through the air and
landed up on the tarmac on the west Mr Mackenzie testified that he
was stationary in his lane, preparatory
to turning right into a
parking lot
h
with
his indicator on waiting for the motorcycle to pass and that as it
approached, it sped up and swerved and hit the right side
of the
Corsa. He stated that his vehicle was at a slight angle and was in
his lane, towards the right hand side of his lane, waiting
to turn.
An
"Audatex
Repair Calculation"
handed
in as Exhibit "A" (pages 12 to 15) described the
'impact
area"
as
"Front,
Right Front*.
[5]
Constable Moos testified that he is a Metro Police Officer stationed
at Gailows Hill. He attended the scene of the accident
on 24 December
2004. There were two vehicles at the scene. A red Opel Corsa was on
the corner of Searle Street and the entrance
to the swimming baths. A
yelEow and black Honda motorcycle was on the pavement next to the
road. He had an accident report form
(pages 1 to 4 of Exhibit
U
A")
in his car and completed this at the scene. He obtained the
information recorded therein from people at the scene. He drew
the
rough sketch of the accident scene at page 3 thereof on which the
(northerly) direction of travel of the Corsa and the position
of the
Corsa post-accident are both marked "A" and the (southerly)
direction of travel of the motorcycle and the position
of the
motorcycle post-accident are both marked "B". The drivers
of the Corsa and the motorcycle were identified to him
as Mr
Mackenzie and Mr Jappie respectively. There were no eye witnesses.
The ambulance had not yet arrived and he requested the
control room
to call it. He recorded the following
"brief
description of the accident
at
page 3 thereof:
"As
alleged by driver A
[Mr
Mackenzie].
He
was travelling in a northern direction. He was apparently lost and
did not see the cyclist when he turned right He allegedly
did not see
anyone. As alleged by driver B
[Mr
Jappie],
driver
A was on a cellphone that is the reason why he did not see the
mfcycleâ¢.
He
usually shows the description of the accident recorded by him to the
people who make the statements to him to ensure that there
are no
discrepancies and that he has correctly recorded what they told him.
Notably, he was not asked whether, in this instance,
he confirmed the
contents of the said
"brief
description of accident"
with
Mr Mackenzie in accordance with his usual practice. The ambulance
came and removed the motorcycle driver and passenger. Regarding
the
allegation In the plea that Plaintiff failed to make use of a helmet,
he pointed out that, in relation to the Plaintiff, he
had circled the
answers
"helmet
present*
and
"helmet
definitely used'
at
page 2 of the accident report. His accident report also reflects that
he recorded the following: time of accident was 19M0, weather
conditions and visibility were clear, light condition was daylight,
road surface was dry
r
road surface type was tarmac, quality of road surface was good, road
marking was a barrier line, direction of road was straight,
the
motorcycle was travelling uphill and the Corsa downhill, both
vehicles were in their correct road lanes, the Corsa was turning
right and the motorcycle was travelling straight, and the accident
constituted a sideswipe between vehicles travelling in opposite
directions.
[6]
Under cross-examination Moos stated that he had attended many
accident scenes and this one was more than three years ago. This
accident was memorable because it was Christmas Eve. Although he
remembers it clearly, he must rely on what he wrote down. He has
no
other notes, besides the accident report. Although he completed the
accident report at the scene, he signed it at his office
shortly
after midnight that same evening. When asked if he independently
recalls filling in the accident report at the scene he
said that is
his practice as he does not make notes and makes it his duty to fill
in the report at the scene. He could not say
for sure, but this was
his usual practice. His reason for not signing it at the scene was
that the form needs to be signed off
by someone at the office. There
were helmets on the scene and he asked the driver of the motorcycle
if they wore helmets and he
answered yes. It was put to him that Mr
and Mrs Mackenzie would say that neither cyclist wore helmets and
someone else brought
the helmets to the scene. He could not dispute
this and confirmed that there were other people on the scene. He
could not dispute
that Mr and Mrs Mackenzie would testify that their
vehicle was in the middle of the road and had to be moved as it was
obstructing
traffic. He confirmed having indicated on the accident
report form that the Ope! was damaged on the
"front
centre",
the
"right
fronC
corner
and the right side. It was put to him that the insured driver would
testify that he was not lost, but had missed his turn-off
to the
right. It was put to him that when he arrived at the scene he went
over to the insured driver (who was attending to the
Plaintiff, who
was lying in the gutter some distance from the motorcycle driver) who
said to him
u
f
did not see this guf
and
that the insured driver meant by this that he had not seen the
pillion passenger until he found him in the gutter. He responded
that
he gathered from the insured driver that he had not seen the
motorcycle, but conceded that he could have misunderstood him.
In
re-examination he was asked why he had recorded that the insured
driver
"was
apparently losf
and
responded that the insured driver told him that he was busy phoning
friends to get directions and that he gathered from this
that he was
tost and that these were his own words. He confirmed that it was
still tight at the scene.
[7]
Mr Jappie testified that he was the driver of the motorcycle and the
Plaintiff was his pillion passenger. He and the Plaintiff
both work
in Claremont and had travelled together on the motorcycle from
Claremont along the Eastern
Boulevard
and had turned off to a friend's house. The friend was not there. In
this regard, in his affidavit dated 8 January 2007
(at pages 9 to 11
of Exhibit TV") he stated that they established by phone that
the friend was in Sea Point and then proceeded
along Searle Street
towards the Eastern Boulevard. In evidence, he said that they then
travelled along Main Road and turned into
Searle Street to visit
another friend whose home Is just off Searle Street. They both wore
helmets. As they came up Searle Street
he noticed a car coming down
and as they got close it was stationary in the middle of the road.
Just before they passed this car,
It
turned
right and struck them. He landed up on the tarmac on the west side of
the road (note that the accident report indicates that
he was on the
east side of the road), having flown through the air. He had injuries
to his genitals but no head injury and was
not unconscious. He was in
pain and was sitting. He took off his helmet and went to sit on a
grass patch. The Plaintiff landed
on the side of the road next to or
on the pavement, or in between. He glanced at the Plaintiff and
thought he was unconscious,
there were people around him. People he
knew arrived and he was taken away in an ambulance. He could not
avoid the collision.
[8]
Under cross-examination Jappie was referred to an affidavit deposed
to by the Plaintiff on 11 May 2005 as the complainant In
a reckless
and negligent driving case against the insured driver. In this
affidavit, the Plaintiff stated that on the day in question
he left
work at approximately 18h15 and while on his way to take a taxi home
had met an acquaintance
"known
to me as Shahiem"
who
offered him "a
lift
home on his Honda motorbike yeilow and black in colour"
and
that thts person was the driver of the motor vehicle at the time of
the accident. He stated that Shahiem was not his nickname.
He
confirmed that the affidavit described the same motorcycle, place and
time of accident and the same accident as his accident.
He stated
that Shahiem was the owner of the motorcycle. He could not explain
why Plaintiff had stated in his affidavit that Shahiem
was the driver
of the motorcycle at the time of the accident. He was referred to
another affidavit made by the Plaintiff the day
after the accident in
which the Plaintiff had similarly stated that Shahiem was the driver
of the motorcycle. He confirmed that
the Plaintiff knew his name and
would not have called him Shahiem.
He
was asked where the turning vehicle was damaged and responded that,
as far as he could recall, it was damaged on the left side.
Note that
at paragraph 5 of his aforesaid affidavit he stated that he
"collided
with the left front fender at the left front wheer
of
the Corsa. It was put to him that if the damage was on the right side
this woutd mean that he was responsible for the accident
and he
responded that this was not necessarily so and that it depends how
the vehicle was situated. He conceded that if the damage
was on the
right side he would not be able to explain the accident.
Regarding
ownership of the motorcycle, he stated that he had purchased it from
Shahiem Soeker, but that the papers had not yet been
registered in
his name and that he was, therefore, not the "fegaf owner. He
later stated that he had paid for it and had possession
of it.
The
insured driver's version was put to him, namely that the insured
driver was stationary with his indicator on waiting to turn
right
into the parking area, then saw the approaching motorcycle, which
started to speed up and then developed a wobble or the
driver lost
control and that a collision then took place with the right side of
that vehicle white it was stationary. He disputed
this.
It
was put to him that neither of them wore crash helmets and he denied
this. It was put to him that a lady bystander said these
young guys
don't like to wear helmets as it messes their hairstyle. It was put
to him that the Plaintiff had a spiky gelied hairstyle
at the time
which was inconsistent with his having worn a helmet and he declined
to comment. It was put to him that someone else
in the crowd had
brought the two hetmets to the scene and he denied this. He denied
that he and the Plaintiff were going up Searie
Street on a joyride
without hetmets and had lost control. He strongly disputed that the
insured vehicle was stationary and on its
side of the road. He stated
that he did not have a license to drive the motorcycle at the time,
but had previously had a motorcycle
and that he now has such a
licence.
[9]
The Plaintiff testified that he got a lift from work with Jappie and
that he knew him and that they both wore helmets. They
went to the
home of a friend, Kashif, in Woodstock, but he was not home. They
made a phone call and then went up to Hide Street,
which is off
Searle Street, to another friend. In this regard
f
in his affidavit dated 11 May 2005 he stated that the driver
"was
going to drop me at friend's pface at Hide Street, Cape Town".
When
asked if he remembered the collision he said that he could only
recall the car swerving in front of them, he could not recall
its
colour, and that he next recalled waking up in the gutter with many
people around and an ambulance in attendance. He had no
head injury.
He was referred to the statement in his affidavit the day after the
accident that the motorcycle was driven by Shahiem
and to the
previous evidence that Shahiem had verbally sold the motorcycle to
Jappie. He said that he knew who Shahiem was. He
was asked why he
gave Shahiem's name in the affidavit and answered that he was asked
by either Soeker or Jappie to make the statement
"for
insurance
purposes'.
He
did this again in his subsequent affidavit dated 11 May 2005, aEso
"for
insurance purposes".
He
said that Shahiem was at the scene of the accident, as well as other
people who he knew.
[10]
Under cross-examination the Plaintiff confirmed that he laid a charge
of reckless and negligent driving against the insured
driver, that
this was a serious matter, and that he knew when laying a criminal
charge that he must give a truthful statement.
He conceded having
given two untruthful statements under oath and that he knew he had
lied under oath but didn't know that it was
a serious offence. He
confirmed that the purpose of doing so was to defraud an insurance
company. It was put to him that the three
of them were prepared to
lie under oath because they knew the insurance company would not pay.
He denied that the three of them
had done so. It was put to him that
he does not regard the oath as important and he said that he did. It
was put to him that he
only did so when it suited him, which he
denied. When asked how he could make a false statement under oath, he
responded that he
was confronted by one of the other two to make the
statement. It was put to him that he could not remember anything of
the accident
and he stated that he just remembers coming up Searle
Street. This contradicted his evidence in chief that he could recall
the
car swerving in front of them. When asked why Shahiem Soeker was
at the scene, he stated that they were going to visit Abubaker
in
Hide Street, as it was his birthday, and that Kashif and Shahiem
Soeker were good friends of Abubaker He confirmed that both
he and
Soeker lived in Goodwood. He stated that he normally has a gelled
hairstyle, when his hair is long, to look neat at work.
He said that
he lost consciousness, it could be for some time, but he could not
say for how long. It was put to him that he had
presumably hit his
head and that the Mackenzles would say that his eyes were g/azed and
that he was unresponsive. He could not
recall them and could not say
why. He denied that they went for a joyride without helmets on.
[11]
In answer to questions from the Court, Plaintiff stated that he was
born on 23 December 1980 and was 27 years old. He matriculated
at
Heathfield School and has a national diploma in environmental health,
which took 3 years to complete at Peninsula Technikon.
He did 1
year's community service in the SANDF in Kwa-Zulu Natal and is
registered with the Health Professions Council as an independent
health practitioner. He had these qualifications at the time of the
accident and was then the manager of a store in Cavendish Square,
where he was responsible for overseeing staff, making sure the
banking was done properly and for stock taking. Regarding courses
in
law, during his studies they did touch on acts and regulations, such
as the Health Act. He currently also works as a health
practitioner.
When asked how he felt when making the false statements under oath he
said that he had done so to assist his friend
and that it was not a
good feeling.
{12]
Mr Mackenzie testified that he is a navigation officer at sea working
on various ships for Smit Marine. He was driving the
Opel Corsa with
his wife as front seat passenger. They were going to visit friends
for a Christmas Eve get-together in Nerina Street,
Woodstock. He knew
the way, but they were approaching from a different direction and he
missed the turn-off after exiting from
the highway. He saw a parking
lot on the right hand side and decided to turn right into the parking
lot in order to turn his vehicle
around. He saw a motorcycle coming
up towards him, he stopped, his indicator was on and he waited for it
to pass. As the motorcycle
came closer it sped up and started
swerving and hit the right side of his car which was in its lane,
towards the right side of
the lane, waiting to turn. It was at a
slightly curved angle. After the accident his vehicle was in the same
place and bystanders
helped him move it. Immediately after the
accident he checked his wife who was
"oka/.
He
then climbed out and went to the driver on the side of the road on
the grass who was complaining of a sore groin. The driver
showed him
his passenger, approximately 20 metres up the road, lying in the
gutter. He went to the passenger, who was unconscious,
and checked
his pulse and breathing. He is a
"first
aider*.
The
passenger's eyes were glazed over with a yellowy / glossy look and he
was not wearing a helmet. The driver was also not wearing
a helmet.
When asked if there were helmets on the scene he said that after a
while, he could not be exact, he noticed someone bring
two helmets
and throw them on the lawn. tt looked like they knew the people on
the bike. In the crowd an elderly lady standing
next to the passenger
said they don't like to wear helmets as it affects their hairstyle
when they wear gel. Mr McDougall, for
the Plaintiff, objected to this
hearsay evidence and I admitted it provisionally. He was referred to
the accident report form and
confirmed the post-accident position of
the two vehicles on the sketch after they had been moved. Regarding
the aforesaid
"brief
description of accident
he
denied that he was
"apparently
lost,
he
denied that he
"did
not see the cyclist when he turned right
and
he denied that he
"did
not see anyone".
He
stated that when Constable Moos arrived, if he remembered, he was
standing near the passenger and the Constable asked him what
happened. He said he never saw him at first, referring to the
passenger lying in the road. He denied that Constable Moos'
description
of the accident was read over to him. His vehicle was
repaired and he submitted a claim to his insurers, Budget Insurance
Brokers.
He subsequently received several telephone calls from the
passenger's wife or girlfriend wanting to know why he had not been to
the police and had responded that he had spoken to the police at the
scene and that it was not necessary. Subsequently a Constable
from
the Woodstock Police called him and he went in and made a statement
on the 26
th
or 27
th
of that month. A week or so later he had a phone call from Shahiem
asking him if they could settle privately - to sort his motorbike
out. He furnished Shahiem with his claim number and insurance
broker's details. He did not see the passenger before the accident,
because he was sitting behind the rider.
[13]
Mr Mackenzie was extensively cross-examined. He stated that white he
was parked stationary at a slight angle waiting to turn,
the
motorcycle accelerated and lost control. At impact the driver came
off the bike, he saw him in the air a metre or so off the
ground, but
cannot say how far he flew. The motorcycle came to rest in the middle
of the road near to the point of collision. He
only saw one person
come off the bike. He first became aware of a passenger after the
accident when the driver showed him the passenger,
by pointing up the
road. The passenger was lying on his back at the point where he must
have landed and had no helmet on. He felt
his head, but could not
find any injury. He stood with him and phoned the emergency services.
The driver was sitting on a grass
embankment. He may have walked to
the side of the road after he landed.
The
police arrived shortly afterwards. He moved the car before Constable
Moos arrived and a crowd of persons who knew the passenger
gathered
around him. One of these persons said he should move the car and they
pushed it to the point indicated on the sketch.
After moving the car
he went back to the passenger and this is where Constable Moos found
him. That is when he said to Moos that
he never saw the passenger
immediately and that he only saw him after the accident. He did not
know why he said that, that is the
way it came out. Moos walked with
him to his car and asked him very basically about the accident and
how it happened. He told him
he was waiting to turn and the
motorcycle came up swerving and collided with him. He could not
explain why Defendant's counsel
had not put this to Moos in
cross-examination. When asked if he had told Defendant's counsel
this, he responded that he had never
been asked that question until
now. He was asked if Moos wrote it down and he responded that he did
not see him write anything.
He
said that the ambulance then arrived and he went back to the
passenger. The ambulance took them away, the tow truck took his
car
away and he and his wife left the scene with friends. He is 34 years
old, has a matric plus a Navigation T3 qualification which
took two
years of study. He denied that the version in Moos' brief description
of the accident was his. It was put to him that
his evidence that he
told Moos that he never saw the passenger was nonsense. He said Moos
had asked what happened, not about the
passenger, and that he was in
shock at the time and that his answer was just the way it came out.
He
was questioned about a lengthy 26 paragraph affidavit he made a day
or two after the accident, Exhibit "B". He did
not write it
himself. Regarding his statement therein that the motorbike tumbled
over
"and
the driver together with his passenger were off,
it
was put to him that he saw the passenger when the collision took
place. He denied this and said the statement was made after
the event
at a time when he was aware there was a passenger. Regarding his
statement therein that he went
"to
check on the driver and passenger of the motorbike",
he
was asked if he intended to check on the driver and passenger and
denied this. Regarding his statement therein that the driver
"was
sitting on the pavement,
it
was pointed out that his evidence in chief was that the driver was on
the grass. He was later referred to his further statement
therein
that while he was speaking to the emergency services on the phone he
noticed the driver
"had
moved off the sidewalk and onto the grass embankment.
He
apologised and said he had not remembered this before.
He
confirmed that the policeman who took the statement read it back to
him at the time and said that it
"seemed
fine at the time".
He
was asked if the passenger was unconscious and answered that he
seemed to be unconscious. He was asked if the statement was read
back
to him before he gave evidence and he responded not the entire
statement, but bits and pieces thereof.
Regarding
the helmets, he conceded that it was possible that the helmets were
lying around and that someone had just gathered them
up.
Regarding
his statement in his affidavit that
"the
whole time while we were waiting for the ambulance to arrive the
officer from the City Police ... Recording Officer R
Moos was busy
taking notes, asking questions of what happened and asking names",
he
said that he could not remember Moos taking notes. When asked why his
statement said that he was taking notes, he answered not
necessarily
written notes but maybe mental notes. It was put to him that nowhere
in the statement did he say that he had told Moos
he did not see the
passenger. He responded that he was also in shock at the scene and
that he was
"horribly
shockecT.
He
said that he may not remember 100%.
It
was put to him that his statement that he first saw the passenger
afterwards was a feeble excuse to exptain away what Moos had
recorded
He responded that when the police at Woodstock read to him what Moos
had written in the accident form he told them it
was wrong.
It
was put to him that his evidence that he told Moos at the scene that
the motorcycle came up the road and swerved and hit him
was false and
that he never gave Moos that information. He insisted that he had. It
was put to him that he was not telling the
truth and that he never
saw the motorcycle.
He
stated that his vehicle could not move after the accident as the
front wheel on the driver's side was squashed up against the
fender.
He did not institute any claim against the RAF, but did institute an
insurance claim for the damage to his vehicle. He
did not lay
criminal charges.
[14]
Mrs Mackenzie's evidence was largely consistent with that of her
husband. She confirmed that they missed their turn-off and
that her
husband saw an open parking space on the right hand side, that he
stopped and waited for a motorcycle to pass so that
he could
turn,
the
indicator was definitely on. It seemed the motorcycle was going very
slowly and then suddenly sped up and the driver lost control
and
collided with them. The front right section of their vehicle was
damaged. At impact their vehicle was stationary in its lane
with the
car slightly
"curved
to the right.
After
the accident her husband went to the driver and then went to assist
the passenger lying further up the road. She was in shock,
waiting
for her husband to come back. She then went to the driver of the
motorcycle and then went to try and assist the passenger.
She did not
notice if they were wearing helmets. She sat beside the passenger who
was lying on the kerb and noticed that he had
spiky gelled hair. He
was
"not
with if,
his
eyes were glazed and the white of his eyeball was yellow. There was
no blood. He did not move. While she was sitting next to
the
passenger she noticed someone throwing two helmets down nearby. The
crowd came and she was pushed away, they seemed to know
them.
[15]
Mrs Mackenzie was also extensively cross-examined. She confirmed that
while they were stationary in the road she saw the motorbike
approaching and said that she only saw the driver at that stage. It
was later put to her that it was strange that the passenger
did not
have head injuries if he was not wearing a helmet She conceded this
and said that he was definitely concussed. It was put
to her that
there were no scratches on his head and face and she said that he lay
on his back and there were no scratches on his
face. She said she did
not see both of them wearing helmets and it was put to her that she
might not have seen the helmets being
removed. She responded, but
"when
driving towards us"
they
were not wearing helmets. She was asked if she saw that both of them
were not wearing helmets before the accident and she said
yes. The
question was asked again and she answered
"yes
\ dio".
This
evidence contradicted her earlier evidence that she had only seen the
driver before the accident. An affidavit she made to
the police on 26
December 2004 was handed in as Exhibit "8". She was asked
why she had not positively stated in her police
statement that they
were not wearing hefmets and did not answer. Et was put to her that
she was making this up and she responded
that her police statement
said there were
"two
people on it.
She
was clearly flustered in the witness box at this stage.
She
was asked if she saw what happened to the driver after the accident
and responded
u
not
at air
and
that the last she recalls is the driver coming towards them and that
she could not remember what happened after that but that
they were
definitely stationary. She was asked how she could remember the
vehicle was not moving if she could not remember what
happened after
the impact and answered that she was in shock and this was her first
accident. Her statement in her police affidavit
that she
"felt
we were standing stilt
was
put to her and she said that she was sure they were stationary and
that she did not feel a movement with the impact.
She
repeated that her husband got out and went to the driver and then to
the passenger and then came back to the vehicle and that
she then got
out of the vehicle. She went to the driver first, she could not
remember if she spoke to him. It was put to her that
in her affidavit
she said she first went to the passenger, but in evidence had said
she first went to the driver and then to the
passenger. It was put to
her that she had a bad memory and she responded that the accident
took place 4 years previously. These
questions and answer should be
seen in context, tn her affidavit she stated that after the accident
she saw her husband get out
of the motor vehicle to attend to people
who were on the motorbike. She saw one sitting on the pavement and
the other one was lying
on his back. The
"first
person",
who
was sitting on the pavement, was holding his legs inside
"complaining
about severe injuries".
She
climbed out of the motor vehicle and went to the person on the road
lying next to the kerb (i.e. the passenger). It is apparent
from this
that she must have had some sort of communication with the driver
before she went to the passenger as she heard him complain
of his
injuries. In her evidence
in
chief
she stated that she went to the driver and then to try and assist the
passenger. Under cross-examination she said she went
to the driver
first, but could not remember if she spoke to the driver, and she
then went to the passenger. It appears, therefore,
that these
versions in her statement and in her evidence are reconcilable.
She
was asked whether, when Constable Moos arrived, she heard him talk
with her husband. She answered that she was then sitting
on a hill
nearby, that she was shocked and that a bystander had bought her
sugar water.
Prior
to giving evidence she did not discuss Moos' brief description of the
accident in the report form with her husband.
She
was asked whether she had discussed the accident with her husband and
said that she might have. She could not recall discussing
it the
previous evening. She stated that she had consulted Defendant's
lawyers approximately a week before and that both her and
her husband
were in the office at the same time when they discussed the accident.
She denied that her memory was not good and that
she was protecting
her husband.
{16]
My evaluation of the evidence is as follows. Constable Moos was an
independent witness who did not appear to take sides. Although
he had
some independent recall of the accident, his evidence was somewhat
vague and sketchy and he dearly had to rely on the accident
report
form for the details. He did not witness the accident and his
evidence is confined to what transpired thereafter. The most
important part of his evidence relates to what transpired between him
and Mr Mackenzie at the scene of the accident and the reliability
of
what he recorded in his brief description of the accident in the
accident report. In this regard, although he testified that
his
practice is to complete the accident report at the scene of an
accident, in this instance he could not say for sure that he
did so.
He also testified that he signed off the form at his office shortly
after midnight that evening, which indicates that he
was working on
it at that time. Furthermore, although he said that he usually shows
descriptions of accidents recorded by him to
the persons who make the
statements to him, in this instance he was not asked if he did so.
The insured driver, on the other hand,
gave direct evidence
pertinently denying that Moos did so. Importantly, he did not dispute
the insured driver's version that when
they first spoke at the scene,
while the insured driver was attending to the Plaintiff who was lying
in the gutter, the insured
driver said to him 7
did
not see this guf
and
that the insured driver meant by this that he had not seen the
passenger until he found him in the gutter. When this was put
to him
he responded that he gathered from the insured driver that he had not
seen the motorcycle, but conceded that he could have
misunderstood
him. Based on this evidence, and given this concession, it appears
that Moos* record a I in the accident report
that the insured driver
"did
not see the cyclist when he turned righf
and
"allegedly
did not see anyone"
may
be unreliable and the result of a misunderstanding between him and
the insured driver. In this regard, I point out that the
words
"turned
right'
and
"apparently
tost'
are
all reasonably consistent with the insured driver
1
s version and therefore take the matter no further. Furthermore, Moos
testified that the latter words were his own, and not those
of the
insured driver.
[17]
The Plaintiff was a singularly unimpressive witness. He adopted a
flippant and cocky attitude in the witness box. He casually
testified
before me that he had falsely stated under oath on two previous
occasions that the driver of the motorcycle was Shahiem,
when in fact
it was Jappie, and that he did so
"for
insurance purposes".
He
also conceded that he did so in order
"to
defraud an insurance compan/.
This
makes me a witness to him committing perjury for the purpose of
perpetrating a fraud upon an insurance company. What is more,
the
fraud intended to be perpetrated upon the insurance company arises
from the same set of facts before me. \\ is apparent that
he is an
educated person who works in a responsible position as the manager of
a business and is qualified as a health professional.
He must surely
have appreciated the seriousness of what he had done, but glibly
sought to downplay it.
[18J
Jappie was also an unimpressive witness. For much of his evidence he
adopted a sheepish attitude, hanging his head and gazing
steadfastly
at the ground to avoid making eye contact with anyone. This was
particularly so when he was cross-examined regarding
his knowledge of
Plaintiffs perjured affidavits to the effect that Shahiem, and not
he, was the driver of the motorcycle. His alleged
inability to
explain why the Plaintiff had done so must be viewed together with
Plaintiffs evidence that he was asked by either
Shahiem Soeker or
Jappie to make the perjured affidavits for insurance purposes.
Furthermore, his questioning elicited that he
had already paid
Shahiem for the motorcycle and had taken possession of it and that
all that was outstanding was for the motorcycle
to be registered in
his name. He was driving it at the time but did not have a licence to
do so. In these circumstances, it is
clear that he was the person who
stood to gain by the fraud to be perpetrated upon the insurance
company by way of the perjured
affidavits. He must have known why
Plaintiff falsely alleged that Shahiem was the driver of the
motorcycle and I do not accept
his evidence that he could not explain
this. It is apparent that he knew far more about this aspect than he
was letting on. I also
do not accept Plaintiffs evidence that either
Shahiem Soeker or Jappie asked him to make the perjured affidavits as
he clearly
must know exactly how it came about that he made the
perjured affidavits for insurance purposes. It appears that Jappie
and the
Plaintiff conspired together before they testified to try and
avoid directly implicating Jappie in the fraud. In this regard, it
is
notable that Jappie was the person who stood to benefit from the
Plaintiffs perjured affidavits and that the Plaintiff stands
to gain
from Jappie's evidence before me. I also note that Jappie was also
particularly sheepish when it was put to him that they
were on a
joyride without helmets at the time.
[19]
Although the issue of the helmets is not pertinent to the question of
the alleged negligence of the insured driver, it has
relevance in
assessing the credibility of the various witnesses. In this regard,
and having regard to the concession by the insured
driver that it is
possible that the helmets were lying around and that someone had just
gathered them up, I do not consider that
there is sufficient evidence
to find that Jappie and the Plaintiff were not wearing helmets. It is
quite possible that they were
wearing helmets and that these were
removed shortly after the accident and that someone did gather them
up. The hearsay statement
of a bystander regarding the gelled hair of
the Plaintiff takes the matter no further and I have no regard
thereto.
{20}
Apart from the perjury and the fraud, there are other unsatisfactory
aspects of the evidence of Jappie and the Plaintiff.
Jappie
testified that the motorcycle collided with the left side of the Opet
Corsa, which is clearly incorrect as the Corsa was
damaged on the
right front corner. This appears from the accident report form, the
insurance document and the evidence of the insured
driver that his
vehicle could not move after the accident as the front wheel on the
driver's side was squashed up against the fender.
Moos also recorded
in his brief description of the accident that the driver of the
motorbike alleged that the driver of the Corsa
was "on
a
cellphone that is the reason why he did not see the mfcycle".
Jappie
did not repeat this allegation in evidence, which is rather strange
as such evidence would tend to support the
Plaintiffs
case and is something one would expect him to repeat in evidence, if
it was true. It was also not put to the insured
driver.
Plaintiff
testified in chief that he could only recall the car swerving in
front of him and that he could not recall its colour.
The use of the
word
"swerving?
is
inconsistent with the evidence of both drivers that the insured
vehicle was stationary in the middle of the road until shortly
before
the accident. Furthermore, in cross-examination he stated that he
could not remember anything and just remembered coming
up Searle
Street. It follows that no weight can be attached to the Plaintiffs
evidence that the insured vehicle swerved in front
of the motorcycle.
[21]
Although Mr Mackenzie made a generally good impression upon me in
terms of his demeanour, there are some troubling aspects
of his
evidence. Principally, there is the fact that he stated, for the
first time in cross-examination, that he had informed Moos
at the
scene of his version that the motorcycle sped up and appeared to lose
control just before the accident and that he had not
crossed its
path. This was not put to Moos in cross-examination, nor was it led
in chief. In this regard, I was referred to the
following
dictum
in
President
of the
RSA
v SA Ruqbv
Football
Union
2000
(1)
SA
1
(CC) at
36
J
-
37
E:
"The
institution of cross-examination not only constitutes a right, it
also imposes certain obligations. As a general rule
it is essential,
when it is intended to suggest that a witness is not speaking the
truth on a particular point, to direct the witness'
attention to the
fact by questions put in cross-examination showing that the
imputation is intended to be made and to afford the
witness an
opportunity while stiff in the witness box, of giving any explanation
open to the witness and of defending his or her
character. If
a
point
in dispute is left unchallenged in cross-examination, the party
calling the witness is entitled to assume that the unchallenged
witness
1
testimony is accepted as correct. This rule was enunciated by the
House of Lords in
Browne
v Dunn
and
has been adopted and consistently followed by our courts.
The
rule in
Browne
v Dunn
is
not merely one of professional practice but 'is essential to fair
play and fair dealing with witnesses', ft is stiff current
in England
and has been adopted and followed in substantially the same form in
the Commonwealth jurisdictions.
The
precise nature of the imputation should be made dear to the witness
so that it can be met and destroyed, particularly where
the
imputation relies upon inferences to be drawn from other evidence in
the proceedings. It should be made clear not only that
the evidence
is to be challenged but also how it is to be challenged. This is so
because the witness must be given an opportunity
to deny the
chailenge, to calf corroborative evidence, to qualify the evidence
given by the witness or others and to explain contradictions
on which
refiance is to be placed'.
The
failure to put this allegation of the insured driver to Moos in
cross-examination is clearly an unsatisfactory aspect of the
Defendant's case as the Court now does not have the benefit of Moos'
response to it and the Plaintiff has been denied the opportunity
of
having Moos refute it It casts doubt on the credibility of the
insured driver as it is the kind of evidence one would expect
him to
disctose to Defendant's counsel and which Defendant's counsel would
have led in evidence, if he was aware of it. On the
other hand, there
may be an innocent explanation for this as Moos did not testify as an
eye witness to the accident and it was
therefore not necessary for
Defendant's counsel to put the insured driver's version of the merits
to Moos. It appears that Defendant's
counsel may not have canvassed
this aspect with him in consultation, as appears from his response
that he had never been asked
that question (whether he had told Moos
his version of the merits at the scene) until now. It appears that
Defendant's counsel
consulted concerning the initial discussion
between the two of them and was informed that Moos appears to have
misunderstood what
was said at the time and assumed that they had no
further discussion on the merits. It appears that he did not consult
about any
subsequent discussion between them on the merits. In this
regard, the insured driver added in cross-examination that, after
their
initial discussion, Moos walked with him to his car and asked
him very basically about the accident and how it had happened and
that it was then that he informed Moos of his version on the merits.
This sequence of events is to some extent confirmed by the
statement
in his police affidavit that the whote time while they were waiting
for the ambulance to arrive Moos "was
busy
taking notes, asking questions of what happened and asking names".
There
are also other questionable aspects of his evidence, for example his
evidence that he could not remember Moos taking notes
at the scene
and his suggestion that his statement in his affidavit that Moos took
notes may refer to mental notes. There is a
further aspect of his
evidence, not dealt with in evidence or argument, which bears
consideration. At paragraph 9 of his police
affidavit he states that
other people started to arrive at the scene and he
"saw
a guy running down towards the scene of the accident holding helmets"
and
"when
he got to the scene he dropped the helmets near the bike".
He
did not repeat this version before me and in fact conceded the helmet
issue under cross-examination when he agreed that it was
possible
that the helmets were lying around and that someone had just gathered
them up. This indicates that the insured driver's
recall of events
was not that good and, also, that he was prepared to make concessions
where he was uncertain or did not recall.
There were afso some other
inconsistencies between his affidavit and his evidence, as set forth
above, which I regard as minor.
[22]
Mrs Mackenzie was in court white her husband was cross-examined and
appeared upset by the vigorous nature of that cross-examination.
On
entering the witness box, it appeared as if she was relishing her
contest with the cross-examiner in order to rally to the support
of
her husband in a wifely fashion. This is obviously the incorrect
manner of approaching testimony and, unfortunately for her,
she was
not equal to the task and cross-examination exposed that she was a
partial witness and, in one particular respect, that
her evidence was
unreliable. In chief she testified that she only saw the driver of
the motorcycle before the accident, yet in
cross-examination she was
bold to declare that before the accident she saw that both the driver
and passenger were not wearing
helmets. This is not only a material
contradiction in her evidence, but suggests that she adapted her
evidence to bolster her version
that Plaintiff and Jappie were not
wearing helmets at the time of the accident and suggests that she was
not impartial. I therefore
attach no weight to her evidence
[23]
To summarise, the issue I have to decide on the totality of the
evidence is whether, in the last few moments before the accident,
the
insured driver pulled off from a stationary position across the path
of travel of the oncoming motorcycle or whether the driver
of the
motorcycle sped up, lost control and collided with the insured
vehicle while it was still stationary, preparatory to crossing
the
road. I must also have regard to the probabilities which arise from
the evidence. The evidence of the Plaintiff and of Mrs
Mackenzie
regarding what happened in the few moments before the accident is
inherently contradictory and cannot be relied upon
to advance either
parties
1
case. In any event, they were both unsatisfactory witnesses.
[24]
I am left with the conflicting versions of Jappie, who I have already
found to be an unsatisfactory witness, and Mackenzie,
whose evidence
is also not without blemish, and the evidence of Moos. During
argument 1 put to Plaintiffs counsel, Mr McDougall,
some of the
aforesaid problems I have with the evidence led on behalf of the
Plaintiff and he conceded, quite correctly, that without
the evidence
of Constable Moos, the Plaintiff has not discharged his onus of proof
He submitted that Moos' evidence was the key
to the matter and that I
should find for the Plaintiff. The problem I have with this
submission is that Moos is not an eye witness
and his evidence is
confined to what happened after the accident. As such, his evidence
really goes to the credibility of the insured
driver. In this regard,
Mr McDougall submitted that I should reject the insured driver's
version and find that he was lying. I
disagree. As set forth above,
Moos made important concessions and accepted that he may have
misunderstood what the insured driver
told him at the scene. While
there are certain unsatisfactory aspects of the insured driver's
evidence, alluded to above, 1 am
not satisfied that these are
sufficient for me to reject his version
In
toto.
It
is clear that his memory of the events is certainly not clear. For
example, in chief he stated that Jappie was sitting on the
grass,
whereas his affidavit reflected that Jappie initially sat on the
sidewalk and then moved onto the grass embankment. Jappie
confirmed
this in evidence. When it was put to the insured driver that his
statement said this, he apologised and said that he
had not
remembered this before. There were also other aspects, set forth
above, where it was apparent that his memory was not clear
and at one
point he said that he may not remember 100%. It is also so, despite
the aspects of criticism that may be levelled against
his evidence,
that he consistently stuck to his version on the merits throughout
his evidence and in his police affidavit made
shortly after the
accident. He testified in a calm and dignified manner and my
impression is that he attempted to recall as best
he could and was
prepared to make concessions mat were favourable to the Plaintiffs
case. I do not find him mendacious.
(25]
In all the circumstances, I am not satisfied that the Plaintiff has
discharged the onus of proving on a balance of probabilities
that the
insured driver pulled off from the stationary position and drove in
front of the motorcycle shortly before the accident
The evidence
tendered on behalf of the Plaintiff was highly unsatisfactory and it
is dear that both Jappie and the Plaintiff have
a propensity to
misrepresent the truth for the purposes of material gain in relation
to the very facts before me. While there are
several unsatisfactory
aspects of the insured driver's evidence, I do not regard these as
sufficient to reject his evidence
in
toto
and
to find that he lied and perjured himself before me, as was submitted
by Mr McDougall. I do not attach any weight to Mrs Mackenzie's
evidence and I do not consider that Moos' evidence
is
decisive.
In my view, it is equally probable, on the evidence, that the insured
driver's vehicle remained stationary on its correct
side of the road
and that Jappie, an unlicensed driver of a newly purchased
motorcycle, lost control and collided with the front
right corner of
the insured vehicle. In these circumstances, and applying the
dicta
in
Machewane
v RAF
2005
(6) SA 72
(T)
at
76
D - F
and
77
F - H,
I
find that there are two mutually destructive versions before me,
neither version demonstrates a higher probability vaiue than
that of
the other and that no credibility finding can be made in favour of
either party which disturbs the even balance. In the
circumstances,
the appropriate order is one of absolution from the instance.
[26]
\
consider
that it is my duty, as the judge presiding in this matter, to bring
the evidence of perjury, fraud and unlicensed driving
before me to
the attention of the Director of Public Prosecutions for his
consideration and possible investigation and the order
I make will
provide for this.
[27]
In the result, I make the following order:
27.1 Absolution
from the instance is granted and the Plaintiff is ordered to pay
Defendant's costs of suit.
27.2 The
Registrar is directed to forward copies of this judgment, Exhibits
"A", "B" and
a
C"
in this matter, and transcripts of the evidence of Abdullah Jappie
and the Plaintiff before me
in
this
matter, to the Director of Public Prosecutions for his consideration
and possible investigation and to inform him that the
presiding
judge in this matter considers that same contain evidence of the
possible commission of the following or similar crimes:
perjury on
the part of the Plaintiff; fraud and/or attempted fraud on the part
of the Plaintiff and/or AbdulEah Jappie and/or
Shahiem Soeker; and,
driving a motorcycle without a licence on the part of Abdullah
Jappie.
CROWE,
A.J.