Ferreira and Another v Road Accident Fund (4285/2004) [2006] ZAFSHC 166 (16 November 2006)

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[2006] ZAFSHC 166
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Ferreira and Another v Road Accident Fund (4285/2004) [2006] ZAFSHC 166 (16 November 2006)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE FREE STATE
PROVINCIAL DIVISION)
Case
No.: 4285/2004
In the case between:
JAN
ANDRIES FERREIRA
1
st
Plaintiff
MARIA
FERREIRA
2
nd
Plaintiff
and
THE
ROAD ACCIDENT FUND
Defendant
_______________________________________________________
JUDGEMENT:
MATHEBULA, AJ
_______________________________________________________
HEARD
ON:
2, 3, 5 and 9 MAY 2006
_______________________________________________________
DELIVERED ON:
16 NOVEMBER 2006
_______________________________________________________
[1] At the outset of the
trial, the parties agreed that the merits and quantum be separated
and that the trial proceed only on merits.
I ruled that the two be
separated.
[2] The city of
Bloemfontein has a one-way three-lane street called Nelson Mandela
Drive running across from the west to the east.
The street is
punctuated by a number of robots with streets crossing from south to
north and the other way around. One of these
is Markgraaff Street
which is a two-way-lane from north to south and south to north.
[3] On
the 17
th
February 2003 the Ferreira couple left their business at Hill Street
in their white Mercedes Benz and entered Nelson Mandela Drive.
Mrs.
Ferreira was the driver and her husband was the passenger. The
street is well-known to them as they traveled there on a daily
basis.
She was driving on the left lane of the street.
[4] The street is
illuminated by street lamps and as it is a built-up area the speed
limit is 60km/h. The robots are synchronized
in a manner that they
turn green one after the other as one progress along the street.
[5] About four blocks
from their business is the intersection of Nelson Mandela Drive and
Markgraaff Street. As they approached this
intersection the robot
turned green giving them the right of way.
[6] They entered the
intersection and saw the motor vehicle, namely a blue Ford Saphire
that was traveling from south to north. Mrs.
Ferreira applied the
brakes but it was too late. The two motor vehicles collided with
damages to theirs on the left and the other
on the right. This
collision took place more or less in the middle of the road. There
was nothing that Mrs. Ferreira could have
done to avoid the
collision.
[7] Mr. Ferreira alighted
and went to the insured driver of the other motor vehicle and asked:
“wat de donner dink jy
doen jy?”
The
insured driver apologised and said:
“sorry
my brieke het gefail.”
He was accompanied by his wife and three children. He was barefoot
and without a shirt. Police were summoned to the scene and
continued
with their duties.
[8] Emile König who was
on duty at the security company a few meters from the intersection
also arrived at the scene after he heard
the sound of impact. It
took him a few seconds to be there. He heard the initial
conversation between Mr. Ferreira and the insured
driver.
[9] The
policeman on duty at the scene was Edward Mahlae who is attached to
the commonly known flying squad. He compiled the accident
report
form according to what he was told and his observations. This form
is part of the record as exhibit “C”. The two motor
vehicles
were damaged on the right and the other on the left hand side. Under
the heading, Officers on site account of accident
and/or other
relevant details, he wrote as follows:
“
It
is alleged that motor vehicle A, a white Benz was in Mandela Drive
from east to west and motor vehicle B, a blue Ford Saphire from
south
to north in Markgraaff Street and the robot light was green for motor
vehicle A and also motor vehicle B alleges that the robot
light amber
for him and both motor vehicles crashed each other in the
cross-o
r-box,
motor vehicle A damaged on the left front corner, and motor vehicle B
damaged on right side and two passengers from motor vehicle
B
injured.”
[10] The other motor
vehicle was occupied by the Blignaut family. Mr. Blignaut was the
driver. That night he had gone to Star Bakery
in Markgraaff Street
to buy some items for a school party for one of the children.
[11] After
leaving Star Bakery, Mr. Blignaut entered Markgraaff Street and
headed north. He was driving on the right-hand-side of
the road.
The intersection is almost 130m from the bakery. His motor vehicle
was the only one in the road.
[12] About 12m – 13m
from the intersection the robot turned green allowing him to proceed.
He observed whether it was safe to cross
the road and although his
view was partly obstructed by a wall with flowers and shops on the
right, nevertheless he entered the road.
A motor vehicle approaching
from the left went through the red robot and collided with him. It
all happened in split seconds.
[13] He first assisted
his family and was approached by Mr. Ferreira who was very
aggressive. His words were:
“Wat
de donner doen jy?”
He did not reply in order to avoid further confrontation.
[14] One of the
by-standers came to him and said he saw everything. He took him to
the police and urged them to listen to him as
he saw everything. He
considered that it was safe before entering the intersection. It is
not clear to him why the police officer
wrote as he did in the
collision report.
[15] Mr. Stefan Louw was
a beggar on the intersection of Nelson Mandela Drive and Markgraaff
Street. He was observing the robots
in order to clearly decide which
part of the robot he must go in order to ply his trade. His
testimony is that the white Mercedes
went through the red robot and
collided with a blue Opel Cub sometime in May 2003. The Opel Cub was
not at Star Bakery because he
saw it passing the robot further down
Markgraaff Street.
[16] One
of the witnesses was Mr. Elias Mokgutle who was between Star Bakery
and Shell garage in Markgraaff Street when the collision
occurred.
According to him the Ford Saphire was stationery at the robot and he
could only see it at the back. There were no other
motor vehicles in
the street.
[17] The robot turned
green giving the Ford Saphire the right of way. He also crossed
Markgraaff Street and at that moment he heard
an impact. He realised
that it was the Ford Saphire and a white Mercedes Benz. According to
him the Ford Saphire was not from Star
Bakery because he saw it
driving up the street.
[18] I am indebted to
both counsels for filing such detailed heads of argument. The
central issue is who disregarded the red robot
and caused the
collision. The plaintiff bears onus on the balance of probabilities
in order to succeed. I am faced with two mutually
distractive
versions about what happened on that particular day. The correct
approach as accepted in
MACHEWANE
v THE ROAD ACCIDENT FUND
2005 (6) SA 72
(T) at page 75 parapraph 11 is the following:
“
[11] When there are two mutually
destructive versions decision of absolution from the instance will
follow unless the plaintiff's
version can demonstrate a higher
probability value than the version of the defendant. This is
particularly so since the plaintiff
bears the overall onus of
establishing his case on a preponderance of probabilities. The
correct approach for deciding whether a
plaintiff has discharged his
onus was aptly stated in the often quoted dictum of Wessels JA in
National Employers' Mutual General
Insurance Association v Gany
1931
AD 187
at 199:
'Where
there are two stories mutually destructive before the onus is
discharged, the Court must be satisfied upon adequate grounds
that
the story of the litigant upon whom the onus rests is true and the
other false. Consequently it is essential in this case to
determine
which of the two versions is the more probable. The evidence of the
independent witness, Ms Booysen, is a very critical
factor and does
lend more probability and weight to the plaintiff's version.”
As
this case is no different, I intend to follow the same approach.
[19] The plaintiffs
testified that the robot was green when they entered the intersection
even though their view was partly obscured.
This is consistent with
the record made by Inspector Mahlae on that day at the scene of the
collision. Further, Mr. König corroborates
the first plaintiff
about what they talked about with the insured driver on the day. The
first plaintiff uttered some unprintable
words and the insured driver
admitted to his brakes having failed him. These witnesses were all
reliable and honest witnesses.
I find no reason these two
independent witnesses will falsify their evidence. They stand to
gain nothing from that.
[20] On behalf of the
defendant, several witnesses testified. One of them was Mr. Steven
Louw, who according to him was a beggar
on the intersection on that
particular day. His testimony is extremely unhelpful as it does not
seem to be about the collision of
that day. He is testifying about
what happened in May 2003 between different motor vehicles. I place
no reliance at all on his
testimony.
[21] Mr. Mokhutle was
another witness whose evidence further diluted the defendant’s
version. According to him the Ford Saphire
was stationary at the
robot and has stopped there for some time. It only entered the
intersection when the robot turned green.
Further he denied that the
Ford Saphire was from Star Bakery because he saw it for quite a
distance when it crossed a robot before
the intersection. This
totally contradicts the testimony of the insured driver and his
ex-wife that the robot turned green when
they were a few meters from
the intersection.
[22] The insured driver
painted a different picture from the one by Louw and Maguthle. He
handed Louw to inspector Mahlae because
he saw the collision but this
aspect was denied by Louw. This aspect is not recorded by Mahlae.
It is amazing that Mahlae recorded
his version that the robot was
amber which is not what he said. He entered the intersection even
though he did not totally ensure
that it was safe to do so. This go
a long way for any careful driver.
[23] His ex-wife did not
say much as most of the time she was not concentrating on what was
happening. She had no reason to carefully
watch her ex-husband
because he was a good driver. Several times she answered questions
before they were asked as if she was programmed.
[24] Evaluating the two
mutually destructive versions, I am of the view that the plaintiffs’
have discharged the necessary onus.
The evidence of the defendant is
inherently improbable and therefore false. The plaintiff’s version
on the balance of probabilities
is the more probable. I conclude for
the reasons above that the plaintiffs’ are entitled to the judgment
as prayed. As far as
the costs are concerned, I do not have any
reason to depart from the ordinary rule. The costs follow the
result.
[25] Accordingly,
I make the following order:
25.1 Judgment in favour
of the plaintiffs;
25.2 The
defendant is ordered to pay the costs of the plaintiffs.
____________________

M. A. MATHABULA, AJ
On
behalf of the plaintiffs: Adv. S. J. Reinders
Instructed
by:
Honey
& Partners
BLOEMFONTEIN
On
behalf of the defendant: Adv. P. J. Zietsman
Instructed
by:
Webbers
Attorneys
BLOEMFONTEIN
/em