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[2024] ZALMPPHC 103
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Mhlari v Road Accident Fund (4098/2020) [2024] ZALMPPHC 103 (5 September 2024)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
LIMPOPO DIVISION,
POLOKWANE
CASE NO: 4098/2020
(1)
REPORTABLE:
YES
/NO
(2)
OF INTEREST TO THE JUDGES:
YES
/NO
(3)
REVISED.
DATE: 5-9-2024
SIGNATURE:
In the matter between:
MHLARI GABAZA
EUNICE
PLAINTIFF
And
THE ROAD ACCIDENT
FUND
DEFENDANT
JUDGEMENT
MASHAMBA AJ
INTRODUCTION
[1]
Mhlari Gabaza Eunice (hereinafter referred
as “the plaintiff’’), issued a summons on the 06
July 2020 against
the Road Accident Fund (hereinafter referred as
“the defendant”) for delictual claim as a result of the
motor vehicle
accident occurred on the 10
th
October 2019. The plaintiff was a driver of the motor vehicle with
registration numbers and letters C[…], a white Hyundai
i20,
when collided head on with another motor vehicle with registration
number and letters D[…], a white ford ranger double
cab,
driven by Baragwanath Keith Roy (hereinafter referred to as “the
insured driver”). The accident occurred at magoebaskloof
road,
a public road, around Haenersburg, in the Limpopo province.
[2]
On the 11
th
June 2024, the matter was before this court
for the determination on the issues of merits. The plaintiff gave
viva voce
evidence as the first witness, thereafter, she
called Mixo Mhlari as the second witness who had occupied the front
seat as a passenger
in the plaintiff’s motor vehicle. The
plaintiff further called third witness, the accident reconstruction
expert, Mr Strydom.
The defendant informed the court that he intends
to call only the insured driver to give evidence on how the accident
occurred.
The plaintiff and Mixo Mhlari led their evidence on the
11
th
June 2024 and on the 12
th
June 2024, Mr
Strydom led his testimony, thereafter, the plaintiff closed his case.
On the 11
th
June 2024, the defendant indicated that the
insured driver is not going to be available on the 12
th
June 2024 and requested the court to postpone the matter until the
29
th
July 2024. The matter was postponed to the 29
th
July 2024 for the hearing of the last witness, the insured driver. On
the 29
th
July 2024 the trial continued and the defendant
had an opportunity to call the insured driver to tender his evidence.
COMMON
CAUSE
[3]
The following are the material common cause
facts:
3.1. That a collision
occurred on the 10th October 2019;
3.2. That the collision
occurred at about 08h55 am;
3.3. The collision
occurred on the R71 Magoebaskloof public road;
3.4.
The collision occurred between motor vehicle with registration
letters and numbers D
[…]
(Ford Ranger) and motor vehicle with registration
letters and numbers C
[…]
(Hyundai i20);
3.5. The plaintiff was
the driver of the Hyundai at the time of the collision and the Ford
Ranger was driven by the insured driver,
Mr Keith Roy Baragwanath;
3.6. The accident
occurred on the road depicted in photographs in the trial bundle;
3.7. It was further
common cause that the road was slightly wet on that morning and that
there was light mist over the area where
the collision occurred;
3.8. The plaintiff’s
vehicle was travelling from Tzaneen to Polokwane and the insured
driver’s vehicle was travelling
in the opposite direction.
THE PLAINTIFF’S
EVIDENCE
[4]
The plaintiff’s version is that on the 10
th
October
2019, she was driving from Tzaneen heading to Polokwane via
Magoebaskloof road at 08h55 am. The plaintiff indicated that
she is
familiar with magoebaskloof road since she has been driving the same
road 3-5 days per week for business purposes. She had
three
passengers in her car, Mixo Mhlari her daughter, who was in front
seat and other two passengers occupied the back seat, namely,
Y[..]
M[..], 3-4 years old minor child and Ms Green Leaf Risimati. The
plaintiff confirmed that the road was slightly wet with
light mist.
The plaintiff further indicated that she could see at the distance of
approximately 20 metres. The plaintiff confirmed
that the road has
sharp curve and that she could not see far as a result of the mist,
and she further estimated that when on the
curve she could see even
less at the distance of approximately 5-10 metre as the road has a
sharp curve. The plaintiff alleged
that she was driving below the
speed limit of 60km as she was at the curve.
[5]
The plaintiff testified that there were two lanes going to the same
direction of her
travel and one lane from opposite direction. She
drove on her left lane, there was a taxi in front of her which was
emitting smoke
from the exhaust. The plaintiff tried to avoid the
taxi which was emitting smoke by driving in her right second lane
from Tzaneen
to Polokwane.
The
plaintiff overtook the taxi through the second lane, thereafter, she
saw a white ford ranger, coming in an excessive speed from
the
opposite direction, which had lost control and swerved to her lane of
travel. In cross examination, the plaintiff, conceded
that she does
not know the speed the insured driver was driving at the time of the
collision. According to the plaintiff, the motor
vehicles collided
head on at her correct lane. The plaintiff testified that she was
driving at a speed of 60km per an hour and
that she did not apply
brakes as the collision abruptly occurred.
MIXO
MHLARI’S EVIDENCE
[6]
Mixo Mhlari is the daughter to the plaintiff. Mixo Mhlari testified
that on the date
in question she was a passenger occupying the front
seat when the accident occurred. She testified that she saw how the
accident
occurred as she was occupying the front seat. She confirmed
that there was a taxi in front emitting smoke from the exhaust. The
plaintiff changed left lane to the right lane since there were two
lanes going to the same direction. The plaintiff was avoiding
the
taxi which was emitting smoke from the exhaust in front of their
motor vehicle. Mixo Mhlari testified that suddenly, after
a short
while she heard a scream from Green Leaf Risimati, who was seated at
the back, when she saw the ford ranger which had encroached
on the
plaintiff’s lane. She looked back and quickly in front and she
saw the insured motor vehicle, a ford ranger which
was driving on
their lane of travel coming from opposite direction. She indicated
that she saw the insured motor vehicle at a distance
of approximately
10 metres, she was absolutely terrified and she closed her eyes,
then, the accident occurred. She confirmed that
the plaintiff motor
vehicle was driving at the speed of 60km per hour. She further stated
that the plaintiff applied brakes to
avoid the accident.
MR
STRYDOM’S EXPERT’S OPINION
[7]
The plaintiff called an expert witness, Mr Darrel Strydom in
order to assist the court in determining the most probable version
between the one for the plaintiff and that of the defendant.
Parties
agreed that Mr Strydom is an expert in the field of accident
reconstruction. He testified that his instructions were to
assist in
determining how the accident occurred, the point of impact, the cause
of the accident, and whether the collision could
have
been
avoided.
[8]
Mr Strydom testified that he visited the scene of accident on the
30
th
March 2023. He consulted with the plaintiff, Mixo Mhlari and Green
leaf Risimati. He took some photos, and considered all witness
statements and photos from the Haenertsburg Police Station docket
under Cas number: 14/10/2019
[1]
.
Mr Strydom testified that after the assessment of the whole matter he
concluded that the insured driver probably lost control
of his motor
vehicle and swerved to the plaintiff’s lane. Mr Strydom
indicated that the damage of the plaintiff’s motor
vehicle made
him to conclude that it was probable that the insured driver lost
control and encroached to the plaintiff’s
lane, thereafter,
tried driving back to his left lane. Mr Strydom opined that during
the moment the insured driver was trying to
drive back to his lane,
he unfortunately, collided with the plaintiff’s motor vehicle
which was driving on his rightful lane.
[9]
Mr Strydom indicated that the reason the insured motor vehicle had a
huge damage on
the right front side is because it collided to the
left side of the plaintiff’s motor vehicle during the time the
insured
driver was trying to return to his lane. Mr Strydom
emphasised that the collision occurred at the moment the insured
driver was
trying to avoid the collision by swerving back to his left
lane of travel. The quarter of the plaintiff’s motor vehicle
was
pushed to the right as a result of force of gravity during the
collision. The above opinion was drawn to clear the fact that the
quarter of the plaintiff’s motor vehicle was found facing the
oncoming traffic and the insured motor vehicle was found on
the left
of his lane. He testified that the final stationery of both motor
vehicles as appears in photo album, taken on the date
of accident
assisted him to draw his opinion
[2]
.
Mr Strydom opined that nothing the plaintiff could have done under
the circumstances to avoid the accident, as there were other
motor
vehicles which were traveling on the left and right side of the
plaintiff’s lane.
[10]
In
summary, Mr Strydom testified that the insured driver’s version
that the accident occurred in his lane of travel is improbable
for
the following reasons: The critical curve speed (the speed at which a
vehicle will start to move out of control) on the curve
the plaintiff
was negotiating was +- 70km/h. It is therefore improbable that the
plaintiff could have lost control of her vehicle
when she was
travelling at 60km/h even in the slightly wet conditions of that
morning; Even if the plaintiff could have lost control
(which is
improbable), her vehicle would have moved to her right and not to the
left as alleged by the insured driver; If the collision
occurred in
the insured driver’s lane as alleged, the plaintiff’s
vehicle would not have ended up in the middle of
the road as
appearing in the photo
[3]
;
The plaintiff’s vehicle would have stopped in the insured
driver’s lane of travel and closer to the verge of the grass.
[11]
In cross examination Mr Strydom considered that he did not consult
with the insured driver when
assessing the cause of accident and
further that he could not get the police officer Sergeant Maake, who
attended the scene of
the accident. He conceded that consulting with
the insured driver would have benefitted the court. He indicated that
he could not
consult with Sergeant Maake because he was informed that
he is no longer employed at Haenersburg Police Station, so, he could
not
be located. Mr Strydom indicated that although he did not consult
with the insured driver, his version from the statement was clear,
although he conceded that it would have put great value to his
opinion.
[12]
Mr Strydom concluded that the accident occurred in the middle or
plaintiff’s lane because
the glasses and pieces of plastics
from motor vehicles had finally rested at the direction of where the
motor vehicles were traveling.
He indicated that he is not in
position to opine who among the drivers, was driving in excessive
speed before the accident.
INSURED
DRIVER’S EVIDENCE
[13]
Mr Baragwanath (the insured driver) confirm that he was a driver of
the insured motor vehicle
on the date in question. He was traveling
from Polokwane to Tzaneen via magoebaskloof road. He testified that
he is familiar with
magoebaskloof road. He knew that when the road is
wet is too slippery, so, he was traveling at the speed of
approximately 60/70
km per hour. The insured driver further testified
that the plaintiff’s motor vehicle was driving behind a mini
bus taxi when
it lost control, spun and veered to his lane of travel.
He tried to avoid the collision by driving to his far left but he
noticed
some
curbs
on the side of
the road, therefor, he could not do much but only hoped that the
plaintiff’s motor vehicle is going to pass.
He thought that the
side curbs might damage his tyres, then, he couldn’t go much to
his left, as a result the collision occurred.
[14]
The insured driver testified that he knew that when magoebaskloof
road is wet, it becomes too
slippery and worse because of the oily
leaves which are falling into the road.
PLAINTIFF’S
SUBMISSIONS
[15]
The plaintiff submits that from the evidence adduced, it is precise
that each of the drivers
maintained that the accident occurred in
their respective lanes of travel and that the other vehicle
encroached into the incorrect
lane. These versions are therefore
mutually exclusive. The plaintiff further submits that the technique
of resolving two mutually
destructive versions starts with evaluating
the credibility of the witnesses. The plaintiff further made
submissions that her evidence
and Mixo’s evidence, were
credible and reliable witnesses who did not contradict each other
except on the issue of whether
the plaintiff applied brakes or not
before the collision.
[16]
The plaintiff submits that minor contradiction is not material and as
held
in Santam Beperk v Biddulph
2004 (5) SA 586
(SCA)
“
the proper test
is not whether a witness is truthful or indeed reliable in all that
he says, but whether on a balance of probabilities
the essential
features of the story which he tells are true.”
[17]
The plaintiff submits that the plaintiff and Mixo’s evidence is
supplemented by the evidence
of the expert witness who highlighted
the improbabilities of the insured driver’s version with regard
to the plaintiff losing
control of her vehicle, the area of impact
and the final resting positions of the vehicles after the accident.
The plaintiff spoke
freely and honestly about how she travelled on
this road regularly, her knowledge of how dangerous that section of
the road is,
how she ensures every time that she keeps to the speed
limit and how the collision occurred.
[18]
The plaintiff submits that on a balance of probabilities, the
evidence of both the plaintiff
and Mixo should be accepted as
probable true and accurate and the evidence of the insured driver be
rejected.
DEFENDANT
SUBMISSION
[19]
On the 29 July 2024 the court gave directive for the parties to
prepare and submit their heads
of argument on or before the 16
th
August 2024. The plaintiff sent their heads of argument as directed
but the defendant did not make any submission. The court should
proceed to adjudicate on this matter on the absence of the
defendant’s heads of argument.
EVALUATION
OF THE EXPERTS WITNESS EVIDENCE
[20]
Regarding the evaluation of credibility and reliability of expert
evidence, Wallis JA (Fourie
and Koen AJJA concurring) in
Pricewaterhouse
Coopers Incorporated and Others v National Potatoe Co-operative Ltd
and Another [2015] 2 All SA 403 (SCA)
[4]
referred to
Wightman
v Widdington (Successon de)
2013 QCCA 1187
CanLII)
where it was remarked thus:
“
Legal
principles and tools to assess credibility and reliability
[326
] “Before
any weight can be given to an expert’s opinion, the facts upon
which the opinion is based must be found to
exist”
[327] “As long
as there is some admissible evidence on which the expert’s
testimony is based it cannot be ignored; but
it follows that the more
an expert relies on facts not in evidence, the weight given to his
opinion will diminish”.
[328] An opinion based
on facts not in evidence has no value for the Court.
[329] With respect to
its probative value, the testimony of an expert is considered in the
same manner as the testimony of an ordinary
witness. The Court is not
bound by the expert witness’s opinion.
[330] An expert
witness’s objectivity and the credibility of his opinions may
be called into question, namely, where he or
she:
-
accepts to perform his or her mandate in
a restricted manner;
-
presents a product influenced as to form
or content by the exigencies of litigation;
-
shows a lack of independence or a bias;
-
has an interest in the outcome of the
litigation, either because of a relationship with the party that
retained his or her services
or otherwise;
-
advocates the position of the party that
retained his or her services; or
-
selectively examines only the evidence
that supports his or her conclusions or accepts to examine only the
evidence provided by
the party that retained his or her services.”
[21]
In
Ruto Flour Mills v Adelson (1) 1958 (4) SA 235 (T)
[5]
Boshoff J stated that a party seeking to introduce expert evidence
must satisfy the court that the witness not only has specialist
knowledge, training, skill or experience but that he/she can, on
account of these attributes or qualities, assist the court in
deciding the issue, that he/she is an expert for the purpose for
which he/she has been called upon to express an opinion,
[6]
the witness does not or will not express an opinion on hypothetical
facts that have no bearing on the case or which cannot be reconciled
with all the other evidence in the case.
[7]
[22]
In the case of
Holtzhauzen v Roodt
1997(4) SA 766 (W) at
772H-I, the first principle regarding the evidence of an expert is
that such evidence must be tested against
known facts because the
primary factual evidence is of the greatest importance. This means
that the facts upon which the expert
opinion is based must be proved
by admissible evidence.
[23]
In the case of
Motor Vehicle Accident Assurance Fund V Kenny
1984
(4) SA 432
(ECD) at 436 H – 437 B the court held as follows
with regard to direct evidence of eye witnesses and expert evidence:
“
An expert's view
of what might probably have occurred in a collision must, in my view,
give way to the assertions of the direct
and credible evidence of an
eyewitness. It is only where such direct evidence is so improbable
that its very credibility is impugned,
that an expert's opinion as to
what may or may not have occurred can persuade the Court to his
view.”
THE
COURT FINDINGS
[24]
Mixo Mhlari corroborated the version of the plaintiff that the
insured motor vehicle lost control,
swerved in to their lane and had
a head on collision. The plaintiff and Mixo Mhlari evidence only
contradicted where the plaintiff
avers that she did not apply brakes
but Mixo Mhlari stated that the plaintiff applied brakes before the
accident. Photos which
were taken at the scene of the accident show
the quarter of the plaintiff’s motor vehicle front part being
at the insured
vehicle’s lane facing the oncoming traffic
towards Polokwane and the insured driver’s motor vehicle was
found at the
left side of his lane facing towards Tzaneen.
[25]
The insured driver’s evidence is that the plaintiff lost
control of her motor vehicle,
it spun and encroached into his lane,
the oncoming traffic, before colliding with the insured motor
vehicle.
[26]
The versions of both drivers are mutually destructive but the court
is going to consider the
most probable version between the two, the
court will further consider other evidence such as the photos taken
at the scene on
the date of the accident in question, in order to
come to a fair conclusion.
[27]
Mr Strydom is an accident reconstruction expert, who was appointed by
the plaintiff. On the 30
March 2023, Mr Strydom consulted with the
plaintiff, Mixo Mhlari and Green Leaf Risimati. Mr Strydom did not
consult with the insured
driver and the police officer sergeant Maake
who attended the scene of accident. Mr Strydom opinion was based on
the version of
the plaintiff and passengers in her motor vehicle. In
cross examination he conceded that consulting the insured driver as
an eye
witness and the police officer who attended the scene of
accident the same date the accident occurred would have assisted and
benefitted
the court. The evidence of an independent witnesses is
always beneficiary to the court but in this case the evidence of the
police
officers who investigated the case would have significantly
benefitted the court.
[28]
The evidence of Mr Strydom that the insured motor vehicle had
probably lost control, drove on
the oncoming traffic, collided in to
the left side of the plaintiff’s motor vehicle by its right
front side was not the evidence
of neither the plaintiff nor Mixo
Mhlari. In the case of
Holtzhauzen v Roodt
referred in
supra
the first principle regarding the evidence of an expert
is that such evidence must be tested against known facts because the
primary
factual evidence is of the greatest importance. This means
that the facts upon which the expert opinion is based must be proved
by admissible evidence.
[29]
The court finds the evidence of the plaintiff, Mixo Mhlari and Mr
Strydom to be improbable after
the court has considered the final
resting of both motor vehicles as appears from the photos taken after
the accident
[8]
,
and also consideration of the evidence by the insured driver.
[30]
The court finds the evidence of the insured driver to be the most
probable version after the
court had an insight of the photos taken
from the scene of the accident. The final resting of both motor
vehicles made the court
to find it probable that the point of impact
was on the insured motor vehicle’s lane. The court finds that
the plaintiff’s
motor vehicle lost control as a result of wet
road, encroached to the oncoming traffic and it collided head on with
the insured
motor vehicle which was driving on his rightful lane.
[31]
The court finds that the insured driver has failed to avoid the
accident while he had an opportunity
to do so. The insured driver
indicated that he saw that the plaintiff has lost control of her
motor vehicle but he could not drive
to the far left because there
were some curbs which he thought it may damage his tyres. The insured
driver decided not to move
to the far left and he could not even
apply brakes. The insured driver failed to avoid the collision when
by exercise of reasonable
care, he could or should have done. In my
view the insured driver was driving in excessive speed, even though
he knew the danger
of driving in a wet road which is slippery. If the
insured driver was driving in a reasonable speed, he would have
easily avoided
the accident. Both cars were seriously damaged and
passengers had severely injured, so in my view, both cars were
driving at an
excessive speed.
[32]
The court finds that both drivers are equally to be blamed for the
accident in question because
they both failed to drive their motor
vehicle with dure care. The drivers of both motor vehicles were
equally negligent.
Cost
[33]
The court has considered that the plaintiff should be awarded a
reasonable cost for bringing
her matter for hearing and considered
that the plaintiff has succeeded to prove her case of negligence
against the defendant.
[34]
In the result, I make the following order;
[1] The Defendant is
liable for 50% of the plaintiff’s proven or agreed damages
[2] The Defendant is
ordered to pay cost on party and party scale, scale B for counsel’s
fee.
E MASHAMBA
ACTING JUDGE OF THE
HIGH COURT,
POLOKWANE, LIMPOPO
DIVISION
APPEARANCES
FOR
THE PLAINTIFF:
ADV
T.P MOTLATLE
INSTRUCTED
BY:
NK
VUKEYA ATTORNEYS INC
EMAIL:
info@vukeyainc.co.za
FOR
THE DEFENDANT:
INSTRUCTED
BY:
THE
STATE ATTORNEYS
EMAIL:
mashobaneM@raf.co.za
DATE
OF HEARING:
11
th
,
12
th
June 2024 and 29
th
July 2024
HEADS
OF ARGUMENT:
16
TH
AUGUST 2024
DATE
OF JUDGEMENT:
05
th
SEPTEMBER 2024
[1]
Joint
Bundle, page 68
[2]
Joint
Bundle, page 54 & 50
[3]
Joint
bundle, page 84
[4]
At
page 441 para [98];
[5]
At
237C-D.
[6]
Goliath
v Fedgen Insurance Company Ltd 1994 (2) PH F 31 E at 83.
[7]
S
v Mkohle
1990 (1) SACR 95
(A) at 100d.
[8]
Ibid.par
9, photos