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2024
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[2024] ZAMPMBHC 79
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Dibakoena v Road Accident Fund (3120/2020) [2024] ZAMPMBHC 79 (8 November 2024)
IN THE HIGH COURT OF
SOUTH AFRICA
MPUMALANGA DIVISION,
MBOMBELA
CASE NO:
3120/2020
(1)
REPORTABLE: YES/NO
(2)
OF INTEREST TO OTHER JUDGES: YES/NO
(3)
REVISED: YES/NO
DATE:
08 November 2024
SIGNATURE
In
the matter between:
SIFISO
CORNELIUS DIBAKOENA
Plaintiff
and
ROAD ACCIDENT
FUND
Defendant
JUDGMENT
Mazibuko
AJ
Introduction
[1]
The plaintiff instituted a personal injury claim against the
defendant arising from a motor vehicle
collision along N4 Road from
Komatipoort towards Malelane, Mpumalanga Province.
Background
[2]
The plaintiff alleged that on 23 April 2021, whilst driving his motor
vehicle, an unknown motor
vehicle driven by an unidentified driver
(hereinafter referred to as ‘an insured driver’) driving
at a high speed suddenly
drove into his lane of travel. While trying
to avoid a head-on collision, he collided with a stationary truck
parked next to the
road.
[3]
As a result, the plaintiff suffered an injury on top of his left eye
and a deep wound on the eyelids.
The cause of the accident, pleads
the plaintiff, was the sole negligence of the insured driver. He
claims damages in the amount
of R4 808 000.
[4]
The defendant is disputing liability. In defending the action, the
defendant contested that the
plaintiff was under the influence of
alcohol. Therefore, the accident was caused by the plaintiff
losing control of his motor
vehicle and colliding with a stationary
truck. It denied that there was an unidentified insured driver
driving another unidentified
motor vehicle.
Issues
for determination
[5]
The issues, among others, identified in relation to the determination
of the merits were the cause
of the accident, whether the other
driver had been negligent, whether the plaintiff suffered any
injuries, and whether the defendant
was liable for compensation to be
paid to the plaintiff.
[6]
The court ordered that the determination of the merits be separated
from the determination of
quantum in terms of rule 33(4) of the
Uniform Rules of Court
[1]
. The
matter proceeded to trial on the question of merits only.
Legal
framework
[7]
In
terms of section 17(1) of the Road Accident Fund
[2]
(The RAF Act), the defendant is obliged to compensate a person for
loss or damage suffered because of bodily injury caused by or
arising
from the driving of a motor vehicle. The defendant’s liability
is conditional, however, upon the injury having resulted
from the
negligence or wrongful act of the driver.
[3]
[8]
In the case of National Employers’ General Insurance Co Ltd v
Jagers
[4]
, the court held: ‘…
in
any civil case, as in any criminal case, the onus can ordinarily only
be discharged by adducing credible evidence to support
the case of
the party on whom the onus rests.
[9]
In Schwikkard PJ (
et
al.
),
Principles of Evidence,
[5]
the
learned writer observed that: ‘In civil cases the burden of
proof is discharged as a matter of probability. The standard
is often
expressed as requiring proof on a “balance of probabilities”
but that should not be understood as requiring
that the probabilities
should do no more than favour one party in preference to the other.
What is required is that the probabilities
in the case be such that,
on a preponderance, it is probable that the particular state of
affairs existed.’
Evidence at the trial
Plaintiff
[10]
The plaintiff testified that on the day of the accident, he was
driving home at 60 to 70 kilometres per hour
from his workplace, the
restaurant in Komatipoort. It was in the evening at approximately
20H30. There were streetlights. There
were no clouds, rain and
overcast. Before joining the N4 Road, he stopped at the stop sign,
put on his right indicators and observed
the road signs. Satisfied
that there was no motor vehicle, he joined the N4 road towards
Malelane. Whilst driving, he suddenly
heard a bang on his left-hand
side. He swerved into the road, as there were no cars. He lost
control until he leaned against a
stationary truck which was on his
right. He lost consciousness and woke up at the hospital, where he
received medical treatment.
[11]
He stated that he did not know what caused the loud bang as he could
not see anyone. It came from the left
and hit him on the left side of
his face. In his opinion, there was nothing that he could have done
to prevent the accident, as
he was in the correct lane, and the bang
came from nowhere. After the accident, he went back to work. However,
it has been difficult
as he is now forgetful.
[12]
Under cross-examination, he testified that after the bang, the glass
pieces from the windscreen flew into
his eyes. He does not know
whether the bang was from a motor vehicle, truck or bus. However, it
could not have been from a brick
or a bicycle.
His
car was damaged in the front bumper.
[13]
He was referred to his section 19(f) of the RAF Act affidavit (the
affidavit) dated 12 July 2021where in
paragraph 2, he stated:
‘…
While
I was driving
past the T-Junction, I had
right of was when suddenly another motor vehicle (truck) bearing
registration letters and numbers unknown
to me (hereinafter referred
to as the insured motor vehicle) driven by an unknown driver
(hereinafter referred to as the insured
driver) came and collided
with my motor vehicle on my left-hand side, I don’t remember
what happened after the collision
I woke up at hospital.’
(sic).
[14] It
was put to him that his oral evidence and his affidavit were
different from his particulars of claim,
since the particulars of
claim read:
‘
Paragraph
4: … While driving the plaintiff come across a motor vehicle
bearing unknown registration numbers and letters (herein
referred as
the unknown insured driver) that was driven at a high speed which
suddenly drove into the plaintiff’s lane of
travel. While
trying to avoid a head on collision the plaintiff ended up knocking a
truck that was parked next to the road.’
(sic).
He responded that he
could not tell what caused the bang and reiterated that he did not
see any vehicle and did not try to avoid
a head-on collision.
[15] He
was further referred to his warning statement dated 29 June 2021,
which reads:
‘…
I
was bumped by an unknown vehicle, and it did not stop. I then lost
control until I knocked the truck that was queuing on the N4
road. I
then sustained injuries on my left eye. I was then taken Tonga
hospital…’
(sic)
.
He repeated that he did
not know what hit him, but it was not something small like a bicycle
or a brick when he considered the impact
and damage on his motor
vehicle.
[16] He
conceded that the officer accident report dated 22 July 2021 made no
mention of another car, as
it read: ‘
It is alleged
that Driver B was stationary on the queue to the border then vehicle
came from the Komatipoort direction towards Malelane
and lost control
of his vehicle and bumped vehicle B.’
[17]
When he was referred to his hospital records about his intoxication
state on admission at the hospital, he
conceded that he was under the
influence of alcohol at the time of the accident.
[18]
During re-examination, he testified that he was mildly intoxicated,
not to the extent that he could not drive.
When asked whether
he was confirming his affidavit, he answered in the affirmative.
[19] To
questions put to him by the court, the plaintiff testified that a
fter
cashing up at his workplace before 22H00, he bought and consumed two
black label beers,350 ml with 4,5% to 5% alcohol content,
to release
fatigue. He then drove, observing all the road signs until he met
with the accident. The accident occurred about 35
minutes after the
consumption.
[20]
The plaintiff closed his case without calling any further witnesses.
Defendant
[21]
The defendant led no evidence.
Discussion
[22]
It
is trite that the onus rests on the plaintiff to prove that the
defendant was negligent on a balance of probabilities.
The
plaintiff is required to adduce credible evidence in support of its
case. In deciding whether the evidence is true, the court
will weigh
up and test the plaintiff’s allegations against the general
probabilities. If the balance of probabilities favours
the plaintiff,
then the court will accept his version as being probably true.
[23]
It is essential first to establish where on N4 the accident occurred.
Was it at the T-Junction, joining the
N4 or on N4? According to his
affidavit, he was driving past the T-junction as he had a right of
way. In his warning statement
to the police, particulars of claim and
his
viva voce
evidence, he was already on the N4 road, having
passed the T-Junction.
According to the accident
report, he was already on the N4 towards Malelane. It can be accepted
that he was not joining the N4,
as stated in his affidavit.
[24]
Secondly, what caused the accident? In his testimony, the plaintiff
was consistent that he could not tell
what caused the accident, as he
did not see anyone and could not say whether it was a car, truck or a
bus, but it was not a brick
or a bicycle, he testified. He heard a
bang, he lost control of his vehicle and swerved into the road until
he leaned against a
stationary truck parked on the right-hand side of
the road.
[25]
Only in his affidavit did he mention what kind of vehicle collided
with his motor vehicle. He stated a truck
suddenly came and collided
with his motor vehicle on his left side. However, this version could
not be sustained during his testimony,
as he testified that he did
not know what had caused the bang.
[26]
Though the accident report only comes after the effect, it is helpful
as it provides a somewhat independent
view of the matter. In this
case, it does not mention another vehicle except the driver of the
stationary truck, referred to as
Driver B. It stated the truck driver
was inside the stationary truck in the queue to the border, and then
the plaintiff’s
vehicle came from the Komatipoort direction
towards Malelane. He lost control of his vehicle and bumped vehicle B
(the truck).
[27]
Lastly, was there another driver who was negligent and is the
defendant liable? The pleadings are not aligned
with either his
testimony or the affidavit version. In the particulars of claim, to
which the defendant would have pleaded, he
averred that he came
across an unknown motor vehicle driven at a high speed,
which
suddenly drove into his lane of travel.
He swerved into the
road to avoid the head-on collision
until he
collided with a stationary truck parked on the right side of the
road
. This evidence suggests that the other vehicle was
driving in the opposite lane for him to have come across it. There
was no collision
between his vehicle and this other unknown vehicle.
The collision was between himself and the stationary truck in his
attempt to
avoid a head-on collision with the unknown vehicle, which
came into his lane of travel and sped away.
[28]
Conversely, according to his warning statement, the
unknown
vehicle bumped him and did not stop. His affidavit shows that it was
a truck that bumped him. In this regard, one would
have expected the
plaintiff’s testimony to clarify these differences. However, he
failed to do so, even when his counsel
and the defendant’s
counsel, respectively, attempted to elicitate his specific response.
He maintained that he did not know
what hit his motor vehicle. He
also could not explain whether he collided with the unknown vehicle
or the unknown vehicle caused
him to collide with the stationary
truck. Or whether he first collided with the unknown vehicle and
thereafter with the stationary
truck.
[29]
It was not disputed that the accident happened at night on the N4
freeway. The evidence presented by the
plaintiff was his own
testimony about the accident. His evidence is not consistent. He
could not explain the differences in the
evidence. He based his
claim, as contained in the particulars of claim, on averments
different from his testimony and other pieces
of evidence he
disclosed in support of his case. There is no explanation why the
allegations in the affidavit were not pleaded
in the particulars of
claim if he believed that was what happened on the night of the
accident. Instead, different averments were
made in the particulars
of claim.
[30]
It is unclear whether a motor vehicle, a truck, a bus or something
else collided with him or caused him to
collide with the stationary
truck. His affidavit and
viva voce
evidence do not support the
allegations in the particulars of claim. In his own words, he
testified he could not say what caused
the bang. His testimony did
not even complement his affidavit’s version, as they differ.
[31]
The plaintiff did not adduce credible evidence in support of its
case. The plaintiff did not explain why
the court should accept his
affidavit as true whilst rejecting his other versions, including his
testimony and the averments in
his particulars of claim concerning
the collision.
[32]
The plaintiff’s evidence was self-contradictory, with
inconsistent statements. He was not a credible
witness. He elected to
confirm the content of his affidavit among his different versions and
testified otherwise. Even if one were
to accept his affidavit, as he
suggested, the plaintiff would still have difficulty substantiating
his claim as the averments in
the particulars of claim differ from
his affidavit. I found his testimony unreliable when considering all
the evidence, including
the officer's accident report.
[33]
Though, the possibility cannot be excluded that an entirely truthful
and accurate recall of the events would
have been compromised by the
passage of time and the uncontested fact that he lost consciousness
immediately after the collision.
The probabilities of the plaintiff’s
version, however, require further remark in that there was
uncontested evidence that
the plaintiff was under the influence of
alcohol. Notwithstanding that, there was no report of whether the
alcohol content was
above the acceptable limit for drivers. It cannot
be ignored that the accident occurred within an hour of alcohol
consumption by
the plaintiff. However, in the absence of the report,
it is not available to the court to make a finding.
[34]
In terms of Section 17 of the RAF Act, the
defendant is
obliged to compensate a person for loss or damage suffered because of
bodily injury caused by or arising from driving
a motor vehicle. The
defendant is only liable when an injury results from the negligence
or wrongful act of the driver. The plaintiff's
evidence must be clear
in this regard. However, in this case, it was not. The plaintiff did
not know how the accident occurred.
He could not tell whether there
was an insured driver who collided with him or caused him to collide
with the stationary truck.
[35]
The contradictions and inconsistencies in his evidence remain
unexplained. I find that the plaintiff lost
control of his motor
vehicle, and whilst trying to control it, he drove into the
stationary truck. Had there been another unknown
vehicle, his
testimony would have been to that effect. However, the plaintiff did
not testify to that effect. I, therefore, find
that there was no
unidentified driver whose negligent driving caused the collision,
resulting in plaintiff’s injuries on
the day in question.
[36]
Even though the defendant has not called any witnesses to testify on
the merits, the plaintiff retains the
onus to prove that the
defendant’s negligence caused the accident. No negligence was
proved on the part of the alleged unidentified
insured driver, as the
court rejected that there was an unidentified driver. I find the
plaintiff’s version highly improbable
and inconsistent and
stands to be rejected. In light of the above, it cannot be said that
the plaintiff has discharged the onus.
He has failed to prove on a
balance of probabilities that there was an insured driver who was
negligent. As a result, the claim
of the plaintiff ought to fail.
[37]
There is no reason the general rule concerning costs can not be
applicable.
[38]
Consequently, the following order is granted.
Order:
1.
The plaintiff’s claim is dismissed with costs.
N G M Mazibuko
Acting Judge of the
Mpumalanga Division, Mbombela
This
judgment was handed down electronically by circulation to the
parties' representatives by email.
Representation:
For
the Plaintiff:
Ms K.
Mahlalela
Attorneys
for the Plaintiff:
Mahlalela
Attorneys
For
the Defendant:
Ms J.
Ragau
Attorneys
for the Defendant:
State
Attorney (Mbombela)
Reserved on:
22 August 2024
Date of Judgment:
08 November 2024
[1]
Act
59 of 1959.
[2]
Act 56
of 1996.
[3]
MP
Olivier, ‘Social Security: Core Elements’, LAWSA
(LexisNexis, Vol 13(3), 2ed, July 2013), at paragraph 163.
[4]
[1984]
4 All SA 622
(E),at 624-5
[5]
[5]
4
th
Ed, 2016, ch32-p 628.