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2024
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[2024] ZAFSHC 312
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T.P.M v Road Accident Fund (Majority Judgment) (A150/2023) [2024] ZAFSHC 312 (26 September 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
YES/NO
Of
Interest to other Judges:
YES/NO
Circulate
to Magistrates: YES/NO
Appeal
number: A150/2023
In
the matter between:
M[…]
T[…] P[…]
Appellant
(LINK:
4[…])
and
ROAD
ACCIDENT FUND
Respondent
CORAM:
MHLAMBI, ADJP, VAN ZYL, J
et
DANISO,
J
JUDGMENT
BY:
VAN
ZYL, J
HEARD
ON:
26 APRIL 2024
DELIVERED
ON:
26 SEPTEMBER 2024
MAJORITY
JUDGMENT
[1]
The mother and natural guardian of the appellant instituted a claim
against the respondent for damages sustained
by the appellant
allegedly as a result of an incident arising from the negligent
driving of a motor vehicle by an insured driver.
At the time of
the institution of the claim the appellant was a minor. The
appellant has since attained majority and the
appeal was, therefore,
noted in her name.
[2]
The appeal is directed against the order of the court
a quo
in
terms whereof the aforesaid claim was dismissed, with costs.
Leave to appeal was granted by the court
a quo
.
[3]
In paragraphs 4 and 5 of the amended particulars of claim, the
following averments are made:
“
4.
On or about the 07
th
day
of May 2017, and at, near or along Nthunya street, Ikgomotseng in
Soutpan, Free State Province, the plaintiff’s minor
T[…]
P[…] M[…] was a passenger of a motor vehicle bearing
registration letters and numbers CKM […]
(“the insured
vehicle”), there and then been driven by a certain LIBELE LUKU
KOTOYI (“the insured driver”)
when she fell out of moving
vehicle.
5.
The aforesaid collision was caused by the exclusive negligence
driving of the driver of the Insured vehicle
who was negligent in
one, more or all of the following respects: –
5.1
he failed to keep a proper lookout;
5.2
he failed to keep the insured vehicle under the proper control;
5.3
he failed to avoid collision when by the exercise of a reasonable
care and skill, a reasonable man could and should
have done so;
5.4
he failed to pay due regard to the safety of his passengers more
particularly that of the plaintiff’s minor;
5.5
he drove the insured vehicle at an excessive speed under the
prevailing circumstances; and
5.6
he failed to apply his brakes timeously or at all.”
[4]
In the amended plea the respondent denied any knowledge of the
incident. The respondent further pleaded
that should it be
found that the incident occurred as alleged by the appellant, it is
denied that the insured driver was negligent.
In the
alternative it was pleaded that should it be found that the insured
driver was negligent, the respondent denies that such
negligence was
the cause of the incident.
[5]
The merits and quantum were separated and the court
a quo
consequently only heard the issue in respect of liability.
The
evidence:
[6]
The appellant testified in support of her own case and her friend,
T[…] S[...] (“Ms S[...]”)
was also called as a
witness; in fact, the evidence of Ms S[...] was presented before that
of the appellant. The insured driver,
Mr Kotoyi, testified on behalf
of the respondent. Since this appeal is to be decided mainly
upon factual issues, I deem it
necessary to deal in some detail with
certain aspects of the versions of the respective witnesses and, in
some instances, to quote
extensively from the record of the
proceedings in the court
a quo
.
Ms
S[...]:
Evidence
in chief:
[7]
Ms S[...] testified that she is the appellant`s friend. At the time
when she testified, she was 18 years of
age, but at the time of the
incident she was 13 years old. She confirmed that three
gentlemen arrived at her parental home
in a Nissan 1400 bakkie and
they found her uncle drinking. They joined in and also drank
alcohol, after which they stood
up saying that they are going to sell
the chickens. Ms S[...], the appellant and some other children
requested them that
they be allowed to help them selling the
chickens, to which the three gentlemen agreed. They therefore
accompanied the three gentleman
into the township to sell the
chickens. After they sold some of the chickens and some of the
chickens were still left on
the back of the bakkie, they drove to a
tavern. Ms S[...] and the other children remained at the
bakkie, whilst the three
gentlemen entered the tavern. After
some time, they exited the tavern with quarts of beer in their hands
and got into the
bakkie. They drove back to Ms S[...]’s
parental home to greet the people. When the gentlemen were
about to leave,
they requested them if they could get a lift to the
shop, to which the gentlemen agreed. Ms S[...] described the
subsequent
events as follows:
“
MS
S[...]:
We
were in that vehicle and then it drove past the shop where we
requested them to stop, as we realized that they had passed the
shop
I knocked on the window, we made them aware to stop so that we can
alight from the vehicle. They did not stop because
the vehicle
was in a high speed, a commotion took place there, there was a
commotion there and someone pushed T[...]. On
realizing that
T[...] had fallen I also deliberately threw myself to the ground.”
[8]
After T[...] fell to the ground and Ms S[...] also jumped off the
vehicle, the bakkie kept on driving.
The other children
subsequently told them that they too jumped from the moving bakkie.
When asked how many people were in
the bakkie, excluding the
children, Ms S[...] testified that it was the driver, a passenger and
the third man was with them on
the back of the bakkie.
Cross-examination:
[9]
Ms S[...] testified that of the three gentlemen she knew two of them,
since they frequently visited her parental
home to visit and to
drink. It was the first time that she saw the third man.
According to Ms S[...] the driver was
one of the two gentlemen she
knew and he was called “
Oupa
”. She further
testified that when they asked permission to accompany the three
gentlemen to sell chickens in the township,
she spoke to Oupa. After
he agreed thereto, they (the children) climbed onto the back of the
bakkie. Ms S[...] was
referred to her witness statement in
which it was stated that the driver was Mr Kotoyi. According to Ms
S[...] she only signed
the statement, but that the lawyer drafted the
statement. She testified that she never mentioned the name
Kotoyi and that
she knew the driver as Oupa. The following
evidence then emanated from further cross-examination:
“
MS
BANDA:
Okay, then who is this
person that is written on the statement?
MS
S[...]:
I do not know.
MS
BANDA:
So
this person that you wrote on the statement was not the one driving
the vehicle?
MS
S[...]:
I do not know his full
name, I cannot say it is him or not, I do not know his full name, I
only know him by the name Oupa.”
[10]
When asked whether the bakkie had a canopy, she testified that it did
not have a canopy. There were two people seated
in the front when
they went to sell the chickens and about seven people on the back of
the bakkie.
[11]
According to Ms S[...] the three gentlemen spent about an hour inside
the tavern before they came out with quarts of
beer. During that time
the children remained seated on the back of the bakkie, “
watching
the chickens
”. They then drove back to her parental
home.
[12]
Back at her parental home, after they sold chickens in the township
and after the three gentlemen visited the tavern,
the three men
greeted her family as they were about to leave and they accompanied
the gentlemen. They climbed onto the back of
the bakkie and the
gentlemen left with them. Ms S[...] further testified as follows:
“
MS
S[...]:
Yes,
we were going to the shop, and we asked them to drop us at the shop
on their way out.
MS
BANDA:
Okay, again who was driving
the vehicle, was Oupa still driving the vehicle?
MS
S[...]:
Yes.
MS
BANDA:
So
Oupa was still driving the vehicle?
MS
S[...]:
Yes.
MS
BANDA:
And
Oupa knew that you were seated at the back of the vehicle with the
other kids?
MS
S[...]:
Yes, he knew.”
[13]
Later in her cross-examination, Ms S[...] explained that when they
arrived back home at her parental home after they
returned from the
tavern, she, the appellant and two children who were related to her,
as well as the three gentlemen, got off
and out of the bakkie.
Some of the children were left on the bakkie. The three
gentlemen told her family that they
were leaving and Ms S[...] asked
them whether they can climb on the bakkie so that the three men can
drop them at the shop. Oupa
then gave his permission that they can
get onto the bakkie, which they did. The following evidence is
then reflected:
“
MS
BANDA:
And Oupa is the one who is
driving?
MS
S[...]:
I do not know whether it
was Oupa or somebody else.
MS
MS BANDA:
So is the driver now
changing?
MS
S[...]:
I do not think it is
changing.
MS
BANDA:
Okay, but then who is
driving?
MS
S[...]:
I do not recall, but the
one who had been driving was Oupa.
MS
BANDA:
Okay, you said that you do
not recall but the person who was driving was Oupa?
MS
S[...]:
He is the one who came
driving the car.
MS
BANDA:
Okay, so when you got onto
the car you told Oupa to drop you off at the tuck shop?
MS
S[...]:
I told Oupa that.
MS
BANDA:
Okay, so you told Oupa and
Oupa was the driver?
MS
S[...]:
Yes, I was telling him
because he was the only one with whom I could speak, I do not know
the other people`s name.
MS
BANDA:
Who
was driving, that was my question?
MS
S[...]:
I am not sure that Oupa was
driving ma’am.
MS
BANDA:
Okay, so you told Oupa to
drop you off at the shop as he was driving the car?
MS
S[...]:
He was as yet inside the
car, he was not yet inside the car when I told him that.
MS
BANDA:
Okay, but when they go into
the car who was driving?
MS
S[...]:
It was Oupa.
MS
BANDA:
Okay, so Oupa was driving
the car when you got on and you ask him to drop you off at the shop?
MS
S[...]:
Yes.”
[14]
She again explained how the driver drove past the shop where he was
supposed to drop them off. The children were
knocking on the
rear window of the bakkie in an attempt to stop the driver, but to no
avail. At that stage there was a commotion
on the back of the
bakkie and the appellant was pushed off the vehicle in the process.
[15]
Ms S[...] again explained that the vehicle was speeding and that they
were trying to stop the driver. She testified
that the bakkie
was over crowded because the bakkie is small. The vehicle was
packed at the back, as there were many of them,
when the appellant
was pushed. Because there were so many of them on the back of
the bakkie, she does not know who pushed
the appellant.
[16]
She was asked what distance the bakkie drove from the point where the
appellant was pushed from the bakkie until the
point where Ms S[...]
jumped off the bakkie, whereupon she pointed out a distance from
where she was seated up to where the restrooms
were. When the
court asked her to compare the distance to the size of a netball
field, as Ms S[...] played netball, she estimated
the distance to
have been approximately 100 metres. She was also asked how she
could tell that the vehicle was moving at
a high speed, whereto she
responded that she “
can see
” when a vehicle is at
a high speed. She estimated the speed of the bakkie to have
been 180 kilometres per hour. When
she jumped off the bakkie, she was
only slightly injured, but it was only abrasions.
[17]
When asked whether Ms S[...] could see through the rear window inside
the bakkie, she confirmed same. The following
questions and
answers then followed:
“
MS
BANDA:
And as you were banging on
the window what were they doing?
MS
S[...]:
They did not do anything.
They just looked forward.
MS
BANDA:
So
they did not turn back, no one turned back?
MS
BANDA:
No
one turned their heads to look back?
MS
S[...]:
No one.
MS
BANDA:
Okay,
so at that time how many people were then seated in the front of the
bakkie?
MS
S[...]:
They were two, the third
one was seated with us at the back.
MS
BANDA:
And
that third person who was he?
MS
S[...]:
That is the person that I
do not know.
MS
BANDA:
T[...]2
I put it to you that the insured driver was Mr Lebele Luke Kotoyi,
that was the person who was driving the car at the time.
MS
S[...]:
I hear you.
MS
BANDA:
Okay, that is the person’s
name you put in the statement?
MS
S[...]:
No, I never put that name
on the statement, I never put it on the statement.
…
MS
BANDA:
Okay, so then where did you
get that name from because it is in your statement?
MS
S[...]:
I never made mention of
this name.
MS
BANDA:
Okay, did you tell the
attorney when you were making the statement who the driver was?
MS
S[...]:
No.
MS
BANDA:
So
you did not tell your attorney that Oupa was driving the car?
MS
S[...]:
Yes, I told them that it
was Oupa who was driving.
MS
BANDA:
And
then this name here on your statement is Kotoyi?
MS
S[...]:
I do not know that name.
MS
BANDA:
I
put it to you that at the time of the alleged accident Oupa is not
the person who was driving the car.
MS
S[...]:
I can hear you.
MS
BANDA:
Okay, I also put it to you
that my insured driver will come to this court and testify that at no
point did you or any other children
get into the back of the bakkie.
MS
S[...]:
We were on that bakkie.
MS
BANDA:
You
not tell him that you were getting onto the bakkie, so he did not
know that you were there.
MS
S[...]:
I told Oupa because he was
the driver.
COURT:
Just a minute Ms Banda.
What are you putting to her now, you say your insured driver will say
at no point did she or any other children
get onto the back of the
bakkie, are you trying to say with his consent?
MS
BANDA:
Yes.
COURT:
Or do you say not at all?
MS
BANDA:
Or
not at all, with his consent and not at all.
COURT:
Not at all?
MS
BANDA:
Yes,
that will be his testimony.”
[18]
In response to questions posed by the court to Ms S[...], she
testified that she does not know who pushed the appellant.
She
explained that she did not see what actually made the appellant fall
off the bakkie, she later heard from the other children
and from the
appellant herself that someone pushed the appellant off the bakkie.
The
appellant:
Evidence
in chief:
[19]
The appellant was 18 years old when she presented her evidence.
She was only 12 years of age at the time of the
incident. On 7
May 2017 three gentlemen who were selling chickens arrived at Ms
S[...]’s parental home with a 1400
bakkie. All three gentlemen
consumed alcohol with Ms S[...]`s uncle. They were drinking
Black Label. After that they
said that they were going to sell
chickens, whereupon the appellant, Ms S[...] and one Nkosi requested
permission from them to
accompany them to help them sell the
chickens. According to the appellant they were at least seven
children, but not more
than ten. After they sold some of the
chickens, the three gentlemen drove to a tavern and parked there.
They entered
the tavern and told the children to watch over the
chickens. They were in the tavern for a while, where after they
came out
with three quarts of beer. They drove back to Ms
S[...]’s parental home. When they greeted Ms S[...]’s
family as they were leaving, the appellant and Ms S[...] requested
permission to accompany them and to be dropped off at the shop.
They agreed and Ms S[...] and the appellant climbed onto the bakkie.
On a question posed to her, the appellant specifically
testified that
they were outside the bakkie when they enquired whether they could
ride along.
[20]
The bakkie drove off at a high speed. They drove past the shop,
whereupon the appellant and her friends attempted
to signal the
driver to stop. This they did by knocking on the window, but to
no avail. They also tried to wake the
one gentleman (of the
three gentlemen) who was with them on the back of the bakkie, but he
was struggling to wake up. The other
two gentlemen were seated in the
front of the bakkie. There developed a commotion on the back of the
bakkie and somebody pushed
the appellant, whereupon she fell off the
bakkie. She does not know who pushed her. She was injured and
hospitalized.
At the end of her evidence in chief, the
appellant presented the following evidence:
“
MS
M[...]:
Yes, I was seated on the place under
which there is a wheel, a car wheel, but I stood up to try and wake
that male person up.
MS
BALOYI:
You
said you stood up and that is when you fell?
MS
M[...]:
That is how I was pushed
and fell.”
Cross-examination:
[21]
During cross-examination the appellant testified that when they asked
permission to accompany the gentleman to help them
sell chickens,
they spoke to the gentlemen who was on crutches. The appellant could
not say who was driving when they went to sell
the chickens and that
she was unable describe him. Later in her cross-examination she
testified that it was the first time she
saw the three gentlemen,
that they were unknown to her.
[22]
Whilst they were selling chickens, two of the gentlemen were seated
in the front and one was seated with them on the
back of the bakkie.
When the three men entered the tavern they requested the children to
look after the remaining chickens
on the bakkie. After the three men
exited the tavern, two of them again got into the front of the bakkie
and the other one onto
the back.
[23]
In further cross-examination she testified that after they requested
permission to drive along to the shop, they were
between seven and
ten children who climbed onto the bakkie. She was asked where
she was seated and the following evidence
transpired:
“
MS
M[...]:
On this place whereunder there is a wheel.
MS
BANDA:
So inside the bakkie?
MS
M[...]:
On that very same thing.
MS
BANDA:
Okay, so it was never at
the edge of the bakkie?
MS
M[...]:
No.”
[24]
The appellant further explained that all seven to ten of them were
seated inside the goods compartment of the bakkie,
pressed against
each other.
[25]
The appellant again testified that the bakkie drove past the shop at
a high speed. They knocked on the window in an attempt
to alert the
driver to stop, but without success. They also tried to wake the
gentlemen up who was asleep on the back of the bakkie.
She explained
as follows:
“
MS
M[...]:
By the
time I stood up to try and wake this person up somebody then in the
process pushed me.
MS
BANDA:
Did somebody push
you from the vehicle and you testified you do not know who?
MS
M[...]:
Yes.”
[26]
She was confronted with the fact that the accident report states that
she jumped off a moving vehicle, whereupon the
appellant testified
that she did not jump off while the vehicle was in motion, she was
pushed.
[27]
The appellant further testified that the bakkie was driven at a
speed, but that she is unable to estimate the speed of
a car.
The following evidence followed:
“
MS
BANDA:
Okay, but what made you
notice, or see that this car is driving at a speed, what was
happening?
MS
M[...]:
If
a vehicle is at a speed and we are congested in the back of the
bakkie, it was also windy as the car was driving. You are panicking
because the car is now in a high speed.
MS
BANDA:
And
did you alert the driver maybe that you are going too fast?
MS
M[...]:
We
knocked continuously on the window as he had long passed the shop.
…
.
MS
BANDA:
Okay, but did you not think
it was dangerous to stand up when this vehicle was in motion?
MS
M[...]:
That never crossed my mind
because I was frightened, what I wanted to do was to wake this man up
so that we can climb off that vehicle,
that speeding vehicle.
MS
BANDA:
Okay, can you repeat that?
MS
M[...]:
I do not think that it was
dangerous because I was also frightened, what I wanted to do was to
wake this man up so that he stops
the people in the front there or
the driver.
MS
BANDA;
Okay, so this man did not
wake up?
MS
M[...]:
No. He never woke up.
MS
BANDA:
And
then what happened?
MS
M[...]:
Then somebody pushed me, in
the process somebody pushed me, and I fell.”
[28]
It was put to the appellant that the insured driver will testify that
there was no one on the back of the bakkie. The
appellant again
confirmed that they were on the back of the bakkie when he was
driving it. It was further put to her that
no one informed him
that there were people on the back of the bakkie. The appellant
responded that she told the man with
the crutches who was seated in
front with him in the bakkie.
[29]
It was also put to the appellant that according to the insured driver
he was not drinking on that day, but the appellant
again confirmed
that she saw him drinking Black Label at Ms S[...]’s parental
home. She further testified that although she
did not enter the
tavern, all three of the gentlemen were, according to her, drinking
in the tavern since they remained there for
quite a long time.
Mr
Kotoyi:
Evidence
in chief:
[30]
Mr Kotoyi testified that on 7 May 2017 he was the driver of a small
Nissan bakkie with registration number CKM […].
He
transported two gentlemen from Bainsvlei, Bloemfontein, to Soutpan,
which gentlemen were selling chickens. On their arrival
at
Soutpan they drove around selling chickens. The two gentlemen
knew people at Soutpan. After selling the chickens,
they went
to a certain house where they met with another male person whom the
other two gentlemen knew. They sat conversing
and one of the
two gentlemen who was with Mr Kotoyi, went out of the house to go and
buy two quarts of beer. According to
Mr Kotoyi he did not
consume alcohol on that day, he drank water. After the beer was
finished, one of the two gentlemen exited
the house saying that he
was going to sell some of those chickens “
to somebody else
outside there
”. He drove with the bakkie. He
took inordinately long and they sent some children to go and look for
him.
The children saw him at a tavern and told him that the
other two gentlemen wanted to leave. When he returned, they sat
and
conversed for about twenty to twenty-five minutes, after which
they greeted as they wanted to leave. When he was outside,
he
conversed with someone and after about five minutes his passengers
also got into the bakkie and they left. According to
Mr Kotoyi
he was the driver. They drove through the township in the
vicinity of the shops and the tavern, where after they
drove up to
the T-junction where the Soutpan road connected to the main road
between Bloemfontein and Bultfontein. After
they arrived at
Bloemfontein, they stopped at a filling station and someone called
one of his passengers and informed him that
they “
let a
child fall
”.
[31]
During his further evidence he testified that the streets in the area
of Soutpan were full of potholes and he drove at
an average speed of
between 60 and 65 kilometres per hour, trying to avoid the potholes.
When asked what was on the back
of the bakkie, Mr Kotoyi testified
that there were live chickens and a spare wheel. When asked
whether the bakkie had a canopy,
Mr Kotoyi testified that it did not
have a canopy.
[32]
When he was advised that Ms S[...] testified that they asked the
driver, Oupa, whether they will drop them off at the
shop and he
agreed to it. Mr Kotoyi testified that he was not told anything
to that effect and that he was the driver of
the bakkie. He is
not known as Oupa.
Cross-examination:
[33]
Mr Kotoyi testified that his eldest sister was the owner of the
bakkie and that she sent him to take the two gentlemen
to Soutpan on
that particular day. Mr Kotoyi repeated his evidence that they
drove around selling chickens, where after they
went to the home of
the people whom the two gentlemen knew. One of the gentlemen
who was with him, was indeed on crutches.
[34]
Mr Kotoyi testified that when they were about to leave, they exited
the gate and the two gentlemen conversed outside
the vehicle with the
male person from the house. Mr Kotoyi did not see any other
people. It was only the two gentlemen
who got into the bakkie.
The following evidence was then recorded:
“
MS
BALOYI:
I am not sure if my question, I
will repeat my question, would you see if there were people who
entered the vehicle, would you be
aware that there were people at the
back of the bakkie?
MR
KOTOYI:
Yes,
there were no people, I would see.
MS
BALOYI:
You
said it was dark, correct?
MR
KOTOYI:
When
I made mention of darkness it is illuminated in the township.
MS
BALOYI:
It
is what?
MR
KOTOYI:
Illuminated
the lights.
MR
KOTOYI:
There
are lights in the township… When you go outside there
are electric lights there, although it is dark where you
go outside…
When you exit the township it is only then that you will see that it
is dark, because you are now leaving the
lights behind.”
[35]
Mr Kotoyi further testified that when he exited the gate, he was on
the pavement next to the gate, whilst the other two
gentlemen were
busy exiting the gate. The two gentlemen then went around to
the back of the bakkie. The bakkie was
shaking a bit, as the
two gentlemen were leaning against the bakkie.
[36]
When he was asked how they were seated in the bakkie, Mr Kotoyi
testified that the two gentlemen sat next to him in the
front of the
bakkie.
[37]
I deem it necessary to also quote the following extracts from the
record:
“
MS
BALOYI:
Earlier you said because you
were selling chicken, I want to know were there still chicken left in
the bakkie or not?
MR
KOTOYI:
There
were a few of them left, we were turning back to Bainsvlei.
…
MR
KOTOYI:
There
were no cages at all there, there was grass that was spread on the
deck of the bakkie, they were loose.
MS
BALOYI:
When
you were selling chickens during the day how were you seated, were
you still three in the bakkie, or was there anyone sitting
at the
back?
MR
KOTOYI:
Two
in the front, one at the back.
MS
BOLOYI:
And
who was driving?
MR
KOTOYI:
I
was driving.
MS
BALOYI:
During
the day when you were selling chickens were there any children at the
back of the bakkie?
MR
KOTOYI:
I
was not aware whether there were children or not, but what was
obscuring my sight was the canvas, I could not see because of that
canvass, I could not see on the rear view mirror, because of the
canvas.
COURT:
Where was the canvas, was
it drawn over the bakkie, or where was it while you were selling the
chickens?
MR
KOTOYI:
We
thrust it inside there and tightened it M’Lord and then we
fastened it on those [intervenes].
COURT:
Clips on the bakkie?
MR
KOTOYI:
Clips,
yes.
COURT:
But what I want to know is
when you did that while you were selling the chickens, was the
seil
drawn over the back of the
bakkie or was the back of the bakkie therefore open?
MR
KOTOYI:
We
opened it that much M’Lord.
COURT:
You show about half a
metre?
…
MR
KOTOYI:
That
was the space for that other gentleman to put his feet in there and
sit on that part where was a stand.
…
MS
BALOYI:
So,
you were driving with the chickens the whole day covered by that
canvas?
MR
KOTOYI:
Yes.
MS
BALOYI:
I
just want to understand, now the gentleman who was sitting did he go
under, or did he cover, how did he sit, was he sitting at
the back,
was he sitting next, just behind the driver or where the passenger
sit, where was that person sitting?
MR
KOTOYI:
There
is a wheel, I could see he was sitting on the sides of the bakkie, I
could not see.
MS
BALOYI:
So,
meaning your visibility was obscured?
MR
KOTOYI:
I
could only see on the sides, there in the back I could not.
MS
BALOYI:
Now,
sir I put it to you sir that on the day the children were seated on
the back of the bakkie.
MR
KOTOYI:
Well,
I do not know where they climb from.
COURT:
No, the question is were
the children there or not, Ms Baloyi put it to you, in other words,
she says there were children at the
back.
MR
KOTOYI:
I
hear you are telling me that, but I did not see them.
MS
BALOYI:
It
was evidence of the two witnesses before court that one of the
gentlemen whose name is Oupa gave them permission to be in that
bakkie to sell chicken with them.
…
MR
KOTOYI:
I
hear you said that Oupa said that they must sell the chickens with
them which is what I do not know.
MS
BALOYI:
So,
you do not know if Oupa gave them permission or not?
MR
KOTOYI:
I
do not know even if they were there or not.
…
MS
BALOYI:
When
they left the place where the two gentlemen were behind him now…
just clarify when the two gentlemen entered the motor
vehicle could
you see at the back of the bakkie?
MR
KOTOYI:
As
I indicated to court I could only see on the sides, now that which
was directly behind the bakkie I would not see.
COURT:
At the time you dropped out
of the township, that is what Ms Baloyi wants to know?
MR
KOTOYI:
When
we were driving away, yes, I could see on the sides when we drove
out.
COURT:
Where was the canvas at
that stage?
MR
KOTOYI:
The
canvas was at the back of the bakkie, because it was meant to
[intervenes].
…
MR
KOTOYI:
When
he arrived with this bakkie as they were wanted… As we were
seeking this person… He had drawn the cover so that
the
chickens must not get out.
COURT:
When you say drawn the
canvas what do you mean by that?
MR
KOTOYI:
He
had closed the canvas so that the chickens must not go out, as I
already indicated to court that they were going around with
the
bakkie leaning against it, they were conversing until they got in.
…
MS
BALOYI:
And
you could not see if there people at the back of the bakkie or not?
MR
KOTOYI:
Yes,
I would not see if they were coming directly behind the bakkie but on
the sides I could see, the sides of the bakkie I could
see.
MS
BALOYI:
Mr
Kotoyi, I put it to you that the two witnesses testified before court
that they asked one of the gentlemen Oupa for a lift to
drop at a
nearby store, and Oupa gave them permission.
…
MR
KOTOYI:
I
already told the court that Oupa did not tell me anything.
…
MS
BALOYI:
Now,
as you are driving could you see through your mirror, could you
observe at the back through your mirror, could you see clearly
on the
moonlight?
MR
KOTOYI:
As
we were exiting as we were getting away you could see on the sides of
the bakkie, but not directly at the back of the bakkie.”
Re-examination:
[38]
During re-examination the following evidence was extracted:
“
MS
BANDA:
As the
seil
was covering the chickens, when you were driving could
you see what is happening in the rear view mirror?
MR
KOTOYI:
As
I indicated to the Court, I could only see by virtue of the side of
the side mirrors.
COURT:
Does the car have a rear
mirror in the car?
MR
KOTOYI:
Yes
there is a rear view mirror, it has a rear view mirror.
COURT:
And that is the question,
could you see at the back by looking at the rear view mirror?
MR
KOTOYI:
I
could not see by virtue of rear view mirror M’Lord, because the
canvas was fastened to the sides of the bakkie and I could
not see
because it was obscuring the mirror, the rear view mirror.
MS
BANDA:
So,
this canvas was it something high, higher than the size of the
bakkie?
MR
KOTOYI:
It
is level with the top of the bakkie.
MS
BANDA:
With
the top, top of the bakkie or with the roof of the bakkie?
MR
KOTOYI:
The
roof of the bakkie.
MS
BANDA:
It
was level with the roof of the bakkie?
MR
KOTOYI:
That
is correct.
MS
BANDA:
So
you could not see anything whatsoever?
MR
KOTOYI:
The
inside of the bakkie was not visible to me, I could only see the
sides of the bakkie.
MS
BANDA:
Yes,
I can understand you could only see the sides, but does that mean
that canvas was just as tall as the roof of the bakkie, from
your
rear view mirror inside the window of your bakkie you could not see
anything?
MR
KOTOYI:
Yes,
it was indeed like that.”
[39]
Ms Banda enquired from Mr Kotoyi whether the canvas covered the rear
of the bakkie. The following evidence followed:
“
MR
KOTOYI:
When we went out it was covered.
MS
BANDA:
So,
no one could come in and sit there?
MR
KOTOYI:
There
would not be anyone unless someone opens for them to sit there in the
back.
MS
BANDA:
And
according to your knowledge no one opened that
seil
when you were leaving,
according to you?
MR
KOTOYI:
I
was not the person who opened the
seil
.
MS
BANDA:
No
one says someone opened the
seil
.
I am saying according to you there was no one that could open the
seil
and get in because it was
covered, there was no space for anyone else?
MR
KOTOYI:
Yes,
I agree.”
Findings
by the court
a quo
:
[40]
The court
a quo
made,
inter alia
, the following
findings:
“
[16]
I am faced with two irreconcilable versions. The manner in
which such factual disputes are generally resolved has been
set out
in
Stellenbosch Farmers’ Winery v
Matell
.
…
[17]
The plaintiff tendered three different versions on how the incident
happened. First, the particulars of claim state
that T[...]
fell out of the moving bakkie. Second, T[...] and T[...]2
testified that the former was pushed off the bakkie.
In the
accident report it is stated that she jumped off the bakkie.
[18]
There no sensible reason why the insured driver would have refused to
stop for them to alight. It is highly improbable
that all the
other children would have jumped off the moving bakkie without any of
them sustaining serious injuries. On the
insured driver’s
version there were live chickens in the goods compartment it would
not make sense to keep the chickens in
an uncovered compartment.
It is obvious that some if not all of them would have flown out of
the compartment, as they were
not in a chicken coop.
[19]
The danger of suggestions having been made to the children is also a
reality in this matter. T[...]2 denied mentioning
the insured
driver`s name to the person who took her statement. Both of them
testified that they were between seven and ten children
on the
bakkie. T[...]2 initially testified as if she had seen who pushed
T[...], in cross-examination she testified that she subsequently
heard that she was pushed. Strangely, she does not know or enquired
as to who pushed T[...]. Although it is difficult to estimate
the
speed at which a car is travelling, it is clear that T[…]2 was
exaggerating.
[20]
The insured driver’s version is simple and straightforward.
There was no one in the compartment that he was
aware of. His
version is not improbable.
[21]
In my view, it is probable that T[...] alone or with T[…]2
clandestinely got onto the bakkie and T[...] fell off
the moving
bakkie. That explains why the insured driver was not aware of her or
them and while they could not give a coherent account
of how T[...]
sustained her injuries. Regard being had to the probabilities
and the fact that the plaintiff bears the onus,
I cannot find on a
balance of probabilities that T[...]’s injuries are due to the
insured driver’s negligence or other
wrongful act.”
Notice
of appeal:
[41]
In the notice of appeal the grounds of appeal are set out to be the
following:
“
3.1
the finding that the child or children on the back of the LDV (prior
to the injury-causing event) had hidden in the load
bay, is
erroneous;
3.2
the finding that the driver of the LDV were unaware of their
presence, is erroneous;
3.3
a credibility finding against the insured driver should have been
made (on account of his contradictory version
as to the sequence of
events and his involvement on that day);
3.4
a finding should have been made that the version testified to by the
appellant and her witness was more probable
and established the
appellant’s case on a balance of probabilities;
3.5
the approaching of the matter as a matter that had mutually
destructive versions, was erroneous (all the evidence
in the general
scheme of things should have been evaluated with application of the
principles espoused in
National Employers General Insurance
Company Ltd v Jagers
1984 (4) SA 437
(E), and
Selamolela &
Makhado
1988 (2) SA 372
(V)).”
General
legal principles:
[42]
The court
a quo
had to determine whether the appellant
discharged her onus to prove her case on a balance of probabilities.
[43]
The court
a quo
correctly stated that the case consists of two
irreconcilable versions; hence, mutually destructive versions in the
sense that the
acceptance of the one must necessarily lead to the
rejection of the other. In
National Employers` General
Insurance Co Ltd
1984 (4) SA 437
(E) at 440 D – 441 A,
the following applicable principles are stated:
“
It
seems to me, with respect, that 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.
In a civil case the
onus
is
obviously not as heavy as it is in a criminal case, but nevertheless
where the
onus
rests
on the plaintiff as in the present case, and where there are two
mutually destructive stories, he can only succeed if
he satisfies the
Court on a preponderance of probabilities that his version is true
and accurate and therefore acceptable, and
that the other version
advanced by the defendant is therefore false or mistaken and falls to
be rejected. In deciding whether that
evidence is true or not
the Court will weigh up and test the plaintiff's allegations
against the general probabilities. The
estimate of the credibility of
a witness will therefore be inextricably bound up with a
consideration of the probabilities of the
case and, if the balance of
probabilities favours the plaintiff, then the Court will accept his
version as being probably true.
If however the probabilities are
evenly balanced in the sense that they do not favour the plaintiff's
case any more than they do the
defendant's, the plaintiff can
only succeed if the Court nevertheless believes him and is satisfied
that his evidence is true and
that the defendant's version is false.
This
view seems to me to be in general accordance with the views expressed
by COETZEE J in
Koster Ko-operatiewe Landboumaatskappy
Bpk v Suid-Afrikaanse Spoorweë en Hawens (supra
and
African
Eagle Assurance Co Ltd v Cainer (supra
). I would merely stress
however that when in such circumstances one talks about a plaintiff
having discharged the
onus
which rested upon him on
a balance of probabilities one really means that the Court is
satisfied on a balance of probabilities
that he was telling the truth
and that his version was therefore acceptable. It does not seem to me
to be desirable for a Court
first to consider the question of the
credibility of the witnesses as the trial Judge did in the present
case, and then, having
concluded that enquiry, to consider the
probabilities of the case, as though the two aspects constitute
separate fields of enquiry.
In fact, as I have pointed out, it is
only where a consideration of the probabilities fails to indicate
where the truth probably
lies, that recourse is had to an estimate of
relative credibility apart from the probabilities.”
[44]
The consequences of a failure to cross-examine are set out, with
reference to relevant authority, in
LAW OF EVIDENCE
,
CHW Schmidt
et
H Rademeyer, May 2024 – SI
22, Page 9-72
at paragraph 9.2.4.2.6:
Failure
to cross-examine a witness about an aspect of his evidence may have
the result that the evidence may not be called into
question later.
The cross-examiner who intends to dispute what the witness says has a
duty to give him an opportunity to explain
his evidence or to qualify
it, or to properly reveal its basis to the court. Failure to do so
has been dubbed extremely unfair
and improper. Apart from the
injustice to the witness, failure to cross-examine may indicate
acceptance, comparable with an admission
by silence. From this point
of view such evidence will carry more weight than evidence disputed
by means of cross–examination,
so that failure to cross-examine
will then be seen as a factor increasing evidential value. A
cross-examiner is also duty-bound
to clearly put his defence on each
and every aspect which he or she wishes to place in issue, to the
witness implicating his client.
The
merits of the appeal:
Evaluation
of the evidence:
[45]
Like I have indicated earlier in this judgment, the outcome of the
appeal is to be determined upon a proper consideration
and evaluation
of the factual evidence presented in this matter.
[46]
The crux of the defendant`s defence, namely that there was nobody on
the back of the bakkie; alternatively, that Mr Kotoyi
was unaware of
the presence of anybody on the back of the bakkie, was never put to
Ms S[...]. That was for the first time put to
the appellant.
[47]
The version of Ms S[...] and the appellant differ substantially from
that of Mr Kotoyi in respect of the selling of the
chickens. Despite
this, their version was never denied in cross-examination. Mr
Kotoyi`s version was also never put to either Ms
S[...] or the
appellant. According to Ms S[...] and the appellant, all three the
gentlemen went from Ms S[...]`s family home into
the township to sell
chickens, the children asked permission from the one gentlemen to
join them to help with the selling of the
chickens and they (seven to
ten children) accompanied the men by riding on the back of the
bakkie. From selling the chickens on
their way back to the home of
S[...]`s family, they stopped at a tavern, told the children to watch
the chickens which had not
been sold and which were still on the back
of the bakkie and then went into the tavern, where they spent quite
some time and, according
to the appellant, came out with three quarts
of beer. According to Mr Kotoyi only one of the three gentlemen
went from the
family home of Ms S[...] to the township to sell
chickens, where that gentleman, on his own, visited the tavern. Mr
Kotoyi and
the second gentlemen on the crutches remained at the
family home of Ms S[...]. Some children were sent to call that
gentlemen back
to the house when they wanted to return to
Bloemfontein and they found him at the tavern. By clear implication
it is the respondent`s
version that no children accompanied the
gentleman who went to sell chickens in the township.
[48]
The respondent abided in the general proposition that Mr Kotoyi had
no alcohol to drink on the day of the incident. Despite
this, nowhere
in the cross-examination of Ms S[...] was her detailed account of Mr
Kotoyi also drinking at her family home, put
in dispute. It was only
belatedly put to the appellant when she testified that Mr Kotoyi
drank Black Label beer at the family home
of Ms S[...]. The version
of Ms S[...] and the appellant that Mr Kotoyi also attended the
tavern and that all three gentlemen remained
there for quite a long
time and exited with three quarts of beer, was also never disputed.
It was only during Mr Kotoyi`s own evidence
that he testified that he
remained at the family home of Ms S[…] and never went to the
tavern.
[49]
Ms S[...] testified during her cross-examination that when they went
to sell the chickens, there were two
people seated in the front of
the bakkie and about seven people on the back of the bakkie. By
implication this means that one of
the three gentlemen must also have
been seated on the back of the bakkie. The appellant pertinently
testified that whilst they
were selling the chickens, two of the
gentlemen were seated in front and one was seated with them on the
back of the bakkie. Mr
Kotoyi, during his cross-examination, also
testified that one of the three gentlemen was sitting on the back of
the bakkie when
they were selling chickens (on his version that the
three of them went selling chickens in the township before they went
to the
family home of Ms S[...]). The question that begs an answer is
how Ms S[...] and the appellant would have known that one of the
men
sat on the back of the bakkie during the selling of the chickens if
they had not accompanied the three men on the excursion
as described
by Ms S[...] and the appellant. Therein lies a guarantee of the truth
of their version.
[50]
I find a further guarantee in the truth of their version in a small
piece of detailed evidence to which both Ms S[...]
and the plaintiff
testified. They both testified that when the three men parked at the
tavern they requested Ms S[...] and the
appellant to look after the
remaining chickens. The presence of such an otherwise insignificant
piece of evidence in the evidence
of both Ms S[...] and the
appellant, is, in my view, not to be expected had their version been
a concocted story which they made
up.
[51]
The thrust of the respondent`s version eventually turned out to
revolve around the canvas which was allegedly over the
load bay of
the bakkie. In this regard I need to raise the following
unsatisfactory and questionable aspects of this evidence:
1.
The alleged presence of the canvas and that it obscured the view of
Mr Kotoyi, were never put to Ms S[...]
nor the appellant. Mr Kotoyi
did also not testify about it in his evidence in chief. It was for
the first time raised in the cross-examination
of Mr Kotoyi.
2.
As already pointed out earlier, the version of Ms S[...] and the
appellant that they and other children
accompanied the three
gentlemen to help them to sell the chickens, was never denied in
cross-examination. It was also never put
to them that they would not
have been able to climb onto the bakkie and would not have fitted on
the bakkie due to the alleged
existence of the canvas. It was also
not put to them that Mr Kotoyi would not have known about their
presence on the back of the
bakkie because of the presence of the
canvas.
3.
Moreover, it was only in the re-examination of Mr Kotoyi that the
version that the canvas was allegedly
the same height as the roof of
the bakkie, came to light. It is, in my view, evident from the record
that the legal representative
on behalf of the respondent at the
time, was also surprised by this evidence and raised further
questions in an attempt to get
clarity.
4.
On the one hand it is the version of Mr Kotoyi that the canvas was
the same height as the roof of the
bakkie, but on the other hand he
responded to questions posed by the court
a
quo
to him that the canvas was fastened to
the clips in the bakkie. Such clips, according to his evidence in
re-examination, were on
the sides of the bakkie, which would have
resulted in the canvas only being the height of the load bay of the
bakkie, which contradicts
the version of Mr Kotoyi.
5.
Ms S[...] was pertinently asked during cross-examination whether the
bakkie had a canopy, to which she
responded in the negative. Had
the legal representative on behalf of the respondent at that stage
already knew about the
version of Mr Kotoyi in respect of the
canvass, one would have expected that it would have been put to Ms
S[...], since, according
to the description of Mr Kotoyi, the canvas
was similar to having a canopy on the bakkie. Mr Kotoyi similarly
responded in the
negative during his evidence in chief when
pertinently asked whether the bakkie had a canopy. Once again, one
would have expected
that he would have responded with a reference to
the presence of the canvas, but still no such evidence was
forthcoming in his
evidence in chief.
6.
It was the appellant`s version that she was pushed off the bakkie
when she stood up from where she was
seated in order to wake the
gentleman who was asleep on the back of the bakkie. If a canvas was
coring the load bay of the bakkie
at the height of the roof of the
bakkie, the appellant would not have been able to stand up, as the
“roof” of the canvas
would have been too low for her to
do so. However, her version in this regard was never specifically
challenged.
7.
If the canvas was as high as the roof of the
bakkie, fastened to the clips of the bakkie and “
drawn”
closed at the back of the bakkie so that the chickens
could not get out, as explained by Mr Kotoyi, the appellant would not
have
fallen off the bakkie, since the canvas would have prevented her
fall.
8.
Mr Kotoyi testified in his evidence in chief that
although the bakkie had a rear view mirror, the canvas obscured
his
view with his rear view mirror and he could not see what was directly
behind the bakkie, he could only see the sides of the
bakkie by means
of his side mirrors. During the re-examination of Mr Kotoyi he
specifically testified that “
the inside
of the bakkie was not visible to me”
,
which I understand to mean that Mr Kotoyi could not see in the load
bay of the bakkie. However, during the cross-examination of
Ms S[...]
testified, in response to a question from the legal representative of
the respondent, that she could see through the
rear window inside the
bakkie and she described how she saw that the two gentlemen in the
bakkie did not look backwards as a result
of the children knocking on
the rear window of the bakkie, they just looked forward. This
evidence of Ms S[...] was never challenged
or denied. If the
unchallenged evidence of Ms S[...] is to be accepted, there could not
have been anything that prevented Mr Kotoyi
to have been able to see
in the load bay of the bakkie by means of his rear view mirror.
9.
Both Ms S[...] and the appellant testified how the bakkie drove past
the shop at a high speed. They were
never questioned on this part of
their evidence. Ms S[...] also testified that she could “
see”
that the bakkie was driving at a high speed. The
appellant testified in cross-examination that it was windy on the
back of the bakkie
since the bakkie was driving at a high speed. In
my view the aforesaid observations by the two witnesses would not
have been possible
if the load bay of the bakkie was enclosed by a
canvass as described by Mr Kotoyi. Their evidence that the bakkie was
speeding
was never denied in cross-examination. In fact, according to
Mr Kotoyi`s own version he was driving above the speed limit.
The
court a quo`s
evaluation of the evidence:
[52]
The court
a quo
made much of the differences between having
fallen out of the moving bakkie, having been pushed off the bakkie or
having jumped
off the bakkie. The version of both Ms S[...] is that
the appellant was pushed off the bakkie, which caused her to fall off
the
bakkie, which are similar concepts. One has to be mindful of the
fact that the appellant`s two witnesses testified that they were
cramped in on the bakkie, pressing against one another and that a
commotion developed when the bakkie did not stop at the shop.
Therefore, in my view, “pushed off” “fell off”
could also mean that she was bumped or nudged off by one
or more of
the other children in the process of the commotion. It is neither
here nor there – it does not negatively reflect
on the
credibility of Ms S[...] and the appellant. With regard to the
version contained in the accident report, there is no evidence
as to
who provided that version. In this regard Ms S[...] testified that
after the appellant fell, she
was not the normal T[...] I knew”
and an ambulance was summoned. It can therefore not merely be
accepted that the appellant was the author of that version. In any
event, the exact mechanism of the event need not be established. The
fact of the matter is that, on the appellant`s version, it
was
connected to the negligence of Mr Kotoyi. See
Minister of
Safety and Security
2009 (4) SA 213
(E).
[53]
When the court
a quo’s
determination of the credibility
of the respective witnesses and the probabilities, is, with respect,
patently wrong. The court
a quo
failed to properly and fully
evaluate the totality of the evidence. It merely referred to extracts
from the evidence and based its
findings thereon. With regard to the
evidence of Mr Kotoyi, the court
a quo
did not even deal with
his version, but made an unsubstantiated finding that his version was
“
straightforward”
and “
not improbable”.
In the circumstances we, as a court of appeal, are at liberty to
depart from the court
a quo`s
findings of fact and
credibility. See
S v Leve
2011 (1) SACR 87
(ECG) at
para [8].
[54]
The court
a quo
, in my view, correctly found, contrary to the
initial version of Mr Kotoyi, that the appellant was on the back of
the bakkie and
fell from the moving bakkie. However, in view of the
totality of the evidence, the court
a quo
erred in finding
that the appellant “
alone or with”
Ms S[...]
“
clandestinely got onto the bakkie
”.
Conclusion
regarding the evaluation of the evidence:
[55]
In my view the appellant and Ms S[...] gave a full and detailed
factual account of their version of events on the day
of the
incident. Their respective versions corresponded in all material
respects. They did not contradict themselves, nor did they
contradict
each other. Considering my evaluation of the evidence set out above,
their version, in my view, also corresponds with
the probabilities.
[56]
The respondent`s case started off with Mr Kotoyi`s version as being
one of denial of the fact that the children were
on the bakkie. It
developed into a version that he does not know whether they were on
the bakkie or not and if they were, he was
not informed accordingly
and he was unaware that they were there.
[57]
The court
a quo
found, in my view correctly so, that the
appellant was on the back of the bakkie and that she fell off the
moving bakkie. However,
on the totality of the evidence the court
a
quo
should have found that Ms S[...] and the other children were
also on the back of the bakkie, considering the explanations how they
were all squeezed in on the small bakkie and the commotion which
developed. The court
a quo
stated at paragraph [14] of its
judgment that Ms S[...] did not make mention that one of the three
gentlemen was also on the back
of the bakkie with them, sleeping, as
testified by the appellant. This is with respect, not correct. Ms
S[...] specifically testified
during cross-examination that one of
the three gentlemen was seated on the back of the bakkie with them.
This detail, in my view,
gives a guarantee of truth to Ms S[...]`s
version that she was also on the back of the bakkie.
[58]
In my view the first crack in the version and credibility of Mr
Kotoyi, was the failure to have denied the version of
Ms S[...] and
the appellant regarding their excursion to go and help sell chickens
in the township, the fact that the permission
of one of the three
gentlemen was asked and granted to accompany them, the fact all three
gentlemen went with and that they stopped
at a tavern on their return
before they went back to the family home of Ms S[...] and probably
consumed alcohol there. Even if
it was not the driver`s permission
which was asked, on the version of Ms S[...] and the appellant they
had permission to go along
and therefore, according to me, they had
no reason to have hidden themselves on the bakkie. This excursion
happened in broad daylight
and happened in circumstances where the
children were even asked to look after the chickens at the tavern.
Therefore, on probabilities,
Mr Kotoyi would have been aware of their
presence on the bakkie.
[59]
The second crack in the version and credibility of Mr Kotoyi was the
failure to have raised the alleged presence of the
canvas right from
the outset when Ms S[...] and the appellant testified. As
previously indicated, it was not even raised
during the evidence in
chief of Mr Kotoyi. Considering the totality of the evidence and the
probabilities, and my evaluation thereof,
I cannot accept Mr Kotoyi`s
evidence in this regard. Although I accept that there probably was
some form of canvas which was used
to cover or to be thrown over the
chickens, I cannot accept the version of Mr Kotoyi regarding the
nature and extent thereof. In
response to questions by the court
a
quo
at the beginning of the evidence regarding the canvas
,
the following questions was elicited:
“
COURT:
Where was the
canvas, was it drawn over the bakkie, or where was it while you were
selling the chickens?
MR
KOTOYI:
We
thrust it inside
there and tightened it
M’Lord and then we fastened it on those clips [intervenes]
COURT:
Clips on the bakkie?
MR
KOTOYI:
Clips,
yes.” (My emphasis)
he
aforesaid evidence gives the impression that the canvas was rather
pushed inside the load bay than pulled over it like Mr Kotoyi
later
on described. That also corresponds with the evidence of Ms S[...],
which was never challenged, that she was able to see
through the rear
window into the front of the bakkie where two of the three gentlemen
were seated.
[60]
The third crack in the version and credibility of Mr Kotoyi, was the
failure to have challenged and denied the version
of Ms S[...] and
the appellant has to how they asked permission to drive along to the
shop, albeit such permission may not have
been asked from the driver
as such. The fact is that they did ask permission and therefore had
no reason to have hidden themselves
or to have clandestinely climbed
onto the bakkie. In fact, the evidence of Ms S[...] and the appellant
was that although some of
the children remained on the bakkie after
the chicken selling excursion, Ms S[...], the appellant and some of
the children got
off the bakkie were standing away from the bakkie
when they asked for permission to ride along to the shop. That was at
a stage
when the whole group of people was walking to the bakkie to
leave. On Mr Kotoyi`s own version he greeted S[...]`s uncle at the
gate where the bakkie was parked and the other two gentlemen were
standing at the back of the bakkie, greeting Ms S[...]`s uncle.
On Mr
Kotoyi`s own version the area was well lit and there was illumination
form the point where they left. It is highly improbable,
to the
extent that it is impossible, that the children asked permission and
got onto the back of the bakkie without Mr Kotoyi knowing
of their
presence and seeing them on the back of the bakkie.
[61]
With knowledge of the appellant and the other children on the back of
the bakkie, Mr Kotoyi had a duty of care towards
them in his driving
of the bakkie. See
HT Madonsela obo LCM v Road
Accident Fund
(48139/17 [2019] ZAGPPHC (8 August 2022).
[62]
In the present matter, where the appellant was a passenger, only 1%
negligence on the side of the insured driver need
to be proved by the
appellant. In
Amanda Gumede v ROAD Accident Fund
(49209)
[2017] ZAGPPHC 568 (24 August 2021) the following is stated in this
regard:
[24]
In so far as conduct is concerned, it is common cause that the
insured driver was driving a motor vehicle wherein the minor
was
seated in the back of the motor vehicle with several other students.
It is also common cause that the insured driver was trying
to avoid a
truck when his motor vehicle capsized and turned on its size. It is
the defendant’s case that the insured driver
lost control of
the vehicle and the vehicle overturned. I find in so far as the
conduct is concerned, the probabilities favour
the plaintiff.
…
[
26] When
it comes to the issue of fault all the plaintiff has to prove is a
proverbial one percenter for the plaintiff
to be successful. Counsel
for the plaintiff referred me to
Groenewald
v Road Accident Fund
where
it was stated
.
‘
It
is trite that the plaintiff, as a passenger claimant, need to prove
only 1% negligence on the part of the insured driver in order
to
succeed with her claim against the defendant. ……. The
tendency on the part of the defendant in not conceding merits
well in
advance in matters where the plaintiff need only prove 1% is mind
boggling, if it is not a deliberate stratagem to unnecessarily
inflate litigation costs. Such conduct needs to be depreciated in the
severest measures.’”
[63]
In the present matter Mr Kotoyi, with the knowledge of the appellant
and the other children on the back of the bakkie,
drove too fast in
the prevailing circumstances when exiting the town and dodging
potholes. He may or may not have forgotten to
drop off the children
at the shop, because of the alcohol he consumed, or due to a
different reason, which is not necessary to
determine. The fact is
that the appellant fell of the bakkie as a result of his negligent
driving of the bakkie in the circumstances,
which negligence caused
the injuries which the appellant suffered.
[64]
The appeal should consequently succeed.
Order:
[65]
The following order is made:
1.
The appeal succeeds, with
costs.
2.
The order of the court
a
quo
is
set aside and substituted with the following order:
“
1.
The defendant is held liable for 100% of the plaintiff’s agreed
or proven damages.
2.
The defendant is ordered to pay the costs of the action to date.”
C.
VAN ZYL, J
I
concur:
N.S.
DANISO, J
On
behalf of Appellant:
Adv
JO Williams SC
Instructed
by:
SB
Seshibe Attorneys
c/o
MM Hattingh Inc.
BLOEMFONTEIN
E-mail:
brian@sbseshibeincattorneys.co.za
On
behalf of Respondent
Adv
NM Bahlekazi
Instructed
by:
Office
of the State Attorney
BLOEMFONTEIN
E
-mail:
portiab@raf.co.za