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2024
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[2024] ZAECMKHC 80
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Schade v Road Accident Fund (2198/2020) [2024] ZAECMKHC 80 (30 July 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, MAKHANDA)
NOT
REPORTABLE
Case
no: 2198/2020
In
the matter between:
IVAN
SCHADE
Plaintiff
and
ROAD
ACCIDENT FUND
Defendant
JUDGMENT
GQAMANA J
[1]
This case involves a collision between two vehicles on 25th May 2017,
on the T23 national road between Flagstaff and Holly Cross.
The
plaintiff was the driver of one of the vehicles, a Toyota bakkie with
the registration numbers and letters [HRN ……
EC] and Mr
Lufefe Ntsenyana, was the driver of the insured vehicle, a Nissan
bakkie with the registration numbers and letters [ND
…..] (the
insured vehicle). The plaintiff now sues the Road Accident Fund, (the
defendant) for damages in respect of the
bodily injuries he sustained
on the basis that the collision was caused by the negligent driving
of the driver of the insured vehicle.
[2]
The defendant has denied that the insured driver was negligent and
consequently denied liability.
[3]
At the commencement of trial, I granted an order separating merits
and quantum in terms of Rule 33(4) and the trial proceeded
only in
respect of the determination of liability. The plaintiff submitted a
trial bundle which was marked exhibit A.
[4]
Before I proceed to analyse and evaluate the evidence adduced, I must
mention the following common cause facts: that a collision
occurred
on the day in question between the plaintiff’s vehicle and the
insured vehicle. The collision occurred during daytime
and on a clear
day. Both vehicles were travelling on the same direction from
Flagstaff towards Holly Cross. The roadway where the
collision
occurred is a tarred road with two lanes in opposite directions. The
road surface is dissected by a broken white line
and adjacent to it
on both sides is a reserve section.
[5]
In order to prove his case, the plaintiff testified and adduced
evidence of his colleague, Mr Eduard Potgieter (
Potgieter
). On
the plaintiff’s version, he was travelling from Flagstaff
towards Holly Cross region with his bakkie on his way to a
site
visit. He had no passengers in his bakkie. The time was approximately
14h00. There was a bakkie travelling ahead of him. This
bakkie
stopped, half over the yellow line in front of his vehicle. He
noticed that there were school children getting out of this
bakkie.
To avoid a collision with it, he then moved slightly closer to the
middle line, and he did not cross over the middle line.
He was
driving at a speed of 80km/hour. The insured vehicle came from his
right- hand side and the plaintiff served out, but the
insured
vehicle bumped the plaintiff’s vehicle from the right rear
fender behind the back wheel. He did not see the insured
vehicle
before the collision, but he assumed that it was behind him. Both
vehicles ended up in a ditch on the right- hand side
out of the
roadway. The damages to the plaintiff’s vehicle are evident in
photograph 8 of exhibit A. It was put to the plaintiff
in
cross-examination that while overtaking the stationery bakkie which
was dropping the school children, he moved and encroached
onto the
insured vehicle lane without indicating and without a proper lookout.
That proposition was denied by the plaintiff.
[6]
Shortly after the collision the plaintiff got out of his vehicle and
noticed that the insured driver was alone in the insured
vehicle.
However, there were other members of the public in the vicinity.
Within 20 or 30 seconds after the collision, his colleague
Potgieter
arrived at the scene. An argument between the plaintiff and the
insured driver. Each one was imputing fault on the other
as the sole
cause of the collision. In cross-examination, it was put to the
plaintiff that the insured driver would testify that
the plaintiff
admitted that he was the sole cause of the collision and had
apologised to the insured driver. The plaintiff denied
that.
[7]
The other members of the public who were nearby came to the scene.
The plaintiff took out his diary and asked the insured driver
for his
personal details including his driver’s license. The insured
driver did not supply him with the requested information,
instead an
unknown male person grabbed the plaintiff’s diary and wrote an
identity number, a name and surname, a residential
address, two
cellphone numbers and the license number. The plaintiff only learned
during this trial that he was misled about the
details of the insured
driver. After his bakkie was towed out of the ditch, the plaintiff
went to Flagstaff police station to report
the accident. He gave the
details of the driver of the insured vehicle to the police based on
the information which was written
in his diary as indicated above.
The name of the driver of the insured vehicle as given to him was
“
Asanda Sipho Ngozi”.
The insured driver did not
accompany him nor reported the accident to the police.
[8]
Months later, the plaintiff received WhatsApp and SMS threats from an
unknown cellphone number that he must pay for the repairs
of the
damages of the insured vehicle.
[9]
The next witness was
Potgieter.
He testified that he works
with the plaintiff at Northern Construction Company. On the day in
question, he was driving his vehicle
at approximately 50 meters
behind the plaintiff’s vehicle. In front of the plaintiff’s
vehicle, there was a Hyundai
bakkie. The insured vehicle overtook him
at high speed and remained on the right-hand lane. The bakkie which
was in front of the
plaintiff’s vehicle stopped, with two of
the wheels in the reserve section and two wheels in the lane of
travel. The plaintiff
served and moved closer to the middle line to
avoid the collision. He stopped his vehicle and noticed that the
damages on the plaintiff’s
vehicle were on the rear right side,
and the damages to the insured vehicle were on the left front. He was
cross- examined at length
on the position of the damages to the
plaintiff’s vehicle, the relevance of the point of impact is
key to the defendant’s
defense and I deal with that later in
this judgment.
Potgieter
further testified that there was an
argument between the plaintiff and the insured driver and that there
was a crowd that started
to build up. He phoned one of his colleagues
to come to the scene with a grader to pull out both vehicles from the
ditch. The plaintiff
thereafter closed his case.
[10]
Counsel for the defendant at her opening statement she said the
following:
“
M’Lord,
the defendant would like to call the insured driver. The defendant
will bear calling two witnesses in this matter.
The insured driver
and a witness who had also witnessed the accident”.
However,
only the insured driver was called as a witness. As to what happened
to the second witness remains a mystery, even though
he was available
and had attended court throughout the trial proceedings.
[11]
The witness called by the defendant was Mr Lufefe Ntsenyana, the
insured driver. In summary his evidence was that, on the day
in
question he was driving the insured vehicle coming from work and he
had just dropped his friend Mr Asanda Ngozi (referred hereinafter
as
Ngozi).
There
were two vehicles ahead of him and one of these vehicles was the
plaintiff’s bakkie. The other vehicle stopped far off
the road
and the driver thereof was busy assisting the children to cross over
the road. The insured driver was alone in the insured
vehicle,
contrary to the content of his affidavit
[1]
filed in court by the defendant, that he had a passenger with him.
The plaintiff’s vehicle was at approximately 100m ahead
of the
insured vehicle and driving slowly. He noticed that the plaintiff was
on his cellphone. He decided to overtake the plaintiff’s
vehicle. He was driving at a speed of 80km/h. He switched on his
indicator signaling his intention to overtake and he moved to
the
right-hand lane. When the front nose of his vehicle was parallel to
the back of the plaintiff’s vehicle, the latter moved
from his
side to the side of the insured vehicle, and it then that the
collision occurred. The insured driver had served out to
avoid the
collision, but it was too late. The plaintiff’s vehicle
collided with the insured vehicle on the left side. Both
vehicles
lost control and ended up in the ditch on the right-hand side of the
road. The insured driver did not apply brakes to
avoid the collision
because there was no opportunity to do so, as everything happened
quickly. The insured driver testified that
his driver’s license
as was suspended because he was caught driving at a high speed of
280km/h at Johannesburg, and as such
at the time of the collision
herein he had no valid driver’s license and was not allowed to
drive a vehicle.
[12]
From the start of the cross-examination the contradictions and
inconsistencies between his oral evidence and the content of
his
affidavit
[2]
as well the affidavits of
Ngozi
and Majola
were
exposed. The insured driver maintained his version that he was alone
in the insured vehicle at the time of the collision. Further-on
and
for the first time in cross-examination the insured driver testified
that the collision happened as the plaintiff attempted
to execute a
right-hand turn in the direction of the school. That version is not
only inconsistent with his evidence in chief of
how the collision
occurred but it was neither put to the plaintiff nor his witness.
Cross-examination further exposed that the
insured driver’s
version does not tally up with the damages to the plaintiff’s
vehicle which were on the rear right-hand
side as depicted on the
photographs. In addition, the insured driver’s version that the
plaintiff was on his cellphone was
never put to the latter.
[13]
The insured driver also denied that
Potgieter
witnessed the
accident. In his version
Potgieter
was driving ahead of the
plaintiff and he only arrived at the scene approximately 15 to
minutes after the collision. Again,
Potgieter’s
version
that he was driving behind the plaintiff’s vehicle was not
challenged.
[14]
From the evidence at my disposal, clearly there are two mutually
destructive versions of how the accident happened. The approach
of
the court when faced with two mutually destructive and irreconcilable
versions is set out in
Stellenbosch
Farmers’ Winery v Martel et Cie and Others
[3]
that:
“
To
come to a conclusions on the disputed issues a Court must make
findings on (a) the credibility of the various factual witnesses;
(b)
their reliability; and (c) the probabilities. As to (a), the court’s
finding on the credibility of a particular witness
will depend on its
impression about the veracity of the witness. That in turn will
depend on a variety of subsidiary factors, not
necessarily in order
of importance, such as (i) the witness’ candour and demeanour
in the witness-box, (ii) his bias, latent
and blatant, (iii) internal
contradictions in his evidence, (iv) external contradictions with
what was pleaded or put on his behalf;
or with established fact or
with his own extracurial statements or actions, (v) the probability
or improbability of particular
aspects of his version, (vi) the
calibre and cogency of his performance compared to that of other
witnesses testifying about the
same incident or events. As to (b), a
witness’ reliability will depend, apart from the factors
mentioned under (a)(ii), (iv)
and (v) above, on (i) the opportunities
he had to experience or observe the event in question and (ii) the
quality, integrity and
independence of his recall thereof. As to (c),
this necessitates an analysis and evaluation of the probability or
improbability
of each party’s version on each of the disputed
issues. In the light of its assessment of (a), (b) and (c) the court
will
then, as a final step, determine whether the party burdened with
the
onus
of proof has succeeded in discharging it.”
[15]
That brings me to the credibility, reliability, and probability of
the plaintiff’s version as against that of the insured
driver.
The plaintiff gave a clear version of how the collision happened. His
evidence was that he was driving his vehicle at a
speed of 60km/h on
his left lane. The bakkie that he was following suddenly stopped on
the reserve section. To avoid a collision
with it, he moved slightly
to the right, closer to the white centre line but still within his
lane and it is then the insured vehicle
bumped his vehicle from the
back on the right-hand side. The plaintiff’s version was
corroborated by his witness
Potgieter
who was driving behind
them.
Potgieter
further testified that the insured driver was
speeding. Both the plaintiff and
Potgieter
impressed me as
honest and reliable witnesses. Potgieter was following them and there
was no other vehicle in between that obstructed
his observation.
[16]
On the hand, I was not impressed at all with the insured driver. His
evidence was riddled with contradictions and inconsistencies.
He
adapted his version as the trial progressed. His initial version was
that there was a stationary bakkie on the left-hand side,
far off the
road but plaintiff as he was passing this bakkie moved to the insured
vehicle’s side and the collision occurred.
But in
cross-examination the insured driver came up with a new version that
the plaintiff was attempting to execute a right-hand
turn. Firstly,
if the stationary vehicle was far off the road, there would have been
no reason for the plaintiff to move his vehicle
slightly to the
right-hand side because there was no obstruction on lane. Secondly,
the version that the plaintiff was executing
a right- hand turn was
never put to either the plaintiff or his witness in
cross-examination. In
President
of the Republic of South Africa v South African Rugby Football
Union
[4]
,
the
Constitutional Court said that:
“
As
a general rule it is essential when it is intended to suggest that a
witness is not speaking the truth on a particular point,
to direct
the witness’s attention to the fact by questions put in
cross-examination showing that the imputation is intended
to be made
and to afford the witness an opportunity, while still in the witness
box, of giving any explanation open to the witness
and of defending
his/her character. If a point in dispute is left unchallenged in
cross-examination, the party calling that witness
is entitled to
assume that the unchallenged witness’s testimony is accepted as
correct.”
[17]
Further, there were contradictions between the insured driver’s
oral evidence and the content of his affidavit as indicated
in
paragraph 12 above. The insured driver as well as
Ngozi
and
Majova
in their affidavits claimed that there was a passenger
in the insured vehicle at the time of the collision. In my view the
reason
for them to come up with that concocted version was to cover
up for the insured driver, otherwise the latter would have been faced
with a big problem of driving illegally. Because he had a learners’
driver license and therefore, in terms of the road regulations
there
had to be a licensed driver with him when he is driving on the public
road. To insulate my view, the evidence adduced by
the plaintiff was
that shortly after the collision, the personal details and the
driver’s license number of the driver of
the insured vehicle
that were given to him were those
Ngozi
. When the insured
driver was confronted about his affidavit, he distanced himself from
it. Because he realised that his lies were
exposed by the evidence of
the plaintiff and that of Mr Potgieter. Both of them testified that
the insured driver was alone in
his vehicle. It is therefore my view
that the insured driver was not only untruthful in his testimony but
he was dishonest. Further
he was also evasive and argumentative at
times.
[18]
In addition, it is improbable that the plaintiff would have executed
a right-hand turn at the time of the collision while driving
at a
speed of 60km/h. Further, if one has regard to the damages to both
vehicles, it is also improbable that he was executing a
right-hand
turn. The damage on the plaintiff’s vehicle were on the back
fender on the right- hand side as depicted in photo
8 and they were
on the left front fender.
[19]
Therefore, having regard to all the evidence at my disposal and on
the balance of probabilities, the plaintiff’s version
is true,
accurate and acceptable and the version advanced by the insured
driver is false and falls to be rejected. The evidence
adduced on
behalf of the plaintiff proved that the insured driver failed to keep
the plaintiff’s vehicle under observation
while overtaking, and
to leave a sufficient wide berth between the insured vehicle and the
plaintiff’s vehicle.
[20]
Accordingly, the plaintiff has established negligence and that the
insured driver was the sole cause of the collision between
the
plaintiff’s vehicle and the insured vehicle. The alternative
submission on behalf of the defendant that there was contributory
negligence by the plaintiff is not supported by the evidence. The
mere fact that the plaintiff moved towards the centre lane without
looking at the rear mirror does not establish contributory
negligence. The plaintiff was within his lane of path when he
slightly
moved towards the centre line, however he did not encroach
the insured driver’s lane.
[21]
Regarding costs, there is no reason why the costs should not follow
the results. In addition, having regard to the issues involved
in
this matter costs of employment of counsel on scale B are justified.
[22]
In the circumstances the following order is issued:
1. The defendant is
held liable for 100% of such damages as the plaintiff is able to
prove arising out of injuries sustained by
him in the collision
between his vehicle and the insured vehicle on 25 May 2017.
2. The defendant is
ordered to pay plaintiff’s costs including costs of counsel on
scale B, as well as the reasonable and
travelling and accommodation
costs incurred by the plaintiff’s legal representatives in
respect of the trial.
N
GQAMANA
JUDGE OF THE HIGH
COURT
APPEARANCES:
Counsel
for the Plaintiff
:
Adv Benade
Instructed
by
:
DSC Attorneys
C/O
DOLD & STONE
Makhanda
Counsel
for the Defendant
:
Ms V Futshane
Instructed
by
:
STATE ATTORNEY
Gqeberha
Dates
heard on
:
30 April, 2 May and 6 June 2024
Judgment
Delivered on
:
30 July 2024
[1]
At
paragraph 3 therein he said: “This affidavit serve to confirm
that on 25th May 2017 at about 15:00 I was driving a Nissan
Hardbody
NP300 bakkie with registration... together with a
passenger
Majova Gciniwe
cellphone
….from the direction of Flagstaff Town towards Holly Cross
hospital.
[2]
Ngozi
in his affidavit mentioned that “
at
the time of the accident Lufefe Ntsenyana was going with Majova
Gciniwe as a passenger’’.
Majova
in his affidavit also confirmed that he was a passenger in the
insured vehicle at the accident.
[3]
2003(1)
SA 11 (SCA) at para 5.
[4]
2000
(1) SA 1
(CC) at para 61.