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IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN
Not reportable
Case no: 5500/2022
In the matter between :
PULE ISHMAEL MOKALAKE PLAINTIFF
And
THE ROAD ACCIDENT FUND DEFENDANT
Neutral citation: Mokalake v RAF (5500/2022) [2025]
Coram: Ntanga AJ
Heard: March 18, 2025
Delivered: May 16, 2025
Summary: Civil procedure – motor vehicle accident claim – whether i nsured
driver caused plaintiff’s injuries – whether driver of the vehicle was negligent –
whether defendant was liable for compensation to be paid to plaintiff – conflicting
versions regarding cause of accident – principles regarding conflicting versions
restated.
2
ORDER
1. The plaintiff’s claim is dismissed .
2. The plaintiff is to pay costs on a party -to-party scale, including costs of counsel
on scale B .
JUDGMENT
Ntanga AJ
Introduction
[1] The plaintiff , Pule Ishmael Mokalake, instituted an action against the Road
Accident Fund ( “the defendant ”) for damages suffered as a result of injuries to which
he claims to have been sustained in a motor vehicle accident which occurred on September 1, 2019 on the N8 which is the road from Bloemfontein to Botshabelo,
Free State Province. The motor vehicle accident involv ed a motor vehicle with
registration number D […], driven by the plaintiff and another motor vehicle with
registration number F[ …], driven by Mr Makhoro, the insured driver .
[2] At commencement of trial, the parties indicated agreement for separation of
determination of merits and quantum and that the matter was set down only for
determination of merits . An order separating merits from quantum was already
granted on June 4, 2024. After due consideration of what is stated above,
including the Uniform Rules of the Court, I then issued an order as follows:
“2.1 Determination of quantum is postponed sine die ”.
Issues for determination
[3] This court is called upon to determine merits on: ( a) whether the plaintiff was
involved in a motor vehicle accident ; (b) whether the injuries sustained by the plaintiff
were caused by a motor vehicle accident; ( c) whether the driver of the insured
vehicle was negligent; and ( d) whether the defendant is liable for compensation to be
paid to the plaintiff.
3
Background
[4] In his particulars of claim, the p laintiff a verred that the accident which resulted
in his injuries was caused by the sole negligence of the insured driver in the driving
of the insured vehicle, he being negligent in one, more or all of the following
respects:
(a) He failed to apply the insured vehicle’s brakes at all, alternatively timeously
and/or sufficiently;
(b) He failed to avoid the collision when by the exercise of reasonable care and skill
and the taking of reasonable precautions: he could and should have done so;
(c) He failed to take any, alternatively sufficient , cogni sance of the presence, the
actions and the visibly intended, and/or alternatively probable further actions of the plaintiff; and
(d) He failed to observe that the p laintiff was driving along the road and proceeded to
make an illegal ‘U-turn’ in front of the p laintiff and caused the p laintiff to collide with
the truck, which resulted in the p laintiff’s vehicle being rolled over .
[5] The defendant did not dispute the occurrence of the motor vehicle collision.
The defendant denied the plaintiff’s a verment that the collision occurred as a result
of the insured driver’s negligence and pleaded, in the alternative, that the sole cause
of the collision was the negligence of the p laintiff who was negligent in one or more
of the following respects :
(a) He failed to keep a proper look out ;
(b) He failed to take cogni sance of the prevailing traffic and/or prevailing traffic
conditions;
(c) He failed to take cogni sance of the rights of other road users and in particular, the
rights of the said insured driver;
(d) He failed to avoid the collision, when by the exercise of reasonable care and
consideration, he could and should have done so; or
(e) Any other ground(s) which may be proven during the course of the trial .
The plaintiff’s case
4
[6] The plaintiff testified that on September 1, 2019, he was travelling from the
direction of Bloemfontein towards Botshabelo. He drove in an uphill and, after
reaching the other side of the hill , his vehicle hit a tyre of a truck. He was driving a
blue VW Golf with registration DFM 571 FS. The incident ocurred at 01h 30 in the
morning. After the impact of the collision, his vehicle retreated and caught fire. T he
driver of the insured vehicle tried to assist him by extinguishing the fire but that did
not help. The driver of the insured vehicle made a telephone call and the plaintiff asumed that he was calling the police. He testified that , when the police arrived, his
vehicle was in the same position it was when the collision occurred. He averred that the insured vehicle was either stationery or trying to make a turn when the colission ocurred. He testified that he was driving at 120 kilometers per hour when the
collision ocurred and that he has travelled on that road on man y occassions and,
sometimes , when going to work.
[7] Under cross -examination, the plaintiff testified that he had visited his sister
and denied that he consumed alcohol during the visit to his sister. He was then referred to the hospital record indicating that the patient was intoxicated but awake.
He still denied that he was under the influence of alcohol. When confronted with the
defendant’s version was put to him that Seargent Majola will testify that the plaintiff
was drunk and stuck in his vehicle, his response was that he does not know. He also
disputed the d efendant’s version that the investigating officer that she investigated
the case of reckless and negligent driving and that , in the statement she took from
him, he never told her that the insured vehicle was making a “ U-turn”. A further
version was put to the plaintiff that the investigating officer will testify that the driver of the insured vehicle was traveling from Botshabelo to Bloemfontein, he passed the plaintiff’s vehicle and heared noise from the insured vehicle, he stopped and went
out of the insured vehicle to see what had happened. This version was disputed by the plaintiff who insisted that his vehicle collided with the insured vehicle on the side
of the vehicle. He did not see the lights of the insured vehicle as they were switched off.
The Defendant’s case
[8] The defendant called the first witness Ms Kotsoane who testified that she was
the investigating officer in the matter. She testified that she investigat ed two vehicles
5
that were involved in a motor vehicle collision and the charge was reckless and
negligent driving against both drivers. Both drivers wrote warning statements. The
driver of the ins ured vehicle passed on before he could testify i n trial. His statement
was made available and was admitted into evidence. Ms Kotsoane testified that the driver of the insured vehicle told her that :
“He was driving from East to West at N8 road and it was on a Sunday. He was driving the
truck alone. Along the way there was an oncoming vehicle, he then heard a bump sound. He
immediately alighted and observed a car that c ollided with the wheel of the vehicle he was
driving. This was a blue GTI Volkwagen Golf with only the driver as an occupant”.
[9] Ms Kotsoane further testified that the p laintiff , in his warning statement , stated
that:
“He was driving from Bloemfontein to Botshabelo and he was driving a blue GTI Volkswagen
Golf, traveling alone. There was no traffic at all at the time and when he approached a hill he
saw a truck parked crossing the road and it was stationery. He was stuck in the vehicle and
sustained injuries”.
[10] Under cross -examination, she confirmed that the driver of the insured vehicle
was 80 years old but , according to her observation, he was flexible and looked fine.
Ms Kotsoane further testified that the plaintiff was not clear on how the accident
occurred but she could not question him on the reason for coliding with the rear of the truck whilst the driver was traveling from west to east.
[11] The next witness called by the d efendant was Mr Majola who testified that he
was on duty when he received a call alerting him about a motor vehicle
accident on the N8 and he proceeded to the scene of the accident. He found a
blue Volkwagen Golf and a truck. The blue Volkwagen Golf had crossed the two barrier lines in the middle of the road and the driver was trapped inside the vehicle. The right wheel of the truck trailer had impact. He observed glass on the side of the insured vehicle and that the insured vehicle was parked on
6
the side of the road, still in its lane. According to the accident sketch plan that
he drew, the truck was facing west on the left lane travelling towards
Bloemfontein and the plaintiff’s vehicle was travelling from north facing
southern direction. He testified that he does not know whether the vehicles
were moved. When he arrived, the driver of the insured vehicle was standing
next to the truck and the plaintiff was trapped inside his vehicle until the fire and rescue team assisted to retrieve him from the vehicle. He was then taken
to hospital by an ambulance. Regarding the sketch plan submitted as Exhibit
“C”, he testified that the plaintiff’s vehicle wa s on the barrier line whilst in the
accident report appearing on page 220 of the trial bundle, the plaintiff’s vehicle
is on the dotted lines. He explained that the s ketch plan appearing on page
220 of the trial bundle was drawn by Mr Leshota.
[12] He confirmed that , according to the sketch plan, the insured vehicle was in its
lane. When he arrived, the vehicles were as depicted on page 224 of the trial bundle
and he found them on the same positions. According to his observation, that is how
the accident occurred. He disputed the plaintiff’s version on how the accident
ocurred. He stated that t he lights of the insured vehicle were on and it was visible. It
also had a reflector belt on the sides and the rear. Under cross -examination, he
disputed the p laintiff’s version that he was approaching uphill and testified that the
road was a straight line. He testified that the truck was on the yellow line when he
arrived and forgot to draw the yellow line in the sketch plan.
Legal framework and e valuation of evidence
[13] The Road Accident Fund has a statutory duty in terms of the Road Accident
Fund Act 56 of 1996 (the RAF Act) to compensate a person who suffered injury
caused by the negligent driving of the driver, owner or employee of a motor vehicle .
Section 17(1) of the RAF Act provides that:
“Liability of Fund and agents.
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(1) The Fund or an agent shall –
(a) . . .
(b) . . .,
be obliged to compensate any person (the third party) for any loss or damage which the third
party has suffered as a result of any bodily injury to himself or herself or the death of or any
bodily injury to any other person, caused by or arising from the driving of a motor vehicle by
any person at any place within the Republic, if the injury or death is due to the negligence or
other wrongful act of the driver or of the owner of the motor vehicle or of his or her employee
in the performance of the employee’s duties as employee: Provided that the obligation of the Fund to compensate a third party for non-pecuniary loss shall be limited to compensation for
a serious injury as contemplated in subsection (1A) and shall be paid by way of a lump sum ”.
[14] This court must determine whether the plaintiff’s claim falls within the
parameters set out by the RAF Act, that is, whether the injuries sustained by the
plaintiff were caused by a motor vehicle collision and by wrongful and negligent
conduct of the driver of the insured vehicle. Once the negligence of the driver of the
insured driver has been proved , the defendant ’s liability to compensate the claimant
for bodily injuries arises. In Wells and Another v Shield Insurance Co. Ltd (Wells ),1
the court enunciated the test for liability of an insurance company towards the injured
third party by stating that:
“Two pre -requisites of liability upon the part of the registered insurance company for loss or
damage suffered by a third party as a result of bodily injury are thus laid down. They are (i) that the bodily injury was caused by or arose out of the driving of the insured motor vehicle; and (ii) that the bodily injury was due to the negligence or other unlaw ful act of the driver of
the insured vehicle or the owner thereof or his servant”.
[15] In Frank v Road Accident Fund,2 the court followed the decision of Grove v
Road Accident Fund,3 where the Supreme Court of Appeal stated that :
“The RAF is obliged to compensate for damages arising from bodily injury ‘caused or
arising from’ the driving of a motor vehicle. The causal link that is required is
1 Wells and Another v Shield Insurance Co. Ltd and Others 1965 (2) SA 865 (C) at 868G -869A ; see
also Makola v Road Accident Fund [2024] ZAMPMBHC 75 and Maatla v Road Accident Fund [2015]
ZAGPPHC 129.
2 Frank v Road Accident Fund [2023] ZAGPJHC 1183 (Frank ).
3 Grove v The Road Accident Fund [2011] ZASCA 55 para 7.
8
essentially the same as the causal link that is required for Aquilian liability. There can
be no question of liability if it is not proved that the wrongdoer caused the damage of the person suffering the harm. Whether an act can be identified as a cause, depends on a conclusion drawn from available facts and relevant probabilities. The important question is how one should determine a casual nexus, namely whether one fact follows from another
”.4
[16] The plaintiff has a duty to prove negligence of the driver of the insured vehicle
and such negligent driving must be the cause of the injuries sustained by the claimant. Furthermore, the claimant must prove existence of legal blameworthy
conduct of the insured driver. In casu , the p laintiff averred that the insured vehicle
was either stationa ry or trying to make a “U-turn” when the colission ocurred. This
version was disputed by the two police officers who testified on behalf of the defendant. Ms Kotsoane averred that she took a statement from the plaintiff and he
did not indicate that the insured vehicle was making a “ U-turn”. She also averred that
she could not question the plaintiff on the reason for coliding with the rear of the truck whilst the driver was traveling from west to east. Mr Majola averred that t he
blue Volkwagen Golf had crossed the two barrier lines in the middle of the road and
the driver was trapped inside the vehicle. The right wheel of the truck trailer had
impact. His evidence on the positioning of the two vehicles was supported by the sketch plan which Mr Majola testified that he drew a rough scetch on arrival on the
scene of accident and later drew it in the manner and format submitted as E xhibit
“C”. The statement of the driver of the insured vehicle is also consistent with the
version of Ms Kotsoane and Mr Majola.
[17] The plaintiff’s evidence is that he was traveling from Bloemfontein to
Botshabelo and that the insured vehicle was either stationery or trying to make a “ U-
turn” when the colission ocurred. The driver of the insured vehicle’s evidence, in his
statement , stated that he was travelling towards Bloemfontein and this evedence is
undisputed. The sketch plan drawn by Mr Majola submitted as E xhibit “C” shows that
the plaintiff’s vehicle was travelling from Bloemfontein to Botshabelo and that the
insured vehicle was travelling towards Bloemfontein. In the sketch plan submitted as
4 See note 4 supra at para 7.
9
Exhibit “C”, the insured vehicle is shown to be on the left and the plaintiff’s vehicle is
on the right. The sketch plan shows that the p laintiff’s vehicle crossed the barrier line
and it was on the side of the insured vehicle.
[18] The plaintiff argued against reliability of the sketch plan based on the
inconsistencies between the one appearing in the accident report and the one drawn by Mr Majola including inconsistencies on measurements taken between the two points on the sketch plan. Under cross -examination, the plaintiff testified that the
impact of the collision took place on the left hand side of the road, this being the side that he was traveling on.
[19] Considering the evidence regarding the direction that the two vehicles were
travelling and the impact of the accident on the insured vehicle, it is , in my view ,
improbable that the insured vehicle was stationery or making a “ U-turn”. It is not
possible that a vehicle making a “ U-turn” from East to West of the road could be
bumped on the rear right back wheel, the version that the insured vehicle was making a “ U-turn” is improbable.
[20] The plaintiff seemed to struggle to explain his inconcistencies and his
explanation was that he was on medication. The hospital records which were
admitted as evidence indicated that he was intoxicated but he denied that he consumed alcohol on the day, however , he confirmed that he does consume alcohol.
There is no evidence indicating that the p laintiff’s intoxication , as appears in the
hospital records , may have impared his ability to drive, his judgment and reaction at
the time of the col lision. Other than making reference to the hospital record indicating
that the plaintiff was intoxicated, no submission was made by the defendant that the
plaintiff’s intoxication impared his ability to drive or reaction at the time of the
colision.
[21] Considering the plaintiff’s evidence , the driver of the insured vehicle and that
of the two police officers, there are two mutually constructive versions and this court
10
has to determine where the truth lies between the two versions. In Mutual Employers
Mutual General Insurance Association v Gany ,5 the Court stated that:
“Where there are two stories mutually distructive, before the onus is discharged, the Court must be satisfied upon adequate grounds that the story of the litigant upon whom the onus
rests is true and the other is false”.
6
[22] In Stellenbosch Farmers’ Winery Group Ltd and Another v Martell & Cie SA &
Others ,7 the Supreme Court of Appeal set out the principle for resolving factual
disputes as follows:
“The technique generally employed by courts in resolving factual disputes of this nature may conveniently be summarized as follows. To come to a conclusion 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 . . . the
court will then, as a final step, determine whether the party burdened with onus of proof has discharged it”.
[23] The evidence of the two police officers, Ms Kotsoane and Mr Majola was , in
my view , clear and satisfactory.8 They were convincing in both evidence- in-chief and
under cross -examination. The evidence of the driver of the insured vehicle was
consistent with the evidence of the two police officers regarding the incident. The
plaintiff argued that the written statement of the driver of the insured vehicle should
be approached with caution against attaching too much weight to the evidence of the
driver of the insured vehicle. Particularly , because the driver was deceased and he
could not give oral evidence and be subjected to cross -examination. The plaintiff
relied on the decision of S v Pienaar ,9 where the court stated that:
5 Mutual Employers Mutual General Insurance Association v Gany 1931 AD 187 at 199.
6 See Frank para 28 and 40-41.
7 Stellenbosch Farmers’ Winery Group Ltd and Another v Martell & Cie SA & Others [2002] ZASCA
98; 2003 (1) SA 11 (SCA) para 5; see also Mhlanga v Passenger Rail Agency [2020] ZAGPJHC 147
para 29.
8 See R v Mokoena 1932 OPD 79.
9 S v Pienaar 1992 (1) SACR 178 (W) at 180H .
11
“Obviously an affidavit will have less probative value than oral evidence which is subject to
the test of cross -examination. At the same time an affidavit will carry more weight than a
mere statement from the Bar ”.
[24] The statement of the driver of the insured vehicle was admitted as evidence
subsequent to an application for its admission as ev idence as he had passed on at
the time of trial proceedings. He unfortunately was not available to provide oral
evidence, consequently, his evidence could not be tested by cross -examonation. It is
apposite at this stage to determine whether reference to the the driver of the ins ured
vehicle’s evidence is hearsay evidence and the application of the Law of Evidence
Amendment Act 45 of 1988 (“Hearsay Act ”).10
[25] Section 3 of Law of Evidence Amendment Act provides that:
“…
(1) Subject to the provisions of any other law, hearsay evidence shall not be admitted as
evidence at criminal or civil proceedings, unless -
(a) each party against whom the evidence is to be adduced agrees to the admission thereof
as evidence at such proceedings;
(b) the person upon whose credibility the probative value of such evidence depends,
himself testifies at such proceedings; or
(c) the court, having regard to-
(i) the nature of the proceedings;
(ii) the nature of the evidence;
(iii) the purpose for which the evidence is tendered;
(iv) the probative value of the evidence;
(v) the reason why the evidence is not given by the person upon whose credibility the
probative value of such evidence depends;
(vi) any prejudice to a party which the admission of such evidence might entail; and
(vii) any other factor which should in the opinion of the court be taken into account, is of the
opinion that such evidence should be admitted in the interests of justice” . 11
[26] Zeffert and Paises describes the primary reason behind exclusion of hearsay
evidence as follows:
“
... its general unreliability – the fact that it rested for its evidential value on the untested
memory, perception, sincerity and narrative capacity of a declarant or actor who was not
10 Law of Evidence Amendment Act No. 45 of 1988.
11 Section 3 the Law of Evidence Amendment Act 45 of 1988.
12
subjected to the oath, cross -examination or any other procedural devices to which our
adversary system of trial procedure subjects a witness giving original evidence”.12
In S v Molimi , the Constitutional Court stated that the rationale of excluding hearsay
as inadmissible is a recognition of the unreliability and unfairness emanating from such evidence and that its unreliability and susceptibility is said to be based on the
so-called ‘hearsay dangers’ of insincerity and defective memory, perceptive powers
and narrative capacity .
13
[27] Hearasy evidence is inadmissible unless it is in the interests of justice to admit
it. However, consideration of the factors set out in section s 3(1)(c)(i) to (vi) are of
paramount importance.14 The court has discretion to admit hearsay evidence after
having due consideration of factors set out in the Hearsay Act, an arbitrary rejection
of hearsay evidence may constitute a material error in law .15 The statement of the
driver of the insured vehicle considered together with the evidence of the two police
officers Ms Kotsoane and Mr Majola meets the test for admission in the interest of
justice.
[28] The plaintiff bears the onus to prove existence of negligence on a balance of
probabilities. The court has a duty to make inquiry on whether the injuries sustained
by the plaintiff were caused by the negligent driving of the driver of the insured
vehicle. Once this is proved, then the plaintiff would be entitled to be compensated
for the injuries he sustained. In South Cape Corp. v Engineering Management
Services ,16 the then Appellate Division stated that:
“As was pointed by Davis, A.J.A. in Pillay v Krishna and Another, 1946 at pp. 952-3, the word
onus has often been used to denote, inter alia, two distinct concepts: (i) the duty which is
cast on the particular litigant, in order to be successful, of finally satisfying the Court that he
is entitled to succeed on his claim or defense, as the case may be, and (ii) the duty cast
12 DT Zeffert and AP Paizes The South African Law of Evidence 3 ed (2017) at 400.
13 S v Moli mi [2008] ZACC 2; 2008 (2) SACR 76 (CC) ; 2008 (3) SA 608 (CC) ; 2008 (5) BCLR 451
(CC); see also President of the Republic of South Africa and Others v M & G Media Limited [2010]
ZASCA 177; 2011 (2) SA 1 (SCA) ;2011 (4) BCLR 363 (SCA); [2011] 3 All SA 56 (SCA) para 34 .
14 Kapa v S [2023] ZACC 1; 2023 (4) BCLR 370 (CC); 2023 (1) SACR 583 (CC) para 32.
15 Matsokoleng v Shoprite Checkers (Pty) Ltd t/a [2012] ZALAC 41; [2013] 2 BLLR 130 (LAC).
16 South Cape Corp. v Engineering Management Services 1977 (3) SA 534 ( A) at 548A .
13
upon a litigant to adduce evidence in order to combat a prima facie case made by his
opponent. Only the first of these concepts represents onus in its true and original sense ”.
[29] In S v Govender and Another ,17 the court followed the Supreme Court
Appeal18 where the Court stated that :
“The juridical approach to contradictions between two witnesses and contradictions between
the versions of the same witness (such as, inter alia, between her or his viva voce evidence
and a previous statement) is, in principle (even if not in degree), identical. Indeed, in neither
case is the aim to prove which of the versions is correct, but to satisfy oneself that the
witness could err, either because of a defective recollection or because of dishonesty. The
mere fact that it is evident that there are self-contradictions must be approached with caution
by a court. Firstly, it must be carefully determined what the witnesses actually meant to say
on each occasion, in order to determine whether there is an actual contradiction and what is
the precise nature thereof . . . Secondly, it must be kept in mind that not every error by a
witness and not every contradiction or deviation affects the credibility of a witness. Thirdly,
the contradictory versions must be considered and evaluated on a holistic basis . . . Lastly,
there is a final task of a trial Judge, namely to weigh up the previous statement against the
viva voce evidence, to consider all the evidence and to decide whether it is reliable or not
and to decide whether the truth has been told, despite any shortcomings”.
[30] I have pointed out that there are two mutually distructive versions regarding
who was the cause of the accident and negligent. The plaintiff argued against
reliability of Mr Majola’s evidence and, in particular , the conflicting versions regarding
the s ketch plan and inaccuracy of measurements relating to point of impact. I agree
with the defendant’s submission that the d efendant’s witnesses answered the
questions honestly, they have no personal inter est in the outcome of the matter. The
sketch plan drawn by Mr Majola was done soon after the colli sion. I cannot find any
reason for Mr Majola to have been untruthful when he drew the scatch plan. Ms
Kotsoane testified about the evidence she gathered after she was appointed as the
investigating officer to investigate a case of reckless and negligent driving against
both drivers . Her evidence was based on the statements given to her by the driver of
17 S v Govender and Another 2006 (1) SACR 332 (E).
18 S v Mafaladish o and Another [2002] ZASCA 92; [2002] 4 All SA 74 (SCA); 2003 (1) SACR 583
(SCA) at 593E -594H.
14
the insured vehicle and the plaintiff. Mr Majola testified about his observation when
he arrived at the accident scene and the scetch plan he drew. The discrepancies in
Mr Majola’s evidence regarding the measurements relating to the point of impact and the s ketch plan appearing in the accident report is not material.
[31] The discrepanc y regarding the dif ference in the identity numbers provided by
the plaintiff is im material. I accept the plaintiff’s version that he was confused at the
time as he was under medication. It is not unreasonable that, immediately after the
accident and on being on medication, a person may be in a state of confusion
regarding acuracy of details he is required to provide. The plaintiff’s disputed version that he was removed from his vehicle by a police officer instead of emergency services personel , as averred by the defendant , is understandable given the state of
confusion he might have been immediately after the colision. The difficulty with the plaintiff’s version is how his vehicle colided with the insured vehicle on the rear right
wheel based on the uncontested version that the insured vehicle was traveling towards Bloemfontein. There is also an uncontested version that the insured vehicle
was traveling on the left lane and the plaintiff’s vehicle was traveling on the right
lane.
[32] There is a further uncontested version of Mr Majola that , on his a rrival at the
scene, he observed glas ses on the left lane, which is the side where the insured
vehicle was traveling on. The position of the two vehicles in the s ketch plan drawn by
Mr Majola shows the insured vehicle facing Bloemfontein on the left lane and the plaintiff’s vehicle facing Botshabelo on the right lane with part of it crossing the
barier line to the left lane. This ev idence gives indication that the point of impact for
the col lision was on the left lane, being the lane where the insured vehicle was
traveling on.
Conclusion [33] Considering the conspectus of evidence presented on behalf of the p laintiff
and defendant, I am of the view that the most probable version between the two
versions is that of the d efendant’s witnesses. I find that Mr Majola’s version
regarding the s ketch plan is more probable than the plaintiff’s version regarding the
point of impact of the colision. The plaintiff has failed to prove that the driver of the
15
insured vehicle is the cause of the colision that resulted in the injuries he sustained.
The plaintiff has failed to prove that his injuries were caused by the wrongful and
negligent driving of the driver of the insured vehicle.
Costs
[34] Concerning the costs of this matter, I see no reason that costs should not
follow the results.
Order
[35] In the circumstances, I make the following order:
1. The plaintiff’s claim is dismissed.
2. The plaintiff is to pay costs on a party -to-party scale, including costs of counsel on
scale B .
NTANGA AJ
Appearances
For the p laintiff : N van der Sandt
Instructed by: Webbers Attorneys , Bloemfontein
For the r espondent: C Bornman
Instructed by: State Attorney , Bloemfontein.