Valashiya v Road Accident Fund (103/2001) [2002] ZASCA 52 (29 May 2002)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2002
>>
[2002] ZASCA 52
|

|

Valashiya v Road Accident Fund (103/2001) [2002] ZASCA 52 (29 May 2002)

THE SUPREME COURT OF
APPEAL
OF SOUTH AFRICA
Case
No:103/2001
In the
matter between:
VALASHIYA:
ELIZABETH LAWUKAZI
Appellant
and
ROAD
ACCIDENT FUND
Respondent
Coram
:
Marais,
Streicher, Farlam, Mthiyane, JJA and Heher, AJA
Heard
:
16
May 2002
Delivered
:
29 May 2002
Motor
accident – Inference of negligence not drawn from fact that driver
disappeared from the scene.
J U D G M E N T
STREICHER, JA/
STREICHER
JA:
[1] The
appellant, in her personal capacity and in her capacity as the mother
and natural guardian of her minor children, instituted
action in the
Witwatersrand Local Division against the respondent for the payment
of damages suffered as a result of the death of
her husband (‘the
deceased’) as a result of injuries sustained by him in a motor
accident. The trial court ordered that the issues
be separated and
that the question of the liability of the respondent be determined
first. At the conclusion of the trial in respect
of the question of
liability the trial court found for the appellant and ordered the
respondent to pay the costs. An appeal to a
full bench was upheld and
the order of the trial court was replaced with an order of absolution
from the instance.
[2] At
the trial it was common cause between the parties that on 14 August
1994 between 19h00 and 20h00 Mr Mohlala, a witness called
by the
respondent, found the deceased at a curve in a street in the Mnisi
Section of Katlehong, that he transported the deceased
to the
Natalspruit Hospital and that the deceased subsequently died. The
issues to be determined were whether the injuries sustained
by the
appellant on that day were caused by a collision with a motor vehicle
and if they were whether it had been proved that the
driver of the
motor vehicle was negligent. At this stage only the latter issue is
still in dispute.
[3] As
Mohlala was traveling, the road in which the accident occurred runs
from West to East and then curves by 90 degrees to run
from North to
South. According to Mohlala he found the deceased lying on the tarred
surface, on his side of the road, near the kerb
just about where the
road straightens out to run from North to South. Close to the
deceased but nearer to the centre of the road
he also found a carton
container and some broken beer bottles. He testified that he was
driving home when he observed an object in
the roadway. At that time
it was already dark and no electric lights illuminated the area. At
first he thought that the object was
a plastic bag but he then
realised that it was a person. He stopped before he got to the
person, picked him up and took him to the
hospital.
[4] The
appellant called one witness, namely Miss Konyana, to testify as to
how it came about that the deceased was injured. According
to Konyana
she lived near the curve in the road. On the evening in question,
just before sunset, she was sitting in the dining room
facing the
street and waiting for the Apollo lights to come on, which would
signal that the supply of electricity to the area had
been restored
after a disruption of the power supply which had occurred earlier
that day. She then saw a vehicle approaching the
curve from the North
at a terrible speed. The driver of the vehicle lost control as he was
approaching the curve, drove onto the
pavement on the Western side of
the road and collided with a pedestrian on the pavement. He did not
stop after the collision. The
pedestrian remained lying on the
pavement on the Western side. She did not go to his assistance. She
did not telephone the police
either as there was no telephone in the
house. After about 45 minutes Mohlala appeared on the scene. He
noticed the injured person,
made a U-turn so that his car was
pointing in the opposite direction from where he was coming, examined
the injured person, picked
him up and drove away.
[5] Under
cross-examination Konyana testified that the injured person lay on
the pavement for about 2 hours before he was removed.
She explained
that she did not go to his assistance because of the violence in the
area at the time. Although there was no other
person in the vicinity
the driver of the car could, according to her, deliberately have
driven into the person on the sidewalk and
could have been hiding
nearby to see who was going to the injured person’s assistance. She
admitted that she made a statement to
an assessor, that he recorded
the statement and that she signed it, but denied that she read it or
that it was read to her before
she signed it. The statement as
recorded differs from her evidence in various respects. According to
the statement she heard a crash
(‘slag’) and then saw that there
had been a collision; she saw that the injured person was lying on
the tarred surface of the
road; people tried to stop the car that
collided with the pedestrian; and she did not see who removed the
person from the scene.
She denied that she gave that information to
the assessor. Confronted with the fact that according to the
statement there was a telephone
in the house she admitted that that
was the case but said that the service had been interrupted at the
time of the accident.
[6] The
assessor, Mr Ratsaka, testified that he recorded Konyana’s
statement correctly and that he read it back to her after having
done
so. The trial court found that there were various flaws in Ratsaka’s
evidence. That finding is clearly correct. In view of
the conclusion
to which I have come it is unnecessary to recount those flaws.
[7] The
trial court found that despite the flaws in Ratsaka’s evidence
Konyana told him that she had not witnessed the collision
and
rejected her evidence that she actually saw the collision. It seemed
likely to the trial court that Konyana embellished her account
of
what she witnessed in a misguided attempt to assist the plaintiff.
The trial court also rejected Konyana’s account as to the
place of
the collision and the location of the deceased after the collision.
It nevertheless not only accepted Ratsaka’s evidence
that she told
him that she heard tyres screeching; that she then heard the sound of
a collision; and that she then saw the vehicle
speeding away, but
also accepted that she was truthful when she gave him that
information. The trial court found, furthermore, that
the collision
occurred at or near dusk but when it was still light. On the strength
of this evidence the trial court concluded as
a matter of
probability:
The
unidentified vehicle was approaching the curve from the South.
The
driver would have had an unobstructed view of the deceased.
The
unidentified vehicle sped away after the collision.
In
the light of the fact that the unidentified vehicle sped away after
the collision there could be no question that the driver
knew that a
pedestrian had been struck.
The
driver’s hasty departure indicated a guilty conscience on the part
of the driver.
The
inference could be drawn that the driver had been driving
negligently at the time of the collision.
[8] A
separate judgment was given by each of the three judges who heard the
appeal to the full bench. Stegmann J held that the written
statement
was, in terms of s 34 of the Civil Proceedings Evidence Act 25 of
1965, not admissible to prove the truth of its content
because it had
never been suggested at the trial that it was admissible or that it
should be admitted on that statutory basis. He
was, however,
satisfied that, in terms of s 3(b) of the Law of Evidence Act 45 of
1988, the evidence of Ratsaka as to what Konyana
told him was
admissible for that purpose. But, he disagreed that any weight could
be given to Ratsaka’s recollection, denied by
Konyana, of what
Konyana had said to him about the screeching of tyres before the
collision. He also disagreed that the evidence
justified the
inference drawn by the trial court. He thought that it was on the
evidence no less likely that the collision was caused
by the
deceased’s own negligence as that it resulted from the negligent
driving of the unidentified driver.
[9] Malan
J held that the statement was admissible in terms of s 34 of Act 25
of 1965 but that no weight could be given to it: firstly,
because
Ratsaka whose Afrikaans was grammatically and semantically flawed,
spoke to Konyana, whose language is Sepedi, in Southern
Sotho and
recorded the statement in Afrikaans; and secondly because the
contents of the statement differed considerably from Konyana’s
evidence in court. There was in his view no basis for accepting
either Konyana’s evidence or her statement as the truth as it was
equally possible that Konyana never saw or heard the collision and
that she fabricated both versions. He concluded:
‘There
is no … evidence of the clothes the deceased wore. The deceased was
run down by a vehicle in the dark on a curve. It is
probable that the
headlights, assuming that they were on, did not illuminate the
deceased before the collision. There is no evidence
where the
deceased was before he was struck down. He could have been too close
to the road or he might have walked or run in front
of the
approaching vehicle just before the collision.’
[10] Foulkes-Jones
AJ held that no reliance should have been placed on the evidence of
Ratsaka, that the evidence of Konyana should
have been accepted and
that the appeal should therefore be dismissed.
[11] In my view the trial
court correctly rejected Konyana’s evidence that she actually saw
the collision. It could have arrived
at this conclusion without
having regard to the statement Konyana allegedly made to Ratsaka. If
the unidentified vehicle approached
the curve to the West at a
terrible speed and if the driver lost control it is unlikely that the
vehicle would have mounted the pavement
on the Western side of the
road on the inside of the curve. Konyana’s evidence as to why she
did not go to the assistance of the
injured person, namely because
she feared that the driver might have deliberately collided with the
pedestrian, not only contradicted
her earlier evidence that the
driver lost control but also borders on the ridiculous. She
contradicted herself as to whether there
was a telephone in the
house. Mohlala contradicted her evidence as to where the injured
person was lying after the collision as well
as her evidence that he
executed a U-turn after he had noticed the injured person, and that
there had been a power failure which
could have caused her to be
looking at the lights in anticipation of power being restored. The
trial court’s acceptance of Mohlala’s
evidence cannot be faulted.
Konyana was in my view a thoroughly unreliable witness. No weight
could be attached to her evidence as
to what she observed on the day
in question. There is no reason to believe that what she allegedly
told Ratsaka was more reliable
than her evidence in court. In the
circumstances I do not consider it necessary to decide whether or not
the admissibility of Ratsaka’s
evidence as proof of the truth of
what Konyana told him was established.
[12] It
remains to decide whether an inference of negligence can be drawn
from the fact that the unidentified vehicle collided with
the
deceased in a built-up area where the speed limit was 60km/h and
disappeared from the scene. The appellant submitted that it
could.
She relied in this regard on the decision in
Motor Vehicle
Assurance Fund v Dubuzane
1984 (1) SA 700
(A) in which the
majority of the court held, per Botha JA, at 705F:
‘The
fact that the deceased was run over at a pedestrian crossing and that
the driver, having caused him obvious injury, made off
immediately
and without rendering assistance gives rise to a probability of
negligence on his part. Such conduct justifies the drawing
of an
inference of negligence. Once it is clear as a matter of probability
that the front of the motor vehicle struck the deceased
there is no
real basis for postulating that the driver was unaware that he
collided with a human being and that his reason for the
departure
from the scene was not a feeling of guilt.’
[13] Whether the fact that
a driver who had collided with a pedestrian immediately drove away
without rendering assistance gives rise
to a probability of
negligence on his part would of course depend on the particular
circumstances of the case. In the present case
the violence in the
area where the collision took place (which was common cause) may have
been the reason for the driver’s disappearance
from the scene, but,
in any event, the inference can obviously only be drawn, as was
recognized in the above quoted passage, if the
driver was aware of
the collision.
[14] In
the present case there is no evidence on the basis of which it can be
found that the front of the unidentified vehicle struck
the deceased.
The deceased was found near the verge of the road and could,
therefore, have been struck by the side of a vehicle while
it was
negotiating the curve. There is no evidence on the basis of which it
can be found what type of vehicle collided with the deceased.
The
vehicle could, therefore, have been a truck or a truck with a
trailer. There is, furthermore, no evidence as to the movements
of
the deceased immediately before the collision. He could have been
running or could have stumbled onto the road. In the light of
the
violence prevalent in the area and the fact that the deceased was
according to Mohlala smelling of liquor, neither of these
possibilities
is far-fetched. In these circumstances it cannot be
found that the driver of the unidentified vehicle was probably aware
that he
had collided with a pedestrian. No inference of negligence
can therefore be drawn from the fact that he disappeared after the
collision.
Moreover, one can only speculate as to how the collision
occurred. No facts which could assist a court in this regard has been
proved.
In my view the full court correctly upheld the appeal to it.
[15] The
appeal is consequently dismissed with costs.
___________
P
E Streicher
Judge
of Appeal
Marais, JA)
Farlam, JA)
Mthiyane, JA)
Heher,
AJA) concur