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1995
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[1995] ZASCA 134
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Molefe and Another v General Accident Insurance Company South Africa Ltd. (84/94) [1995] ZASCA 134 (22 November 1995)
Case No 84/94
IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISION)
In
the matter between:
MADINGAKA ESTER MOLEFE First
Appellant
NOMA MIRRIAM TSOTETSI Second
Appellant
and
GENERAL ACCIDENT INSURANCE
COMPANY SOUTH AFRICA LIMITED Respondent
Coram: VAN HEERDEN, NESTADT JJA et VAN COLLER AJA
Date Heard: 13 November 1995
Date Delivered: 22 November 1995
JUDGMENT NESTADT. JA
:
This appeal concerns claims for damages under the Compulsory Motor
Vehicle Insurance Act, 56 of 1972. The court
2
below found that it had not been established that the collision in
question was caused by the negligence of the driver of the insured
vehicle.
Hence absolution from the instance was granted.
Save to the extent which follows, I do not propose to set out the
evidence which was adduced before the trial court or the course
that the trial
took. These matters appear from the judgment of the court a quo, with which
judgment I assume the reader hereof is
familiar.
The issue was whether the plaintiffs (now the appellants) proved that the
collision took place on the insured driver's incorrect side
of the road, ie on
the eastern half. If it did, then clearly such driver was negligent and the
appeal must succeed.
In the absence of a witness's direct evidence, the point
3
or area of impact is often inferred from marks and debris on the road
(see
Cooper
: Motor Law, vol 2, 420). But in
casu
the streak of
blood (which went virtually across the whole width of the road) and the fact
that there was broken glass and mud "all
over the place" was equivocal. Thus it
was that the policeman who attended at the scene was unable (or perhaps
unwilling) to express
an opinion as to where on the road the collision took
place. It was, nevertheless, the task of the trial court to do so - provided,
of
course, the evidence was sufficient to justify such a course.
In my opinion, the evidence was sufficient. The bakkie was found on the
extreme eastern side of the road almost wholly between the
edge of the road and
the yellow line. The truck came to a stop with approximately half its length on
to the eastern side of
4
the road. Goods which were being conveyed on the truck were recovered
from a ditch on the eastern side of the road. And a person who
had been a
passenger in the truck lay injured after the collision on the eastern side of
the road.
These were the objective facts. To my mind, the most natural and
plausible inference to be drawn from them (taking into account especially
their
cumulative effect) is that the collision occurred (somewhere) on the eastern
side of the road. They were at least as cogent
as say the existence of brake
marks or broken glass on the eastern side of the road. There was no need, as the
trial judge would
seem to have held, for any expert evidence (explaining how the
vehicles would behave after impact) to have been led by the plaintiff
before the
inference of negligence on the part of the driver
5
of the truck could be drawn. This was an unrealistic approach. It was an
unduly technical one. Logic and human experience teach one
that where, as here,
the vehicles involved in the collision, as also goods and a passenger from one
of them, were found on the eastern
side of the road, it was there that the
collision probably occurred.
At the least, the inference that the collision occurred on the truck's
incorrect side of the road was a possible one. Stegmann J was
therefore correct
in refusing absolution at the end of the plaintiffs' case. But then when the
defendant led no evidence, the learned
judge should have found the allegation of
negligence proved. I leave aside the fact that the passenger was not called. The
insured
driver was an available witness. It was for the defendant to call him
(
Minister of Justice v Seametso
1963(3) SA 530(A) at 535 F).
There
6
is no reason to doubt that the manner in which the
collision took
place was within his knowledge. It was never
suggested in evidence
or from the Bar that he suffered from amnesia
or that he refused to
testify (because his answers might be
incriminating). The trial judge
was therefore not entitled to take
these speculative possibilities into
account. An adverse inference
should have been drawn against the
defendant. In accordance with the
principle stated in
Galante v
Dickinson
1950(2) SA
460(A) at 465 (and see too
Botes vs Van
Deventer
1966(3) SA 182(A) at 188 E-F) this should have been done
by
selecting the plaintiffs' explanation for the cause of the
collision.
Certain parts of the appeal record relate only to the
issue
of quantum. Neither they nor a copy of the inquest record
should
have been included. Their costs will not be
allowed.
7
The following order is made:
(1) The appeal succeeds with costs but the appellants will not be entitled
to any costs in respect of pages 21-47 or 128-172 of the
record.
(2) Paragraph 3 and 4 of the trial court's order are set aside and the
following substituted:
"3. The collision was caused by
the negligent driving of the insured vehicle.
4. The defendant is to pay the costs occasioned in the determination of
the question set out in paragraph 1. 5. The trial is to proceed.
It is
accordingly postponed
sine die
".
H H Nestadt
Van Heerden, JA )
) concur Van Coller, AJA )