Ditsela v Road Accident Fund (59582/18) [2019] ZAGPPHC 642 (1 November 2019)

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORJA)

(1) REPORTABLE: YES/NO

(2) OF INTEREST TO OTHER JUDGES: YES/NO

(3) REVISED

Case number: 59582/18

Date of hearing: 28 October 2019

Date delivered: 1 November 2019

In the matter between:

JEOFREY DITSELA

Plaintiff

and

ROAD ACCIDENT FUND

Defendant

JUDGMENT

SWANEPOEL AJ:

[1] This is a claim for damages resulting from a motor vehicle accident that occurred on 13 August 2016. At the start of the matter the parties agreed to separate the issue of liability from the quantum, and it was so ordered. The only issue to be decided is the question of negligence. The facts are very much common cause.

[2] In the early morning of 13 August 2016 plaintiff was travelling in his Ford Figo (registration number [….]) from north to south on the N1 freeway, in the vicinity of the New Road offramp. On plaintiff's version it was approximately 07h00. He was driving in the second lane from the left, at a point where the freeway consists of five lanes in a southerly direction. Plaintiff testified that he noticed a truck in front of him, and that he travelled behind the truck for some 5 minutes before the accident occurred. The truck, with registration number [….], was being driven by Mr. Patrick Mawila, the insured driver.

[3] Plaintiff testified that he suddenly realized that the truck was stopping. He looked to his left and right to see whether he could swerve out, but unfortunately there was traffic to both sides. Plaintiff braked hard, his car skidded, and he collided with the rear of the truck. It was put to plaintiff that he had been speeding, and that his speed resulted in the accident. Plaintiff denied the allegation, and insisted that he was driving at approximately 70 to 80 kilometers per hour.

[4] In cross-examination it was put to plaintiff that he had deposed to an affidavit in which he put forth a different version. The affidavit, dated 23 August 2016, was accepted as Exhibit "A". In the affidavit plaintiff stated that he was approaching the New Road offramp when he saw the truck at a distance. He thought the truck was moving but suddenly he realized that it was not moving. He applied his brakes but it was too late and he collided with the truck. This version accords with the version put

up by plaintiff in the particulars of claim.

[5] Mr. Mawila testified that at 06h00 on the day in question he was driving at approximately 80 kilometers per hour in the second lane from the left. He was keeping a lookout in his mirrors, but he did not see the plaintiff's vehicle. There were no other vehicles in the vicinity. Mr. Mawila then felt a bump from the rear. He did not stop immediately, but eventually he did bring the truck to a halt. He then saw that plaintiff had collided with the rear of his truck. There is no suggestion that the visibility was anything but good.

[6] It was put to Mr. Mawila that in its plea defendant had raised the defence of sudden emergency, which was contrary to his evidence. It was submitted that the contradiction meant that Mr. Mawila's evidence should be rejected as false. It however transpired that Mr. Mawila had only had contact with defendant's attorneys in the week before the trial. The defence of sudden emergency could therefore not have been based on anything that Mr. Mawila conveyed to the attorneys, and it does therefore not reflect on Mr. Mawila's credibility. There is no reason to believe that Mr. Mawila was untruthful. He gave a cogent version of the events. There was no reason why Mr. Mawila would suddenly slow down or stop on the motorway. His version is more likely on a balance of probabilities, and I accept his evidence.

[7] As far as the plaintiff is concerned, there are a number of questions regarding his version. Firstly, which version is correct: Did plaintiff travel behind the truck for 5 minutes as he testified, or did he suddenly see the truck and realize that it was stationary, as is alleged in his affidavit, and in his particulars of claim. Plaintiff could not provide an explanation for the discrepancy between the two versions.

[7] If plaintiff's evidence in Court is true, then he observed the truck for some time before the accident. If it suddenly slowed down, as plaintiff testified, then it begs the question why plaintiff did not observe the slowing down of the truck with sufficient time to brake his vehicle. If plaintiff's affidavit is true, then why did plaintiff

not observe timeously that the truck was stationary and why did he then not take timeous action to avoid a collision? The question is even more pertinent considering the evidence that the two respective vehicles were travelling at more or less the same speed.

[8] In my view the correct approach was set out in Reemers v A.A. Mutual Insurance Association Ltd 1962 (3) SA 823 (W.L.D.) at 825 E:

"A driver of a car following another car should not travel either so closely behind or at such a speed that he is unable to pull up or swerve in the event of a sudden stoppage or movement on the part of the driver of the car in front. "

[9] There have been a number of cases dealing with vehicles colliding with an unobserved obstruction at night. The problem faced by such a driver has been described as "the horns of a dilemma". The problem is this: If the driver had been keeping a proper lookout and had been driving at a reasonable speed, he would have been able to

pull up before the vehicles collided (See: Manderson v Century Insurance Co Ltd 1951 (1) SA 533 (A) at 537 H). Since the driver could not do so, he must either have been driving too fast, or he did not keep a proper lookout. This is, in my view, even more applicable where the accident happens in daytime in good visibility. The question must be asked: Why could plaintiff not have avoided the collision? In my view he was either travelling too fast, or he did not keep a proper lookout, and he only realized that the truck was travelling slower than he was when it was too late to avoid the collision. There is no doubt that plaintiff was negligent.

[10] The next question is whether Mr. Mawila was also negligent. In cross-examination he was criticized for not seeing the plaintiff's vehicle before the collision. There is no evidence that had he seen the plaintiff before the collision, that he would have been able to avoid the collision. If Mr. Mawila is to be blamed for not seeing plaintiff's vehicle before the accident, which I do not believe is appropriate, then there is in any event no evidence that his failure to observe plaintiff contributed to the collision. In the premises I find that plaintiff has not satisfied the onus of proving that the insured driver was negligent.

[11] I therefore make the following order:

[11.1] Plaintiff's claim is dismissed with costs.

Swanepoel AJ

Acting Judge of the High Court,

Gauteng Division, Pretoria