Mahaga v Road Accident Fund (93411/15) [2017] ZAGPPHC 774 (6 November 2017)

IN

THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

CASE NO.: 93411/15

NOT

REPORTABLE

NOT

OF INTEREST TO OTHER JUDGES

REVISED

In the matter between:

LUCKY

MASHUDU MAHAGA Plaintiff

And

ROAD

ACCIDENT FUND Defendant

JUDGMENT

HASKINSAJ:

[1] The plaintiff, Mr. Lucky Mashudu Mahaga, instituted an action against the defendant (the 'Fund') for damages suffered in respect of injuries sustained as a result of a motor vehicle collision that took place on 30 November 2014 along Main road and Nelmapius avenue, Irene, Centurion and as contemplated in section l 7(1)(a) of the Road Accident Fund Act 56 of 1996 (the 'Act'):

'The Fund or an agent shall - (a) subject to this Act, in the case of a claim for compensation under this section arising from the driving of a motor vehicle where the identity of the owner or the driver thereof has been established; 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 in the Republic, if the injury or death is due to the negligence or other wrongful act of the driver or owner of the motor vehicle or of his or her employee in the performance of the employee's duties as employee.

[2] The plaintiff alleged in his amended particulars of claim, dated 29 September 2017, that he was the driver of a white Audi A3 with registration CJ34MS GP, driving along Main road when Ms. Madie Dittrich (the 'insured driver') who was driving a white Porsche Cayenne with registration BL15FJ GP drove along Nelmapius avenue and without stopping at the stop street collided with him at the intersection of Main road and Nelmapius avenue. As a result of the collision, the plaintiff collided with a third motor vehicle, a Toyota Prado that was stationary on the other side of Main road, the Plaintiffs far right.

[3] Main road consists of two lanes, with traffic travelling in opposite directions. At the intersection there are three lanes; the left lane can turn left or continue travelling straight. The middle lane turns only to the right and the right lane is the lane reserved for oncoming traffic. Nelmapius avenue consists of two lanes and similarly, traffic travels in opposite directions.

[4] The plaintiff further alleged that the sole cause of the collision was the

negligence, in the respects alleged in his particulars of claim, of the insured driver.

[5] The Parties agreed at the start of the trial that the issue of merits and quantum would be separated in terms of Uniform Rule 33 which is in line with the agreement as set out in the minute of the pre-trial conference held on 2 March 2017.

[6] Therefore, the only issue to be decided upon was the issue of liability on the merits.

[7] Counsel for the Plaintiff indicated that he bears the onus and therefore has the duty to begin and informed the court that he intended calling two witnesses, namely the plaintiff and his brother who was with him in the Audi A3 at the time of the collision, in order to discharge the onus.

[8] The Plaintiffs case is that he was travelling on Main road and when he approached the intersection, he stopped. When it was safe to proceed to cross the intersection, he did so. In fact, he indicated that he did not see any other vehicle travelling on Nelmapius avenue. While crossing the intersection, his brother who was a front seat passenger, “shouted that a car was coming" from the left (Nelmapius avenue) and that "it was not stopping" at the intersection. After the shout, the Plaintiff "heard a loud bang" and the Porsche Cayenne hit his vehicle on the left fender.

[9] The Plaintiffs evidence was confirmed by his brother during his brother's testimony.

[10] The Fund did not call the insured driver but rather called an independent witness ' Mr. Lenard Durant von Evins.

[11] The Fund gives an entirely different version of the collision. Mr. von Evins says that he was driving behind the white Porsche Cayenne, who stopped at the inter section. Thereafter "she proceeded slowly" over the intersection towards Irene Fann "and the next minute a white Audi, I think it was an Al or an A2 or an A3, Jam not sure, I do not know cars so well, came from the NJ 's side". According to Mr. von Evins "this white Audi came flying down this, from this road, and skipped the stop street and slammed into this Porsche Cayenne and he turned that vehicle" Mr. von Evins was of the opinion that "he must have been travelling about, I do not know 140, 120, 150, I don't know how quick but he was going at a massive speed and he hit this Porsche Cayenne on the side on the right-hand side" . Mr. von Evins then described that the Porsche came to a stand still on the third lane on Main road. This is the right lane; the lane of the oncoming traffic and that white Audi must have bumped the third vehicle on the far right side; on the right side of the right lane.

[12] On the Funds version, the insured driver entered the intersection and the plaintiff, who was speeding, failed to stop at the intersection and consequently collided with the insured driver.

[13] These two versions are in effect mutually destructive in the sense that the acceptance of the one must necessarily lead to the rejection of the other.

[14] In civil cases, the onus can ordinarily only be discharged by adducing credible evidence to support the case of the party on whom the onus rests and where there are two mutually destructive versions, he can only succeed if he satisfies the Court on a preponderance of probabilities that his version is true and accurate and therefore acceptable and further that the other version advanced by the Fund is therefore false and mistaken and falls to be rejected.

[15] Eksteen AJ in National Employers' General Insurance Co Ltd v Jagers 1984 ( 4) SA 437 {E) stated that "in deciding whether that evidence is true or not, the Court will weigh up and test the plaintiff's allegations against the general probabilities. The estimate of the credibility of a witness will therefore be inextricably bound up with a consideration of the probabilities of the case and, if the balance of probabilities favours the plaintiff, then the Court will accept his version as being probably true. If, however the probabilities are evenly balanced in the sense that they do not favour the plaintiff's case any more than they do the defendant's, the plaintiff can only succeed if the Court nevertheless believes him and is satisfied that his evidence is true and that the defendant's version is false".

[16] In Stellenbosch Farmers' Winery Group Ltd and Another v Martell et cie and Others 2003 (1) SA 11 (SCA) Nienaber JA stated that 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. 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 extra curial 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 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. The hard case, which will doubtless be a rare one, occurs when a court's credibility findings compel it in one direction and its evaluation of the general probabilities in another. The more convincing the former the less convincing will be the latter. But when all factors are equipoised probabilities prevail".

Credibility of the factual witnesses

[17] My impression of the plaintiff and his brother is that both of them appeared open, honest and frank. Their evidence was consistent with no contradictions. They were therefore clear and convincing on their version of how the accident took place. During cross examination, they did not deviate from the testimony given in examination in chief and in fact reaffirmed the events, namely, stopping at the at the stop street, entering the intersection when it was safe to do so and while crossing the intersection, it was for the first time that the insured driver would have appeared and seen by the plaintiff's brother.

[18] It is generally easy to accept the veracity of an independent witness' testimony because such a witness rarely has any other motive but to merely state what he or she saw. I, however, found that Mr. von Evins exaggerated the information how the collision occurred. At the start of his evidence, he was clear that he saw the Audi speeding between 120-150 kilometres per hour, skipping the stop street and smashing into the insured driver. During cross examination, he indicated that he did not in fact see the Audi prior to the collision but only after the collision occurred and after helping the insured driver out of the car.

Reliability of the witnesses

[19] The plaintiff and his brother's quality, integrity and independence of their recall of how the collision took place, I found was reliable.

[20] Mr von Evins evidence was generally reliable but there were contradictions, as stated above.

The probabilities

[21] When looking at the probabilities, the description of the motor vehicles, the point of impact and the position the motor vehicles became stationary were an important consideration for me.

[21.1] The insured driver was driving an SUV, a car much bigger and stronger in relation to the Audi A3. If the Audi collided with the SUV then it would most probably have come to a stop. If the SUV collided into the Audi, then it is more probable that the SUV would have pushed the Audi in the direction that the SUV was travelling.

[21.2] As described by all the witnesses, the point of impact was at the end of the intersection for the plaintiff; plaintiff would have successfully crossed the first lane on Nelmapius avenue and the collision occurred at the second lane; the lane the insured driver was travelling on. This therefore means that the plaintiff would have successfully completed the intersection crossing had it not been for the accident. Consequently, the insured driver would have just entered the intersection.

[21.3] As stated by Mr. von Evins, the insured driver's Porsche Cayenne came to a stop on the third lane on Main road; the oncoming traffic when you are travelling on Main road, while the plaintiffs Audi A3 was pushed to the far right of the oncoming traffic on Main road where the plaintiff collided with a third motor vehicle that was stationary on the side of the road on the far right of the oncoming traffic on Main road.

Discharging the onus

[22] When analysing the requirements as laid out in the Stellenbosch case, I find the Plaintiffs version to be more probable especially when I consider what happened immediately after the collision and where the motor vehicles had become stationary. I find it hard to consider that the same effect would have been achieved if the plaintiff collided into the insured driver. I also accept that the Plaintiff, when his brother shouted that the insured driving was coming towards him, did not have sufficient time to avoid the collision. I note that the Plaintiffs brother was of the view that he had 40 seconds between the time he shouted and the time of the collision but on questioning from the Court, I don' t find that he had an appreciation of how long it takes to cross an intersection. This is clear when he indicated that he thinks it generally takes 50 seconds to cross an intersection and even though the Plaintiff successfully crossed the first lane on Nelmapius avenue that the Plaintiff still had 40 seconds by the time the insured driver collided with him in her lane, the second lane on Nelmapius avenue. In addition, Mr. von Evins indicated that the insured driver was on her way to join a running marathon on the day. The Plaintiff indicated that the collision took place after 6am. I am aware that marathon runs are scheduled for 6am during the summer months. I am therefore of the view that the insured driver would possibly have been late for the run and was most probably in a hurry on the day.

[23] Under the circumstances, I find that the plaintiff has discharged his onus of proof.

[24] On the facts I cannot find that the Plaintiff was negligent either in causing the collision or by failing to avoid it. I find that the insured driver was the sole cause of the collision.

[25] In the result, the order which I make is the following:

1. The defendant is liable to compensate the plaintiff for such damages which they are able to prove in respect of bodily injuries sustained arising from the aforesaid collision.

2. The defendant is ordered to pay the costs of the trial on a party and party high court scale.

______

L

HASKINS

6 November 2017