Mdiza v Road Accident Fund (138/08) [2009] ZAECGHC 62 (28 August 2009)

FORM A

FILING SHEET FOR SOUTH EASTERN CAPE LOCAL DIVISIONJUDGMENT

PARTIES: Mdiza v Road Accident Fund

Case Number:

1138/08

High Court:

Eastern Cape Division

DATE HEARD:

20/08/09

DATE DELIVERED: 28/08/2009

JUDGE(S): Froneman J

LEGAL REPRESENTATIVES –

Appearances:

for the Applicant(s): Adv Cole

for the Respondent(s): Adv Msizi

Instructing attorneys:

for the Applicant(s): Mili Attorneys

for the Respondent(s): Dullabh Attorneys

CASE INFORMATION –

Nature of proceedings.

Topic:

Key Words:

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE, GRAHAMSTOWN)

Case No: 1138/08

In the matter between

LINDIWE MDIZA Plaintiff

and

THE ROAD ACCIDENT FUND Defendant

JUDGMENT

FRONEMAN J.

[1] This is an action for damages under the provisions of the Road Accident Fund Act, 56 of 1996. The plaintiff’s claim is a dependants’ claim (on her own behalf and that of her daughter) arising from the death of her husband as a result of a motor collision in Raglan Road, Grahamstown, on 4 September 2006.

[2] At the pre-trial conference the parties agreed that the so-called ‘merits’ and quantum of the claim be separated and that only the first issue, that of liability (the ‘merits’), be determined at this stage of the proceedings. This was duly made an order of court at the start of the trial.

[3] The only issue is thus whether the driver of the insured vehicle was in some degree causally negligent in causing the death of the plaintiff’s husband.

[4] On behalf of the plaintiff one witness, Mr Lulamile Mnamatha, was called. On behalf of the defendant the driver of the insured

vehicle, Mr Sicelo Mqubuli, and his passenger, Ms Momazwi Fuku, were called as witnesses. The two respective versions are mutually

contradictory.

[5] Mr Mnamatha testified that at the time of the accident he worked at a business called Valley Trucks in Orsmond Terrace, Grahamstown.

Valley Trucks operated a tow-away service and also did some mechanical work. Mr Mnamatha was a driver and an assistant mechanic

for Valley Trucks. On the particular day in question, Monday, 4 September 2006, Mr Mnamatha returned home after finishing his last assignment at work. He was driving a Courier, a towing vehicle which had cones, lights and towing equipment on it. He stopped at the stop street in Orsmond Terrace where it intersects with Raglan Road. It was just past 8 o’clock in the evening. After stopping he looked both ways, up and down Raglan Road. To his left he saw a car approaching at speed down Raglan Road. To his right he also saw an oncoming car driving up Raglan Road. The car coming from his left, that is, down Raglan Road, crossed the centre line of the road, forcing the approaching car coming from the bottom of Raglan Road to

swerve, thereby avoiding an accident. This first car passed in front of him. The vehicle coming from the top of Raglan Road continued

downhill. It first returned to its correct side of the road, but then again moved across the centre white line on its way down to the bridge at the bottom of Raglan Road. Whilst still thus moving on to the incorrect side of the road, it collided with another, second, vehicle coming from the witness’s right hand side, at the bridge at the bottom of Raglan Road. As a result of the collision the cars ended up straddling both lanes of Raglan Road, thereby blocking the road for other travel. The witness turned right into Raglan Road and stopped behind the car that had come from the top of Raglan Road. He then noticed that it was a green car. This was the insured vehicle. The driver of the insured vehicle got out and when Mr Mnamatha asked him what had happened he simply exclaimed: “Jesus, Jesus”. Mr Mnamatha secured the scene of the collision by placing cones across the road. Two men from the security company, Hi-Tec, arrived. Soon after that an ambulance arrived and took out the driver from the other vehicle involved in the collision. A vehicle from Auto Breakdown arrived and towed away the insured vehicle. Mr Mnamatha towed the other vehicle, white in colour, to Valley Trucks.

According to Mr Mnamatha the driver of the green vehicle, the insured vehicle, was to blame for the collision because he moved the insured vehicle across the centre line of the road shortly before the collision. According to him the driver of the other vehicle, the white one, could do nothing to avoid the collision. The driver of this other vehicle was the plaintiff’s husband.

[6] The defendant’s witnesses told a different story. The driver of the insured vehicle, Mr Mqubuli, testified that he was driving slowly down Raglan Road towards the bridge at the bottom. He was following a white Golf vehicle. The white Golf then suddenly gave way to its right, revealing the lights of an oncoming vehicle on its incorrect side of the road, in the insured vehicle’s line of travel. He could do nothing to avoid a collision with this oncoming vehicle. The collision occurred on his correct side of the road. The police arrived, as well as an ambulance. He was taken to hospital. The passenger in his vehicle, Ms Fuku, in broad terms confirmed this version, namely that the white Golf vehicle in front of them swerved to its right, apparently to avoid the oncoming vehicle on its incorrect side of the road, as a result of which their vehicle, the insured vehicle, collided head-on with the oncoming vehicle on the insured vehicle’s correct side of the road.

[7] It is apparent that these two versions cannot be reconciled. Either the one is correct, or the other. When faced with two mutually destructive versions of this kind in a civil case the correct approach to an evaluation of the evidence was set out as follows in National Employers’ General Insurance Co Ltd v Jagers 1984 (4) SA 473 (E) at 440E-441A by Eksteen AJP:

“... [W]here there are two mutually destructive stories, [the plaintiff] can only succeed if he satisfies the Court on a preponderance of probabilities that his version is true and accurate and therefore acceptable, and that the other version advanced by the defendant is therefore false or mistaken and falls to be rejected. 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.

This view seems to me to be in general accordance with the views expressed by Coetzee J in Koster Ko-operatiewe Landboumaatskappy Bpk v Suid-Afrikaanse Spoorweë en Hawens 1974 (4) SA 420 (W) and African Eagle Assurance Co Ltd v Cainer 1980 (2) SA 234 (W). I would merely stress however that when in such circumstances one talks about a plaintiff having discharged the onus which rested upon him on a balance of probabilities one really means that the Court is satisfied on a balance of probabilities that he was telling the truth and that his version was therefore acceptable. It does not seem to me to be desirable for a Court first to consider the question of the credibility of the witnesses as the trial Judge did in the present case, and then, having concluded that enquiry, to consider the probabilities of the case, as though the two aspects constitute separate fields of enquiry. In fact, as I have pointed out, it is only where a consideration of the probabilities fails to indicate where the truth probably lies, that recourse is had to an estimate of relative credibility apart from the probabilities.”

(This statement was cited with approval by Grosskopf JA in Baring Eiendomme Bpk v Roux [2001] 1 All SA 399 (A) at 402a-f)

[8] In my judgment the evidence of Mr Mnamatha is to be preferred to the evidence of Mr Mqubuli and Ms Fuku.

[9] Mr Mnamatha’s version is not inherently improbable and no material criticism can be directed either at the content of his

evidence or the manner in which he gave evidence. His version contained no contradictions. It was submitted by Ms Msizi, counsel for the defendant, that he contradicted a statement made by him to the police, to the extent that he did not mention in that statement that the collision occurred on the insured vehicle’s incorrect side of the road. This criticism is misdirected. Firstly, this statement was not properly proven in evidence. Secondly, the content of the statement is not contradictory to his evidence at the trial. It stated that the collision occurred substantially in the manner he testified to at the trial. There is certainly no indication in the alleged statement that the collision occurred on the insured vehicle’s correct side of the road. It is, at the least, consistent with his version that he testified to at the trial. That he was indeed an independent witness is confirmed by the entry on the police accident report form to that effect.

[10] Both as far as content and demeanour the evidence of Mr Mqubuli and Ms Fuku cannot be judged as favourably. Mr Mqubuli’s version that he was driving downhill at a speed estimated as low as 20 kilometres per hour appears to me to be highly improbable. The version that the collision occurred completely on his correct side of the road – a head-on collision – also appears to be somewhat improbable. On his own version only the right front fender of his vehicle was damaged, something which is not entirely consistent with a head-on collision completely on his correct side of the road. In cross-examination he contradicted his evidence in chief in respect of his own speed and that of the speed of the Golf. He also denied that he gave evidence that the Golf gave way for him - something which he did in fact state in evidence in chief. His evidence at the trial also contradicted in many respects a statement he made to the police after the accident. In the statement it is stated that the Golf vehicle in front of him swerved away sometime prior to the collision occurring at the bridge. Contrary to his evidence at the trial he also stated in the statement that he could see the approaching vehicle and that it was travelling at a high speed. In the statement he also stated that he swerved to the left and right of the road in attempt to avoid the collision, something which he denied in his evidence at the trial.

Similar criticism can be directed at the evidence of Ms Fuku. She contradicted the evidence of Mr Mqubuli as to the speed at which the white Golf was travelling. When confronted with her evidence in chief that the Golf vehicle swerved away sometime before the insured vehicle reached the bridge, she tried to extricate herself from that statement in a highly unsatisfactory manner. Her statement to the police also contradicted her evidence at the trial in a number of respects, the most important of which were the statements that how Mr Mqubuli “had to manoeuvre to safety” after the Golf vehicle swerved, and that he “swerved to the opposite lane”.

In the pre-trial minute these statements were admitted to “represent the statements made by those witnesses”. They were thus properly proved, unlike the statement put to Mr Mnamatha. I am satisfied, even allowing for the risks inherent in a comparison of evidence at trial with earlier statements (as referred to and discussed in Mafaladiso v S [2002] 4 All SA 74 (SCA) at 82 – 83), that the contradictions between the evidence of these two witnesses at the trial, compared to their admitted earlier statements, are material and reflect adversely on their credibility.

[11] One last aspect needs to be referred to. Constable Njengele, who attended the scene after the accident, was also called as a witness by the defendant. He accepted that he had no personal knowledge of the accident. In my judgment his evidence is wholly

unhelpful in the resolution of the issue in dispute in this case. His evidence of how the vehicles stood when he arrived there, namely on one lane of the road, but apart, does not assist in determining on which side of the road the collision occurred. Even Mr Mqubuli testified that when he got out of his vehicle, the insured vehicle and the other vehicle were in contact with each other. Mr Njengele’s evidence is that they were apart. In any event the positioning of vehicles after a collision is a notoriously unpredictable indicator of where and how a collision might have occurred. In the absence of expert evidence on this the mere fact that they might have been on the insured vehicle’s lane after the accident contributes little, if anything, in determining where the collision actually occurred. Constable Njengele’s sketch plan on the police accident report form takes the matter no further as it contains no indications of directions, distances, and the like. The conclusion is inevitable that the collision was not properly investigated and the police accident report form unhelpful, except to the extent that it recorded that the plaintiff’s witness was indeed an independent eye witness to the accident.

[12] I accordingly accept the evidence of the plaintiff’s witness and reject that of the witnesses called on behalf of the defendant.

On the accepted version the driver of the insured vehicle was negligent in veering across the centre of the road, thereby causing

the collision with the oncoming vehicle.

[13] In the result the following order is made:-

“1. It is declared that the defendant is liable to compensate the plaintiff for the damages that she may prove resulted from the accident on 4 September 2006;

2. The defendant is ordered to pay the costs of suit, such costs to include the costs of a pre-trial inspection in loco attended by counsel.”

___

J C FRONEMAN

JUDGE OF THE HIGH COURT