Ngubane v Road Accident Fund (1461/2004) [2007] ZAKZHC 41 (13 September 2007)

IN THE HIGH COURT OF

SOUTH AFRICA

DURBAN AND COAST LOCAL DIVISION CASE NO. 1461/2004

In the matter between:

BONGINKOSI JAMES NGUBANE PLAINTIFF

and

ROAD

ACCIDENT FUND DEFENDANT

________________

JUDGMENT delivered on 13 September 2007

SWAIN, J

It is common cause that the plaintiff, who was a pedestrian, was knocked down by an unidentified motor vehicle on 2nd September 2000 on the Richmond Road, Foxhill. The only issue before me is that of the liability of the defendant to compensate the plaintiff for the damages he allegedly suffered as a result of the injuries he sustained in the collision, because by consent of the parties, I ordered in terms of Rule 33 (4) that the issues of liability and quantum be separated and that the trial proceed initially only on the issue of liability.

The conflict between the parties on this issue finds its origin in the evidence of the plaintiff, and in the evidence of Andile Zaca, who was called by the defendant. The conflict, in its essence, requires for its resolution, a determination of where the point of impact was between the plaintiff and the unidentified vehicle. The plaintiff says that it was off the road on the grass verge, whereas the defendant’s version is that it was in the lane of travel of the vehicle.

The versions are therefore mutually destructive and it is trite that the plaintiff, in order to succeed, has to satisfy this Court on a balance of probabilities that his version is true and accurate and therefore acceptable, and that the version advanced by the defendant is false and falls to be rejected. In deciding whether the evidence is true or not, the Court will way up and test the plaintiff’s allegations against the general probabilities. The credibility of a witness is therefore inextricably bound up with a consideration of the probabilities of the case. 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, 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.

National Employers General Insurance v Jagers

1984 (4) SA 437 (E) at 440 D – G

The plaintiff’s version is that he was walking along the edge of the right hand side of the road, within the emergency lane, demarcated by the yellow line, facing oncoming traffic. He saw a vehicle approaching at speed which left the lane it was travelling in and moved into the emergency lane in which he was walking. He ran to his right onto the grass verge to save himself, but to no avail, for that is where the vehicle collided with him. Prior to the accident he was in the company of three companions, one of whom was the defendant’s witness, Zaca, they were walking along the edge of the road as described in single file, with the plaintiff bringing up the rear. They were not following each other that closely as there were gaps between them. He did not see where his three companions went when the vehicle approached, but they were not struck by the vehicle which he said he felt bad about.

As I have said, the witness for the defendant, Mr. Zaca, tells an entirely different story about how the accident happened. He had been drinking with the plaintiff and the other two companions, one of whom was known as Sandile, for several hours before the accident. The plaintiff and Sandile were both drunk and were quarrelling with each other as they walked along the road. The plaintiff had armed himself with a sugar cane stick with which he was striking Sandile and this altercation was at times conducted in the road, with the result that on two occasions before the collision occurred, he and the other companion, by the name of Vikimpi, had to pull the protagonists out of the way of approaching vehicles. When the plaintiff was struck he was just inside the traffic lane with his back to the approaching vehicle. Sandile was standing in front of the plaintiff facing the oncoming vehicle. The plaintiff did not realise the vehicle was approaching, and despite the best efforts of Vikimpi and himself, they were unable to pull the plaintiff out of the path of travel of the vehicle, which then struck the plaintiff.

In considering the respective versions of events, against the general probabilities, there are two additional factors to be considered in deciding upon the truthfulness of these witnesses. The plaintiff stated that Zaca, whom he acknowledged was his friend at the time of the accident, had lied in Court because the plaintiff had had a love relationship with Zaca’s sister, which had ended. As a result the plaintiff alleged that Zaca had wanted to cause problems for him in the present case. Zaca acknowledged that there had been a love relationship between his sister and the plaintiff which had ended. He did not know whether it had ended unhappily as that was, as he put it, between the two of them. He denied that he was unhappy about this turn of events and stated that he was not here to prejudice anybody’s case. Of significance in this regard is that on the day after the accident, Zaca made a statement to the police in which he described how he had to remove the plaintiff from harm on two occasions and the plaintiff was eventually knocked over in the road. In his statement however, he made no mention of the continuing altercation between the plaintiff and Sandile, and attributed the irrational behaviour of the plaintiff solely to his drunken state. I will return to this omission in due course. However, I regard it as grossly improbable that on the day after the incident, he

would have hatched a plan to blame the plaintiff for the accident, in order to defeat any claim the plaintiff may have had against the driver for the injuries he had sustained. On the plaintiff’s evidence they were on good terms immediately before the accident and had spent several sociable hours in each others company. Why then would Zaca suddenly be the architect of such a Machiavellian plan and still be prepared to carry it out seven years after the accident by giving false evidence in Court?

Turning to the failure of Zaca to mention the altercation in his statement. He agreed that he had made the statement appearing at pages 40 to 41 of Bundle “C”, but stated that he had told the policeman who took the statement, that they were fighting with a stick. He could not recollect whether the police had read his statement back to him, as he said it was a long time ago. The policeman who recorded the statement was never called by the plaintiff to prove that it was an accurate record of what he had been told by Zaca and that Zaca had signed the statement after it had been read back to Zaca to confirm its accuracy. There is consequently no evidence to contradict Zaca’s assertion that the statement is not an accurate record of what he told the police.

Turning to an assessment of the general probabilities of the competing versions of how the accident happened. Without being an armchair critic, wise after the event, I find it inexplicable that the plaintiff was unable to say what happened to his companions, who were all walking in front of him before the accident. He was able to see the vehicle approaching and had sufficient time to get onto the grass verge, but was unable to see what they did to avoid being run over. It is also inexplicable that he never asked any of them after the accident how they avoided the vehicle. That they were not also run over by the vehicle which, according to the plaintiff, veered right off the road surface onto the grass verge I also find grossly improbable. In the result, the plaintiff’s allegations of how the accident happened fall to be rejected as false. I am satisfied that Zaca’s version of events is the truth and can safely be accepted.

That however is not the end of the matter. Zaca says the vehicle was travelling at high speed with its lights on, did not hoot or brake, and did not swerve to its right, when it was able to do so because of the absence of approaching vehicles. From the photos of the road in Exhibit “B”, it is clear that it is straight. If the driver of the vehicle had been keeping a proper lookout he would have seen the plaintiff and Sandile directly in his lane of travel, and been able to take evasive action to avoid the collision. I am satisfied that the driver of the vehicle was contributorily negligent in regard to the collision. Considering all of the facts I am satisfied that the negligence of the plaintiff outweighs that of the driver. This is because the plaintiff after all, was carrying on an altercation directly in the lane of traffic with his back to approaching traffic. I would therefore assess the degree of contributory negligence on the part of the plaintiff at sixty percent.

As regards the issue of costs. The case is a simple one and clearly did not deserve the attention of two Counsel on behalf of the plaintiff. In addition, Counsel were agreed that because of extraneous factors relevant to this issue, which could not yet be brought to my attention, any costs order I make should be provisional at this stage and subject to the right of either party to submit further written argument in due course.

The order I therefore make is the following:

The defendant is declared to be liable to compensate the plaintiff for forty percent of any damages the plaintiff may prove to have suffered as a consequence of the collision.

The defendant is provisionally ordered to pay the plaintiff’s costs incurred to date, such costs to include the costs of only one Counsel. Each party is afforded the opportunity to file written argument on this issue, within ten Court days of the date of this order, failing which this order as to costs will become final on the expiry of such period.

______

SWAIN, J.

Appearances /.......

Appearances:

For the Plaintiff : Adv. L. Pillay, S.C.

With Adv. Madhoo U. (M/s)

Instructed by : Justice Reichlin Ramsamy

Durban

For the Defendant : Adv. R. Padayachee, S.C.

Instructed by : Zubeda K. Seedat & Company

Date of Hearing : 03 & 04 September 2007

Date of Judgment : 13 September 2007