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FORM A

FILING SHEET FOR EASTERN CAPE HIGH COURT, GRAHAMSTOWN JUDGMENT

ECJ:

PARTIES: NOMALIZO MGUYE N.O.

And

THE ROAD ACCIDENT FUND

1. Registrar: 40/08

2. Magistrate:

3. High Court: EASTERN CAPE HIGH COURT, GRAHAMSTOWN

DATE HEARD: 30/07/09

DATE DELIVERED: 06/08/09

JUDGE(S): JONES J

LEGAL REPRESENTATIVES –

Appearances:

1. for the Plaintiff(s): ADV: Kincaid

2. for the Defendant(s): ADV: J. McConnachie

Instructing attorneys:

2. for the Plaintiff(s): MILI ATTORNEYS

3. for the Defendant(s): N. N. DULLABH & CO.

CASE INFORMATION -

1. Nature of proceedings : DAMAGES

THE HIGH COURT OF SOUTH AFRICA

Not reportable

In the Eastern Cape Division

Grahamstown Case No 40/08

Delivered:

In the matter between

NOMALIZO MGUYE N.O. Plaintiff

and

ROAD ACCIDENT FUND Defendant

SUMMARY: Motor vehicle – negligent driving – two vehicles approached each other on the open road at night on a bend – the driver of one of them (the first driver) was proved to have crossed on to its incorrect side of the road as he rounded the bend, and to have had his lights on bright which partially blinded the other driver – the other driver pulled to his left, went off the side of the road, lost control, and his vehicle overturned – the incident was held to have caused by the negligent driving of the first driver.

JUDGMENT

JONES J:

[1] In the small hours of Saturday, 20 August 2005 Mr Khutele Industrias Ngcangca was driving his Golf sedan along the R75 national road between Graaff-Reneit and Jansenville in the Eastern Cape. As he rounded a bend he was confronted with a large truck and trailer coming from the opposite direction. He said that its lights were on bright and partially blinded him, and that it had crossed on to its incorrect side of the road. He moved to his left to avoid it, his vehicle left the road, he lost control, and the vehicle rolled down an embankment. Mrs Bulelwa Alicia Maninjwa, a rear seat passenger, was fatally injured in the incident. The driver of the other vehicle did not stop.

[2] Mrs Maninjwa was the mother of two minor children. She was also their sole breadwinner. In due course, action was instituted on their behalf against the Road Accident Fund for compensation based on the deprivation of support they have suffered as a result of the wrongful killing of their mother. It is common cause that they are entitled to R121 586-00 (R41 073-00 for the elder and R80 513-00 for the younger) as compensation under the Road Accident Fund Act No 56 of 1996 if it can be established that their mother was wrongfully killed in the road ‘accident’ in question as a result of the negligent driving of the driver of the truck.

[3] The issue of causally negligent wrongdoing by the truck driver came before me on 30 July 2009. Three witnesses testified. They were the driver of the Golf, Mr Ngcangca; and two police officers who attended the scene shortly afterwards – the investigating officer, Inspector Erasmus, who took statements from Mr Ngcangca and the three other passengers in the Golf (all of whom miraculously escaped injury), and Superintendent Alie who photographed the scene and made certain observations while doing so.

[4] The undisputed background evidence was that on the evening of Friday, 19 August 2005 Mr Ngcangca and his four passengers were en route in the Golf from Cape Town to Keisakammahoek, near Alice in the Eastern Cape, to attend a funeral the following Saturday morning. They were to have left at midday, but were delayed because the deceased could not get off work early, and they left instead at about 18h00. The delay did not put them under pressure and they did not have to hurry to get to the funeral on time. They drove without incident through the Karroo during the night. The weather was clear and fine, and there was not much traffic. The Golf was in good condition. Mr Ngcangca’s route took him from the Cape through Laingsburg to Beaufort West and then Graaff-Reneit. He drove at a speed of about 120 kph. However, in the vicinity of Graaff-Reinet he reduced speed to between 80 and 100 kph because he and his passengers were conscious of the danger posed by the presence of kudu on the road at night at that time of year. Mr Ngcangca was not tired. He had had a good rest during the day and had stopped for breaks at Laingsburg and Beaufort West. He intended to stop for a further break at Pearston, which is beyond Graaff-Reinet. The party were in good spirits as they approached the scene of the accident, singing gospel songs in accompaniment to music on the car radio. Mr Ngcangca last looked at his watch at about 01h30. It was common cause that the accident occurred thereafter some 21 kilometres from Jansenville (the party had unwittingly missed the turnout to Pearston) and that the police in Jansenville received their 10111 emergency telephone call some time after 02h00. Inspector Erasmus arrived at the scene at 02h45. By then the driver of the Golf and his passengers, but not the body of the deceased, had been taken away by ambulance, and other police officers and fire brigade officials were already in attendance.

[5] The scene is described in the evidence of the witnesses and illustrated by Superintendent Alie’s album of photographs, some taken that night and the rest in daylight. The R75 is a tarred national road running from Graaff-Reneit in the North towards Jansenville and beyond in the South. It is 6.8 metres wide at the area of the accident, with single lanes of travel in either direction, divided by a double barrier white line because of the presence of a blind bend. There are no yellow shoulder lines. On the eastern side there is a gravel verge, and next to it a flat grassy area which then declines down a steep embankment. On the western side the grass is closer to the tar and the adjacent terrain inclines. The incident happened on a bend which, as clearly shown in the photographs, curves sharply to the west. From the north the road inclines slightly for quite a long straight stretch before reaching the bend. There would also appear to be a stretch of straight road as one approaches the bend from the opposite direction. The Golf was being driven from north to south, and the truck and trailer in the opposite direction. They drove past each other in the bend. The Golf was still at the place where it came to rest when the police arrived and investigated the scene, although it had been pushed over on to its side by Mr Ngcangca and his passengers in order to release the body of the deceased which had been trapped beneath it. She had been seated in the middle at the back, and she and the person next to her had been flung from the vehicle when it overturned. Superintendent Alie found marks on the gravel on eastern edge of the road which enabled him to trace the course taken by the Golf after it left the road. It moved along the gravel verge for 119 metres before finally going completely out of control and rolling down the embankment. It came to rest a further 87 metres from where it began to go down the slope.

[6] So much for the scene. Mr Ngcangca’s evidence is the only version of what happened there that night. It is simple and straightforward. He drove towards the bend and was aware of an oncoming vehicle approaching from the other side from the glow of its lights. He reduced speed to about 80 kph because of the bend ahead and as he got nearer he took his foot off the accelerator and could have applied his brakes gently. The two vehicles met in the bend. He first saw the truck when it was almost upon him, an estimated 10 to 15 metres away. All of its lights, including fog lights, were shining, and its headlamps were on bright and partially blinded him. He could see that the lights on its right side were directly in his path of travel on his side of the road. Everything happened very quickly. All he could do was to swing to his left to avoid a collision. His left wheels went off the tar on to the gravel, causing the car to ‘misbehave’ as he put it, by appearing to slide as if about to go out of control. He moved back on to the tar. But he realised that the trailer behind the truck was still in his path of travel and he had to move to his left again. This time all four wheels left the tar and his car went on to the eastern gravel verge. He found himself out of control. He does not know if he applied brakes at that stage or for how long he remained on the gravel verge. But he could not regain control. His car left the roadway and overturned. He does not know how many times it rolled. When it came to a stop he realised that the deceased and another rear seat passenger had been thrown out. They had to push the car over to release the deceased who was lying beneath it. She was dead. Nobody else sustained serious injury which required treatment. He used the deceased’s mobile telephone to make an emergency report to the police on the 10111 number. In due course the police and an ambulance arrived, and he and his passengers were taken to the police station in Jansenville.

[7] It was common cause that the truck did not stop and that Mr Ngcangca did not have the time or opportunity to be able to identify it. Its driver’s version is unknown. The defendant was, furthermore, unable to rely on a version by other witnesses. The evidence is that later that morning, at some time after 05h00, Inspector Erasmus took statements from Mr Ngcangca and his passengers. She confirmed that they all described how the Golf was suddenly confronted by the bright lights of an oncoming truck as it went round the bend. They told a story consistent with the plaintiff’s case, which meant that the defendant could not realistically call them as defence witnesses. The defendant was therefore not in a position to contradict the plaintiff’s case, or to lead evidence which directly caste doubt upon it. All that he was able to do was to test Mr Ngcangca’s credit and creditworthiness in cross-examination. With this end in view, Mr McConnachie made a valiant attempt to expose weaknesses in his evidence. But Mr Ngcangca passed the test with flying colours. As to general trustworthiness, he was a careful witness, without however being defensive; completely frank and open; a witness with every outward sign of a person who has nothing to hide and who is doing his best to give a true and accurate version of the facts. I am quite satisfied that he did and said nothing to mislead the court. Indeed, Mr McConnachie was not able to suggest that he was anything but an honest witness of good demeanour. He conceded as much.

[8] As to creditworthiness, Mr Ngcangca’s version was uncomplicated. It contained no inherent improbabilities. There was no attempt on his part to embellish, or to add convincing-sounding detail which he knew could not be contradicted. There was nothing to support a suggestion of recent fabrication or subconscious reconstruction. On the contrary, he gave a plausible account of the incident, a version which was consistent in itself and which gave a sensible and probable explanation of how he came to leave the road and overturn. He made proper concessions, for example about his inexperience as a driver; his lack of knowledge of the road; the possibility that he may have contributed to the vehicle going out of control by applying brakes when on the loose gravel verge; and the likelihood that he would not have lost control solely because the other driver did not dim his lights, and were it not also for the truck’s presence on its incorrect side of the road. He cannot be criticized for vagueness or evasiveness about the possibility of his having over-reacted by swinging too hard to the left. It should not be forgotten that at his estimated speed of a little below 80 kph or 22 metres per second, at his estimated distance of 15 metres, and regard being had to the combined speed of the two vehicles as they approached each other, he would have had no more than fractions of a second to see the lights of the other vehicle immediately in his path of travel in front of him and to pull to his left. His further recollection – of moving left, then back into the road, seeing the trailer looming in front of him, and swinging left again before the nightmare of going out of control and overturning down the embankment – is the kind of a vivid recall that, experience shows, frequently lives on in the memory. Here we know that this indeed happened from Superintendent Alie’s observations at the scene, except that there was no confirmation of the Golf leaving the road on two occasions.

[9] Mr McConnachie’s chief criticism of the reliability of Mr Ngcangca’s version is that there is no specific mention of the truck and trailer being on its incorrect side of the road in his statement to Inspector Erasmus. A frequently used method of breaking down the credibility of evidence is to prove a previous inconsistent statement by a witness which, if unexplained, may destroy or water down his version because of contradictions between the statement and the evidence. Mr McConnachie argued that a vital cornerstone of the plaintiff’s version is that the truck was on its incorrect side, and that its omission from the witness’s first statement is a serious criticism which prevents a positive finding that the truck was indeed on its incorrect side of the road. I do not agree that this conclusion is justified on the facts of this case. The purpose of Inspector Erasmus’s statement was to provide a brief but accurate description of the collision so that the police records correctly reflect what had happened. It did just that. It was not intended to contain the kind of detailed account of the occurrence that would result from a consultation between a witness and an experienced legal advisor conducted for the purpose of presenting evidence in court. This is not a case where the police statement contradicts the evidence given by the witness in a respect so material that it reflects adversely upon his reliability. Here, there is no contradiction at all. The police statement correctly relates that the witness saw the lights of the vehicle in the road ahead, but omits the specific detail of the position of the lights relative to centre or the edges of the roadway. Given the purpose of the police statement and that the police officer’s modus operandi in taking it – a broad and open-ended question to the deponent about what happened without any further probing or investigation – it is not surprising that the statement does not go into greater detail. It is, further, not surprising that Mr Ngcangca did not volunteer the detail, particularly in the light of his emotional condition when he made the statement. He had just a few hours before undergone the dreadful experience of having lost control of his motor vehicle with the result that it had overturned and a passenger, whom he knew well, had been killed. His evidence was that he had been very upset, which was to be expected. It is hardly surprising that he did not apply his mind to giving all the details when telling the police what had happened. In the result I am satisfied that this police statement was not properly a previous inconsistent statement, and that such differences in detail as there were between it and the evidence have no significant bearing on the acceptability of the witness’s testimony.

[10] In summary, my evaluation of Mr Ngcangca’s evidence is that he made a good impression in the witness box, that the content of his version contains no improbabilities or unreliable features and is not open to any material criticism, and that I can safely accept on a balance of probability that his account of what happened is true and accurate. I therefore find as a fact that he moved to his left off the trafficable surface of the tar because the truck came round the bend on its incorrect side of the road with its light on bright, causing oncoming traffic, which, in the circumstances, was reasonably foreseeable, to be partially blinded and which caused him to move out of its way. This was a wrongful and negligent act by its driver which caused the Golf to go out of control and overturn, and it was the direct cause of the death of the deceased. The plaintiff has proved the entitlement of the deceased’s children to compensation in the agreed amount on a balance of probability.

[11] There will be the following order:

1. There will be judgment for the plaintiff in the agreed amount of R121 586-00 with interest thereon at the prescribed rate from 14 days of the date of this judgment to date of payment.

2. The defendant is ordered to pay the plaintiff’s taxed party and party costs, with interest thereon at the prescribed rate from a day of the date of the taxing master’s allocatur to the date of payment, which costs shall include costs of an inspection in loco with counsel, and Mr Ngcangca is declared a necessary witness.

RJW JONES

Judge of the High Court

1 July 2009

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