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Ndabambi v Road Accident Fund (165/2005)  ZAECHC 136 (21 August 2008)
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FILING SHEET FOR EASTERN CAPE JUDGMENT
CASE NUMBER: 165/2008
DATE ARGUED: 6 May 2008
DATE DELIVERED: 21 August 2008
JUDGE(S): Revelas J
for the State/Applicant(s)/Appellant(s): Adv. Cole
for the Accused/Respondent(s): Adv. De la Harpe
Instructing attorneys:Applicant(s)/Appellant(s): Milli Attorneys: Mr. Milli
Respondent(s): NN Dullabh: Mr. Dullabh
• Nature of proceedings :
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION)
Case No: 165/2005
Date Heard: 6/05/08
In the matter between
TOTO PATRICK NDABAMBI Applicant
THE ROAD ACCIDENT FUND Respondent
 The plaintiff issued summons against the defendant for damages as a result of injuries sustained during a motor vehicle collision on Saturday, 6 January 2001. The collision involved the plaintiff, a passenger at the time, and a caravan towed by the insured vehicle, a 1979 SE model Mercedes Benz. It is common cause that the left front side of the caravan hit the plaintiff.
 The parties were in agreement that the merits (question of liability) be determined first and separately from the question of quantum which would stand over for later determination. An order was made to that effect.
 Both the driver of the Mercedes Benz and the plaintiff testified at the trial. Mr Ncedile Toto, who had immediately prior to the accident alighted with the plaintiff from a taxi (a fact which was common cause), also gave evidence about the collision which he witnessed from the side of the road. The taxi from which the plaintiff and his witness alighted was travelling on the same road, just outside Whittlesea with Queenstown behind it when the collision occurred.
 The plaintiff’s version (in so far as it is supported by Mr Toto’s evidence) is entirely different from the testimony given by Mr du Plessis. Faced with two mutually exclusive versions, these difficulties complicated matters considerably.
 The plaintiff lives in Whittlesea. The plaintiff testified that on the particular Saturday, he left work at 13h00 and went to Queenstown with Mr Toto and the latter’s small son, who was a toddler at the time. In Queenstown they performed different errands. The plaintiff had bought meat for his mother and went to a store to pay an instalment on a lay-by. On completion of their chores and shopping, the three of them boarded a taxi to go home.
 The plaintiff said they had to wait quite a while for a seat on a taxi that Saturday. They left Queenstown just after 15h00 in a taxi. He said he was sober, contrary to what was suggested by the defence witness, Mr. du Plessis. Close to Whittlesea, Mr Toto received a phone call from a Mrs Tenjiwe. The two of them had some business transactions to complete and because she was in her vehicle, on the same road, it was decided that they meet on the way, and continue their journey in her car.
 The taxi stopped on the side of the road when Ms Tenjiwe’s Ford Laser was spotted. She had parked it on the opposite side of the road to meet them. The plaintiff, Mr Toto and the child alighted from the taxi, to cross the road and meet Ms. Tenjiwe. Only Mr Toto and his child managed to cross the road unscathed. The plaintiff testified that before he crossed the road he looked left, and then right, but saw no vehicle and began crossing the road. Mr Toto then called out to him, warning him to get out of the way of an approaching car. He said he then saw the vehicle approaching at a high speed, without slowing down, not flashing its lights, nor blowing its hooter. The next thing he knew is that he woke up in hospital. He stated that before he was hit, he did manage to get to the other side of the road and had reached the gravel before being knocked down. He also said he had reached the grass on the other side in a different part of his testimony. In many respects he contradicted himself and Mr. Toto. His counsel correctly conceded that he was not a credible witness.
 Mr. Du Plessis testified that he found himself on this particular road because he was travelling home from Stilbaai (where he had been on holiday) to his farm in Elliot. He drove in a type of convoy with a Mr Taljaard who was on holiday with him and who travelled in a separate vehicle behind him. He was travelling in a northern direction towards Queenstown, having just passed through Whittlesea. Mr. Du Plessis stated that he travelled trough Whittlesea at approximately 60 kilometres per hour and once on the open road, he travelled at 100 kilometres per hour.
 Mr. Du Plessis said that when he came around a corner in the road, he saw two vehicles parked on either side of the road. In his statement to the police, he said it was two taxis. On the unchallenged version of the plaintiff and his witness, there was only one taxi (the one they alighted from) and the Ford Laser vehicle which they approached by crossing the road, and which the plaintiff never reached.
 He also saw three people crossing the road. He observed how two adult males and a child commenced crossing the road from the right side of the road, to its left. He then reduced speed. He saw one of them staggering as if he was under the influence of alcohol. He stated that this person (that would be the plaintiff), did in fact reach the other side of the road safely, but must have somehow fell backwards or moved back into the road, because he heard a loud banging noise and when he looked into his rear mirror he saw the hole in the wall of the caravan. His evidence was that the two vehicles he saw, were taxis “na die beste van my wete”.
 In his evidence in chief Mr. du Plessis stated that even though he gained the impression that this man (“the plaintiff”) was under the influence of alcohol, the plaintiff was nonetheless aware of his vehicle approaching because he quickened his pace in the last few steps he took, before managing to cross the road successfully, and whilst crossing he had looked in the direction of the oncoming vehicle driven by him. He said he was uncertain as to whether there was any other oncoming traffic. He said he hooted and swerved to the right of his lane towards the middle of the road. He also flashed his lights. At the stage when the plaintiff had reached the safety of the side of the road, he (du Plessis) was one to one and a half metres away from the three persons (including the plaintiff).
 He further testified that, just as he had passed them the collision occurred. About 20 to 25 metres further he stopped. Mr. Taljaard also stopped and suggested to him that they drive through to Queenstown and notify the police of the accident. (Mr. Taljaard had since died). They them immediately phoned the police. His explanation for leaving the scene of the accident immediately was because the occupants of the taxis displayed signs of aggression. He also said that he had also phoned Inspector Leon Vorster of Elliot SAPS and told him to please advise the police in Queenstown and arrange for an ambulance. When he arrived just outside Queenstown, he met with the police from Queenstown. His wife (who had also died since) and baby travelled further with his friend. He said he returned to the scene of the accident with the police. The plaintiff had already been taken away, probably by an ambulance.
 Mr. du Plessis was adamant that there was nothing he could do to avoid the accident. He said the only logical explanation he could give for the fact that the caravan and not the car hit the plaintiff, is that the car was wider than the caravan. It was common cause that only the car and the plaintiff collided. If the caravan was wider than the car, it would of course be difficult to reconcile the point of impact on the caravan, with the version that the plaintiff fell backwards into his path. He conceded that caravans are usually broader than the vehicles towing them but he also explained that the reason why his caravan was narrower than his car, was because it was a three berth, as opposed to the usual four or five berth caravan. He also drove a larger older model vehicle.
 During cross-examination Mr. Du Plessis repeated that he was one, to one and a half metres away from the plaintiff when the plaintiff had completed crossing the road. He also said that at that stage he had slowed down his vehicle, he was travelling at about 50 or 60 kilometres per hour. According to him, the plaintiff was off the road when his vehicle reached and passed the plaintiff. When the plaintiff stepped off the tar onto the side of the road, he was 30 to 40 metres away from the plaintiff.
 Mr. Du Plessis further conceded that it could have been a Ford Laser (which is what the plaintiff said it was) that he saw, instead of a second taxi. He said he came around a corner in the road when he observed the persons walking in the road. He was travelling at 100 kilometres per hour. He applied his brakes and reduced speed to about 80 kilometres per hour. At this stage the man with the child (Mr. Toto) was in the middle of the left lane in which he was travelling and the plaintiff was in the middle of the right lane. At that stage he was approximately 150 metres away from them and that is when he flashed his lights and employed the vehicle’s hooter.
 He had slowed down to 50 kilometres per hour he said, when plaintiff had already crossed the road. When he was 40 metres away from the plaintiff, the latter reached the edge of the tar road. Once he saw the plaintiff had reached the other side of the road safely, he accelerated. He conceded that his was done immediately before the clash. He said the collision occurred as he changed his foot from the brake pedal to the fuel pedal.
 I have already mentioned the statement Mr. Du Plessis made with regard to him observing two taxis next to the road, and that he conceded that one of them could have been a Ford Laser. This statement was made to Inspector L. Vorster of the South African Police Services at Whittlesea in circumstances where he was a suspect of reckless and or negligent driving. In this statement he described how there were several people under the influence of alcohol at the scene of the accident and how their shouting and aggression caused him to leave the scene of the accident. In his testimony in court he said there were about seven people near the plaintiff, but could not really tell with certainty. He was only certain of the plaintiff being under the influence of liquor.
 It was put to Mr. Du Plessis, that since he was of the opinion, as stated in his evidence, and in his statement to the police, that plaintiff and other passengers were drunk, he should have taken more care to avoid the collision. He answered that he could not.
 On the plaintiff’s version, supported by Mr. Toto, Mr. du Plessis drove at a very high speed, saw the pedestrians, never reduced speed, or gave warning signs, knocked the plaintiff over on the pavement and never stopped. Such a scenario is most improbable. It almost suggests wilfulness on the part of Mr. du Plessis.
 The fact that Mr. du Plessis had to make a statement in Whittlesea after meeting the police in Queenstown, supports his version that he did return to the scene and is inconsistent with the callous behaviour described by the plaintiff. On the other hand Mr. du Plessis’ version that he stopped but left after noticing the anger of the onlookers is more probable. He also phoned for an ambulance which a policeman in Elliot arranged.
 Much was made of the fact that the defendant pleaded a sudden emergency, but Mr. du Plessis himself said it was not. That in itself does not mean that I am obliged to draw an adverse inference against him, or that on the pleadings, the defendant attracted an onus to justify prima facie negligence as envisaged in a plea of sudden emergency. I considered all the evidence and based thereon, then there was no contributory negligence on the part of Mr. du Plessis. This was not a situation where the driver of the insured vehicle made an “error of judgment in the agony of the moment” as enounced in Goode v South Africa Mutual and Fire 1979 (4) SA WLD at 306 G. On the evidence before me he made no error.
 Plaintiff’s counsel argued that even though the plaintiff’s version was not credible, Mr. du Plessis, having observed the plaintiff staggering across the road and obviously drunk, should not have accelerated once he saw the plaintiff had reached safety. Mr. du Plessis actually did not have the opportunity to accelerate.
 On the evidence of Mr. du Plessis, that he was 30 or 40 metres away from the plaintiff when he stepped off the tar onto safety, and which I have no reason to reject, I cannot find that he should have continued to reduce his speed. When he saw the plaintiff staggering he did reduce speed and took other precautions (flashing his lights and using his hooter). Responding to these warning signs the plaintiff then made an effort to avoid the danger and hastened off the tar. It could not have been anticipated that he would fall back. The degree of the plaintiff’s drunkenness is unknown but the plaintiff regained some mobility when he realised the danger. Nothing in his conduct suggested that he might fall back into the road. The reasoning of Mr. Justice Homes in Norwich Union v Tuff 1960 (4) SA 851 at 853, to which I was referred to in respect of the duty of care to be taken when approaching an intoxicated pedestrian does not apply in this matter. The facts in Norwich were different. There the court held that when there is the possibility of that a pedestrian might be under the influence of intoxicating liquor, the driver “must anticipate erratic movement”, in circumstances where the driver assumed (wrongly) that the drunk pedestrian gave him the right of way. In this matter the pedestrian moved away as part of a group who ran out of the way of an oncoming vehicle. It must be remembered that the plaintiff denied he was drunk. Secondly, on the version that I have accepted, the plaintiff did respond to warnings and got himself off the tar. Mr. Toto had shouted at him to warn him. Such conduct does not impose a duty to anticipate erratic conduct.
 There was also no evidence put forward to suggest that the caravan was not narrower than the insured vehicle. If it was wider than the vehicle, then the question of contributory negligence would arise, but on these facts they do not. That evidence remains unchallenged.
 Accordingly, the plaintiff was unable to discharge the onus to prove contributory negligence on the part of the driver of the insured vehicle and his claim is dismissed with costs.
E.REVELASJUDGE OF THE HIGH COURT