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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION - MAHIKENG

 

CASE NO.: RAF294/2017

Reportable: NO

Circulate to Judges: NO

Circulate to Magistrates: NO

Circulate to Regional Magistrates: NO

 

In the matter between

ANTONIO ARMANDO BILA                                                                   Plaintiff

and

ROAD ACCIDENT FUND                                                                        Defendant

 

Delivered:

This judgment was handed down electronically by circulation to the parties' representatives via email. The date and time for hand-down is deemed to be 10H00 a.m. on 21 June 2022.

ORDER

1.                  The plaintiff's claim is dismissed.

2.                  No order as to costs.

 

JUDGMENT

 

PETERSEN J

Introduction

[1]          The plaintiff instituted action against the defendant for damages arising from a motor vehicle accident on 15 April 2016 in which he sustained injuries. The plaintiff alleges that he was the driver of a motor vehicle with registration number [....]when a collision occurred between his motor vehicle and a motor vehicle with registration number [....] ("the insured motor vehicle") driven by a certain MS Motshegoa ("the insured driver"). The defendant was in default at the hearing. Merits and quantum were separated in terms of Uniform Rule 33(4).

[2]          The plaintiff pleads in the particulars of claim that:

"The aforesaid collision was caused by the negligence on the part of the insured driver..., who was negligent in one or more or all of the following respects:

6.1         He failed to keep a proper lookout;

6.2         He failed to apply brakes timeously or at all;

6.3         He unreasonably placed himself in a situation of sudden emergency and subsequently failed to act in accordance with such situation;

6.4         He travelled at an excessive speed under the circumstances;

6.5         He failed to avoid the accident when the exercise of reasonable care and skill he could and should have done so;

6.6         He failed to maintain any or alternatively sufficient control over the insured motor vehicle;

6.7         He drove the insured motor vehicle whilst to his knowledge or he could have reasonably established and known that it had defective breaks or it was in an unroadworthy condition;

6.8         He failed to give any warning of approach of the insured motor vehicle;

6.9         He encroached onto the path of travel of the Plaintiff's motor vehicle;

6.10     He disregarded the interests of other road users more particularly those of the Plaintiff."

The evidence for the plaintiff

[3]          The plaintiff, Mr Bila, testified in support of his claim as a single witness. The plaintiff's evidence is particularly brief and cryptic on the circumstances surrounding the collision with the insured motor vehicle. The plaintiff testified that on 15 April 2016 he was travelling from Northam to Rustenburg in a private motor vehicle, a Toyota RunX, shortly after 06h00am in the morning. It was a clear day. The road surface was tarred and provided for one-way traffic in opposite directions. The speed limit on the road was 80km/h.

[4]          The plaintiff's evidence is that he was driving behind a bus. The insured motor vehicle overtook the plaintiff's motor vehicle and the bus and proceeded to stop the bus. The bus and the insured vehicle stopped on the side of the road, off the tarred road surface. The insured vehicle was parked in front of the bus. From the cursory evidence of the plaintiff, it can be inferred that the insured driver stopped the bus to have his child board the bus. It must again be inferred from the cursory evidence of the plaintiff that once the child had boarded the bus, the insured motor vehicle still parked in front of the bus made a U-turn back onto tarred road surface, at which point the plaintiff's vehicle collided with the insured vehicle. According to the plaintiff he could not do anything at that point as the incident occurred very fast. The plaintiff further testified that he was not present at the scene when the police arrived as he was transported to hospital by ambulance. That was the essentially the evidence of the plaintiff on the collision. As indicated above, the plaintiff was a single witness in support of his claim on the merits.

[5]          Save for the plaintiff's evidence, a quick reference to the pre-trial minute  of  11  January  2018,  when  the defendant  was still represented by a firm of attorneys, reflects the following in respect of the merits:

"5. MERITS

5.1      The Accident

5.1.1 The Defendant admits the occurrence of the accident, only so far as depicted in the OAR;

5.1.2  The OAR is attached hereto marked Annexure “B”.

5.2      Plaintiff's version

The Defendant has noted the Plaintiff's version as per the S19(f) lodgement affidavit of ANTONIO ARMONDO BILA signed and sworn to on 01 June 2016. A copy (sic) the affidavit is attached hereto marked Annexure "C"."

[6]          Considering the fact that the defendant admits the occurrence of the accident as depicted in the OAR (Officers Accident Report), I deem it prudent to quote the brief description of the accident set out therein:

"According to the bus driver and other driver those where (sic) driving Toyota Run X was travelling from Sandfontein to Northern direction and Toyota Bakkie from Sandfontein to Northern. RunX was overtaking the bus and collided to Toyota Bakkie That coming from opposite direction further RunX collided the Thaba Trans Bus. The driver of Bakkie passed away and driver of RunX and passengers seriously injured."

[7]          In the plaintiff's affidavit in terms of section 19(f) of the Road Accident Fund Act 56 of 1996 which the defendant noted at the pre-trial without admitting the contents thereof, the plaintiff provided the following description of the accident:

"3.

I was travelling from Northam to Rustenburg when the motor vehicle bearing registration numbers and letters [....]which was there and then driven by Moabi Motshegoa who suddenly made a U-tum in front of my motor vehicle and as a result a collision occurred.

4.

The sole cause of the accident was due to the negligence of the driver of the motor vehicle bearing registration number [....]in that he made a U-tum when it was unsafe to do so and failed to keep a proper lookout."

The onus on the plaintiff

[8]          The onus is on the plaintiff to prove the negligence of the insured driver on a balance of probabilities. In Arthur v Bezuidenhout and Mieny[1], the Appellate Division stated as follows in this regard:

"The enquiry to which the learned Judge ought to have addressed himself at the conclusion of all the evidence was: have plaintiffs established. on a balance of probabilities, that this collision was caused by negligence attributable to defendant?"

(my emphasis)

[9]          In Sardi and Others v Standard and General Insurance Co Ltd[2], the Appellate Division elaborated on the burden of proof on a plaintiff as follows:

"In this Court, in seeking to establish negligence of the driver of the insured vehicle, counsel for the appellant referred to the fact that he swerved across the road. Wherefore counsel relied on the maxim res ipsa loquitur (the thing speaks for itself). He submitted that it was for the respondent to adduce sufficient evidence to overcome the prima facie effect of the evidence that Coxon drove on to the incorrect side of the road. The maxim has no bearing on the incidence of the onus of proof on the pleadings. It is invoked where the only known facts, relating to negligence, consist of the occurrence itself,· see Groenewald v Conradie: Groenewald en Andere v Auto Protection Insurance Co. Ltd., 1965 (1) SA 184 (AD) at p. 187F. The occurrence may be of such a nature as to warrant an inference of negligence. As INNES, C.J., pertinently insisted in Van Wyk v Lewis, 1924 AD 438 at p. 445, lines 8- 9, "It is really a question of inference". It is perhaps better to leave the question in the realm of inference than to become enmeshed in the evolved mystique of the maxim. The person, against whom the inference of negligence is so sought to be drawn, may give or adduce evidence seeking to explain that the occurrence was unrelated to any negligence on his part. The Court will test the explanation by considerations such as probability and credibility; see Rankisson & Son v Springfield Omnibus Services (Pty.) Ltd., 1964 (1) SA 609 (N) at p. 616D. At the end of the case, the Court has to decide whether. on all of the evidence and the probabilities and the inferences, the plaintiff has discharged the onus of proof on the pleadings on a preponderance of probability, iust as the Court would do in any other case concerning negligence. In this final analysis, the Court does not adopt the piecemeal approach of (a), first drawing the inference of negligence from the occurrence itself, and regarding this as a prima facie case: and then (b), deciding whether this has been rebutted by the defendant's explanation. See R. v Sacco, 1958 (2) SA 349 (N) at p.352; Grootfontein Dairy v Ne/, 1945 (2) P.H. 15  (A.O.); Arthur v Bezuidenhout and Mieny, 1962 (2) SA 566 (AD) at pp. 574 - 576."

(my emphasis)

[10]       The fact that the plaintiff was a single witness and that his evidence is uncontested, does not necessarily imply that this Court must unreservedly accept his evidence. In the unreported judgment of Louis v Road Accident Fund[3], Nichols AJ, in similar circumstances to the present matter, which I am in agreement with, remarked as follows:

"The brief. cursory and insubstantial nature of the plaintiff's evidence resulted in a paucity of facts being established that mav be used in support of the plaintiff's dutv to discharge the onus that rests upon him regarding the negligence of the driver of the unidentified vehicle. A plaintiff is not relieved of this obligation even if he is a single witness and his evidence stands uncontradicted."

(my emphasis)

[11]       In Louis, Nichols AJ made reference to the decisions in Minister of Justice v Seametso[4] and Denissova N.0. v Heyns Helicopters (Pty) Ltd[5] in respect of the approach to the evidence of a single witness which stands uncontradicted. In Seametso in particular, the following was said:

"The trial Court came to the conclusion that on the probabilities 'the plaintiff was struck by the truck when he was next to the road, and where he was lawfully entitled to be in all the circumstances of this case. On the evidence the pavement is a little more than a pace wide, which left the plaintiff a limited space for movement'. The finding was that the driver was negligent in failing to keep a proper look out and failing to avoid a collision when he could and should have done so by the exercise of reasonable care. Counsel for the appellant contended that the fact that Daniel's evidence stands uncontradicted does not relieve the plaintiff from the obligation to discharge the onus resting on him. If thereby is meant that Daniel's evidence should not have been accepted merely because it stands uncontradicted then the contention is sound, for as was said by INNES, C.J., in Sittman v Kriel, 1909 T.S. 538 at p. 543:

'It does not follow, because evidence is uncontradicted, that therefore it is true. Otherwise the Court, in cases where the defendant is in default. would be bound to accept any evidence the plaintiff might tender. The story told by the person on whom the onus rests may be so improbable as not to discharge it. '

This dictum has been followed by this Court in several cases. See e.g. Nelson v Marich, 1952 (3) SA 140 (AD); Shenker Bros v Bester, 1952 (3) SA 664 (AD); Sigournay v Gillbanks, 1960 (2) SA 552 (AD)."

(my emphasis)

Discussion

[12]       This Court is called upon to consider whether on the evidence, having regard to the probabilities and the inferences to be drawn from it, the plaintiff has discharged the onus of proof on a preponderance of probabilities, in determining the incidence of negligence.

[13]       In considering the totality of the evidence, I turn first, to the pleaded case of the plaintiff in respect of negligence. The plaintiff relies on ten (10) grounds of negligence on the part of the insured driver. In considering the evidence of the plaintiff, the evidence, however, covers only the following grounds of negligence relied upon: that the insured driver failed to keep a proper lookout, unreasonably placed himself in a situation of sudden emergency and subsequently failed to act in accordance with such situation; failed to avoid the accident when the exercise of reasonable care and skill he could and should have done so; failed to give any warning of approach of the insured motor vehicle; encroached onto the path of travel of the Plaintiff's motor vehicle; and disregarded the interests of other road users more particularly those of the Plaintiff. The evidence in this regard must be considered against the OAR and section 19(f) affidavit of the plaintiff.

[14]       I next turn to the OAR which forms a crucial part of the claim instituted by the plaintiff against the defendant. The plaintiff's evidence is that he was not at the scene of the accident when the police arrived. The brief description of the accident completed by the officer at the scene obtained from independent witnesses, including the bus driver and another driver, is that the plaintiff's motor vehicle and the insured motor vehicle was travelling in the same direction from Northam to Rustenburg. Further, the plaintiff whilst overtaking the bus first collided with the insured motor vehicle and then the bus. This contradicts the oral evidence of the plaintiff and his very brief description of the accident in his affidavit.

[15]       I now turn to the evidence of the plaintiff. The probabilities inherent in the evidence of the plaintiff against the OAR report and the essentially the inferences to be drawn from it must be considered carefully. It is telling that the plaintiff's evidence that the bus and the insured motor vehicle were parked on the side of the road, off the tarred surface, is not borne out by the description in the OAR, where no mention is made of this allegation. There is further no mention of a child boarding the bus, seemingly having alighted from the insured motor vehicle, in the OAR. Further, no mention is made of the insured motor vehicle overtaking the plaintiff's motor vehicle or the bus at any stage, in the OAR. These facts testified to by the plaintiff appear to be recently fabricated as will be demonstrated when regard is had to the section 19(f) affidavit. In fact, from the OAR, as against the evidence of the plaintiff, the only reasonable inference to be drawn is that the accident occurred at the time when the plaintiff was overtaking the bus, at a stage when the insured motor vehicle was in front of the bus. On the evidence of the plaintiff against the OAR, the bus could not have been on the side of the road and neither could the insured motor vehicle.

[16]       The plaintiff's oral evidence is further highly improbable when considered against the section 19(f) affidavit. In the section 19(f) affidavit, the plaintiff makes no mention of the bus. The only fact deposed to in the affidavit is that the insured made a U-turn in front of his motor vehicle which caused him to collide with the insured motor vehicle. As with the OAR, no mention is made of the bus and insured motor vehicle parked on the side of the road and a child alighting from the insured motor vehicle and boarding the bus. The plaintiff's evidence on this score points to recent fabrication.

[17]       In considering the probability of the plaintiff's evidence, the likelihood of the sequence of events demonstrates that it is highly improbable when logically considered. If the plaintiff, as he claims was travelling behind the bus and the insured motor vehicle overtook his motor vehicle and the bus, then went on to stop the bus, park in front of the bus on the side of the road, allowed a child to alight from the insured motor vehicle and board the bus, and then execute a U-turn from in front of the bus, the plaintiff could not have been travelling behind the bus at the time the insured motor vehicle overtook him and the bus. On that version, logic would dictate that he would have passed both the bus and the insured motor vehicle safely, as he was travelling at 80km/h behind the bus. The plaintiff's evidence on the sequence of events evinces a notion that the incident proverbially occurred at the speed of light, which is humanly impossible. If anything, the description in the OAR, suggests that the plaintiff rather than the insured driver was negligent when he overtook the bus and collided with the insured motor vehicle and the bus.

Conclusion

[18]       Having considered the evidence as a whole and the inherent improbabilities in the evidence, I cannot find that the plaintiff has discharged the onus of proving negligence on the part of the insured driver.

Costs

[19]       The matter was heard in default of the defendant. In the exercise of my discretion, I accordingly, propose to make no order as to costs.

Order

[20]       In the result, the following order is made:

1.            The plaintiff's claim is dismissed.

2.            No order as to costs.

 

A H PETERSEN

JUDGE OF THE HIGH COURT,

NORTH WEST DIVISION, MAHIKENG

 

APPEARANCES

For the Plaintiff                                 Adv M. I. Thabede

Instructed by                                    Tsoku Attorneys

c/o Gura Tlaletsi Inc.

38 Carrington Street

MAFIKENG

For the Defendant                            In default

Date of hearing                                06 June 2022

Date of judgment                             21 June 2022

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