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IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION)

Case no: 3384/2006

In the matter between

BRIAN KANINI TULUMANI Plaintiff

And

THE ROAD ACCIDENT FUND Defendant

JUDGMENT

PICKERING J:

At approximately 00h30 on 21 May 2005 and on the R63 road between Komgha and King William’s Town a collision occurred between a Toyota motor vehicle with registration letters and number BST707EC which was driven by plaintiff in the direction of King William’s Town and a Ford Courier bakkie (“the bakkie”) with registration letters and number BFL266EC which was being driven by one Mbasane. Plaintiff alleged that he sustained certain severe bodily injuries in consequence of the collision and has instituted action against defendant for payment of damages allegedly suffered by him in consequence thereof.

At the outset of the trial an order was made by agreement separating the issues of liability and quantum and the trial proceeded on the issue of liability only.

It is common cause that the R63 is a tarred road which, in the vicinity where the collision occurred, is approximately 6 metres in width, each of the two lanes into which the road is divided for traffic proceeding in opposite directions being approximately 3 metres in width. It is further common cause that the section of the road where the collision occurred is straight and that the driver of each motor vehicle would therefore have had an unimpeded view of the other motor vehicle approaching. Not much else is common cause. Each of the drivers alleged, not only that the collision occurred on his correct side of the road, but also that it occurred at a completely different place on the road to that alleged by the other driver. In this regard certain photographs (Exhibit A) were handed into Court by consent. In these photographs a large tree is visible on the right hand side of the road as one looks towards King William’s Town, this tree being situated approximately in the middle of the straight section of the road. According to plaintiff who, as I have said, was proceeding towards King William’s Town, the collision occurred on the Komgha side of the tree before he reached the tree. The driver of the Ford bakkie, Mbasane, however, alleged that the collision in fact occurred on the King William’s Town side of the tree. I will revert to this issue hereunder.

Plaintiff testified that at the time the collision occurred he was employed by one Gerrie Badenhorst, the proprietor of Gerrie’s Breakdown Services. On the night in question, although he was on standby duty, he had received permission from Badenhorst to travel to Komgha to visit his father who was ill. According to him he had to be back in King William’s Town by 10pm. As matters turned out, however, he only left his father at approximately midnight. He stated that because he was late he was rushing to get back to King William’s Town but averred that despite being in a rush he was travelling at a speed of no more than 100 km per hour.

As he proceeded towards King William’s Town on the straight section of road where the collision occurred he saw the Ford bakkie approaching on its correct side of the road with its lights shining on bright. He dimmed his own lights on seeing the Ford bakkie but the bakkie did not respond thereto. He accordingly flashed his own headlights twice in an effort to alert the driver of the bakkie to the fact that its lights were on bright but to no avail. Because he was being blinded by the lights he reduced speed and moved his motor vehicle as far as possible to the left of the tarred surface of the road. He stated in his evidence in chief that he did not drive onto the gravel verge of the road. In his statutory affidavit (Exhibit B) forwarded to the defendant, he had stated, however, that he had “swerved to my left on the gravel portion of the road.” Taxed with this statement under cross-examination he said that it was correct. He denied having said in his evidence in chief that he had not gone onto the gravel verge of the road, alleging that he had said that he had swerved “a little bit off the road” and that only part of his motor vehicle had gone onto the gravel.

He stated that the bakkie then left its correct side of the road and collided with his motor vehicle on his correct side of the road. He marked this point of impact with an X on photograph A3. He stated that because he was blinded he was unable to judge how far the bakkie was from him when it crossed the centre line of the road. According to him the bakkie collided with the right hand side of his motor vehicle at the hinges of the driver’s door thereof. He stated that the averment contained in the affidavit (Exhibit B) to the effect that the bakkie collided with the right front bumper of his motor vehicle was not correct. It was put to him under cross-examination that his vehicle had collided with the right front headlight of the bakkie. He stated that he had seen the bakkie at Badenhorst’s premises some time after the collision and had only noticed damage from the front bumper up to the right door thereof. He stated further that after the collision his motor vehicle left the road on its correct side thereof and ended up lying at an angle in a ditch facing towards Komgha. He did not see what happened to the bakkie nor was he aware until a later date that the bakkie had been towing a trailer at the time of the collision. He managed to get out of the passenger door of his motor vehicle but was unable to move any further and remained lying next to it.

After the collision he found his cell phone and eventually managed to contact the emergency services. He also managed to contact his employer, Badenhorst, and told him that he had been involved in an accident. The police eventually arrived, followed by Badenhorst. The ambulance only arrived after an hour.

He stated that two policemen came to him at the place where he was lying. He knew one of them, Inspector Makeleni. Inspector Makeleni merely asked him if he was still alive but did not ask him how the collision had occurred nor, indeed, did he ask him anything else. In this regard he was confronted under cross-examination with an accident report form completed by Inspector Makeleni at 4h30 am on 21 May 2005 in which certain of his personal details, such as his identity number and his cell phone number were included. He denied having furnished such details to Makeleni. In the accident report form (Exhibit E) a brief description of the accident was written down by Makeleni. This reads as follows:

“It is alleged that m/v B was travelling from Komga towards King William’s Town. At about 15km from Komga driver B alleged that he bright lighted by m/v A as a result he lost control of his m/v. Both m/v were badly damaged. Both drivers were injured. The tarmac was dry.” (sic)

Plaintiff denied that he had furnished any such statement to Makeleni. He further denied that he had consumed any alcohol on the night in question.

He stated that his motor vehicle had been damaged beyond repair in the collision and that he had instructed an attorney to claim the damages sustained by him in respect thereof from Mbasane. He had not yet been paid such damages and he did not in fact know whether summons had been issued against Mbasane. It may be convenient to mention here that it is in fact common cause that a summons was duly served on Mbasane who failed to enter an appearance to defend the matter whereafter judgment was taken against him by default.

The aforementioned Gerrie Badenhorst also testified on behalf of plaintiff. He stated that at the time of the collision plaintiff had been employed by him in his King William’s town business as a driver for 7 years. In August 2007, however, plaintiff’s employment with him was terminated amicably. He confirmed in his evidence that although on the night of the collision plaintiff was on standby he had given plaintiff permission to visit his sick father in Komgha. As far as he could recall he had not told plaintiff to return by a certain hour.

Later that night he received information that plaintiff had been involved in a collision. He attended the scene with his wife. He was driving his tow truck. At the scene he came across plaintiff’s motor vehicle. It was on the Komgha side of the tree lying at an angle in a ditch on its correct side of the road. Plaintiff was lying next to it. He was shocked and in agony. Badenhorst spoke to him, trying to calm him down. He smelt no alcohol on plaintiff’s breath. The bakkie was standing on the tarred surface of the road on plaintiff’s correct side thereof. According to Badenhorst it was standing at the point indicated by plaintiff with an X on photograph A3 as being the point of impact, that is on the Komgha side of the tree. There was a considerable amount of debris strewn across the road at that point consisting of glass and plastic. Because of the extensive nature of the debris and the fact that it was so dark at the scene it was not possible to determine the actual point of impact on the road.

Badenhorst spoke to the police at the scene and gave them certain information. Although he could not remember whether the police had asked him for plaintiff’s personal details he was certain that he could not have furnished them with plaintiff’s identity number as he did not know it.

He thereafter towed both vehicles to his premises. Plaintiff’s vehicle was damaged on the right front corner and both right doors. The right headlamp was torn out. The damage to the bakkie was chiefly to its right front corner including its right front wheel.

Inspector Mbasane testified that at the time of the collision he was a sergeant stationed at Port Elizabeth. On the night in question he was proceeding in his bakkie to Mount Frere. He was towing a trailer laden with oranges. As he entered the stretch of road where the collision occurred he was travelling at a speed of approximately 80 km per hour. He noticed the lights of a motor vehicle approaching from the direction of Komgha at a high speed of approximately 120 km per hour and he dimmed the lights of his bakkie. Under cross-examination he estimated that he had dimmed his lights when the other vehicle was approximately 30 to 35 metres away. The other vehicle’s lights were on dim.

When the other vehicle was approximately 10 to 15 metres away it suddenly crossed over the centre line of the road and collided on his correct side of the road with the right hand side of his bakkie, from the right door, along the right side to the back. He denied that plaintiff’s motor vehicle had collided with the right front headlight of his bakkie before conceding that he had in fact told his attorney that it had done so. In consequence of the collision the trailer was dislodged and capsized. The bakkie spun around and faced the direction from which he had come, ending up on plaintiff’s correct side of the road. He disembarked from his bakkie through the passenger door and called the police on his cell phone. He looked around for plaintiff’s motor vehicle but could not see it although he noticed that its front wheel was lying on the road. He assumed that the plaintiff’s motor vehicle had made good its escape from the scene, albeit on three wheels. He conceded that he had never told his attorney about the wheel in the road prior to testifying, stating that he had not done so because at the time of making a statement he was disturbed by the poor health of his wife who had later passed away during March 2006. When the police arrived on the scene he told them to chase after plaintiff’s motor vehicle despite the fact that it had only three wheels. Having earlier said that he was in his sound and sober senses by the time the police arrived on the scene he then said that he was in fact still shocked at that time which explained why he had thought that plaintiff’s vehicle could drive away on three wheels.

According to him the point of impact was on the King William’s Town side of the tree and not on the Komgha side thereof as alleged by plaintiff. He pointed out the point of impact to Makeleni. He confirmed further that photographs A1 and 2 depicted him standing on his correct side of the road at the point of impact. His evidence when confronted by Badenhorst’s evidence as to the point of impact became extremely evasive. At one point he stated that he could not dispute that evidence because that was maybe how he and plaintiff “saw it” although he then reiterated that they were wrong.

He stated that he did not speak to plaintiff at the scene but that having broken a bone in his foot he was conveyed in the ambulance to hospital together with plaintiff. Plaintiff smelt of alcohol. On leaving the scene in the ambulance he noticed plaintiff’s motor vehicle lying in a ditch around the bend in the road on the King William’s Town side of the tree. Whilst in the ambulance he received a call on his cellphone from an unknown person enquiring as to whether he wished to appoint his own attorney for a claim against the Road Accident Fund or whether he intended to request a “MVA attorney”. He told this person that he would appoint his own attorney.

He stated that he intended to lodge a claim against the Road Accident Fund in respect of the injury to his foot and that he did in due course instruct an organisation known as the Lesaka Legal Aid Board to assist him therewith. Lesaka, so he said, assisted POPCRU members with their legal matters. His evidence in this regard then became entirely confused, evasive and contradictory. He alleged that although he had instructed Lesaka to lodge his claim he had never signed a claim form or attested to an affidavit in this regard. Lesaka had told him to wait and he was still waiting. Asked if he had never followed up the matter with Lesaka he stated that he had once telephoned them but could not get through until the airtime on his cellphone had expired. He thereafter stated that he had in fact been to their offices on many occasions in connection with the collision but they had failed to assist him. He stated that he had given a statement to Lesaka prior to March 2006 but then stated that he had in fact approached them for the first time after his wife’s death in March 2006. He had not approached them earlier because he was nursing his wife and that made it impossible for him to go to their offices. He also wanted to claim for the damage to the bakkie which was in his wife’s name and it was therefore necessary that she accompany him. He then said that in fact his foot was not badly injured. He came from the rural areas and cracking bones in a foot was a small matter.

He conceded that plaintiff’s summons claiming R27 100,00 in respect of the damage to plaintiff’s motor vehicle in which it was alleged that his negligence was the sole cause of the collision had been served upon him. He had taken the summons to Lesaka for them to deal with. He conceded that judgment had been taken against him by default and that at some stage he had received a notice telling him to pay within 7 days. He denied that the reason for his failure to claim damages for either his injuries or the damage to the bakkie and his failure to defend plaintiff’s claim was because he knew that he had been at fault with regard to the collision.

Sergeant Makeleni testified that he was called out to the scene of the collision that night. On arrival he spoke to both plaintiff and Mbasane and he took various notes which he later transposed to an Accident Report Form (Exhibit E). Plaintiff was in great pain and crying. He obtained plaintiff’s personal details from him and included these in the Accident Report Form which he completed at 04h30 the same night.

He stated that he had no independent recollection of the scene at all. He was unable to state which side of the tree the respective vehicles were. He compiled a description and drew a sketch of the accident based on what the drivers told him. The point of impact marked on the sketch as being on Mbasane’s correct side of the road was pointed out to him by Mbasane. According to him there was glass at this point but he immediately conceded that the accident had happened three years previously; that he had no independent recollection thereof; and that he had made no note on the Accident Report Form concerning the presence of glass. He also conceded, for what it was worth, that, as testified to by Badenhorst, there was glass strewn over the width of the road.

The respective versions of plaintiff and Mbasane as to how the collision occurred are irreconcilable and mutually destructive. In these circumstances the approach to be adopted is set out in National Employers General Insurance Co Ltd v Jagers 1984 (4) SA 432 (E) where the following is stated at 440D-G:

“It seems to me, with respect, that in any civil case, as in any criminal case, the onus can ordinarily only be discharged by adducing credible evidence to support the case of the party on whom the onus rests. In a civil case the onus is obviously not as heavy as it is in a criminal case, but nevertheless where the onus rests on the plaintiff as in the present case, and where there are two mutually destructive stories, he 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.”

See too: Baring Eiendomme Bpk v Roux [2001] 1 All SA 399 (SCA); Stellenbosch Farmers’ Winery Group Ltd and Another v Martell et CIE and Others 2003 (1) SA 11 (SCA) at 14J-15D; and Santam Bpk v Biddulph 2004 (5) SA 586 (SCA) at 589G.

Plaintiff was not an impressive witness: He contradicted aspects of the affidavit made by him and on occasions experienced difficulty in furnishing replies to straightforward questions. He denied having given any details, either personal or concerning the collision, to Makeleni when, in my view, the probabilities are overwhelming that he did so. Makeleni’s evidence that the Accident Report Form had been completed by 04h30 was not challenged under cross-examination. It is quite apparent therefrom that it contains details that could only have been obtained from plaintiff himself at the scene. The first part of plaintiff’s alleged description of the accident, namely that he was “bright-lighted” is in accordance with his version of how the collision occurred and could only have been obtained from him. Despite this plaintiff came across as an honest witness who genuinely believed that he had not spoken to Makeleni. This is perhaps not surprising given the fact that he was, at the time, in agony and crying with pain. My impression of plaintiff overall was that his shortcomings as a witness were due to a lack of proper recollection as opposed to mendaciousness on his part.

Badenhorst was an excellent witness. Plaintiff was no longer in his employ and he had no reason to favour plaintiff’s version in his evidence yet he provided important and material corroboration of plaintiff’s evidence as to the position of the point of impact on the Komgha side of the tree and the respective positions of the two vehicles after the collision. His evidence in this regard was unshaken and, in my view, it is probable that he, more than anyone else, would have remembered the positions of the vehicles inasmuch as he was responsible for towing them from the scene.

Mbasane, on the other hand, was in my view an appallingly bad witness whose evidence was evasive and contradictory. He was on occasion quite prepared to adapt his evidence to suit the exigencies of the situation. His evidence concerning the presence of the wheel in the road was clearly a belated fabrication. His evidence that plaintiff smelt of alcohol is contradicted not only by Badenhorst but also by Makeleni, both of whom were in close contact with plaintiff. I have no doubt that this too was a fabrication designed to bolster his version of the events. His attempted explanations for his failure to claim damages and to defend plaintiff’s claim were fanciful and contradictory. In my view, his evidence that he approached Lesaka for aid is so improbable and of so poor a calibre that it can safely be rejected as false.

Whilst it may be so, as was submitted by Mr. Wolmarans for the defendant, that certain people injured in motor vehicle collisions might not necessarily wish to go to the trouble of lodging claims in respect thereof, especially if their injuries are of a minor nature, it is, in my view, utterly improbable that a sergeant in the Police Force, faced with a not inconsiderable claim for R27 100,00, would not take all necessary steps to defend it. Mbasane’s conduct in not doing so, although not decisive on its own in leading to a rejection of his evidence, nevertheless justifies the inference that he perceived himself as being at fault and can in my view, be taken into account in the assessment of the probabilities of the matter.

It was clear from Makeleni’s evidence, and indeed he admitted as much, that he had no independent recollection at all of the scene of the collision. In these circumstances no weight can be attached to his evidence that there was glass at the point of impact pointed out by Mbasane and Badenhorst’s evidence in this regard must be accepted. Having regard to Badenhorst’s evidence the probabilities in my view strongly favour plaintiff’s evidence as to where the collision occurred.

Mr. Wolmarans made much of the discrepancy between plaintiff’s evidence and his affidavit as to whether his motor vehicle had left the tarred surface of the road immediately prior to the collision occurring. In my view this contradiction is not material given the circumstances prevailing at the time of the collision and does not detract from plaintiff’s evidence that the collision occurred on his correct side of the road.

Mr. Wolmarans also submitted that the second part of plaintiff’s statement to Makeleni was incompatible with plaintiff’s evidence. I do not agree. The statement that he lost control does not necessarily imply that he thereafter drove onto his incorrect side of the road. That statement is not inconsistent with his evidence that he attempted to move his motor vehicle to the left of the road to avoid the motor vehicle bearing down on him. In any event, very little weight can in my view be attached to the statement which was made by plaintiff at a time when he was in agony and crying from pain whilst lying next to his motor vehicle alongside the road. The circumstances in which the statement was made were inimical to accuracy of thought and expression.

In all the circumstances I am satisfied that the balance of probabilities favours the plaintiff’s version and I am further satisfied that his evidence as to where the collision occurred is true and that Mbasane’s version is false.

There can be no question of any negligence on the part of plaintiff on his version. When he was blinded by the bakkie’s lights he slowed down and moved to his left. It has not been shown by defendant, upon whom the onus of establishing contributory negligence rests, that there was any other avoiding action which plaintiff could have taken in order to avoid the collision.

The following order will accordingly issue:

1. Defendant is liable to plaintiff for such damages as plaintiff may prove he has suffered in consequence of any injuries sustained by him in the collision which occurred on 21 May 2005, such collision having been occasioned solely by the negligence of N.G. Mbasane, the driver of motor vehicle number BFL266EC.

2. Defendant is ordered to pay the costs of the trial on the merits, such costs to include the costs of one pre-trial inspection in loco with counsel.

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J.D. PICKERING

JUDGE OF THE HIGH COURT

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