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	/ES 
(GAUTENG DIVISION, PRETORIA)

18/9/2015
CASE NO: 70443/2013
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED
DATE: 18/09/2015

IN THE MATTER BETWEEN

TLOU JONAS MOKHUDU 	PLAINTIFF

AND

ROAD ACCIDENT FUND 	DEFENDANT

DATE HEARD:	4/8/2015 
DATE DELIVERED:	18/09 2015

JUDGEMENT

MOGOTSl, AJ

[1] The plaintiff is Mr Jonas Tlou Mokhudu, an adult male person residing at Stand no 1[...], L[...], Ga-Seleka in Limpopo.

[2] The defendant is the Road Accident Fund, a juristic person established by the Road Accident Fund Act 56 of 1996 as amended (hereinafter referred to as "the Act"), with the principal place of business at 3[...] I[...] Street, Menlo Park, Menlyn, Pretoria.

[3] This is an action for damages amounting to R3 000 000, 00 for personal injuries arising from a motor car accident involving the plaintiff s car.

[4] Section 17(1)(b) of the Act reads thus the " Fund or an agent shall subject to any regulation made under section 26 in the case of a claim for compensation under this section arising from the driving of a motor vehicle wherein the identity of neither the owner nor the driver thereof has been established, be obliged to compensate any person (the third party) for any loss or damage which the third party has suffered as a result of any bodily injury to himself or herself or the death of or any bodily injury to any other person, caused by or arising from the driving of a motor vehicle by any person at any place within the Republic, if the injury or death is due to the negligence or other wrongful act of the driver or the owner of the motor vehicle or his or her employee in the performance of the employee's duties as employee."

[5] The defendant's obligation to compensate a third party  for non-pecuniary loss is provided for in section 171A(1)(a) of the Road Accident Fund Regulation 2008 which provides that a third party who wishes to claim compensation for non-pecuniary loss shall submit himself or herself to an assessment by a medical practitioner in accordance with the regulations.

[6] At this stage the issues relating to the merits of the claim are separated from these relating to the quantum of damages under rule 33(4) and the trial proceeds solely in order to determine if there was an insured car which negligently caused the accident.

ONUS

[7] The plaintiff has to prove on a "balance of probabilities" involvement of the insured motor vehicle which was driven negligently in that a reasonable driver would not have driven in the same manner under the same circumstances.

[8] The defendant's contention is that there was no other insured car involved and that the plaintiff is solely responsible for the accident and therefore the plaintiff does not have a claim.

[9] It is common cause that on 18 November 2012 at approximately 20:45 the plaintiff was driving his own motor vehicle with registration number C[...] 3[...] [...] along Nelson Mandela public road in Lephalalale. He had a passenger  by  the  name  of Mr Khumanego Makata.

[10] The said road had two carriage ways leading to opposite directions.  There were hips of sand in between the two carriage ways. The road was under construction. The plaintiff lost control of his motor vehicle, hit a hip of sand and the motor vehicle capsized.

[11] The plaintiff argues that he lost control of his motor vehicle because he was dazzled by the shining bright lights of the insured motor vehicle which came from the opposite direction as it failed to dim its lights for him.

[12] Only the plaintiff testified, the defendant closed its case without leading of evidence.

[13] What requires to be decided is whether the accident was caused by the negligent conduct of the insured driver or whether the plaintiff is the sole cause of the accident.

[14] For the plaintiff to succeed he must show that there was an insured motor vehicle involved and he needs to prove only I % negligence on the part of such a driver.

[15] In the case of Odendaal v Road Accident Fund 2002 3 SA 70 at 750-F the court said – 

"(a)	The plaintiffs are "innocent third parties" and for them to succeed, they bear the onus of establishing on the balance of probabilities that Dlamini was guilty of some negligence which was causally connected to the collision and therefore to the damages suffered by them. No question of apportionment of fault or of damages arises here since there was no contributory negligence on their part.

(b)	That any causal negligence on the part of Dlamini, whatever the degree thereof in relation to the collision would render the defendant liable, as the insurer under the Road Accident Fund Act, for the full amount of the damages suffered by each plaintiff.

(c)	The fact that the deceased may have been negligent and may even have had the last opportunity of avoiding a collision would not exonerate the defendant from liability if Dlamini was causally negligent."

(d)	Cooper Motor Law 1st ed vol 12 at 191 and cases cited therein suggests that, to determine whether conduct was a factual cause of a collision and therefore of damages claimed, the conditio sine qua non test is applied. This term embraces "all things which so far contributed to the result that without them it would not have occurred. Accordingly the test for factual causation is whether but for the defendant's conduct, the alleged harm would not have occurred."

The plaintiff s counsel referred to the decision of Posthumus v Road Accident Fund (20024/2014) [2015] ZASCA 40 (25 March 2015) where the court said:

"[16] It is a matter of common experience for motorists driving at night to be faced with bright headlights of oncoming traffic that dazzle them. Some 67 years ago the learned authors Macintosh and Scable expressed the opinion that it would probably be negligent for a motorist to fail to dim his or her lights when approaching an oncoming vehicle, but observed that there appeared to be no authoritative decision of the issues. The law reports of this country in the intervening years are replete with decisions on whether a motorist had driven negligently after having been blinded by bright oncoming headlights but the issue of whether motorists who blind others by not dimming their headlights are negligent does not appear to have arisen for decision (counsel were unable to refer us to any such reported case nor did our own research bear fruit in this regard."

It is in that matter where it was held that a motorist who fails to dim headlights shining at oncoming traffic while it is reasonably foreseeable that oncoming motorists might be dazzled by such bright lights and lose control would be "causally negligent in regard to the accident".

[16] The plaintiff s summons contains a mechanical recital of the standard averments that are usually mentioned in damages claims arising from motor vehicle accidents. There is no specific reference to "bright headlights" for example.

[17] The plaintiff s testimony in court is briefly that he has been driving since 1999 and he has a valid driver's licence. He is a taxi driver and he is used to driving on that road. On the day of the incident he was driving at 60kph and visibility was not good. There were some road signs but it was not easy to notice them as it was at night, dark, dusty and there were lights of other vehicles coming from opposite direction. The road was straight forward without meandering. A motor vehicle came from the opposite direction with its bright lights on. He got dazzled by the bright lights of the insured motor vehicle and hit a hip of soil. The insured motor vehicle did not stop.

[18] From the oral evidence of the plaintiff it appears that the cause of the accident is "the bright lights" of the insured motor vehicle which were not dimmed.

[19] Under cross-examination the defendant put to the plaintiff that he is merely saying that he was driving at 60kph as the speed-limit there is 60kph. That when the plaintiff made a statement to the police he just said he lost control of his motor vehicle and hit a hip of sand. He never mentioned a material fact of a motor vehicle approaching with its bright lights on and failing to dim for him.

[20] A copy of a tatement made by the plaintiff to the police dated 8 November 2014 and marked "statement of suspect" does not make mention of "bright lights'', instead it merely states that "there was another oncoming vehicle in front who was with headlights on. And I can clearly see in front (sic)."

[21] Par 4 of the plaintiff s affidavit states thus "the insured driver of the vehicle bearing unknown registration numbers and letters brighten it with a light bright then I lost control of my motor vehicle".

[22] The sketch-plan, key to sketch-plan and table of measurement drawn by a police officer do not indicate if there was any insured motor vehicle involved at least shortly before the accident. There is no mention made of being dazzled by bright lights.

[23] The accident report ("AR") form has a brief description of the accident and also a portion of accident sketch-plan and both do not indicate involvement of any car other than that of the plaintiff and a hip of sand.

[24] The RAF.4 form completed by Dr Kumbirai states the history of accident as follows: 

"The claimant states that he was involved in a motor vehicle accident as a driver when he lost control of the car and overturned."

[25] The medico-legal report completed by the Occupational Therapist Bogone Ngwato under the paragraph dealing with "mechanism  of  accident"  only  states  that "he reported that he was a driver and lost control when he collided with a hip of soil on the construction site".

[26] The medico-legal report completed by the Industrial Psychologist Moipone Kheswa under paragraph "Description of accident by client" states as follows:

"Mr Mokhudu was a driver of a car, which unfortunately overturned. Foilowing the accident he was then taken by an ambulance to Ellisras hospital where he was admitted for at least one night".

Note is made of a car which unfortunately overturned.

[27] There is no serious injury assessment report filed.

[28] The conduct of the alleged insured driver failing to dim bright lights is a material fact which ought to have been in mind of the plaintiff when making statements to the police.

[29] The plaintiff is a single witness who contradicts himself on whether there was an oncoming car with bright lights and failing to dim or not. He further contradicts himself on whether the road was marked or not. He further contradicts himself on whether he was approaching a curve or just driving on a straight road or not and whether he could see clearly or not shortly before the accident.

[30] Looking at the facts of this case, the probabilities and the possibilities it is likely that the plaintiff was driving at a speed which was not recommended on that road despite the fact that it was dark, dusty and he could not as a result read the road signs.

[31] There is no explanation given as to why except for his affidavit he would fail to tell the police officer who drew up a sketch-plan, the industrial psychologist, the occupational therapist, Dr Kumbirai and the police officer who took down his statement about the material fact that an insured vehicle dazzled him with its bright lights taking it into consideration that he met  or consulted with all these people on different dates and places why would he each time he gives history of the accident fail to state such a material fact.

[32] The conduct requirement is crucial to the enquiry of whether the Road Accident Fund is liable or not and is the criterion which distinguishes a claim against road accident from any other ordinary common law delictual claim. A disregard of this requirement can have unwarranted consequences. Oliphant v Road Accident Fund 2008(4) All SA 239 (SCA).

[33] The plaintiff was during re-examination asked if he is fluent in English or not and he replied by saying although he is not fluent in English he can follow and furthermore he said when the doctors completed the forms they asked him what happened .Which means that it is highly probable that in the initial stages he was not providing crucial information even to the police officers and he does not tell the court why. He should have realised that if he provides such information to the police officers that might even assist him in case there is a consideration of him being charged or being suspected of negligent driving. Surely, if indeed he is innocent there would be no reason to withhold information of being dazzled by bright lights as a course of accident from the police.

[34] Therefore on several occasions he was asked what happened and he could not say anything about the insured motor vehicle and the failure of the driver to dim the bright lights for him. The insured driver's conduct could not come to the fore.

[35] The plaintiff under cross-examination said he saw that the accident report does not raise or make mention of the conduct of the driver of the insured motor vehicle and he could not rectify it as the document was sent to his address. I am left wondering as to what is this supposed to mean.

[36] The conduct of the plaintiff is surprising. He is aware that the road is under construction, he uses it frequently, in his words the road is dusty, road signs are not visible and it is dark yet he does not say he reduced speed.

[37] The only passenger in the plaintiff s motor vehicle was not called to testify, it is of course the plaintiff s prerogative to decide how he places his evidence before court. The plaintiff remains a single witness.

[38] While I am aware of the fact that shortcomings, defects and contradictions may not automatically lead to the rejection of the plaintiff s evidence, the fact that the plaintiff is a single witness coupled with the nature of the shortcomings and defects in this matter are such that I should approach his evidence with caution.

[39] Yekiso J in the matter of Denissora v Heyns Helicopters 2003(4) All SA 74 (C) said "What I have before me, for purposes of making the required determination, is the uncontested evidence of Steynberg which would normally, in the absence of any contradictory evidence, be accepted as being prima facie  true.  It does not, however, follow that because evidence is uncontested, therefore, it is true. The evidence may be so impossible in the light of all other evidence that it cannot be accepted (see in this regard Meyer v Kirner  1974 4 SA 90 (W) at 930-H). The fact that evidence stands uncontradicted does not relieve the party from the obligation to discharge the onus resting on him.  (See Minister of Justice v Saernetso 1963 3 SA 530 (A) at 5340-H.)

[40] In civil matters the onus is discharged upon a balance of probabilities but, no doubt, this simplistic statement must be used with caution since, even if the onus-bearing party puts into his "pan of the scale of probability" slender evidence, as against no counter-balance on the part of the opponent, and although the scale would therefore automatically go down on the side of the anus-bearing party, the court may still hold that the evidence tendered is not sufficiently cogent and convincing (see Ramakulukusha v Commander, Venda National Force 1989 2 SA 813 (V) at 838H and other authorities cited therein).

[41] Failure of the insured motor vehicle to dim bright lights to other oncoming motorists would render the insured driver negligent where the driver can reasonably foresee that his conduct could course an accident irrespective of the contributory negligence of the plaintiff. However,  in  this  case  the  plaintiff  could  not  show  on  a  balance  of probabilities that he found himself in that situation.

[42] In the premises I come to the conclusion that the motor car accident was caused solely by the negligence of the plaintiff and therefore his claim does not attract liability of the Fund.

ORDER

[43] The plaintiff s action is dismissed with costs.

D MOGOTSI
ACTING JUDGE OF THE GAUTENG DIVISION, PRETORIA

COUNSEL FOR THE PLAINTIFF:  ADV ZWEDELA 

COUNSEL FOR THE RESPONDENT:  ADV SAMELA