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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, GAUTENG DIVISION, PRETORIA [FUNCTIONING AS MPUMALANGA CIRCUIT COURT, MBOMBELA]

 

(1)    REPORTABLE: YES/NO

(2)    OF INTEREST TO OTHER JUDGES: YES/NO

(3)    REVISED.

 

CASE NUMBER 210/2016

13/10/2017

 

NGOMANE BONGANI ANTONY                                                                   PLAINTIFF

 

And

 
ROAD ACCIDENT FUND                                                                                DEFENDANT

JUDGMENT

 

LEGODI J,

[1]          A motor vehicle accident which occurred on 7 December 2013, between a truck and sedan motor vehicle, the latter driven by the plaintiff, Mr Antony Bongani Ngomane became the subject of dispute before me. At the heart of the dispute the question is whether the driver of the truck is solely to be blamed for the cause of the collision and if not whether the plaintiff is solely responsible for the cause of the collision. And if not, whether any negligence can be attributed to both the plaintiff and the driver of the truck. And if so, the extent of negligence attributable to each one of them.

[2]          At the start of the hearing of this matter, it was placed on record that I did not have to deal with quantum as the parties had conditionally settled the issue of quantum subject to determination of liability if any by this court.

[3]          The only witness who testified in these proceedings was the plaintiff who in the course of his evidence admitted for having made two statements. The first statement was made on 25 February 2014 to the police and the 'Second statement was drafted by his attorneys of record and deposed to on 12 December 2014.

[4]        The whole dispute in these proceedings revolves around these two statements and viva voce evidence tendered by the plaintiff. In the February 2014 statement he stated, inter alia:

 

"It was driving on the slow lane near the TPA house on a R40 road, and there was a truck it seemed like a bakery truck was driving behind us and it moved to the fast lane and overtook me and it came back on the left (slow) lane bumped my motor vehicle on the front right side with his rear left truck and I lost control and the motor vehicle went into the stone wall and it overturned"

 

[5]        The version aforesaid was corroborated by the plaintiff in his oral evidence. However, the statement prepared by his attorneys and deposed to by him in December 2014 differs in my view, materially to the February 2014 statement.

[6]          Of relevance, the December 2014 statement reads:

"2.1     On or about 07^th of DECEMBER 2013 at or along R40 White River main road an accident occurred between a motor vehicle with registration letters and numbers […] driven at the time by myself and a motor vehicle with registration letters and numbers [….] driven at the time by one CONERES Van VUUREN (herein referred to as the insured driver}.

2.2       It was at about or approximately 17:45 in the afternoon when the incident took place in a two lane road with traffic travelling in the same direction. The insured driver who was driving on a left lane at an excessive speed bumped the back of my motor vehicle after I had changed lanes from the right Jane to the left lane and as a result my motor vehicle overturned. (My emphasis).

 

[7]          The December 2014 statement was introduced during cross-examination of the plaintiff and was marked as exhibit "A". When the plaintiff was questioned as to why the statement differs from his evidence in chief, his explanation was that at the time he made the December 2014 statement he was still traumatised and was too quick to let go anything that had to do with the accident. He thus suggested that he signed the statement without paying attention to the contents thereof.

[8]          The explanation is very unsatisfactory. First, the statement was drafted by his attorneys. It is farfetched and improbable that his attorneys could have put something into his statement which did not come from him, more so a version adverse to him. Second, his explanation was in my view finally brought to an end when his February 2014 statement was introduced in re-examination and was marked exhibit "B". If the plaintiff was normal when he made the February 2014 statement, he would have been in a far better state of mind to depose to the December 2014 statement. Therefore his explanation during cross-examination that he paid no attention to the contents of the December 2014 statement because he was not in a good state of mind, ought to be rejected.

[9]          This therefore leaves court with two contradictory versions coming from the same person. In his February 2014 statement he indicated that at the time of the collision he was with his colleagues one Sifiso Thwala and Prince Nkosi. However, none of these persons were called to corroborate his version nor did he give any explanation why their evidence could not be adduced. Adverse inference in this regard ought to be drawn. His version in the witness box and the February 2014 statement is therefore rejected and he is found to have failed to discharge the onus on a balance probability.

[10]       This then brings me to consider whether on the basis of the December 2014 statement any form of negligence can be attributed to the driver of the truck. According to the plaintiff, that is, in his December 2014 statement, the truck was travelling on the left lane at an excessive speed. Despite this, he "changed lanes from the right lane to the left lane". The next question is why he changed from right to the left in the face of a fast moving truck on the left lane. If that was what he did the next question is, was there anything the struck driver could have done to avoid the collision. I do not think so.

[11]      The road in question has double lanes going the same direction. I do not think that in the circumstances as explained in the December 2014 statement, there was anything the driver of the truck could have done to avoid the collision. Perhaps if the plaintiff had stuck to the version in his oral evidence, he could have been able to justify what he did and what the truck driver could have done to avoid the collision in the circumstances. Instead he decided to forsake the February 2014 statement by deposing to the December 2014 statement and thus making it difficult for this court to come to the conclusion that there was any negligent driving on the part of the truck driver.

[12]       The fact that the truck driver could have been fast without more, cannot be sufficient to impute negligence on the part of the truck driver. The suggestion that according to the December 2014 statement the plaintiffs motor vehicle was bumped from behind constitutes negligence should be seen in context. It is not like all along the plaintiff was driving on the left lane and bumped from behind as he was so driving on the left lane. That being so, no negligence can be attributed to the driver of the truck. The concession on behalf of the defendant that at least 25% negligence should be attributed to the driver of truck does not bind this court as there is no basis for such a concession on the facts of the case.

[13]       Consequently the plaintiff's action on merits is hereby dismissed with costs, and no liability is found on the side of the defendant.

 

 

 

M F LEGODI

JUDGE OF THE HIGH COURT

 

DATE OF HEARING:                                  19 SEPTEMTER 2017

DATE OF JUDGMENT:                              13 October 2017

 

 

ATTORNEY FOR THE PLAINTIFF:             THOBELA ATTORNEYS

BELMONT VILLAS BUILDING 1

5 PAUL KRUGER STREET

2^ND FLOOR , SUITE 207

NELSPRUIT

TEL: 013 752 4512

REF: FM/N0013/14/RAF

 

FOR THE DEFENDANT:                              LEKHU PILSON ATTORNEYS

OFFICE NO 207 SANLAM BUILDING

25 SAMORA MACHEL DRIVE

NELSPRUIT

TEL: 013 752 2638

REF: TKHOZA/PM/MP/N0120

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