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IN THE NORTH WEST HIGH COURT

MAFIKENG

CASE NO.: 2618/08

In the matter between:

NGOATO MKI STEPHEN ...................................................Plaintiff

and

ROAD ACCIDENT FUND ...............................................Defendant

CIVIL MATTER

KGOELE J

DATE OF HEARING : 29 APRIL 2013, 27 MAY 2013

DATE OF JUDGMENT : 1 AUGUST 2013

FOR THE PLAINTIFF : Advocate A. Vorster

FOR THE DEFENDANT : Advocate K.J. Kokela

JUDGMENT

KGOELE J:

A. INTRODUCTION

[1] The plaintiff, Mr Mki Stephen Ngoato, instituted an action against the Road Accident Fund (RAF) for damages in the sum of R601 000-00, being injuries he suffered as a result of the accident that took place on the 26^th January 2007 between his vehicle, a motor vehicle driven by Mr Kgohloane, (first insured driver) and a motor vehicle driven by Mr Zonendaba (the second insured driver).

[2] In his summons he alleged in the main claim that the accident was caused by the sole negligence of the first insured driver and in the alternative, by the sole negligence of the second insured driver. In a further alternative claim to the above, that the accident was caused by the joint negligence of the first and second insured driver.

B. SUMMARY OF EVIDENCE

[3] The trial was based on merits only as quantum was separated and postponed sine die. Counsels for both the plaintiff and the defendant agreed at the beginning of the trial that the following are common cause:-

• that the accident occurred on the 26/01/2007 at 2 o’clock in the afternoon;

• that the accident occurred on a public road to wit Northam and Rustenburg;

• that the road had single lanes in the opposite directions.

[4] Three witnesses testified, being the three drivers of the vehicles concerned. Their evidence can be summarised as follows.

Mr Stephen Ngoato

[5] He testified that he was driving a motor vehicle (blue Toyota Tazz) with the registration number DPY 287 NW from Rustenburg to Mogwase (Northam direction). There was a truck that was driving in front of him. He managed to overtake it safely. As he was proceeding straight approaching a bridge, he saw a motor vehicle driven by the second insured driver, the maroon Toyota Corolla, overtaking a truck that was driven by the first insured driver that was approaching him in the opposite direction. He switched on his lights and flickered to that car realising that it was too close. The said car flickered to him too. At that time the car was already in the lane he was driving on but parallel to the truck. Seeing that the car was not slowing down, he swerved to the left, but because it was close and late, his car was hit on the right hand side. He did not understand what happened thereafter as he was injured on the head and was bleeding profusely. He was taken to the hospital.

[6] His car was extensively damaged to its right hand side and a little bit to the left. According to him, the impact was on the right hand side of his car and on the other car, on the front side. The truck the other car was overtaking was a Dyna truck. He acknowledged seeing the damages on the Dyna truck in the photos as shown to him in court but did not know how they were caused. At the time of the accident he had already passed the truck he overtook for a distance of about 7 kms. There were no oncoming cars that were travelling in front of him shortly before the accident. He was driving with a speed limit of +- 100km per hour. There was nothing that was obstructing his view in front of him. When he first saw the Dyna truck, it was +- 500 metres from him.

Robinson Kgohloane

[7] He is the first insured driver and was testifying on behalf of the defendant. He testified that he was travelling in a Toyota Dyna from Northam towards Rustenburg. There was a sedan motor vehicle following him (maroon Toyota Corolla). The road was ascending and up the hillock he saw a truck coming towards his opposite direction. There was a barrier line barring cars on both opposite directions from overtaking. As he was about to pass this truck, a blue Toyota Tazz emerged from behind the truck and came towards his car on the lane in which he was travelling in an attempt to overtake the said truck. He was travelling with two passengers. He made them aware of the oncoming car that was going to kill them. He then quickly swerved his truck to his left hand side. The said car collided with his truck on its right hand head lamp and continued to sight swipe it on its right hand side and ultimately hit its prop shaft. This blue Toyota Tazz there-after proceeded on its wrong lane, collided with the maroon Toyota Corolla. It did not stop as a result, but ended up forcing another white car which was following the Corolla out of the road as it nearly collided with it too.

[8] According to him when his car was being hit on the right hand side towards the back, it went out of the road and spinned to an extend that it ended on the road again on the side of the road where he was driving but facing the centre line. His car was damaged on the right head lamp, on the prophsaft and towards the back of the truck.

Atwell Linge Zanendaba

[9] He is the second insured driver and the second witness that testified on behalf of the respondent. He testified that on the day of the accident he was driving a maroon Toyota Corolla from Northam to Rustenburg. Whilst travelling at the place where the road was ascending, he saw a Dyna truck that he was driving behind swerving out of the road. There was dust as a result of it touching the gravel road. He heard a noise. He reduced his speed to enable it to can completely swerve out of the road. Suddenly he saw a blue object just in front of him coming in a high speed. He tried to swerve out of the road towards his left side, in the process the said object collided with his car on its front part as it was too close. His car was completely pushed out of the road. He later realised that the blue object was the blue Toyota Tazz driven by the plaintiff.

[10] According to him when the collision took place there was another car behind him, and others on the opposite direction towards him. Shortly before the accident, there was a truck that passed him going towards his opposite direction. His car was damaged on the front middle side but mostly towards the right front part. After the accident the Dyna truck ended up on the outside of the road. The only car that ended on the road was the blue Toyota Tazz that collided with his car. It stopped on the left side of the road where he was initially travelling. He was driving at a speed of +- 80km per hour. The distance between the Dyna truck and his car at the time he was following it was +- a distance of two cars. Before the accident, there was no chance that he and the Dyna truck driver could overtake as there were many cars travelling on the opposite direction.

[11] During cross examination of the plaintiff, he admitted that he made a mistake about the date of issue of his license, instead of saying 2006 he said 2005. He vehemently denied the version of the defendant’s witnesses as to how the accident occurred. It further emerged that he does not know what caused the damages on the Dyna truck and except for these remarks there was no criticism that were levelled against his evidence by the Counsel of the defendant.

[12] The first insured driver, after being shown the photos handed in as exhibit, changed his version that there was a barrier line that barred cars from both directions to overtake. He conceded to the fact that the photos correctly depicted that there was a broken centre line where the accident took place.

[13] When he was confronted with the statement he made to the Assessor who was appointed by the defendant, he indicated that he told the assessor about the blue Toyota Tazz nearly hitting the white car that was behind him, but that the assessor made a mistake of not mentioning this fact in his statement. He further denied that he saw the driver of the blue Tazz being drunk as depicted in his statement.

[14] It was put to him during cross examination that his version that a small car like a Tazz, could manage to hit a big truck and still proceeded to hit another car with such impact that it continued on the same lane and lastly, attempted to hit another car, is totally unbelievable. He agreed with this contention by the plaintiff’s counsel.

[15] The second insured driver contradicted the first insured driver by saying that the Dyna truck stopped or ended outside the road after the accident whereas the first insured driver said it ended on the tarred road. He also did not mention that the Dyna truck collided with the blue Tazz until he was questioned about this fact during cross-examination. Furthermore, he did not mention the fact that the car that was behind him had to go out of the road because of the blue Tazz approaching it until he was asked about this by the court. Another contradiction is found in his statement wherein he indicated that there was nothing that he could do to avoid the accident whereas in his evidence in chief he testified that he firstly applied brakes and then swerved a little bit to the left.

C. SUBMISSIONS

[16] The submissions of the plaintiff’s counsel were to the effect that the versions of the two parties are mutually destructive. This court must therefore look at the probabilities and improbabilities in this matter. According to him, the probabilities favour the plaintiff in that:-

• the first insured driver who testified on behalf of the defendant conceded that he could not believe his own version that he puts before the court;

• the statement of the Assessor is to the effect that the road was straight as an arrow without obstructions;

• impossible that the first insured driver could still talk to the people and swerve to the left if the Tazz was as close as he depicted;

• it is impossible that the Tazz at that same distance could have side swiped the Dyna truck during the collision, but could have hit it head on;

• it is again improbable that, the Tazz after hitting a 5 ton truck, the Dyna, in the manner the first insured driver depicted, that the Dyna could spin around as he testified;

• it is further improbable that after it so side swiped the Dyna truck and damaging its propshaft, the Tazz could still continue in that high velocity to an extend that it hit the maroon Corolla almost head on, whilst still travelling in the wrong lane, and further according to their version, continued to plough the road still in its wrong side and forced the other white car out of the road;

• furthermore, that it is improbable that this Tazz still stopped in the very same wrong lane despite the fact that it hit two cars;

• if the version of the witnesses for the defendant is to be believed, the Tazz, which is a small car to the two, Dyna and the Corolla, should have been forced out of the wrong lane back to its correct lane because of the impact;

• that is improbable that if the second insured driver kept an acceptable following distance (two cars) as he alleged, the blue Tazz could have collided with it on the front as the damages depicted as the second insured driver could have managed to swerve to the left successfully especially taking into consideration that the Tazz velocity should have been reduced by the first impact it had when it collided with the Dyna.

[17] According to the plaintiff’s counsel, there are no improbabilities that were depicted in the version of the plaintiff. He only contradicted himself as far as the driver’s licence date of issue is concerned which fact is not material and relevant to the issue in dispute. He did not speculate on the things that he did not know. He did not know what caused the damages on the Dyna and avoided to speculate.

[18] The defendant’s version on the other hand, the plaintiff’s counsel submitted, is full of improbabilities. The witnesses they called, especially the second insured driver, was not satisfactory in all respects. He could not give straight answers during cross-examination, even simple concessions that he was supposed to make, had to be dug from him. The two witnesses contradicted each other on the issue of where the Dyna truck ended after collision which fact is material. They should as such be regarded by this court as unreliable witnesses.

[19] The respondent’s counsel on the other hand submitted that this court need not go to an extent of looking into and considering the probabilities and improbabilities in this matter as there is one clear evidence before this court as to how the accident happened, which is the version of the defendant. According, to him there is no reason why the first insured driver would lie about the damages on his Dyna truck that it was caused by the plaintiff.

[20] Further that it is apparent from the photos submitted that the plaintiff’s car was also damaged on the front part. If we have to accept his version the question is, what could have then caused the said damages on the front side. The answer to this is that the plaintiff is the one that caused the accident by overtaking at an opportune moment and thereby collided with the two cars. A further confirmation of this is the fact that according to the first and second insured drivers, the whole accident occurred in their lane where they were travelling. This clearly shows that the blue Tazz went into the wrong lane.

D. THE LAW

[21] The following phrases in paragraph 5 of the case of Stellenbosch farmer’s Winery Group Ltd and Another v Martell et cie and Others 2003 (1) SA 11 (SCA) summed up the principles applicable in as far as when two versions are mutually destructive in a matter:-

“On the central issue, as to what the parties actually decided, there are two irreconcilable versions. So too on a number of peripheral areas of dispute which may have a hearing on the probabilities. The technique generally employed by courts in resolving factual disputes of this nature may conveniently be summarised as follows. To come to a conclusion on the disputed issues a court must make findings on (a) the credibility of the various factual witnesses; (b) their reliability; and (c) the probabilities. As to (a), the court’s finding on the credibility of a particular witness will depend on its impression about the veracity of the witness. That in turn will depend on a variety of subsidiary factors, not necessarily in order of importance, such as (i) the witness’ candour and demeanour in the witness box, (ii) his bias, latent and blatant, (iii) internal contradictions in his evidence, (iv) external contradictions with what was pleaded or put on his behalf, or with established fact or with his own extracurial statements of actions,(v) the probability or improbability of particular aspects of his version, (vi) the calibre and cogency of his performance compared to that of other witnesses testifying about the same incident or events. As to (b), a witness’s reliability will depend, apart from the factors mentioned under (a)(ii), (iv) and (v) above, on (i) the opportunities he had to experience or observe the event in question and (ii) the quality, integrity and independence of his recall thereof. As to (c), this necessitates an analysis and evaluation of the probability or improbability of each party’s version on each of the disputed issues. In the light of its assessment of (a), (b) and (c) the court will then, as a final step, determine whether the party burdened with the onus of proof has succeeded in discharging it. The hard case, which will doubtless be the rare one, occurs when a court’s credibility findings compel it in one direction and its evaluation of the general probabilities in another. The more convincing the former, the less convincing will be the latter. But when all factors are equipoised probabilities prevail.

[22] In Arthur v Bezuidenhout & Mieny 1962 (2) SA 566 (A) the Appellate Division affirmed the decision in Naude v Transvaal Boot & Shoes Manufacturing Co 1938 AD 379 at 392, 396 that it was decisive on the point that no onus rests on the defendant to establish the correctness of his explanation on a balance of probabilities. Further that, the maxim and finding of res ipsa loquiter does not alter the incidence of the onus of proof: it merely casts an evidential burden of rebuttal on the defendant. The onus of proving negligence remains on the plaintiff and after hearing all the evidence, the inquiry is whether the plaintiff has discharged the onus of proving on a balance of probabilities that the defendant (driver) was negligent.

[23] It has also been said in Klaassen v Benjamin 1941 TPD 80 at 87 that after both parties have completed their evidence:-

“……. Strictly speaking, there should be no room for an argument based on res ipsa loquitur any more than there is room for an argument that the onus has shifted through the leading of any other kind of evidence. The enquiry then is where, on all the evidence, the balance of probabilities lies. If it is substantially in favour of the party bearing the onus on the pleadings he succeeds; if not, he fails

[24] In the matter of Watt v Van Der Walt 1947 (2) SA 1216 (W) at 1221,

the view that when both parties have completed their evidence there is no room for an argument based on res ipsa loquitur was challenged. Commenting on it Millin J said:

“….. I cannot understand why, at that final stage, there should be no room for an argument based on res ipsa loquitur. True, the inquiry is as the learned judge says, but the plaintiff’s case remains. It still consists of the body of circumstantial evidence which, at the close of his case enabled him to saythat, Ex hypothesi he never had any other case and his argument must at the end be that the defendant has not displaced the inference of negligence which originally arose, either by successfully contradicting the evidence of the existence of facts from which the inference was drawn, or proving other facts which, taken with the former facts are consistent with the exercise of due care. If the defendant’s explanation of the occurrence takes the form of direct evidence that he did exercise due care by taking all necessary precautions against damage to others, that evidence must be tested by the probabilities of the case; and if the defendant’s evidence cannot be rejected as clearly false, the plaintiff fails to discharge his burden of proof on the pleadings unless there is such a preponderance of probability against the evidence as to leave the original facts still speaking for themselves and proclaiming negligence’

[25] In Authur v Bezuidenhout & Mieny quoted above, Ogilvie Thompson JA (as he then was) acknowledged the force of Miliin J’s reasoning but emphasized that at the end of the case the enquiry is where, on all the evidence, the balance of probabilities lies. The learned judge of appeal went on to state:

‘If ….. the defendant succeeds in establishing his explanation on a balance of probabilities, then there exists a balance of probabilities against the plaintiff who, in such event, obviously fails. But the evidence given in support of defendant’s explanation, although falling short of proof on a balance of probabilities, nevertheless forms part of the evidence in the case and has to be taken into consideration by the court. Such evidence may – depending upon its cogency and the particular facts of the case – suffice to rebut the inference of negligence arising from proof of the mere occurrence relied upon by the plaintiff, the court must be satisfied that having regard to the evidence as a whole, the plaintiff has proved, on a balance of probabilities, his allegation of negligence against the defendant’.

[26] Holmes JA also said the following in the matter of Sardi and Others v Standard Bank & General Insur.Co 1977 (3) SA 776 (A) at 780 B-H

‘The person, against whom the inference of negligence is 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……. At the end of the case, the court has to decide whether on all the evidence and the probabilities and the inferences the plaintiff has discharged the onus of proof on the pleadings on a preponderance of probability, just 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.”

E. ANALYSIS

[27] It is clear that this court is having before it, two mutually destructive versions of how the incident occurred. There is no criticism that can be levelled against the plaintiff’s demeanor when testifying except his contradiction in as far as the date of issue of his license, which in my view, does not have a bearing in the outcome of this case. However, the plaintiff’s evidence does not share more light about what happened after he collided with the maroon Corolla, as according to him, he was badly injured. There are contradictions in as far as the defendant’s version is concerned, which I have already dealt with above. However, in my view they are not material and therefore do not affect the credibility and reliability of their evidence. The main important consideration is the fact that their version as far as how the collision took place corroborated each other. The observation that I make from their evidence is that, they were able to relate and explain everything that happened before, during and after the collision unlike the plaintiff, probably because they were not injured. The impression that I get from their version is that they had enough opportunity to experience or observe the event in question, especially the driver of the Dyna Truck.

[28] It is not in dispute that the Dyna truck was involved in the collision and was therefore damaged as depicted in the photos. The plaintiff cannot on his own version deny this fact. The question that remains unanswered if one accepts the plaintiff’s version of events is what caused the damages on the Dyna truck then? There was no forthcoming explanation from the plaintiff himself or his counsel on this issue as they did not want to speculate. This means that there is nothing from the plaintiff’s version to gainsay the defendant’s version as far as this issue is concerned.

[29] The next question is whether the explanation by the defendant is sufficient to negate the probability of negligence arising from the occurrence. If the explanation is sufficient to negate the probability of negligence the plaintiff cannot succeed. See Rankinson & Son v Springfield Omnibus Services 1964 (1) SA 609 (N) at 616 D.

[30] Plaintiff’s counsel submitted that the version of the defendant is highly improbable in that if we accept the defendant’s version, it was impossible for the Tazz to have

(i) hit a 5 ton truck, the Dyna, and still continued in that high velocity to an extent that it collided again with the maroon corolla almost head on and further,

(ii) continued to plough the road on the wrong side, furthermore

(iii) forced the other white car out of the road, and lastly

(iv) stopped in the very same lane despite colliding with two cars.

No expert witness was called by the two parties in this matter. Unfortunately the improbability the plaintiff’s counsel relies on is a subject matter than can only be opined and clarified by expert evidence. In addition, whilst the version of the defendant might still be improbable in the eyes of the plaintiff’s counsel, plaintiff’s counsel loose the fact that if the defendant succeed in establishing his explanation on a balance of probabilities, then there exists a balance of probabilities against the plaintiff, who in such event, obviously fails.

[31] An analysis of the defendant’s version is to the effect that it cannot be rejected as clearly false. As already stated above, the evidence of the defendant on the issue of the Dyna being involved in the collision and having suffered damages stands uncontested. This lent some form of credence to the version of the defendant. If we believe the defendant on this part of the evidence, in which event I find such evidence to be credible, there exist no reason why this court cannot believe the rest of their evidence. Therefore in my view the defendant had given an explanation which is sufficient cogent to disturb the probability of negligence arising from the collision. There is on the evidence before court no preponderance of probability against the defendant’s evidence as to leave original facts still speaking for themselves and proclaiming negligence.

[32] It is common cause between the parties that three cars were involved in this collision. I found no reason why the driver of the Dyna truck can selectively choose the plaintiff and lie about the damages on his Dyna truck that it was caused by him. No reason was advanced that he can do so in favour of the driver of the corolla. One cannot escape from thinking of the possibility that perhaps the damages on the Dyna truck could have been caused by the plaintiff’s car an or the maroon corolla at the time of their collision as the maroon corolla was according to him trying to overtake the Dyna truck. Although this is still sheer speculation, the probable damages to the Dyna truck could only then reasonably be expected to have been on the side only as the Dyna truck was moving at that time parallel to the maroon Corolla. How it got damaged on the front corner will therefore remain a mistry. The maroon corolla was also damaged on the front side only. This further confirms the possibility of the maroon corolla to have in some other way collided with the Dyna truck to be remote and far-fetched. What is even worse is the fact that the plaintiff did not give any indication on which side of the road the accident occurred. We only have the version of the defendant that it occurred on their lane where they were travelling. This further strengthen the probabilities that the blue Tazz, (the plaintiff’s car) went into the wrong lane.

[33] Having said the above, this court is not satisfied that in considering the evidence as a whole, the plaintiff has proved, on a balance of probabilities, his allegation of negligence against the defendant.

[34] Consequently the following order is made:-

34.1 The plaintiff’s action is dismissed with costs.

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A M KGOELE

JUDGE OF THE HIGH COURT

ATTORNEYS:

FOR THE PLAINTIFF : Khanyisa Mogale Attorneys

C/O Gura Tlaletsi & Partners

No. 38 Carrington Street

MAFIKENG

FOR THE DEFENDANT : Dyason Incorporated

C/O Nienaber & Wissing Attorneys

Shop 6B Dada Complex

Aedrome Crescent

Industrial Site

MAFIKENG

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