After the collision he found his cell phone and eventually by PvU21amT

VIEWS: 6 PAGES: 12

									                                                                              1


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
                                                                               2


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
                                                                              3


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,
                                                                             4


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
                                                                              5


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
                                                                             6


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
                                                                            7


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.
                                                                            8



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
                                                                              9


       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.
                                                                              10



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
                                                                              11


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.
                                                                            12



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.




_______________
J.D. PICKERING
JUDGE OF THE HIGH COURT

								
To top