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					                     FORM A

                                      ECJ NO: 024/2005


   Registrar: CA 517/2004

DATE HEARD:     18 MARCH 2005


    for the State/Applicant(s)Appellant(s) DH DE LA HARPE
    for the accused/respondent(s) TM PATERSON
    for third party

Instructing attorneys:
    Applicant(s)/Appellant(s): NN DULLABH&CO
    Respondent(s): KARSTANS
    Third party:

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Of interest

In the High Court of South Africa
(Eastern Cape Division)                                            Case No CA 517/04

In the matter between

CLINTON MARK BERRIMAN                                                      Appellant


THE ROAD ACCIDENT FUND                                                     Respondent

SUMMARY:         Motor collision – proof of negligence – res ipsa loquitur – whether or not there
is sufficient information about the occurrence of the collision to justify an inference of
negligence – whether or not a hearsay explanation that the collision was caused by a burst
tyre is admissible.



The appellant alleged that he was a passenger in a motor vehicle which was

involved in a collision. He suffered bodily injuries in the course of the collision

and claimed damages from the defendant (‘the Fund’) in terms of the

provisions of Road Accident Fund Act No 56 of 1996. The action came before

the magistrate of Grahamstown who absolved the Fund from the instance

after the appellant, as plaintiff, had closed his case. He now appeals against

that decision. In this judgment I shall call him the plaintiff.

Two issues were canvassed at the trial: first, whether the vehicle involved in

the collision was being driven by one Emslie or by the plaintiff; and, second,

and if Emslie was driving, whether the collision was caused by negligent

driving on his part.

The evidence established that the plaintiff and Emslie were on their way home

after a Friday evening at bars called the Rat and Parrot and Die Taphuis in

Grahamstown. The plaintiff was asleep throughout the journey, and he was

rendered unconscious in the collision. He does not know what happened. He

regained his senses the following day in hospital in Port Elizabeth. When

Emslie visited him in hospital that day, the plaintiff asked him what had

happened and Emslie told him. Emslie was killed in a subsequent motor

accident and could not be called as a witness. Apparently, the statement that

he made to the police was lost. In any event it was not proved in evidence.

There was nobody else in the car. Nobody could describe how the collision


The plaintiff went to trial on the basis that an inference of negligence could be

drawn from the fact of the collision – res ipsa loquitur. This kind of reasoning

may be used where the circumstances of a collision are such that one can

properly conclude from the mere fact of its occurrence that it would not have

happened without negligence on the part of the driver. See Arthur v

Bezuidenhout and Mieny 1962 (2) SA 566 (A); Stacey v Kent 1995 (3) SA 344

(E); McLeod v Rens 1997 (3) SA 1039 (E). The position is summed up as

follows by Kroon J in Stacey v Kent supra at 352E-in fine:

       ‘where a matter is one where the maxim res ipsa loquitur is of application (ie
       where the mere fact of a particular occurrence warrants an inference of
       negligence and where the occurrence is due to a thing or means within the
       exclusive control of the defendant - Cooper Motor Law vol 2 at 99) the
       principles applicable are the following: the rule gives rise to an inference, not
       a presumption, of negligence. The court is not compelled to draw the
       inference. At the end of the case the enquiry 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. Once the plaintiff
       proves the occurrence giving rise to the inference of negligence on the part of
       the defendant, the latter must adduce evidence to the contrary; he must tell
       the remainder of the story, or take the risk of judgment being given against
       him. How far the defendant's evidence need go to displace the inference of
       negligence arising from proof of the occurrence depends upon the facts of the
       particular case. Mere theories or hypothetical suggestions will not avail the
       defendant; his explanation must have some substantial foundation in fact and
       the evidence produced must be sufficient to destroy the probability of
       negligence inferred to be present prior to the testimony adduced by him.
       There is, however, no onus on the defendant to establish the correctness of
       his explanation on a balance of probabilities. The enquiry at the conclusion of
       the case remains whether the plaintiff has, on a balance of probabilities,
       discharged the onus of establishing that the collision was caused by
       negligence attributable to the defendant. In that enquiry the explanation
       tendered by the defendant will be tested by considerations such as probability
       and credibility.’

It is useful to begin with the pleadings because they contain admissions. The

particulars of the plaintiff’s claim alleged in paragraph 3 that ‘on 20 April 2002,

at approximately 02:20 am, on the national road between Grahamstown and

Port Elizabeth near Howieson’s Poort, a collision occurred involving motor

vehicle CLH 282 EC, a Toyota Corolla, . . . being driven by one Justin Emslie’.

Paragraph 4 alleged that the plaintiff was a passenger. Paragraph 6 alleged

various grounds of negligence by Emslie which included an allegation of

driving at an excessive speed, driving under the influence of alcohol, and

failing to keep the vehicle upon the trafficable surface of the road. By sleight

rather than logic the plea contrived to deny, alternatively to admit, the collision

alleged in paragraph 3, save that the identity of the driver was placed squarely

in issue. The trial and the appeal were conducted on the basis that the fact of

the collision as alleged in paragraph 3 was indeed admitted and was common

cause. The further particulars added that the plaintiff was wearing a seat belt

and that the collision occurred at a spot about 10 kilometres from

Grahamstown, which was also admitted. The plea alleged that the plaintiff

was the driver, and it denied the grounds of negligence alleged in paragraph

6. The plea also alleged that the collision was the result of a sudden

emergency caused by a burst tyre.

The only witnesses called at the trial were the plaintiff and a young lady, Ms

Van Rensburg. Ms Van Rensburg and a friend were given a lift from Die

Taphuis when the plaintiff and Emslie left to go home. They were dropped off

at the Rat and Parrot on Emslie’s way out of town to his and the plaintiff’s

farms. Their evidence established on a balance of probability that Emslie was

driving. It is clear from the plaintiff’s evidence that he has no personal

knowledge of the collision. He was asked in chief what Emslie had told him

when at the hospital the following day. The evidence which followed was

hearsay but there was no objection from the defendant. Indeed, far from

objecting, the defendant elicited further details during cross-examination.

The account which Emslie gave to the plaintiff was that they left Die Taphuis

in the company of two girls who were given a lift to the Rat and Parrot. Before

leaving Die Taphuis Emslie checked that the plaintiff’s seat belt was properly

secured. (The plaintiff woke when he did so and went back to sleep. It was the

last thing he remembers.) Emslie drove along the national road from

Grahamstown to Port Elizabeth towards the farms where they lived. He was

travelling at about 120 or 130 kph. At the bottom of an incline where the road

curved to his right, his right front tyre burst. He applied brakes but could not

maintain control and the vehicle veered off on to the left side of the road into

an embankment. In Emslie’s view there was nothing he could have done to

avoid the collision.

The plaintiff and Emslie were friends. The plaintiff accepted what Emslie told

him. He did not think that Emslie’s speed was the cause of the collision or that

Emslie’s faculties were impaired by the alcohol he had consumed. He

explained that he, the plaintiff, was not under the influence of liquor and that if

Emslie had had too much to drink he would have woken the plaintiff and

asked him to drive. Ms Van Rensburg also said that Emslie was not under the

influence of liquor. If he had been, she would not have accepted a lift from


The magistrate accepted that on the evidence the collision was caused by the

sudden emergency of a burst tyre, and that the plaintiff had not discharged the

onus of proving that it was caused by negligence on the part of Emslie. There

was no prima facie case for the Fund to meet. Hence, the order for absolution

from the instance.

On appeal Mr De La Harpe for the plaintiff argued that the magistrate had

incorrectly relied on inadmissible hearsay that the cause of the collision was a

burst tyre, and that the trial court should have found that an inference of

negligence was the most probable inference to be drawn from the

unexplained occurrence of the vehicle leaving the surface of the roadway and

crashing into the embankment.

It may be that proof of a motor vehicle going off the road surface while being

driven round a bend justifies an inference that the driver drove without proper

care and skill if he does not tell the remainder of story, as explained in the

judgment of Kroon J supra. But Mr De La Harpe’s argument is nevertheless

unsound. This is because there was no evidence, other than the hearsay to

which Mr De La Harpe objects, that the vehicle left the surface of the roadway

and crashed into the embankment. The pleadings do not help the plaintiff. The

ground of negligence that the driver failed to keep the vehicle on the

trafficable surface of the roadway was denied. The plaintiff did not allege

when describing the collision that the insured vehicle left the surface of the

roadway and collided into an embankment. He alleged merely that the vehicle

was involved in a collision. That is all that was admitted in the plea, and, if the

hearsay is left out of consideration, that was all that the plaintiff had to go on.

The mere fact that a vehicle in which a plaintiff is a passenger is involved in a

collision and that the plaintiff is injured was not enough to bring the inferential

reasoning of res ipsa loquitur into play. That is not enough to require the driver

to tell the rest of the story, and he does not have to give an explanation of the

collision inconsistent with negligence in order to avoid an inference of

negligence being drawn. There is no basis for inferring negligence from the

fact that the vehicle was involved in a collision. For the res ipsa loquitur maxim

to apply the only known facts relating to negligence must be the occurrence of

the collision, which presupposes that sufficient detail is known of the collision

to warrant the inference.

Mr De La Harpe is in a quandary. He needs the hearsay of Emslie’s version to

lay a proper foundation for invoking the res ipsa loquitur process of reasoning.

But if one admits Emslie’s hearsay about the vehicle leaving the road on a

bend, the rest of his version is also admissible, including the explanation of

the burst tyre. This explanation is indeed the rest of the story. It is an

explanation of the collision which is inconsistent with negligence (Madyosi v

SA Eagle Insurance Co Ltd 1990 (3) SA 442 (A)), and hence it precludes an

inference of negligence from the fact of the occurrence in the circumstances

of this case.

As for the admissibility of the hearsay, section 3(1)(a) of the Law of Evidence

Amendment Act 45 of 1988 provides that hearsay evidence shall not be

admitted as evidence at criminal or civil proceedings, unless each party

against whom the evidence is to be adduced agrees to the admission thereof

as evidence at such proceedings. In this case the only inference from the way

in which the evidence was led and dealt with by the parties is that each party

agreed to its admission as required by the section. The plaintiff’s attorney

specifically said to the plaintiff in leading his evidence in chief that ‘the reason

why I am asking you all these questions is because obviously Justin [Emslie]

is not capable to come and testify today’. For that reason, he deliberately

elicited a full account of what Emslie told the plaintiff. The Fund made no

objection, and through its counsel during cross-examination extracted further

details of what Emslie told the plaintiff. The Fund relied on the hearsay

evidence at the trial and does so on appeal. There can be no doubt that it

agreed to it being adduced. The plaintiff led the evidence because he wanted

it on record. He could hardly have objected to its admissibility when doing so. I

do not see how he can possibly object to it now.

In the result, the appeal is dismissed with costs.

Judge of the High Court
19 March 2005

DAMBUZA AJ                   I agree.

Judge of the High Court (Acting)

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