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REPUBLIC OF SOUTH AFRICA

THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

CASE NO: 44791/12

DATE: 19 SEPTEMBER 2014

In the matter between:

MPHO FRANS MALATJI..............................................Plaintiff

And

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

J U D G M E N T

MPHAHLELE, J:

[1] The plaintiff sued the defendant for damages arising from a motor-vehicle accident which took place on 12 November 2010. At the time of the accident the plaintiff was driving a motor-vehicle bearing the registration numbers JWN 493GP. The said motor-vehicle was involved in an accident with a motor-vehicle bearing the registration numbers YNG 741GP driven by Mr. Dewald Minnie (“the insured driver”). The accident took place at the intersection of Pretoria and Partridge Roads, Kempton Park.

[2] At the commencement of the trial and by agreement between the parties the issue of merits for liability was separated from quantum in terms of rule 33(4) of the Uniform Rules of Court. The matter accordingly proceeded on the merits of liability only.

[3] The plaintiff called one witness, Ms. Shirley Ledwaba and the defendant called the insured driver, Mr. Dewald Minnie.

[4] The plaintiff testified that he was the driver of a green Nissan motor-vehicle travelling from west to east on Pretoria road. Upon approaching Partridge Road, Pretoria Road splits into two lanes, with a slipway for traffic turning left into Partridge Road. He travelled in the right hand lane behind a taxi in order to proceed straight to his workplace in Spartan. He estimated that between his car and the taxi, there was a distance of two cars.

[5] The plaintiff noticed the insured motor-vehicle stationary at the stop sign in Partridge road. After the taxi in front of him had passed Partridge road, the insured motor-vehicle unexpectedly entered into Pretoria road. He unsuccessfully tried to avoid the accident by applying the brakes of his car and swerving to the right. Unfortunately he knocked into the insured motor-vehicle. He denied the version of the defendant that he was travelling in the left lane turning into Partridge road, behind a taxi and a bakkie. He further denied that he swerved into the right lane due to the taxi having stopped ahead of him. He testified that he never intended to turn into Partridge road and further that he travelled on this road daily on his way to work.

[6] Ms. Shirley Ledwaba testified that she was a back seat passenger in the plaintiff’s motor-vehicle. She had been travelling with the plaintiff daily for three years on this road to work. She testified that they were travelling straight in Pretoria Road and there was a taxi in front of them. She observed the taxi also travelled straight in Pretoria Road after the intersection with Partridge Road but she did not observe the accident occur.

[7] Mr. Minnie, the driver of the insured motor-vehicle, testified that he was travelling in Partridge Road from Kempton Park en route home in Elgin. At the intersection with Pretoria road he stopped in accordance with the stop sign. He observed the traffic and noticed three motor-vehicles in the left hand lane of Pretoria Road intending to turn left into Partridge Road. In the front was a taxi, followed by a bakkie and lastly a blue car. He was not certain if the taxi stopped or proceeded to turn to the left into Partridge Road. Upon satisfying himself that it was safe to execute a right hand turn, he proceeded to enter the intersection and the plaintiff’s car knocked into his car. He only saw the plaintiff’s car after the accident but he insisted that it was the same car that was travelling in the left lane behind the taxi and the bakkie. Under cross-examination he conceded that he never noticed the plaintiff’s motor-vehicle immediately prior to the accident. He further did not observe the plaintiff’s car at any stage changing lanes. He further admitted that the taxi could have obscured the plaintiff’s car.

[8] Counsel for the plaintiff submitted that in the light of the insured diver’s evidence, particularly the fact that he could not pertinently give a version of the facts as was pertinently put by his counsel to the plaintiff, there is in fact no version before the court on the part of the insured driver. He further submitted that on a balance of probabilities it is highly unlikely that the plaintiff would have entered into the left hand lane, it merely being 20 metres long and quickly changing lanes whilst it was always his intention to proceed straight.

[9] Counsel for the defendant submitted that the plaintiff has not discharged the onus on him and can therefore not succeed with his claim. He submitted that if the court finds that the plaintiff’s version is more probable, the plaintiff is partly responsible for causing the accident and that the court should order apportionment of liability. He proposed an apportionment of 50% / 50% between the plaintiff and the insured driver.

[10] This court is faced with two irreconcilable versions or mutually contradictory versions, the resolutions of which will depend on my finding regarding a) credibility, b) reliability, c) probabilities. See Stellenbosch Farmers Winery Group Ltd & Another v Martell Et Cie & Others 2003 (1) SA 11 SCA at page 14 – 15.

[11] The evidence of the plaintiff is to a certain extent corroborated by some other evidence but for the very important part of the evidence he is a single witness and the cautionary rule is therefore applicable to his evidence. The plaintiff made a good impression to the court. His version was consistent, coherent and logical. I accept as correct and credible the plaintiff’s case that he was travelling straight in Pretoria road.

[12] The insured driver was also an honest witness. He informed the court that he did not observe the plaintiff’s motor-vehicle swerving from the left into the right lane. So he could not say with certainty where the plaintiff’s car approached from. He only saw the plaintiff’s car for the first time after the accident. Therefore, the defendant’s case that the plaintiff’s car was travelling behind the taxi and the bakkie in the left lane of Pretoria road, and thereafter swerved into right lane and thereby knocked into the insured motor-vehicle is not supported by any evidence and it is accordingly rejected. It is therefore probable that the insured driver entered the intersection whilst it was not safe for him to do so and thereby caused the accident. Moreover he conceded that his view of the plaintiff’s car might have been obscured.

[12] If the insured driver was concentrating on the motor-vehicles travelling on Pretoria Road in accordance with his version, he could have noticed the plaintiff’s motor-vehicle before the accident.

[13] I now turn to deal with the defendant’s submission that the plaintiff also contributed to the accident. The question as to whether either of the drivers indeed was negligent or not must account for all the proven facts. One does not draw inference of negligence on a piecemeal approach. One must consider all the facts in totality and then decide whether the driver has exercised the standard of conduct which the law requires. The standard of conduct so required is that which a reasonable man would exercise in the circumstances. That degree of care will vary according to the circumstances. The question is whether the driver should reasonably, in all the circumstances have foreseen the possibility of a collision. [See Santam Verseekeringsmaatskappy Bpk v Swart 1987 (4) SA 816 (A) at 819B-D].

[14] The accident took place at approximately 07h30 in the morning and visibility was good. The road was flat and there were no obstructions. The plaintiff testified that he observed the insured driver stationary at the stop sign and he did not expect him to enter into the intersection. He further testified that he tried to avoid the accident by applying his brakes and swerving to the right. On the other hand the insured driver only saw the plaintiff’s car for the first time after the accident. The assumption by the plaintiff that the insured motor-vehicle would remain stationery at the stop sign is not unreasonable. Consequently there is no basis upon which it can be said that the plaintiff was negligent, in part or at all.

I, therefore, make the following order:

1. The defendant is hereby ordered to pay 100% of the plaintiff’s agreed or proven damages.

2. The defendant is liable for the plaintiff’s costs

S S MPHAHLELE

JUDGE OF THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

COUNSEL FOR PLAINTIFF: Mr A P Denhartog

INSTRUCTED BY: Reineer Van Rensburg Inc.

COUNSEL FOR DEFENDANT: Mr P P Monama

INSTRUCTED BY: Duduzile Hlebela Attorneys

DATE OF HEARING: 13 August 2014

DATE OF JUDGMENT: 19 September 2014

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