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IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

CASE NO: 38647/2018

In the matter between:

NORTMANN, CHRISTIAAN FREDERICK                                                                 Plaintiff

and

ROAD ACCIDENT FUND                                                                                      Defendant

Dispute whether the plaintiff was injured in a collision.

 

JUDGMENT

DE VILLIERS, AJ

[1] This matter came before me for determination of a separated issue. The defendant (“the RAF”) disputed that the plaintiff was injured in a motor vehicle collision, as alleged by the plaintiff. The plaintiff averred that on 25 October 2016 he was involved in a collision at an intersection in Krugersdorp, the details of which are not important. He was riding a motorcycle at the time, but did not have the details of the other vehicle or its driver.

[2] Three matters caused the RAF concern, namely, (a) it could not find proof that the accident was reported to the police; (b) it could not find proof that the plaintiff received treatment on the day of the alleged collision; and (c) it was concerned about inconsistencies in the recorded versions of the collision, especially having regard to the pleadings and statutory claim form.

[3] The RAF is in a difficult position in a case such as the present. It cannot call an eye witness and has to rely on cross-examination, documentary evidence and inference to counter the plaintiff’s averments. The vigour with which the RAF investigated its liability in this case, to date, is commendable.

[4] The plaintiff testified that the other driver stopped, asked him if he was fine, helped him to the sidewalk, and left him, ostensibly to remove the other car from an intersection where it had come to a standstill. Instead the driver drove off. Having tried unsuccessfully to phone emergency services, the plaintiff phoned a friend to come and assist him. No phone records were produced to confirm this version. The plaintiff’s friend eventually took him home, and caused the removal of the motorcycle. The motorcycle belonged to the plaintiff’s brother, and was written off. He does not know if his brother had insurance on the motorcycle. The plaintiff no longer has contact with the person who had assisted him. The availability of the brother to testify was not addressed in evidence.

[5] During cross-examination counsel for the RAF expressed disbelief at the convenience of a version not supported by evidence, but did not inform the plaintiff that it would be argued that his version was untruthful, that the claim was fabricated, or that he should be disbelieved on any part of his evidence. The version of the plaintiff was not fantastical. It had a ring of truth. In the absence of a direct challenge, the plaintiff was not obliged to call for instance his brother to testify, if he was available to do so, or to produce further documentary evidence. In this regard see Small v Smith[1] where it was said:

“It is, in my opinion, elementary and standard practice for a party to put to each opposing witness so much of his own case or defence as concerns that witness and if need be to inform him, if he has not been given notice thereof, that other witnesses will contradict him, so as to give him fair warning and an opportunity of explaining the contradiction and defending his own character. It is grossly unfair and improper to let a witness's evidence go unchallenged in cross-examination and afterwards argue that he must be disbelieved.

Once a witness's evidence on a point in dispute has been deliberately left unchallenged in cross-examination and particularly by a legal practitioner, the party calling that witness is normally entitled to assume in the absence of notice to the contrary that the witness's testimony is accepted as correct. More particularly is this the case if the witness is corroborated by several others, unless the testimony is so manifestly absurd, fantastic or of so romancing a character that no reasonable person can attach any credence to it whatsoever. (See the following authorities: Browne v Dunn (1893), 6 The Reports 67, H.L.; Phipson on Evidence (7th ed. p. 460); Rex v M., 1946 AD 1023 at p. 1028.)”

[6] This judgment received express approval in the Constitutional Court in President of the Republic of South Africa and Others v South African Rugby Football Union and Others.[2] The summary of the law is set out in para 61-65 (footnotes omitted)

“[61] The institution of cross-examination not only constitutes a right, it also imposes certain obligations. As a general rule it is essential, when it  is intended to suggest that a witness is not speaking the truth on a  particular point, to direct the witness's attention to the fact by questions put in cross-examination showing that the imputation is intended to be made and to afford the witness an opportunity, while still in the witness-box, of giving any explanation open to the witness and of defending his or her character. If a point in dispute is left unchallenged in cross-examination, the party calling the witness is entitled to assume that the unchallenged witness's testimony is accepted as correct. This rule was enunciated by the House of Lords in Browne v Dunn and has been adopted and consistently followed by our courts.

[62] The rule in Browne v Dunn is not merely one of professional practice but 'is essential to fair play and fair dealing with witnesses'.  It is still current in England and has been adopted and followed in substantially the same form in the Commonwealth jurisdictions.

[63] The precise nature of the imputation should be made clear to the witness so that it can be met and destroyed, particularly where the imputation relies upon inferences to be drawn from other evidence in the proceedings.  It should be made clear not only that the evidence is to be challenged but also how it is to be challenged.  This is so because the witness must be given an opportunity to deny the challenge, to call corroborative evidence, to qualify the evidence given by the witness or others and to explain contradictions on which reliance is to be placed.

[64] The rule is of course not an inflexible one. Where it is quite clear that prior notice has been given to the witness that his or her honesty is being impeached or such intention is otherwise manifest, it is not necessary to cross-examine on the point, or where 'a story told by a  witness may have been of so incredible and romancing a nature that the most effective cross-examination would be to ask him to leave the box'.

[65] These rules relating to the duty to cross-examine must obviously not be applied in a mechanical way, but always with due regard to all the facts and circumstances of each case. But their object must not be lost sight of. Its proper observance is owed to pauper and prince alike. In the case of the President of this country there is an added dimension. Not only are his personal honour and dignity at stake. He, as head of State, is representative of all the people. That being so, the rule needs to be observed scrupulously.”

[7] The plaintiff had a probable explanation why the case may not appear on the police system. He testified that despite repeated visits to the Krugersdorp police station, the officers on duty refused to help him. In desperation he asked for help from a police officer known to him, a Warrant Officer Leka. It was common cause at the hearing that such a person existed. He prepared the report for the police, and gave it to the plaintiff. According to the plaintiff, he took the report to someone at the Krugersdorp police station, who entered it on the computer system (or so he believed). He had no further explanation why the computer system would not reflect the case and produced a report he said was prepared by Warrant Officer Leka. The same comments above about a version not being challenged properly, apply here.

[8] The plaintiff also had a probable explanation why he was not hospitalised on the day of the collision. He immediately had lost feeling in his leg, could not stand on it, and his ankle was swollen. He testified that for the first two days he made do. He used painkillers, and elevated his leg. Only thereafter did he seek medical treatment. Again, the same comments about a version not being challenged properly, apply here. Importantly, two days after the alleged collision, the plaintiff had an injury that required medical attention. It would have been caused by some event.

[9] Lastly, the cross-examination focused on discrepancies between the plaintiff’s evidence and the statutory claim form, and the police report prepared by Warrant Officer Leka. It is important to note that the plaintiff has a grade nine qualification and is a lay person. The documents are in English and the plaintiff is Afrikaans speaking, although it seems that he has a reasonable command of English. No one should be surprised that he did not pick up small discrepancies in the documents. Most of the alleged discrepancies could be explained as summarised versions, and potential errors by third parties in completing forms. The alleged discrepancies did not reflect that the plaintiff was untruthful. The plaintiff maintained his version of events, and did not contradict himself in his testimony. I am reluctant to make findings based on impressions in the witness stand, but I saw nothing that could motivate me to reject the plaintiff’s version as untruthful. I am satisfied that the truth has been told, the slender criticisms do not warrant a rejection of his evidence. The evidence seemed credible, reliable and probable. In this regard I fully agree with Johnson v Road Accident Fund where it was said:[3]

“The real test of truth does not lie in a comparison between what the witness is alleged to have told someone else and what he now tells the Court. What a witness is alleged to have told someone else leaves room for misstatements, misunderstandings and misconstructions. The statement, however carefully drafted, can never be as reliable as listening to the ipsissima verba of the witness himself. Signing or otherwise confirming the content of a previous statement does not remove the inherent deficiencies of the hearsay nature of the evidence and all its other inherent faults. The best test of the accuracy and truth of what a witness says lies in an independent assessment of his actually spoken words. It lies in the Court's ability to listen to his words and to observe his demeanour. It lies in the Court's ability to observe and note any degree of hesitancy or uncertainty which may or may not attend upon a concession by the witness or his affirmation of a given fact. Ultimately this Court is the trier of facts of the case and the credibility of a witness does not entirely depend on the score he may achieve in testing inconsistencies between what he now says and what someone else says he told them.”

[10] I make the following order:

1. The defendant is liable for 100% of such damages as the plaintiff may prove;

2. Costs shall be costs in the cause.

__________________

DP de Villiers AJ

 

 

On behalf of the Plaintiff: Adv JM Killian

Instructed by: Mouton & Williams Attorneys

On behalf of the Defendant: Adv N Adams

Instructed by: Pule Inc

Heard on: 14 February 2020

Delivered on: 6 March 2020

 

[1] 1954 (3) SA 434 (SWA) at 438E-H

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