REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA 
(GAUTENG DIVISION, PRETORIA)
CASE NO: 57694/2012
DATE: 19 AUGUST 2014
IN THE MATTER BETWEEN:
PHUMLA THANDEKA MAJOLA.............................................................................................PLAINTIFF
and
THE ROAD ACCIDENT FUND...............................................................................................DEFENDANT
JUDGMENT
Heard  on: 06 August 2014
 Handed down on: 19 August 2014
KUBUSHI, J
[1] The main issue for determination in this matter is that of negligence pursuant to a personal injury claim resulting from a motor vehicle collision that occurred on 11 June 2010 along the M13 Road in Pine Town. The plaintiffs claim is against the Road Accident Fund.
[2] The plaintiffs counsel applied in terms of the uniform rule 33 (4) for a separation of issues which was not opposed and I granted the application. The matter was as a result before me on merits only and the damages part of the claim was postponed sine die.
[3] It is common cause that the M13 Road is a road that travels through Pine Town to Durban. The two sides of the road are separated by an island with barriers. The collision which is the subject matter of this claim happened on the left side of the road leading from Pine Town to Durban. Each side of the road has two lanes going in the same direction. It is also common cause that on the day in question the weather was clear with no rain. The plaintiff was driving in a green Picanto motor vehicle (the Picanto) whilst the insured driver drove a black Toyota Fortuner motor vehicle (the Fortuner).
[4] There are two versions presented to me as to how the collision occurred. The version of the plaintiff is related by the plaintiff and her friend, Ms Chulekazi Zongwana (Zongwana), whom she referred to as Chule and who was a passenger in the Picanto. The version of the defendant is presented by Mr Gary Edward Johnson (Johnson), an independent witness who alleges to have been travelling behind the Picanto immediately before the collision; and Warrant Officer Gary Anthony Brooks (Brooks), the SAPS officer who arrived first at the scene of the collision.
[5] The plaintiffs evidence as related by herself is that: on the day in question she was travelling along the M13 Road from Pine Town to Durban. The speed limit on that part of the road is 80 Km/h and she was travelling within that speed limit. She was travelling in the right lane of the road, that is, the fast lane. She was in the company of Zongwana whom she was taking to Durban for an interview. Zongwana was sitting on the left side in the back seat. The plaintiff had just off loaded another friend who had been sitting in the front passenger seat and that is why Zongwana was sitting in the back seat.
[6] It was during the time when the World Cup Soccer Tournament was held in South Africa and she had a small South African flag hanging from the left back window of her motor vehicle. As she was moving the flag was making an irritating noise and she asked Zongwana to remove it. According to her, Zongwana was still removing the flag when she (the plaintiff) heard a loud bang at the back left side of the motor vehicle. She also saw a black motor vehicle, it had collided with the back of the Picanto. She had seen that motor vehicle earlier on, on her rear view mirror. She could not estimate the distance at which she first saw it but it was not at a close distance. After impact she lost control and the Picanto rolled several times and landed on its left side. It came to stop on the left lane of the road. She sustained injuries to her leg and neck as a result of the collision and was taken to the Ntabeni hospital.
[7] She denied that she was ever on the phone at the time the collision occurred. According to her, her cell phone was in her bag and the bag was on the floor of the Picanto next to the passenger seat. She had earphones which she would use to talk on the phone if she required using it. Under cross examination she contradicted herself that the motor vehicle that hit her from the back was a black Toyota Fortuner as stated in the affidavit she made at the police station and not the black motor vehicle as she had earlier testified.
[8] Zongwana’s testimony corroborates that of the plaintiff in all material respects. She was removing the flag from the rear left window when she became aware of what she referred to as a 'big black car’ at the level of her shoulder which collided with the Picanto. She had not seen that motor vehicle before. She only saw it at the time it collided with the Picanto. She was injured during the collision and was taken to hospital as well.
[9] Under cross examination she denied seeing or talking to the police whilst she was still at the scene of the collision. She vehemently denied that the plaintiff was on the phone at the time of the collision. According to her the plaintiff could not have been on the phone as they were conversing with each other during that time. She also confirmed that the plaintiff keeps her phone in the bag though she could not remember where the bag was at that time.
[10] Johnson's evidence is that at the time of the collision he was travelling in a black City Golf on his way to Pine Town. According to him he knew the road very well as he had been travelling there for three years, morning and afternoon. He was travelling in the right lane (fast lane) behind the Picanto. He had been driving behind the Picanto for some time before the collision occurred. The lady driving the Picanto was on the phone. He saw her drop the cell phone and lost control of the motor vehicle. The motor vehicle veered into the embankment on the right side hitting the barrier. The impact with the barrier caused it to careen left into the lane of travel of the Fortuner and collided with it on the right front. Both motor vehicles went left on the embankment and rolled. According to him, the driver of the Fortuner could not do anything to avoid the collision. He had nowhere to go. He could not swerve left because there was a grass embankment to the right it was the lane of travel of other motor vehicles and he could not stop.
[12] Brooks' evidence was very brief. He testified that on the day in question he attended the scene of the collision. He spoke to a lady who was a passenger in the Picanto and obtained her name. The lady did not know how the collision occurred. Under cross examination he testified that he went to the scene to collect the evidence as the collision had already happened. Both drivers could not point out where the collision occurred. Johnson who was also on the scene was not too sure where the Picanto hit the right barrier. There was a section of the barrier that was damaged but no one could say it was related to the recent collision. He noticed two sets of skid marks on the road, but neither of the people who were there could say that the skid marks came from the recent collision and as a result he did not take measurements. He was shown a statement wherein he had alleged that he did not see the 2 sets of skid marks. Although the plaintiffs counsel made much of this discrepancy, I am persuaded to accept Brooks' explanation that it was a typing error.
[13] Where there are two stories mutually destructive before the onus is discharged, the court must be satisfied upon adequate grounds that the story of the litigant upon whom the onus rests is true and the other false. Consequently it is essential in this case to determine which of the two versions is the more probable. See National Employers’Mutual Genera! insurance Association v Gany1
[14] The issue to be determined by this court is which of the two versions before me is probable.
[15] Having evaluated the evidence before me, I have to conclude that all the witnesses who presented their evidence are credible and honest. The contradictions in the evidence of the plaintiff and her witness as raised by the defendant’s counsel are not really material. Whether the impact happened when Zongwana had already removed the flag or whilst she was still removing the flag is in my view neither here nor there. The explanation tendered by the plaintiffs counsel that at the time of the collision the plaintiff could not have known the particulars of the Fortuner is acceptable to me. At the time she made the affidavit investigations should have been almost completed if not already completed and she would have come to know of such particulars.
[16] I am, however, of the view that the probabilities in this instance favour the defendant.
16.1 Firstly, the defendant’s evidence in respect of the point of impact militates against the plaintiffs case. The point of impact as suggested by the defendant’s counsel would ordinarily assist to determine which motor vehicle was in the wrong lane at the time of the collision. From the evidence tendered, the plaintiff was in her correct lane of travel because her evidence is that she was travelling normally in her lane of travel. Zongwana could however not corroborate her (the plaintiffs) evidence in that she did not know which of the motor vehicles collided into the other. The defendant’s evidence is that the insured driver was in its correct lane of travel because Johnson’s testimony is that the plaintiff drove into the lane of travel of the Fortuner and collided with it there. The independent evidence of the police is not of assistance either, because Brooks' testimony is that both drivers of the two motor vehicles could not identify the point of impact. It could not be determined for sure that the skid marks which Brooks saw on the road or the damage caused to the right barrier were as the result of the collision in question because a lot of collisions occur in that area. The only evidence, which, in my view, could be decisive, is that of Johnson. It is not in dispute that he is an independent witness for purposes of this action. He had no interest in the matter and I could find no reason, and none was proffered, why he would come to court and lie. Besides the plaintiff, he is the only witness who saw the two motor vehicles collide.
16.2 Secondly, I am inclined to go with the argument by the defendant’s counsel that the plaintiff cannot use the version of the defendant to prove her own case. In proving the negligence which is pleaded in her papers, the plaintiff tendered the evidence which wanted to establish that the insured driver’s motor vehicle collided with the Picanto from behind. This is the story she must stick with to prove the insured driver’s negligence. It is disingenuous of her counsel to want to argue along the defendant’s version to prove the defendant’s negligence.
[17] The submission by the plaintiffs counsel that a negative inference should be made due to the insured driver’s failure to give evidence, has no foundation. From my above summation, it is evident that the probabilities in this instance favour the defendant. There was no need, in my view, for the insured driver to have been called to come and refute evidence in a case in which the probabilities are stacked against the plaintiff.
[18] Consequently, the plaintiffs claim stands to be dismissed with costs.
E.M. KUBUSHI
JUDGE OF THE HICH COURT
ÁPBWiHmcti
On behalf of the appellant: Adv. L MGWETYANA
Instructed by:
GODI ATTORNEYS
Room 497,4th Floor 
190 Andries Street 
PRETORIA
On behalf of the respondent: Adv. L SCHREYDER
Instructed by:
T.M CHAUKE INCORPORATED
3rd Floor, Eastwing 
314 Church Street 
PRETORIA