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IN THE NORTH GAUTENG HIGH COURT,PRETORIA
[REPUBLIC OF SOUTH AFRICA]

CASE NUMBER: 86183/14
DATE: 12 AUGUST 2016

REPORTABLE
OF INTEREST TO OTHER JUDGES
 										         REVISED

In the matter between

LEHLOHONOLO  VINCENT MOLEFE	Plaintiff

THE ROAD ACCIDENT FUND	Defendant

JUDGMENT

Makamu AJ

[1] The  Plaintiff  an  adult  male  born  on  the  3rd   of  October  1960  instituted  an action  against  the  defendant, Road  Accident  Fund  as  a  result  of  motor vehicle
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collision between vehicle registration number [SD 2..] N driven by the insured driver Tebogo Koki who will be referred to as the insured driver and vehicle [PLN 1.. GP] driven by the Plaintiff on the 29th of June 2013 at approximately 22h40 on the Golden Highway, between Elephant Street and Tumeric Drive, Lenasia South.

[2]  I was  addressed  by  the  respective  Counsels  at  the  commencement  of  the matter for the following that both parties agreed that the matter proceed only on the  merits  and  that  quantum  be  separated  from  the  merits  and  shall  be  dealt with  later. In terms of rule 33(4) of the Uniform Rules of this court the separation wipes granted as agreed.

[3l  The   Plaintiff  and  the  insured  driver  testified  and  thereafter   both  parties through their respective  Counsels  addressed  the  Court. I was  specifically  referred to, the  case  of  President  of  the  Republic  of  South  Africa  v  South  African  Rugby Football Union 2000(1) SA 1(T)  and Stellenbosch  Winery  Group  LTD and another v  Martell et  Cie  and  others  2003(1) SA  11 (SCA), where  the  Plaintiff through  Mr Mphela  asked  the  Court to  find  in favour  of the  Plaintiff  and  Mr  Seima  for  the defendant  asked  the  Court  to  dismiss  the  action  with  costs  or  at  least  find  an apportionment of negligence on both drivers.

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[4] The following are common cause viz:

4.l The Plaintiff was a driver of motor vehicle [PLN1… GP]

4,2 A Collision occurred between the said motor vehicle driven by the Plaintiff and motor vehicle Honda Civic black in colour registration number [SD 2… N] driven by the insured driver on the 29th  of June 2013

4;3 The motor vehicle [PLN 1… GP] was coming from the Southern direction at Orange farm ( Avaton) to the Northern direction (Soweto).

4,!4 The insured vehicle [SD 2… N] was driving from Eldorado park (Soweto) to Avaton where the insured driver resides.

[5l The only issue to be determined is whether the insured driver  or the Plaintiff was negligent and if such negligence was the sole cause of the  collision.

[6] It is trite law that  Plaintiff needs prove only  1 % negligence  on the part of the insured driver and receive 100% claim award.

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[7] Both  parties agreed  following  pre-trial  conference to  hand in bundles  named bundle A to  F and  reference was  made by both parties to photographs taken  by the police and sketch plan drawn  by the police in the absence of both drivers, to make  it  easy  for  the  Court  to  understand  the  scene  and  the  condition  of  both vehicles.

[8] Photographs  depict the two  motor vehicles  involved and the damage to  both vehicles,  and  the  sketch  plan  shows  a  Highway  with  dual  carriage  ways  to  one direction and dual carriage to the opposite direction.

[9] Collision occurred on the lanes direction from Elephant street to Tumeric drive according to the sketch plan.

[l0] The vehicle of the insured driver was stationery and he admitted that it is his car almost in the centre of the road but partially towards the left lane and the vehicle driven by the Plaintiff is depicted as being stationery outside the tarred road on the extreme left but the Plaintiff denied that it was his vehicle and the vehicle's last resting place.

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[11] The  evidence  in  brief  is  as  follows  that  Plaintiff  was  driving  from  Orange Farm. Approximately 4 to  5  kilometres  before the scene  of accident  he picked a man who  was  a  stranger  but  looked  like  a  security  officer.  He  saw  a  crowd  of people on the side of the  road and  heard screeching  of tyres  as  he approached the  stop  sign  at  Tumeric  drive  and  he  reduced  speed  significantly  to  about 5km/h.
He  looked  around  and  also  used  his  rear  view  mirrors  but  could  not  see  the vehicles  the  tyres  of  which  were  screeching  but  he  could  see  four  vehicles coming from ahead of him, two on each lane going to the opposite direction.
All  of a sudden he heard a bang on his resulting from the collision whilst driving on  his correct lane. He was trapped inside his vehicle. When his vehicle came to a rest he could  see the  left  rear  door  of the  Honda vehicle  driven  by the  insured driver and the damage to the insured car. He believed that it was one of the four cars that were coming from ahead, heading to the opposite direction. Because he was  trapped, he  was  the  last  person  to  be  evacuated  and  taken  to  Chris  Hani Baragwanath  hospital.  He was  only  informed  later that  one  passenger  died from the insured's vehicle.
According to the particulars  of  claim, he  suffered  injuries  in  this  fashion:  a bilateral tibia and fibula fracture of his patella, Facial and head injuries, He contends that the collision was caused by the negligence of the insured driver who was negligent in inter alia, one or more or all of the following respects:

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1:1.1He drove the vehicle without a valid driver's  licence;

11.2 He failed to keep a proper and or adequate  lookout;

1;1.3 He failed to keep his vehicle under proper or adequate control;

11.4  He  failed  to  apply  the  brakes  of  his  vehicle  timeously  or  that  he  did  not apply them at all;

11.5 He drove his vehicle at an excessive speed, given the circumstances;

11.6 He overtook traffic when  it was unsafe to do so;

11.7	He drove into the path of travel of the Plaintiff;

11.8	He failed to avoid the collision when by the exercise of reasonable care and sill he could and should have done so.

[12]   The   insured  driver  testified   that   he  was   from   Eldorado   Park  with   two passengers  in  his vehicle  when  he was  driving  the  Plaintiff  drove  from  a  dusty road and collided with the  insured vehicle. The  insured  driver  lost  consciousness
and he only regained it at the hospital. He was informed that  one of his friends died as a result of the collision.

[13] The Plaintiff was confident whilst testifying. He came across as being very certain of what  he was saying at all  times.	He was open amongst others  about
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the fact that  he did not see  exactly  where the car that  collided  against his came from. He stated that he only assumed that it was from ahead of him as there was no car coming from behind or ahead of him heading to the same direction.

[4]  On  the  other  hand  the  insured  driver  buried  his  head  down  from  the beginning of  his testimony  and only  lifted it  much  later. He avoided  eye contact with the cross examiner or the Court. He testified that  he was driving from  North to South but after lunch break he changed  his testimony  saying that he was from South to North in accordance with the compass on the sketch  plan.  f that was so it :means he was  heading towards  Soweto and not Avaton  or  he was  executing a U,turn or spinning.

[15] As  I indicated  supra  that  the  road or  Highway  comprises  of  a  dual  carriage way on each side. Considering the sketch  plan, it occurred  on  Northern direction carriageway  heading to Soweto.
There was no inspection in loco conducted. However, the Court took liberty to look at the map of the area and took judicial notice of the fact that Tumeric drive is on the Soweto side whereas Elephant Street is towards the Avaton side.

It is not possible that  collision  took  place on the  Southern  direction carriageway as  the  vehicles   rested   on  the   Northern   direction   carriageway.   There   is   no

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explanation  why  the  insured  vehicle  was  on  the  Northern  direction  carriageway where the  Plaintiff was travelling  except hearsay evidence which is not admissible. The  hearsay  evidence  is  to  the  effect, that  there  were  vehicles  spinning  in the area and possibly the insured vehicle took part in the activity.
There was  no accident expert who could help in accident  reconstruction however the damage  on the insured vehicle is excessive  enough  to suggest  that  it hit the plaintiff's  vehicle  at  an  excessive   speed,  with   its  front  portion,  more  so  the damage on its left side and, the damage on the plaintiff's vehicle was only on the driver’s door stretching towards the end of its front portion. The principle of facts speak for themselves applies.

[16] The two versions of the two witnesses are not reconcilable at all, they are mutually destructive. The reality is that one of the versions is true when the other is false.

I was referred  to  the  case  of  National  Employers   Mutual  General Insurance association v Gany  1931 AD  187 where  the Court  stated  O    Where there are two
Stories mutually destructive, before the onus is  discharged,  the Court must be

satisfied that the story of the litigant upon whom the onus rests is true and the  other false” This technique was followed in Stellenbosch Farmers Winery Group Ltd and Another V  Martell et Cie and others 2003  (1) SA 11 (SCA) where   the
Court said • The technique generally  employed  by courts  in resolving    factual

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disputes of this nature may conveniently be summarised as follows. To come to a
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conclusion on the disputed issue a court must make findings on (a) the credibility of the various factual witnesses; (b) their reliability; and (c) the probabilities".

[17]  The  insured  driver  did not have a valid  driver's licence  but he wanted   to
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Convince the court that he possessed a learner's licence, Later admitted that the very learner's had expired, A version by such a witness cannot be trusted.

[18 ] He also contradicted  himself about the direction to which  he was driving but h  later  changed  and  said  he  could  read  a  compass  which  was  used  on  the sketch plan and he was  driving towards  North. The truth  of the matter is that  he realised later that the collision took place on his wrong side of the road and he had to justify why his vehicle is on the on-coming traffic.

[19] The two  controversial averments  by the  insured  driver  should  prove fatal to hi  case as they cast aspersions  on his truthfulness as witness.

[20] When  it comes  to apportionment  of damages  there  is no need to start with an  argument  as the  insured driver  is  obviously  on the  incorrect  side of the  road

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and he is 100% to be blamed for the collision.
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[21] I therefore  find  that  the  plaintiff  has  discharged  the  onus  borne  by  him  in pjroving  that  the  sole  cause  of  the  collision  was  the  negligence  of  the  insured
driver.

[22] I also find that the insured driver did not have valid driver's  licence.
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[23] I find  that  the  insured  driver  did  not  keep  proper  look  out, or  adequate lookout.

[2] The insured driver drove at an excessive speed given the circumstances.

[25] He failed to exercise reasonable care and skill whilst driving so as to  avoid the collision.

[26] The insured driver was 100% negligent and the plaintiff could not have done anything to avoid the collision.

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[27] As a result I make the following  order

ORDER:

1 The Draft Order marked "X", which is attached to the Plaintiff's heads of argument, be and is hereby made an order of court.
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S MAKAMU

ACTING JUDE OF THE HIGH COURT
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DATE OF THE JUDGEMENT	: 12/08/2016

PLAINTIFF'S COUNSEL
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:ADV R B MPHELA

 	          Instructed By
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: J K MALATJI ATT

DEFENDANT' S COUNSEL	:ADV S Z SEIMA

Instructed By	: LEKHU PILSON ATT

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IN THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, PRETORIA

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ON THE 12th  OF AUGUST 2016

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BEFORE THE HONOURABLE MR JUSTICE MAKAMU AJ

		Case  No: 86183/14
In the matter between:
LEHLOHONOLO VINCENT MOLEFE	Plaintiff

and
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THE ROAD ACCIDENT FUND		Defendant

DRAFT ORDER

AVING HEARD THE EVIDENCE PRESENTED BY THE PARTIES AND HAVING HEARD
COUNSEL FOR THE PARTIES, THE FOLLOWING ORDER IS MADE:

The   defendant   is  liable  to   100%  of   the   Plaintiff's   agreed  or   proven damages arising out of the motor vehicle accident  occurred on 29 June 2013.

2. The defendant is ordered to pay the plaintiff's taxed or agreed party and party costs of action to date, on the applicable High Court Scale, which
costs shall include but not limited to the following:

2.1	The costs of the preparation of 6 trial bundles as per the Directive  and as agreed upon in the Pre-Trial Minutes.

2.2	Costs of counsel, including counsel's reparation fees: full day fees  for

;	the 05th  and the 08th  of August 2016 and costs for preparing heads of

argument as directed by the Presiding Judge.

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2.3 The costs of attorney, which includes travelling costs, attendance to court, all costs for preparing for Pre-Trial Conferences, formulation of Pre-Trial Minutes and costs for actual attendances to Pre-Trial Conferences.

2.4	The costs for preparation for trial for attorney.

2-5:	The   reasonable  costs   and  /   or   disbursements   of   the   Plaintiff	in attendance who is hereby declared a necessary witness.

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2.6	The reasonable costs of consultation with counsel for trial purposes.

3. In the event that the parties do not agree on the costs referred to in

prayer  2  above,  the   Plaintiff   shall  serve  notice  of  taxation  on    the
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defendant's attorney of record and the Defendant is ordered to pay the

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Plaintiff's taxed and/or agreed costs within 14 days from date upon which

the accounts are taxed by the taxing master and or agreed between the parties.

4. Quantum is postponed sine die.

BY ORDER OF COURT

REGISTRAR

For the Plaintiff
Adv. R.B Mphela
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(012) 303 7400
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Instructed by JK Malatji Attorneys
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For the Defendant
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Adv. M Seima.
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Instructed by LekhuPilson Attorneys
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