IN THE HIGH COURT OF SOUTH AFRICA 
(CAPE OF GOOD HOPE PROVINCfAL DIVISION)
CASE NO: 488/2006
In the matter between:

and

JUDGMENT DELIVERED ON 23 APRIL 2008

CROWE A. J.:

[1] Plaintiff was involved in a motor vehicle accident and claims compensation from the Defendant in terms of the provisions of the Road Accident Fund Act, No 56 of 1996. The issues have been separated in terms of Rule 33(4) and I am required to determine the merits only at this stage.

[2] It is common cause that the accident in question occurred at approximately 19h00 on 24 December 2004 at Searle Street, Woodstock between an Opel Corsa motor vehicle driven by one Geordie Patrick Mackenzie and a 400cc Honda motorcycle on which the Plaintiff was being conveyed as a passenger.

[3] Three witnesses testified for the Plaintiff, namely Constable R Moos (the municipal police officer who attended the scene of the accident and who completed the accident report form at pages 1 to 4 of Exhibit "A"), Mr Abdullah Jappie (who testified that he was the driver of the motorcycte) and the Ptaintiff (who testified that he was a passenger on the motorcycle). Two witnesses testified for the Defendant, namely Mr Mackenzie (the driver of the Opel Corsa) and his wife Mrs Suzette Mackenzie (a front seat passenger in the Opel Corsa).

[7] Mr Jappie testified that he was the driver of the motorcycle and the Plaintiff was his pillion passenger. He and the Plaintiff both work in Claremont and had travelled together on the motorcycle from Claremont along the Eastern

Regarding ownership of the motorcycle, he stated that he had purchased it from Shahiem Soeker, but that the papers had not yet been registered in his name and that he was, therefore, not the "fegaf owner. He later stated that he had paid for it and had possession of it.
The insured driver's version was put to him, namely that the insured driver was stationary with his indicator on waiting to turn right into the parking area, then saw the approaching motorcycle, which started to speed up and then developed a wobble or the driver lost control and that a collision then took place with the right side of that vehicle white it was stationary. He disputed this.

It was put to him that neither of them wore crash helmets and he denied this. It was put to him that a lady bystander said these young guys don't like to wear helmets as it messes their hairstyle. It was put to him that the Plaintiff had a spiky gelied hairstyle at the time which was inconsistent with his having worn a helmet and he declined to comment. It was put to him that someone else in the crowd had brought the two hetmets to the scene and he denied this. He denied that he and the Plaintiff were going up Searie Street on a joyride without hetmets and had lost control. He strongly disputed that the insured vehicle was stationary and on its side of the road. He stated that he did not have a license to drive the motorcycle at the time, but had previously had a motorcycle and that he now has such a licence.

[10] Under cross-examination the Plaintiff confirmed that he laid a charge of reckless and negligent driving against the insured driver, that this was a serious matter, and that he knew when laying a criminal charge that he must give a truthful statement. He conceded having given two untruthful statements under oath and that he knew he had lied under oath but didn't know that it was a serious offence. He confirmed that the purpose of doing so was to defraud an insurance company. It was put to him that the three of them were prepared to lie under oath because they knew the insurance company would not pay. He denied that the three of them had done so. It was put to him that he does not regard the oath as important and he said that he did. It was put to him that he only did so when it suited him, which he denied. When asked how he could make a false statement under oath, he responded that he was confronted by one of the other two to make the statement. It was put to him that he could not remember anything of the accident and he stated that he just remembers coming up Searle Street. This contradicted his evidence in chief that he could recall the car swerving in front of them. When asked why Shahiem Soeker was at the scene, he stated that they were going to visit Abubaker in Hide Street, as it was his birthday, and that Kashif and Shahiem Soeker were good friends of Abubaker He confirmed that both he and Soeker lived in Goodwood. He stated that he normally has a gelled hairstyle, when his hair is long, to look neat at work. He said that he lost consciousness, it could be for some time, but he could not say for how long. It was put to him that he had presumably hit his head and that the Mackenzles would say that his eyes were g/azed and that he was unresponsive. He could not recall them and could not say why. He denied that they went for a joyride without helmets on.

[11] In answer to questions from the Court, Plaintiff stated that he was born on 23 December 1980 and was 27 years old. He matriculated at Heathfield School and has a national diploma in environmental health, which took 3 years to complete at Peninsula Technikon. He did 1 year's community service in the SANDF in Kwa-Zulu Natal and is registered with the Health Professions Council as an independent health practitioner. He had these qualifications at the time of the accident and was then the manager of a store in Cavendish Square, where he was responsible for overseeing staff, making sure the banking was done properly and for stock taking. Regarding courses in law, during his studies they did touch on acts and regulations, such as the Health Act. He currently also works as a health practitioner. When asked how he felt when making the false statements under oath he said that he had done so to assist his friend and that it was not a good feeling.

[13] Mr Mackenzie was extensively cross-examined. He stated that white he was parked stationary at a slight angle waiting to turn, the motorcycle accelerated and lost control. At impact the driver came off the bike, he saw him in the air a metre or so off the ground, but cannot say how far he flew. The motorcycle came to rest in the middle of the road near to the point of collision. He only saw one person come off the bike. He first became aware of a passenger after the accident when the driver showed him the passenger, by pointing up the road. The passenger was lying on his back at the point where he must have landed and had no helmet on. He felt his head, but could not find any injury. He stood with him and phoned the emergency services. The driver was sitting on a grass embankment. He may have walked to the side of the road after he landed.

The police arrived shortly afterwards. He moved the car before Constable Moos arrived and a crowd of persons who knew the passenger gathered around him. One of these persons said he should move the car and they pushed it to the point indicated on the sketch. After moving the car he went back to the passenger and this is where Constable Moos found him. That is when he said to Moos that he never saw the passenger immediately and that he only saw him after the accident. He did not know why he said that, that is the way it came out. Moos walked with him to his car and asked him very basically about the accident and how it happened. He told him he was waiting to turn and the motorcycle came up swerving and collided with him. He could not explain why Defendant's counsel had not put this to Moos in cross-examination. When asked if he had told Defendant's counsel this, he responded that he had never been asked that question until now. He was asked if Moos wrote it down and he responded that he did not see him write anything.

He said that the ambulance then arrived and he went back to the passenger. The ambulance took them away, the tow truck took his car away and he and his wife left the scene with friends. He is 34 years old, has a matric plus a Navigation T3 qualification which took two years of study. He denied that the version in Moos' brief description of the accident was his. It was put to him that his evidence that he told Moos that he never saw the passenger was nonsense. He said Moos had asked what happened, not about the passenger, and that he was in shock at the time and that his answer was just the way it came out.

Regarding the helmets, he conceded that it was possible that the helmets were lying around and that someone had just gathered them up.

It was put to him that his statement that he first saw the passenger afterwards was a feeble excuse to exptain away what Moos had recorded He responded that when the police at Woodstock read to him what Moos had written in the accident form he told them it was wrong.

It was put to him that his evidence that he told Moos at the scene that the motorcycle came up the road and swerved and hit him was false and that he never gave Moos that information. He insisted that he had. It was put to him that he was not telling the truth and that he never saw the motorcycle.

He stated that his vehicle could not move after the accident as the front wheel on the driver's side was squashed up against the fender. He did not institute any claim against the RAF, but did institute an insurance claim for the damage to his vehicle. He did not lay criminal charges.

She repeated that her husband got out and went to the driver and then to the passenger and then came back to the vehicle and that she then got out of the vehicle. She went to the driver first, she could not remember if she spoke to him. It was put to her that in her affidavit she said she first went to the passenger, but in evidence had said she first went to the driver and then to the passenger. It was put to her that she had a bad memory and she responded that the accident took place 4 years previously. These questions and answer should be seen in context, tn her affidavit she stated that after the accident she saw her husband get out of the motor vehicle to attend to people who were on the motorbike. She saw one sitting on the pavement and the other one was lying on his back. The

She was asked whether, when Constable Moos arrived, she heard him talk with her husband. She answered that she was then sitting on a hill nearby, that she was shocked and that a bystander had bought her sugar water.

Prior to giving evidence she did not discuss Moos' brief description of the accident in the report form with her husband.

She was asked whether she had discussed the accident with her husband and said that she might have. She could not recall discussing it the previous evening. She stated that she had consulted Defendant's lawyers approximately a week before and that both her and her husband were in the office at the same time when they discussed the accident. She denied that her memory was not good and that she was protecting her husband.

[18J Jappie was also an unimpressive witness. For much of his evidence he adopted a sheepish attitude, hanging his head and gazing steadfastly at the ground to avoid making eye contact with anyone. This was particularly so when he was cross-examined regarding his knowledge of Plaintiffs perjured affidavits to the effect that Shahiem, and not he, was the driver of the motorcycle. His alleged inability to explain why the Plaintiff had done so must be viewed together with Plaintiffs evidence that he was asked by either Shahiem Soeker or Jappie to make the perjured affidavits for insurance purposes. Furthermore, his questioning elicited that he had already paid Shahiem for the motorcycle and had taken possession of it and that all that was outstanding was for the motorcycle to be registered in his name. He was driving it at the time but did not have a licence to do so. In these circumstances, it is clear that he was the person who stood to gain by the fraud to be perpetrated upon the insurance company by way of the perjured affidavits. He must have known why Plaintiff falsely alleged that Shahiem was the driver of the motorcycle and I do not accept his evidence that he could not explain this. It is apparent that he knew far more about this aspect than he was letting on. I also do not accept Plaintiffs evidence that either Shahiem Soeker or Jappie asked him to make the perjured affidavits as he clearly must know exactly how it came about that he made the perjured affidavits for insurance purposes. It appears that Jappie and the Plaintiff conspired together before they testified to try and avoid directly implicating Jappie in the fraud. In this regard, it is notable that Jappie was the person who stood to benefit from the Plaintiffs perjured affidavits and that the Plaintiff stands to gain from Jappie's evidence before me. I also note that Jappie was also particularly sheepish when it was put to him that they were on a joyride without helmets at the time.
[19] Although the issue of the helmets is not pertinent to the question of the alleged negligence of the insured driver, it has relevance in assessing the credibility of the various witnesses. In this regard, and having regard to the concession by the insured driver that it is possible that the helmets were lying around and that someone had just gathered them up, I do not consider that there is sufficient evidence to find that Jappie and the Plaintiff were not wearing helmets. It is quite possible that they were wearing helmets and that these were removed shortly after the accident and that someone did gather them up. The hearsay statement of a bystander regarding the gelled hair of the Plaintiff takes the matter no further and I have no regard thereto.

{20} Apart from the perjury and the fraud, there are other unsatisfactory aspects of the evidence of Jappie and the Plaintiff.

Plaintiffs case and is something one would expect him to repeat in evidence, if it was true. It was also not put to the insured driver.

The precise nature of the imputation should be made dear 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 chailenge, to calf corroborative evidence, to qualify the evidence given by the witness or others and to explain contradictions on which refiance is to be placed'.

[22] Mrs Mackenzie was in court white her husband was cross-examined and appeared upset by the vigorous nature of that cross-examination. On entering the witness box, it appeared as if she was relishing her contest with the cross-examiner in order to rally to the support of her husband in a wifely fashion. This is obviously the incorrect manner of approaching testimony and, unfortunately for her, she was not equal to the task and cross-examination exposed that she was a partial witness and, in one particular respect, that her evidence was unreliable. In chief she testified that she only saw the driver of the motorcycle before the accident, yet in cross-examination she was bold to declare that before the accident she saw that both the driver and passenger were not wearing helmets. This is not only a material contradiction in her evidence, but suggests that she adapted her evidence to bolster her version that Plaintiff and Jappie were not wearing helmets at the time of the accident and suggests that she was not impartial. I therefore attach no weight to her evidence

[27]   In the result, I make the following order:
27.1	Absolution from the instance is granted and the Plaintiff is ordered to pay Defendant's costs of suit.