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IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION)

CASE NO: 2223/2006

DATE HEARD: 16/05/2008

DATE DELIVERED: 22/5/08

NOT REPORTABLE

In the matter between:

KHAYALETHU BOSS PLAINTIFF

and

THE ROAD ACCIDENT FUND DEFENDANT

In this damages claim arising from a motor vehicle accident the issues of the merits and quantum were separated, the trial concerning only the merits. The plaintiff was a passenger in a vehicle driven by one Liwani when it collided with a vehicle driven by one Pieterson. The plaintiff alleged that the collision was occasioned solely by the negligence of Pieterson. The version given on his behalf was that Liwani indicated that he was about to turn right and, having allowed two on-coming vehicles to pass, proceeded to execute the turn. As he did so, Pieterson’s vehicle struck Liwani’s vehicle from behind. On Pieterson’s version, the collision was occasioned solely by the negligence of Liwani. Pieterson’s version was supported by the evidence of a policeman who attended at the scene, made a sketch plan and recorded, inter alia, the versions of both drivers. It was that Liwani had stopped on the gravel on the left hand side of the road. He had indicated his intention to do so. Then without warning, he drove across the road to the right. Pieterson was unable to avoid the collision. This version was found to be more probable than the plaintiff’s because, inter alia, it was able to account for the damage caused by the collision to Liwani’s vehicle, which the plaintiff’s version could not do. It was found that no negligence could be attributed to Pieterson and that the collision was caused solely by the negligence of Liwani. He had, it was elicited in cross-examination, conveyed the plaintiff for reward. As a result, the defendant would be liable, in terms of and subject to s 18(1)(a) of the Road Accident Fund Act 56 of 1996, to the plaintiff for any damages he proved. As the plaintiff had not proved his case as pleaded, he was ordered to pay the defendant’s costs.

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JUDGMENT

PLASKET J

[1] On 12 August 2001, the plaintiff was a passenger in a vehicle driven by one Liwani when it was involved in a collision with a vehicle driven by on Pieterson. The collision occurred on the N10 in the Cradock district.

[2] The plaintiff claimed a total of R730 900.00 in damages from the defendant. That does not concern me in these proceedings: the parties agreed to separate the merits and quantum and I made an order to that effect. The sole issue to be decided in this trial is whether Pieterson drove negligently in any of the ways alleged by the plaintiff.

[3] Mr Gajjar, who appeared for the plaintiff, called one witness, Mr Vuyisile Fose, who was a passenger in Liwani’s vehicle. He sat in the cab of the vehicle – a Toyota bakkie – while the plaintiff sat on the back.

[4] Fose testified that the people on the back of the bakkie were members of a soccer team. He was the coach. The team was on its way to a farm to play a game of soccer. The bakkie was travelling from the direction of Cradock towards the direction of Port Elizabeth.

[5] They arrived at the point where they were to turn off the N10. Liwani indicated his intention to turn right and stopped the bakkie next to, and parallel to, the centre line of the road. When two vehicles travelling from the direction of Port Elizabeth had passed, Liwani began to turn right. As he did so, and as his front wheels crossed the centre line, his vehicle was struck from behind by Pierterson’s vehicle

[6] The collision tore the canopy off the back of the bakkie and threw some of the passengers off it. The bakkie came to a stop on the right hand lane facing back towards Cradock. As a result of the impact, the right back corner of the bakkie was damaged.

[7] When he was cross-examined, Fose stated that when the collision occurred, Liwani’s vehicle was facing directly towards the road into which he was turning, but he nonetheless insisted that only the front wheels were over the centre line of the road. He also conceded in cross-examination that the damage to Liwani’s vehicle was from in front of the right rear wheel to the back of the vehicle. He could not remember whether the vehicles were moved before the police arrived but he stated that Pieterson’s vehicle came to a stop at the point of impact more or less in the middle of the road.

[8] Mr Wolmarans, who appeared for the defendant, called two witnesses. The first was Pieterson, the driver of the vehicle that collided with Liwani’s vehicle. He testified that he was driving from Cradock in the direction of Port Elizabeth. He saw Liwani’s vehicle in front of him. It indicated that it was going to turn left, and moved off the road onto the gravel on the left of the road. It stopped. He assumed that passengers were going to alight.

[9] Suddenly, and without indicating, the vehicle drove across the road. Pieterson applied his brakes. His vehicle skidded and the collided with Liwani’s vehicle. There was, he said, nothing that he could do to avoid the collision. His vehicle struck the right rear wheel of Liwani’s vehicle.

[10] The vehicles were left where they had come to a stop until after the police had arrived. Both Pieterson and Liwani spoke to the police. When they were asked what happened they told the police. They also showed the police the point of impact. Pierterson stated that the collision occurred on the left side of the road.

[11] The second witness called by Mr Wolmarans was Inspector Louis Stone, a member of the South African Police Service stationed in Cradock. He attended at the scene of the accident, compiled a sketch plan of it and took down various details including the versions of the two drivers.

[12] The first point of importance to emerge from his evidence is that, according to him, the accident could not have happened at the place alleged by Fose. On the photographs relied on by the plaintiff, a sign to the farm Littlefields is visible. This turn-off is 25 km from Cradock and within the area of jurisdiction of the Mortimer police station. If the accident had occurred there, Stone would not have gone to the scene. A policeman from Mortimer would have. According to his contemporaneous note made in the Officer’s Accident Report Form the accident occurred 16 kilometres from Cradock, within his area of jurisdiction.

[13] A second significant aspect of his evidence is that according to the sketch plan that he compiled, there was no road to the right where the collision occurred. There is, however, what he described as a ‘motorhek’ on the right but before the scene of the accident. In other words, both vehicles would have travelled past this cattle-grid prior to the accident.

[14] Thirdly, Inspector Stone marked the point of impact to be on the right side of the left lane. He confirmed that this point had been identified to him by the drivers of the two vehicles. He showed Pieterson’s vehicle’s front right corner to be on the centre line of the road with the point of impact being behind it and to its left.

[15] Fourthly, he confirmed that Pieterson’s vehicle sustained damage to its front while Liwani’s vehicle was damaged on the right mid-back and back right areas. Fifthly, he obtained and recorded a version from both drivers. Pieterson informed him that he had seen Liwani’s vehicle at a standstill next to the road and that it then suddenly and without warning began to make a U-turn. Liwani told him that he was making a U-turn but had not seen Pieterson’s vehicle.

[16] On this evidence, I am required to decide, in essence, which version is more probable and, on the version that I accept, whether any negligence on the part of Pieterson has been proved.

[17] I find that Fose’s evidence as to how the accident occurred is improbable. Its main flaw is that it cannot account for the damage to Liwani’s vehicle. If Liwani’s vehicle had stopped next to and parallel to the centre line and its front wheels had just crossed the centre line when the collision occurred, it could not have been facing the road into which it was turning and which stood at right angles to the N10, as he had testified. Secondly, his version cannot explain how Liwani’s vehicle sustained damage to the area from forward of the right rear wheel. If it had only began to turn right when the collision occurred, it would have been struck on the tailgate and not on its side, and certainly not as far towards the front of the vehicle as the right rear wheel.

[18] Fose’s version is predicated on the collision occurring at the place depicted in the photographs that were handed in because one of those photographs depicts a gravel road into which, he says, Liwani was about to turn. His version conflicts directly with that of Stone who would not have attended at the accident scene if it had occurred at the place identified by Fose.

[19] In my view, it is more probable that Liwani pulled off the road to the left, as stated by Pieterson, and that he then attempted to cross the road to make a U-turn – as he told Stone. It may well be that he had overshot the place where he was supposed to turn – the cattle-grid identified by Stone – and that he was going back to turn there.

[20] This leaves the question of whether, on these facts, Pieterson was negligent in any way. His evidence was that Liwani drove into his line of travel suddenly and without warning. He was travelling at the speed limit and there was no suggestion that he ought to have been travelling slower. When the sudden emergency presented itself, Pieterson applied his brakes. (Stone recorded brake marks on the road surface of 31 metres.) Pieterson was, he said, unable to take any other measures to avoid the collision. On these facts, I find that he was not negligent in any way and that the accident was caused by the sole negligence of Liwani.

[21] The defendant pleaded that the accident was caused by the negligence of Liwani. This, on the facts that I have found, has been established. The defendant pleaded further that the plaintiff’s claim ‘if any, should be limited to the proven maximum of R25 000.00 for special damages only in accordance with the provisions of section 18(1)(b) of Act 56 of 1996’. When Mr Wolmarans was cross-examining Fose, however, he elicited from him that Liwani had been hired to convey the soccer team to the venue of their game. This issue was taken no further by Mr Wolmarans. In the light of the defendant’s plea and the evidence that the plaintiff was conveyed for reward, it appears to me that a case has been made out – by default, as it were – that the defendant is liable to compensate the plaintiff for damages he suffered in accordance with s 18(1)(a), rather than s 18(1)(b), of the Road Accident Fund Act. Despite this, I am of the view that the plaintiff must be ordered to pay the defendant’s costs because he has failed to prove his claim as pleaded.

[22] I accordingly make the following order:

1. The defendant is liable to the plaintiff for such damages (as contemplated by s 18(1)(a) of the Road Accident Fund Act 56 of 1996) as he may prove in consequence of the injuries that he sustained in the collision that occurred on 12 August 2001 on the N10 road in the Cradock district, such collision having been occasioned solely by the negligence of Z. Liwani, the driver of vehicle CFB 389 EC.

2. The plaintiff is directed to pay the defendant’s costs of suit.

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C. PLASKET

JUDGE OF THE HIGH COURT

APPEARANCES

For the plaintiff: Mr G.J. Gajjar, instructed by Netteltons, Grahamstown.

For the defendant: Mr M. Wolmarans of N.N. Dullabh and Co, Grahamstown

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