South Africa: High Courts - Gauteng

In the matter between:

LANGTONE CEDRIC MOYO Plaintiff

and

ROAD ACCIDENT FUND Defendant

JUDGMENT

LEDWABA. J

[1]

Plaintiff is claiming damages in the amount of R 9032 488, 50

from the Road Accident Fund, (RAF), arising out of an accident

which occurred on 13 June 2002 on the N 1 highway next to

Pretoria when motor vehicle with registration number: NGF 837

GP driven by plaintiff which was involved in an accident with

another vehicle, particulars of the driver thereof could not be

traced.

[3]

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The RAF is defending the action and it filed a special plea

based on the provisions of regulation 2 (1) (c) promulgated

under section 26 of the Road accident Fund Act 56 of 1996.

The defendant withdrew the special plea.

Based on the agreement between the parties, I ordered that

there would be a separation of merits and quantum of damages

and the matter was to proceed on merits only.

[4]

Three witnesses gave evidence, on behalf of the plaintiff, of

which one of them was an expert witness. Defendant called

only one witness who also gave expert evidence. Plaintiff was

not called as a witness because he made an affidavit wherein,

he stated that he could not remember what happened when the

collision occurred.

[5]

Portia Montendo Maphosa, (Maphosa), and Dumsali Alington

Khumalo, (Khumalo), testified on plaintiff's behalf that on 13

June 2002 they were passengers in the Nissan Bakkie with

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registration number NGF 837 GP, (Nissan), driven by the

plaintiff. They together with other two passengers were in the

back of the bakkie. The back of the bakkie was covered with a

canopy. The plaintiff was seated with another passenger at the

front. They were travelling from Beit Bridge to Johannesburg on

the N1 freeway. The road had two lanes and the bakkie was

travelling on the right lane.

Ms. Maphosa in her evidence said she was half lying, seated

behind the driver facing the opposite direction in which the

bakkie was travelling to. She then heard a bang, one of the

passengers screamed and she immediately noticed a truck

which was travelling on the left lane passing the Nissan. The

bakkie swerved the right, it was not controllable, it skidded with

its left side and landed on its top after overturning.

[7]

She said that the truck was pulling two trailers.

[8]

She further said that as the Nissan was moving she kept on

turning to check the speedometer. Immediately prior to the

accident, the Nissan was travelling at a speed of 100 ­

110km/h and the road was not busy. She admitted to have

signed three affidavits which were part of the bundle that was

handed to the court.

[9]

She further said that she cannot testify as to whether the

Nissan swerved to lane of the truck or whether the truck

swerved to the lane of the Nissan.

[10] Mr Khumalo's description of the accident was that as he was

seated on the left side of the Nissan, towards the rear of the

Nissan facing the direction the bakkie was moving to. Plaintiff

was driving at a speed of about 120 - 130km/h.

[11] He noticed three trucks on the left lane, each pulling two

trailers. When plaintiff overtook the first truck, the second truck

indicated to show its intention to overtake the truck in front and

it initiated a swerve to the right, the distance between the truck

in front and the second truck was about ten metres. Plaintiff

flashed the headlights of the Nissan to warn the truck driver of

the presence of the Nissan, the truck then swerved back to the

left lane. When the Nissan passed the truck, the left side back

thereof collided with the right side of the trailer attached to the

truck. The Nissan lost control and he heard another sound of

the Nissan bumping against something.

[12] Plaintiff's expert, Mr J. P. Strydom, an accident reconstruction

expert, was instructed by plaintiff's attorneys to investigate a

second vehicle could have been involved when the accident

occurred. His curriculum vitae show that he has the necessary

experience and qualifications.

[13] On 27 March 2003 he inspected the Nissan to analyse the

damages on it and took some photographs which were

attached to bundle B. He noticed some marks and damages on

the Nissan which, according to him, were distinct from the

marks caused by the overturning of the Nissan.

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His opinion was that, in all probabilities, there was a vehicle,

which collided with the Nissan, which caused it to loose control

and to overturn. His opinion was based on the following factors:

14.1 Three witnesses viz Maphosa, Khumalo and Lindiwe

Bennet saw a truck which collided with the Nissan.

14.2 The collision occurred simultaneously when Lindiwe

Bennet screamed.

14.3 He noticed some weird marks on the left side of the body

of the Nissan next to the left rear wheel and he marked

them 'A', 'C', 'B' on photographs 2, 5, 6 and 7 of the photo

album attached to the report of Mr Strydom. He describes

the marks as follows:

. Mark 'A' - is a rubber or tyre mark of about 70mm

long, probably caused by a tyre of another vehicle.

. Mark 'B' - is also a rubber or tyre mark probably

caused by the tyre of another vehicle. It is a dent

from back to front.

. Mark 'C' - Marks caused by part of the body of

another vehicle the scratched move from back to

front. He further said mark C corresponds with mark

'A'.

14.4 On page 11, paragraph K, of his report he stated the

followi ng:

"k)

Ek is ook van mening dat die botsing teen die

Nissan LA V gewildige stamp meegebring het nie

maar wat genoegsaam was vir die bestuurder om

beheer oor sy voertuig te verloor het. "

14.5 He further stated that his report was based on the

Officer's Accident Report (OAR) form, affidavit of

Maphosa and Khumalo, the consultation he had with

Maphosa, the inspection and damages on the Nissan.

[15] Mr Gary Grobbelaar, the defendant's witness, he too, has an

impressive curriculum vitae confirming that he has the

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necessary experience and qualifications to be regarded as an

accident reconstruction expert. In compiling his report, he

considered the statements of P. N. C. Maphosa, L. C. Moyo, D.

A. ,Khumalo, L. M. Bennet, the OAR form and the report of J. P.

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Strydom. He also visited the scene of the accident and attached

the album of the photographs to his report. He further said he

inspected and photographed the Nissan on 9 September 2003.

[16] He testified that he, inter alia, noticed multi-directional

scratches and marks on the left side, dented body panels tar

and aggregate deposits on the left wheel rimes).

[17] Keeping in mind that Mr Strydom's opinion is that a truck

collided with the Nissan based on marks A, C and B on photo 2

of the album attached to his report. Mr Grobbelaar's

commented on the marks or scratches on the left side of the

Nissan in clause 4.13 of his report are as follows:

"4. 13 .. .and the Nissan in essence overtaking the alleged truck,

the implication is that the Nissan was travelling faster than the

truck at the alleged impact. This implies that any contact

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between the alleged truck and the Nissan would result in

horizontal scrape/scratch and/or rub marks of paint, rubber,

plastic, etc. being deposited on the Nissan in an essentially

forwards to rearwards direction. Furthermore, if marks are

deposited by a wheel of the truck making contact with the

Nissan, such marks would be semi-circular of shape made by

the rotating wheel making contact with the translating Nissan

passing in front of it. No marks of this nature of any significance

and consistent with a tire of a truck are evident on the left side

of the Nissan. The mark indicated as "B" on the photographs of

J. P. Strydom does not accord with the above description at all

as is evident from the photographs and the mark indicated as

"A", though showing signs of a semi-circular shape at an angle

downwards towards the front of the vehicle, is at a position

inconsistent with such an impact and is of a size too small to

have any significance as can be seen in photographs 12, 14

and 16 of the photographs as attached as appendix A to this

report. No denting or indentation of the body panels was found

in the area of this mark as can be seen in photograph 16 further

indicating it's insignificance.

When considering the mark "B" as can be seen in photographs

15 & 17 of appendix A to this report, it is consistent with the

mark being deposited in an essentially rearwards to forwards

direction which is concluded by the defined rear edge of the

mark. This is inconsistent with the Nissan being in the process

of overtaking the alleged truck when the alleged collision

occurred if this mark was indeed left during contact between the

alleged truck and the Nissan and is therefore inconsistent with

the Nissan overtaking the alleged truck when the alleged

collision took place.

Both these marks ("A" & "B'? are also not consistent with a truck

leaving it's lane to the right and impacting into the side of the

passing Nissan due to their insignificant size and shape and

that they both end abruptly. This would indicate an impact of

extremely short duration (and therefore negligible severity)

under these circumstances. The expectation would however be

for the truck to continue into the side of the Nissan at an angle

as the Nissan passed in front of it for the truck to have had any

effect on the dynamics of the Nissan and the marks left by the

alleged truck against the Nissan to have been in the form of a

row of semi-circular marks (left by a tire or wheel nuts) and/or

horizontal marks (left by body panels, bumpers, etc). These

marks ("A" & "B') indicate impacts or rubbing of virtually

negligible severity when considering the respective depths

thereof (photographs 16 & 17) and would definitely not be of a

severity sufficient to affect the dynamics of the Nissan to any

significant degree for the driver of the Nissan to lose control if

they were caused by a truck making contact with the left side of

the Nissan."

[18] His conclusion on the matter is that the possibility of contact

from another vehicle cannot be excluded. He further explained

that the contacts shown by marks "A" and "B" could have

occurred before or after the Nissan overturned.

[19] It is significant to mention that both experts agree that the

marks "A" and "B" indicate an impact which is not severe and it

would not affect the dynamics of the Nissan to cause the driver

to loose control. They further agree that the impact which

caused marks "A" and "B" would not cause a loud noise.

However, Ms. Maphosa in one of her affidavits commissioned

by Attorney Louw De Witt Le Roux stated that she remembers

a loud bang coming from the left when the Nissan was hit by

another vehicle.

[20] Mr Grobbelaar further said marks "C" and "D" on photo 5 of the

album prepared by Mr Strydom, having regard to the depth and

the direction of the marks were caused by the sliding of the

Nissan when it overturned. I agree with the opinion and reasons

thereof of Mr Grobbelaar that marks "C" and "0" were most

probably caused by the sliding of the Nissan.

[21] Having regard to photo's 12,13,14,15,16 and 17 of the photo

album of Mr Grobbelaar and in considering the reports of the

two expert witnesses, it is my view, that the explanation and

conclusion of Mr Grobbelaar is more probable compared to

what Mr Strydom said.

[22] There is no sufficient evidence upon which I can reasonably

conclude that the marks "A", "8" and "C" were caused by the

contact between the Nissan and a truck when the Nissan

overtook an alleged truck. The natures of the marks on the

Nissan do not, in my view, support the view of Mr Grobbelaar.

[23] There is a possibility that the marks could have been caused

before the accident or after the accident. There is no sufficient

evidence that, particularly marks "A" and "8", were caused at

the scene of the accident. Furthermore, the plaintiff did not give

any evidence confirming that before the accident the Nissan did

not have the said marks.

[24] Looking at the photo album of Mr Strydom and Mr Grobbelaar

carefully, it is clear that photos 1 and 5 of Mr Strydom's album

show the Nissan being on top of a trailer. On photos 2, 3 and 4

the Nissan is in a different residential complex and there is a

towing vehicle in front of it. These marks could have been

caused when the Nissan was moved from one place to another.

[25] The other significant aspect, in evaluating the evidence, is that

the evidence of Ms Maphosa differs materially with that of Mr

Khumalo concerning whether the alleged truck was travelling

faster than the Nissan or whether the Nissan was travelling

faster than the truck.

[26] The Officer's Accident Report, (OAR), form reflected that it was

completed by inspector F. J. van Staden and the SAPS

accident register number thereon is 63/06/02, which is an

indication that the accident was registered in June 2002 not

long after the accident.

[27] The OAR form does not state the name, surname and

particulars of the driver who operated vehicle A, (the Nissan),

and the description of the accident by inspector van Staden is

as follows:

"Na Bewering het voertuig A rigting Suid op die N 1 beweeg en

het beheer ver/oor en gerol."

It is not known from whom did inspector van Staden receive this

information which contradict with the evidence of plaintiff's

witnesses in that in the OAR form no mention is made of a

second vehicle being involved when the plaintiff's vehicle

overturned.

[28] Mr Grobbelaar in his accident report states that he visited the

scene of the accident on 1 December 2006 with inspector van

Staden and they could not find any marks or debris which could

prove that the Nissan collided with another vehicle.

[29] Having regard to the evidence in totality, I am not satisfied that

the plaintiff has proved on a balance of probabilities that there

was contact between the truck and the Nissan and further that

the accident was caused by the negligent driving by the driver

of another vehicle.

[30] I therefore, dismiss the plaintiff's action with costs.

A. P. LEDWABA

JUDGE OF THE HIGH COURT