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NOT REPORTABLE

IN THE HIGH COURT OF SOUTH AFRICA

(SOUTH EASTERN CAPE LOCAL DIVISION)

In the matter between Case No: 4200/2005

NOMSA JOYCE SIWANI PLAINTIFF

and

THE ROAD ACCIDENT FUND 1^st DEFENDANT

S J NOHANI 2^nd DEFENDANT

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JUDGMENT

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CHETTY, J

[1] The plaintiff, Ms Nomsa Joyce Siwani, instituted an action for damages against the Road Accident Fund, as first defendant, and the driver of the minibus taxi in which she was being conveyed at the time of the collision one S. J Nohani (Nohani) as the second defendant. In her particulars of claim she alleged that the collision occurred in Mabandla Road, Kwanobuhle, Uitenhage on 9 August 2002, when the vehicle in which she was being conveyed swerved to avoid an unidentified vehicle and in consequence thereof collided with another vehicle. These three vehicles were described in the particulars of claim as the second insured vehicle; the unidentified insured vehicle and the first insured vehicle respectively and I shall in the course of this judgment adopt the same nomenclature.

[2] It will be gleaned from the aforegoing that the entire edifice of the plaintiff’s case is dependent upon an alleged dangerous manoeuvre by the driver of the unidentified insured vehicle. In its amended plea the first defendant, whilst admitting that a collision occurred, decried all knowledge of the aforegoing actions by the driver of the unidentified insured vehicle and put the plaintiff to the proof.

[3] At the inception of the hearing before me and on the application of the parties I ordered that the merits be separated from quantum. Plaintiff’s counsel then withdrew the action against the second defendant and commenced his case by calling the second defendant to testify in support of the plaintiff’s case. At the conclusion of the latter’s evidence, the plaintiff’s case was closed and so too that of the first defendant. With this prelude I turn to consider whether the plaintiff has discharged the onus resting upon her mindful that in matters such as the present, the plaintiff is merely required to prove one percent negligence.

[4] Before I analyse and evaluate the evidence of Nohani however the following general observations concerning the area where the collision occurred are apposite. Mabandla Road is a fairly straight tarred road permitting vehicular traffic in either direction. It is evident from the photographs that intermittently along its length and dissecting the tarred surface there appear either broken or unbroken white lines. The trafficable surface is flanked on either side by fairly wide pavements, the road sufficiently wide to safely accommodate two vehicles in either direction of travel and the road surface where the collision occurred is dissected by an unbroken white line.

[5] Nohani was at the time of the collision the owner and driver of the minibus taxi, operating it seems without the requisite permit to do so. Nothing however turns on this. Summarised, his evidence is to the following effect. He had started work at 5 a.m. ferrying passengers from residential to various commercial and industrial areas. He returned to Bantom Street in Gunguluza township, resumed his usual route picking up passengers along the way. The last of his passengers boarded the taxi near a service station along Mabandla Road and it could not accommodate any others. Whilst proceeding along Mabandla Road a sedan motor vehicle suddenly materialised in front of his. Faced with this sudden emergency he was unable to brake for fear that the taxi would skid. He swerved to the right onto his incorrect side of the road and collided with the first insured vehicle, which it is common cause he only saw at the moment of impact. During his cross-examination in chief, plaintiff’s counsel referred him to the photo album. Having familiarised himself therewith he was able to identify various side streets and the general terrain. He was asked, with reference to photograph 11 to indicate where he first observed the unidentified insured vehicle and marked the area by drawing a short line next to and in close proximity to the kerb. The point of collision he marked with an x on photo 12.

[6] During the course of his cross-examination it became clear that his evidence relating to the unidentified insured vehicle suddenly stopping in front of his vehicle was a complete and utter fabrication. The longer the cross-examination endured so too the extent of his untruthfulness. It is apparent from his evidence that he was not keeping a proper lookout. Had he done so he would no doubt have seen the unidentified insured vehicle overtaking him because on his own version he had looked at both the side and rear view mirrors as he proceeded along Mabandla Road at the sedately speed of 50 – 60 km/h. It is inexplicable that a vehicle could not only have overtaken him, but moreover cut in front of him without him being able to see it. On his own admission, it was sufficiently light and there was nothing which impeded his vision. It is furthermore quite apparent that even at that stage he was not keeping a proper lookout for he did not even see the first insured vehicle until virtually the moment of impact. The probabilities are overwhelming that the unidentified insured vehicle had not overtaken him but was stationary at the point which he marked on photograph 11. He could not have been keeping a proper lookout and when its presence finally dawned on him he panicked and swerved to his right. Even then, on his own admission, he had not been keeping a proper lookout.

[7] Confronted with the inherent improbabilities of his evidence he then sought to retract his earlier testimony alleging that the questions asked were unclear. In desperation he sought to extricate himself from the morass of his lies by alleging that the questions were put in the Afrikaans language. When it was made clear that the questioning was conducted in English he could proffer no explanation for his contradictory testimony, content to assert that the questions were unclear. Nohani was an evasive and thoroughly discredited witness and no reliance whatsoever can be placed on his evidence. It was shown to be demonstrably false. What the evidence does establish is that he was the sole cause of the collision. It follows that the first defendant’s liability to the plaintiff is limited to the sum of R25 000, 00. In the result the following order will issue:

1. It is declared that the collision was occasioned by the sole negligence of the driver of the second insured vehicle.

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D. CHETTY

JUDGE OF THE HIGH COURT

Date Heard: 19 March 2008

Date Delivered: 20 March 2008

For the Plaintiff: Adv A Frost instructed by Le Roux Incorporated (Ms September)

For the 1^st Defendant: Adv Pillay instructed by Joubert Galpin & Searle (Ms L Adams)

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