---

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

NOT REPORTABLE

IN THE HIGH COURT OF SOUTH AFRICA

(WITWATERSRAND LOCAL DIVISION)

JOHANNESBURG

CASE NO: 24234/01

DATE:2004-02-27

In the matter between

MIS HACK MUBI DAKILE................................................................................................Plaintiff

and

ROAD ACCIDENT FUND........................................................................................... Defendant

JUDGMENT

WILLIS. J: The plaintiff claims against the Road Accident Fund in terms of the provisions of the Road Accident Fund Act No. 56 of 1996. The claim arises from a collision which, it is common cause, took place on 11 July 1999 at approximately 17:20 and at the R23 Heidelberg Road in Brakpan. The vehicles involved in the collision were one having registration number FHM 395GP driven by the insured driver and vehicle HYT 047GP driven by the plaintiff.

At the commencement of the trial counsel for both parties requested that I make an order separating the merits from the quantum in terms of Rule 33(4). t was pleased to do so.

After a process of extraction during the pleading stage, the holding of a pre-trial conference and a flurry of negotiations on the day before the trial and the morning before the trial commenced, it was agreed between the parties that all that was in dispute was the liability, if any, of the defendant for the damages sustained by the plaintiff as a result of the collision.

An interesting aspect is that in paragraph 4 of the plaintiff's particulars of claim it is alleged that one Mr R Ndlovu was the driver of the vehicle at the time. It subsequently appeared from the evidence of one Don Eric Mlangeni Nawa, who claims to have been the driver of the vehicle having registration number FHM 395GP, that R Ndlovu was in fact his wife, Reginah Ndlovu, who at the time of the collision had been his girlfriend. The vehicle had been registered in her name. He himself changed his name subsequent to the collision adopting the surname Nawa for previously his surname had been Mlangeni.

There were two very different versions put before this court. The version given on behalf of the plaintiff through evidence of himself, his wife and his son G, was that they had been travelling on the road in the direction from Heidelberg to Springs when suddenly, and without warning, a silver Mercedes Benz (it is common cause that this is the vehicle having registration number FHM 395GP) which had been stationary on the side of the road, moved into the road crossing the path of the plaintiff's vehicle. The distance between the plaintiff's vehicle and vehicle number FHM 395GP at the time when it started to cross into the road, was between 3 and 6 metres. Clearly, given this short distance there was insufficient time for the plaintiff travelling at some 90 kilometres per hour in a 100 kilometre per hour speed limit zone, to take steps to avoid the collision.

The version given by Don Eric Mlangeni Nawa, who claims to be the driver of the vehicle at the time, and a passenger of his in that vehicle at the time, one Sandile Dlamini, is that they were travelling on the opposite side of the road in the direction from Springs towards Heidelberg. They had been attending a funeral and were on their way to visit persons in Vosloorus. The vehicle driven by the plaintiff overtook another vehicle and a head-on collision was about to occur. In order to avoid this collision, the driver of the vehicle having registration number FHM 395GP swerved to the left. The evidence of Mr Nawa was that the point of impact was on the right passenger side of the vehicle which he was driving near the middle thereof. He confirmed the evidence of the traffic officer, Mr Maseko, who attended the scene of the accident shortly after it occurred, that the damage to the vehicle having registration number ran from the centre of the right-hand side of that vehicle towards the right front. There were no signs of impact from the middle of the vehicle towards the back thereof on the right-hand side.

None of the passengers in the vehicle having registration number FHM 395GP sustained any serious injuries. The vehicle driven by the plaintiff was extensively damaged and the plaintiff and his wife who were in the front seat were both rendered unconscious as a result of the collision. Mr Nawa says that he was travelling at approximately 70 kilometres per hour. He also said that his present wife, Reginah Ndlovu, in whose name the vehicle had been registered, was travelling with him, sitting next to him in the front passenger seat.

These two different versions cannot be reconciled. The differences in the versions cannot be explained through the usual discrepancies that arise when persons in a flash observe a very traumatic event and attempt to recall it several years later.

Mr Coetzer, who appeared for the defendant, made several valid criticisms of the evidence of the plaintiff and his wife in particular. The plaintiff, for example, said that his vehicle was a Nissan Skyline. Mr Maseko, who was the traffic officer attending the scene of the accident, said that the plaintiff's vehicle was an Audi. This too was the description given of the vehicle by the plaintiff's wife. The plaintiff also seemed confused as to whether or not one of his children was known as Godfrey. The plaintiff also had great difficulty understanding simple concepts such as the distance between the yellow line on the side of the road and the end of the tarmac. I disbelieve the evidence of the plaintiff, his wife and son as to the extent to which {or the extent rather to which they did not} discuss the accident after it occurred. It must be borne in mind that the plaintiff in his particulars of claim claims damages inter alia for a head memory was defective, he showed signs of intolerance and anti-social behaviour. It was clear to me that the plaintiff, when questioned about simple concepts and issues, became so frustrated at his inability to comprehend them and to give explanations, that he almost burst into tears. The inadequacies in the plaintiff's evidence must, in my view, be attributed to the head injury which he sustained rather than any dishonesty on his part.

The plaintiff's child G who testified was approximately 12 years old when he gave evidence in this court. Accordingly he would have been about 7 years old at the time of the collision. He was "the star of the show". He gave his evidence with candour and I believe that he was incapable of the artifice to be schooled to be able to give a false version of how the accident occurred. His entire demeanour, together with his testimony viewed as a whole, indicates that he was telling the truth. He was a passenger at the back of the plaintiff's vehicle and he describes the accident in essentially the same way as both the plaintiff and his wife, namely that a vehicle which had been stationary on the side of the road on which they were travelling, suddenly and without warning crossed into their path.

There were also contradictions between the plaintiff and his wife as to whether or not the plaintiff's vehicle had its lights on at the time. I have taken note of these discrepancies.

Mr Nawa encountered serious difficulties when asked to explain how his version of events could be reconciled with the objective evidence as to the damage sustained on the right side of the vehicle. He was also entirely unconvincing as to why the vehicle had been registered in the name of his present wife Reginah Ndlovu. He was also unimpressive as to why she could not be called as a witness in this case. He also said that there had been a BMW involved in the collision which had been hit but interestingly enough the reports drawn up by the traffic officer relating to the accident gives no indication that there was another vehicle, never mind a BMW, which had been involved in this collision.

The witness Dlamini who is an actor and presumably therefore a person of considerable intellectual ability and above all an ability to understand language, had difficulty in answering the most simple and straightforward of questions. Furthermore, his evidence differs from that of Nawa in as much as he says that the plaintiff made an attempt to overtake three vehicles whereas Nawa says that the plaintiff attempted to overtake a truck.

A bizarre aspect of this trial was that after the traffic officer, Mr Maseko, had testified, he noticed Mr Nawa speaking to counsel for the defendant. Mr Nawa, it seems, is a celebrity. He is an actor and has been an actor in a number of television serial programmes. For a number of years he has played a leading role in the series Isidingo. Isidingo is a "soap opera" which enjoys a considerable following in South Africa. Mr Maseko seems to have been quite an enthusiastic fan of the series in as much as he even informed the court that if one misses one of the evening episodes, one can catch up by watching the repeat episode shown on television the next morning. He said claimed to be the driver of the vehicle having registration number FHM 395GP, he would never have forgotten.

Mr Coetzer who, as I have said, appeared for the defendant, attempted to make light of this evidence. He relied very heavily on the fact that Mr Maseko had subsequent to the accident suffered a serious bout of meningitis which had resulted in his being hospitalised for several months and that this had affected his memory and Mr Maseko himself admitted that he had no independent recollection of the accident in respect of which he filed a report. Nevertheless, his evidence has the ring of truth. But related to this evidence is the interesting fact that in the report which he drew up there are no particulars given of the driver of the vehicle having registration number FHM 395GP other than to record that the driver was of South African origin and that his identity number commenced with the numbers 570821; that he was black and male; that he suffered no injury; that he apparently had been wearing a seat belt and that he was not suspected of having been under the influence of alcohol or any other drugs. The handwriting recording these facts was not that of Mr Maseko but rather that of one Mr Venter to whom he reported.

Mr Nawa himself conceded that he was born on a completely different date, namely 7 June , and that his first digits of an identity number relating to a person born on 21 August could not relate to him, If Mr Nawa had come forward at the scene of the accident and volunteered himself as the driver, one would have expected his details and particulars to have been recorded on the accident report form which Mr Maseko otherwise completed with considerable thoroughness. Mr Nawa himself claims that he did come forward and volunteer himself as the driver of the vehicle having registration number FHM 395GP. These aspects relating to Mr Maseko's emphatic view that Mr Nawa had not been at the scene and the lack of particularity as to any driver of this vehicle having registration number FHM 395GPare, to say the least, bizarre. One is left with the suspicion that if Mr Nawa was indeed the driver of the vehicle having registration number FHM 395GP,that he fled from the scene after the accident. There is insufficient evidence before me in order to make such a concrete finding but nevertheless these bizarre aspects do cast a shadow over his evidence and that of his supporting witness, Mr Dlamini. And then there are the other criticisms to which I have referred.

What is ultimately decisive in this case is the objective evidence relating to the damage sustained on the vehicle having registration number FHM 395GP. As I have already indicated, the damage ran from the right mid back of the vehicle to the right front with the major impact having been at the right mid back. One does not need expert testimony to conclude that this evidence is completely irreconcilable with the evidence that he swerved to avoid a head-on collision and was hit by the oncoming vehicle on the right-hand side. Had this occurred and had the major point of impact been the mid right back, the further damage would have been from the right mid back to the back right and not to the right mid back to the right front.

On the other hand, this evidence tallies completely with the version given on behalf of the plaintiff, namely had a vehicle which had been stationary on his side of the road suddenly and without warning had turned into his line of traffic, then the damage to that vehicle (i.e. the one that had previously been stationary) would have gone from the right mid back to the right front.

There is also the further fact that the persons travelling in vehicle FHM 395GP all escaped without any injury. Had Mr Nawa been travelling at 70 kilometres an hour and had the vehicle driven by the plaintiff been travelling at 90 kilometres per hour, the combined impact of these two vehicles colliding would have been such that it would be inconceivable that all the passengers travelling in the vehicle having registration FHM 395GP escaped without serious injury. The lack of injury sustained by the persons travelling in the vehicle having registration number FHM 395GP, is reconcilable with the evidence given on behalf of the plaintiff.

Counsel for both parties seemed ultimately to agree that this was an "all or nothing" case. In other words, there would be no room for any apportionment of damages. If I accepted the plaintiff's version of events, then the driver of the vehicle having registration number FHM 395GP would have been 100 per cent negligent. On the other hand, if I accepted the version of events given by the defendant's witnesses, namely that the plaintiff had overtaken a truck in the face of oncoming traffic, then the plaintiff would have been 100 per cent negligent.

I find the merits of the case in favour of the plaintiff. The following order is made:

1. The defendant is liable to compensate the plaintiff for the damages which he sustained as a result of the collision which took place on the R23 Heidelberg Road in Brakpan at approximately 17:20 on 11 July 1999.

2. The action to determine the quantum of the damages is postponed sine die.

3. The defendant is to pay the plaintiff's costs in the action relating to the claim for the liability to pay damages.

ON BEHALF OF PLAINTIFF: Instructed by:

ON BEHALF OF DEFENDANT:MR COETZER

Instructed by:

DATE OF JUDGMENT:27 FEBRUARY 2004

---