/SG

IN THE HIGH COURT OF SOUTH AFRICA

(TRANSVAAL PROVINCIAL DIVISION)

				DATE: 04/02/2005

			CASE NO: 15600/2001
UNREPORTABLE

In the matter between:

MOFFAT TAKALANI MAPHALA				PLAINTIFF

And

ROAD ACCIDENT FUND					DEFENDANT

JUDGMENT

SERITI, J

	The plaintiff instituted an action against the defendant in terms of which plaintiff claimed payment of certain amount of money as damages he suffered.

	In his particulars of claim, the plaintiff alleges, inter alia that the defendant is obliged to compensate him for damages that he sustained in terms of the Road Accident Fund Act 56 of 1996. 

	Plaintiff further alleges that on 13 March 1999 and at or near Giyani an unidentified motor vehicle collided with the motor vehicle which he was driving and as a result of the said accident he sustained certain physical injuries and suffered certain damages.

	Plaintiff has complied with the necessary provisions of the Road Accident Fund Act and Regulation promulgated thereunder.

	In its plea, the defendant denied that it was obliged to compensate the plaintiff and further denied that the plaintiff was involved in an accident as alleged or suffered damages as alleged by the plaintiff.

	At a pre-trial conference held shortly before the trial, the parties agreed that the issues of merits and quantum should be separated and that the matter will proceed on the issue of merits only.

	Defendant sought certain admissions from the plaintiff and in his response plaintiff admitted that no cow was killed or injured during the alleged accident and that he had a passenger with him at the time of the accident, namely Mr Alex Davhana.

	At the beginning of the trial, the court was advised that by agreement of the parties, the trial will proceed only as far as merits are concerned, and if necessary, quantum will be dealt with at a later stage.

	Plaintiff went into the witness box to testify.

	He testified that on 13 March 1999 he was travelling from Louis Trichardt to Giyane.  It was a clear and sunny day.

	At about 6:40, whilst driving he came to a certain gentle curve, and he was driving at a speed of 80 – 100 kilometres per hour.

	He is familiar with the said road.

	Whilst still so driving, he noticed a cow ahead of him crossing the road.  There was a truck that was following him.

	On noticing the cow on the road, he reduced speed so that the cow can cross the road.  

	After reducing speed, the truck that was following him collided with the motor vehicle he was driving on the rear right side.

	When the truck collided with the motor vehicle he was driving, he was still on the tarred road.

	On impact, he lost control of the motor vehicle he was driving.  The motor vehicle went to the left side of the road.

	There was a hole on the left side of the road and he tried to bring the motor vehicle back to the road, it veered to the right side of the road, it capsized and rolled on the right side of the road.

	He is an experience driver.  He lost control of the motor vehicle after his motor vehicle was knocked from the back by a truck.

	Under cross-examination he said at the time of the alleged accident, he had two passengers in the motor vehicle, namely Messrs Alex Davhana and Happy Segole.  He does not know the whereabouts of Mr Happy Segole.

	The motor vehicle he was driving is a Nissan bakkie and they were all seated in front.

	The road was known to him.  It is a single carriage road in either directions and it has a barrier line in the middle next to the area where the accident occurred.

	He does not know the colour of the cow that he saw in the middle of the road.

	The said cow was walking from his right to the left side.  The cow first crossed the middle line of the road and came to his lane of travel.

	When he first saw the cow, it was 5 – 6 metres in front of him, and it was almost in the middle of the road, and about to enter his lane of travel.  In fact, portion of the cow, namely its front legs and head were already in his lane of travel.

	He did not collide with the said cow and nobody collided with it.

	The truck that collided with his car followed him for about 15 minutes.  It was a reddish 8 ton truck and he could not give any further details of the said truck.

	He further said that he applied his brakes gently to allow or enable the cow to cross the road.

	When he applied the brakes he looked on his mirror and he saw the truck still following him.

	He later said that when he applied the brakes he did not look on the mirror to see if the truck was still following him.

	The plaintiff further said that he realised that the truck was coming and hooting and that is why he could not pass behind the cow.  He also realised that the said truck wanted to change the lanes and travel in the lane of motor vehicles coming from opposite direction.

	When asked why he is mentioning for the first time that the truck hooted and it wanted to change lanes, he could not give a sensible answer.

	The truck collided with his motor vehicle after the cow had crossed the road.

	After his evidence, plaintiff closed his case.

	Defendant closed his case without tendering any evidence.

	It is common cause that the plaintiff bears an onus of proof.  If the plaintiff fails to discharge his onus, there is no need for the defendant to testify.  The defendant can at the close of the plaintiff’s case, apply for absolution or close his/her/its case without leading any evidence.

	In order to determine whether the plaintiff has discharge his onus, the court must evaluate all the evidence tendered by the plaintiff.  – See Alli v De Lira 1973 4 SA 635 (TPD).

	If the defendant has closed its case without leading any evidence, the latter fact must be taken into account when evaluating or assessing whether plaintiff had discharged his onus or not – see Marine and Trade Insurance Co Ltd v Van der Schyff 1972 1 SA 26 (AA) p 50.

	As stated earlier, the plaintiff testified that when he first saw the cow, same was almost in the middle of the road, with its front portion in his lane of travel.  He was about 5 – 6 metres away from the said cow and he was travelling at a speed of between 80 – 100 km per hour.  He did not collide with the said cow and he does not know what happened to it.

	I cannot understand, if the plaintiff’s version is true, how he could have missed to collide with the cow if he did not change the lanes.  Furthermore, I cannot understand how can he not know what happened to the said cow.

	Plaintiff contradicted himself on few occasions, for instance, in his evidence in chief, he did not mention that the truck hooted and changed lanes, which fact he only mentioned under cross‑examination.

	Furthermore, initially he testified that when he applied brakes, he did not look at the truck which was following him and he later changed that version.

	He was unable to give full details of the truck that was allegedly following him and ultimately collided with him despite the fact that same followed him for 15 minutes prior to the alleged collision.

	The version of the plaintiff is improbable.

	I am of the view that the plaintiff has failed to discharge his onus.

	The court therefore makes the following order:

	1.	Absolution from the instance.

	2.	Plaintiff is ordered to pay the costs of the defendant.

							W L SERITI
					JUDGE OF THE HIGH COURT
15600/2001

HEARD ON:   

FOR THE APPLICANT/PLAINTIFF:  ADV 

INSTRUCTED BY:  MESSRS 

FOR THE RESPONDENT/DEFENDANT:  ADV 

INSTRUCTED BY:  MESSRS 

DATE OF JUDGMENT: