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Magagula v Road Accident Fund (24358/03) [2005] ZAGPHC 44 (14 April 2005)



IN THE HIGH COURT OF SOUTH AFRICA
(TRANSVAAL PROVINCIAL DIVISION)
In the matter between
        
DATE: 14/4/2005
CASE NO.: 24358/2003
BADI JOHN MAGAGULA PLAINTIFF
and
ROAD ACCIDENT FUND
DEFENDANT
JUDGMENT
POSWAJ:
         [1]      In this case the plaintiff, Mr. Badi John Magagula, claims damages
from the defendant RAF, in the total amount of R200, 013. 00, arising from a collision between two PUTCO buses, as they are generally referred to. The one bus, whose registration number is LDS 828 GP, was driven by the plaintiff. It is sometimes referred to in my judgment as "the plaintiff's bus," The other bus whose registration number is DBN 970 GP, was driven by Mr. Johannes Shala. The collision took place at about on 12, November, 2002, at approximately 21h15. It is common cause that it was already dark and that the two buses had their headlights on. It is also common cause that the two buses were moving in opposite directions and that the collision occurred at a bend on the road. Mr. P. J. Coetsee appeared on behalf of the plaintiff whilst Mr. D. Mogagabe appeared on behalf of the defendant. It was agreed
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between the parties that the action would proceed only on determination of liability.
         [2]      Two witnesses were called on behalf of the plaintiff, viz. the plaintiff

himself, as driver of one bus, and Mrs. Sarah Napo, who was allegedly a passenger in the bus driven by the plaintiff at the time of the collision. Mr. Shala was the only witness for the defendant. Indeed, that the plaintiff would call two witnesses and the defendant only one witness was indicated at the commencement of the trial. Later during the trial, at a stage when Mr. Shala was towards the tail-end of his evidence, Mr. Mogagabe asked him to mention the names of six senior officials from the PUTCO depot at Siyabuswa, who, as will appear more fully when I deal with Mr. Shala's evidence, allegedly came to the scene of the collision. The declared purpose for which he sought that information was given, by Mr. Mogagabe, as the desire to interview one or more of such drivers with a view to calling him or them as a witness or witnesses on the Defendant's behalf. I shall deal with that aspect later in this judgment.
         [3]      In his evidence, Mr. Magagula stated that he was employed as a bus
driver by the defendant PUTCO, a bus company. At about 19h20 on 12 November, 2002, he was the driver of the defendant's buses, bearing registration number LDS 828 GP, having driven from Pretoria from about 17hOO. He was about to reach his destination, Mapota, at Siyabuswa, KwaNdebele. A collision occurred between his bus and another PUTCO bus, Mr. Shala's bus, as I call it, in consequence whereof he sustained certain injuries. According to paragraph 4 of the Particulars of Claim, the driver of the other bus was one J. Sibanyoni. It later transpired, however, that his correct names are Mr. Johannes Shala, about which I shall say more later.
         [4]      Mr Magagula stated that he entered a bend on the road, at a speed of
about 50 kmh, and that he suddenly found himself facing a bus that was travelling, incorrectly, on his side of the road, in the opposite

                                                                                          3
direction. He took some evasive action by swerving his bus to the left. The other bus simultaneously swung to its own left, in an apparent endeavour to return to its correct side of the road. Although a head-on collision was averted, the plaintiff's bus struck the right rear end of the other bus. Mr Magagula's bus was forced off the road, towards the left, ending up in the bush, with its rear being about five to six metres off the road and the front being about twenty to thirty metres from the road. No mention was made of Mr Magagula's state of consciousness after the collision but it appears that he lost consciousness or powers of concentration, because his account of the collision ends there.

         [5]      The next plaintiff's witness, Mrs Sarah Napo, continued the story. She
stated that she was a passenger on a bus driven by the plaintiff and that she was travelling from work to her home at Mapota. She could not say what speed the plaintiff's bus was travelling at, save to say that it was normal speed. She had stated that she had been using that route and the bus in that shift for the past ten years and that the plaintiff had been the driver in that shift for the past three years leading to the day of the accident.
         [6]      She noticed the other bus travelling on its incorrect side of the road,
right in front of the plaintiff's bus, at the bend. It was about 4 to 5 metres away, approaching. She corroborated the plaintiff on what happened thereafter, adding what the plaintiff had omitted, viz. that the plaintiff was trapped in the driver's seat, injured. She remained in the bus trying to help the plaintiff. She gave no details as to, precisely, what she did in that regard. She disagreed with the defendant's version, put to her during cross-examination by Mr. Mogagabe, that she was not a passenger in the plaintiff's bus. That version was premised on the evidence that would be given by the driver of the other bus, which Mrs Napo also disputed, viz. that the driver of the other bus, who had allegedly left the scene shortly after the collision and had gone to a nearby PUTCO depot, returned with six company inspectors, found the plaintiff still trapped and screaming for help and that they


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rescued him. As I have earlier stated, Mrs Napo gave no, and was not asked about, details of the plaintiff's rescue. Consequently, I do not have the plaintiff's version as to how and by whom the plaintiff was rescued, if not by the men from the depot. What remains, however, is that she is adamant that she was a passenger in the plaintiff's bus.
         [7]      Mr Shala, on the defendant's behalf, stated that he had or has - that
aspect is not clear and makes no difference, in my view - been driving the staff bus, taking, PUTCO bus drivers at Mapota to work and driving home those who were knocking off duty. At the time of the collision, which, like the plaintiff's witnesses, he gave as being after 19:00, he was returning to the deport, having just delivered some drivers and then being alone in the bus. Whereas the plaintiff and, by implication, Mrs Napo said that it is impossible to see a motor vehicle approaching that bend before it enters the bend, Mr Shala said that he saw the plaintiff's bus as he was still approaching the bend in his own bus. That other bus was in excess of 500 metres ahead then and travelling on its incorrect side of the road - Mr Shala's side of the road. Although he is uneducated, he has seen enough of road signs indicating that the next bus stop is 500 kilometres ahead enough to have an idea what distance that represents.
         [8]      From the flickering up and down movement of that bus's head lamps,
seeing that it is a gravel road, Mr Shala made out that it was travelling very fast, at about 110-120 kph. Realising that that bus was remaining on his side of the road without appearing to reduce its speed, Mr Shala reduced his own bus' speed from about 80kph to about 60kph and continued driving on his correct side of the road as he entered the bend. When the other bus was quite close and it appeared that a collision was inevitable, unless he did something further, Mr Shala swung his bus to the left. The right front of the other bus collided with the right rear of his bus, causing the latter bus' rear to swing to the left and ending with Mr. Shala's bus obstructing the entire road. He, at no stage, said or implied that his bus left the road. He totally rejected the


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plaintiff's version on the two buses' respective positions leading and up to the collision.
         [9]      As the other bus approached him, Mr Shala thought it was a motor car,

in view of its apparent speed. It was only as it whisked past him just before the collision, that he realised that it was a bus, after all. He said that the other bus ended up about 50 metres past the collision point, in the bush, where it was apparently stopped by a big tree, with which it collided. As I have already stated, he left the scene and returned from the depot with six inspectors. They rescued the plaintiff from where he had been trapped in the driver's cabin. He vehemently rejected Mrs Napo's evidence that she was in the bus at all times until the plaintiff was rescued, saying he would have seen her on his return to the scene, if she was there. It is evident that he believed that she was a fake witness and that she was not a passenger on that bus at all, that evening.
[10] An application by Mr. Mogagabe, towards the conclusion of the crossexamination of Mr. Shala, for an adjournment, to enable him to recognise one or more of the inspectors from the defendant's depot at Siyabuswa, who were mentioned by Mr. Shala was turned down. Mr. Magagula had not spoken to any of these inspectors, he did not know how they could be of assistance to the defendant, if at all, and he might have ended up calling none of them after all that. Moreover, I was displeased with the obviously inadequate preparation on the defendant's part. The defendant then closed its case without calling any other witness, as Mr. Magagula had indicated would the case from the outset.
[11] According to the plaintiff, the cause of the collision was Mr. Shala's driving his bus on the incorrect side of the road, at the bend, on the path and in front of the bus driven by the plaintiff and Mr. Shala's failure or inability to avoid a collision whose occurrence he had negligently created. According to the defendant, the collision was caused by the


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bus of which the plaintiff was the driver being driven on its incorrect side of the road, for a distance in excess of 500 metres, in the path of the bus driven by Mr. Shala and the excessive speed at which it was being driven at all times until the collision occurred. The two versions as to which of the two drivers, the plaintiff and Mr. Shala, respectively, was responsible for the collision are in conflict with and mutually exclusive of each other. The only aspects on which there is agreement are that a collision occurred between the two buses, at the bend in question, that the plaintiff and Mr. Shala were, respectively, drivers of the two buses that collided and that the plaintiff sustained injuries in consequence of the collision.
[12] Whenever conflicts of this nature occur, in civil cases, the question is asked as to which of the parties bears the onus of proof and it is often the plaintiff that carries onus. Whichever party bears the onus has to discharge it on a balance of probabilities. Determining whether a party that bears the onus has discharged it is not always easy and that problem has engaged courts of law over decades, if not centuries.
[13] I should point out that it was, understandably, common cause between the parties in this case that the plaintiff bore the onus of proof.
[14] The legal position with regard to onus, in a civil case, has variously been dealt with in South African case law, with the passage on 440D441A, in the judgment of the full bench, given by Eksteen, AJP, as he then was, in National Employers' General Insurance v Jagers 1984 (4) SA 437 (E) being frequently referred to. It reads:
"It seems to me, with respect, that in any civil case, as in any criminal case, the onus can ordinarily only be discharged by adducing credible evidence to support the case of the party on whom the onus rests. In a civil case the onus is obviously not as heavy as it is in a criminal case, but nevertheless where the onus rests on the plaintiff as in the present case, and where there are two mutually destructive stories, he can only succeed if he satisfies the Court on a preponderance of probabilities that his version is true and accurate and therefore acceptable, and that the other version advanced by the Defendant


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is therefore false or mistaken and falls to be rejected. In deciding whether that evidence is true or not the Court will weigh up and test the plaintiff's allegations against the general probabilities. The estimate of the credibility of a witness will therefore be inextricably bound up with a consideration of the probabilities of the case and, if the balance of probabilities favours the plaintiff, then the Court will accept his version as being probably true. If, however, the probabilities are evenly balanced in the sense that they do not favour the plaintiff's case any more than they do the defendant's, the plaintiff can only succeed if the Court nevertheless believes him and is satisfied that his evidence is true and that the defendant's version is false. This view seems to me to be in general accord with the views expressed by Coetzee J in Koster Ko-operatiewe Landboumaatskappy Bpk v Suid Afrikaanse Spoorwe Hawens (1974 (4) SA 420 (W)] and African Eagle Assurance Co Ltd v Cainer [ 1980 (2) SA 234 (W)]. I would merely stress however that when in such circumstances one talks about a plaintiff having discharged the onus which rested upon him on a balance of probabilities one really means that the Court is satisfied on a balance of probabilities that he was telling the truth and that his version was therefore acceptable. It does not seem to me to be desirable for a Court first to consider the question of the credibility of the witnesses as the trial Judge did in the present case, and then, having concluded that enquiry, to consider the probabilities of the case, as though the two aspects constitute separate fields of enquiry. In fact, as I have pointed out, it is only where a consideration of the probabilities fails to indicate where the truth probably lies, that recourse is had to an estimate of relative credibility apart from the probabilities. "
[15] This principle has been applied in a number of other cases. I mention only some of them. (Visagie v Transsun (Pty) Ltd [1996] 4 All SA 702 (Tk), by Pickering,J, at 712C-H; Plaatjies and Another v Road Accident Fund [1999J 1 All SA 162 (SE), by Hom,AJ, at 168 E-I ; Fourie v Road Accident Fund [1999] 3 All SA 661 (0), by Fischer,AJ, at 667b; Alzu Ondememings (Edms) Bpk v Agricultural and Rural Development Corporation and Another [2001] 2 All SA 368 (T), by Patel, AJ ( as he then was); Baring Eiendomme Bpk v Roux [2001] 1 All SA 399 (SCA), by Grosskopf, JA, at 401J-402 F).
[16] Notwithstanding how well the legal position has been explained, it still becomes necessary, from time to time, for courts to make attempts to


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define it even further. The difficulty often arises in the application of the law or the test to the facts of the given case. I do not find it very helpful for one judge to prescribe a formula whereby all judges must determine the credibility of witnesses. I have difficulty, for instance, with the statement in Jager's (supra) that one may not arrive at a view on the credibility of a witness, as the witness gives evidence, but has to wait until he or she has heard all the evidence, from which he or she can now have all the probabilities of the case, before deciding on the witness's credibility. I am of the view that a witness can sound credible although what he or she says is incorrect. In other words, his or her error may not be due to any lie on his or her part. Probabilities may simply demonstrate that his or her view is erroneous. I think that what is said by Nienaber, JA, in Stellenbosch Farmers' Winery Group Ltd and Another v Martell Et Cie and Others, 2003 (1) SA 11 (SCA), demonstrates this point. He says:
"On the central issue, as to what the parties actually decided, there are two irreconcilable versions. So, too, on a number of peripheral areas of dispute which may have a bearing on the probabilities. The technique generally employed by courts in resolving disputes of this nature may conveniently be summarised as follows. To come to a conclusion on disputed issues a court must make findings on (A) the credibility of the various factual witnesses; (B) their reliability; and (C) the probabilities. As to (A), the court's finding on the credibility of a particular witness will depend on its impression about the veracity of the witness. That in turn will depend on a variety of subsidiary factors, not necessarily in order of importance, such as (i) the witness's candour and demeanor in the witness box, (ii) his bias, latent and blatant, (iii) internal contradictions in his evidence, (iv) external contradictions with what was pleaded or put on his behalf, or with established fact or with his own extracurial statements or actions, (v) the probability or improbability of particular aspects of his version, (vi) the calibre and the cogency of his performance compared to that of other witnesses testifying of the same incident or event. As to (B), a witness's reliability will depend, apart from the factors mentioned under (a) (ii), (iv) and (v) above, on (i) the opportunities he had to experience or observe the event in question and (ii) the quality, integrity and independence of his recall thereof. As to (C), this necessitates an analysis and evaluation of the probability or improbability of each party's version on each of the disputed issues. In the light of its assessment of (a),


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(b) and (c) the court will then, as a final step, determine whether the party burdened with the onus of proof has succeeded in discharging it. The hard case which will doubtless be the rare one, occurs when a court's credibility findings compel it in one direction and its evaluation of the general probabilities in another. The more convincing the former the less convincing will be the latter. But when all factors are equipoised probabilities prevail." Para[5], 14I-15E.
[17] To determine the question of which of the parties should succeed in a civil case, courts have often had to rely on inferences. In this regard, I find what was said in Govan v. Skidmore 1952 (1) SA 732 (N) instructive. Selke, J stated the following, at 732A-D, where he compares the process of determining a fact in a civil case with the same process in a criminal case.
"Now it is trite law that, in general, in finding facts and making inferences in a civil case, the Court may go upon a mere preponderance of probability, even although its so doing does not exclude every reasonable doubt. In a criminal case, however, as I understand it, every fact material to establish the guilt of the accused must, unless it is admitted, be established by proof beyond reasonable doubt, and inferences from facts must, in order to be permissible, be such as leave no reasonable doubt of their propriety and correctness ... [I]n finding facts or making inferences in a civil case, it seems to me that one may, as Wigmore conveys in his work on Evidence (3rd ed., para. 32), by balancing probabilities, select a conclusion which seems to be the more natural or plausible conclusion from amongst several conceivable ones, even though that conclusion be not the only reasonable one."
The same point was expressed as follows:
H lse-reutter and Others v G dde 2001 (4) SA 1336 (SCA)
"[14] What is clear is that the 'evidence' on which an applicant relies, save in exceptional cases, must consist of allegations of fact as opposed to mere assertions. It is only when the assertion amounts to an inference which may reasonably be drawn from the facts alleged that it can have any relevance. In other words, although some latitude may be allowed, the ordinary principles involved in reasoning by inference cannot simply be ignored. The inquiry in civil cases is, of course, whether the inference sought to be drawn from the facts proved is one which, by balancing probabilities, is the one which seems to be the more natural or acceptable from several conceivable


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ones. (See Govan v Skidmore 1952 (1) SA 732 (N) at 734B-D as explained by Holmes JA in Ocean Accident and Guarantee Corporation Ltd v Koch 1963 (4) SA 147 (A) at 159B-D.) While there need not be rigid compliance with this standard, the inference sought to be drawn, as I have said, must at least be one which may reasonably be drawn from the facts alleged. If the position were otherwise the requirement of a prima facie case would be rendered all but nugatory."
[18] In applying the above principles to the facts of this case, I take into account the following;
         (a)      That Mr. Shala drove his bus on the incorrect side of the road is,
on the face thereof, just as probable as the plaintiff having driven his bus on the incorrect side of the road;
         (b)      That the plaintiff's bus was approaching the bend at an
excessive speed, ie. too fast in the circumstances, is just as probable, on the face thereof, as it having approached the bend at 50kph or less;
         (c)      That Mrs. Napo was a passenger in the bus driven by the
plaintiff and that she remained behind, after the bus had come to a standstill, to give assistance to the plaintiff, is, on the face thereof, just as probable as her not having been a passenger in that bus. Those are probabilities I find to be evenly balanced.
[19] Consequently, I now look at the credibility of the respective witnesses.
If I find the plaintiff and Mrs. Napa credible witnesses and Mr. Shala not a credible witness, I have to find the plaintiff's version preferable to the defendant's version. That would mean that Mr. Shala caused the collision. If, however, I find Mr. Shala to have been a credible witness and the plaintiff and Mrs. Napo unreliable witnesses, I must dismiss the plaintiff's claim. I am, for the moment, not dealing with what the position should be if I find Mrs. Napo not a reliable witness. I shall deal with that aspect later in this judgment.


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[20] All three witnesses appeared, when giving evidence, quite impressive.

It is true that Mr. Shala was somewhat more fidgety during the course of his testimony. I did not gain the impression, however, that his demeanour was indicative of lying. I gained the impression that that was indicative of his general manor of talking, which includes gesticulating. I also had to take into account something I became aware of just before adjournment viz., that he had been fetched from his home and place of employment at about 04:30 that very day and brought to Pretoria for a consultation with Mr. Mogagabe, the defendant's counsel. He had not been given an opportunity to go to his house and to make arrangements with his family, nor, indeed, with his employer, for the eventuality of his being delayed for the night in Pretoria. Moreover, I learnt, at the same time, that he had not had any previous consultation with either the defendant's attorney or the defendant's counsel before that morning. He had been whisked away by an attorney from the defendant's firm of attorneys and rushed to Pretoria, where he was placed before Mr. Mogagabe for a consultation. The latter had had a hasty and short consultation with him, a little before he attended the roll call at court, at 09h45.
[21] In fact, Mr. Shala is described, in the plaintiff's particulars of claim as "J. Sibanyoni" and was called by that name when being brought into court at a stage when I ordered that the driver of the motor vehicle insured by the defendant be brought into court, so that he could listen to the evidence being led about him and be, thus, in a position to instruct the defendant's counsel on aspects that, on his version, were incorrectly or falsely stated by the plaintiff's witnesses. I had been caused to adopt that course by realising that Mr. Mogagabe was constantly conferring with his instructing attorney to verify some crucial aspects that he wished to put to the plaintiff as the defendant's version. When Mr. Shala did not respond to the name "Sibanyoni," when I sought to inform him why he was brought into court, he informed me that he is not Sibanyoni and gave his name to his counsel. The latter conveyed it to me as Mr. "Shalang," a name by which he was


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addressed until he entered the witness box when it was his turn to testify. He then gave his name to me as "Shala". That was already very late in the day and it was not until after 16:00, when I was discussing, with both counsel, the future conduct of the case, which had been estimated to last only one day, seeing that the day had ended.
[22] It is when I was asking him about his availability or otherwise on the next day that Mr. Shala told me about his predicament, which I have described above. I do not intend making the discussion that ensued thereafter part of this judgment. Suffice to say that I expressed my indignation to RAF, the defendant, and to its attorneys about poor preparation for a matter of this public importance, for which the taxpayer contributes out of his or her pocket. I also commented about the undignified manner in which Mr. Shala was treated. I should, perhaps, add that Mr. Shala had been on night duty the night before, which is why he was found at work that early. His employer had been assured that he would be brought back in time for his evening trip, delivering his employer's drivers to their respective homes. I gave appropriate instructions as to what should be done about Mr. Shala and his employers. Seeing that Mr. Shala was 200kms away from Pretoria, I gave instructions that he be appropriately accommodated for the night.
[23] As I have said, I took these circumstances into account, and made allowance for them when assessing Mr. Shala's demeanour. Indeed, his restlessness had remarkably improved when continued his evidence under cross-examination the next day.
[24] Having found that I could not resolve the case on the basis of demeanour, I had to scrutinise the evidence of each witness, assisted in that case by addresses by the two counsel, which I found very helpful. I should, perhaps, state I did not consider the defendant's counsel in any way responsible or accountable for the manner in which


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Mr. Shala was brought to him for consultation and similarly for having had what appeared to me to have been inadequate instructions from Mr. Shala. I placed the blame squarely on the defendant and its attorneys and I instructed that an extract of my remarks be furnished to the defendant for its attention.
[25] Be that as it may, I had to deal with Mr. Shala's evidence - not his demeanour - as I found it. I found it to contain some major improbabilities. The first of these is the fact that, whilst I accept that Mr. Shala might have been in a position to gain the impression that the plaintiff's bus was approaching at an excessive speed, I find it unlikely that he would have assessed such speed to be as high as 110120kph, on a road that, it was common cause, was gravel. Secondly, I find it improbable that he could have seen the bus driven by the plaintiff when it was more than 500 metres ahead of him, beyond the bend that both buses were approaching from opposite ends, before Mr. Shala's bus reached the bend and to have seen it continuously until the collision took place. Thirdly, I find it improbable that the plaintiff's bus would constantly have been driven on its incorrect side of the road for a distance in excess of 500kms, before reaching the bend, for no obvious reason. Fourthly, I find it unlikely that Mr. Shala would have contented himself with merely reducing the speed of his bus from 80kph to 60kph, and no lower than that, with such an obvious threat to his own safety or even his life. It will be remembered that he said he did not pull or attempt to pull his bus aside to stop and avoid the collision.
[26] The defendant is faced with the problem that the alleged apparent high speed of the plaintiff's bus is inextricably wound up with the plaintiff's alleged failure to drive or return his bus to its correct side of the road. If Mr. Shala did nothing either than reduce speed to the extent indicated, then the following conclusions are unavoidable. Firstly that means that Mr. Shala, on his version, took absolutely no steps to avoid the collision when he probably could have done so. Secondly to the extent that Mr. Shala negotiated the bend at about 60km an hour, I am constrained to


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infer that it is a safe speed, at which to negotiate that bend, especially as Mr. Shala frequently travelled along that road. Moreover, nothing makes it improbable that the plaintiff drove his bus into and around that bend at about 50kph, as he says. If so, such speed would not have constituted any danger to Mr. Shala's bus. That, therefore, eliminates the plaintiff's bus' alleged excessive speed as a possible cause of the collision.
[27] During his address, Mr. Mogagabe argued that, if regard is had to Mrs.
Napo's estimation of the speed at which the plaintiff's bus was traveling as it negotiated the bend - particularly from the time that she first noticed the defendant's bus - I must either find that she lied about the speed of the plaintiff's bus or, as I understood him, that she falsely described an incident she did not observe. I do not find it necessary to repeat Mrs. Napo's estimates of speed, because it was evident that she was trying to attach time to what she regarded to be safe speed on the part of the driver's bus. I am not sure that many people, even drivers, who believe that a motor vehicle is traveling too fast or at a safe slow-speed can, without looking at the speedometer, accurately estimate such speed. This is particularly so when the distance covered by the motor vehicle, before the collision, is short. I am not even mentioning the situation where the witness is merely a passenger and, worse still, has no driving experience. It was, indeed, pointed out in Santam Versekeringsmaatskappy Bpk en 'n Ander v Strydom 1977(4) SA 899 (AD), at 911A-D, that even in the case where a witness to a collision - having been himself or herself traveling in a motor vehicle that was involved in a collision - made a statement about the movement of the vehicle(s) immediately after alighting from the motor vehicle, it would be difficult for him or her to give an accurate estimation of the speed. Consequently, reliance, as was done by Mr. Mogagabe in this case, on motor vehicle speed calculations contained in the book, "Delictual Liability in South Africa," by Cooper, 1996 edition, p492 is often of very little or no avail, in my view.


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[28] If Mrs. Napo lied about her presence and what she saw and did, one question arises. Does that mean that the plaintiff's evidence is also tainted? Even if it is not itself tainted, is it not weakened? It must be said that there are factors that raise question marks about her evidence. These are the fact that she just happens to be available for the plaintiff and comes in handy when, on her version, everybody else simply abandoned the plaintiff when he was clearly in need of assistance. It is, indeed, strange that she remained there alone with the plaintiff when it must have been obvious that she could not extricate him from where he was caught up, in great pain, between the crumpled steering wheel and the driver's seat and leaning wall. It is not her evidence that she released Mr. Magagula, the plaintiff, from that situation. Furthermore, there is no doubt, on her version, that she and the plaintiff were acquaintances, as passenger and driver, of a large number of years. She could understandably be sympathetic towards him.
[29] I find it difficult, however, to deal with these suspicious at any higher level than that of question marks. There is no basis to allow conjecture of this type to lead me to a conclusion that Mrs. Napo perjured herself to the extent of falsely presenting herself at the scene of the collision. Moreover, she was not asked to give details of what she did from the time the plaintiff's bus came into a stand-still until he was rescued, neither was she asked about how and by whom the plaintiff was rescued. Her very clear evidence, given most impressively, that she was in the plaintiff's bus as she had always been in it on numerous other occasions before that day - on her way from work - could not be seriously contested by the defendant. At best for the defendant, she may have coloured her evidence to suit the plaintiff but I think that that can only be conjecture.
[30] Even if Mrs. Napo lied about her presence, that ought not, in my view, to taint the plaintiff's evidence, which stands without any resort to her evidence. It would still be necessary for the court to engage itself in


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the exercise of determining whether the plaintiff's independent evidence has, on a balance of probabilities, to be preferred to Mr. Shala's evidence or otherwise.
[31] Inferences drawn out of the totality of the many factors I have already mentioned above, in this judgment, lead me to the conclusion that Mr. Shala probably drove his bus on its incorrect side of the road and along the plaintiff's bus' correct way of travel and that, by the time that Mr. Shala tried to avoid the collision, it was too late. In the circumstances, I find that the plaintiff has, on a balance of probabilities, established that the collision was caused, solely, by the negligence of the insured bus' driver, Mr. Shala.
[33]
That was, by agreement between the parties, the only issue for determination before me. It follows that the defendant has to bear the costs related to the proceedings before me.
In the circumstances, my judgment is that the defendant is solely liable for the collision between the two buses, on 12 November, 2002, in one of
which buses the plaintiff was a driver, and that the defendant is, consequently, solely liable for damages incurred by the plaintiff as a
result of the collision. The defendant is to pay costs in respect of the
proceedings before me, for determination of liability.
[32]

J N. M. POSWA
         JUDGE OF THE     HIGH COURT
        
        


HEARD ON: 17/02/2005
FOR THE PLAINTIFF: ADV P J COETSEE
INSTRUCTED BY: SHABANGU & BEAUCHAMP ATTORNEYS, PTA FOR THE DEFENDANT: ADV D MOGAGOBE
INSTRUCTED BY: FOURIE STOCKENSTROM & FISMER INC, PTA