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IN THE HIGH COURT OF SOUTH AFRICA

(TRANSVAAL PROVINCIAL DIVISION)

Case No:  17675 / 05

                                                                                    Dates heard:  07 / 02 / 2007

                                                                                    Date of judgment: 08 / 02 / 2007

UNREPORTABLE

In the matter between:

Maria Elizabeth Agenbag                                                                PLAINTIFF

and

Road Accident Fund                                                             DEFENDANT

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JUDGMENT

DU PLESSIS J:

The plaintiff avers that her late husband, AM Agenbag, was injured in a collision with an unidentified motor vehicle and that he died as a result of his injuries.  Contending that the collision was due to th e negligence of the driver of the unknown vehicle, the plaintiff claims damages for loss of support from the defendant.

By agreement between the parties the issues between them were separated and only one issue was proceeded with at this stage, namely whether negligence on the part of the unidentified driver caused or contributed to the collision.

The only evidence regarding this issue is contained in a statement under oath made by one Charles Henry Steenkamp.  During the pre-trial conference, it became common cause that Steenkamp made the statement to a commissioner of oaths.  The parties annexed a true copy of the statement to the minutes of the pre-trial conference.  It also became common cause that, since he had made that statement, Steenkamp had passed away.  While it is not common cause that Mr Agenbag died as a result of injuries sustained in the collision, I did not understand it to be in issue that he had also passed away.

Mr Bezuidenhout for the plaintiff handed Steenkamp’s statement in as evidence.  Mr Pillay for the defendant, as he was instructed to do, objected thereto on the basis that it contained hearsay evidence.  I admitted the evidence for reasons that I shall presently furnish.  After he had handed the statement in, Mr Bezuidenhout, informing me that there is no further evidence available, closed the plaintiff’s case.  Mr Pillay then closed the defendant’s case.  In the result the only evidence before the court is the late Mr Steenkamp’s statement.

The statement reads as follows: 

“Op 2002-04-21 om 00h05 was ek aan diens besig met patrollie dienste op Trichardt-Kinross pad. Ongeveer 500 meter uit Trichardt het ek ʼn blanke man met die name Mnr. Agenbag aangetref wat beseer was. Ek het die persoon gevra wat gebeur het waarop hy gesê het hy was besig om te ryloop. ʼn Vragmotor het hom genader en het spoed verminder, waarop hy in die pad ingeloop het, en gedink het die vragmotor gaan hom oplaai. Die vragmotor het egter nie gestop nie, en die sleepwa se agterwiele het hom geraak en in die veld ingeslinger.

Sy bene was beseer gewees, ek het die nooddienste gekontak wat hom vervoer het na die hospitaal. Ek kan egter nie verklaar wie die ambulans bestuurder was nie.

Die vragmotor het ook nie gestop nie en kan nie opgespoor word nie. Die persoon kan ook nie verklaar hoe lank hy in die veld gelê het nie.”

            The relevance of Steenkamp’s statement is that it goes to prove what the deceased had told him about the collision.  What the deceased had told Steenkamp is clearly hearsay evidence and would have been such even if Steenkamp himself gave evidence.  The court would, however, have had a discretion to admit Steenkamp’s oral evidence as to what the deceased had told him  (See section 3(1)(c) of the Law of Evidence Amendment Act, 45 of 1988).  During the trial I ruled, for reasons that I shall give, that the hearsay evidence contained in the statement is admissible.  I must now consider whether Steenkamp’s statement itself (as opposed to the hearsay content thereof) is admissible.

            Section 34(1) of the Civil Proceedings Evidence Act. 25 of 1965 provides as follows:

“In any civil proceedings where direct oral evidence of a fact would be admissible, any statement made by a person in a document and tending to establish that fact shall on production of the original document be admissible as evidence of that fact, provided—

            (a)        the person who made the statement either—

            (i)         had personal knowledge of the matters dealt with in the statement; ...

(ii) ...   

..., and

1. the person who made the statement is called as a witness in the proceedings unless he is dead ...”

This being “civil proceedings”, the first question is whether “direct oral evidence” by Steenkamp of what the deceased had told him would have been admissible.  In view of my ruling that evidence as to what the deceased had told Steenkamp is admissible under section 3(1)(c) referred to above, Steenkamp’s oral evidence would have been admissible.  There is no doubt that Steenkamp had direct personal knowledge of what the deceased had told him, albeit that Steenkamp did not have personal knowledge of what had happened regarding the collision.  As it is common cause that Steenkamp had passed away, his statement was admissible under the provisions of section 34(1) that I have quoted.  Steenkamp also mentioned certain facts in the statement that he had observed.  Those facts are also part of the evidence in terms of section 34(1).

Steenkamp’s statement being the only evidence before the court, it proves that, at 00h05 on 21 April 2002, Steenkamp found the deceased next to the Trichardt-Kinross road, about 500 meters from Trichardt.  He asked the deceased what had happened and the deceased told him.  The legs of the deceased were injured.  The deceased told Steenkamp that an unknown truck had collided with him, and Steenkamp could not trace the truck.

As to what the deceased had told Steenkamp, regard must be had to the provisions of section 3(1)(c) of the Law of Evidence Amendment Act that provides as follows:

“Subject to the provisions of any other law, hearsay evidence shall not be admitted as evidence at criminal or civil proceedings, unless the court, ... (c) having regard to—

            (i)         the nature of the proceedings;

            (ii)        the nature of the evidence;

            (iii)       the purpose for which the evidence is tendered;

            (iv)       the probative value of the evidence;

            (v)        the reason why the evidence is not given by the person upon whose credibility the probative value of such evidence depends;

(vi)       any prejudice to a party which the admission of such evidence might entail; and

(vii)      any other factor which should in the opinion of the court be taken into account,

is of the opinion that such evidence should be admitted in the interests of justice.”

            The factors mentioned in section 3(1)(c) must all be taken into account when deciding whether or not to admit hearsay evidence.  Although the evidence was tendered to prove the plaintiff’s case as to the central issue of the matter, one must bear in mind that Steenkamp, who by way of his statement gave the evidence, is an outsider who learnt the facts in his capacity as an on duty policeman.  There is no reason to doubt his objectivity.  Had there been further evidence, one would have had to judge the probative value of the deceased’s statement to Steenkamp in the light thereof.  The very absence of further evidence tends to show that the defendant was unable to find any contradictory evidence.  That tends to increase the probative value of the evidence.  No facts were put before the court to show any prejudice that the admission of the evidence would cause the defendant.  It must therefore be accepted that the defendant had ample time to consider the evidence and find evidence to the contrary.  It is self-evident why the person on whose credibility the probative value of the evidence depends did not testify.  There is no evidence to show any reason why the deceased would have lied to Steenkamp.

            The deceased’s statement proves, again having regard to the absence of contradictory evidence, that he was run over by an unidentified vehicle.  The deceased could see that it was a truck approaching him and moved into the road.  While one may accept that a pedestrian on the road is more difficult to see, especially at night, than an oncoming truck, the driver of the truck must have been able to see the deceased at some stage before passing him.  The fact that the driver reduced speed is indicative thereof.  There is nothing to indicate that the driver did anything to avoid the deceased.  For instance, the defendant tendered no evidence as to the scene of the collision itself or as to any marks that might indicate evasive action on the part of the driver.  In the absence of any other evidence, the evidence before the court proves at least some degree, slight as it may be, of contributory negligence on the part of the insured driver.

In the result the following order is made:

1. It is declared that negligence on the part of the unidentified insured driver contributed to the collision and the deceased’s resultant injuries.

2. The defendant is ordered to pay the costs of the trial.

                                               

B. R. DU PLESSIS

Judge of the High Court

ON BEHALF OF THE APPLICANT:

ATTORNEY:                                                   COUNSEL:

SAVAGE JOOSTE & ADAMS Adv. F. Bezuidenhout

Ref: Mt Hayes / RP 450

ON BEHALF OF THE RESPONDENT:

ATTORNEY:                                                   COUNSEL:

MAPONYA INC Adv. T. Pillay

Tel: 012 942 0523

Ref: M Maganbhai-Mooloo / dg / MM0098

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