IN THE HIGH COURT OF SOUTH AFRICA
                    GAUTENG LOCAL DIVISION, JOHANNESBURG

Delete whichever is not applicable  
(1)	  Reportable     Yes / No
(2)	  Of interest to other Judges  Yes / No
(3)	  Revised.

Date:  27th  May 2016               ________________________             _______________________________               

Signature…………..

                                                                      

                                                                                

                     							CASE NO: 41989/ 2012

In the matter between:-

MBHEKISENI BUTHELEZI                                                     Plaintiff          

And

ROAD ACCIDENT FUND                                                 Defendant

                                       J U D G M E N T 

Ismail J:

[1]	The plaintiff instituted an action against the defendant for damages 
for bodily injuries which he sustained in a motor vehicle accident on the 
17 December 2013. 

[2]	The accident occurred at the intersection of Wolmarans and Claim 
streets in Joubert Park, Johannesburg, between a vehicle driven by the 
plaintiff and an alleged unknown vehicle driven by an unknown person. 
 
[3]	The plaintiff alleges that the accident was a rear end collision and 
that the insured driver was the sole cause of the accident. 

Issues to be determined:

[4]	The following issues were to be determined by the court:
(1)	the question of liability, whether the insured driver was the cause 
         of the collision;
(2)	past loss of earnings
(3)	future loss of earnings
(4)	the issue of  general damages (serious injury claim) was only 
         rejected on the 13 May 2016 

[5]	According to the particulars of claim the plaintiff sustained a  
“ fracture of the right tibial plateau” 

[6]	The plaintiff testified. In brief his evidence was that he was 
travelling along Claim street from Hillbrow in the direction of the city 
centre. At the intersection with Wolmarans street the traffic light was red 
for him. He stopped at the intersection. He was on the extreme right lane 
as he intended to turn into Wolmarans street. As he waited for the traffic 
lights to change, he heard a bang into his mini bus causing him to move 
across the intersection and collide with a pole. He stopped near a tree. 
He was trapped in the vehicle and he was assisted and taken out of the 
vehicle by onlookers. He was thereafter transported by ambulance to 
hospital. He was an in- patient at the hospital until his discharge on the 
30 December 2013, a period of seventeen days.   

[7]	During cross examination he was confronted with several versions 
he gave to various people. He testified in court that the vehicle came to 
a stand still without mentioning that it collided with the pole which 
hoisted the traffic light. He was also confronted with a version which he 
apparently gave to the policeman who noted the details of the accident 
report where he is alleged to have said:
“ the driver of m/vehicle A alleges that he was driving along Claim cnr 
Wolmarans (sic) Whilst waiting for the robot an unknown black male driving a taxi 
bumped his car from  behind and it never stops (sic) the driver of m/vehicle  A 
sustained injuries on his right leg and he was admitted to hospital from 2013-12-17 
until 2013-12-30”

Counsel for the defendant questioned him about this report and 
particularly in regard to the vehicle which collided into his vehicle, which 
he described as a taxi. When he testified under oath he stated that he 
could not identify the vehicle and he had no idea whether the vehicle 
was a sedan, truck, bus or taxi.  Mr Buthelezi in response to the 
statement which was noted on the accident report , responded that he 
did not tell the policeman that it was a taxi or that the driver was a black 
man. 

[8]	He was confronted about what he allegedly said to the 
Occupational Therapist, David Stone, in his report at page 6 (exhibit 
D33), namely that:
“He had a collision with a taxi that was driving out of its lane” 
He was asked to comment on what was noted by occupational therapist  
to which he responded that it was not correct. 

[9]	Regarding his earnings he stated that he earned between R800 
and R900 per week prior to the accident. Since the accident he earned 
between R500 to R600 per week. He also stated that he could not drive 
for lengthy period of time as he experienced pain on his knee. 

[10]	The plaintiff thereafter called Mr Freeman Ntshaba to testify. He 
stated that he is the plaintiff’s current employer. He inherited the taxi 
business from his father, upon the latter’s death. The plaintiff is in his 
employ and he currently earns R500 to R600 per week. He retained the 
plaintiff as a driver after the accident, however he gave him an easier or 
less demanding route, in order for him to cope.  

[11]	A joint minute by Dr Gama and Dr Sugreen was handed in as 
Exhibit F. In the joint minute the industrial psychologist at para 2.6 of the 
report  agreed that the retirement age of drivers in the taxi industry was 
60- 65 years. Dr Gama testified to the effect that as an injured person, 
due to the sequelae, the plaintiff was disadvantaged in the open labour
market ,to a lesser or greater extent in respect of:
•	Competitiveness with uninjured counterparts;
•	efficiency, effectiveness and productivity due to physical constraints
•	retirement age
•	work attendance
•	long distance driving. 

The abovementioned view expressed by Dr Gama was subsequently 
endorsed by Dr Sugreen when she gave evidence. 

Application for absolution from the instance at the end of plaintiff’s case

[12]	Mr Kajee, acting for the defendant, applied at the end of the 
plaintiff’s case for an order for absolution from the instance. I gave brief 
reasons for refusing the application and i undertook to provide reasons
for so doing in the judgment. I propose to do so hereunder.

[13]	The application was predicated on the basis of the unreliability of 
the plaintiff’s version as referred to in para’s [7] and [8] supra, coupled 
with the fact that there was no independent evidence, of a physical or 
oral type, of a collision apart from the say so of the plaintiff. The fact that 
the plaintiff gave several versions did not assist his cause or claim.

[14]	In short it was submitted that no reasonable court acting prudently 
would find for the plaintiff on the evidence presented as a prima facie 
case was not made out. In this regard reliance was placed on the locus 
classicus of Gascoyne v Paul and Hunter 1917 TPD 170 at 173 and De 
Klerk v Absa Bank Ltd 2003 (4) SA 315 (SCA) at par [10] where Brand 
JA stated:
“ This implies that a plaintiff has to make out a prima facie case- in the sense 
that there is evidence relating to all the elements of the claim......... Such 
formulation tends to cloud the issue. The Court ought not to be concerned
with what someone else might think; it should rather be concerned with its 
own judgment and not that of another ‘reasonable’ person or court...”

[15]	The reason I refused the granting of the application for absolution 
was that the thrust of the application was premised on the issue of 
credibility, and I would have had to make a finding on Mr Buthelezi’s 
evidence exclusively. Apart from that the notion of a prima facie case is 
a less burdensome hurdle to overcome as opposed to proof on a 
balance of probabilities.

[16]	The defendant thereafter called Dr Sugreen to testify and in the
main her evidence related to the joint minute alluded to earlier and her 
report exhibit E. Her evidence essentially related to the issue of quantum 
and had very little if any connotation regarding the issue of liability 
and/or negligence.

Legal issues

[17]	For the plaintiff to succeed in obtaining damages he would have 
to establish that the insured driver caused the collision or that the 
accident was attributable to the negligent driving of the insured driver. It 
is trite that if the plaintiff fails to establish negligence on the part of the 
‘offending’ driver  the defendant cannot be held liable for any damages.

Res ipsa loquitor

[18]	The gravamen of the dispute between the parties centred around 
what the plaintiff considered to be the raison d’ etre of its claim, namely 
the maxim res ipsa loquitor.  Counsel for the plaintiff submitted that 
because the allegations are that the plaintiffs vehicle was propelled 
across the intersection, referred to above, whilst it had stopped, the only 
inference was that it had been collided into from behind. This is 
premised merely on the say so of the plaintiff who under oath before me 
testified that he did not see the other vehicle and was merely told that 
there was another vehicle by others.

[19]	The problem with the plaintiff’s evidence is that it is firstly of a
hearsay nature and secondly no one came to court to testify that another 
vehicle collided into the rear of the plaintiff’s vehicle which ‘drove off’ 
without stopping.

[20]	To put it differently there is no factual basis for the belief that a rear 
end collision took place. At the very least there should be some 
evidence thereof before the maxim comes into play or before the court 
can make any inferences. To simply make inferences without a scintilla 
of any facts is to make inferences in the air.
In this regard the authors Hoffmann and Zeffert – The South African Law 
of Evidence 4 th Edition at p. 591 deal with the question of inferences.
Selke J in Govan v Skidmore that the selected inference must “ by the 
balancing of probabilities be the more natural, or plausible conclusion from 
among several conceivable ones...” This has been approved by the Appellate
Division in the AA Onderlinge case and in the Accident Gauranteed 
Corporation Ltd v Koch where Holmes J A remarked that “plausible”, in this 
context, means ‘acceptable, credible, suitable” 

[21]	Lord Wright in Caswell v Powell Duffryn Associated Collieries Ltd 
1939 [3] All ER 722 at 733 remarked:
“ Inference must be carefully distinguished from conjecture or speculation. 
There can be no inference unless there are objective facts from which to infer 
other facts which it is sought to establish... But if there are no positive proved 
facts from which the inference can be made, the method opf inference fails 
and what is left is mere speculation or conjecture.” 
See also: S v Naik 1969 (2) SA 231 (N) at 242 C-D, Joel Melamed & 
Hurwitz v Cleveland Estates 1984 (3) SA 155 (A) at 164G- 165C and 
Rees and Others v Harris and Others 2012(1) SA 583 9GSJ) at par [32]. 

[22]	Had the evidence of the plaintiff been that he saw this vehicle 
approaching from behind in his rear view mirror and he anticipated the 
accident, that would have been evidence. To reason as follows, 
allegations of rear end collision ergo res ipso loquitor and hence 
negligence is in my view a non sequitor in the absence of factual 
evidence supporting a rear end collision. The term res ipsa loquitor 
which means “the facts speak for themselves” – would obviously apply if 
there was evidence that a vehicle had collided into the plaintiff’s vehicle 
from behind.  

[23]	All that the court has before it is inadmissible hearsay evidence of 
what the plaintiff was told by others regarding what happened. Plaintiff’s 
counsel did not submit that it was an exception in terms of section 3 of 
Law of Evidence  Amendment Act 45 of 1988.- See: S v Ndhlovu and 
Others 2002 (2) SACR 325 at 333 i- 334d 

[24]	Miss Docrat, acting for the plaintiff, relied on the judgment of 
Macloed v Rens1997 (3) SA 1039 ECD, where the defendant’s 
negligence was decided upon solely by circumstantial evidence, in the 
absence of direct evidence. At 1048 C-E the court held that it could have 
regard only to reasonable possibilities. Inferences had to be carefully 
distinguished from conjecture or speculation. There could be no 
inference unless there were objective facts from which to infer the other 
facts which it sought to establish. 

[25]	There is no objective fact in this matter apart from the hearsay
evidence of the plaintiff. There is no photograph depicting the damage to 
the rear of the plaintiff’s taxi, the police were not called to the scene 
shortly after the accident. Had they been called to testify they could have 
testified about the debris caused by the collision. No witness gave 
evidence of the collision or in fact, the damage to the plaintiff’s vehicle .

[26]	Ponnan JA in Goliath v MEC for Health, Eastern Cape 2015 (2) SA
97 (SCA) at par [10] stated:
“ Broadly stated, res ipsa loquitor (the thing speaks for itself) is a convenient 
Latin phrase used to describe the proof of facts which are sufficient to support 
an inference that the defendant was negligent and thereby to establish a prima 
facie case against him. The maxim is no magic formula...... ‘ the expression
need not be magnified into a legal rule: it simply has its place in that scheme
of and search for causation upon which the mind sets itself working’.. “ 

See also: Goodenough N O v Road Accident Fund (case Number 
441/2002 of the Supreme Court of Appeal delivered on 15 September 
2003- judgment of Brand JA- Harms JA and Motata AJA concurring, at 
paras [5] and [11].

[27]	On the facts as presented to me the defendant submitted that the 
plaintiff had not discharged the onus of establishing a rear end collision 
and therefore its claim ought to be dismissed with costs. The plaintiff on 
the other hand argued to the contrary. 

[28]	I am of the view that the only ‘evidence’ before me is that of the 
plaintiff, Mr Bulthelezi. His evidence was primarily of a hearsay nature 
regarding the collision.  Coupled to that, he recounted several versions 
to different people regarding the manner in which the accident occurred. 
I my view it cannot be said by any stretch of the imagination that his
evidence was satisfactory. In court his evidence was that he did not see 
the vehicle. Notwithstanding that, the court is requested to infer a rear 
end collision on the maxim, without any factual evidence in support 
thereof.

[29]	I have two routes available to me if I am of the view that the 
plaintiff failed to discharge the onus. I could dismiss the claim with costs 
alternatively I could grant absolution from the instance at the end of the 
defendants case.

[30]	The defendant’s counsel sought an order that the claim should be 
dismissed. I am inclined to agree with the view expressed by 
defendant’s counsel. Accordingly I make the following order:
“  The plaintiff’s claim is dismissed with costs. Such costs to be taxed on a 
party and party scale..”
                                                           
                                                                    ____________________
                                                                             I s m a i l   J

APPEARANCES:

For the plaintiff:           Adv Dockrat instructed by S S Ntshangase 
                                    Attorneys Marble Towers, Johannesburg 
                                
For the Defendant :    Adv  C Kajee instructed by Mayat, Nurick Langa 
                                    Inc, Parktown North Johannesburg.  

Date of hearing :         17- 19 May 2016

Date of Judgment:      27 May 2016.