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IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

DATE: 28/3/2017

CASE NO: 16198/2015

REPORTABLE: NO

OF INTEREST TO OTHER JUDGES: NO

In the matter between:-

R AGNELLI                                                                                                               Plaintiff

And

THE ROAD ACCIDENT FUND                                                                             Defendant

JUDGMENT

NKOSI AJ

INTRODUCTION

[1] This  is  an   action  for  damages  in  respect  of  loss  of  support  instituted  by  the  first  and second  plaintiffs  against  the  Road  Accident  Fund.  The  first  plaintiff  is  the  biological mother  to  the  2^nd plaintiff.

[2] It is common cause that  on the 27 June 2014 at  approximately  07:30 and   at  Marievale a collision occurred between a motor vehicle with registration number  [F...]  driven by IB Mbonani ("the insured driver") and  motor vehicle  with registration  [S...] driven by Fermo Luigi Agnelli ("the deceased")    .

[3] The parties agreed to the separation of the issue of liability and quantum. The matter proceeded to trial only on issue of liability. The parties  further agreed  that the only issue   to  be  determined  and  decided  upon  by  the  court  is that  of  negligence.  In doing  so, the  court has to make a ruling on  the  admissibility of hearsay  evidence.

[4] I should also mention that the other technical evidence relating to locus standi, jurisdiction and compliance with requirements of the Road Accident fund Act and Regulations was dealt with by the parties during their first and subsequent pre trials and admitted by the defendant. I must also add that the deceased was the 1^st plaintiff's husband and the natural father to the second plaintiff.

[5] The first and second plaintiffs testified and were both cross examined. No witnesses were called and the plaintiff's case was closed. There was no witness called to testify on behalf of the defendant and the defendant elected to close   its case.

FIRST PLAINTIFF'S EVIDENCE

[6] The fist plaintiff testified that she was married to the deceased for 34 years and knew her husband very well. On the day of the motor vehicle collision in question, the deceased left home in the morning driving a VW Polo motor vehicle which he was driving to springs for service.

[7] Approximately 20 minutes later, her husband called her in her cellphone. She could not answer  the  call  because  she  was in  the  bathroom  .The second  plaintiff answered shortly thereafter she established that it was her husband who called she returned the call but a stranger answered her husband's cellphone and informed her that her husband was involved in a car accident. She rushed to the scene accompanied by the second plaintiff.

[8] Upon arrival at the scene, she saw her husband sitting inside an unknown car and he was bleeding from a head injury. She asked him what happened . He told her that he was travelling and the other car swerved into his side and crashed into his car. The second plaintiff was with her when her husband told her what happened.

[9] During cross examination, she admitted that she never made a written statement to the police and that she was not presnt when the  collision  took  place.  She further conceded that she has no knowledge of the contents of paragraph s 4.1 to 4.5 of her particulars  of claim.

SECOND PLAINTIFFS EVIDENCE

[10] He answered the first plaintiff's cellphone on the day  of the  collision and  it was his father on the phone. He was busy swearing angrily at someone and the line went dead. He immediately knew that there was something wrong because he knew his dad.

[11] When he and the first plaintiff arrived at the scene, he saw his father sitting in a car unknown to him he had a head injury and was bleeding. His father told the first plaintiff that the other car encroached into his lane and collided with his car. He took photos of both vehicles using his cellphone. The photos are on page 61 to 63 of the Bundle entitled "INHOUDPGAWE: MARIETE". On page 61, the top left photo depics the insured motor vehicle stationery outside the road with damage to the right side and     towards the front on the driver's side. The other photo at the top right depics the deceased's motor vehicle with damage on the driver's side at the right side of the car.

[12] He conceded during the cross examination that he cannot tell how the collision occurred.

DEFENCE CASE

[13] There was no witnessed called to testify on behalf of the defendant. The defended opted to close its case without leading evidence.

[14] It was submitted by counsel for the defendant that the plaintiffs action should fail on  the basis that

1.   Plaintiff's have failed to prove that the insured driver was negligent. The first plaintiff conceded that she has no knowledge of paragraphs 4.1 to 4.5 of her particulars of claim.

2.   Plaintiff's action depends solely on hearsay evidence in order to prove negligence on the part of the insured driver. Such hearsay is inadmissible.

These submissions formed the thrust of  the defendant's  defence.

[15] I will first deal with the defendant's first submission, the alleged failure by the plaintiff to prove negligence as alleged in paragraphs 41 to 4.5 of plaintiff's particulars of claim which provide that :

4.1           "Hy teen 'n hoer spoed gery het as wot die omstandighede toegelaat  het,

4.2           Hy versuim het om 'n behoorlike uitkyk te  hou:

4.3          Hy versuim het om die voertuig behoorlike te  beheer;

4.4          Hy versuim het om die ongeluk te vermy deur die uitoefening van redelike sag;

4.5          Hy versuim het om die kotroles en ander hulpmiddels van sy voertuig op so 'n wyse aan te wend dot dit veilig was vir ander padgebruikers.

[16] The first plaintiff is the only witness who testified about paragraphs 4.1 to 4.5 she was asked during cross examination what she meant by each of the aforesaid paragraphs.  Her reply prompted the defendant to conclude that  the  plaintiff  failed  to  prove negligence.

[17] She instituted this action believing that the insured  driver  was  negligent  because  of what the deceased told her. According to her, the deceased's  words  were "the  other driver swerved into my side and  crashed into my car". Should this be  proven to be  true,   it would support paragraphs 4.1, 4.2 and  4.3 of the particulars of   claim.

[18] It was argued by the defendant that what was  said by  the  deceased  ought  to  have been expressly pleaded in the particulars of claim. I do  not  agree,  the  particular  of  claim as it stands is not excipieable because it contains the necessary  averments  to sustain the cause of action. In Mc  Kenzie v Farmers Co - operative Meat Industries  Ltd.

Adopting the definition of "cause of action "the count held   that

"every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his  right  to judgement of  the  court. It does not  comprise  every  piece of evidence which is necessary to prove each fact,  but  every fact which is necessary to be  proved [1]"

[19] "Care must be taken in any given case to distinguish the facts which probantia must be proven in order to disclose a cause of action  (the facto  probanda)  from  the  facts which prove them (the facto probantia ) [2]. What is alleged in the paragraphs 4.1 to 4.5 of  the  particulars  of  claim constitute facto  probanda. These paragraphs  relate to the issue of negligence which must be alleged for the particulars of claim not to be excipieable. On the other hand what was said by the deceased regarding how the collision occurred, constitutes facto probantia. It is that piece of evidence necessary to prove that the insured driver failed to keep a proper lookout (para 4.2), failed to keep his vehicle under proper control (4.3) and he failed to avoid the collision  when  by exercise of reasonable care and skill he ought to have done so (4.4) . The fact that the facto pro bantia was not expressly pleaded in the particulars of claim may not and in this case does not render the particulars of claim excipieable. Such evidence is admissible if it is relevant and material.

[20] The question whether the plaintiff has succeeded in proving negligence on the part of the insured driver depends on whether what the deceased said to the first plaintiff is admissible or not .

[21] It is not disputed that the deceased told the first plaintiff  that the insured driver swerved  into his side and crashed into his car. The fact that the deceased  spoke  to  the  first  plaintiff and what he said is not hearsay;  however  what  the  deceased  said is hearsay when the first plaintiff repeats it in court. It is therefore the admissibility of this hearsay evidence  which  is placed in  dispute.

[22] Section 3[3]  of  Act  45 of  19883  provides  that

3.       Hearsay evidence

(1)     Subject to the prov1s1ons of any law   ,hearsay  evidence  shall  not   be admitted as evidence at criminal or   civil proceedings, unless-

a.      each party against whom the evidence is to be adduced agrees to the admission thereof as evidence at such proceedings:

b.     the person upon whose credibility the probative value of such evidence depends, himself testifies at such proceedings:

c.     the court 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.

Section 3 (1) (c) is relevant to the circumstances of  this case. In Makhathini v Road  Accident Fund [4] the  court cautioned that  the factors referred to in section 3(1)  (c)  (i)  to  (vi) should not  be  considered in isolation because  they  are  interrelated  and  overlap

[23] I now   turn to deal with the provision of section 3 (l)  (c)  (i)  to (vii)

23. 1       The action pertains to a claim against  the  road accident  fund  for loss of support. The Road Accident Fund is  a  statutory  body established with the purpose  to  compensate  the  victims  of  motor  vehicle accidents.

23.2        The deceased gave  an explanation  to  his wife  in the  presence  of  his son of what happened  or  put  otherwise,  how  the  accident  occurred,  at  the  scene  and shortly after the collision.  There is  no  evidence  on record  to  contradict  what the deceased said. There is further no evidence on record to suggest that the deceased had an ulterior motive and lied purely  to  sustain  a  claim  against  the Road  Accident  Fund. If  the  deceased  was  alive  and  gave  the  same  explanation in court , his evidence would have been admissible and would certainly prove the alleged acts of negligence  on  the  part  of  the  insured  driver  as  stated  in paragraph 4.2 to  4.4 of particulars  of claim.

23.3        I agree with Adv Venter that the probative  value of the evidence in casu is of a high value. The fact that the deceased spoke to the first  plaintiff  in presence of the second plaintiff at the scene, makes it probable that the deceased may have told them how the accident occurred. Both  plaintiff's evidence was criticised on the ground that they have a vested interest in the case and would therefore protect their interest at all costs. I do not agree, the plaintiff's were impressive on the witness stand. Their evidence was clear and logical, it was not exaggerated. Of significant note is the fact that the second plaintiff testified that when he heard his father swear on the phone  he immediately  knew that there was something wrong. The most reasonable inference to be drawn is that there was a sound father and son relationship to an extent that the son knew his father temperament, nature and behaviour. Further, of significant note is the fact that the first plaintiff was married  to  the  deceased  for  34 years.  In her  testimony she said  "I knew my husband  "She is therefore  in a  better space  to confirm  whether  the  deceased  lied when he told  her  how  the  accident  happened. There   is no  evidence  on record to suggest  that he lied.

23.4        The purpose of the hearsay evidence is clearly to establish negligence on the part of the insured driver and consequently to hold the defendant liable to compensate the plaintiff. If it is held to be admissible, it would have to be considered in light of the alleged negligence as stated on the particulars of claim. The second plaintiff took photos of the vehicles at the scene. He conceded, and correctly so, that he cannot testify about how the accident happened.  The plaintiffs did not appoint an accident reconstruction  expert  who  could  have found the photos helpful for his postulations. The hearsay evidence is the only source of proving negligence.

23.5        I am not persuaded that the defendant will be prejudiced if the hearsay is admitted into evidence. To the contrary, it will be in the interest of justice to admit such evidence. The defendant failed to call any witnesses to testify. This matter was before court for trial on a previous occasion. It was postponed at the request and instance of the Defendant because the insured driver was not in attendance. Subsequently and during a further Pre-Trial Conference, the defendant indicated that it would be leading the evidence of the insured driver and the Accident Reconstruction Expert. During this trial, they were both absent and no reasonable explanation   was   given.  The  defendant is   a  statutory  body  established to compensate motor vehicle accident victims. It, therefore, has a duty to investigate each claim submitted to it. It must further ensure the attendance of its witnesses in court. Failure to do so militates against the very object of the Road Accident Fund Act and is undesirable. In casu the defendant has nothing on record to challenge Plaintiff's evidence. In this case, any prejudice claimed by the defendant is self manufactured. If the defendant's witnesses were in  court  they  would  probably have given evidence either resisting plaintiff's claim and in particular, such  evidence to demonstrate that the deceased was not telling the truth or evidence corroborating  the hearsay evidence.

In Road Accident Fund v Klisiewitz, Hewe.JA had  this to say at para 42; [5]

"A special cost order is therefore not only appropriate  but necessary. The Fund exists to administer, in the interest  of  the road accident victims, the Fund it collects  from the public. It has the  duty  to  effect  that  administration  with  integrity  and efficiency. This entails the thorough investigation of claims and, where litigation is responsibly contestable, the adoption of reasonable and timeous steps  in  advancing  its defence. These  are  not  exacting requirements. They must be  observed

In Madzunye and Another v Road Accident Fund [6]M aya JA stated that,

" ......the respondent, which relies on the public purse for its existence and does not, therefore, have unlimited financial resources, conducted itself"

In a manner which cannot  be reconciled  with  the  requirements set out in the  Klisiewitz case. This is particularly  so having regard to the fact that the intention of the act, in terms of which the respondent functions, is  to  give  the  greatest  possible  protection to victims of  negligent  driving of  motor vehicles.

[24] The Defendants repeated failure to call its witness whose evidence would  have  been  material constitutes a compelling justification for drawing a negative inference. Firstly, the insured driver is the one who was involved in the  motor vehicle  with  the  deceased.  He would have been very helpful to the court and the parties. Secondly, the Accident Reconstruction Expert would have at least formulated an expert  opinion  of  how  the  accident happened. Their failure to testify  leads  me  to  draw  a  negative  inference,  that both defendants' witnesses must have known that there  is  no  defence  to  the  plaintiff's claim.

[25] I have already expressed my view on the reliability of evidence of both plaintiffs. Their evidence is reliable truthful and as already said, impressive.  They  both  conceded  that they did not know how the accident  happened.  They  had  not  exaggerated  in  an attempt to convince the court. They allowed  the  fate  of  their  claim  against  the defendant to be decided  only  on  hearsay. They  were prepared  to take  that risk. They  did not  contradict  themselves  on  any material evidence. They were both consistent.

[26] In S v Ramavhele, Schultz  JA said:

"A judge should hesitate long in admitting  or  relying  on hearsay evidence or even significant part in convicting an accused  unless there is compelling  justifications for doing so".

I am persuaded that the hearsay statement qualifies in terms of section 3 (1) (c) of the Law of Evidence  Amendment  Act to be  admitted into evidence. This evidence   as

I have mentioned before has the effect of proving allegations contained  in paragraphs 4.2 to 4.4 of the particulars of claim. I therefore find that on the balance of probabilities the plaintiffs have discharged the onus of proving negligence on the part of the insured driver and consequently succeed in proving the merits in their favour.

[27] I have been furnished with the draft order prepared by the plaintiffs and I have perused it. I make the following order.

1.  . The defendant  is liable to pay  100% of the first and  second   plaintiffs  proven  or agreed damages

2.  The draft order is made and order of   court.

______________________

N NKOSI

ACTING JUDGE OF THE GAUT NG DIVISION, PRETORIA

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