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IN THE HIGH COURT OF SOUTH AFRICA

LIMPOPO LOCAL DIVISION: THOHOYANDOU

CASE NO: 501/2012

Not reportable

Not of interest to other judges

20/7/2017

BEFORE THE HONOURABLE MR JUSTICE AML PHATUDI

In the matter between of:

NEKOKWANE NDISHAVHELAFHI THOMAS                                                          Plaintiff

And

ROAD ACCIDENT FUND                                                                                     Defendant

JUDGMENT

AML PHATUDI ADJP

[1] The Plaintiff instituted this action against the Road Accident Fund (RAF).[1] He claims damages allegedly occasioned by the injuries he sustained when the front loading bucket of a TLB construction machine fell on his legs. The alleged incident/accident took place on 3 June 2014 approximately around 11h00 and at or near Tshavhalovhedzi village, Limpopo Province.  At the commencement of the trial, I separated the determination of liability from quantification of the claim in terms of the provisions Rule 33 (4) of the Uniform Rules of this Court. The issue of quantum would be postponed depending on the outcome on the determination of liability.

FACTUAL BACKGROUND

[2] I find it prudent to first set out how the parties pleaded in making their cases.  The Plaintiff pleaded in his particulars of claim that:

“…an accident occurred when a TLB with registration letters and numbers presently unknown to the plaintiff, then and there driven by Mr Maboho hereinafter called “the insured driver” its loading basket fell in to the foot of the plaintiff who was a pedestrian at the time of accident”[2]

[3] The defendant pleaded thereto as follows:

“The defendant bears no knowledge of the contents herein contained, accordingly denies same and Plaintiff is put to the proof thereof.  The defendant further specifically denies that the injuries sustained by the plaintiff, if any, was due to and arising from the driving of a motor vehicle, as per the ambit of section 17 (1) of the Act”[3]

[4] The plaintiff a self-employed motor mechanic, a 48 year old man who resided at Dzanani, Limpopo, took a stand.  He testified that he, on the 3 June 2014, reported for his normal work at his yard.  One Luwane Maboho drove the TLB out of the yard.  He (Maboho) parked it outside the yard.  Maboho checked the TLB and left it stationed.  The plaintiff went outside the yard and stood in front of the TLB. While standing there, he was surprised when the front bucket of the TLB knocks his legs.  His legs got stuck underneath the TLB’s front loading bucket. He screamed for help.  Maboho came, went in the TLB’s cabin, started the engine and uplifted the front loading bucket.  He was then taken to the hospital.

[5]   It further transpired during his testimony that at the time the front loading bucket fell on his legs, the TLB was stationary and the engine was off.  He testified that he discovered after he came back from hospital that the TLB was left with its ignition being on.  He indicated that the TLB’s hydraulic is operational only when the ignition is at ‘on’.  The front loading bucket is operated by hydraulic and independent from the motor vehicle’s normal engine.  He, in his exam in chief emphatically confirmed that hydraulic is only operating when the ignition is on, this is how it unfolded.

“Ravele: so if it is “off” can there be any movement to the hydraulic that could also affect the basket to move

Nekokwane: No, M’Lord”

[6] He further in examination in chief testified that he deposed to an affidavit drawn as required in terms of section 19 (f) of the Act.[4] Paragraphs 2 and 3 thereof were read on record. For convenience, the paragraphs read:

“2. On 3 June 2014 at approximately ± 11h00, I was at my workshop at or near Tshavhalovhedzi.  There was a TLB which was parked outside of the workshop yard. The TLB was left outside of the workshop for repair purpose by the operator Mr Maboho the previous day on the 02 June as [we][5] drove from Tshirolwe to the workshop.

3. I went to look the said TLB and I stood next to it on its rear front.  The loading basket [fall] (sic) down and crashed both legs”.[6]

[7] The plaintiff confirmed during cross examination that:

[7.1]  At the time of the incident/accident that the engine of the TLB was off;

[7.2]  There was no one inside the cabin of TLB at the time of the accident and there was no one driving;

[7.3]  The TLB was not moving, it was standing totally still at one place (stationary).

[7.4]  No one interfered with the TLB or any of the buttons inside the cabin at the time he stood in front of the TLB.

LAW

[8] It is trite law that the RAF is obliged to compensate any person for any loss or damage which such person has suffered as a result of any bodily injury to him/her-self, caused by or arising from the driving of a motor vehicle[7]. It is equally trite that the motor vehicle that causes the bodily injury to a third person must be a motor vehicle capable of been propelled by any mechanical, animal or human power or by gravity as provided in terms of the provisions of section 20. For ease of reference, section 20 provides:

(1)  For the purposes of this Act a motor vehicle which is being propelled by any mechanical, animal or human power or by gravity or momentum shall be deemed to be driven by the person in control of the vehicle.

(2)  For the purposes of this Act a person who has placed or left a motor vehicle at any place shall be deemed to be driving that motor vehicle while it moves from that place as a result of gravity, or while it is stationary at that place or at a place to which it moved from the first-mentioned place as a result of gravity.

(3)  Whenever any motor vehicle has been placed or left at any place, it shall, for the purposes of this Act, be presumed, until the contrary is proved, that such vehicle was placed or left at such place by the owner of such vehicle.[8]

EVALUATION

[9] The wording of subsection 2 warrants consideration because the plaintiff advanced his argument on “while [the motor vehicle] move from that place as a result of gravity, or while it is stationed at that place to which it moved from the first mentioned place as a result of gravity”[9]

[10]   It is common cause, if not, not seriously contested by the defendant that a TLB is a motor vehicle as defined in the RAF Act, Mr Van Zyl for the defence, admitted with reference to the decision in Berry and Another v SPE Security Patrol Experts and Another 2011 (4) SA 520 (GNP) that a TLB construction machine is indeed a motor vehicle for purposes of the provisions of the Act.  I agree and it has been my contention throughout the trial.

[11]   It is further not in dispute that Maboho was the last person who drove the TLB to where the accident/incident occurred.  It is immaterial as to whether he drove the TLB the previous day or in the morning of the day in question. Of importance is that he is deemed to have been the driver of the TLB (a motor vehicle).[10]The issue to be determined is whether the motor vehicle moved from where it was parked as a result of gravity. This brings me to that consideration.

…. MOTOR VEHICLE WHILE IT MOVE FROM THAT PLACE AS A RESULT OF GRAVITY, OR WHILE IT IS STATIONED AT THAT PLACE TO WHICH IT MOVED FROM THE FIRST MENTIONED PLACE AS A RESULT OF GRAVITY.

[12]   The Plaintiff contended that the falling of the front loading bucket of the TLB on the plaintiff’s legs is tantamount to the movement of the motor vehicle from its stationed place as a result of gravity, thus rendering the defendant liable as envisaged in terms of the Act. The contention kept Mr Ravele for the plaintiff, on his feet in pursuit to persuade me that the force of gravity that caused the bucket to fall amounts to the movement occasioned by the TLB.  Put differently, Mr Ravele contended  that the “falling” of the TLB’s front loading bucket falls within the ambit of section 20 (2) of RAF Act because the front loading bucket forms part of the TLB(motor vehicle) that moved from its stationed position as a result of gravity. He relied heavily on the decision held in Flynn v Unie Nationall Suide-Britse Versekeringsmaatskappy Bpk 1974 (4) SA 283 (NC) and Sehire v Central Board of Cooperative Insurance Ltd 1976 (1) SA 524 (W).   I was and still am unable to agree with counsel’s contentions.

[13]   The principles developed in cases where a motor vehicle’s engine started accidentally[11] and where the motor vehicle was placed in motion with intent to pull a trailer or harvesting machine[12] were well settled in Oliphant v Road Accident Fund[13] where the claimant was left a paraplegic when her husband was trying to fix the vehicle’s petrol pump. Accidentally a spanner fell and started the vehicle.  The engine ran, the motor vehicle was there then set in rearward motion.  The motor vehicle ran over the claimant.  The claimant’s claim was dismissed through the pen of Cachalia JA not on whether or not the motor vehicle moved. It was held that it was a “freak’ accident for which no one could be held responsible.

[14]   All the above mentioned cases dealt with the “driving” and the presumption of driving of a motor vehicle.  I already have indicated that the aspect of the TLB being a motor vehicle has been conceded.  I further found that it was immaterial as to whether Maboho was a driver or may have been deemed to have driven the TLB.  Of importance is whether the “failing” of a front loader bucket can be said to be motor vehicle that moved as a result of gravity. Can an object that falls from a stationary motor vehicle fall within the ambit of the provisions of section 20 (2) of the Act?

[15]   Gravity is described as a ‘force that attracts a body towards the centre of the earth or towards any other physical body having mass.’[14]I learned from my school years that everything in the universe that has mass must come down. The suspended front loading bucket of the TLB was bound to fall down. It was unfortunate that when it got attracted to the earth, the plaintiff was near or under it.

[16]   The motor vehicle driven or deemed to have been driven must, in my view, have moved from its stationary place. For the motor vehicle to be deemed to have moved, its tyres must, in my view, have rolled from its stationary position.  The movement must have been occasioned by a motor vehicle which is being propelled by any mechanical, animal or human power or by gravity or momentum[15].  Whatever propels the motor vehicle to move, such as gravity, the movement must have caused the tyres of the motor vehicle to “roll” from a stationary point or the first mention place as worded in the Act. The unevenness of or a steeply road may cause a motor vehicle to move (causing tyres to roll) as attracted by natural force of gravity as described by the scientists.

[17]   It is common cause that the TLB was stationary and remained stationary at all material times when the incident/ accident occurred.  The tyres of the TLB never moved, not even a millimetre as it is often said: “not even an inch”.

[18]   The non-movement of the TLB, in my view, does not comply with the provisions of section 20 (2).  The defendant can thus not be deemed to have driven the TLB. The TLB did not move from where it was left stationary either the previous day of the incident or the morning thereof.  Put differently, for the mere fact that the motor vehicle did not move from where it was left parked, Maboho cannot “be deemed to have driven that [TLB] as it never moved from the stationary place or from the first mentioned place as a result of gravity”.[16]  On this leg alone, the plaintiff’s claim stands to be dismissed.

SELF CONTRADICTORY EVIDENCE

[19]   I further find it prudent to deal with the contradictory evidence led by the plaintiff.  He pleaded that “… [a]n accident occurred when a TLB …then and there driven by Mr Maboho…”  When he testified viva voce in court and in examination in chief, he stated that Maboho came to his yard, drove the TLB from inside the yard and parked it outside.   He still in examination in chief confirmed the contents of his affidavit to which he deposed to, wherein he started that “[the] TLB was left outside of the workshop… by Mr Maboho the previous day on the 02 June …” He made a statement under oath at the police station when he reported the case. He indicated that he was at the garage repairing the motor vehicle (TLB).

[20]   The affidavit required in terms of section 19(f) of the Act referred to was drawn after he had consulted with his attorney. I may safely infer that the affidavit was drawn by his legal representative.  Fortunately or unfortunately the attorney he consulted with by that time of drafting the affidavit as required in terms of section 19 (f) of RAF Act, is the attorney of record as placed on record.  It is the same attorney who represented the plaintiff throughout the trial.

[21]   The plaintiff, during cross examination, denied the contents of both his affidavits deposed to by him notwithstanding his confirmation of the contents thereof in examination in chief.  Perhaps I must set out how it unfolded.

‘Mr Ravele: It is correct that eventually Mr Ravele advised you that you should lodge a claim against RAF?

Answer: Correct

Mr Ravele: If correct that the affidavit was prepared for you for the purposes of informing the RAF as to what happened.

Answer: Correct

Mr Ravele: That affidavit, did Mr Ravele read back to you this affidavit after preparing it for you.

Answer: Correct. He did so

[22]   After the contents of paragraph 2 of the said affidavit was read on record, it was started, among others, that ‘the TLB was left outside the workshop for the repair purpose by the operator Mr Maboho, the previous day on 02 June …’This was followed by the following question:

“Mr Ravele: Do you confirm that is what you told Mr Ravele

Answer: Correct

Surprisingly during cross examination he denied all that he said in examination in chief. This is how it unfolded:

Van Zyl: Now you have testified that this machine was left at your workshop the previous day

Answer: Correct

Van Zyl: Your even testified, confirmed as per your section 19 (f) affidavit that it was left outside your workshop.

Answer: No, that is not how I put it

Van Zyl: How did you put it?

Answer: I said it was driven in the morning and it was then parked outside my workshop yard.

Van Zyl:  In your section 19(f) affidavit, you stated there was a TLB left outside for repairs purpose the previous day.

Answer: No, No

Van Zyl: Then if your affidavit states that, then your affidavit is wrong

Answer: Yes, it is wrong.

[23]   The plaintiff vehemently denied during cross examination the contents of his section 19 (f) affidavit.  This resulted in him contradicting himself so grossly that he created three versions.  However, of all the three versions, the TLB remained stationary at all material times.

[24]   I, as a result of the three versions created by the plaintiff him-self, am unable to find the plaintiff a credible witness.  It is further difficult for me to comprehend how he expects this court to find him a truthful and reliable witness when he gave three contradictory versions, all under oath. Can the plaintiff be said to have proved his case on a balance of probabilities? I am afraid not. On this leg alone, the plaintiff’s case stands to be dismissed.

[25]   Perhaps it is worth mentioning that it is trite law that a party is bound not to depart from his pleadings.  Pleadings are there to define the issues before court.  The parties will accordingly be kept to their pleadings where any departure would cause prejudice.  (See Paalberg Motors (Pty) Ltd t/a Panelberg BMW V Henning 2000 (1) SA 981 (C)

[26]   The plaintiff’s pleaded case is that the TLB was “then and there” driven by Maboho.  The evidence led differs materially to what was pleaded.  In any event, none of the versions placed on record would lead to the plaintiff’s victory. I am of the view that the plaintiff’s case fall within the category of cases Cachalia JA referred to as a “freak” accident for which no one could be held responsible.[17]

[27]   It is trite law that costs follow the event.  The defendant succeeded with its defence. The defendant is thus entitled to its costs.

[28]   I, in the result, make the following order

ORDER

28.1  Plaintiff’s case is dismissed with costs.

AML PHATUDI

JUDGE OF THE HIGH COURT

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