IN THE HIGH COURT BISHO CASE NO: 326/98 JUDGMENT

IN THE HIGH COURT BISHO CASE NO: 326/98 In the matter between:- MATATA ALFRED LUSANI Plaintiff and ROAD ACCIDENT FUND Defendant JUDGMENT 1. On 23 October 1993 a motor vehicle driven by one Elliot Bushula Kokoyi collided with the plaintiff who was a pedestrian. As a consequence thereof the plaintiff sustained certain injuries and now seeks to recover damages from the defendant in the sum of R327 821,50. 2. The defendant is the successorto the Multilateral Motor Vehicle Accidents Fund ('MMF') and the rights and obligations of the MMF have devolved upon the defendant in terms of the provisions of s (2)(2)(a) of the Road Accident Fund Act 56 of 1996. 3. At the commencement of the trial, in terms of an agreement reached at the Rule 37 pre-trial conference, the parties requested that the trial proceed in respect of the merits only and that quantum stand over for determination at a later stage. Accordingly the trial proceeded only in respect of the issue of negligence.

The evidence relating to the collision 2 4. The evidence tendered by the plaintiff in the regard to the circumstances of the collision is that of himself and a Ms Margaret Ntomana Lobese. The plaintiff's evidence is that he was walking on the grass verge adjoining the tarred surface of the road (now identified as Mbokelwa Road) in NU 1, Mdantsane when he stopped and turned around to speak to a friend with the surname of Patela. This friend was behind him near to where an intersecting road formed a T-junction with Mbokelwa Road. The plaintiff had seen him when he looked backwards. In view of the distance between them they had to shout in order to converse. 5. The place where the plaintiff stopped is on an incline at the start of a bend stretching to the summit of Mbokelwa Road and on the incorrect side of the road for traffic travelling from the summit. The motor vehicle driven by Elliot Bushula Kokoyi had approached from the summit of Mbokelwa Road. 6. The plaintiff says that he remained on the grass verge and did not step onto the tarred surface of the road during this conversation nor after it had ended and he turned to proceed further. He says that when he commenced walking he was struck by a motor vehicle. He lost consciousness and his next recollection is that of waking up in hospital with various injuries. Although he cannot provide any details of how the accident occurred he maintains that the collision occurred on the grass verge and not on the tarred surface of the road. 7. During cross-examination the plaintiff stated that it was only in the hospital that

3 he became aware that a motor vehicle had collided with him. He had neither seen nor heard the motor vehicle approaching. He admitted that he had consumed alcohol that morning. He and a friend had drunk two quarts of beer sometime after 10.00am. He had also consumed alcohol the night before. However at the time of the accident the alcohol had not affected him at all. Prior to the accident he had been to a shebeen to look for a friend and did not have anything to drink there. When the accident occurred he was on his way to another shebeen to look for this friend. 8. The plaintiff was questioned on the statement (Exhibit 'B') he had made to the police on 7 December 1993 in which he explained how the collision had occurred. He denied the accuracy thereof. He had not said that he was crossing the street when he was knocked down. He had also not said that the accident had occurred at night. He had informed his attorneys of the errors in his statement. 9. He denied having said to a Ms Bashula, who had accompanied his sister on a visit to him in the hospital, that he did not know how the accident had occurred. In response to further questions from counsel he denied that he was under the influence of alcohol at the time. He also could not recall having seen a bakkie parked on the opposite side of the road prior to the accident. 10. The evidence of the plaintiff's witness, Margret Ntomzana Lobese, is that she was a few paces behind the plaintiff and had seen the accident occur. She says

4 that the plaintiff stopped and turned to speak to another person but she had not noticed to whom he was speaking. As the plaintiff was about to take a step forward a motor vehicle, approaching from the opposite direction, failed to negotiate the bend and drove onto the incorrect side of the road and onto the grass verge where it knocked the plaintiff down. The motor vehicle returned to the tarred road before it came to a halt. Due to the impact the plaintiff landed on a slope next to the road. She does not know what happened thereafter as she returned home because she was shocked. 11. The following emerged during the cross-examination of Ms Lobese. She stated that the motor vehicle struck the plaintiff either as he stepped forward or when he was about to do so after ending his conversation. She knew who the person named Patela was and had seen him at court. However, she had not seen him on the day of the accident. She had not listened to their conversation as she was engrossed in her own thoughts. She was about four paces away from the plaintiff when the motor vehicle struck him. When she left the scene of the accident she had asked some children, who were going to the scene, who the person was who had been knocked down. Itwas only when she received a letter from a firm of attorneys that she learnt that it was the plaintiff whom she thereafter met at their offices. 12. In reply to questions from the court she said that she knew the plaintiff whose nickname was Notaks. They had grown up in the same neighbourhood and saw each other from time to time. She had spoken to him and knew his voice. On

the day of the accident she had recognised him when he was walking in front of her. She claimed that there was no reason for her to have established what his condition was after the motor vehicle had struck him. Although she knew where he stayed she did not go to his home to find out if he was well. She did not send him a message to inform him that she had witnessed the accident nor had she been in contact with him after receipt of the letter from the attorneys. She had also not spoken to the driver of the motor vehicle after the accident. 13. After Ms Lobese's testimony Mr Louw, who appears for the plaintiff, applied for leave to recall him. He wanted to lead evidence in regard to the circumstances that led to Ms Lobese being called as a witness. Mr Schoeman, who appears for the defendant, did not raise any objection to this and the application was granted. 14. The plaintiffs further testimony is that he had not seen Ms Lobese on the day of the accident. At some subsequent stage he had informed his attorney that there was a rumour that a girl had witnessed the accident. However, he knew who she was as he had met her on the train. 15. It emerged during cross-examination that when they met on the train she had asked him if his injuries had healed. He had replied that he was 'a bit crippled'. He then asked her, as he was alighting from the train, if she had witnessed the accident but left before she could reply. Subsequently, on a visit to her brother at their home, he saw her again and asked if she had been present when the

6 accident had taken place, but did not ask if she had witnessed it. However, she told him that she was willing to explain to his attorneys what had occurred and he gave her the address of his attorneys. At first he denied having visited the scene of the accident with her prior to the trial but later admitted that they had done so. He said Ms Lobese must have forgotten they had spoken about the incident. She had probably also forgotten the circumstances that led to her being called to testify. He insisted that Ms Lobese had witnessed the accident and denied that his story was a fabrication. This concluded the case for the plaintiff. 16. Ms Nomatemba Klaas was the only witness to testify on behalf ofthe defendant. She is the widow of Elliot Bushula Kokoyi, the driver of the insured motor vehicle, and had occupied the front passenger seat. Her version of the collision differs from that provided by the plaintiff and his witness. She said that her late husband had overtaken a parked bakkie when the plaintiff suddenly ran across the road in front of their motor vehicle. The point of impact was on the left hand side of the road near the middle thereof. Because of the force of the impact the plaintiff landed in a ditch on the opposite side of the road. She denied that he was standing on the grass verge on the opposite side of the road when the collision occurred. 17. Due to the plaintiff's injuries he was transported to hospital. When the plaintiff was loaded into their combi she noticed that he was drunk as he reeked of alcohol. At the hospital the plaintiff was aggressive and objected to the nurses

7 touching him. While she knew who the plaintiff was he had not recognised her. The following day she returned to the hospital with his sister, Sizwe. She then asked him why he had run in front of their motor vehicle but he replied that he could not recall doing so. He told her that he did not blame anyone as he was drunk at the time. On several occasions thereafter she accompanied his sister on visits to him in the hospital until he was discharged. She knew that the house outside which the bakkie was parked was a shebeen known as Amarasta. She also knew Ms Lobese and had seen her drinking at the shebeen but at the time of the accident she had not seen her. 18. She stated during cross-examination that her late husband also knew about the shebeen. When her husband had overtaken the bakkie he was compelled to drive onto the incorrect side of the road but returned to the correct side. When she saw the plaintiff he was walking on the left hand side of the road close to the edge of the tarred surface with his back towards them. The plaintiff had suddenly turned and run across the road in front of their motor vehicle. Her husband did not have an opportunity to brake nor could he avoid the collision. She had not observed from the manner in which the plaintiff was walking whether he was drunk. However, when he was loaded into their combi to be taken to hospital there was a strong smell of alcohol. 19. In reply to questions from the Court she said that she and Ms Lobese's sister were friends. They had grown up in the same area and she frequented their home. Ms Lobese had never spoken to her about the accident. At the hospital

8 when she asked the plaintiff why he had run across the road he had said that he could not remember doing so. He could only remember that he was at the Amarasta shebeen. At the time of this conversation he was fully conscious and had recognised her and his sister. This concluded the case for the defendant. Submissions by counsel 20. In their submissions both counsel were ad idem that the versions of the plaintiff and the defendant conflicted with each other in regard to the collision. These versions were mutually destructive. It is common cause further that the onus rests on the plaintiff to prove that his version is to be accepted as being probabily true instead of that of the defendant. The approach the court is to adopt to the evidence is set out pertinently by Eksteen AJP (as he then was) in National Employers' General Insurance vs Jagers 1984 (4) SA 432 (E) at 440 D-G: '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 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.' 21. Mr Louw has conceded that the credibility of the plaintiff and his witness, Ms Lobese, has been brought into question. He contends nevertheless that the

9 court should accept the plaintiff's version as being true. The main thrust of his argument is that even on the version furnished by the defendant's witness Ms N Klaas the driver of the insured vehicle was negligent. He argues that it is not inherently improbable that the motor vehicle could have left the road and collided with the plaintiff on the grass verge; and it is not improbable that Ms Lobese, who was a few paces behind the plaintiff, was not knocked down as well since she may have been further away from him than the distance she had indicated in Court. 22. Mr Schoeman has contended that neither the plaintiff nor his witness have been truthful but have told a concocted story. The evidence, he says, establishes that the plaintiff had crossed the road without looking and that he was under the influence of alcohol. There were also improbabilities in the plaintiff's version. In view of the improbabilities the Court is left with the defendants version, and, it cannot be held that this version is improbable. He contends further that the driver of the insured vehicle was faced with a sudden emergency and that the plaintiff has not shown that the driver could have taken any steps to avoid the collision. Analysis of the evidence 23. I do not consider either of the versions of how the collision occurred to be inherently improbable. Yet, it is obvious that both versions cannot be correct. It emerges from the evidence of the three witness that each has identified a different point of impact. Although the plaintiff and the witness Lobese both state that it was on the grass verge they differ in respect of the exact location thereof. The witness Klaas on the other hand says it was near to the middle of the road. There is no other evidence which would enable the Court to determine the location with any degree of certainty. Accordingly, the Court is dependent on the credibility of the respective witness and the probabilities in order to conclude where the collision occurred. 24. The witness Lobese has stated that she knew the plaintiff prior to the accident and was able to recognise him and knew his voice. However, even though she

10 was a short distance away from the plaintiff (anything between 5 to 18 passes) she did not recognise him or his voice. On her version and that of the plaintiff he was facing towards her and shouting to his friend, Patela. It is improbable that she would not have taken notice of the plaintiff if he was that close. His shouting would have drawn her attention to him and it is unlikely that she would not have recognised either his voice or face. 25. It seems improbable that she would not have reacted in some way when the motor vehicle veered of the road since it was coming towards her as well as the plaintiff. Even though this incident was taking place right in front of her she says that she did not think it was necessary to get out of the way. It is improbable that she would not have felt that she was at risk and have tried to get out of the way. There would at the very least, have been a reflex action on her part to get out of the way of the oncoming vehicle 26. I consider her account of the circumstances which let to her testifying at this trial to be improbable. It is hardly likely that she would have responded to the letter from the plaintiff's attorneys without ascertaining either from them or the plaintiff why she had to come to their offices; after all this letter arrived five years after the accident and prior thereto, according to her, there had not been any contact between her and the plaintiff. In such circumstances the most natural reaction would have been to speak to the plaintiff's sister, who was her friend, about the receipt of the letter. The witness Lobese has clearly not told the truth about these circumstances. There was no reason for her not to tell the truth except if she feared that the truth would have a detrimental effect on the plaintiff's case. She did not create a good impression and was an unsatisfactory and unreliable witness. I find her testimony to be untrue and accordingly I reject her version of the events. 27. While the plaintiff is unable to describe how the collision occurred the question still remains whether the point of impact was on the grass verge as he claims. In this regard the plaintiff has furnished contradictory accounts. In the statement

11 (exhibit 'B') which he made to the police some six weeks after the accident he stated that he was crossing the road when the motor vehicle collided with him. This was in contrast to the version that he furnished to the court. He claims that he informed his attorneys that the statement was incorrect. Yet the admission it contained was never corrected nor retracted by either him or his attorneys. It is only during cross-examination that he claimed that it was incorrect and that he had informed his attorneys thereof. 28. Then Ms Klaas alleges that on the following day at the hospital he admitted that he had been drunk on the day of the incident and had no recollection of how the collision occurred. This conversation, she says, took place in the presence of his sister. While the plaintiff denies that such a conversation took place the matter could have been put beyond doubt had his sister testified on this issue. It is unfortunate that the plaintiff did not call her to testify to substantiate his version of what transpired at the hospital. In the absence of her testimony I am left to weigh the evidence of Ms Klaas against his. Significantly, however, the version which Ms Klaas says the plaintiff gave her at the hospital coincides with that which he subsequently furnished in his written statement to the police. It is clear that Ms Klaas has told the truth in this regard and I accept her version. 29. The plaintiff's account of how it came to his knowledge that Ms Lobese had witnessed the collision is fraught with so many improbabilities that the conclusion is inescapable that it is a fabrication. Mr Lobese stated that she did not know how this came to the knowledge of the plaintiff. When the plaintiff was re-called to clarify this aspect he said that he had told his attorneys of a rumour that there was a woman who had seen the accident. Thereafter he discovered who she was when they met on the train. 30. During cross-examination he was asked to relate what had happened with this meeting on the train. His account of this event is contradictory and illogical. At first he said that she had enquired if his injuries had healed whereupon he asked her if she had seen the accident; later he said that he had not asked her. He

12 then reiterated that he had asked her and that this was when they were alighting from the train. But, before she could reply, he left. When counsel pointed out to him in view of this that, he could not have known that she had seen the accident he claimed that he had spoken to her subsequently. They met again when he took a pair of trousers, presumably for alteration or repair, to her brother at their house. There he again asked her if she had seen what had happened. Later in cross-examination he stated that he had only asked if she was at the scene and when she confirmed this he had asked if she was willing to go to his attorneys. He had not thought of asking if she had actually seen what had happened. 31. He denied that he had been to the scene of the accident with her prior to the trial. But, later he conceded that they had gone there. When confronted with the fact that Ms Lobese claimed this had not happened he said that she must have forgotten about it. Similarly, she had probably also forgotten about them having met and their conversations. 32. I find the plaintiff to be a most unsatisfactory witness. He created a poor impression. He was evasive in his replies and contradicted himself on numerous aspects. When he was confronted by the contradictions in his evidences he fabricated events in an effort to provide a reply. To put it plainly, he resorted to lying when it suited him. He is clearly not being honest when he says that he made an error by admitting in his statement to the police that he was crossing the road when the collision occurred. He is manifestly an untruthful witness and I cannot place any reliance on his evidence. I, accordingly, reject his version of the events. 33. In view of my findings regarding the untruthfulness of the plaintiff and his witness I do not consider it necessary to set out in any great detail my conclusions regarding the credibility of Ms Klaas as a witness and the reliability of her evidence. Suffice to say that I find her to be a credible and honest witness and that her observations are reliable and can be accepted. She

13 created a favourable impression and answered questions frankly and honestly. Her account is more probable than that provided by the plaintiff and I accept her version of how the collision occurred as being the truth. 34. Mr Louw has contended that even on the version of Ms Klaas the driver was negligent since he failed to hoot or to take avoiding action. He submits that the driver was aware of pedestrians walking in the road and should have exercised greater caution. He submits that there was contributory negligence on the part of the driver. I do not find myself in agreement with this argument. While a driver is to be aware that a pedestrian, who is walking along the edge of the road, may suddenly run across the road it does not follow that it is negligence perse to fail to hoot to warn a pedestrian of the motor vehicle's approach. Each situation must be judged on its own facts and circumstances. It is clear from the evidence, and this was reinforced by the inspection in loco, that the position prevailing in Mbokwelwa Road and the surrounding roads is that pedestrians, virtually without exception, walk along the edge of the tarred surface of the road and not on the adjoining verge. This is necessitated by virtue of the unevenness and, often by the dense growth on, the verge of the road. 35. In the present instance the evidence of Ms Klaas, which stands uncontradicted, is that there was no indication in the manner in which the plaintiff was walking to suggest that there was a danger that he would suddenly run across the road. In my view, the situation which prevailed did not place a duty on the driver to hoot and his failure to do so does not amount to negligence. Further, the evidence does not reveal that the driver had an opportunity to avoid the collision. I do not consider that her version provides support for the contention that there was negligence on the part of the driver. On the contrary it clearly indicates that the plaintiff was the solecause of the collision. 36. I find that the plaintiff was the author of his own misfortune. Further, the evidence does not justify the conclusion that the actions of the driver of the insured motor vehicle amounted to negligence. In my view he was faced with a

14 sudden emergency and could not avoid colliding with the plaintiff. In find that, the plaintiff has failed to discharge the onus of proof which rests on him. 37. In so far as costs are concerned the successful party is normally entitled to an order in his favour unless there are circumstances which justify an order to the contrary. Mr Louw has not suggested that circumstances exist which require that the defendant be deprived of an order of costs in its favour. The defendant also seeks the costs of a pre-trial inspection in loco of the scene of the collision attended by counsel. Reasons have not been advanced here either why the defendant should be deprived of such costs. 38. In the result the plaintiff's claim is dismissed with costs, such costs to include the costs of the pre-trial inspection in loco attended by counsel. 15 September 1999 Counsel for the Plaintiff Attorney for the Plaintiff Counsel for the Defendant Attorneys for the Defendant Dates of hearings Date of judgement Mr S.W. Louw Bosch Niehaus & Oosthuizen Mr N Schoeman Bate Chubb & Dickson Inc 2/8/99, 3/8/99, 6/8/99, 26/8/99 15 September 1999