Tshitake v Road Accident Fund

• Jurisdiction: South Africa
• Judge: Jansen J
• Judgment Date: 11 December 2015
• Docket Number: 43841/2013
• Court: Gauteng Division, Pretoria
• Hearing Date: 11 December 2015
• Citation: 2016 JDR 0019 (GP)

Jansen J:

[1]

The matter relates to a collision which occurred on the 4th of April 2012, along Phunda Maria Road, Thohoyandou between a Volkswagen Polo Player driven by the plaintiff Mr Reuben Tshivihulawi Tshitake and a Volkswagen Polo Classic driven by Mr Tefu Sechocho ("the deceased") who died at the scene of the collision and who was unknown to the plaintiff. The registration number of the plaintiff's car was M12 0.NZ 094 GP and that of the deceased GGG 430 GP.

[2]

The trial was set down for a hearing on the merits only.

[3]

The plaintiff testified in chief that at that date his wife was eight months pregnant and they were travelling from Belfast to Thohoyandou. As he was approaching a stop sign he saw three motor vehicles in the opposite lane travelling in his direction. A vehicle travelling behind the other three motor vehicles was driving very fast and began overtaking the three vehicles in front of it. The plaintiff reacted by flickering his lights. It then dawned on the plaintiff that the said vehicle was persisting in overtaking the three motor vehicles as it continued approaching at a fast speed and the plaintiff

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endeavoured to swerve left. He testified that it is clear from his motor vehicle which was damaged on its right hand side and right passenger side that he had swerved left. He further testified that he lost consciousness and only regained consciousness in the hospital the following day. Both his wife and unborn child died due to the collision.

[4]

The plaintiff also testified that he had managed to swerve to such an extent that his motor vehicle moved onto the gravel beside the yellow stripe on his side of the road. He said that whilst seeking to avoid the collision he even, in the process, stretched out his one arm protectively towards his wife as he was applying his brakes.

[5]

The plaintiff further testified that no collision report was obtained from him and that a statement was only obtained from him three months after the incident. He was then residing at his father's house in Soweto.

[6]

During cross-examination the plaintiff stated that he was about 500 metres from a stop sign and was travelling at about sixty to seventy kilometres per hour and was relaxed, as he was close to his home. He further testified that it was unclear to him as to how the collision had occurred. When about 150 metres from the fast approaching motor vehicle said he came to the realisation that the motor vehicle had no intention of slowing down and wished to overtake the three motor vehicles. Upon further questioning, the plaintiff testified that it appeared to him as though the driver of the speeding motor vehicle believed that the other motor vehicles would yield and allow him to

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Jansen J

pass - apparently in the middle - between the lanes. The plaintiff candidly testified that he did not manage to swerve far left but that he was on the edge of the road.

[7]

The plaintiff further testified that he believed that the driver of the speeding motor vehicle would return to his lane when he realised that the other motor vehicles would not yield and allow him to pass. It was put to him that if he were travelling at 60 kilometres per hour and the other motor vehicle at about 100 to 150 kilometres per hour he would have had about three minutes in which to react to avoid a collision. The plaintiff answered by stating that he did not understand the question and that he had very little time within which to react particularly due to the speed at which the other motor vehicle was approaching. It was unclear to the court as to how the time of three minutes was calculated as it depended on the speed of the other motor vehicle which is unknown save for the plaintiff's testimony that he was driving at a high speed. When asked how he knew that the other motor vehicle was speeding he stated that the lights of the motor vehicle were approaching much faster than usual. He testified that there were no motor vehicles in front of him.

[8]

Upon a statement to the effect that his endeavours to avoid the collision had not been very effective the plaintiff responded that he did what he could in the little time available to him.

[9]

It was common cause that the driver of the motor vehicle who sought to overtake the other motor vehicles died at the scene of the collision.

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[10]

The plaintiff was the only witness who testified on his behalf.

[11]

A certain Warrant Officer Mashau with 25 years' experience was the first witness called on behalf of the Road Accident Fund. He testified that on the 4th of April 2012 he visited the scene of the collision and found two motor vehicles. In the one a person was trapped inside and the other lying unconscious on the tarmac. The driver of the other vehicle was deceased.

[12]

Warrant Officer Mashau testified that he opened a case. Initially he had written down that the deceased was travelling from east to west but then he spoke to six colleagues of the deceased who arrived at the scene of the collision. They informed him that the deceased lived in the direction of Polokwane and that they had attended a workshop earlier with the deceased in Thohoyandou. They said that they were on their way home from the workshop when they came across the collision scene without being aware that it was their colleague who was involved in the collision. Warrant Officer Mashau thus changed the direction in which the plaintiff had been travelling from east to west to west to east in his collision report. (The mother's report referred to below also influenced him.) It was wholly unclear as to what made him assume, initially, that the deceased had been travelling from east to west. He thus decided that the plaintiff was driving to Thohoyandou and the deceased towards Polokwane.

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Jansen J

[13]

Interestingly it is apparent from the statement that he also changed the compass directions from North to South to South to North and from West to East to East to West. Hence one has to turn his collision report upside down in order to understand it.

[14]

Warrant Officer Mashau testified that the police station was eight kilometres away and that it took him 15 minutes to reach the scene of the collision.

[15]

During cross-examination Warrant Officer Mashau testified that he completed the collision report the very same evening. He stated that he and medical staff arrived first on the scene followed by the deceased's co-workers who had attended the said...