THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

NOT REPORTABLE
CASE NO:   660/2006

In the matter between

LARINA VENTER obo ARNOLD KLAASEN                 APPELLANT

and

ROAD ACCIDENT FUND                                             RESPONDENT

CORAM:
MTHIYANE,
HEHER,
VAN
HEERDEN,
MLAMBO JJA and KGOMO AJA

HEARD:

13 NOVEMBER 2007
DELIVERED:
29 NOVEMBER 2007

Summary: Claim for damages arising out of injuries sustained by a
pedestrian in a hit and run motor vehicle accident –
whether negligence of the driver established by the single
eyewitness account and by inferences to be drawn from
the facts.

Neutral Citation: This judgment may be referred to as L Venter obo
A Klaasen v Road Accident Fund [2007] SCA 158
(RSA).

MTHIYANE JA

MTHIYANE JA:

[1] What began as an occasion of enjoyment ended in disaster for Mr
Arnold Klaasen, who has been deaf and mute since the age of three. On 3
June 1995 Klaasen, some of his friends and his relative, Mr Nigel
Bosman, watched a World Cup rugby match on television at a friend’s
house. A short while after leaving the house he lay injured at the edge of
the road, from where he was removed to hospital by paramedics. He had
sustained a ‘head injury with left frontal contusion and scalp degloving
injury.’ Prior to sustaining these injuries, Klaasen was in good health and
able to retain employment. He now suffers from epilepsy, his mental
capacity has been detrimentally affected and he has been rendered
unemployable.

[2] Klaasen instituted action in the Cape High Court against the
respondent, the Road Accident Fund, claiming damages in the amount of
R1 479 570,26 for loss allegedly suffered in consequence of a collision
with a hit and run motor vehicle in Steenbras Road, Pineview, Grabouw
on 3 June 1995. Prior to the trial, the appellant was appointed as
Klaasen’s curator ad litem. At the trial before Allie J the parties agreed to
proceed with the merits only, the question of quantum to stand over for
determination at a later stage.

[3] In its plea the respondent disputed that Klaasen had been injured in
a motor collision and, in the alternative, alleged that in the event of the
collision being proved, the driver of the vehicle concerned had not been
causally negligent.

[4] The sole eyewitness to the collision was Bosman. He testified that,
on 3 June 1995, after watching the rugby match at the house of a friend
(Kobus), he left the house and, together with Mr Randall Brett and others,
stood in the front yard talking for a while. In the meantime Klaasen
walked ahead, stepped out of the gate and stood on the pavement. It was
about 22.45 and already dark.

[5] Just then Bosman heard a vehicle approaching at speed and as he
turned he saw a bakkie mount the kerb onto the pavement. As it veered
off back towards the road its left front side caught Klaasen, causing him
to fall so that his head or face came into contact with the pavement.
Bosman described what he observed as follows:
‘die bakkie het baie hard aangekom en toe ons omdraai toe is dit net wat die bakkie op
die kerb klim en weer af en hy vang Arnold [Klaasen] en Arnold [Klaasen] val toe
met sy gesig op die pavement.’
Later on he amplified what he saw:
‘En toe ek omdraai wat ek sien dis `n bakkie en die bakkie klim op die kerb en hy
vang vir Arnold en hy is weer in die pad sonder “brake” het hy of iets en hy net
aangejaag.’

[6] Brett also gave evidence but this did not take the matter much
further. He did not see how the collision occured. He merely heard a bang
(‘slag’) and as he turned he saw the bakkie drive away from the scene. He
described the event as follows:
‘Arnold [meaning Klaasen] gaan stilstaan daar op die sypaadjie en terwyl ons nog
gesels het ek `n slag gehoor.’

[7] After the collision the wife of Kobus, the owner of the house where
Bosman, Klaasen and the others had been watching rugby, telephoned the
police to report the accident and summon the ambulance.

[8] Bosman gave an account of what had happened to the policeman,
Mr Ian Bredell, who attended the scene of the accident. He pointed out
various points, in particular the point of impact as being at the edge of the
pavement. Bredell drew a plan of the accident indicating amongst other
things that he found Klaasen lying at the edge of the pavement. His head
was resting on the pavement and the rest of his body on the road. In his
accident report Bredell recorded that the accident happened at 22.45 and
the sketch plan was drawn at 23.30 that night.

[9] Although Bosman pointed out to Bredell the various points at the
scene and gave a description of the accident, Bredell did not take a
statement from him that evening. Bredell said he did not do so because
Bosman was under the influence of liquor. Bosman subsequently made a
statement to the police on 5 June 1995. Two years later on 20 May 1997
he made a further statement which was lodged with the respondent,
together with Klaasen’s claim. During cross-examination the statements
were put to Bosman by counsel for the respondent in an attempt to show
that they were inconsistent with the version he gave in court. The exercise
does not appear to have borne much fruit, as I will demonstrate shortly.
As to Klaasen’s exact position when the vehicle collided with him
Bosman said in his first statement:
‘Arnold [Klaasen] was reeds naby die rand van die pad gewees. Hy was nog steeds in
die sypaadjie gewees.’
In the second statement he said:
‘Arnold [Klaasen] het toe gegaan stilstaan. ‘n Voertuig het van agter gekom en vir
Arnold raakgery waar hy stilgestaan het op die sypaadjie.’

[10] The respondent disputed that Klaasen had been injured in a motor
vehicle and suggested that he had been injured in an assault. The assault

theory was introduced by Professor J W van der Spuy whom the
respondent called as an expert witness, who was described in court as
having wide experience in the research of traffic collisions. His expertise
was not disputed. He compiled a report to which he spoke and which was
handed into court as evidence. In the report the professor asserted that it
was improbable that Klaasen’s ‘injuries resulted from a pedestrian traffic
incident . . . ’. He refuted any suggestion that the accident could have
happened as described by Bosman and asserted that the ‘injury pattern
and nature of the lesions favour assault more than pedestrian traffic
trauma.’ I will return to the professor’s evidence later in the judgment.
Suffice it to say that the professor did not qualify himself as an expert on
how objects react in a collision on impact. His views expressed in this
regard are thus no more than the views that would be expressed by a lay
person.

[11] At the trial before Allie J, the appellant’s claim was dismissed with
costs. The learned judge held that the appellant had failed to adduce
direct credible evidence that he had been injured in a motor vehicle
accident and that he had thus failed to prove on a balance of probabilities
that he was injured in a motor vehicle collision. The learned judge
refused leave to appeal. However with the leave of this court, Klaasen
appealed to the full bench of the Cape High Court. That court took the
view that there was sufficient evidence to show that Klaasen had indeed
been injured in a motor collision but held that the appellant had failed to
prove that the driver of the hit and run vehicle had been causally
negligent.

[12] As to whether or not the appellant had been involved in a motor
vehicle collision Meer J (with Selikowitz and Motala JJ concurring), said:

‘I find it highly improbable that the group that night in their state of inebriation would
have had both the presence of mind and ingenuity to fabricate a motor collision and
would have recounted this fabrication convincingly to the police in the short time
span between the injury being inflicted and the arrival of Bredell. It is moreover
highly improbable that had Klaasen been assaulted, an assault charge would not have
been brought. There is in any event no evidence to suggest he was in fact assaulted. In
the light of all of the above the probabilities suggest to me that Klaasen was hit by a
vehicle, fell on the kerb and incurred the injuries on falling.’
I am in agreement with the above finding. During argument counsel for
the respondent was constrained to concede that the motor vehicle
collision had in fact occurred, and that Klaasen had been injured in that
collision. Counsel thus confined the rest of his argument to the question
of negligence. In my view the concession was well made and it therefore
renders it unnecessary to subject the evidence of Professor van der Spuy
to any analysis on this aspect.

[13] This brings me to the question of negligence, which was dealt with
very briefly by the court a quo. The court rejected Bosman’s version that
Klaasen was on the pavement when the collision occurred and that the hit
and run vehicle had mounted the pavement. It found Bosman’s testimony
to be inconsistent and unreliable inter alia in that he had, according to the
court, wavered under cross-examination when he conceded that Klaasen
could have stepped into the road before the collision occurred.
Consequently the court dismissed the appeal with costs. On 8 November
2006 - a year to the day on which leave was granted against the decision
of the trial court - the appellant was granted special leave to appeal to this
court against the judgment of the full bench.

[14] In her assessment of the evidence the trial judge rejected Bosman’s
evidence as to how the collision occurred as untrue. The judge found the
following contradictions to be material:
(a)
‘In court he said that Plaintiff stood on the sidewalk away from the edge of the
road. In his statement to the police, two days after the incident, he says that Plaintiff
was near the curb but still on the sidewalk. (My emphasis.)
(b)
In his affidavit dated 20 May 1997, he stated that Plaintiff walked ahead of
him and his friends but they were all walking on the sidewalk. In court he said that he
and his friends were standing in the front garden of the house and only Plaintiff was
on the sidewalk.
(c)
He told the police that the point of impact was 2 metres away from where the
Plaintiff was found. In court he said that Plaintiff was propelled approximately five
metres forward from the point of impact.
(d)
In his affidavit and statement shortly after the incident, he did not mention that
the vehicle approached Plaintiff from the left side and propelled him to the right but
that was his testimony in court.
In addition to the above points the trial judge also mentioned the
following discrepancies:
(e)
He was unable to explain how the Plaintiff was able to sustain no injuries at
the point where the vehicle impacted with his body if the vehicle travelled at 100 to
120 km per hour or at a high speed.
(f)
Mr. Nigel Bosman was not reluctant to say when he could not remember an
aspect of the incident. For example, he could not remember the make and colour of
the vehicle even though his statement two days after the incident refers to a cream
coloured Isuzu bakkie. He could easily have stated that he could not remember the
issues in which he contradicted himself. It is patently clear that he had a selective
recollection in which he could remember aspects which portrayed the unidentified
driver as negligent or reckless.’

[15] I deal with the above points seriatim. As to the first point (a) it is
clear that both in court and in his statement to the police Bosman refers to
Klaasen as having been standing on the sidewalk. It is also clear from

Bosman’s evidence that the positions which he pointed out were relative
and not cast in stone. His constant reference to more or less (‘min of
meer’) and near or about (‘naby’ die rand van die pad), attests to this.
Furthermore Bosman was describing a moving scene, some ten years
after the event – an aspect to which the court a quo alluded but to which
in my view it accorded little weight. The accident happened on 3 June
1995 and Bosman gave evidence on 13 June 2005. To expect the kind of
precision contended for by the respondent would be setting far too rigid a
standard. It must also be remembered that the collision occurred
unexpectedly at 22.45 in a poorly lit area (as most townships notoriously
are) and so exact precision as to the point of impact in those
circumstances
is
an
unrealistic
expectation.
The
wavering
is
understandable given the lapse of time. In my view the proposition put to
Bosman under cross-examination and his ‘concession’ that Klaasen might
have stepped into the road is neutralised by the fact that on the evidence
there would have been no reason for Klaasen to do so. According to
Bosman they were all going to walk together to Bosman’s house. On the
probabilities Klaasen was standing there waiting for Bosman and the
others who were still engaged in a conversation with Kobus, before
proceeding to Bosman’s house. There would on the probabilities have
been no reason for Klaasen to leave Bosman and the others and begin to
walk to Bosman’s house on his own and the evidence does not suggest
that that is what he did. On the evidence Klaasen was standing on the
sidewalk, and the suggestion that Klaasen might have stepped into the
road is, in my view, mere speculation.

[16] I turn to the second point (b). I fail to see how this is material to the
question of negligence. In my view nothing turns on this discrepancy.

[17] As to the third point (c), it should be noted how the reference to
‘five metres’ was brought up. During cross-examination counsel for the
respondent asked Bosman how far Klaasen landed from the point of
impact. Bosman’s response was that he could not say. On further
prodding, he replied that it was not far. Not to be outdone counsel pressed
on:
‘Moet ons na die toneel toe gaan meneer en kyk waar die meneer tot punt B, sal u sê
dis meneer tot by punt B, sal u sê dis maar vyf meter of is dit nog baie nader as vyf
meter? . . . Dit kan maar nader wees.’
Bosman having given what he thought was the answer, counsel pressed
on, apparently because he had not received the desired answer.
‘Nee meneer u was daar gewees, sê vir ons. Kyk na die foto, dis mos duidelik . . . Dis
nie hoe dinges is, dit was . . .
U volstaan dis vyf meter, is dit u antwoord . . . Ja.’
It is clear from this evidence that Bosman was neither able nor willing to
give this distance with any precision at all. It therefore follows that the
discrepancy now relied on by both the trial court and the full bench as one
of the bases for rejecting Bosman’s evidence is flawed and unfair.

[18] I turn to the fourth point (d). Quite frankly I do not understand this
point. It is far from clear what the trial judge was trying to say here.

[19] As to the fifth point (e) concerning Bosman’s inability to explain
how Klaasen did not sustain injuries at the point where his body impacted
with the vehicle which was (according to Bosman’s estimate) travelling at
100 to 120 kilometres per hour, it appears that the trial court adopted the
opinion of Professor Van der Spuy which was premised on Bosman’s
estimate of the speed of the vehicle prior to the collision. Van der Spuy
conceded under cross-examination that, had the vehicle been travelling at
a speed of say 50 kilometres per hour, there would be a greater chance

that Klaasen would not have sustained other serious injuries. However,
like Professor Van der Spuy the trial court fell into the error of basing its
rejection of Bosman’s evidence solely on the speed estimate given by
Bosman. The evidence of Bosman as to the speed at which the vehicle
was travelling should have been approached with caution. In Macintosh
and Scoble Negligence in Delict 5 ed (1970) p 343 the following is said:
‘The evidence of persons estimating the speed at which a vehicle is travelling is not
evidence of opinion, but evidence of observation, even though it involves a certain
amount of inference from facts. As such it is admissible (R. v. Van der Westhuizen,
1929 C.P.D. 484, and R. v. Frankel, 1940 T.P.D. 159). But the courts will be careful
in accepting such testimony and will only do so after some prior inquiry into the
competency and capability of the witness for estimating speeds has been made, and
will guard against relying on evidence which, in reality, may be mere guesswork, “for
in few things are greater mistakes made than in judging rates of speed”. (See R. v. De
Kock, 1918 E.D.L. 221; Coetzee v. Van Rensburg, 1954 (4) S.A. 616 (A.D.)), where
Schreiner J.A. said:
“Bearing in mind how difficult it is for even honest witnesses to estimate speeds,
distances and relative positions with reasonable accuracy, the courts rightly attach
importance to traffic marks and similarly substantially unchallenged evidence.”’
As will be observed the remarks of Schreiner JA in Coetzee v Van
Rensburg (supra) are relevant not only on the question of the speed but
also in regard to the pointing out of the various positions by Bosman. In
my view, the trial court did not approach Bosman’s estimation of speed
with the required caution.

[20] The validity of the sixth point (f) to the effect that Bosman could
not remember the colour of the vehicle is not easy to appreciate in regard
to the question of negligence. In my view it belongs to the question
whether or not the collision occurred. Even if it was relevant to the
question of negligence I do not see how it detracts from Bosman’s
reliability as a witness. The trial judge described Bosman as having ‘a

selective recollection’. Nowhere, however, does she appear to consider
the fact that Bosman was giving evidence ten years after the event. In my
view in those circumstances it is only to be expected that he would not
remember some of the details concerning the accident. Indeed, it would
have been surprising, if not suspicious, if Bosman had remembered each
and every detail relating to the incident.

[21] I think it can be accepted that Bosman was not a particularly good
witness in all respects. But given the context in which he was giving
evidence, coupled with the lapse of time of more than a decade, and the
fact that his honesty could not be impugned, his version does, to my
mind, bear scrutiny despite the fact that there were discrepancies here and
there. His version as to how the collision occurred is certainly nowhere
near as improbable as it is made out to be. If the vehicle mounted the
pavement at a much lesser speed than 100 to 120 kilometres per hour, and
its left front side caught Klaasen as the driver was correcting himself by
bringing the vehicle back onto the road, that would explain why Klaasen
ended up on the edge of the road at the point where he was found by
Bredell, as reflected in the police plan. It cannot on the evidence before
the court be said that the distance of 2 metres from the point of impact is
too short to account for that reasonable probability. No expert evidence
was led to suggest that this is so. It follows therefore that the evidence of
Bosman in this regard cannot be rejected.

[22] Counsel for the respondent argued that there are two contrasting
versions for consideration in this case and urged us to accept the version
of the respondent. The version advanced by the respondent during the
trial was that Klaasen had not been knocked down by a motor vehicle but
had been assaulted. As indicated, this version was abandoned by the

respondent before us. This then left only one version to consider – that is
the version of Bosman, which of course must be tested by reference to his
credibility and upon a consideration of the probabilities. As pointed by
Eksteen AJP in National Employers’ General Insurance Co Ltd v
Jagers,1 the two issues are inextricably bound up. The following remarks
by the learned acting Judge-President in that case (at 440I-441A) are
apposite:
‘It does not seem to me to be desirable for a Court first to consider the question of the
credibility of the witnesses as the trial Judge did in the present case, . . . as though the
two aspects constitute separate fields of enquiry. In fact, . . . it is only where a
consideration of the probabilities fails to indicate where the truth probably lies, that
recourse is had to an estimate of relative credibility apart from the probabilities.’

[23] Support for Bosman’s evidence is to be found in the evidence of
Bredell. He found Klaasen lying at the edge of the road. Klaasen’s face
was on the pavement and his legs on the road. As to how Klaasen got
there, Bosman’s evidence is that he was struck at a point also at or near
the edge of the road and landed two metres further. The suggestion by the
respondent’s counsel was that Klaasen may have stepped into the road
and was struck by the vehicle somewhere near the centre of the road is
excluded by Bredell, who said he found no indication of any point of
impact on the road. There was no broken glass or tyre marks which
suggested that Klaasen had been on the road itself at the time of the
collision. In my view the point of collision indicated by Bosman must
therefore carry the day in the absence of any evidence to the contrary.
Any other speculative excercise does not assist in the resolution of the
question in issue in this case.

1 1984 (4) SA 437 (E) at 440I-441A.

[24]  In my view negligence on the part of the driver of the hit and run
vehicle was clearly established. On Bosman’s version the vehicle
mounted the kerb at high speed and collided with Klaasen when he was
near the edge of the pavement. I have already referred to the dictum of
Schreiner JA in Coetzee v Van Rensburg supra who reminded us ‘how
difficult it is for even honest witnesses to estimate speeds, distances and
relative positions with reasonable accuracy.’

[25] The fact of the matter is that Klaasen was found lying with his head
on the pavement and the rest of his body in the road. Even if allowance is
made for the shortcomings in Bosman’s evidence, the court is entitled to
draw an inference of negligence from this fact seen in the context of the
circumstances of this case as a whole. The stretch of road on which the
incident happened is six-metre wide, straight and level. The driver would
have had an unimpeded view of the road ahead. The question that must be
asked is to how therefore he collided with a pedestrian on the edge of the
pavement. In my view he must on the probabilities have mounted the
kerb on to the pavement and so collided with Klaasen, as testified by
Bosman, as a result of his failure to keep a proper look out or bring his
vehicle under proper control. In my view Klaasen is in even a stronger
position than the plaintiff in Motor Vehicle Assurance Fund v Dubazane2
where a pedestrian was found dead near a pedestrian crossing on the side
of a busy road. The court in that case found that the facts supported the
inference that an unknown driver of the vehicle had been negligent. The
majority of the court held that, as a matter of probability, the inference of
negligence on the part of the unknown driver had been correctly drawn by

2 1984 (1) SA 700 (A). It will be noticed that I have written the plaintiff’s name as ‘Dubazane’. The
plaintiff’s name was misspelt. There is no such name as ‘Dubuzane’ in the African language. In my
view it would be undesirable to perpetuate the error by continuing to refer to the case as ‘Dubuzane’ as
it appears in the reported judgment.

the court a quo, and that there was no real basis for postulating that the
driver was unaware that he collided with a human being and that the
reason for his departing from the scene was not a feeling of guilt. In the
present matter Klaasen was found lying on the edge of the road, in
circumstances that suggest that at the very least the vehicle had left its
pathway and come far too close to the pavement before the collision
occurred. I consider the evidence of Bosman to provide a sufficient basis
for the conclusion that the hit and run driver was negligent.  In any event
for the factors already mentioned in relation to where Klaasen was found
on the road, on authority of Dubazane, an inference of negligence on the
part of the hit and run driver was capable of being drawn.

[26] In the present matter the appellant has in my view, succeeded in
establishing that the driver of the hit and run vehicle was negligent.

[27] For the above reasons the appeal must succeed. As to costs,
counsel for the respondent conceded that the case merits the costs of two
counsel.

[28] Accordingly the following order is made:
1.
The appeal is allowed with costs, including the costs of two
counsel.
2.
The order of the court a quo is set aside and replaced with an
order in the following terms:

‘(a)
The appeal is upheld with costs.
(b)
The order of the trial court is set aside and replaced
with the following order.

“The defendant is liable for such damages as the
plaintiff is able to prove arising out of the collision
with a hit and run motor vehicle on 3 June 1995.”’

______________________

KK MTHIYANE

JUDGE OF APPEAL

CONCUR:

VAN HEERDEN JA
MLAMBO JA
KGOMO AJA

HEHER JA:

[29] The plaintiff suffered a terrible injury. Any court would assist him
if it could. However, despite diligent and repeated reconsideration of the
evidence, I cannot agree that his appeal should succeed.

[30] The Full Bench of the Cape High Court (per Meer J, Selikowitz J
and Motala J concurring) delivered a careful and well-reasoned judgment.
I agree with it in all material respects save one, viz that the plaintiff
probably sustained the depressed fracture of the left frontal region of the
head and accompanying degloving of the scalp when he fell on the kerb
after the collision. Allie J said in her trial judgment, ‘This would only
have happened if there were protrusions on the surface on to which the
plaintiff fell. No evidence of such protrusions was presented to the court’.

She might have added that, as the photographs of the scene show, the so-
called ‘kerb’ is virtually non-existent at the place where he came to rest.
In any event, his head was not on the kerb. Furthermore the finding of the
court a quo requires one to accept that the plaintiff sustained no bodily
injuries in the course of contact with a vehicle travelling at a substantial
speed, which is in itself improbable.

[31] I proceed to set out shortly my reasons for concluding that the
plaintiff did not discharge the onus of proving that the insured driver was
negligent.

[32] The plaintiff’s case depended on the reliability of a single
eyewitness, Bosman. His evidence was not corroborated in any material
respect. The circumstances for accurate observation were, to say the least,
unpropitious: the light was poor, the events were unexpected and passed
in a flash. Bosman had been drinking over several hours, to the extent
that sgt Bredell who arrived at the scene shortly after the accident (the
pedestrian was still bleeding freely) made a note in his diary that the
witness was under the influence of liquor – for that reason he deemed it
inappropriate to take a statement from him. Allie J, who saw the witness,
did not believe him. She said, ‘It is patently clear that he had a selective
recollection in which he could remember aspects which portrayed the
unidentified driver as negligent or reckless’. Reference to his evidence
bears her out.

[33] One cannot demand or expect pinpoint accuracy from an eye-
witness. The important issues for determination in this case were:
a)
the point of impact;

b)
the spatial relation between the plaintiff and the vehicle in the
moments preceding and at the point of impact.
But the witness either contradicted himself materially in evidence on
these matters or departed from statements made by him to the police
shortly after the event.

[34] Bosman testified that at the time of the collision he and his friends
(other than the plaintiff) were talking inside the yard of a house near the
gate. He was standing with his back to the road. However, in a statement
made under oath on 20 May 1997 and submitted to the defendant he said:
‘3.
Op 3 Junie 1995 was ek, my broer Gideon Bosman, Randall Brett en Arnold
Klaasen oppad na my huis. Ons het op die sypaadjie te Steenbrasweg geloop.
4.
Ek, Gideon en Randall het met iemand langs die pad gesels, terwyl Arnold ‘n
entjie vooruit geloop het. Arnold het toe gaan stilstaan. ‘n Voertuig het van
agter gekom en vir Arnold raakgery waar hy stilgestaan het op die sypaadjie.’
In evidence he conceded that paragraphs 3 and 4 were wrong. He also
said that, hearing a vehicle approach at a speed ‘toe ons omdraai is dit net
wat die bakkie op die kerb klim en weer af en hy vang vir Arnold [the
plaintiff].’

[35] He told the trial court that the plaintiff was at a point about a metre
from the edge of the road at the time he was struck and definitely not
standing at or near the edge. But Bredell’s evidence (reflected on his
contemporaneous sketch) that Bosman identified the edge as the point of
impact is obviously more reliable. Bosman twice conceded in cross-
examination that the plaintiff could indeed have walked into the road. He
did not deny pointing out to Bredell a point of impact on the edge of the
road, but he denied that that was in fact the correct point.

[36] A licensed driver himself, he estimated the speed of the vehicle at
between 100 and 120 kilometres per hour although it was beyond doubt
that he had insufficient opportunity to make such an observation.

[37] His account in evidence of the movements of the vehicle, seen
from the side at a distance of between 10 and 15 metres (to judge from
the photographs), could only have been an imaginative reconstruction. He
said
‘. . . hy het op die pavement gekom, amper soos ‘n – en hy kom weer pad toe, hy is
amper soos een wat verloor beheer het oor die voertuig en toe met inkom, wat hy
weer pad se kant toe kom, dis wat hy toe vir Arnold tref.’

[38] He first testified that the plaintiff was standing with his back to the
oncoming vehicle and was struck in the back. At another time he said that
the plaintiff turned his head and looked toward the vehicle. He was asked
(concerning the plaintiff): ‘Ten tye van die botsing, was sy rugkant na die
pad gewees of hoe?’ to which he replied, ‘Nee, my rugkant was na die pad
toe.’

[39] One further example of his unreliability, Bosman said - ‘Ons het
uitgehardloop om te kyk of ons nie die registrasienommer kan lees nie, maar daai
bakkie is te vinnig daar weg.’ But in his statement to the Fund he said that
they could not read the number because the vehicle had no rear lights.

[40] The inherent probabilities (as borne out to some extent by the
evidence of the defendant’s expert witness, Dr van der Spuy) are against
the version proffered by Bosman. If the front of the vehicle had struck the
plaintiff at any substantial speed he must inevitably have been thrown or
carried further than a few metres from the point of impact. Also, the

injuries suffered by the plaintiff both as to location and extent, were
inconsistent with a collision like that described by Bosman. The place at
which the plaintiff came to rest and the position of his body suggest, as
the most plausible inference, that he was struck at some point on the
tarred surface and deflected by the impact towards the left. Van der
Spuy’s comment that it was contrary to the laws of physics for him to
have been projected into the air by a single blow on the side of the head,
is simple common sense. By contrast, if Bosman’s account were to be
accepted, the only possible course of events is that the vehicle ran over
the plaintiff after it struck him (which did not happen). On that version
too the plaintiff could not have come to rest with his head on the
pavement and his torso and feet on the tarred surface at right angles to the
road edge.

[41] The probability is that the collision occurred on the left side of the
vehicle and that the injury was caused by a protuberance such as a wing
mirror or a projecting load. In such event the plaintiff would have been
propelled towards the kerb away from the path of the vehicle. Since he
came to rest with all of his body and legs stretched out into the road the
actual point of impact must have been at least a metre on to the surface.
As the single lane was only 3,1 metres wide, the likelihood is that the
vehicle was then in a position on or near the middle of the road. That
necessarily leads to the inference that the plaintiff had moved across the
road toward its path of travel. One does not know at what speed or in
what manner he was proceeding. Clearly he did not see the vehicle, if at
all, until it was too late. The fact that his sole injury was to the left front
of his head can only be explained on the supposition that he turned his
head towards the vehicle or looked back at his friends. One cannot
determine as a matter of likelihood whether he was closer to the front or

the rear of the vehicle when the impact took place. He certainly never
entered its line of travel.

[42] It becomes obvious that while the probabilities in an overall
conspectus fall heavily against the plaintiff, a precise determination of the
mechanics of the collision and the subsequent movements of the plaintiff
are not possible. In the circumstances there are too many imponderables
in the case of the plaintiff. I find it impossible to infer as a probability that
the driver was negligent in not taking any or sufficient action to avoid the
plaintiff. I would dismiss the appeal.

___________________
J A HEHER

JUDGE OF APPEAL

VAN HEERDEN JA:

[43] I have had the benefit of reading the judgments of my colleagues,
Mthiyane JA and Heher JA. I agree with the reasoning and conclusion of
Mthiyane JA. As regards the judgment of my colleague, Heher JA, I am
constrained to make a few comments so as to dispel any possible
misconceptions.

[44] In paragraph 6 of his judgment, Heher JA compares the testimony
of the eyewitness, Mr Bosman, with the content of a statement made by
him on 20 May 1997 (viz nearly two years after the collision had taken

place on 3 June 1995). Heher JA regards the discrepancy between
Bosman’s testimony and this statement – in regard to the positions of the
various people in the group of friends immediately prior to the collision –
as an example of Bosman’s ‘unreliability’ as a witness. As was the case
with the trial judge, Allie J, my colleague does not give sufficient weight
to the fact that Bosman was giving evidence ten years after the events of
the fateful night. Moreover, my colleague does not refer to the earlier
statement made by Bosman on 5 June 1995, viz only two days after the
collision. In that statement, Bosman said the following:
‘Op Saterdag 1995/06/03 om ongeveer 22.45 het ek en Arnold Claasen [sic Klaasen]
by ŉ vriend se hek – Steenbrasweg uitgestap. Ek [onleesbaar] nog by die hek gewees.
Arnold was reeds naby die rand van die pad gewees. Hy was nog steeds in die
sypaadjie gewees.’
As regards Bosman’s position relative to that of Klaasen immediately
prior to the collision, this earlier statement is the same as his testimony
during the trial. My colleague Mthiyane JA deals with this aspect in some
detail in paragraph 15 of his judgment and I agree with his reasoning in
this regard.

[45] As a further example of Bosman’s unreliability, Heher JA relies on
his evidence during the trial to the effect that Klaasen was standing at a
point about a metre from the edge of the road and not standing at or near
the edge. He contrasts this with sgt Bredell’s evidence, as reflected on his
sketch plan drawn up on the night in question, that Bosman had indicated
to him that the point of impact was at the edge of the road. My colleague
regards this pointing out as ‘obviously more reliable’ than Bosman’s
testimony in court. But, at the same time, Heher JA expresses misgivings
about the reliability of Bosman’s evidence concerning what happened on
that night inter alia on the ground that Bosman had been drinking and that

sgt Bredell did not take a statement from him then as he (Bosman) was
under the influence of liquor. Here too, Heher JA does not have regard to
Bosman’s statement dated 5 June 1995, in which he says that Klaasen,
although ‘near’ the edge of the road, was still on the pavement at the time
of the collision. The judgment of my colleague Mthiyane, in paragraph
15, also deals with this aspect in greater detail, pointing out correctly that
Bosman’s evidence as to Klaasen’s position just prior to the collision was
not at all categoric and was clearly based on a rough estimate.
Furthermore, Bosman’s so-called ‘concessions’ during cross-examination
on which Heher JA relies were not at all clear, and were in fact
interspersed with denials of the possibility that Klaasen stepped or could
have stepped out into the road before the collision occurred.

[46] Finally, Heher JA’s reconstruction of how the accident probably
occurred amounts to pure speculation. There was no evidence whatsoever
of protuberances such as a wing mirror or projecting load on the bakkie
that collided with Klaasen. Prof van der Spuy was not qualified to testify
as an accident reconstruction expert and and the respondent did not
attempt to place any other such evidence before the trial court.

______________________

BJ VAN HEERDEN

JUDGE OF APPEAL

CONCUR:

MTHIYANE JA
MLAMBO JA
KGOMO AJA
THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal

Date:
29 November 2007

Status:
Immediate

Please note that the media summary is intended for the benefit of the
media and does not form part of the judgment of the Supreme Court of
Appeal.

L VENTER obo A KLAASEN v ROAD ACCIDENT FUND [2007]
SCA 158 (RSA).

[1] Today the majority of the Supreme Court of Appeal upheld a claim
by Ms Larina Venter, a Curator ad litem for Mr Arnold Klaasen, who had
lodged a claim for damages for R1 479 570,26 against the Road Accident
Fund. The claim arose out of a motor vehicle accident which occurred at
Grabouw on 3 June 1995, when Mr Klaasen (who is a deaf-mute) was
knocked down by a hit and run vehicle.

[2] The Road Accident Fund initially alleged that Klaasen had not
been injured in a motor collision but had been assaulted. The Cape High
Court (Allie J) upheld their version. The full bench of the Cape High
Court reversed this finding, but while it found that Klaasen had in fact

been injured in a hit and run motor accident, it dismissed his appeal on
the grounds that it had not been proved that the driver of the hit and run
vehicle had been negligent.

[3] In the further appeal to the Supreme Court of Appeal, the majority
of the court accepted the evidence of Klaasen’s relative, Mr Nigel
Bosman, who had testified that the hit and run vehicle had mounted the
kerb and struck Klaasen, while he stood on the pavement. Consequently
the court found that the driver of the vehicle had been negligent and that
the Road Accident Fund was liable to compensate Klaasen for whatever
damages he might be able to prove.