Ephius Makaudze v Juliet Ann Greyvenstein

A road traffic accident occurred at the intersection of Robson Manyika Avenue and Second Street, Harare, at approximately 11 am on Friday 23 June 1995. Robson Manyika Avenue was a one-way street (east to west) and Second Street carried two-way traffic. Mrs Greyvenstein (the respondent) was stationary at the intersection at a red traffic light, while a commuter omnibus driven by an employee of the appellant was approaching from behind. Mrs Greyvenstein claimed she was in the right-hand lane with her indicator flashing to turn right into Second Street. The driver claimed she was in the centre lane with no indicator. When the light turned green, Mrs Greyvenstein moved forward to turn right. As she turned, the commuter omnibus came up on her right, struck her car near the front right-hand side, proceeded out of control across the intersection, and hit an emergency taxi which burst into flames. In total, four other vehicles besides the two protagonists were damaged. The right-hand turning lane was 7.2 metres wide, with ample room for two vehicles side by side. The commuter omnibus was traveling at 50-60 km/h and was carrying 18 passengers instead of the permitted 14.

• Whether the appellant had discharged the onus of proving that the collision was due to the fault of the respondent
• Whether the respondent was negligent in changing lanes or turning right
• The admissibility and weight of an alleged police plan under section 12 of the Civil Evidence Act
• Whether the admission in pleadings regarding the respondent's lane position was binding
• Which version of events should be accepted on a balance of probabilities

The appeal was dismissed with costs.

In a delictual claim arising from a road traffic accident, the plaintiff bears the onus of proving on a balance of probabilities that the collision was due to the fault of the defendant. Where two possible versions of events exist and there are no objective facts against which to measure the probabilities either way, the plaintiff fails to discharge the onus of proof. Documentary evidence, even if technically admissible under section 12 of the Civil Evidence Act, may be excluded under section 48 where it is unreliable or misleading, particularly where it is unsigned, its maker is unknown, and there is doubt as to whether it was made by a public officer pursuant to a duty to ascertain the truth.

McNally JA made critical observations about undiscriminating reliance on the Civil Evidence Act, citing previous cases (Mutimwinyi v Mutimwinyi and Pocock v AFC 1995 (2) ZLR 365 (S)) and stated that 'practitioners should be discouraged from adopting this slipshod approach to the serious business of discharging the onus of proof.' The Court also commented that the defendant's legal adviser dealt with an amendment without any regard for the rules of court, particularly Rule 132, and that the matter should have been finalized at the pre-trial conference. The Court remarked that 'many Zimbabweans either do not signal or signal as they turn, which is useless' when discussing traffic behavior and the use of indicators.

This case is significant in Zimbabwean jurisprudence for its strict approach to the admissibility of documentary evidence under the Civil Evidence Act, particularly alleged police plans. It emphasizes that practitioners should not undiscriminatingly rely on the provisions of the Civil Evidence Act and should carefully scrutinize the admissibility and reliability of documentary evidence. The case also reinforces the principle that the onus of proof lies on the plaintiff in delictual claims arising from road traffic accidents, and that where two versions are equally plausible, the plaintiff will fail to discharge the onus. It demonstrates the importance of proper investigation and presentation of objective physical evidence such as lane widths in road traffic accident cases.