Venter Du Plessis v Road Accident Fund

On 27 September 2014, at approximately 19h00, a collision occurred near the intersection of Buffelsfontein and Glendore roads in Port Elizabeth between a 650cc Suzuki motorcycle driven by the appellant, Mr Phillipus Arnoldus Venter Du Plessis, and a motor vehicle (registration number FHC 286 EC) driven by the insured driver, Mr Shad Sampson. The collision occurred in the dark, after it had been raining, with wet road surfaces. The appellant was returning home and had stopped at the stop street at the T-junction, turned right into Buffelsfontein road, and proceeded approximately 45 metres before pulling off onto the gravel verge to his left with the intention of taking a shortcut to his housing complex. He stopped on the gravel verge with his foot on the ground when he was struck from behind by the insured driver's vehicle. The appellant suffered severe injuries including fractures of the left tibia and left lateral malleolus. The parties agreed on quantum of damages at R1,778,550, subject to determination of liability. The appellant's version was that he had properly stopped at the stop street and was stationary on the gravel verge when struck from behind. The insured driver's version was that the appellant failed to stop at the stop street and drove across the intersection directly into his path, causing the collision on the tarred surface of Buffelsfontein road.

• Whether the appellant failed to establish on a balance of probabilities that the insured driver negligently caused the collision
• Whether the trial court erred in its assessment of the point of impact
• Whether the trial court and full court erred in their approach to resolving conflicting versions without proper credibility findings
• Whether there was contributory negligence on the part of the appellant
• Whether credibility findings ought to have been made against the insured driver based on material contradictions in his evidence

The appeal was upheld with costs. The order of the full court was set aside. The trial court order was substituted with an order that: (1) the plaintiff's claim succeeds; (2) the defendant must pay the plaintiff R1,778,550; (3) interest must be paid at the prescribed legal rate from fourteen days after the date of the order to date of payment; (4) the defendant must furnish an undertaking in terms of s 17(4)(a) of the Road Accident Fund Act 56 of 1996; (5) the defendant must pay the plaintiff's taxed party and party costs, including costs of photographs and reasonable qualifying fees and expenses of expert witnesses (Dr Olivier, Ansie Van Zyl, Dr Peter Whitehead, and Actuary Willem Boshoff); and (6) interest on taxed costs at the prescribed legal rate from date of allocatur to date of payment.

When a court is faced with two irreconcilable versions in a delictual claim, it must employ the technique set out in Stellenbosch Farmers' Winery Group Ltd v Martell & Cie, which requires findings on: (a) the credibility of witnesses based on factors including candour, demeanour, bias, internal and external contradictions, probabilities, and quality of performance; (b) reliability of witnesses based on opportunities to observe events and quality of recall; and (c) an evaluation of the probabilities of each party's version. A court cannot prefer one version over another based solely on perceived probabilities without first making proper credibility findings. Material contradictions between a witness's evidence-in-chief, what is put in cross-examination on that witness's behalf, and extra-curial statements made by the witness significantly impact on credibility and must be taken into account. Objective evidence such as the position of vehicles after a collision and patterns of damage are important factors in assessing the probabilities of competing versions. Where objective evidence and credibility findings point in one direction, a court will be compelled to accept that version even if it may initially seem less probable.

The Court made observations about the administrative chaos at the RAF's offices, noting that the original attorney withdrew, a new firm received instructions in late April 2021, and a notice of substitution and postponement application was filed on the morning of the hearing (4 May 2021) with no heads of argument filed. The Court commended counsel for the respondent (Mr Erasmus SC) who was briefed the night before the hearing but acted as a proper officer of the court by apologizing for the manner in which the appeal was conducted and requesting time to familiarize himself with the relatively short record before presenting argument ably, thereby avoiding a punitive costs order and injustice to the appellant. The Court also observed that on probabilities, it would have been "suicidal" for the appellant to suddenly swerve in front of an oncoming vehicle with headlights on - a colorful characterization of the improbability of the insured driver's version.

This case is significant for reinforcing the proper approach courts must take when faced with conflicting versions of factual witnesses, particularly in Road Accident Fund claims. It emphasizes that courts cannot simply choose between competing versions based on perceived probabilities without first making proper credibility findings using the comprehensive Stellenbosch Farmers' Winery technique. The case demonstrates that material contradictions in a witness's evidence (between evidence-in-chief, cross-examination, and extra-curial statements) must be properly considered and weighed in credibility assessments. It also highlights the importance of objective evidence (such as the position of vehicles after collision and damage patterns) in assessing the probabilities of competing versions. The judgment serves as a reminder that appellate courts will interfere with factual findings when they are based on false premises, ignore relevant facts, or reach conclusions that are plainly wrong. The case also illustrates procedural issues relating to the RAF's administrative challenges and the professional duty of counsel to act as officers of the court even when briefed at the last minute.