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[2012] ZAGPJHC 27
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Sekwele v Road Accident Fund (43071/2010) [2012] ZAGPJHC 27 (1 March 2012)
REPUBLIC
OF SOUTH AFRICA
SOUTH GAUTENG HIGH
COURT, JOHANNESBURG
CASE NO: 43071/2010
In the matter between:
SEKWELE,
REUBEN
Plaintiff
and
ROAD
ACCIDENT FUND
Defendant
J U D G M E N T
COPPIN,
J
:
[1] This is a claim of
damages brought against the defendant for bodily injuries allegedly
sustained by the plaintiff in a collision.
The issues of negligence
(the merits) and the quantum were separated by agreement between the
parties. The matter proceeded
before me only in respect of the
merits.
[2] It is common cause
that on the 16
th
of February 2008 and at about 15h00 a
collision occurred between a white Mercedes Benz vehicle driven by
the plaintiff (“the
plaintiff’s Mercedes”) and a VW
Golf V TDi (“the
VW
”), there and then driven by
one Mr Aslam Mohamed (“
Aslam
”), on the R82
Vereeniging Road at or near that road’s intersection with Main
Road. It was also not disputed that the
visibility was good; the sun
was shining and the road was dry. It was further admitted that
the R82 consists of a double
dual carriageway and that the two
carriageways are separated by a grassed island; further, that at the
intersection in question
and on the side of the road running from
North to South there was one additional turn left only lane and an
additional turn right
only lane. The intersection in question was
controlled by a stop sign and cars travelling on the carriageway had
the right of way.
It was also common cause that the VW was
travelling from North to South in the right-hand lane (or “
fast
lane
”) and the plaintiff’s Mercedes was from the side
street and intended to cross over the carriageway (i.e. it was
travelling
from East to West) intending to travelling in a northerly
direction on the northbound carriageway. It was further not
disputed
that the point of impact was in the right-hand lane in which
the VW was travelling in. That after impact the VW came to a
standstill in the right-hand lane and the Mercedes came to a
standstill on the centre island. It was further accepted that
the speed limit on the R82 was 100 km per hour.
[3] In sum, the
plaintiff alleged that Aslam drove at an excessive speed;
failed to keep a proper lookout and failed to brake
or take
reasonable steps to avoid colliding with his vehicle and that Aslam
was accordingly wholly and solely at fault with regard
to the
collision. Aslam, on the other hand, alleged that the plaintiff
failed to stop at the stop street, failed to keep
a proper lookout
and failed to take appropriate steps to avoid a collision. It is
trite that the plaintiff had an
onus
to prove that Aslam was
negligent and that such negligence caused the collision. Similarly,
the defendant had an
onus
to prove contributory
negligence on the part of the plaintiff.
[4] The plaintiff gave
evidence himself and called two other witnesses, namely, Mr Isaac
Mnguni (“
Mnguni
”), an alleged eyewitness, and a
collision reconstruction expert, Mr R A Opperman (“
Opperman
”).
The defendant called Aslam, Mr Feroze Badat (“
Badat
”),
an alleged eyewitness and the investigating officer attached with the
investigation of possible negligent, or reckless
driving, Const
Mvelase (“
Mvelase
”). In addition to the oral
testimony of these witnesses the parties relied on documents, in
particular the contents
of the police docket (including statements
made by various witnesses) and photographs of the scene that were
taken subsequent to
the collision.
[5] I shall summarise
the evidence of these witnesses as briefly as possible. Everything
they said is on record and I had regard
to all of it in determining
whether the parties had discharged the respective burdens of proof
which I mentioned earlier.
[6] The plaintiff
testified that he was presently 53 years old and a businessman with
certain business interests. One the
day of the incident he was
returning from a property he owns in the area. He was
accompanied by an employee and she was seated
in the front passenger
seat next to him (i.e. to his left). He intended to travel north
along the R82. In order to do so he had
to cross the southbound side
of the R82 carriageway. He testified that he stopped at the
intersection in compliance with a stop
sign, intending to cross the
south side of the carriageway and then join the northbound
carriageway. He said that he looked to
his right once and then to his
left once and then again right once and at that point he saw a motor
vehicle approaching from his
right, but it was about 600 metres away
from where he was. He described this distance as more than the
length of a soccer
field. He testified that he then proceeded
to cross the intersection but before he could reach the middle point,
where he
was about to turn to travel along the northbound
carriageway, he saw the grey VW, just before impact, in his right
window.
After the impact his Mercedes landed on the island.
As he was not far from his property, one of his employees became
aware
of the collision and got others to come to the scene to assist
in evacuating the plaintiff from his vehicle. The plaintiff says
that
he could not get the seatbelt off and that it had to be cut off
before they could get him out. He further says that
after the
collision he was on the grass where he had been placed after being
removed from his Mercedes and while there he became
aware of another
Mercedes Benz vehicle which was parked on the eastern side. He
did not see this other Mercedes prior to
the collision. He testified
that one of the persons who tried to help him out of his vehicle was
Mnguni. He subsequently
got information from a Road Accident
Fund official, a Mr Mabunda, that there was an eyewitness to the
incident, namely, Mr Mnguni.
He was given Mnguni’s
contact details and he managed to trace Mnguni with the help of his
employees. He says he spoke
personally to Mnguni and took him
to his attorneys to make a statement.
[7] The plaintiff
testified further that when he first saw the vehicle from where he
was standing at the intersection the vehicle
was far, about 600
metres away and it appeared as if it was travelling at a reasonable
speed. That allowed for him to enter the
intersection to cross the
southbound carriageway. Since the collision he is of the view
that Aslam (in the VW) travelled
at a speed greater than 200 km per
hour because of the distance that the vehicle covered in a short
period of time. (This is based
on reconstruction.) He testified
that he was taken to hospital because of his injuries which included
an injury to his pelvis.
Under cross-examination the plaintiff
largely confirmed his evidence-in-chief. He testified that he only
saw one vehicle when he
took the final right look from where he was
at the intersection. He could not say whether the car was
travelling in the right
or left lane of the southbound carriageway.
He could also no see what make or colour the vehicle was. According
to him this
was because it was 600 metres away. He nevertheless
used a soccer field as his reference for the distance, insisted that
a soccer field was more than 500 metres in length and that the
vehicle in question was more than 500 metres away from him when he
saw it from where he was stopped at the intersection.
[8] The plaintiff under
cross-examination testified that he never kept the approaching
vehicle under observation as he entered
the intersection. He
expressed the view that the VW must have been travelling at a high
speed. He said that a Golf 5 has the capacity
to travel at a speed of
300 km per hour and that the VW could have been travelling at more
than 200 km per hour. He stated,
inter alia,
that his
son had a Golf 5 and that it had the capacity to travel at a maximum
speed of 320 km per hour. According to the plaintiff
a car travelling
at a normal speed would not have caused his Mercedes to look like “a
Banana”, describing the kind
of damage to the two right-side
doors and centre pillar of the Mercedes. He says that the impact had
caused him to fracture his
pelvis and also caused him, in the
process, to break the central consol inside his Mercedes. He said
that there would have been
less damage if the VW was travelling at
100 km per hour.
[9] The plaintiff also
testified under cross-examination that he accompanied Opperman to the
scene of the collision on or about
the 6
th
of December
2011 and pointed out and told Opperman that the VW was travelling at
200 km per hour. Regarding the collision he also
testified that
before the impact he heard no screeching of brakes or hooting but
only heard a bang on impact.
[10] The plaintiff also
testified that he met Mr Mabunda about two years after the collision
and it is Mr Mabunda that called him
and wanted to arrange court
appearances. The plaintiff was however not exactly certain of the
purpose of these court appearances.
He did not know which case
it related to and whether or not he was required as a witness in
respect of the road accident claim
lodged by Aslam. The
plaintiff further testified that he prepared a sketch-plan on which
he indicated the position of the
vehicles and recorded the telephonic
details of Mnguni. He conceded to visiting Prestine Motors in
order to trade-in some
of his taxi buses. He denied that the
collision was mentioned in his interaction with Badat, or that he
knew Mnguni from there.
When it was put to him that Badat will
deny that he raced against the VW, the plaintiff responded that he
could not comment on
that as he only saw Badat’s Mercedes
afterwards. He dismissed the version (i.e. of Badat) put to him as
one that was “
cooked
” between Badat and the
lawyers. He said that he learnt from Mnguni that Mnguni was no longer
working for his boss but he
never took down the name of Mnguni’s
boss. He did not consider approaching Badat as a possible
witness and he ascribed
this reluctance to his distrust, at the time,
of Indian people. Regarding the version of Aslam, that was put to
him, he testified
that he had no knowledge of Aslam’s version
and could not comment, but nevertheless denied that Aslam’s
version was
correct. In response to questions posed from the
bench he testified that on the day of the collision it was sunny and
the
weather was clear. He testified that he was on his way back
to work because he was still on duty.
[11] Mr Mnguni testified
through an interpreter. I should mention that initially the
plaintiff’s representatives had
no interpreter and were
initially, seemingly, of the view that no interpreter was required
and that Mr Mnguni’s command of
English was good enough, or
adequate. Mr Mnguni himself was confident that he could give evidence
in English. The appointment of
an interpreter was prompted by the
bench as a precaution and the plaintiff’s representative
engaged an interpreter.
[12] Mnguni testified
that on the day in question (it was common cause that it was a
Saturday) he was travelling with his boss,
Badat in his boss’s
Mercedes, a 280 C model, from Southgate. He was a front-seat
passenger. They were travelling on
the R82. His employer
was travelling at a high speed. The VW was at a point driving
parallel to Badat’s Mercedes.
Badat told him that the
driver of the VW was driving badly and invited him to look on Badat’s
Mercedes’ speedometer
to see what speed the VW was travelling
at. The VW was travelling at 200 km per hour. Badat was driving
in the fast lane
and the VW in the slow lane (i.e. the left-hand
lane). After he had looked at the speedometer a noise emanated
from Badat’s
Mercedes; it was a kind of rattling sound. This
caused him and Badat to listen to the sound. Badat did not do
anything about it
save to decelerate. The witness described where the
VW collided with the plaintiff’s Mercedes. He also testified
that prior
to the impact he did not hear a screeching of brakes. He
testified that just before the impact he lifted his knees towards the
dashboard as he realised that they were too close. After the impact,
Badat’s Mercedes Benz went through the midst of the area
where
the VW and the plaintiff’s Mercedes came into contact with each
other. He testified that Badat never applied his brakes
before the
impact. After going through the gap in the impact area Badat stopped
his vehicle and went to assist the people in the
VW while the witness
went to assist at the plaintiff’s Mercedes. Mnguni
testified that he had to kick the seatbelts
on both the plaintiff’s
side and his passenger’s side in order to loosen them and that
he also loosened the plaintiff’s
seatbelt and took the
plaintiff from the vehicle. He testified that Badat did not assist at
the plaintiff’s vehicle.
Mnguni also testified that he
never spoke to the plaintiff at the scene and did not know the
plaintiff prior to that. He
further testified, in chief, that
he left his employment with Badat about two years ago. He also
said that he was asked to
make a statement subsequent to the
collision and that he was also approached by the plaintiff and taken
to the plaintiff’s
attorneys to make a statement.
[13] Under
cross-examination Mnguni testified that two people came to his place
on two separate occasions to take a statement from
him regarding the
collision. He could not remember their names or where they were
from. He could also not remember the dates
when this occurred.
However, he was adamant that he never went to the police station.
Regarding the statement which was in the
docket (“
A16
”)
he testified that it was possible that it was taken by police but he
could not remember. He said that there were two people
who came to
take the statement and he signed it at his home. He further testified
that the plaintiff spoke to him after he had
made the statement
(A16). Regarding that statement he says that he told those that took
it exactly what he said here in court.
They spoke to him in
Zulu and wrote down the statement in English. According to him,
communication was not a problem.
Further, he testified that
when he was contacted by the plaintiff he was no longer employed by
Badat but was self-employed.
[14] It was put to
Mnguni,
inter alia,
that it was strange that the speed of 200
km per hour was not mentioned in A16. In response he was adamant that
he gave this information
to those who took the statement from him.
He also alleged that when the statement was taken he was busy working
and that
the statement taker(s) did not write down everything which
he told them.
[15] Mnguni testified
that he first became aware of the VW when it was behind Badat’s
Mercedes just when they left Southgate
and were under a bridge. Badat
was travelling in the right-hand (or fast lane). The VW then
went into the left lane but there
were many other vehicles in front
of it. It then came back into the right-hand lane. At some
point the VW and Badat’s
Mercedes were travelling alongside
each other. Before they reached the intersection where the collision
occurred there was Mazda
in the left lane in front of the VW (i.e. in
the slow lane). He testified that Badat had showed him what speed
Badat’s Mercedes
was travelling at and it was at 200 km per
hour. He did not look on his own at the speedometer initially,
because he was in the
passenger seat. Badat is the one that told him
to look because he himself could not drive.
[16] Mnguni testified
that as they were listening to the noise that emanated from Badat’s
Mercedes at a speed of 200 km per
hour, their eyes were off the road.
The VW had in the meantime managed to overtake them, in other words,
had moved from the left
lane to the right lane in front of Badat’s
Mercedes. When they lifted their eyes it was when the collision
occurred.
The witness testified that the Mazda went into the
left-turn-only lane and waited until the VW came to a standstill,
after impact,
and then drove off. He testified that Badat’s
vehicle is the only vehicle that stopped after the collision. He only
saw the
plaintiff’s Mercedes when the collision occurred.
He never saw it trying to cross their path of travel. He testified
that he saw the plaintiff’s vehicle when it was already in the
fast lane. He said that he knows that it crossed in
front of
the Mazda because the Mazda came to a standstill. However,
according to his testimony, the Mazda came to a standstill
at the
time of the impact.
[17] Mnguni testified
that he does not know how they came to know that he was a witness.
He could not say how far from the
intersection they were when they
heard the noise in Badat’s Mercedes. He testified that
just before the impact he lifted
his knees onto the dashboard because
he was afraid and just wanted the vehicles to be apart.
According to him despite other
vehicles being on the road Badat was
able to travel at a speed of 200 km per hour. He said that the road
was only busy on the opposite
side. On their side of the road there
was just one vehicle ahead, namely the Mazda. He was adamant that he
had stated, in all the
statements that he had made, that Badat’s
Mercedes and the VW were travelling at 200 km per hour. With
regard to the
inconsistencies between his statement, i.e. A16 and his
testimony in court, he ascribed them to mistakes on the part of the
taker
of the statement. He said that the English on the A16 was not
correct. Mnguni said that Badat stopped at the scene even though he
had driven at an excessive speed before that, and risked being
arrested. Mnguni denied being present when the plaintiff came to
Badat’s business premises (Prestine) for a possible trade-in.
He said that after the incident he did not go to the police
even
though his life had been endangered by Badat’s driving. He
testified that he just wanted to go home.
[18] Opperman is a
qualified civil engineer with a university degree. He has been
practising and giving evidence as an accident
reconstruction expert
for a long time. With regard to the present case, he readily
conceded that he had been given very limited
information. He
was given a completed accident report form, statements by the
plaintiff and his passenger (“
Tloti
”) and a
sketch-plan and key prepared by the Metro Police. He testified
that he may have been given other documents
such as medico-legal
reports but these did not assist him in coming to his conclusions. He
was not given any information that the
VW was travelling at 200 km
per hour and only became aware of this on Friday the 3
rd
of February 2012, when the trial commenced in this Court.
[19] Opperman testified
that he only had at his disposal information by the plaintiff that
the VW was travelling at an unreasonable
speed. He did not have
Aslam’s statement or the plaintiff’s sketch with a note
suggesting that Aslam travelled
at 200 km per hour. He attended
the scene of the collision with the plaintiff and the plaintiff’s
legal representative
on the 6
th
of December 2011. In
his report, which was traversed with him during his
evidence-in-chief, he records that certain details
were pointed out
to him and he took some photographs and measurements using a
measuring wheel, level and a measuring tape.
[20] According to his
report, Opperman established,
inter alia,
that the individual
lanes of each carriageway was approximately 3,7 metres wide and that
the carriageway was separated by a grassed
island which was
approximately 15 metres wide; that approaching the intersection from
the North (i.e. travelling in the same direction
as the VW did) the
road is slightly downhill (with a gradient of 4%) and curves to the
left; and that the uninterrupted sight
distance for a driver
that would be at the stop street, where the plaintiff would have
emerged from, toward the North, was about
280 metres.
[21] Opperman came to
certain conclusions based on his assessment of the probabilities,
based on the documents he was given and
what, according to him, was
pointed out to him by the plaintiff at the scene. On the
assumption that the measurements and
details in the Metro Police
sketch-plan and what was allegedly pointed out to him by the
plaintiff regarding the point of impact
was correct, Opperman
concluded that the plaintiff’s Mercedes would have taken 4,43
seconds to move from where it was at
the stop street to the point of
impact; that the distance from the stop line to the point of impact
was 14 metres; that the distance
the VW Golf could travel in 4,43
seconds, if it was travelling at a speed of 100 km per hour, was 123
metres and the distance necessary
for the Golf to stop was 94 metres.
Opperman also worked out on a scenario where the distance from the
stop line to the point of
impact was 8 metres. According to him it
would have then taken the Mercedes 4,95 seconds to reach the point of
impact and if the
VW Golf was travelling at 100 km per hour it would
have covered 138 metres in 4,95 seconds and that the Golf would have
required
94 metres to stop. Opperman also calculated scenarios
where the VW would have travelled at 200 km per hour but evidence of
this was this was rightly objected to. Opperman’s conclusions
on the scenarios I mentioned, is that if the driver of the
VW Golf
had kept a proper lookout he could have avoided the collision.
[22] For the defendant
Badat testified that he is a motor-dealer with a business situated
along the R82 in De Deur and that he
lives in Roshnee in Vereeniging,
which is about 5 km away from his business. He is 47 years of
age; he is very familiar with
the road in question and he testified
that it is known as a “death-trap” as fatal collisions
are a common occurrence
on this road. He has also lost relatives due
to accidents on this road.
[23] He testified that
on the day in question he was travelling from Fordsburg towards
Vereeniging on the R82. He was driving a
vehicle belonging to his
business, namely, a Mercedes Benz 180 C automatic. He was
accompanied by Mnguni who was an employee
of his business and who
worked as a parts stripper. Mnguni sat in the front passenger seat,
that is on his left. Badat testified
that about 1½ km
before the collision scene and on the R82, he was stopped at a robot
controlled intersection in the right-hand
lane. There were
vehicles following him. As he pulled off from the
robot-controlled intersection he moved into the
left, or “slow”
lane, to allow the vehicles following him to pass in the right lane.
In the distance there was a bakkie
in front of him which was also
travelling in the left or “slow” lane in a southerly
direction. He testified that
at that stage he had noticed the
VW. He said that the bakkie passed the intersection where the
collision occurred and by
that time the VW had passed his vehicle and
was travelling in the right-hand lane. The plaintiff’s
Mercedes crossed
the intersection after the bakkie had passed the
intersection but at that stage the VW was too close to the
plaintiff’s Mercedes
and slammed into it. Badat testified
that when the bakkie went through the said intersection it was about
100 metres ahead
of his vehicle. He said that he saw the
plaintiff’s Mercedes when it was inside the intersection.
Badat further
testified that some of the debris from the impact
between the VW and the plaintiff’s Mercedes flew onto his car,
but he was
able to stop before the intersection on the left-hand side
of the road. He testified that as he was approaching the
intersection
he was travelling between 80 to 90 kilometres per hour.
He estimated that at the time when the VW passed him it must have
been
travelling faster than his vehicle, possibly at a speed in
excess of 100 km per hour.
[24] Badat denied ever
racing with the VW, or travelling at 200 km per hour as Mr Mnguni
testified. He denied showing Mnguni
the speed on the
speedometer. He described Mnguni’s version that they were
racing, as “a lie” and said
that he would never race, or
drive at a high speed on that road, because of the known dangers on
that road. He said that he does
not even think that Mnguni was aware
of what was happening. According to him Mnguni was busy with a
listening device. Badat says
that he even alerted Mnguni to the
impending collision between the VW and the plaintiff’s
Mercedes.
[25] Badat testified
that at the time of the collision Mnguni had been working for him for
5 to 6 years. Mnguni’s father
had also worked for Badat for a
long time (about 20 years). After Mnguni’s father’s death
there was an issue relating
to the father’s estate, or assets,
that Badat was requested, by the family, to discuss with Mnguni. The
family alleged that
Mnguni had removed certain items from his
father’s property without permission. When Badat summoned
Mnguni to the meeting
with his other family members, Mnguni absconded
and never returned to his employment.
[26] Badat testified
that at some point subsequent to the collision the plaintiff came to
his business in order to discuss a trade-in
of vehicles. He
said that he recognised the plaintiff and reminded him of the
collision. He told him that he was on
the scene. The
conversation concerning the accident came about as they were
discussing the vehicle that the plaintiff was driving
at the time.
The conversation concerning the collision was however brief and Badat
could not remember the detail.
[27] Badat testified
that when he had stopped his vehicle after the collision, he went to
the vehicles that were involved in the
collision in order to assist.
At some stage there was someone, who he assumed to be a nurse, at the
plaintiff’s Mercedes
who told them not to remove the plaintiff
from the vehicle, but to wait for the paramedics to do so. He
testified that he
also assisted at the VW. He further said that
he provided his details i.e. his name and telephone number, to the
police who
came to the scene. He could not remember if Mnguni did the
same.
[28] Badat testified
that he did not know Aslam prior to the incident and of the occupants
in Aslam’s vehicle (i.e. the VW),
he may have come across
Aslam’s father somewhere before. He testified that he was
on the scene when the plaintiff was
removed from his vehicle by
paramedics and that an older lady who had been in the VW, was placed
next to his vehicle where it was
standing.
[29] He testified that
the C180 Mercedes that he was driving is not a high performance
vehicle, but conceded that you can go fast
in it if you wanted to.
He further said that as a rule he does not drive fast. He said
that when the VW passed him
they were about 100 metres from the point
of impact, but he also testified that the VW was about 150 metres
ahead of his vehicle.
He conceded that the VW must have
increased its speed when it passed his vehicle. He could not
say whether it travelled in
excess of 120 km per hour, but said that
it was possible.
[30] Badat was adamant
that the plaintiff crossed the intersection when the VW was already
too close to it. He testified
that he was not sure for what
purpose he was asked to give someone from Aslam’s family a
statement. He was otherwise never
contacted by anyone for a statement
until about last week (i.e. the first week of February) when someone
telephoned him and asked
him about the accident.
[31] Badat said that the
plaintiff’s Mercedes was damaged on the right side; both its
right doors and the pillar separating
it was “smashed”
in. He conceded that this was “
big damage
”.
He could not say whether the VW was a write-off, but said its whole
front was “smashed” in. He testified
that he had enough
distance to avoid the collision, because he was in the left-hand side
lane, away from the collision. He
saw no other vehicle ahead of
him save for the bakkie which had already passed the intersection
before the collision. He testified
that he had no reason to race and
he was surprised by Mnguni’s blatant lies in that regard. In
addition to the other reasons
for not wanting to drive fast on that
road, which I mentioned earlier, he said that it was impossible to
travel at 200 km per hour
on that road.
[32] Badat denied
accusing the plaintiff of causing the accident when the plaintiff
came to his business for a trade-in. He denied
that he was following
the VW in the fast lane as Mnguni testified and that his car passed
in the gap left after the VW and plaintiff’s
Mercedes separated
on impact. He described Mnguni’s evidence as a concocted
version of events. Badat said that after
impact the VW came to a
standstill in the very lane it was travelling in. It just “bounced
back” after hitting the
plaintiff’s Mercedes. Badat
denied that he was not admitting to speeding because he would be
admitting to an offence.
In re-examination Badat,
inter
alia
, testified that the plaintiff’s Mercedes, when it
crossed in front of them was about 100 to 120 metres away from his
vehicle.
[33] Aslam testified
that he was presently 30 years old. (At the time of the collision he
was 26 years old). He resides with his
family in Walkerville. He
completed his N3 cetificate in engineering and was employed in an
engineering concern. He testified that
he purchased the VW about a
year before the collision and at the time of purchase it had only
done 60 000 kilometres. He testified
that due to the collision it was
written-off.
[34] Aslam said that on
the day of the collision he was driving the VW and his father, aunt
and brother were his passengers.
They were travelling from
Rosebank, where he went to look at rings in preparation for his
marriage. They drove on the R82 on their
way home (i.e. from North to
South). His father was sitting in the front passenger seat next
to him. His father is
presently 52 years old (i.e. he was about
48 years old at the time of the collision).
[35] Aslam described the
VW as a hatchback Turbo Diesel vehicle with fuel-injection (i.e. a
“
TDi
”). He testified that he was driving at
about 100 km per hour toward the scene. He noticed the plaintiff’s
Mercedes
when he came around the bend. This was around 120 metres
from the intersection where the Mercedes was to enter into the
carriageway.
He testified that he saw the plaintiff’s Mercedes
rolling slowly out of the service road towards the stop. At the
time
Aslam was travelling in the right-hand lane of the southbound
carriageway.
[36] In chief, Aslam
testified that he saw the plaintiff’s vehicle rolling slowly to
the stop and suddenly shoot across.
He said that he hardly had
time to think and a collision occurred. The front of the VW
collided into the side of the plaintiff’s
Mercedes. He said
that when he saw the plaintiff’s vehicle “
slowly
rolling
” to the stop he assumed that it was going to stop.
He did not consider it a danger to him and proceeded. In front of
his
vehicle there was a Hyundai Getz in the left-hand lane. It was 50 to
80 metres ahead of his vehicle and it managed to clear
the
intersection before the collision.
[37] Aslam denied racing
with Badat, or anyone else. He testified that he did not know Badat
personally, but heard of him because
of his car sales. He testified
that he would not have raced with his father in his vehicle and would
not have raced against Badat,
who was probably his father’s
age. Aslam testified he did not know where Badat came to a
standstill after the collision.
He said that he sustained a
fracture of his fourth lumbar vertebra. His father and aunt
sustained relatively minor injuries,
but his brother sustained more
extensive injuries.
[38] Aslam testified
that he had lodged a claim with the Road Accident Fund for his
injuries. The matter was eventually settled
in his favour after
the present plaintiff (Sekwele) failed to come to the Magistrates’
Court on three occasions. He settled
on the basis of an apportionment
of 80/20, in his favour, in order to finalise the matter and not
because he admitted to any negligence,
but for practical reasons. His
business, according to him, was more important. He could not remember
who the defendant’s
attorneys were in that case.
[39] Aslam recalled that
after the impact his vehicle came to a stop in the very lane in which
he was travelling and that he was
told that the plaintiff’s
vehicle had landed on the island.
[40] Aslam also
testified that he became aware of Badat’s presence on the road
because his father, who knew Badat, waved
at him. He could not recall
whether this occurred at the robots. He testified that he passed
Badat’s vehicle about 1½
kilometres from the bend in the
road. He indicated with reference to a tree that stood to the left of
the southbound carriageway
that it was more less at that point that
he became aware of the plaintiff’s Mercedes that was rolling
slowly in the service
road towards the stop street. It
was put to him that Opperman said that the distance from that tree to
the intersection
where the plaintiff crossed was about 155 metres.
Aslam said that he was not sure about that. He denied driving at the
speed
of 200 km per hour and said that he did not think that his
vehicle had the capacity to reach such a speed.
[41] Aslam said that he
was not aware of anyone acting on his behalf contacting Badat for a
statement. Under cross-examination
he denied that his vehicle
travelled at a speed of 194 kilometres and said that his car could
only attain a speed of about 169
kilometres per hour. He said
that the plaintiff’s Mercedes came rolling slowly to the stop
and he had assumed that
it would stop. It was put to him that in a
written statement submitted to the police and the defendant, Aslam
(and the other witnesses
in his vehicle) had stated that the
plaintiff had stopped before entering the carriageway. Aslam
said that what he meant
was that it seemed as if the plaintiff was
going to stop. He assumed that the plaintiff did so. He said
that his recall of
events has improved over time.
[42] Aslam further
stated under cross-examination that he remained in the right-hand
lane after he overtook Badat’s vehicle.
He saw the
plaintiff’s vehicle when it was 5 to 10 metres away from the
stop street. Aslam further suggested that the plaintiff’s
vehicle “shot” into the intersection. He said that
when he collided with it, it seemed as if it had been standing
still
in front of his vehicle. He does not know if the plaintiff braked, or
not.
[43] Aslam denied lying
in court. He could not remember whether he gave the police a
statement on the scene of the accident.
He testified that after
he assumed that the plaintiff would stop there was no reason for him
to keep his eyes on the plaintiff’s
vehicle. He said he
was looking straight ahead. He testified that there were no other
vehicles ahead of him, save for the
vehicle in the left lane.
He did not move into the left lane. Further, he testified that
when he passed Badat’s
vehicle it was travelling at a speed of
80 to 90 kilometres per hour. He passed Badat gradually and he
was only travelling
at 100 km per hour. He denied exceeding the
speed limit and said that Badat’s estimation of his speed was
wrong. He
conceded not mentioning the speed at which he was
travelling in his statement. He ascribed the omission to his
inexperience of
collisions at the time. The collision under
consideration, according to him, was the first one that he was
involved in.
[44] Aslam conceded that
he only saw the plaintiff’s Mercedes again when it was in front
of him in the right-hand lane. He
said that everything happened so
fast. He was satisfied that the plaintiff had stopped at the
intersection and conceded not keeping
the plaintiff under constant
observation. He denied that his version in court, to the effect that
the plaintiff did not stop, was
a fabrication. He said that he
assumed that the plaintiff was going to stop. Aslam mentioned that
the collision occurred about
4 years ago and that English was an
“ambiguous” language.
[45] Aslam testified
that he looked at his speedometer at about the time when he passed
Badat’s vehicle. That is how
he knows he travelled at 100
km per hour. He denied that he could have braked or swerved to
the left in order to avoid the
collision and stated that instead it
would have been easier for the plaintiff to stop at the intersection
(or stop street).
He denied the correctness of Badat’s
evidence that he was about 150 kilometres ahead of Badat when the
collision occurred.
In re-examination Aslam
inter alia
testified that his lawyers prepared a written statement that he had
signed.
[46] Constable Mvelase
identified the docket which was Exhibit B. She was the second
investigator involved in the investigation
of possible charges of
reckless driving arising out of this collision. She,
inter
alia,
identified the statement of Mnguni (A16) as a statement
that she took down and commissioned. She could not remember when and
in
what circumstances; whether she went tot Mnguni’s place or
whether he came to the police station. She testified that
she
spoke to Mnguni in Zulu and wrote the statement down in English.
She only wrote down what Mnguni told her. She did not
write down what
he did not tell her. She could not recollect whether she gave him the
statement to read, but he did sign it. The
usual procedure is to give
the interviewee the statement to read and to sign it if he is
satisfied that it is correct. Dealing
with specific things appearing,
or not appearing, in Mnguni’s statement she testified,
inter
alia
, that if Mnguni told her that the vehicle in question was
travelling at 200 km per hour she would have written it down and she
would have asked both drivers about it. She could not say why Badat
was not approached and why a statement was not obtained from
him.
She could not recall if she asked Mnguni what his employer’s
name was. She could not remember whether she
recorded what
Mnguni told her in summary form, or whether it was
verbatim
.
She confirmed that is recorded in the investigation diary that the
prosecutor declined to prosecute anyone because even
though he or she
believed that Aslam drove at a high speed – it could not be
proved and, furthermore, according to the prosecutor,
the plaintiff
had entered the intersection when the road was not clear.
SHORT SUMMARY OF THE MAIN
ARGUMENT
[47] The main issue was
whether the plaintiff had discharged his
onus
of proving that
Aslam was negligent and that his negligence was the factual and legal
cause of the collision. Further, if so, whether
causal negligence on
the part of the plaintiff had been proved by the defendant and, if
so, how the fault was to be apportioned.
[48]
On behalf of the plaintiff it was submitted, in essence, that even
on Aslam’s version of events, the plaintiff has discharged
his
onus
.
It was submitted that Aslam was wholly negligent, or at worse for the
plaintiff, the plaintiff was 25% to blame while Aslam was
75% to be
blamed for the collision. Counsel for the plaintiff referred,
in particular, to two decisions of the Appellate
Division in support
of his submission namely
Griffiths
v
Netherlands Insurance Co Ltd of SA Ltd
[1]
and
Caldwell
v
Commercial Union Assurance Co of SA Ltd
[2]
.
Both of these cases dealt with collisions between a motorist entering
a main thoroughfare from a stop street with the intention
of turning
and a motor vehicle driving along the thoroughfare at an excessive
speed. I will deal with the detail of the submissions
made on behalf
of the plaintiff in the course of my analysis of the evidence.
[49] It was submitted on
behalf of the defendant, in essence, that the plaintiff’s
version (and that of Mnguni) should be
rejected. Further, that the
matter should be decided on the version of Aslam and Badat; that one
had to bear in mind that the circumstances
and speeds given were
estimates arrived at by reconstruction and that the collision
occurred a long time ago. Further, that
Opperman’s
calculations were based on unreliable information, approximations and
assumptions. It was furthermore submitted
on behalf of the defendant,
that even if it could be found that Aslam on his version (and the
calculations of Opperman in that
regard) was negligent, which was
denied, it had not been proven on a balance of probabilities that
such negligence caused the collision.
It was submitted that the
plaintiff entered the intersection precipitately and when it was not
safe to do so and that he was the
author of his own misfortune.
[50]
Counsel for the defendant also submitted that the cases of
Caldwell
and
Griffiths
were distinguishable from the present case on their facts. Several
cases dealing with the duties of drivers in the through road
and
those entering the through road from a stop street were referred
to.
[3]
It was also
submitted (in the alternative) by counsel for the defendant that if
causal negligence had to be found on the
side of Aslam then it was
slight and at worse there should be an apportionment of fault in the
order of 80/20 against the plaintiff.
ANALYSIS OF THE EVIDENCE
[51] Mr Sekwele did not
impress me. His estimate of distances on one aspect in particular,
was not only unreliable, but outrageous.
He was adamant that
when he saw the vehicle approach from his right on the through road
it was at a distance of about 600 metres
away when he entered the
intersection, but at the same time stated that the distance he was
referring to was more than the length
of a soccer field. A
soccer field according to him was about 500 metres long. This was
clearly wrong. A soccer field is not
500 metres let alone 600 metres
in length.
[52] His estimate was
such that even Opperman did not treat it seriously. It is
apparent from Opperman’s report and
an addendum to that report
that was handed up at the hearing as Exhibit “D”, that
not one of the scenarios, Opperman
did calculations on, is based on
such a distance. Opperman readily conceded that a soccer field was
not 500 metres in length and
more in the order of 90 to 100 metres.
Sekwele never mentioned to Opperman that the vehicle he saw was just
over the length
of a soccer field from where he was but had said in
his statement, which was given to Opperman, that the vehicle was
“
still far probably 600 m away
” from where he was
at the stop street. Opperman’s evidence was in any event
that from the stop street, i.e. where
the plaintiff emerged from, to
the right, one would only have an unobstructed view for about 280
metres. In argument plaintiff’s
counsel did not even attempt to
argue that the distance aspect should be accepted. Instead, it
was submitted that the “
plaintiff’s estimation of the
distance of the approaching vehicle at 600 metres was inaccurate
”.
In my view the estimation of the plaintiff was not only inaccurate
but grossly inaccurate.
[53] The plaintiff is
not an illiterate person. He is a businessman with several
business interests. He testified that he
matriculated and the
impression I got of him was that he was a reasonably sophisticated
person. He must have been very familiar
with soccer fields and
may have known their lengths or could easily have ascertained the
lengths. His insistence in court that
a soccer field was 500 metres
in length could not have been a case of mere error. An honest witness
would have conceded that he
made a mistake in his estimation.
It appears that he was not prepared to make such a concession because
he probably thought
that it would count against his case. After
all in his written statement that was submitted to the police he had
said that
this vehicle was 600 metres away.
[54] His testimony that
he looked right once and then left and then right again and then saw
the vehicle which was 600 metres away
is almost a textbook version of
what a driver should do at a stop street. How he managed to remember
the sequence is not clear.
In any event in order for the plaintiff to
explain how the vehicle that was 600 metres away reached his vehicle
in order to collide
with it, he had to “
assume
”
that it was being driven at a high unreasonable speed.
Otherwise his version that it was still about 600 metres away
when he
decided to cross, would make no sense at all.
[55] Even in a scenario,
where the oncoming vehicle could be assumed to have been travelling
at 200 km per hour, it could never
cover the distance of 600 metres
in about 4,43 seconds which, according to Opperman, was the time it
would have taken the plaintiff
to drive from the stop street to the
alleged point of impact. I have a difficulty with the veracity
of the version that the
VW was travelling at 200 km per hour but I
will deal with that aspect in discussing the version of Mnguni. On
the plaintiff’s
own version, after leaving the stop street
where he had stood he did not keep the vehicle, that was approaching
from his right,
under observation. He testified that it is only
at about the time of impact that he saw the VW on his right side.
I
found his version that he would not have kept the oncoming vehicle
on his right under observation to be contrived. One does not
just
cross a carriageway, like the one in question, without looking. In
any event a driver in his position had to keep a lookout
in case
there were material changes in the circumstances that he had observed
when he first decided to cross.
[56]
The plaintiff did not mention any other vehicle that was approaching
from his right save for one (but his witness, Mnguni
and Badat and
Aslam who were called by the defendant, maintained that there were at
least three vehicles close to the intersection
just prior to the
collision, i.e. the VW, Badat’s Mercedes and another
vehicle.
[4]
)
[57] Mnguni similarly
made a poor impression. His version bears the hallmarks of
untruth. Having seen both Badat, who is
a middle-aged businessman and
who, at the time of the collision was about 43 years of age, and
Aslam, then a 26 year old, and also
bearing in mind that Aslam had as
passengers his father who was then about 47 years old, his aunt, and
his brother, as well as
the nature of the carriageway, it is in my
view unlikely that Badat and Aslam were racing, or that they could
have reached a speed
of 200 km per hour on that road. It is
accepted that prior to this incident Badat and Aslam did not know
each other and at
best that Badat may have seen Aslam’s father
somewhere previously but did not actually know him. According
to Mnguni,
Badat spontaneously decided to race against the VW driven
by Aslam on this rather dangerous stretch of road and Aslam,
notwithstanding
the presence of his passengers and the other
conditions that prevailed, joined in this extremely hazardous
pursuit.
[58] Mnguni’s
evidence that the VW and Badat’s Mercedes were travelling at a
speed of 200 km per hour is made up.
It is unlikely that
Mvelase would not have written down in her statement that Badat (and
Aslam) were travelling at that speed.
If Badat had made Mnguni
to look on the speedometer of his vehicle it is more likely that it
would have a prominent feature of
Mnguni’s version and would
have been one of the things he would have told Mvelase. In my view,
it is more likely that he
did not mention it to Mvelase at all and
that it was not part of his version at the time. The speed of
200 km per hour is
also recorded in a corner of a sketch plan made by
the plaintiff. It is apparent that the note, which I shall shortly
discuss,
was added to the sketch. The note does not say that a
witness (Mnguni) has told the police that Aslam travelled at 200 km
per hour
but states “
Driver D who was following driver (A)
gave statement to Metro Police, at what speed was drive (A)
travelling at which suggest he
was travelling at more than 200 km per
hour
”. In his evidence the plaintiff testified that by
driver “D” he was referring to driver “C” as
per
his sketch. Driver “C” as per his sketch would have
been Badat which was following driver “A” (i.e. Aslam
in
the VW). In his sketch/statement, the plaintiff makes no
mention of Mnguni saying to him, or to the South African Police,
or
to the Metro Police, that either Badat, or Aslam was travelling at
200 km per hour. It alleges that Badat made such a statement
to the
Metro Police. No such statement was produced. The Metro Police
were never called to give evidence and Badat denied
ever making such
a statement, or that either he or Aslam were travelling at such a
speed.
[59] The fact that
Opperman was not earlier informed that Aslam (or Badat) were
travelling at such a speed is a good indicator
that the evidence of
Mnguni (and of the plaintiff) “
to that effect
”, is
a fabrication. It was invented to try and explain how the VW could
have covered 600 metres in a short space of time.
[60] Mnguni’s
evidence that Badat showed him the speedometer while they were
travelling at a speed of 200 km per hour does
not have the ring of
truth. This combined with the fact that both he and Badat would have
taken their eyes of the road to listen
to the noise emanating from
Badat’s vehicle at that high speed, is also not believable.
His description of what then
occurs when they lift their eyes, just
before impact, is fictional. That they would have avoided being part
of the collision, on
his version, is nothing short of miraculous. The
fact that Badat stopped and was composed and sensible enough to go
and assist
the people in the vehicles undermines the veracity of
Mnguni’s version of them just having had a narrow escape.
[61] Mnguni did not say
why he left Badat’s employment and Badat’s version as to
why he probably left was not contested.
The fact that no motive
was proved why Mnguni would make up a version does not mean that he
did not indeed make up a version.
I found Badat to be a better
and more believable witness than Mnguni. But for his estimates
of the distance between himself
and the VW just before the collision,
Badat was a reliable witness. He did not give me the impression that
he was biased or in
favour of Aslam. He readily made concessions
concerning Aslam that were detrimental to Aslam’s version.
Insofar as
Mnguni’s evidence conflicted with that of Badat, I
prefer to accept the latter’s evidence.
[62] Furthermore, it is
unlikely that Badat would have stopped on the side in order to go and
render assistance at the scene and
thus expose himself to the police
and provide his detail, thereby risking arrest if he had indeed been
racing with Aslam, or at
the speeds testified by Mnguni. In my
view, it is more likely in those circumstances that he would have
tried to avoid the
scene altogether.
[63] Opperman had no
firsthand knowledge of any of the facts that he relied on. The facts
he relied on were hearsay. His contribution
was essentially to make
calculations in respect of different scenarios that may, or may not
have existed. He had no photographs
depicting the damage to the
vehicles. He never spoke to the Metro Police that were at the
scene. The Metro Police were not
called to confirm the correctness of
the measurements as depicted on their sketch, nor did they give
evidence at all. The plaintiff’s
version that the vehicle was
at a distance of 600 metres when he first saw it, was clearly
unreliable. Other than the plaintiff’s
version of
distance that was given, there was no other version of the plaintiff
available to Opperman as to where the vehicle was
when the plaintiff
first saw it approaching on the through road and when he decided to
cross. The plaintiff clearly never
mentioned a soccer field to
Opperman. There is nothing in the plaintiff’s statement
to the effect, nor does Opperman
mention it in his report.
Regarding Opperman’s visit to the scene of the plaintiff on the
6
th
of December, Opperman testified that the plaintiff
pointed out certain things to him. I wonder how effective this
could have
been since it was the plaintiff’s evidence that he
did not have his crutches with him and that he was sitting in his
vehicle.
Regarding distances, it is apparent that all the witnesses
were reconstructing and estimating distances.
[64] Aslam’s
evidence in terms of which he estimates that he was approximately at
a distance of a tree depicted in the photographs,
when he first
noticed the plaintiff’s Mercedes, can also not been taken as a
fact. It was clearly an estimation based
on reconstruction.
[65] I found Mvelase to
be an honest witness. She was fluent in English and answered
questions frankly and without hesitation.
Her memory of certain
events was understandably vague and poor given the time lapse and
lots of other matters that she may have
dealt with in the intervening
period. It is apparent from the statement that she took
from Mnguni (i.e. A16) that at
the time of the statement Mnguni had
already indicated that he was self-employed. It is unlikely that she
was told about Badat
and Aslam travelling at 200 km per hour and that
she would not have noted it that down and investigated the matter
further.
I believe her when she says that she only wrote down
what she was told. Insofar as her evidence conflicts with that
of Mnguni
I accept her evidence.
[66] As I have stated
before as far as Aslam’s evidence is concerned, his evidence is
corroborated in material respects by
Mnguni’s evidence and
Badat’s evidence. All three of these witnesses, although
they spoke of a different third
vehicle, testify of the presence of a
third vehicle that was very close to the intersection. According to
Badat and Aslam that
vehicle would have cleared the intersection
before the plaintiff entered the South bound carrraigeway.
Aslam’s evidence
that he passed Badat was also corroborated.
Regarding the speeds at which they were travelling, I cannot make a
finding that he
exceeded the speed limit given the evidence. Even
though Badat conceded that he might have, Badat’s evidence in
that regard
has to be considered in the light of the other evidence
of Badat and Aslam. According to Badat he was travelling at 80 to 90
km
per hour when he was passed by Aslam. If Aslam was travelling at
100 km per hour and Badat was only travelling at 80, then, as a
matter of logic Aslam could have passed Badat without having exceeded
the speed limit. Aslam’s evidence that he did not keep
the
plaintiff’s vehicle under constant observation after he had
seen it slowly rolling up to the stop street cannot be criticised.
He
was entitled to assume that the vehicle would come to a stop.
[67] On the evidence of
Badat and Aslam the plaintiff would have entered the through fare
when they were too close to the intersection
and Aslam was unable to
avoid colliding with the plaintiff. If we accept the plaintiff’s
version that when he saw the oncoming
vehicle it was just more than a
soccer field away from where he was (in reality 90 to 100 metres
away) then he had entered the
intersection precipitately, because if
the oncoming vehicle was travelling at a speed of 100 km per hour it
needed, according to
Opperman’s calculations, at least 94
metres of distance in order to stop. Taking all contingencies into
account this might
have been too late for the plaintiff. The
plaintiff entered the intersection precipitately. On his own version
he failed to keep
approaching traffic under observation.
[68] On my evaluation of
the evidence the plaintiff failed in proving, on a balance of
probabilities, that Aslam was negligent
and that his negligence
caused the collision.
[69] Regarding the cases
that were referred to by the plaintiff’s counsel I am of the
view that those cases can be distinguished
on the facts. In any event
in the present case no causal negligence has been proved on the part
of Aslam. In those circumstances
the plaintiff must fail. The costs
must follow that result.
[70] I accordingly make
the following order:
The
plaintiff’s claim is dismissed with costs.
P
COPPIN
JUDGE
OF THE SOUTH GAUTENG
HIGH
COURT, JOHANNESBURG
COUNSEL FOR THE
PLAINTIFF ADV J N DE VOS SC
INSTRUCTED BY
JOSEPHS INC
COUNSEL FOR THE DEFENDANT
ADV A CAJEE
INSTRUCTED BY
M F JASSAT DHLAMINI ATTORNEYS
[1]
1976
(4) SA 691 (AD).
[2]
1977
(1) SA 748 (AD).
[3]
Regarding
the duties of the driver on the through road:
Protea
Assurance Co Ltd v LTA Building (SWA) Ltd
1980 (1) SA 303
(A);
National
Employers’ General Insurance Co Ltd v Sullivan
1988 (1) SA 27
(A);
Marine
and Trade Insurance Co Ltd v Biyasi
1981 (1) SA 918
(A);
Bothma
v Zentkowsky
1951 (1) SA 63
(T). Regarding the duties of a motorist who
approaches a through road from an intersection:
S
v Truter
1987
(1) SA 339
(C).
[4]
Each
of these witnesses recollected that it was a vehicle of a different
make from what the other recalled. Mnguni testified
it was a
Mazda, Badat testified it was a bakkie and Aslam testified that it
was a Getz.