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[2015] ZASCA 40
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Posthumus N.O. and Another v Road Accident Fund (20024/2014) [2015] ZASCA 40 (25 March 2015)
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THE
SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
JUDGMENT
Reportable
Case
No:
20024/2014
In
the matter between:
WIHAN
POSTHUMUS
NO
............................................................................
FIRST
APPELLANT
ANGELO
ADELINO DA SILVA
MOREIRA
NO
............................................................................................
SECOND
APPELLANT
and
THE
ROAD ACCIDENT
FUND
.............................................................................
RESPONDENT
Neutral
citation:
Posthumus v The Road Accident Fund
(20024/2014)
[2015] ZASCA 40
(25 March 2015)
Coram:
Mhlantla, Leach, Saldulker and Mbha JJA and Gorven AJA
Heard:
10 March 2015
Delivered:
25 March 2015
Summary:
Delict – negligence of a motorist parked alongside a
roadway leaving headlights shining at oncoming traffic –
reasonably
foreseeable that oncoming motorist might be dazzled and
lose control of vehicle – driver of parked vehicle negligent.
ORDER
On
appeal from:
Gauteng Division, Pretoria (Preller and Makgoka JJ
and Sethusha AJ sitting as court of appeal):
1 The respondent’s
application for a postponement of the appeal is dismissed with costs.
2 The appeal
succeeds with costs, and the order of the full court is set aside and
substituted with the following:
‘
(a) The
appeal succeeds with costs.
(b) Paragraph 1 of
the trial court’s order of 25 October 2010 is amended by the
deletion of the words “limited in terms
of section 18(1)(
b
)
of the Act”.’
JUDGMENT
Leach
JA
(Mhlantla, Saldulker and Mbha JJA and Gorven AJA concurring)
[1]
During the early hours of 20 May 2003 Mrs Petronella Posthumus and
her husband Mr Pierre Posthumus were passengers in a Mercedes
Benz
Sprinter minibus being driven by Mr Andries Maritz along the N14
national road near Sannieshof when it left the road and capsized.
In
the course of this accident both Mr and Mrs Posthumus sustained
bodily injuries and, some four years later, they instituted
action
for damages against the respondent under the provisions of the Road
Accident Fund Act 56 of 1996 (the Act) alleging, inter
alia, that the
accident had been caused at least in part by the negligence of the
driver of another motor vehicle, a ‘bakkie’(a
colloquialism I intend to use for convenience) that had been parked
alongside the roadway with its headlights shining into the
roadway
that had blinded Maritz and led to him losing control of the minibus
and driving off the road. It is this assertion that
falls to be
determined in this appeal.
[2]
It was common cause at the trial, having been admitted both in the
respondent’s plea and recorded in the pre-trial minute
under
Uniform rule 37, that Mr Maritz had been negligent in regard to the
accident. However the importance of the issue whether
Mr Maritz lost
control at least partly due to his being blinded by the lights of a
stationary bakkie is that, should that have
been the case and the
driver of the bakkie have been causally negligent in regard to the
accident, the liability of the respondent
would not be limited by the
provisions of s 18(1)(b) of the Act as it would be if Maritz had been
solely to blame.
[3]
The litigation proceeded at the speed of a snail. Despite the
defendant’s plea having been filed in October 2007, it took
a
further two years before the matter came to trial in the Gauteng
Division, Pretoria. At that stage the issues relating to the
merits
of the claim were separated from those relating to the quantum of
damages under Uniform rule 33(4), and the trial proceeded
solely in
order to determine negligence and liability. The evidence led on
behalf of Mr and Mrs Posthumus was fairly terse and
uncomplicated,
and the respondent closed its case without calling any witnesses.
Although all that was required was a straight
forward factual
decision, it unfortunately took a year before judgment was delivered
in October 2010. Ultimately the court found
that there had in fact
not been a bakkie on the scene and that Mr Maritz had therefore been
solely responsible for the accident.
It therefore ordered that the
respondent was liable only to the limited extent prescribed by s
18(1)(
b
) of the Act.
[4]
Dissatisfied with this outcome, Mr and Mrs Posthumus sought leave to
appeal against the order. For reasons not apparent from
the record,
it took almost a year for their application to be dealt with.
Eventually, on 5 August 2011, they were granted leave
to appeal to a
full court of the Gauteng Division, Pretoria. But then, having
obtained such leave, it took more than two years
for the appeal
itself to be finalised, the appeal having been heard on 17 April 2013
and judgment having been delivered seven months
later.
[5]
The full court was unanimous that the trial judge had erred in
concluding that the bakkie was not on the scene at the time of
the
accident. However they were divided as to the outcome of the appeal.
Preller J, in a minority judgment, found that the driver
of the
bakkie had been negligent in leaving the lights of the vehicle
shining brightly into the road, that Maritz had been blinded
thereby
and that this had contributed to the accident taking place. On the
other hand, in a majority judgment Makgoka J and Sethusha
AJ, in
dismissing the appeal held that a causal link between the bakkie’s
lights shining into the road and the accident had
not been
established. They concluded that ‘save for the misdirection
concerning the finding on the presence of the bakkie
we find no
misdirection in the manner the trial court approached the facts’
and that they were therefore not at liberty to
interfere with its
factual findings. Thus although Preller J would have allowed the
appeal, the majority dismissed it.
[6]
The simple answer to the reasoning of the majority of the full court
is, of course, that the trial court’s finding that
there had
not been a bakkie on the scene was the very cornerstone of its
finding that Maritz had not been blinded and had been
solely to blame
for the accident. Once that fundamental finding had been proved
wrong, the full court on appeal was free
to reach its own conclusions
on the evidence on record. It is thus not surprising that this court
granted special leave to appeal.
[7]
And so some 12 years after the accident which gave rise to the claim,
the matter came before this court. Tragically it comes
at a time when
it is too late for the outcome to have any meaning for either Mr or
Mrs Posthumus, he having committed suicide before
the judgment of the
trial judge was delivered and she having died subsequently. The two
appellants are the administrators of their
respective estates.
[8]
Turning to the facts of the matter, Mr and Mrs Posthumus were
travelling together with Mr Maritz and his wife in the minibus
from
Kathu to Johannesburg when the accident happened. On the outskirts of
Sannieshof the road curved almost 90 degrees to their
right. Mr
Maritz testified that on approaching this curve he saw the bright
lights of a motor vehicle parked on the inside of the
curve off the
roadway facing towards him. These lights dazzled him as he negotiated
the curve and, as he could not see properly,
he allowed the minibus
to stray onto the gravel verge where it struck a curb. He then lost
control over the vehicle and it overturned.
[9]
His description of how the accident occurred was materially supported
by his wife, Mrs Louisa Maritz, who testified that she
had been
sitting in the front of the minibus alongside her husband. As
they approached the curve, she was turned in her seat
talking to Mr
Posthumus who was seated behind her. Suddenly he exclaimed about the
bright lights of a vehicle. Glancing ahead,
she was dazzled by the
lights of a vehicle shining onto her face. She only had time to
remark that the other vehicle should dim
its lights when the minibus
left the road. She sustained a severe head injury in the accident
that followed and only recovered
consciousness in hospital the
following day.
[10]
The respondent had no direct evidence to contradict that of Mr and
Mrs Maritz. Its case largely relied on its counsel’s
aggressive
and protracted cross-examination of Mr Maritz, cross-examination
which in the minority judgment of the full court was
correctly
described as having been ‘at times irrelevant and unfair’.
Moreover, although counsel representing the respondent
at the trial
accepted that there had in fact been another vehicle with headlights
on the scene, she subsequently appeared to change
her stance by
placing on record that she did not concede that to have been the
case. However the police documentation points inexorably
towards
there having been such a vehicle, and this was confirmed by a sworn
affidavit made by Mr KPW Kgantsi to a police reservist,
constable
Tshiping, on 2 July 2003.
[11]
Mr Kgantsi stated under oath in his affidavit that while driving his
bakkie from Sannieshof to Delareyville on the night in
question, he
had stopped alongside the road in order to relieve himself and that,
‘unfortunately I left my vehicle’s
lights on bright and
neglected to dim them’.
[1]
He went on to state that he had seen a Mercedes Benz Sprinter minibus
approaching from the direction of Delareyville which left
the road in
a curve, and that he had gone to render assistance and given his
particulars to those in the minibus. That this was
the accident in
which Mr and Mrs Posthumus were injured is self-evident, as was borne
out by the evidence of Mr Maritz that the
driver of the other vehicle
had come to their aid after the accident.
[12]
It is common cause that Mr Kgantsi had died on 14 July 2004.
[2]
Despite this, counsel for the respondent fought tooth and nail to
avoid his affidavit being introduced into evidence under s 3(1)(
c
)
of the
Law of Evidence Amendment Act 45 of 1988
. She was successful
in that the trial court refused to accept it. However the full
court, quite correctly bearing in mind
that the affidavit had been
taken during the course of a routine investigation from a person who
had since died, unanimously found
that it ought to have been admitted
in the interests of justice.
[13]
The affidavit of Mr Kgantsi provides substantial corroboration for
the version advanced by Mr and Mrs Maritz. It is therefore
clear from
all the admissible evidence that Mr Kgantsi’s bakkie was parked
alongside the road on the inside of the curve
and that its headlights
were on bright and shining into the road. The trial court erred and
misdirected itself in reaching the
contrary conclusion.
[14]
There is also no reason not to accept the evidence of Mr Maritz that
the bakkie’s bright headlights blinded him momentarily
thereby
interfering with his vision and causing him to drive onto the gravel
verge which, in turn, led to the minibus capsizing.
It was argued by
the respondent that Mr Maritz would not have been blinded by the
headlights, even if bright, as the bakkie would
not have been facing
directly towards him had he been looking at the roadway directly
ahead. However, not only are the respective
angles of approach
between the two vehicles a matter of speculation, but such an
argument is based on a theoretical reconstruction
of the event, an
exercise always fraught with uncertainty that generally carries less
weight than the direct and credible evidence
of eyewitnesses.
[3]
Mrs Maritz corroborated her husband on the dazzling effects of the
bakkie’s headlights and his statement that he was blinded
was,
in my view, satisfactorily shown to probably have been the case.
Indeed it is the most obvious cause of what occurred.
[15]
The issue then to be considered is whether Kgantsi was negligent in
allowing the bright lights of his vehicle to shine into
the roadway
as he did. It is now well settled that negligence will be established
if (a) a reasonable person in the position of
the defendant would
foresee the reasonable possibility of his or her conduct injuring
another’s person or property and would
take reasonable steps to
guard against that occurring, and (b) the defendant failed to take
such steps. Whether a reasonable person
would take steps to guard
against harm and what steps would be reasonable must of course be
determined in the light of the particular
circumstances of each
case.
[4]
[16]
It is a matter of common experience for motorists driving at night to
be faced with bright headlights of oncoming traffic that
dazzle them.
Some 67 years ago the learned authors MacIntosh and Scoble expressed
the opinion that it would probably be negligent
for a motorist to
fail to dim his or her lights when approaching an oncoming vehicle,
but observed that there appeared to be no
authoritative decision on
the issue.
[5]
The law reports of
this country in the intervening years are replete with decisions on
whether a motorist had driven negligently
after having been blinded
by bright oncoming headlights
[6]
but the issue of whether motorists who blind others by not dimming
their headlights are negligent does not appear to have arisen
for
decision (counsel were unable to refer us to any such reported case
nor did our own research bear fruit in this regard). As
was suggested
by counsel for the appellant, this may well be due to the fact that
motorists who blind other motorists normally
do not stop at the scene
of an accident to which they have contributed or because the former
provisions of the regulations promulgated
under s 26 of the Act
provided for the respondent’s liability only in the event of an
unidentified motor vehicle coming into
physical contact with any
other person, vehicle or object.
[17]
Be that as it may, the answer to the question whether Mr Kgantsi
acted negligently in the circumstances of this case must be
answered
in the affirmative. The dazzling effect of the bright headlights of
oncoming traffic impeding a motorist’s view
of the roadway
ahead is all too common an experience, as already mentioned.
Accordingly it is self-evident that a reasonable person
in Mr
Kgantsi’s position who parks a motor vehicle with its
headlights shining brightly into a roadway at night would foresee
the
reasonable possibility of an approaching motorist being blinded
thereby and driving off the road. Indeed the danger of this
occurring
in the present case was exacerbated by the bakkie being on the inside
of a relatively sharp curve rather than alongside
a straight stretch
of roadway.
[18]
Obvious reasonable steps to take to guard against this occurring were
to dim the headlights or, indeed, to turn them off, leaving
the
bakkie’s parking or hazard lights to warn of its presence. Mr
Kgantsi failed to take either of these steps, and his failure
to do
so fell short of what is required of a reasonable person in his
position. The inevitable finding is that he was causally
negligent in
regard to the accident and the contrary conclusion reached by both
the trial court and the majority of the full court
cannot stand.
[19]
Section 17(1) of the Act provides that the respondent shall be liable
to compensate persons who have suffered damages as a
result of bodily
injuries ‘caused by or arising from the driving of a motor
vehicle’. Section 20(2) of the Act goes
on to provide that a
person ‘who has placed or left a motor vehicle at any place
shall be deemed to be driving that motor
vehicle’ whilst it is
stationary. The turning on of headlights of a motor vehicle, and the
failure to dim or turn them off,
is causally connected to a
motorist’s use of a motor vehicle, and must be regarded as
‘arising from the driving’
of that vehicle. Indeed, the
respondent appears at all times to have accepted that to be the case.
Consequently, as a result of
Mr Kgantsi’s negligence, the
respondent was liable to whatever damages Mr and Mrs Posthumus had
suffered from their bodily
injuries arising out of the accident. The
appeal must succeed as their claims were therefore not limited by the
provisions of s
18(1)(
b
) of the Act, and the trial court’s
order that they be so limited cannot stand.
[20]
One further matter must be mentioned. The appeal in this court was
heard on Tuesday 10 March 2015. On the immediately preceding
Friday
the respondents filed an application for a postponement of the
appeal, supported by an affidavit from an attorney who alleged
that
she had been appointed to a panel that represented the respondent and
that, on 5 March 2015, she had received instructions
to act for the
respondent in the place of the attorney that had until then been the
attorney of record. She therefore sought a
postponement to enable the
respondent’s fresh legal representatives ‘to acquaint
themselves with the matter’.
[21]
On the day of the appeal when the matter was called at 9h45, counsel
who appeared for the respondent was informed that the
terse affidavit
did not provide a satisfactory explanation for the respondent not
being in the position to argue the appeal (I
should mention that
counsel involved had neither represented the respondent at any
previous stage and was not the author of the
heads of argument which
had been filed in this court). We therefore allowed the matter to
stand down until 11h15 for a supplementary
affidavit to be prepared.
That deadline passed but, at 11h25 we were approached by counsel in
chambers and asked for an extension
until noon. When that deadline
also passed without the respondent’s legal representatives
being present, we requested the
appellant’s legal
representatives to telephone respondent’s new attorney of
record to ascertain what was happening.
This proved unsuccessful as
we were informed from the Bar that the call had not been answered. As
there had still been no appearance
by 12h20, the application for a
postponement was dismissed with costs and the appeal then commenced.
At 12h35, while counsel for
the appellant was still addressing the
court, the respondent’s counsel appeared and, after the end of
the appellant’s
address, was informed that the postponement
application had been refused. This notwithstanding, he not only
accepted with alacrity
the invitation to argue the appeal but
proceeded to do so with vigour, and addressed us fully on the
material issues. In these
circumstances why a postponement had been
requested in the first place is something of a mystery.
[22]
Be that as it may, for purposes of completeness the order set out
below will include the order made in respect of the respondent’s
application for a postponement.
[23]
It is ordered:
1 The respondent’s
application for a postponement of the appeal is dismissed with costs.
2 The appeal
succeeds with costs, and the order of the full court is set aside and
substituted with the following:
‘
(a) The
appeal succeeds with costs.
(b) Paragraph 1 of
the trial court’s order of 25 October 2010 is amended by the
deletion of the words “limited in terms
of section 18(1)(
b
)
of the Act”.’
__________________________
L
E Leach
Judge
of Appeal
Appearances:
For
the Appellant: C J Nel
Instructed by:
Louw
& Da Silva Inc Attorneys
c/o
Van der Merwe & Associates, Pretoria
Lovius
Block Attorneys, Bloemfontein
For
the Respondent: S E Motloung
Instructed by:
Gildenhuys
Lessing Malatjie Inc, Pretoria
Maduba
Attorneys, Bloemfontein
[1]
This
is my translation from the Afrikaans ‘ongelukkig het ek my
voertuig se ligte op helder gelaat en nagelaat om die ligte
te
domp’.
[2]
A
copy of his death certificate was available.
[3]
Compare
Motor
Vehicle Assurance Fund v Kenny
1984
(4) SA 432E
at 436G-437B cited with approval by this court in
Roux
v Hattingh
2012
(6) SA 428
(SCA) para 20 and
Biddlecombe
v Road Accident Fund
[2011]
ZASCA 225
para 10.
[4]
See
eg
Hawekwa
Youth Camp and another v Byrne
2010 (6) SA 83
(SCA) para 23.
[5]
MacIntosh
& Scoble
Negligence
in Delict
3ed at 244.
[6]
See
eg
Flanders
(Pty) Ltd v Trans Zambezi Express (Pty) Ltd
2009 (4) SA 192
(SCA),
Rodrigues
v SA Mutual & General Insurance Co Ltd
1981
(2) SA 274
(A) and
Seemane
v AA Mutual Insurance Association Ltd
1975
(4) SA 767
(A).