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[2010] ZAGPJHC 49
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Unitrans Fuel & Chemical (Pty) Ltd v Dove-Co Carriers CC (A5029/06) [2010] ZAGPJHC 49; 2010 (5) SA 340 (GSJ) (15 June 2010)
REPUBLIC OF SOUTH AFRICA
SOUTH GAUTENG HIGH COURT, JOHANNESBURG
APPEAL
COURT
CASE
NO: A5029/06
In the matter between:
UNITRANS
FUEL & CHEMICAL (PTY) LTD
Appellant
and
DOVE-CO
CARRIERS CC
Respondent
J U D G M E N T
HALGRYN, AJ
:
Nature of appeal
[1] This appeal came before us with leave granted by the Supreme
Court of Appeal.
[2] The
appeal lies against the whole of the Judgment and Order by Jajbhay,
J, in the Court
a
quo
,
where, in an action for damages resulting from a collision between
two trucks, the learned Judge granted absolution from the instance
with costs.
Condonation
[3] The
appeal was not prosecuted timeously; in that the appellant failed to
make application for a date of hearing and serving
and filing of the
record of the proceedings in the Court
a
quo
,
within 60 days of the filing of the notice of appeal, as is required
in terms of Rule 49(6) and (7) of the Rules of the Conduct
of
Proceedings in the High Court.
[4] The
application for a trial date and the serving and filing of the record
of the proceedings in the Court
a
quo
,
was late by some 3 years.
[5] This notwithstanding, condonation was granted at the outset of
the argument herein, without much ado and largely due to the
fact
that respondent indicated that it agreed that condonation be granted.
[6] I confess
that I was dead opposed to granting condonation herein. I have yet to
come across a longer period of delay and it
is the specific excuse
for the delay herein, i.e. a delay of some 3 years by the
transcribers to finalize the record for the purposes
of this appeal,
which require of me to include my views on the condonation
application in this judgment. It was my learned and
more senior
Brothers Moshidi J and Mathopo J who convinced me, with respect, that
it does happen often that the transcribers, who
contract with the
Department of Justice, cause delays and that the appellant should not
be held accountable for their delays herein.
I, very reluctantly,
agreed. This having been said, the matter cannot rest there; lest it
happens again.
[7] The law
on condonation is trite and I do not propose to restate it herein.
Primarily and principally, an applicant for condonation
seeks an
indulgence from the Court and has to show that it bears no fault for
the delay. It is as simple as that and in so doing,
an applicant is
required to be candid and thorough in explaining the entire period of
the delay and the reason/s for it.
[8]
In
casu
,
the appellant, on the face of it, admittedly did its level best to
explain the delay of three years. The condonation application
comprised of some 200 pages, detailing the process over a period of 3
years, of the many attempts to get the transcribers to do,
what they
are contractually bound to do,
inter
alia
,
provide appeal transcripts timeously and without undue delay.
[9] The appellant was represented by new attorneys in the appeal and
they took great care to meticulously record everything that
their
predecessors did in order to obtain the transcript. Understandably,
they could not better these efforts and merely gave,
as full account
of what did take place, as they were able to, given the contents of
the files they took over from their predecessors.
[10] The appellant’s attorneys were undoubtedly aware of the
fact that, on the face of it, the clear undue delay, warranted
a very
good explanation and they left no stone unturned in their efforts to
include everything they possibly could in the application
for
condonation.
[11] This included many communications between the applicant’s
attorneys and the transcribers, between the appellant’s
attorneys and the respondent’s attorneys, file notes by various
persons dealing with the file such as candidate attorneys,
secretaries and attorneys.
[12] The reason I mention this is that all of this made for
excruciatingly painful reading, more particularly so, as I was not
at
all convinced that condonation ought to be granted; and I initially
set out to write a judgment refusing condonation.
[13] This has now become academic and the real purpose of my
addressing the condonation application herein is to express the
Court’s dissatisfaction at the dismal service delivery herein
by the contracted transcribers. A few brief remarks regarding
condonation applications in general, are also called for, bearing in
mind the peculiarities of this matter.
[14] Firstly; it is often and undesirably so, in our Courts, that
the length of the delay in condonation applications, determines
how
detailed the explanation is.
[15] To illustrate: if a delay of a few days has to be explained,
then the failure to deal with a day or two may well prove fatal
to
the application. Likewise, if a delay of some 3 weeks has to be
explained, then a failure to deal with 3-4 days, may lead to
the
failure of the application.
[16] In the
case of much longer delays, such as the case
in
casu
,
(of some 3 years), applicants somehow, (but too often), regard the
failure to explain 3-4 days as negligible. In fact, much longer,
unexplained periods seem to pale into insignificance, simply due to
the length of the total delay, seemingly under the impression
that a
few days or even weeks, here and there, will not “
brak
the camel’s back
”.
[17] This is unacceptable. The test does not change due to the
length of the delay and the duty to fully explain the entire period
of the delay, remains the same, quite irrespective of the period of
the delay.
[18]
In
casu
,
I made the painstaking effort of compiling a chronology of the events
which took place over the period of 3 years and my very
conservative
calculations led me to conclude that over the period of 3 years there
were in total, some 86 weeks, which were not
sufficiently explained.
[19] Even if I were to take into account only a third of this
period, to give the appellant the benefit of the doubt, it still
leaves a period of not less than nearly 28 weeks, which were not
sufficiently explained or not explained at all. This is in itself,
is far longer than the 60-day period, which had to be complied with
in the first place.
[20] It is so that the reason, throughout, for this excessive delay
was the non-cooperation by the contracted transcribers, first
of all,
Sneller Verbatim (Pty) Ltd and thereafter its successor, L.O.M.
Business Solution, but there were still large portions
of the period
which were not sufficiently explained and where it did not suffice in
my view, to simply have waited to see what
the transcribers came up
with from time to time.
[21] The aforesaid non-cooperation by the transcribers ranged from:
the typist being sick;
the typist
not being proficient in any of the languages used in the trial,
causing the “
record
to be a mess
”;
missing portions of the evidence;
incompetence
of LOM’s predecessor by using a “
deaf
transcriber
”;
Volume 2 was
still “
half
baked
”
after it was received;
LOM being unable to open the computer program that Sneller used;
not allowing the attorneys to get a copy of the CD containing the
evidence for the purpose of listening to it in order to correct
the
transcripts;
that “
…
Sally had returned the typing of the transcript to Rika and that
Rika in turn had appointed someone else to do the
typing …
”;
“…
the
original transcript was of such poor quality that he had to omit
certain words which were not said
(spoken)
,
changed words that were typed incorrectly and which caused,
according to him, certain words to have a different meaning as
to
what was really said, commented on the fact that the typist had no
understanding of the English language whatsoever and
that, in his
view, the poor punctuations and lack of proper paragraphing made a
huge difference to what the transcript had
to reflect …
”;
“…
the
entire transcript had to be gone through and corrected and stated
that he did not know what would happen if an Appeal Court
Judge
read ‘this crap’ …
”;
Nel’s evidence does not accord with the amendments made by
the attorneys;
only receiving Volumes 1 and 3;
employees being on leave;
computer being in for repair;
and so on.
[22] None of the explanations/excuses by the contracted subscribers
suffice and on the whole I find their services, or better
put, the
lack thereof, shocking. This is especially so, as they hold the
monopoly and the appellant could not shop around for
better services
elsewhere. The appellant’s erstwhile attorneys’
frustration was evident from the papers.
[23] At the end of the day, the real issue with the seemingly
nonplussed attitude of the transcribers herein, is that three Judges
on appeal were subjected to read an application for condonation, of
over 200 pages, attempting to explain a delay of 3 years, before
even
dealing with the merits.
[24] The transcribers herein seem oblivious of the fact, that once
they had eventually provided what they were obliged to provide,
the
transcript is not automatically before Court and that their
unacceptable delays and flimsy explanations and often ridiculous
excuses still had to be the subject matter, before a Court, in a
lengthy voluminous condonation application, which burdened the
Court
unacceptably.
[25] Significantly, the transcribers herein were of course always
quick to assist on payment and the appellant did not default
once,
but this did not serve as any encouragement for them to speed up the
process.
[26] By ant analysis, a delay of three years is so wholly
unacceptable, that something had to be said, to ensure its
non-occurrence
in the future. I engaged some of this Division’s
more senior Judges on this topic and they are agreed that this
judgment
ought to address this issue and also suggested to me that I
request the Registrar to send copies hereof to the Director-General
of the Department of Justice and to the contracted subscribers.
[27] It is precisely this, which constrained me to write this, in
order to attempt to ensure that there is no repeat of what happened
herein. This judgment must not be seen as authority that equally
long delays will be condoned in future. On the contrary, this
judgment serves to ensure that this never happens again.
[28] Applicants for condonation in our High Courts must take note of
two fundamentally important issues which arise from this
judgment,
i.e.:
The entire period of the delay has to be explained thoroughly and
the longer the period of delay, does not detract from this
fact;
and
if the reason for the delay is the non-cooperation by the
contracted transcribers, then substantial delays such as the one
herein will not constitute a sufficient reason/explanation for the
delay, without proof of attempts to compel the transcribers
to
provide the transcripts.
[29] Significantly, in our Administrative Law and Labour Law, such a
delay is inconceivable and will hardly ever be condoned.
There are
particular processes in terms of which decision makers, statutory
bodies and tribunals can be and must be compelled to
provide records
of proceedings timeously and the failure to follow such compulsory
procedures, is fatal to condonation applications,
where the reason
for the lateness is the failure to provide such a record of the
proceedings timeously.
[30]
Litigants in our Civil Courts have no choice but to utilize the
transcribers, contracted to the Minister of Justice, and although
not
party to that contract, they undoubtedly have the necessary
locus
standi
to bring an application to compel them and/or the Minister of Justice
to provide the transcripts, in the event of their defaulting
on their
contractual obligations.
[31] It is indeed a sad day that it has come this, but to burden
Judges of Appeal with condonation applications where the delays
are
of such magnitude, is simply unacceptable. In future, applicants for
condonation in matters such as this will have to show
their attempts
at compelling the transcribers to provide the record, including but
not limited to, the bringing of an application
to Court, to compel
compliance, as part of their explanation for the delay and to show
that they are not at fault.
[32] It goes without saying that, if granted, the transcribers
and/or the Minister may be ordered to pay the costs of such
applications.
The merits of the appeal
[33] I now turn to deal with the merits of the appeal.
[34] At
around 18h45 on 4 July 2004, a collision occurred between a Mercedes
284 Actros truck-tractor, (bearing registration letters
and numbers
PYM 970 GP), the property of the appellant, (“
the
appellant’s vehicle
”),
and a MAN truck and Henred Fruehauf trailer combination, (bearing
registration letters and numbers FC B311N), belonging
to one
Duvenage, who ceded all his right, title and interest in respect of
any and all claims relating to this vehicle to the defendant,
(“
the
respondent’s vehicle
”).
[35] This collision occurred approximately four kilometres north of
the Mooiriver Toll Plaza on a fairly straight stretch of road.
[36] Immediately prior to the collision, the appellant’s
vehicle was travelling from south to north and the respondent’s
vehicle from north to south.
[37] The road on which the vehicles involved in the aforesaid
collision, were travelling is a dual carriage highway, having three
lanes in each direction, the left one on which is an emergency lane,
demarcated with a solid yellow line.
[38] The lanes for travelling north and south are separated by a
median of approximately 20 meters, consistent of a grass margin,
a
steel hedge, a concrete storm water gutter and another grass margin.
[39] The collision occurred in the fast lane, (the lane most right
of the emergency lane), on the north bound side of the highway,
i.e.
on the respondent’s incorrect side of the road.
[40] It is
common cause that shortly prior to the
collision,
a ferocious storm broke loose and freshly fallen hail was covering
the road,
“
…
like a sheet
…”.
[41] It is so
that where a motor collision occurs on a party’s incorrect side
of the road,
prima
facie
,
and saving an explanation by such a party, negligence would be
inferred because of
res
ipsa loquitur
.
1
[42] The explanation, for the accident occurring on its incorrect
side of the road, proffered herein by the respondent, is one
of
sudden emergency.
[43] The
driver of the respondent’s vehicle at the time of the collision
was one Christoffel J Nel, (“
Nel
”)
and this is what he told the Court
a
quo
happened on the evening of the accident.
[44] Nel testified that he was towing two trailers, heavily laden
with granite blocks, on the night in question; and at the time
of the
accident it was already dark.
[45] A short
distance from the accident scene, he pulled off, urinated and checked
his vehicle. He then crested a hill (“
opdraande
”),
and then found, at the top of it, a white sheet of hail covering the
road, (“
En
toe ek bo-oor kom toe sien ek dit is net ‘n wit laken voor
my
.”)
[46] He was
travelling in the slow lane, i.e. the one between the fast and the
emergency lane at the time and noticed vehicle tracks
in the right
hand lane, i.e. the fast lane. He decided to move over to the right
and to travel in these tracks, because he thought
them to be drier
and more solid, (“
Ek
het gereken die spore is droger and dat ek kan vastrap plek kry
.”)
and to there attempt to bring his truck to a standstill.
[47] It was not raining very hard and at this point in time he used
his wipers only intermittently.
[48] Nel did
what he considered best at the time and moved over to the tracks in
the right hand lane. Once he was there, he applied
his brakes, but
immediately felt that he did not have good control over his truck and
he then used his “
retarder
”
to slow down.
[49] Whilst Nel was struggling to get his truck under control, a
kombi overtook him on his left hand side, in the slow lane.
After
overtaking him, the kombi also moved over to the right hand lane.
The kombi then lost control; started spinning and the
truck he was
driving, collided with the kombi, notwithstanding his attempts to
break hard at that time.
[50] Nel then lost control of his truck, which jack-knifed and
veered off the road to its right hand side, ultimately colliding
with
the appellant’s vehicle in its right hand lane.
[51] It is
not at all necessary to deal with the remainder of the evidence in
the Court
a
quo
,
as it was common cause that the only issue in dispute is the
respondent’s defence of sudden emergency and that in turn,
depends entirely on an analysis of Nel’s evidence, in my view.
[52] Nel was everything but a sterling witness. As a matter of fact,
I disliked the over-familiar, jocular tone he adopted, but
it seems
that he was largely allowed to get away with it by his examiners.
[53] I am also critical of his evidence in a number of respects,
although he was not tested, or not seriously tested, on these.
[54] I for one, found his evidence quite incredible, of being
confronted, (as if all of a sudden), with a sheet of hail, directly
and only after he had crested the hill; as if there was no hail on
the road when he was still cresting the hill or even prior to
that.
It rings fanciful in my view and it smacks of an attempt to justify,
being in the fast lane, whilst driving a slow, heavily
laden truck,
which otherwise, did not belong there.
[55] Even if
this version is accepted, (and I have to because it was not
challenged), on Nel’s version during cross-examination,
he, (at
the time he noticed the sheet of while hail), also noticed chaos
further down the road. He realized there was a problem
ahead. He
could not see exactly what it was, but he could see something was
very wrong. He saw a number of vehicles on the road,
(“
…
U sien daar ver voor staan die wêreld vol karre …
”).
This, he said, was quite a way ahead, (“
…
‘n redelike afstand
…”).
[56] This
made him realize that he had to stop, (“
Daar
is fout, ek moet begint – en ek moet rigting kry. Ek moet nou
my tot stilstand kom.
”)
[57] Nel conceded that there was nothing prohibiting him from moving
over to his left and it turned out that, according to him,
he
collided with the kombi some 300 meters further on.
[58] If one analyses Nel’s evidence closely, it is not
difficult to understand why Mr De Koning, on behalf of the appellant,
stood firm in his criticism of his evidence and strongly urged upon
us to find that Nel was negligent by not pulling off to the
left, as
he easily could have done, upon cresting the hill and noticing the
white sheet of hail and the trouble ahead.
[59] Mr De Koning, however, faced one insurmountable hurdle in the
presentation of his case, i.e. the undisputed existence of
the kombi
and the undeniable fact that the respondent’s vehicle collided
with it. He, very correctly, conceded that it was
not in dispute
that the respondent’s vehicle collided with the kombi.
[60] Mr De Koning stood his ground, nonetheless and urged upon us to
find that had Nel moved over to his left instead of to his
right,
after cresting the hill, the collision would not have occurred.
[61] This may be so, but that does not mean that Nel was negligent
in not doing so. This would be akin to suggesting that if
Nel had
not undertaken the trip at all, the collision would not have
occurred.
[62] Nel’s decision to drive in the right hand lane, where he
perceived the tracks to be drier and thus safer could have
been an
error of judgment, (and I do not find that it was, although I also
find it questionable), but it cannot be said to be negligent.
[63] There is
every indication that had it not been for the kombi, Nel would have
brought his truck to a safe standstill, whilst
driving in the right
hand lane, before he reached the “
trouble
”
he had noticed ahead of him.
[64] The undeniable existence of the kombi and its collision with
Nel’s truck, lead to one conclusion, i.e. Nel, whilst
trying to
slow down in the existing tracks in the right hand lane, suddenly
found himself in a situation of imminent danger, when
the kombi
overtook him on his left hand side, turned in front of him, lost
control and started spinning. This, certainly, was not
of Nel’s
own doing and his reaction, to brake violently, causing the truck to
jack-knife and skid across the median into
the appellant’s
truck’s line of travel, with the resultant collision, cannot be
said to be unreasonable or negligent.
[65] Van der Heever, (as he then was), stated the following:
“
Where
a plaintiff is put in jeopardy by the unexpected and patently
wrongful conduct of the defendant, it seems to me irrational
meticulously to examine his reactions in the placid atmosphere of the
Court in the light of after-acquired knowledge; to hold
that, had he
but taken such and such a step, the accident would have been avoided,
and that consequently he also was negligent.
To do so would be to
ignore the penal element in actions on delict and to punish a
possible error of judgment as severely as,
if not more severely than,
the most callous disregard of the safety of others.
”
2
[66] The
logic of this approach, with respect, cannot be faulted and if I
apply it to the facts
in
casu
,
I find that I simply may not, in the comfort of my chambers, decide
that Nel ought to have done otherwise when he at the time,
felt that
he could bring his vehicle to a safe standstill, by moving to the
right hand lane.
[67] In the
premises, I find that the respondent’s defence of sudden
emergency was correctly upheld by the Court
a
qou
,
and further that no reason exists to interfere with the judgment and
order made there.
In the premises, the order I would make herein in as follows:
The appeal is dismissed with costs.
The Registrar of this Court is hereby requested to send a copy of
this judgment to the Director-General of the Department of
Justice
and to the contracted transcribers, LOM Business Solutions (Pty)
Ltd.
____________________________________
L
P HALGRYN
ACTING JUDGE OF THE SOUTH GAUTENG
HIGH COURT, JOHANNESBURG
I agree:
_____________________________
D
S S MOSHIDI
JUDGE OF THE SOUTH GAUTENG
HIGH COURT, JOHANNESBURG
I agree:
_____________________________
R
MATHOPO
JUDGE OF THE SOUTH GAUTENG
HIGH COURT, JOHANNESBURG
1
See
Rankinsson &
Son v Springfield On the Bus Services
1964 (1) SA 609
(D & CLD).
2
In
Cooper v Armstrong
1939 OPD 140
at 148. Quoted with approval in
Ntsala
and Others v Mutual & Federal Insurance Co Ltd
1996 (2) SA 184
, at 192F-I.