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[2010] ZAGPPHC 289
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Makganoto v Jeenath Yacoob T/A Badupe Trading Store (A.406/07) [2010] ZAGPPHC 289 (15 April 2010)
IN THE HIGH COURT
OF SOUTH AFRICA
(GAUTENG NORTH
DIVISION)
CASE
NO: A.406/07
DATE:
15 APRIL 2010
In the matter
between
MAKGANOTO.
M.F
.............................................................................
Appellant
And
JEENATH, YACOOB
T/A BADUPE
TRADING
STORE
............................................................................
Respondent
CORAM: PRINSLOO J
EBERSOHN A.J
HEARD ON: 1 APRIL
2010
DATE JUDGMENT
HANDED DOWN: 15 APRIL 2010
JUDGMENT
EBERSOHN AJ:
[1] In this judgment
the parties will be referred to as in convention.
[2] The plaintiff
sued the defendant in the magistrate’s court pursuant to a
collision which occurred on the 13th June 2003
between his car driven
by his wife, and the defendant's light deliver van driven by the
defendant himself.
[3] At the
commencement of the trial the merits and quantum were separated by
agreement between the parties.
[4] The plaintiff’s
wife was the only witness called on his behalf with regard to the
merits.
[5] Only the
defendant testified.
[6] After hearing
evidence and argument the magistrate granted judgment in the
plaintiff's favor with regard to the merits and when
the matter
resumed for the hearing of evidence with regard to the quantum, the
defendant’s attorneys advised the plaintiffs’
attorney
that there would be no appearance on behalf of the defendant and that
judgment regarding the quantum could be taken by
default. The
plaintiffs’ attorney, however, called a panel beater, one
Schulma, to verify the damages to the plaintiff’s
car and after
giving evidence the magistrate granted judgment in the plaintiffs
favor in the amount of R20 667.97 with costs and
dismissed the
counterclaim.
[7] The defendant
noted an appeal against the magistrate's judgment to this Court.
The appeal was
enrolled to be heard by Molopa J and Mothle AJ in 2009 but was
struck from the roll with the wasted costs reserved.
The Court noted
from an affidavit filed on behalf of the defendant and deposed to by
an attorney, one Simon Rautenbach that due
to an oversight in his
office counsel was not timeously briefed to prepare the heads of
argument causing the matter to be struck
from the roll in 2009.
[9] At the
commencement of the hearing of the appeal Mr dc Beer, who appeared
for the appellant, moved an amendment to supplement
the appeal
grounds with the following:
"Dai die Agbare
Hof gcfoutcer hct deur te vind dat die Eiser die eienaar van die
voertuig is, alternatiwelik of hy die risiko
van skade aan die
voertuig dra."
The application to
amend was however, abandoned after the Court was addressed on the
merits of the amendment, and the appeal was
then argued.
[10] Before the
magistrate were two conflicting versions. The plaintiffs wife
testified that she was driving at a speed of about
60-80 kilometers
per hour in the left hand lane after entering the highway
and had driven about
500 meters on the highway and was then overtaken by a vehicle which
was driving in the right hand lane and
she testified that she then
saw a light delivery van also driving in the right hand lane,
approaching from her rear at a speed
higher than she was driving a:.
When the light delivery van was next to her it started veering into
the left lane in which she
was driving and it struck the car she was
driving, with its rear on the right front fender of the car she was
driving. The car
started spinning uncontrollably and whilst it was
spinning it received another bump at its rear end from the light
delivery van.
Both vehicles then came to a stop. She testified that
the light delivery van had a canopy on and that the front windows
thereof
were darkened.
[11] She did not
falter in her evidence under cross-examination.
[ 12] The plaintiffs
case was then closed.
[13] The defendant
then testified on his own behalf. According to him he was driving in
the right hand lane and that he did not
see the plaintiff’s car
at all before the collision occurred and whilst driving
he suddenly heard a
hang on the left hand door of his light deliver)' van.
[14] It was his case
that the plaintiff’s vehicle was not in front of him and must
have approached him in the left lane from
the rear and he conceded
that he did not look to the rear and to the left of the light
delivery van. He concluded that he did not
look proper!} for traffic
on his left
[15] The version of
the defendant is difficult to believe and it was rejected by the
magistrate. If his version was true, the question
arises as to why
would the plaintiff’s wife, if she was approaching the
defendant, who was driving in the right hand lane,
when she was next
to the light delivery van. which would then be on her immediate
right, against all probabilities, veer to the
right and collide with
the light delivery van.
116] The magistrate
accepted the version of the plaintiff’s wife and rejected the
version of the defendant.
117] The plaintiff’s
wife was not joined as a party in the case and if the defendant is
found to have been negligent the plaintiff
must succeed in full with
his claim and there could be no apportionment of damages.
118] Mr. de Beer
argued that the version of the plaintiffs witness was not put to the
defendant and that the magistrate accordingly
should have granted
absolution, in this regard Mr. de Beer is mistaken as it appears
almost at the bottom of typed page 23 of the
record that it was in
fact put to the defendant in cross-examination.
[19] A Court of
appeal will not readily interfere with a lower court's decision
regarding a finding of fact (See R \ Dhlumayo and
Another 1948(2) SA
677(AD)) and in this
matter there is no need to interfere with the magistrate's findings
and the appeal cannot succeed.
[20] I propose that
the following order be made;
1 The appeal is
dismissed with costs, such costs to include the wasted --costs when
the appeal was struck from the roll this Court
in 2009.
EBEKSOHN
ACTING JUDGE OF
THE HIGH COURT
I AGREE AND IT
IS SO ORDERED:
W.R.C. PRINSLOO
JUDGE OF THE HIGH
COIRT
Appellants’
counsel Adv. L. DE BEER
Applicant's
attorneys _ VEZI DE BEER INC.
Ref. Mr T Cronje
Inc
Respondent's
Counsel Adv. N. Erasmus
Respondent's
attorneys Cronje Inc.
Ref. Mr. T.
Cronje KJ0018 Tel. 0I2\362 4959