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[2010] ZAGPPHC 530
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Makganoto v Jeenath (A406/07) [2010] ZAGPPHC 530 (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: PRINSUOO
J. et EBERSOHN AJ
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 delivery 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 plaintiffs
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
plaintiffs favour 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 panelbeater, one Schulman, to verify the
damages to the plaintiffs car and after giving
evidence the
magistrate granted judgment in the plaintiffs favour 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.
[8] 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 timeousiy 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. de Beer, who appeared
for the appellant, moved an amendment to supplement
the appeal
grounds with the following:
"Dat die
Agbare Hof gefouteer het deur te vind dat die Eiser die eienaar van
die voertuig is, alternatiwelik of hv 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 kilometres
per hour in the left hand lane after entering the highway and had
driven about 500 metres 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 at. 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 plaintiffs car at all
before the collision occurred and whilst driving he suddenly heard a
bang on the left hand door of
his light delivery van.
[14] It was his case
that the plaintiffs 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 conceded that he did not look
properly 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 plaintiffs 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.
[16] The magistrate
accepted the version of the plaintiffs wife and rejected the version
of the defendant.
[17] The plaintiffs
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.
[18] 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 v 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 by this Court
in 2009.
P.Z. EBERSOHN
ACTING JUDGE OF
THE HIGH COURT
I AGREE AND IT IS
SO ORDERED:
W.R.C. PRINSLOO
JUDGE OF THE HIGH
COURT
Appellants'
counsel: Adv. L. DE BEER
Applicant's
attorneys: VEZ1 DE BEER INC.
Ref. S
Rautenbach/JUDW/V367
TEL. 012 9918283
Respondent's
counsel: Adv. N. Erasmus
Respondent's
attorneys: Thys Cronje Inc.
Ref. Mr. T.
Cronje KJ0018
Tel. 012x362
4959