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[2010] ZAGPPHC 629
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Hlatswayo v Malibe (2067/2008) [2010] ZAGPPHC 629 (5 May 2010)
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
NORTH, H
IGH COURT
PRETORIA
CASE NO: 2097/2008
DATE: 5 MAY 2010
NOT REPORTABLE
NOT OF INTEREST TO
OTHER JUDGES
In the matter
between:
DR MOTSEKI
HLATSWAYO
............................................................................................................
Plaintiff
and
MR ANNANAIS
MALIBE
...............................................................................................................
Defendant
JUDGMENT
MAKGOKA.
J
:
[1] This is a
judgement on a damages claim instituted by the plaintiff against the
defendant, consequent upon a motor vehicle collision
which occurred
on 26 April 2006 at approximately 21H00.
[2] The collision
took place along Hans Strydom Drive, Pretoria, between vehicles with
registration numbers P[...], and H[...],
driven by the plaintiff and
the defendant, respectively.
[3] Both parties
testified in their respective cases. The plaintiff did not call any
further witnesses, while the defendant called
one witness, Ms Lydia
Mathato.
[4] The plaintiff
testified that on the day of the collision, he was driving his Nissan
along the Hans Strydom Drive from Mamelodi
in the southerly
direction. He was alone in his car. When he approached a gentle curve
passing through Nellmapius, he observed
the defendant’s
Volkswagen Jetta approaching from the opposite direction.
[5] Suddenly the
Jetta veered into his lane. Because it was so fast, he tried to
swerve to his left but it was too late, as a result
of which he
collided with the Jetta. He lost control of his vehicle and it
stumbled across the road, ending up in a ditch on the
outer part of
the opposite direction. After the collision the Jetta was on his
left, a bit far from his vehicle. His vehicle was
damaged on the
driver’s side and the front right part.
[6]
During his cross-examination by Mr.
De
Kock,
for
the defendant, the plaintiff testified that he observed the Jetta in
a matter of seconds before the collision, at the distance
of
approximately 30 metres, while it was still in its lane. He was
driving between 80 and 100 km/h. He did not pay attention to
the
Jetta until just before the accident. He could not remember if there
was a solid or broken line on the road, but he remembered
that there
were road markings. He further conceded that had he made a full swing
to his left, he could have avoided the collision.
[7] The defendant’s
version, put to the plaintiff during cross-examination, was a mirror
image of the plaintiffs version.
That concluded the plaintiffs case.
As stated earlier, no witnesses were called to testify on behalf of
the plaintiff.
[8] The defendant
took the stand to testify in his defence. He testified that he was
driving from Nellmapius, approaching the Hans
Strydom Drive from
Nellmapius Extension 3. He was in the company of Ms. Lydia Mathato,
who was a front seat passenger in his car.
There was a right gentle
curve ahead and he could see two to three vehicles approaching from
the opposite direction. There was
a solid line marking on the road.
[9] He was driving
approximately 70 km/h. As he was approaching the gentle curve, he saw
a bright light which obstructed his view
and there was a collision on
his lane of travel. He did not at any given stage cross the barrier
line to the opposite lane. The
collision happened very suddenly. His
windscreen was shattered and the front part of his car was damaged
and moved inwards. After
the collision, he was still on his side of
travel, but could not remember whether his vehicle was still on the
road or on the tarmac.
He was also unable to remember the position of
the plaintiffs vehicle.
[10] In
cross-examination the defendant was unable to explain the position of
the vehicle immediately after the collision. He was
also unable to
estimate the distance from which he first observed the lights of the
plaintiffs vehicle. He further stated that
the times-pan between him
been “brighted” by the plaintiffs lights, and the
collision, was a matter of “split
seconds”. When he first
saw the plaintiffs vehicle, the latter was already in his lane. He
did not know where the plaintiffs
vehicle emerged from, but thought
that the plaintiff overtook another vehicle. All he saw were the
bright lights in front of him
and the collision occurred. He could
not tell the distance between the two vehicles before collision.
Before then his view was
unhindered.
[11] Asked what he
did to avoid the collision, the defendant testified that as the
collision took place suddenly, he did not swerve,
nor applied his
brakes, as he did not see the car veering from its lane to his - he
just saw it in his lane. The damage to his
vehicle was in the middle
of the front portion up to the driver’s door. According to him
the collision was a partial “head-on”.
[12] Asked by the
court whether the whole or part of the plaintiff’s vehicle had
crossed over to his lane when the collision
occurred, he testified
that the whole of the plaintiff’s vehicle had crossed the solid
barrier line into his lane. He further
confirmed that the plaintiff’s
vehicle came straight to him in his lane.
[13] Ms. Lydia
Mathato testified that she was a passenger in the defendant’s
vehicle on the night of the accident. She saw
bright lights and heard
a sound of the two motor vehicles colliding with each other. After
the collision, the two vehicles veered
towards the gravel road, on
their lane of travel. Their vehicle came to a stand-still there. She
never lost consciousness and was
alert after the collision. Like the
defendant, Ms. Mathato was unable to explain the distance from which
she observed the plaintiff’s
vehicle, but testified that she
only noticed the vehicle when it was in their lane, with bright
lights, and the collision occurring
very suddenly. Before then, her
view was not hindered.
[14]
That concluded the evidence. Mr.
Hattingh,
for
the plaintiff, submitted in closing argument that I should find in
favour of the plaintiff, while Mr.
De
Kock,
for
the defendant, on the other hand, contended for the dismissal of the
plaintiff’s claim, arguing, among others, that the
defendant’s
version that the two vehicles ended up on the defendant’s side
of the road, was not disputed. He further
submitted that if I were to
find any negligence on the part of the defendant, such negligence
should be limited to 10%.
[15] When one has
regard to the versions of the parties, each one blames the other in
exactly the same manner for the collision.
As stated earlier in the
judgment, the parties’ versions are the mirror image of the
other. What does emerge though, is that
neither of the parties can be
held 100% negligent for the collision. The plaintiff, for example,
conceded during his cross-examination,
first, that he did not pay
attention to the defendant’s vehicle, until it encroached into
his lane, and secondly, that had
he swerved fully to the left, he
could have avoided the collision. In my view, the concessions on
these two aspects, points to
an inference that the plaintiff was not
keeping a proper lookout.
[16] On the other
hand, the defendant and his witness were unable to explain how they
could not have seen the plaintiffs vehicle
approaching, if their view
was unhindered. That they testified to have seen the plaintiffs
vehicle just when it encroached onto
their lane, similarly, in my
view, suggests that the defendant was not keeping a proper lookout.
[17] I have not had
the benefit of an independent sketch plan, (usually drawn by the
police), to assess the point of impact and
the location of the
vehicles immediately after the collision. The fact that the
plaintiffs vehicle ended up on the far end of the
opposite direction,
is not, in my view, definitive of where the point of impact would
have been. It is only but one consideration
in complex web of factors
such as the speed at which the vehicles were travelling, etc. Having
regard to the photos depicting damage
to the plaintiffs vehicle, I
remarked during argument that the damage did not appear commensurate
with the speed at which both
drivers testified to have driven.
Perhaps, with hindsight, one of the parties should have presented the
evidence of a motor collision
reconstruction expert.
[18] At the end of
the day, I am saddled with two mutually destructive versions of what
happened immediately before the collision.
A useful guide to
unlocking the impasse, lies, in my view, not only on the credibility
of the witnesses but also on the nature
of the damages to the two
vehicles. In this regard, the plaintiffs vehicle was severely damaged
on the whole right side, from the
fender right through the driver
door to the rear door. The photos of the defendant’s vehicle,
if any available, were not
presented in evidence. However, it would
be recalled that the defendant testified that the collision was a
near “head-on”,
and that his vehicle was damaged in the
middle of the front portion to the driver’s door.
[19] In my view the
defendant’s version of the partial head-on collision, is not
supported by the nature of the damages as
outlined above. If the
collision was a partial head-on, the plaintiff’s front would
have been affected, even if slightly
so. This is not the case, regard
being had to the photos of the plaintiff’s damaged vehicle. The
said front portion is largely
intact.
[20] The damages to
the vehicles establishes strong probabilities, in my view, that the
defendant veered into the travel of path
of the plaintiff, thus
hitting the large part of the right side of the plaintiff’s
vehicle. If the collision had occurred
on the defendant’s
version, the damage to the plaintiff’s vehicle would have been
more on the front towards the left.
I am therefore satisfied that the
version of the plaintiff, on the probabilities, is a more coherent
one.
[21] I have,
however, already found that both parties were negligent in the
respects I have outlined in paragraph 15 of this judgment.
The only
question to be determined is therefore the percentages of negligence
to be apportioned to each party. Having given due
consideration to
all factors, I am of the view that the defendant was 40% negligent.
[22]
With regard to the
quantum
of
damages, the plaintiffs admitted damages is the sum of R258 749. 38.
Applying the apportionment I have decided on, the defendant
would
accordingly be liable to the plaintiff in the sum of R155 249.63.
[23] Finally, the
issue of costs. There is no reason to deviate from general principle
that costs should follow the cause. The plaintiff
has been
substantially successful in his claim, as a result of which he is
entitled to his costs. There are also costs occasioned
on 16 and 20
October 2009. These costs were occasioned by the late filing of the
plaintiffs plea to the defendant’s counterclaim.
The plaintiff
must bear these costs.
[24] I therefore
make the following order:
1. Judgement is
granted against the defendant in favour of the plaintiff for payment
of a sum of R155 249.63;
2.
Interest on the said amount at the rate of 15.5% p.a
a
tempore morae;
3. The defendant is
ordered to pay the costs of the suit, which costs shall not include
the costs occasioned on 16 and 20 October
2009, which costs shall be
paid by the plaintiff.
T M MAKGOKA
JUDGE OF THE HIGH
COURT
DATE HEARD: 26 &
27 OCTOBER 2009
JUDGEMENT DELIVERED:
5 MAY 2010
FOR
THE PLAINTIFF : ADV J. HATTINGH
INSTRUCTED
BY:
WEAVIND
& WEAVIND,
PRETORIA
FOR THE DEFENDANT :
ADV. H DE KOCK
INSTRUCTED
BY:
GROVE, DEYSEL
& PARTNERS,
PRETORIA