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[2011] ZAGPPHC 37
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Malumo v Tredoux (69431/2009) [2011] ZAGPPHC 37 (30 March 2011)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH.COURT, PRETORIA)
NOT
REPORTABLE
CASE
NO: 69431/2009
DATE:30/03/2011
In
the matter between:
KESSO
DIALLO MALUMO
….............................
Plaintiff
And
SUSANNA
TREDOUX
..........................................
Defendant
JUDGMENT
MATOJANE
J
[1]
At approximately 11h00 on 4 November 2008 in the intersection of Hans
Strydom Road and Rubenstein, Pretoria, a collision occurred
between a
Mercedes Benz C220 CDi driven by plaintiff and another vehicle
bearing registration number PWY 437 GP driven by the defendant,
as a
result of which collision, plaintiff alleges that she suffered
damages
[2]
Hans Strydom Road in Pretoria runs from West to East and is
intersected at right angles by Rubenstein road on the left and Lois
on the right. The intersection is robot controlled. Hans Strydom is a
dual carriageway. This dual carriageway is separated by a
traffic
island and has five lanes in each direction. At the intersection with
Lois, the first and fifth lanes are used by motorists
who wish to
turn right into Lois or left into Rubenstein. Similarly, on the
opposite side of Hans Strydom there are also five lanes
and the first
and fifth lanes are used by motorists either turning into Rubenstein
or Lois.
[3]
The plaintiff was driving along Hans Strydom and turned right into
Lois. The defendant was at the time driving in the opposite
direction
from west to east intending to proceed straight along Hans Strydom
Road. As the plaintiff negotiated a turn a collision
occurred. It is
common cause that the plaintiff had to pass three lanes to arrive at
the point of impact, which was on the defendant's
lane of travel on
the fourth lane.
[4]
At the commencement of the trial the issues relating to the merits
and quantum of the plaintiffs claim were separated and the
trial
proceeded on the issue whether the defendant was negligent in
relation to the collision (and therefore, whether the defendant
was
liable for the damages suffered by the plaintiff), and if so, whether
the plaintiff was contributory negligent in relation
to the collision
and if so the degree thereof.
[5]
The plaintiff herself was the only witness. Her evidence in a broad
outline was that she was stationery at the robots on a lane
for
motorists turning right along Hans Strydom Road. After satisfying
herself that it was safe to do so, she negotiated the right
turn into
Lois Avenue after she got a green arrow and was then hit by the
defendant's car on the fourth lane. She was adamant that
the robots
were green for her and red for the defendant. The defendant's version
on the other hand is that the robots were green
for her as she came
round the bend 100 m before the intersection. She was travelling at
about 60 to 70 km and saw a blue BMW skipping
the red lights. She
never saw plaintiff's vehicle negotiating a turn and only saw it in
front of her on her lane. She had no time
to apply brakes. She
swerved to the right and could not avoid colliding with plaintiff.
The plaintiff walked towards her and accused
the driver of the BMW
for causing the collision.
[6]
Defendant's colleague, Cornelia Cheyne testified that she was
driving, third in line behind the defendant on the same lane.
As she
approached the intersection, she was driving at 80km and the robot
was green. She saw a BMW driving through the intersection
in front of
the plaintiff. She saw plaintiff suddenly moving to the right and
heard the sound of the crash. After the collision,
plaintiff came to
her and defendant and told them twice that she was sorry. She was
upset with plaintiff.
[7]
In contending that defendant was not negligent at all, defendant's
counsel has submitted that in view of the stringent duty
upon a
driver who intends to turn across the line of oncoming traffic, the
plaintiff has failed to properly satisfy herself before
performing
such a dangerous maneuver that it was safe and opportune to do so.
Counsel relied on AA Mutual Insurance Association
Ltd v Nomeka
1976(3) SA 45 (A) 52E-G. He further argued that there was no
obligation on defendant to take note of the plaintiff
as she had a
right of way. I disagree, firstly the decision in AA Mutual Insurance
Association Ltd v Nomeka does not create a general
presumption of
negligence as each case revolves around its particular facts and
circumstances. The through- driver does not have
an absolute right of
way even if the robot is green for her, such driver must be vigilant
and were circumstances demand, reduce
speed to accommodate a driver
who turns across his path of travel. See Milton v Vacuum Oil Co
1932
AD 197
at 205.
[8]
Secondly, in Netherlands Insurance Co of SA v Brummer 1978 (4) it was
held that a driver who enters an intersection while the
traffic light
is green for him must keep a lookout for the traffic already in the
crossing. Also he cannot ignore a vehicle which
he is aware of, which
is clearly being driven in a negligent manner. The court stated that
it is not expected of him to look out
for traffic that can possibly
enter the intersection from the left or the right unlawfully against
a traffic light. On Cornelia
Cheyne's evidence, from the defendant's
point as she approached the intersection, her view in the direction
of the vehicle coming
from the opposite direction will not be
obstructed and if there had been any other vehicle before defendant
entered the intersection,
nothing would have obscured her view.
[9]
In my view, the defendant was negligent in not keeping a lookout for
the plaintiff's vehicle that was already in the intersection,
even if
it is accepted in her favour that the robot was green for her. She
testified that the first time she saw plaintiff*s vehicle
was when it
was in front of her on the fourth lane, she conceded that plaintiff's
vehicle must have travelled a width of four lanes
to reach the point
of impact after negotiating a right turn, yet she did not see it
until it was in front of her. She further testified
that a BMW
vehicle skipped the red lights in front of her yet she did not reduce
speed because as she puts it: "You cannot
hesitate in driving".
[10]
The defendant's evidence was unsatisfactory in the following
respects. She testified that the plaintiff approached her and
blamed
the driver of the BMW for causing the accident yet this aspect of her
evidence was never put to the plaintiff for her response.
This also
does not accords with the evidence of the defendant's witness who
testified that plaintiff approached her as she was
sitting next to
defendant after the collision and said that she was sorry, this
aspect of her evidence was also never put to the
plaintiff. The
defendant testified that there was a delivery van to her right
immediately before the collision and her witness
said it was behind
her.
[11]
It is probable that in approaching the intersection and not knowing
when the robots will turn red, defendant directed her attention
to
the BMW that she says skipped the red lights and did not observe the
cycle changing green for plaintiff and red for her as she
was
approaching the intersection. In my view, she was negligent in doing
so.
[12]
It is trite that, in civil proceedings such as these, the
onus-bearing party must, in order to succeed, show that on a
preponderance
of probabilities, his or her version is more likely
than not to be the truth. See National Employers General Insurance Co
Limited
v Jagers
1984 (4) SA 437
(E), 440D-G and Ramakulukusha v
Commander, Venda National Force
1989 (2) SA 813
(V), 839B-C.
[13]
I have weighed up and tested the plaintiff's evidence against the
general probabilities and her credibility as a witness. I
am
satisfied that on a preponderance of probabilities, the plaintiff's
version is true and accurate and therefore acceptable. I
find that
defendant was negligent in relation to the collision and therefore,
liable for the damages suffered by the plaintiff.
[14]
In the result, the plaintiff's claim must succeed and the following
order shall issue:
The
Defendant is liable for such damages as the plaintiff is able to
prove arising out of the collision on 4 November 2008.
Matojane
J