About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2011
>>
[2011] ZAGPPHC 121
|

|

Jacobs v Road Accident Fund (A402/2008) [2011] ZAGPPHC 121 (13 June 2011)

REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT,
PRETORIA
(REPUBLIC OF SOUTH AFRICA)
CASE
NO: A402/2008
DATE:13/07/2011
In
the matter between:
JACOBS
C
..............................................................................................................
APPELLANT
And
THE
ROAD ACCIDENT
FUND
...........................................................................
RESPONDENT
JUDGMENT
MSIMEKI,
J
[
1 ] The Appellant, as Plaintiff, had instituted an action against the
Respondent, as Defendant, for damages that he had suffered
as a
result of bodily injuries he sustained as a motorcyclist in a
collision that occurred at approximately 09H45 within the traffic

light controlled intersection of Lynnwood Road and Dyer Street on 23
April 2004. I shall refer to the parties as Plaintiff and
Defendant
just as they were referred to in the court a quo.
[2]
The court a quo at the end of the trial made the following order:
"I.
The Defendant is liable for the Plaintiffs 60 (sic) apportioned
proven damages;
2.
The defendant to pay the plaintiffs costs on the merits. These costs
to include necessary witnesses called on behalf of the plaintiff
Both
witnesses who testified on behalf of the plaintiff costs referred to
are applicable to them;
3.
The determination of quantum is postponed sine die."
[3]
On 28 February 2008 the Supreme Court of Appeal granted the Plaintiff
leave to appeal to the Full Court of this Division against
the
judgment and order of Legodi J
of
21 September 2006 after the court a quo had refused such leave.
[4]
The appeal is based on seven grounds, namely:
1.
That the Court a quo overlooked or did not attribute sufficient
importance to certain facts.
2.
That the court a quo incorrectly held that the Plaintiff was only
entitled, under exceptional circumstances, to enter the intersection

when the traffic lights turned amber.
3.
That the court a quo erred in overlooking or in not having had due
regard to certain facts and evidence.
4.
That the Learned Judge erred in law, and based upon the evidence
produced, in reasoning that the insured driver was faced with

imminent danger and that she was almost obliged to turn when she did.
5.
That the court a quo incorrectly held that the Plaintiff should have
kept a better look out to guard against motor vehicles that
may enter
and more specifically turn to the right across the path of travel of
the Plaintiff once the traffic lights turned amber.
6.
That the court a quo, as a matter of law and fact, erred in not
attributing sufficient importance to the fact that the insured
driver
once the traffic lights turned red executed in a blindly fashion, and
without regard to any other road users, a turn to
her right across
the path of travel of the Plaintiff, as well as the undisputed facts
that there was absolutely nothing that could
have obscured the
insured driver's view towards the direction from which the Plaintiff
approached.
7.
That the court a quo should have held that any negligence on the part
of the Plaintiff did not contribute causally to the occurrence
of the
collision.
[5]
As already alluded to, the Plaintiffs cause of action is based on a
collision which occurred on 23 April 2004 at the Lynnwood
Road and
Dyer Street intersection which is traffic light controlled. The
collision occurred between the Plaintiffs motorbike at
the time
ridden by the Plaintiff and a Volkswagen Golf motor vehicle ('the
insured motor vehicle') at the time driven by a certain
Ms Jannel
Burger ('the insured driver').
[6]
The Plaintiff contended that the insured driver had been the sole
cause of the collision in that, she, inter alia, had failed
to keep a
proper look out. On the contrary, the Defendant contended that the
Plaintiff had caused the collision when he failed
to keep a proper
look out.
[7]
Very briefly the Plaintiff, an executive Chef at a restaurant,
testified that he had been from home to his work when the accident

occurred. He stopped at Lynnwood Road and Duncan Street intersection
where the robots were red and against him. On leaving the

intersection the traffic lights of the next intersection, the place
of the collision, turned green. The motor vehicles that were
in front
of him had been at a distance of approximately 100 metres. The motor
vehicles crossed the Lynnwood Road - Dyer Street
intersection. As the
front wheel of his motorbike touched the solid white line dividing
the intersection, the traffic lights that
had been green turned amber
or yellow. The insured motor vehicle, at the time, was in the extreme
obligatory right turn lane across
the Plaintiffs path of travel from
the opposite direction. The insured motor vehicle was to turn right
once all the motor vehicles
coming from the opposite direction, which
was the direction from which the Plaintiff was coming, would have
driven past. The Plaintiff
was driving from West to East in Lynnwood
Road while the insured motor vehicle was from East to West. The
insured motor vehicle
was at a distance of approximately 3 metres
when the Plaintiff noticed it. It did not worry him because he did
not expect it to
turn right before he had cleared the intersection.
Testifying under cross examination, he said that he did not pay
attention to
the insured motor vehicle at the time because, as he put
it I was travelling straight. I was not swerving out and really, I
was
under the impression that she was going to stop.' The insured
motor vehicle appeared to the Plaintiff to have been moving slowly
in
a manner one would expect from someone who was waiting for an
opportune moment to cross through an intersection. The insured
driver
suddenly and without warning turned right in front of the Plaintiff
leaving him with no chance to do anything to avoid the
accident. He,
however, applied his brakes and swerved to the right but the accident
could not be avoided. He further explained
that the traffic lights
would not be green for him and at the same time be green for the
insured driver. This is supported by the
insured driver who testified
that she stopped once the green flashing arrow disappeared.
Unfortunately she turned right once the
robots were red for traffic
moving from West to East and from East to West. This resulted in the
collision. The Plaintiff again
under cross examination testified that
he was approximately 3 metres from the insured motor vehicle when he
realised that he was
in serious trouble. The distance was short and
nothing at the time could be done to avoid the collision. The
Plaintiff testified
that he concentrated on traffic that was very
close to him and not on traffic that was at a distance of
approximately 100 to 200
metres away from him as there was still some
distance to cover before one could start worrying about that traffic.
Upon being asked
by the court the Plaintiff explained how the robots
worked. He explained that while the indicator would be green for one
to turn
right, the robots would be red for him. The right turn would
be executed until the green arrow dissappeared. The re-examination
of
the Plaintiff revealed that the motorbike had been fitted with a
performance exhaust pipe that caused the engine to make a loud
noise;
that the motorbike's headlights had been switched on and that the
motorcycle had been of a bright yellow colour. The Plaintiff
did not
agree that he had been attempting to skip the red robot.
[8]
The Plaintiff called Mr Lanie Van der Walt ("Van der Walt for
the Plaintiff) to support his case. Mr Van der Walt testified
that,
he, on the day of the incident, had been approaching Lynnwood Road
from Dyer Street, moving from North to South. He had stopped
at the
robot which had been red and against him. He was to turn right into
Lynnwood Road. The robots in Lynnwood Road from East
to West and West
to East were green. A number of cars passed from his right to his
left i.e. from West to East. He then heard the
noise of the
Plaintiffs motorbike which was at a distance of approximately 100
metres away coming from his right. He identified
the motorcycle which
is seen on pages 206 - 214 of the paginated bundle of documents (i.e.
of Vol 3/3) as the Plaintiffs motorbike.
The insured driver
approached from his left wanting to turn into Dyer Street. After the
motor vehicle that had been in front of
the Plaintiff had passed the
insured driver then turned right in front of the motorbike. He had
seen the insured motor vehicle
stationary while the motor vehicles
were passing. The collision then occurred as the insured motor
vehicle was turning to the right
into Dyer Street. In the main the
witness repeated his evidence in chief in his cross examination. He
testified that the insured
motor vehicle did not have ample time to
negotiate the turn to the right after the last motor vehicle had
passed because the insured
motor vehicle turned immediately. He
estimated the speed of the motorbike to have been 60 kilometres per
hour but did not know
which lane the motorbike used. He did not agree
that at the time the motorbike approached the intersection and at the
time of the
collision the robots in the direction of the Plaintiff
had been yellow or amber. According to him the robots had been green
during
and after the impact. The motorbike, according to him, was at
a distance of approximately 8 paces from the insured motor vehicle

when the insured motor vehicle entered the intersection after it had
stopped. The Plaintiff applied brakes to avoid the collision.
He
marked with a circle between the two motor vehicles seen on
photograph marked "B" appearing on page 200 of the
paginated
papers as the place where the accident took place. This
concluded the Plaintiffs case. The witness's evidence clearly shows
that
the insured motor vehicle first stopped to allow the traffic
from West to East to pass. It then proceeded slowly allowing traffic

to pass to allow it to turn into Dyer Street. The cross examination
of the witness revealed that the distance between Lynnwood
Road -
Duncan Street intersection and Lynnwood Road Dyer Street intersection
is approximately 200 metres. There was a distance
of approximately
100 metres between the Plaintiff and the motor vehicles that were in
front of him. After the collision the witness
released his safety
belt and unlocked his motor vehicle's doors intending to get out. It,
however, did not happen as the traffic
lights turned green in his
favour causing the motor vehicles behind him to start hooting. He
ultimately had to pull out of the
Street. His further testimony was
that the Plaintiff attempted to brake but the accident was
unavoidable.
[9]
The insured driver's testimony is briefly that she was driving along
Lynnwood Road with the intention to turn right using the
obligatory
right turn lane which turns into Dyer Street. The arrow was flashing
green as she approached the robots. By the time
she was at the robots
the arrow was gone. She stopped. She was at the time not in the way
of upcoming traffic which was moving
from West to East. The lights
then turned green for the traffic from West to East. She did not see
the motorbike coming as, according
to her, the motorbike was not near
the intersection at the time she was turning. She saw the Plaintiff
in the road once the car
stopped spinning. Her testimony was that she
had attempted getting out of the intersection and that she had not
observed the motorbike
which collided with the insured motor vehicle.
She testified that the green traffic light along Lynnwood Road turned
from green
to amber and then red. She turned and that was when her
motor vehicle was hit by the motorbike. She alighted and went to the
Plaintiff,
asked him if he was hurt he, instead, asked her how she
could ask such a question, which, in my view, appeared to imply to
her
that that had been obvious. She testified, under cross
examination, that she had not seen the motorbike approaching and that
she
would not have made a right turn manoeuvre if she had seen the
motorbike. She conceded that the collision would not have taken place

if she had not turned in the manner that she did. She was unable to
tell why she had not seen the motorbike ending up speculating
that
the Plaintiff might have been too fast. Her testimony was that she
'thought' that her motor vehicle might not have been an
obstruction
to the motor vehicles coming from Dyer Street into Lynnwood Road. The
traffic lights along Lynnwood Road were red but
she did not see any
oncoming car. It is clear from the insured driver's testimony that
she had waited for the traffic lights to
turn amber and red before
she turned and that her attention was focused on the change in colour
of the traffic lights. Her further
evidence was that her motor
vehicle had not formed any obstruction to traffic flowing though the
intersection in either direction
due to the existence of the
obligatory right hand turn lane and the cement island in the centre
of Lynnwood Road. Her view of traffic
approaching from the direction
of the Plaintiff had been unobscured. She, however, could not dispute
that the Plaintiff had been
travelling at a speed of approximately 60
kilometres per hour. She conceded that she had presumed that the red
traffic lights would
ensure that no traffic would still be passing
through the intersection adding that there had been no vehicles near
the intersection
when she turned. This of course could not be correct
as, in that event, the accident would not have taken place. This much
she
also conceded. She testified that there had been an opportunity
in the flow of traffic for her to make her turn to the right but
that
she had not taken it as she had been waiting for the lights to be
safe. This as we now know did not happen as she thought.
[10]
Mr D. G. Van der Walt for the Defendant called by the Defendant
testified that he on the day in question, was sitting in his
motor
vehicle in an adjacent parking lot at his home overlooking the
intersection and to the South thereof when he had a screeching
sound
caused by the Plaintiffs motorbike. He looked towards the
intersection. Employing his photographic memory, which he claimed
to
have, he told the court that the incident was still so vivid in his
mind as though the collision had occurred the day before
he
testified. He surprised all by coming with a completely new version
of how the collision occurred. According to him the motorbike

followed more than one motor vehicle. The Plaintiff applied brakes
which caused the motorbike to swing. He nearly collided with
one of
the motor vehicles which had in the mean time stopped in front of him
at the robots. He then moved between the cars at the
intersection
while applying brakes too hard causing the motorbike to tilt over.
The witness saw the Plaintiff somersaulting while
holding onto the
handlebars which he later let go ending up falling to the ground 20
metres away and on the other side of the robots.
Apparently his
motorbike collided with the insured vehicle, which had started to
execute a turn to its right by entering the intersection.
His
description of what the Plaintiff was doing while in the air after
his motorbike collided with the insured motor vehicle was
quite
amusing. While the Plaintiff was in the air according to him, the
traffic lights from the Plaintiffs direction were red.
He could not
give the colour of the traffic lights at the time he saw the
Plaintiff on the motorbike for the first time. Although
he was not
concentrating on the flow of traffic in Lynnwood Road, he amazingly
testified that it was safe for the insured driver
to turn to the
right because the two motor vehicles in front of the plaintiff had
already stopped. Brilliant as he said he was
and with such
intellectual ability and photographic memory, he could not give the
court the number of motor vehicles that had come
before the Plaintiff
and which had allegedly come to a standstill at the intersection. He
conceded that he had paid attention to
the motorbike and not to the
insured motor vehicle prior to the collision. He contended that the
insured driver's view of Plaintiffs
approach was obscured by the
vehicles that travelled in front of the motorbike thereby causing her
to wrongly execute the right
hand turn. This was never the insured
driver's version. The witness's photographic mind failed him when he
was unable to tell the
court whether he had consulted with the
Plaintiffs attorneys at their offices - an aspect which was later
formally conceded by
the Defendant. The witness's version which
contradicts the version of the Defendant's own insured driver, was
not put to the Plaintiff
and his witness in cross examination.
Plaintiffs counsel, consequently, objected to the admission of Van
der Walt's testimony.
Counsel for the defendant explained this
failure on the basis that defendant's legal representatives had for
the first time consulted
with him an hour before. The court a quo
indicated that that would be a matter for argument, and allowed the
evidence of Van der
Walt for the defendant. The Court a quo arrived
at a finding on the probabilities flowing from the two conflicting
versions. We
are now confronted with the question as to the value of
the evidence of Van der Walt for the defendant. If his version is
accepted,
it necessarily implies that the versions of the plaintiff,
Van der Walt for plaintiff, as well as the insured driver, which in
all material respects compliment each other, should be rejected, and
vice versa.
[11]
THE LEGAL PRINCIPLES AND AUTHORITIES
It
is important to consider first the legal principles and authorities
dealing with two important aspects, namely the driver's duty
to keep
a proper look out at traffic lights controlled intersections and his
or her duty when executing a turn to the right of
such intersections.
Counsels' heads of argument and their submissions and arguments have
been helpful in this regard. I have to
thank them for the role that
they played in the conduct of this appeal.
The
following should be borne in mind: 1. If collisions are to be avoided
all road users should keep a proper look-out.
2.
The term 'proper look-out' varies from case to case depending on the
circumstances.
3.
Priority of right of way does not confer an absolute right of way on
a driver. S v Desi 1969(4) SA 23 T
4.
A driver entering an intersection when the traffic light signal is
green in his favour, has to regulate his speed and entry
so as not to
endanger the safety of traffic which entered the intersection
lawfully and which may still be in the intersection.
(See in this
regard Santam Insurance Co. Ltd v Gouws
1985 (2) SA 630
(A) at 634).
The closer a motorist is to an intersection when the traffic lights
turn green in his favour the more likely it is
that the intersection
may not be completely clear of traffic.
5.
The noteworthy test that was outlined and applied in Von Wezel v
Johannesburg City Council
1955 (4) SA 159
(T) which should be applied
when dealing with the duty of care that rests upon an innocent driver
who is faced with a driver who
enters an intersection against a
forbidding red light is whether a reasonable driver would have
anticipated the possible sudden
improper emergence of such traffic
against the lights. 6. It is significant to have regard to the fact
that a driver who enters
a crossing when the traffic lights are green
in his favour owes no duty to traffic entering the crossing in
disobedience of the
red lights beyond a duty that if he sees the
traffic he ought to take all reasonable steps to avoid a collision.
Mr Van Den Berg,
on behalf of the Plantiff referred to an English
case of Joseph Eva Limited V Reeves [1938J2A11 ER 115 which
appropriately sums
the principle up. Scott LJ in the very matter
said:
“
...
nothing again will help more to encourage obedience in the
prohibition of the lights than the knowledge that if there is a
collision in the crossroads, the trespasser will have no chance of
escaping liability on a plea alleging contributory negligence
against
the car which has the right of way. Finally, nothing will help more
to encourage compliance with the summons of the green
light to go
straight on than the knowledge of the driver that the law will not
blame him if unfortunately he does have a collision
with an
unexpected trespasser from the right or the left."
In
Serfontein v Smith
1941 WLD 195
and S v Desi
1969 (4) SA 23
(T) a
person inside an intersection crossing against the red light was
regarded as a "trespasser". The other innocent
driver
should use ordinary care after becoming aware of the presence of such
a trespasser in attempting to avoid the collision.
The innocent
driver, however, is not required to look out for traffic, which might
possibly enter the intersection unlawfully from
either side against a
traffic light.
[12]
EXECUTING A TURN TO THE RIGHT
1.
Our Provincial Divisions and the Supreme Court of Appeal have held
that to turn across the path of oncoming or following traffic
is an
'inherent dangerous manoeuvre' and that a driver who intends
executing such a manoeuvre bears a stringent duty to do so after

satisfying himself that it is, in deed, safe and then choosing the
right moment (often called the opportune moment) to do so. (See
in
this regard AA Mutual Insurance Association Ltd v Noneka,
1976 (3) SA
45
(AD) at 52E; R v Cronhelm
1932 TPD 86
; Sierborger v SAR &
Harbours,
1961 (1) SA 498
(AD) and Johannesburg City CounciI v Pub lie
Utility Transport Corporation Ltd,
1963 (3) SA 157
(W)). It is
therefore understandable why a driver turning right has a greater
duty towards both the traffic following as well as
traffic
approaching from the opposite direction.
2.
A driver turning to the right must signal his intention clearly and
avoid turning until an opportune moment presents itself.
(See in this
regard Welf v Christner
1976 (2) SA 170
(N)).
3.
He should only turn to the right once he has satisfied himself that
there is room enough between his motor vehicle and the approaching

vehicles to allow him to complete the manoeuvre safely. (See R v
Court,
1945 TPD 133
at 134).
4.
A driver is entitled to assume that those who are travelling in the
opposite direction will continue in their course and that
they will
not suddenly and inopportunely turn across the line of traffic. This
assumption may continue until it is shown that there
is a clear
intention to the contrary. (See Van Staden v Stocks,
1936 AD 18
and
Rustenburg v Otto,
1974 (2) SA 268
(C) and Old Mutual Fire and
General Insurance Co of Rhodesia (PVT) LTD and Others v Britz and
Another
1976 (2) SA 650
(RAD).
5.
Drivers who see a driver signalling his intention to turn right are
entitled to assume and accept that that driver will only
execute his
turn to the right at a safe and opportune moment. This is so because
they are not obliged to guard against the unreasonable
and negligent
actions of a driver who signals his intention to turn to the right.
In this regard Van Winsen AJA (as he then was)
in the matter of
Serborger v South African Railways & Harbours (supra) at 504 -
505 said;
"......
the answer seems to be 'none other than keep a look-out'. There was
no obligation upon him to stop or even slow down
because of having
seen a signal In parenthesis, it need scarcely be remarked, that du
Freezes statement in evidence that had he
seen appellant's signal he
would have stopped, even supposing it to be true, cannot burden him
with an obligation not imposed by
law." (My emphasis)
In
Moore v Minister of Posts & Telegraphs
1949 (1) SA 815
at 826,
Schreiner JA (as he then was) said:
"Speaking
very generally one expects and is entitled to expect reasonableness
rather than unreasonableness, legality rather
than illegality, from
other users of the highway."
6.
It therefore follows that a driver is only called upon to take
precautions against reasonable foreseeable contingencies and not
the
reckless driving of other motorists. See Rondalia Versekerings
Korporasie van SA Beperk v De Beer,
1976 (4) SA 707
at 711.
[13]
THE ISSUES TO BE DETERMINED
The
crisp issue to be determined in this appeal is whether or not the
action of the Plaintiff contributed to the cause of the collision.
It
was contended on his behalf that his action did not contribute while
a different view was held by the Defendant.
[14]
COMMON CAUSE FACTS
The
following facts are common cause between the parties:
1.
The Plaintiffs locus standi.
2.
The Defendant's statutory liability.
3.
The identity of the insured driver and the insured motor vehicle.
4.
The identity of the Plaintiffs motorbike.
5.That
the speed limit in the area is 60 kilometres per hour.
6.
The time at which the collision occurred.
7.
The number of lanes at the intersection that Lynnwood Road has both
in the easterly and westerly direction.
8.
The point of impact.
9.
That the Plaintiff travelled from West to east while the insured
driver travelled from East to West in order to turn into Dyer
Street
at the intersection.
10.
That the insured driver stopped at the intersection before turning
right into Dyer Street.
11.
That Van Der Walt for the Defendant consulted with the Plaintiffs
Attorneys at their offices.
12.
That the collision occurred on 23 April 2004 at approximately 09H45.
13.
That the collision occurred within the traffic light controlled
intersection of Lynnwood Road and Dyer Street.
[15]
Mr. Kekana on behalf of the Defendant referred the court to the case
of S v Stripe
1972 (2) SA 707
(E) at 709 G -710 B. The citation
appears to be wrong. The case that I could find is S v Van Stryp 1979
(2) 707 (ECD). In this
case the court, at 709 H said:
"A
motorist approaching a green light should anticipate the possibility
that it may change to amber and so control his vehicle's
speed that
he will be able to stop in a short distance and only in exceptional
circumstances will he be forced to cross when the
light is amber, for
instance when he is very close to the white line with traffic
following him. Had the Appellant approached the
green light more
slowly he would have been able to stop before the intersection, or
have entered it at a speed which would have
enabled him to stop
within the intersection when he became aware of Mrs. Mulder's
approach."
On
the basis that the intersection was 13 metres wide, the court then
said:
"Accordingly,
had he proceeded cautiously against the amber light he could and
should, in my view, have been able to avoid
the collision. His
failure to do so constituted negligence on his part."
The
Appellant had testified that the light had been green when he
approached the intersection. The light turned amber when he was
8
metres from the intersection which then meant that he had had about
15 metres to the point of collision or impact .This clearly

distinguished the Van Stryp case from the current matter where the
plaintiffs wheel was on the solid white line dividing the
intersection
when the light changed to amber. The other case that Mr.
Kekana referred to is the matter of Doorgha and Others v Parity
Insurance
Co. Ltd 1963(3) SA 365 (D).The case deals with
intersections which are controlled by robots or traffic lights and
the responsibilities
that rest upon drivers at those intersections.
The responsibilities or obligations vary from case to case depending
on the circumstances
of the case. The test remains the same and that
is: what would a reasonable and careful driver do in those
circumstances?
In
Walton v Rondalia Assurance Corp. SA LTD 1972 [2] SA 777 (D & C.
L. D.) at 779 G -H Fannin J said: "Generally speaking
it is
clear, I think, that no motorist is entitled to proceed blindly
through an intersection disregarding all possibilities of
other
traffic, but that does not mean to say, in my opinion, that a person
entering an intersection is obliged to anticipate that
traffic will
move across his path in defiance of a traffic light which is against
it, unless some indication is given by such traffic
of an apparent
intention to do so, more particularly when such traffic is seen to be
at a standstill, in obedience to the prohibition
of the red light."
[16]
ADMISSIBILITY OF VAN DER WALT FOR THE DEFENDANT'S EVIDENCE
It
will be recalled that the witness had been called by the Defendant
without any prior warning. His version was not put to the
Plaintiff
and his witness. An objection on behalf of the Plaintiff was raised
regarding the admissibility of his evidence. The
court at the time
indicated that that could be left for argument and the new evidence
could be dealt with as may be necessary.
The witness surprised all
with the evidence that he produced before the court. The evidence was
new and even contradicted the evidence
of the insured driver and that
of the Plaintiff and his witness. Mr Kekana, on behalf of the
Defendant, conceded that the admission
of the witness's evidence
would be unfair to the Plaintiff whose right needed to be protected.
This, according to him, would result
in unfair trail. He, instead,
contended that it was the Defendant who was supposed to have applied
for the recalling of the Plaintiff
and not the Plaintiff. This, in my
view, appears to be correct. Surely it could not be expected of the
plaintiff to apply for his
witness to be recalled, as he could not
cross examine his own witness. If the defendant intended to rely on
the new evidence, in
order to discredit the plaintiffs evidence, he
could have applied for the plaintiffs witnesses to be recalled for
the purpose of
putting the new version to them. Failing to do so, he
could not rely on the new evidence to discredit the plaintiffs
witnesses.
This is in line with the SARFU case (infra). The evidence
remains untested. The evidence is also such that it could be
difficult
relying on it especially if regard is had to its value and
quality. As I alluded to earlier on in this judgment, his evidence
surprised
many in several respects. He could not help the court with
the number of motor vehicles that had stopped in front of the motor
bike. He could not tell the court what the colour of the traffic
lights were along Lynnwood road prior to the collision and at impact.

The insured driver did not see the two motor vehicles that were
stationary in front of the motor bike that he testified about and

above all his evidence was untested. The court a quo found that the
witness's evidence established negligence on the part of the

Plaintiff. The court a quo heavily relied on this witness whose
evidence it found not to have been manufactured. I find it very

strange that the witness, intelligent as he claimed to be, could not
remember that he had consulted with the Plaintiffs attorneys
at their
offices. The court a quo refers to the witness at paginated pages
241-246. The court a quo found that there was only one
criticism
levelled at the evidence of the witness. This cannot be correct if
regard is had to what I have already alluded to above.
The court
further found that there was no reason good enough to justify the
rejection of the witness's evidence, this in my view,
is also
incorrect.
[17]
A conspectus of the facts of this matter reveals that:
1.
The insured driver stopped and waited for traffic, along and in
Lynnwood Road to pass.
2.
The robots along an in Lynnwood Road were green at the intersection
with Dyer Street in favour of traffic travelling west to
east and
east to west.
3.
She waited for the traffic light to turn amber and then red. This
happened.
4.
She then turned right, and
5.
There was a collision.
6.
The collision on her own version would not have occurred had she not
turned right as she did.
7.
The collision would not have occurred had she waited for the green
arrow to reappear after it, as she put it, had disappeared.
8.
The insured driver posed no obstruction to the traffic along Dyer
Street that would have turned left or right into Lynnwood
Road. She
also conceded that she had an unobscured view of traffic approaching
her from the direction in which the Plaintiff had
been coming.
9.
The insured driver was in the obligatory right turn lane apparently
waiting for traffic to clear the intersection prior to the
collision.
10.
A concrete traffic island separated traffic making it almost
impossible for a vehicle from the opposite direction to encroach
upon
the direction in which the Plaintiff was travelling.
This
emphasises the fact that, there indeed, was no obligation upon him to
look out for vehicles that might have done so.
11.
The insured driver gave no indication that she would or could not
stop or wait for the Plaintiff to safely clear the intersection.
12.
The approach and presence of the Plaintiff on a noisy bright yellow
motor bike with its headlights on must have been clearly
visible to
the insured driver.
13.
The insured driver admitted that she had paid attention only to the
change of the traffic lights and that she had not seen
the Plaintiff
14.
The insured driver entered the intersection when it was inopportune
and dangerous to do so and when it was impossible for the
Plaintiff
to reasonably avoid the collision.
15.
The Plaintiff took all reasonable measures at his disposal and
available to avoid the collision.
16.
The traffic lights turned green at the intersection in Lynnwood Road
and Dyer Street the moment the Plaintiff took off from
the Lynnwood
Road and Duncan Street intersection.
17.
No evidence was tendered that the Plaintiff knew that the traffic
lights at the intersection of Lynnwood Road and Dyer Street
would
turn to amber before he safely passed through the intersection.
18.
The Plaintiff travelled at approximately between 55 and 60km/h.
19.
The motor cycle's front wheel touched the solid white line
demarcating the zebra crossing and intersection when the traffic

light turned to amber.
20.
There was no evidence to despute that it would have been impossible
for the Plaintiff to stop behind the solid white line.
21.
It was impossible for the Plaintiff to avoid the collision given the
distances indicated by the different witnesses.
22.
No evidence was produced to show that the insured driver was faced
with imminent danger and that she was almost obliged to turn
when she
did and as she did.
23.
Had the insured driver waited for the flashy green arrow to be
displayed, it indeed, would have been safe and opportune for
her to
turn to the right and thereby avoiding any danger to the other road
users or the collision.
24.
The evidence of Van Der Walt for the Defendant should not have been
relied upon.
[18]
Applying the principles dealt with and referred to above to the facts
of this matter the following become noteworthy.
1.
There was no reason for the Plaintiff to expect that the insured
driver would execute the right hand turn before he had cleared
the
intersection and thereby not allowing him the safe travel through the
intersection before she turned right.
2.
The insured driver gave no indication that she would or could not
stop or wait for the Plaintiff to safely clear the intersection.
3.
A greater duty of care rested upon the insured driver than the
Plaintiff, given the circumstances of the case, to keep a proper
look
out and to take all reasonable measures to avoid the collision.
4.
The Plaintiff took all reasonable steps available to avoid the
collision.
5.
The Plaintiff was entitled to proceed through the intersection in the
manner that he did.
6.
He was entitled to assume that the insured driver would obey the
traffic lights and turn when it was safe and opportune for
her to do
so. In the absence of an indication to the contrary there was no
reason for him to not assume that she would act reasonably
and
legally. In the circumstances of the Plaintiffs case there was,
indeed, justification for him to proceed as he did regardless
of
whether those circumstances were exceptional or not.
7.
There was no obligation or duty in the circumstances of the
Plaintiffs case for him to have kept a better look-out to guard

against motor vehicles that might enter the intersection and turn to
the right across his path of travel once the traffic lights
turned
amber. No such duty of care rested upon him unless the actions or the
omissions of the insured driver made it reasonably
clear to him that
she would not heed the traffic lights signals. There would also have
been no reason for him to act differently
even if he had earlier
noticed the insured driver stationary or waiting in the intersection.
The law is clear in this regard. 8.
The insured driver, on her own
version, made herself a trespasser in the intersection. The Plaintiff
in turn used the ordinary
care after becoming aware of her presence
and did everything possible to avoid the collision. He was therefore
entitled to assume
that the insured driver would not suddenly and
inopportunely turn across his line of travel and across the line of
traffic. Without
a clear intention to the contrary, the Plaintiff was
perfectly within his right to proceed as he did. The Plaintiff, and
depending
on the circumstances of the case, was called upon to take
precautions against reasonable and foreseeable contingencies only,
and
not against the possibility of reckless driving of other
motorists, (see Rondalia Versekering korporasie van SA beperk v De
Beer
supra).
8.
There is no evidence to show that the collision could have been
avoided had the Plaintiff reduced the speed. The Plaintiff, in
any
case, did not have to. Mr Kekana also correctly conceded.
9.
Applying the above principles to the facts of the case and having
regard to the circumstances of the case one clearly finds
that there
is no room for any contributory negligence on the part of the
Plaintiff.
[19]
Cross examination is such an important tool in the conduct of a case.
Indeed, as Mr Van Den Berg, on behalf of the Plaintiff
correctly
submitted, it reveals the truth by exposing a witness who
deliberately lies or is mistaken in one or more of the points
in his
evidence, or is biased, unworthy or has omitted to tender full and
adequate evidence on a material aspect. The Bill of Rights
in our
Constitution protects the right to challenge the evidence subjects
only to the limitations provided for in section 36. The
institution
of cross examination constitutes constitutional rights and imposes
obligations. (See in this regard President of the
Republic of South
Africa v South African Rugby Football Union 2011 (1) SA (CC)). It
must be borne in mind that evidence in respect
of a point in dispute
which is left unchallenged is accepted as correct (The President of
the RSA v SA Rugby Football Union [supra)).
Significant and important
as cross examination is, the version of Van Der Walt for the
Defendant was never put to the Plaintiff
and his witness. As already
and correctly conceded by Mr Kekana, in my view, the Defendant was
the right party to have recalled
the Plaintiff to enable it to
properly deal with the version of Van Der Walt for the Defendant.
Indeed, again as correctly conceded
by Mr Kekana, relying on the
witness's evidence resulted in an unfair trial on the part
of
the Plaintiff. This concession aside, I still have difficulty with
having to rely on this untested evidence the truth of which,
in my
view, is so questionable. This evidence, it will be recalled,
surprised all who heard it.
[20]
This then takes me to the question whether without this piece of
evidence, as the court a quo found, the Plaintiffs negligence
remains
proved. The court a quo at page 247 of the paginated papers said:
"His evidence, that is Mr Van der Walt for the defendant
in my
view, establishes negligence on the part of the Plaintiff."
Having regard to the principles I alluded to earlier on,
Mr Kekana's
concessions as well as the circumstances of this case, the value to
be attached to the witness's evidence, in my view,
is nil. No
negligence contributory or otherwise was proved on the part of the
Plaintiff. A greater duty of care rested upon the
insured driver than
upon the Plaintiff given the prevailing circumstances to keep a
proper look out and to take all reasonable
steps to avoid the
collision. The Plaintiff, in my view, did everything reasonably
possible in the circumstances to avoid the collision.
The collision,
in my view, was unavoidable.
[21]
The available evidence as well as the principles referred to above
point in one direction which is that the insured driver
was, indeed,
the sole cause of the collision on the day in question and that she
should therefore be held liable for 100 percent
of the Plaintiffs
proven or agreed damages.
[22]
I, in the result, make the following order.
1.
The appeal succeeds with costs.
2.Paragraph
one of the court a quo's order which reads:
"The
Defendant is liable for the Plaintiffs 60 (sic) apportioned proven
damages" is altered to read:
"The
Defendant is liable for 100 percent of the Plaintiffs proven or
agreed damages".
3.
Paragraphs 2 and 3 of the order remajrjjurialtered.
M.
W. MSIMEKI
JUD^E
OF THE HIGHS^OURT
I
Agree.
L.
M. MOLOPA-SETHOSA
JUDGE
OF THE HIGH COURT
I
Agree.
A.
F. ARNOLDI
ACTING
JUDGE OF THE HIGH COURT
And
it is so ordered.
Heard
on: 20 April 2011
For
the Appellant: Adv. Mr. van den Berg
Instructed
by: Adams & Adams
For
the Respondent: Adv. Kekana
Instructed
by: Maponya Inc.
Judgment
delivered on: