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2023
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[2023] ZAFSHC 89
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Buys v Mangaung Metropolitan Municipality (1137/2019) [2023] ZAFSHC 89 (27 March 2023)
THE
HIGH COURT OF SOUTH AFRICA
FREE
STATE PROVINCIAL DIVISION
Reportable:
yes/no
Circulate
to other Judges: yes/no
Circulate
to Magistrates: yes/no
Case
Number 1137/2019
JOHANNES
BENJAMIN BUYS
Plaintiff
and
MANGAUNG
METROPOLITAN MUNICIPALITY
Defendant
CORAM:
BERRY, AJ
HEARD
ON:
03 MARCH 2023
DELIVERED
ON:
This
judgment was handed down electronically by email to the parties'
representatives and by release to SAFLII. The date and time
for
hand-down is deemed to be 15h00 on 27 March 2023.
JUDGEMENT
BY:
BERRY, AJ
JUDGMENT
[1]
Quantum and merits were separated.
[2]
The Plaintiff was involved in a motor vehicle accident on the morning
of 12
July 2016 at around 06:05.
[3]
The Plaintiff claims he drove over a speed hump which was being
constructed
by a sub-contractor of the Defendant in Louw Wepener
Street (eastern direction), Dan Pienaar, Bloemfontein.
[4]
The Defendant denies that the accident occurred on the specific site
and raises
a defence that construction on the specific speed hump has
not started on the morning of 12 July 2016.
[5]
The Defendant sub-contracted the construction of two speed humps in
the double
carriage way to the west and two speed humps in the double
carriage way to the east, over the period 07 July 2016 to 14 July
2016.
[6]
For the purposes of trial, a sketch plan was handed up which marked
the two
speed humps in the western direction as speed humps number
one and two and the speed humps in the eastern direction as speed
humps
number three and four. They were constructed in the order they
are numbered on the sketch plan.
[7]
Speed humps one and two regulates the traffic travelling in the
double road
to the west and speed humps three and four regulate the
traffic travelling in the double road to the east.
[8]
The Plaintiff testified that on the morning of 12 July 2016 he left
his house
at approximately 05:45 to travel to work. This is his
normal routine as he works in the construction industry and needs to
be on
site before 07:00 in the morning.
[9]
The Plaintiff was working on road construction on the N1 road at the
time the
accident occurred.
[10]
On his way to work he turned left (eastern direction) into Louw
Wepener Street.
[11]
He drove over speed hump number three and proceeded some 140 meters
to speed hump number four. He was
driving in the right lane of the
double carriageway.
[12]
He drove the same route the previous weeks to his work and on the
morning of the accident he drove
over speed hump three, which
according to the Plaintiff, was finished and already painted.
[13]
The vehicles headlights were on bright, and the street was properly
lit by streetlights.
[14]
It was winter, thus it was still dark at the time of the accident.
[15]
The Plaintiff testified he drove into a partially constructed speed
hump which is identified as speed
hump number four on the sketch
plan. This was the last speed hump to be constructed.
[16]
The vehicle came to a standstill with the front and back wheels
straddled over the top of the partially
constructed speed hump.
[17]
He injured his back, got out of the vehicle, and phoned his wife for
assistance.
[18]
He leaned on the right front seat of his vehicle and observed the
partial construction work whilst
waiting for his wife.
[19]
He saw that his vehicle’s front wheels drove over gravel and
cement bricks, whilst the tar ramps
on both sides of the speed hump
were not constructed yet.
[20]
According to the Plaintiff there was no warning signs indicating that
construction work was in progress.
[21]
The Plaintiff testified that he did not notice any permanent warning
signs indicating that there were
speed humps ahead, or any chevron
danger signs.
[22]
The Plaintiff’s wife, Mrs Buys, testified that she received a
call from the Plaintiff at around
06:05 advising her that he was
involved in an accident.
[23]
He told her where he was, and she went to the accident scene.
[24]
On arrival the Plaintiff told her his back was injured and she
assisted him to get into her vehicle
and took him to the Mediclinic
Hospital.
[25]
On their way to hospital, she phoned a colleague who came to fetch
the vehicle and tow it back to their
residence.
[26]
The vehicle was insured under her policy, and she made arrangements
for the vehicle to be towed and
repaired, whilst the Plaintiff was in
hospital.
[27]
Mrs Buys also testified that she drove over speed hump number three
on her way to her husband.
[28]
On arrival at speed hump number four she passed the Plaintiff’s
vehicle in the left lane and
then parked her vehicle in front of his
vehicle. The construction of the speed hump in the left lane has not
started.
[29]
She walked to her husband and assisted him to walk to her vehicle.
[30]
She noticed the partially constructed speed hump where her husband
was waiting for her at his vehicle.
[31]
The Defendant denies that construction work started on speed hump
number four, prior to the morning
of 12 July 2016.
[32]
The consulting engineer for the Defendant (Mr Venter) testified that
he was the project manager on
behalf of the Defendant. He conducts an
independent civil engineering consultancy business.
[33]
As project manager he represented the Defendant on the construction
site, and health and safety ultimately
rested on his shoulders.
[34]
Mr. Venter testified that construction started on 07 July 2016 and he
visited the site daily and took
photos of the progress.
[35]
He only took photos of the work that was being done on the day in
question, to enable him to report
progress to the Defendant.
[36]
The speed humps were constructed by milling the top level of the
tarmac from the existing street for
about 1 meter on both sides of
the speed hump.
[37]
Milling is a process where a machine breaks up the top layer of the
tarmac, without damaging the backing
or filling of the road. Thus,
only the top layer of the tarmac is removed.
[38]
The milling is done to create space where a new tarmac ramp can be
constructed and the foot of the
ramp would have space to “kick”
against the existing tarmac, to prevent the ramp from moving.
[39]
The speed hump’s top is constructed by compacting a gravel
filling to the required height and
then laying cement bricks on top
of the gravel filling.
[40]
The gravel and the cement bricks are placed on top of the existing
tar surface and only the tar road
on each side of the ramp (front and
back) is milled.
[41]
A tar ramp raising to be level with the top of the cement bricks is
constructed on both sides of the
speed hump. The new tarmac ramp
“kicks” against the edge of the existing tarmac, in place
of the flat tarmac which
have been removed with the milling process.
[42]
The photos Mr Venter took were admitted as evidence.
[43]
The photos are numbered and shows the date and time when the photos
were taken.
[44]
Mr Venter testified that the construction of the next speed hump
would not start before the previous
one was completed.
[45]
He also testified that there were warning signs for the construction
work on site and that the contractor
met all safety requirements.
[46]
Each photo has a computer printout which shows the date and time the
photo was taken and is numbered
in sequence to the actual photo.
Thus, reference will be made to the photos as photo number one and
photo number three, whilst
photos two and four are the computer
printout showing the date and time.
[47]
Photo one shows that on 07 July 2016 at 08:59 the speed hump in the
left lane is completed and the
open for traffic whilst the right lane
has been milled (traveling in western direction).
[48]
The construction would be completed in one lane and then the other
lane, before moving onto the next
speed hump. This methodology was
used to manage traffic flow.
[49]
It is evident from the photos that milling of both lanes occurred at
the same time, but that construction
would first be finished in one
lane and then the lane would be opened to traffic before construction
would commence in the other
lane. Photos five, thirteen and nineteen
illustrate the ramps to the top of the speed hump are completed on
one lane and the road
is opened for traffic, whilst the gravel and
brick work in the other lane are first constructed, where after the
tarmac ramp will
be laid.
[50]
The tarmac ramp could not be laid before the gravel and brick work is
completed, as the tarmac need
to rest against the compacted gravel
level to the top of the cement bricks and “kick” against
the tarmac road, where
the existing surface has been removed.
[51]
Photo eleven shows a completed speed hump number one at 10:01 on 08
July 2016.
[52]
Photos thirteen and fifteen show speed hump number two constructed
halfway, with the right lane open
for traffic, showing the compacted
gravel filling and bricks laid in the left lane. The tarmac ramps
were still to be constructed
at 10:46 on 11 July 2016.
[53]
It was weekend from 09 and 10 July 2016, thus no construction work
was done on these two days.
[54]
Mr Venter testified on behalf of the Defendant that one speed hump
would be constructed and finished,
before construction work on the
next one would start, to manage the impact on traffic.
[55]
Photo twenty-one shows that the milling for speed hump three (eastern
direction) is almost completed
on both sides of the speed hump at
10:48 on 11 July 2016.
[56]
Photo twenty-one, with photo nineteen, shows that construction on
speed hump two was still ongoing,
when milling of the tarmac of speed
hump three started.
[57]
This is in contrast with Mr Venter’s testimony that a speed
hump would be completed before work
on the next one started.
[58]
Mr Venter also testified that a speed hump would normally be
completed in a day.
[59]
Mr Venter responded that he did not consider milling as part of the
construction process when he was
confronted with the contradiction in
his testimony.
[60]
Photo twenty three shows that the right lane of the third speed hump
is completed and open for traffic,
whilst construction on the left
lane is in progress on 12 July 2016 at 10:26.
[61]
Photo twenty-three contradicts Mr Venter’s testimony that a
speed hump would be completed in
a day. It shows that speed hump
three was milled on 11 July 2016 at 10:48 (photo twenty-one), whilst
the construction of the speed
hump proceeded on 12 July 2016 at
10:26.
[62]
Photos twenty five and twenty seven show that the right lane of speed
hump three is completed and the
brickwork is being layered on the
gravel filling for the left lane at 10:27 and 10:28 on 12 July 2016.
[63]
The only conclusion is that speed hump three could not have been
finished on 11 July 2016, whilst the
milling started on 11 July 2016.
In contradiction to Mr Venter’s testimony.
[64]
When Mr Venter was asked whether the milled road would create a
safety risk, he was adamant that it
would not as only the top layer
of the tarmac was removed, or alternatively the milled tar would be
left on the road.
[65]
The top layer tarmac that was removed is between 50 and 70 cm thick.
[66]
Mr Venter was evasive about the height of the completed speed
hump and insisted that it was about
10 cm high and that the cement
bricks are about 80 mm thick.
[67]
Even when he was shown on photo twenty-five, that the gravel was much
higher than two cement bricks
laying on top of each other (160 mm),
Mr Venter would not make any concession and persisted that the height
of the gravel was 10cm.
[68]
Photo twenty-nine shows that the right lane is completed and open for
traffic at speed hump four, whilst
the gravel and cement brick work
is being done on the left lane at 12:09 on 13 July 2016.
[69]
All the photos show permanent chevron signs which was installed prior
to the construction of the speed
humps.
[70]
Photos thirteen, twenty-three, twenty-seven and thirty-three show
that there were construction warning
signs on site during
construction.
[71]
Photo nineteen show permanent speed hump warning signs which were
installed before construction started.
[72]
According to Mr Venter construction did not start on speed hump four
before 13 July 2016, thus the
defence that the accident could not
have occurred at the construction site on 12 July 2016.
[73]
The defence put to the Plaintiff is that he must have been involved
in an accident at another place
and was concocting a story that it
occurred at the construction site, to pursue a claim against the
Defendant.
[74]
The Plaintiff’s claim is supported with hospital records that
show he was admitted at the Mediclinic
Emergency section at 07:07 on
12 July 2016.
[75]
The Plaintiff also handed up a quotation for the repair of the
vehicle dated 25 July 2016.
[76]
Of concern is the Plaintiff and his wife’s testimony that they
drove over a completed speed hump
number three on the morning of 12
July 2016.
[77]
Photo twenty one shows that the milling at speed hump three was
almost completed at 10:48 on 11 July
2016 and photo twenty five shows
that construction on speed hump three was still ongoing at 10:28 on
12 July 2016.
[78]
They could not have driven over a completed speed hump number three
on the morning of 12 July 2016
at around 06:00.
[79]
It is almost seven years since the incident occurred. Mistakes
regarding the construction phase of
the third speed hump, does not
necessarily equate to untruthfulness.
[80]
As
quoted in
Milfi
v Klingenberg
Case Number 2/97 Unreported
[1998] ZALCC 7
par 79-81 from the 1984
Olive Schreiner Memorial Lecture delivered by Judge HC Nicholas
[1]
.
“
A
witness is proved to be in error where his statements are
contradicted by the proven facts or where he is guilty of
self-contradiction.
Where he has made contradictory statements, since
both cannot be correct, in one at least he must have spoken
erroneously. Yet
error does not in itself establish a lie. It merely
shows that in common with the rest of mankind the witness is liable
to make
mistakes. A lie requires proof of conscious falsehood, proof
that the witness has deliberately misstated something contrary to his
own knowledge or belief.
[81]
I find the testimony of the Plaintiff and his wife credible even
though they are mistaken that speed
hump number three was completed
on the morning of 12 July 2016.
[82]
It would have been beneficial if the Plaintiff could call the person
(Mr Luus) that came to tow his
vehicle to his residence, but he
unfortunately resides in New Zealand.
[83]
Mr Venter’s unwillingness to make the concession that milling
is part of the construction (photos
nineteen and twenty-one), is an
effort to get away from his testimony that construction on the next
speed hump would only start,
once the previous one is completed.
[84]
His unwillingness to concede that leaving a milled road open
overnight (photos twenty-one, twenty-three
and twenty-five), will
create a safety risk, raise serious questions about his impartiality,
even though he renders services as
an independent contractor for the
Defendant.
[85]
Mr Venter was ultimately responsible for the safety on the
construction site, even though the Defendant
has its own health and
safety inspectors.
[86]
I do not find Mr Venter a credible witness. Thus, I do not accept his
evidence that construction work
on speed hump four did not start
before the morning of 12 July 2016.
[87]
The Defendant created the dangerous situation in the first instance
and had to ensure a member of the
public traveling on a public road,
cannot access the construction site.
[88]
The question is what apportionment must be applied.
[89]
It was 06:00 in the morning and the construction workers were not on
site yet, thus the construction
site should have been blocked off to
ensure members of the public cannot access the site.
[90]
The distance between speed hump three and four is 140 meters.
[91]
The Plaintiff drove a light weight KIA delivery vehicle which is
quite high. His testimony was that
the front seat is so high that he
could lean on it to support his back, whilst he was waiting for his
wife.
[92]
The Plaintiff testified that he drove over speed hump three without
any difficulties and that he travelled
between 40 to 60 kilometres
per hour when he ran into the gravel with the brick layered on top.
[93]
The Plaintiff travelled the route frequently and was familiar with
the route.
[94]
The weather was good and the street lights were on.
[95]
The Plaintiff drove with his headlights on bright as there was no
traffic.
[96]
The Plaintiff did not keep the necessary look out whilst he was
driving, thus his testimony that he
did not even see the permanent
warning signs next to the road.
[97]
I find that the Defendant should be held liable for seventy percent
of the Plaintiff’s damages.
ORDER
[98]
The following Order is made:
1.
The Defendant is liable for seventy percent of the Plaintiff’s
damages,
which are to be proven at a later stage.
2.
The Defendant is ordered to pay the cost of the trial to date.
AP
BERRY, AJ
APPEARANCES:
For
the Plaintiff:
Adv.
L Pohl SC
Instructed
by: Honey
Attorneys
(Ref:
HLB/jjm/I28722)
BLOEMFONTEIN
For
the Defendant:
Adv.
H Cilliers
Instructed
by: Phatshoane
Henney
Inc
(Ref:
J van den Bergh/SJ/THE110/0226
BLOEMFONTEIN
[1]
“Credibility of Witnesses” Olive Schreiner Memorial
Lecture, 24 August 1984, 33 published in 102 SA Law Journal (1985)
32.