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[2023] ZAFSHC 393
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Mangaung Metropolitan Municipality v Buys - Application for Leave to Appeal (1137/2019) [2023] ZAFSHC 393 (16 October 2023)
THE
HIGH COURT OF SOUTH AFRICA
FREE
STATE PROVINCIAL DIVISION
Reportable: YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
Case
Number 1137/2019
MANGAUNG
METROPOLITAN MUNICIPALITY
Applicant
and
JOHANNES
BENJAMIN BUYS
Respondent
In
Re
MANGAUNG
METROPOLITAN MUNICIPALITY
Applicant
and
JOHANNES
BENJAMIN BUYS
Respondent
CORAM:
BERRY, AJ
HEARD
ON:
09 MAY 2023
DELIVERED
ON:
16
OCTOBER 2023
JUDGEMENT
BY:
BERRY, AJ
JUDGMENT
– APPLICATION FOR LEAVE TO APPEAL
INTRODUCTION
[1]
This is an Application for leave to appeal against a
judgment handed
down on 03 March 2023.
[2]
Quantum and merits were separated at trial.
[3]
The Respondent bumped into a partially constructed speed
hump on 12
July 2016 at about 06:05.
[4]
I found the Applicant liable for seventy percent of the
damages to be
proven and ordered that the Applicant pay the costs to the date of
trial.
GROUNDS
FOR LEAVE TO APPEAL
[5]
The Applicant applies for leave to appeal against the
whole of the
judgment, including the finding on apportionment and the cost order.
[6]
The Applicant elected to follow the literal gunshot approach
and is
effectively seeking a retrial in that the Applicant rehashes every
single piece of evidence in its Application for leave
to appeal.
[7]
The grounds for the Application for leave to appeal are
listed below.
I repeat all the grounds as I cannot summarise them in a manner that
will give justice to all the grounds.
[8]
The Court erred in one or more of the following respects:
“
8.1
By finding that the Applicant is liable for 70% of the Respondent’s
damages and that the
Applicant is to pay the Respondent’s costs
of trial to date.
8.2
By not taking into account that Mr Venter who testified on behalf of
the Applicant,
did not testify as an expert witness.
8.3
By not properly considering the Respondent’s case as pleaded in
paragraph 5
of the Particulars of Claim.
8.4
By not limiting the Court's questions to Mr Venter to clearing up
aspects that emanated
from evidence in chief and cross-examination
but having effectively cross-examined Mr Venter.
8.5
By having elicited an opinion from Mr Venter whether he considered
milling of the
road surface (“milling”) as part of the
construction process of a speed hump.
8.6
By having elicited an opinion from Mr Venter whether he considered
milling as being
dangerous to road users.
8.7
By having elicited an opinion from Mr Venter about the height of the
gravel and bricks
as depicted on photo 25.
8.8
By having made a negative credibility finding against Mr Venter
because he provided
his opinions to Court as requested to the effect:
(a) That he did not
consider milling as part of the construction process of a speed hump.
(b) That he did not
consider a milled portion of the road surface as creating any danger.
(c) That he
considered the height of the sand and bricks as depicted on photo 25
as allegedly 100 mm.
8.9
By not taking into account that no other opinion/s existed except
that of Mr Venter.
8.10
The Court assumed the role of an expert, alternatively expressed
expert opinion by disagreeing
with Mr Venter in respect of his
opinions expressed, upon request of the Court.
8.11
By having found that Mr Venter was evasive and not willing to make a
concession.
8.12
By having found that Mr Venter was not a credible witness because he
was allegedly unwilling
to make a concession that milling is part of
a construction in an effort to get away from his testimony.
8.13
By having found that there were serious questions about Mr Venter's
impartiality whilst the Court,
after having questioned Mr Venter
about his relationship with the Applicant, indicated that the aspect
need not be canvassed further
as the Court would not keep it against
the Applicant.
8.14
By having found that the Respondent and his wife, Mrs Buys, were
allegedly credible witnesses
notwithstanding that:
8.14.1
The Respondent's pleaded case, as set out in the Particulars of Claim
and supplemented by his
application for condonation, was extremely
vague, ultimately only resulting in the Respondent alleging that he
had drove into “something”
on 12 July 2016.
8.14.2
During evidence in chief the Respondent’s version suddenly
changed that he allegedly
drove into bricks on top of a sand layer,
i.e. a partially completed speed hump.
8.14.3
They insisted that there were no road signs, i.e. permanent road
signs or temporary road signs
at the scene of the alleged incident
the morning of 12 July 2016 whilst the photographs which served as
undisputed and accepted
evidence before Court (Exhibit A) confirmed
the presence of permanent road signs as well as temporary road signs
at the scene on
12 July 2016.
8.14.4
The Respondent insisted that he drove in the right lane of Louw
Wepener Street over speed bump
number 3 which was completed and
painted white.
8.14.5
Mrs Buys testified that she drove in the left lane of Louw Wepener
Street over speed bump number
3 which was completed.
8.14.6
Photograph nr 25 (12 July 2016 at 10:27) clearly depict that speed
bump number 3 (right lane)
was not painted and the speed bump number
3 (left lane) had not been erected at the time.
8.14.7
The Court’s concern that the Respondent and his wife's
testimony in this regard did not
accord with the evidence contained
in photograph nr 25.
8.15
By, notwithstanding having found that the Respondent and his wife
could not have made the observations
at speed bump number 3,
justified the Respondent and Mrs Buys' evidence by attributing it to
the lapse of approximately seven years
and that they allegedly made
bona fide mistakes notwithstanding their insistence during
cross-examination that they are well experienced
in construction
sites and speed bumps and that they know what they encountered when
they drove over speed bump number 3.
8.16
By not having found that the Respondent as supported by his wife, Mrs
Buys were extremely evasive
and obstructive witnesses by at least:
8.16.1
Not having conceded the presence of warning and other road signs at
the alleged scene in Louw
Wepener Street, Bloemfontein.
8.16.2
The Respondent's evidence that one can see about 300 - 400 meters
with his vehicle's lights
on the “bright setting” and
then when confronted about his field of view on the way to the
alleged scene of accident,
testified he could only see 30 meters.
8.17
By having placed reliance on the evidence relating to Mr Luus whilst
he was not called as a witness
and justifying same that Mr Luus was
allegedly residing in New Zealand. No evidence was tendered why an
affidavit of Mr Luus could
not be obtained in terms of the provisions
of Rule 38 or why his evidence could not be adduced by way of
electronic means.
8.18
By not having rejected the evidence of the Respondent and his wife.
8.19
By not having found that Mrs Buys' evidence as to how the Respondent
entered the hospital, i.e.,
being carried by Mr Akron, was in
contrast of the hospital records which indicated that the Respondent
walked into hospital.
8.20
By not making a negative finding against the Respondent for not
having adduced the evidence of
Mr Akron.
8.21
By not having found that since Mr Venter visited the scene on 12 July
2016, took photographs
at 10:26, 10:27 and 10:28 and then drove back
to work using Louw Wepener Street eastbound, encountering no
construction opposite
house nr. 38 in Louw Wepener Street, eastbound,
that no incident could have taken place at 06:05 on 12 July 2016 as
alleged by
the Respondent.
8.22
By not having found that the evidence before the Court amounted to
two mutually destructive versions,
that the Court could not reject
the evidence adduced on behalf of the Applicant as false, that the
Respondent bore the onus, that
the Respondent did not discharge the
onus and that the claim should therefore have been dismissed with
costs.
APPORTIONMENT
9.1
Even if it should be found by another Court that the Applicant is
liable towards the Respondent
for payment of damages, the Court
seriously erred by making an apportionment of 70% in favour of the
Respondent.
9.2
In this regard the Court, with respect, erred by not taking into
account or properly taking
into account that according to the
evidence:
9.2.1
The area was well lit.
9.2.2
The Respondent’s vision was not impaired.
9.2.3
The Respondent drove with his lights on bright setting.
9.2.4
There were no other vehicles or people present at the scene.
9.2.5
Warning sign boards were present at the scene as confirmed by the
undisputed and
accepted photographs.
9.2.6
Chevron plates (danger plates) were present at the time of the
incident.
9.2.7
The Respondent drove over speed bump number 3 at a speed of between
50 - 60 km/h.
9.2.8
The Respondent testified that he was surprised by the presence of
speed bump number
3.
9.2.9
The Respondent reduced his speed to 30 - 40 km/h after having
traversed speed bump
number 3.
9.2.10
The Respondent retained his light settings on high beam after having
traversed speed bump number
3.
9.2.11
That on high setting the Respondent was able to see approximately 300
- 400 m in front of him.
9.2.12
The Respondent was able to stop in a distance of 5 meters.
9.2.13
Speed bump number 3 and 4 are only 142 meters apart.
9.2.14
The alleged paving bricks that he drove over was grey in colour and
was raised from the road
surface making it easy to observe.
9.2.15
The grey paving bricks would have been visible in his vehicle's
bright lights.
9.3
The Court should have found that the Respondent grossly failed to
keep a proper lookout and is
solely to blame for the occurrence of
the incident.
9.4
Taking the above into account, another Court will probably find that
at best an apportionment
in favour of the Respondent should not be
more than 20%.
COSTS
10.1
In the first instance it is submitted that the Honourable Court erred
in granting the Respondent’s
claim with costs.
10.2
In the event of it being found that the Applicant is indeed liable,
and that an apportionment
in the vicinity of 20% should rather have
been awarded to the Respondent, then the Respondent cannot be
considered as having been
substantially successful and costs should
then not be awarded in favour of the Respondent.”
ANALYSIS
[11]
The main thrust of the Application for leave to appeal seems to be
that the
Court
a quo
erred in accepting the evidence of the
Respondent and his wife, regardless of the shortcomings of their
testimony, and finding
that the sole witness for the Applicant (Mr
Venter), was not a credible witness.
[12]
The testimony of Mr Venter was not presented as expert evidence and
the Court
did not treat his testimony as such.
[13]
Mr Venter testified that he conducts an independent civil engineering
consultancy
business.
[14]
He is a qualified consulting engineer, and his firm was appointed to
manage
the project on behalf of the Applicant.
[15]
He provided the service as project manager for this project.
[16]
Mr Venter testified that he was responsible for the overall
management of the
project and was responsible for all aspects on
site, including safety.
[17]
Mr Venter represented the Applicant on site and took the photos for
the purpose
of making progress reports to the Applicant.
[18]
A Court is not bound by the evidence of an expert and must apply its
own mind
to the evidence presented. More so when a person is called
as a witness who was involved in the matter serving before Court.
[19]
Mr Venter was not called as an expert witness, but as a witness to
the photos
he took, and in his capacity as project manager, that
oversaw the construction of the four speed humps.
[20]
Mr Venter testified that he only took photos of the work that was
being done
on a specific day. The conclusion must then be that he did
not take photos of the place where speed hump four was being
constructed
on 12 July 2016.
[21]
Photo twenty-seven show that construction of speed hump number three
in the
right lane is complete and that construction in the left lane
is almost complete at 10:27 on 12 July 2016.
[22]
Photo twenty-nine show that construction of speed hump number four in
the right
lane is complete and the construction in the left lane is
almost complete at 12:09 on 13 July 2016.
[23]
Photo thirty-seven show construction of speedhump number four is
completed
at 12:13 on 13 July 2016.
[24]
Mr Venter testified that he only took photos of the work being done
on the
day, thus he would have taken photos if any work was being
done on speedhump number four on 12 July 2016.
[25]
Mr Venter’s persistence that milling of the tar road surface
forms part
of the construction process, begs questioning.
[26]
So does his persistence that removing the tar surface creates a
safety risk.
[27]
One does not need an expert opinion to realise that removing the tar
surface
on a tar road, constitutes a road hazard.
[28]
Mr Venter testified that one speed hump would be completed before
work on the
next speed hump would start to manage traffic control and
traffic flow.
[29]
Photo twenty-one shows that the milling for speed
hump three (eastern direction) is almost complete on both sides of
the speed hump
at 10:48 on 11 July 2016.
[30]
Photo twenty-one, with photo nineteen, shows that
construction on speed hump two (western direction) was still ongoing,
when milling
of the tarmac of speed hump three started on 11 July
2016.
[31]
This is in contrast with Mr Venter’s
testimony that a speed hump would be completed before work on the
next one started.
[32]
When Mr. Venter was asked about the contradiction
in his testimony, he responded that he did not consider milling as
part of the
construction process.
[33]
Mr. Venter also testified that a speed hump would
normally be completed in a day.
[34]
Photos twenty-one and twenty-three contradict Mr Venter’s
testimony,
in that it shows that construction of speed hump number
three started on 11 July 2016 and was only completed on 12 July 2016.
[35]
Mr. Venter testified that the paving bricks
used at this site was 80mm high.
[36]
He further testified that the height of the
speed hump is 100mm.
[37]
Mr. Venter was asked about the obvious
contradiction in his testimony that the speed hump is 100mm high and
asked about the two
bricks of 80mm high each, lying on top of each
other in front of the uncompleted speed hump, which was higher than
the two bricks
on
photo twenty-five
.
[38]
Mr Venter persisted with his testimony that the height of the gravel
was 100mm.
[39]
Mr Venter was not called as an expert witness, but as the project
manager,
who happens to be a civil engineer, whose civil engineering
consultancy rendered independent project management services to the
Applicant.
[40]
There is no reason why the Court
a quo
should not have
accepted his testimony that the paving bricks are 80mm high.
[41]
Photo twenty-five show two bricks laying on top of each other and the
two bricks
are lower than the compacted gravel, thus the speed hump
cannot be 100mm high.
[42]
Mr Venter also testified that the speed hump is normally as high as
the pavement
next to the road, which is certainly not 100mm high.
[43]
Expert evidence as to the height of two 80mm bricks on top of one
another,
is not needed.
[44]
These are the reasons the Court
a quo
did not accept Mr
Venter’s testimony as credible.
[45]
I did not accept Mr Venter’s testimony that construction on
speed hump
number four only started on 13 July 2016 and further that
there was no hazard created by a partially constructed speed hump on
the morning of 12 July 2016.
[46]
The finding that Mr Venter could not be regarded as an independent
witness
is in line with the fact that his evidence was not presented
as that of an expert, but as an independent contractor that rendered
services to the Applicant.
[47]
I questioned Mr Venter’s impartiality due to the credibility
finding
I made.
[48]
The Respondent and his wife, with special reference to the completion
of speed
hump three and the construction warning signs, were not
satisfactory either.
[49]
Their insistence that speed hump three was completed at 06:00 on the
morning
of 12 July 2016 raised serious concerns.
[50]
So did their persistent denial of having seen any warning signs,
whilst both
witnesses testified to their knowledge of road
construction, as they both work in the industry.
[51]
Mrs Buys testified that she was a trained health and safety officer
and has
skilled knowledge about the safety requirements on a road
construction site.
[52]
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.”
[53]
I repeated the evidence of the Plaintiff and the two witnesses, as
the main
thrust of the Application for leave to appeal is the Court’s
finding that Mr Venter was not a credible witness, and the Court’s
own observation about the height of the speed hump, the height of two
bricks lying on top of one another, and the danger a milled
road
pose.
[54]
Mr Venter’s persistence to deny the obvious, raised serious
doubt about
the trustworthiness of his testimony that construction on
speed hump four did not start before the morning of 12 July 2016.
[55]
The mutually destructive testimony between the two parties were
whether speed
hump number four was partially constructed on 12
November 2016 or not.
[56]
Whilst the testimony of the Plaintiff and his wife was not
satisfactory in
all aspects, the denial of the obvious by Mr Venter,
outweighed the unsatisfactory aspects of the Plaintiff and his wife’s
testimony.
[57]
Thus, the Court
a quo
had to decide whose version is more
probable.
[58]
Sec 17(1) of the Superior Court’s Act 10 of 2013 provides that
leave
to appeal may only be granted if the judge concerned is of the
opinion that:
(a)
(i) the appeal would have a reasonable
prospect of success; or
(ii)
there is some other compelling reason why the appeal should be heard,
including conflicting judgments on the matter under consideration;
(b)
the decision sought on appeal does not fall within the ambit of
section 16 (2) (a); and
(c)
where the decision sought to be appealed does not dispose of all
the the issues in the case, the appeal would
lead to a just and prompt resolution of the real issues between the
parties.
[59]
In
Matoto
v Free State Gambling and Liquor Authority and Others
[2]
the Court held:
“
There
can be no doubt that the bar for granting leave to appeal has been
raised. Previously, the test was whether there was a reasonable
prospect that another court might come to a different conclusion.
Now, the use of the word ‘would’ indicates a measure
of
certainty that another court will differ from the court whose
judgment is sought to be appealed against.”
[60]
In
S
v Smith
[3]
the
Court dealt with the question of what constitutes reasonable
prospects of success as follows:
“
What the test of
reasonable prospects of success postulates is a dispassionate
decision, based on the facts and the law, that a
court of appeal
could reasonably arrive at a conclusion different to that of the
trial Court. To succeed, therefore, the appellant
must convince this
court on proper grounds that he has prospects of success on appeal
and that those prospects are not remote but
have a realistic chance
of succeeding. More is required to be established than that there is
a mere possibility of success, that
the case is arguable on appeal or
that the case cannot be categorised as hopeless. There must, in other
words, be a sound, rational
basis for the conclusion that there are
prospects of success on appeal.”
[61]
In
MEC
for Health, Eastern Cape v Mkhitha and Another
[4]
the
Court held:
“
[16] Once again it
is necessary to say that leave to appeal, especially to this court,
must not be granted unless there truly is
a reasonable prospect of
success. Section 17(1)(a) of the Superior Court Act 10 of 2013 makes
it clear that leave to appeal may
only be given where the judge
concerned is of the opinion that the appeal would have a reasonable
prospect of success; or there
is some other compelling reason why it
should be heard.
An applicant for leave to
appeal must convince the court on proper grounds that there is a
reasonable prospect or realistic chance
of success on appeal. A mere
possibility of success, an arguable case or one that is not hopeless,
is not enough. There must be
sound, rational basis to conclude that
there is a reasonable prospect of success on appeal.”
[62]
The grounds for the Application for leave to appeal, entail a revisit
to the
contended issues in the main action.
[63]
An Applicant may revisit the issues at trial in an Application for
leave to
appeal, provided that the Court is satisfied that there is a
reasonable prospect that the factual matrix would receive a different
interpretation by another Court.
[64]
The bar has been raised for granting leave to appeal.
[65]
In my opinion another Court would not interpret the factual matrix
and the
credibility findings in a different manner.
[66]
ORDER
The
following order is made:
1.
The Application for leave to appeal is
dismissed with costs.
AP
BERRY, AJ
APPEARANCES:
For
the Applicant:
Adv.
H Cilliers
Instructed
by:
Phatshoane
Henney Inc
(Ref:
J van den Bergh/SJ/THE110/0226
BLOEMFONTEIN
For
the Respondent
Adv.
L Pohl SC
Instructed
by:
Honey
Attorneys
(Ref:
HLB/jjm/I28722)
BLOEMFONTEIN
[1]
“Credibility of Witnesses” Olive Schreiner Memorial
Lecture, 24 August 1984, 33 published in 102 SA Law Journal
(1985)
32.
[2]
(4629/2015)
[2017] ZAFSHC 80
(8 June 2017).
[3]
2012 (1) SACR 567
(SCA) par [7].
[4]
(1221/2015)
[2015] ZASCA 176
(25 November 2016).