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[2023] ZAECMKHC 134
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Allison v Jawula (CA215/2022) [2023] ZAECMKHC 134 (1 December 2023)
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IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE
DIVISION, MAKHANDA)
CASE NO: CA215/2022
Reportable Yes/No
In
the matter between:
ARTHUR
EGON
ALLISON Appellant
and
LINDA
JAWULA Respondent
Coram:
Pakati J et Bands J
JUDGMENT
ON APPEAL
PAKATI
J
Introduction
[1]
This matter concerns an appeal against the whole of the judgment of
the court
a quo
dated, 14 September 2022, dismissing the
appellant’s claim for damages allegedly suffered in the amount
of R14 662.50
with interest calculated at the legal rate from a
date 14 days after the judgment to date of payment, plus costs. The
respondent,
Ms Linda Jawula, did not oppose the appeal. On 12
July 2023, she filed a notice to abide by the decision of the court.
[2]
The
quantum
and merits were separated. The only issue that had
to be determined by the court
a quo
was whether the damage to
the appellant’s boundary wall was caused by the negligence of
the respondent when she collided
with it.
[3]
The appellant, Mr Arthur Allison, owned a house whose address was
4[…] G[…]
Road, Gelvandale in Gqeberha. On 20 June
2018, he was informed that the boundary wall had been damaged by the
respondent, who collided
with it while she was driving a Toyota
Fortuner with registration number H[…] EC.
The
pleadings
[4]
On 27 November 2019, the appellant issued a summons against the
respondent for allegedly
driving her motor vehicle negligently
thereby hitting the appellant’s boundary wall and damaging it.
[5]
The appellant asserted that the collision was due to the sole
negligence of the respondent
in one or more of the following
respects: (i) she failed to keep a proper lookout; (ii) she drove at
an excessive speed; (iii)
she failed to apply brakes of her vehicle
timeously, or at all; (iv) she failed to keep her vehicle under
control; and (v) she
failed to take adequate steps to avoid the
collision when, by the exercise of care and skill, she could and
should have done so.
[6]
The appellant alleged that reasonable and necessary repair costs to
the boundary wall
amounted to R14 662.50. A quotation issued by
HJD Deysel t/a Hein’s Renovations & Contractors, dated 08
November
2018, was attached to the summons as Annexure “A”.
The appellant asserted further that the respondent is liable to him
for the payment of the repairs. However, he has failed or neglected
to settle the said amount or any portion thereof.
[7]
The respondent defended the action and filed a plea dated 16 February
2021.
In
her plea, the respondent admitted having collided with the
appellant’s boundary wall but denied that she was negligent
and
contended that the collision was caused by the sole negligence of an
unknown third-party driver in one or more of the following
respects,
in that he failed to (a) keep a proper look out; (b) apply breaks
timeously or at all; (c) keep his vehicle under control;
(d) take
adequate or any steps to avoid the collision when by the exercise of
reasonable care and skill, he could have done so;
(e) he failed to
stop at a stop sign; (f) he drove at an excessive speed and entered
the path of travel of the respondent causing
her vehicle to collide
with the plaintiff’s boundary wall; and (g) alternatively, that
the respondent was not negligent in
any of the allegations mentioned
by the appellant in that she acted out of sudden emergency because of
the third-party driver who
collided with her vehicle causing her to
lose control of it and collided with the boundary wall.
Brief
Synopsis
[8]
The appellant was not at home on the day the incident took place. He
received a message
that his boundary wall was damaged by the
respondent’s vehicle. Ms Sharnay Allison occupied his property
but did not witness
the incident. Her evidence demonstrated that
before the incident took place the boundary wall was intact. She was
inside the house
when she heard a sound and went out to investigate.
[9]
Mr Schoeman, the appellant’s neighbour, testified about the
damage that he observed
after the incident. He also did not witness
the incident. He stated that at the spot where the boundary wall was,
there was a single
lane carrying traffic in each direction. He
testified that the width of Gail Road is between 20 to 30 metres. He
estimated the
distance from the pavement to where the boundary wall
is to be between 8 to 10 metres. He stated that traffic driving up
and down
Gail Road has the right of way over any vehicle coming from
the side streets, the one being an ordinary side street and the
other,
a closed side street. According to him, there is sufficient
space for a vehicle to fit in the portion of the closed street. Mr
Schoeman took photos of the scene.
[10]
Considering that no one witnessed the collision as indicated above,
the respondent explained
how the collision took place. She was
travelling up Gail Road in a Fortuner taking it for service and
dropping her 9-year-old daughter
at Curo Westbrook School. Just
before the collision took place, she had been driving behind a red
Citi Golf that entered the roadway
and observed that it did not stop
at a stop sign, a few streets back. It also did not use its
indicators to show the direction
it was to take. In anticipation that
it was trying to make a U-turn or stop, the respondent swerved to the
right side of her lane
but not over the lane of the oncoming traffic.
Before the Citi Golf turned left into Stag Street towards a small,
tarred circle
and stopped next to the road, the respondent was
travelling less than a car length behind it. When she was asked
whether she applied
breaks when the Citi Golf turned into Stag
Street, she said that she did not do so timeously to avoid a
collision with the Citi
Golf. Instead, she tried to control her
vehicle and at the same time grabbed her daughter who was sitting in
the passenger seat.
She explained that she did not have 100% control
over the steering wheel ‘
because I was not using both my
hands.”
That is because when she heard a bang, her daughter
screamed, and she held her with one hand and the steering wheel with
the other,
to reassure her that she was safe. However, she confirmed
that her daughter was properly restrained and safe as she was wearing
a safety belt, and the airbag did not deploy during the collision.
When she was again asked what she did to avoid the collision,
she
said: “
I tried to swerve but it was too late for me to do
that.”
She also did not sound a hooter to announce her
presence to the driver of the Citi Golf especially when it turned to
the left side
of the road and stopped next to the road
.
[11]
The respondent testified that the Citi Golf collided with the front
passenger door of her vehicle
in her correct lane of travel, as she
was trying to manoeuvre her vehicle causing her to lose control of
same. The respondent later
testified that when the vehicle crossed
over to the lane of the oncoming traffic, past the pavement and the
streetlight, it was
not because she swerved her vehicle.
Order
by the court a quo
[12]
In dismissing the appellant’s claim, the trial court considered
all the circumstances but
could not find that ‘
the
respondent was negligent at all in regard to the allegations that are
set out in paragraphs 6.1 to 6.5 in the particulars of
claim
’
without mentioning what circumstances were considered. The
magistrate’s view was that the evidence of the appellant’s
witnesses did ‘
not contribute much to the plaintiff’s
case.’
The third-party driver, namely Elzano King of
8 E[...] Street, Gelvandale, Gqeberha, who drove the Citi Golf with
registration
number BX[…] EC was neither added as a defendant
nor called as a witness.
Grounds
of appeal
[13]
On 11 October 2022, the appellant filed a notice of appeal wherein he
encapsulated the grounds
of appeal summarised thus:
13.1
The trial court failed to find that the respondent was negligent as
alleged by the appellant in paragraph
6 of his particulars of claim.
13.2
The magistrate failed to find that the respondent was negligent
despite the following undisputed factors
which emerged from her
testimony:
13.2.1
The driver of the Citi Golf displayed signs of reckless and/or
careless driving even before he turned in front of the respondent;
13.2.2
The respondent grabbed her daughter after her vehicle was struck by
the Citi Golf even though her daughter was in no immediate
danger
thereby losing control of her vehicle and caused damage to the
appellant’s boundary wall and posed danger to the other
road
users; and
13.2.3
She did not apply breaks prior to colliding with the Citi Golf and
the plaintiff’s boundary wall.
13.3
The magistrate failed to find in favour of the appellant on the issue
of liability and award him costs of
the action, as well as costs of
counsel at a rate not exceedingly thrice the rate contained in the
magistrate’s court tariff.
13.4
The trial court erred and misdirected itself in dismissing the
plaintiff’s claim with costs.
The
principle of appeal
[14]
A court of appeal is generally reluctant to upset the findings which
depend on the credibility
of a witness and will only do so where such
findings are clearly wrong. In
R
v Dhlumayo and Another
[1]
Greenberg
JA, Schreiner JA and Davis AJA concurring held:
“
(8)
Where there has been no misdirection on fact by the trial Judge, the
presumption is that his conclusion is correct; the appellate
court
will only reverse it where it is convinced that it is wrong.
(9)
In such a case, if the appellate court is merely left in doubt as to
the correctness of the conclusion, then it will uphold
it.
(10)
There may be a misdirection on fact by the trial Judge where the
reasons are either on their face unsatisfactory or where the
record
shows them to be such; there may be such a misdirection also where,
though the reasons as far as they go are satisfactory,
he is shown to
have overlooked other facts or probabilities.
(11)
The appellate court is then at large to disregard his findings on
fact, even though based on credibility, in whole or in part
according
to the nature of the misdirection and the circumstances of the
particular case, and so come to its own conclusion on
the matter.
(12)
An appellate court should not seek anxiously to discover reasons
adverse to the conclusions of the trial Judge. No judgment
can ever
be perfect and all-embracing, and it does not necessarily follow
that, because something has not been mentioned, therefore
it has not
been considered.”
Analysis
[15]
It is undisputed that the respondent had observed how reckless the
driver of the Citi Golf conducted
himself when he drove in front of
her, but she did nothing about that. It is further undisputed that
where the Citi Golf turned,
there was a
cul de sac and
, there
was nowhere for it to go. When asked what she did when the Citi Golf
turned left, the respondent said that she swerved to
give it space to
drive past. When it was put to her that it looked like she stayed in
her lane when the Citi Golf hit her vehicle,
she answered in the
positive
.
She said: “
I was trying to give him some
space but within my lane
.” She stated that she did not
think of driving over to the right lane of traffic. Mr Le Roux, for
the appellant, asked:
“
Q:
And had you gone over to that lane you most likely would have given
him a wide enough berth and you would have passed him safely,
do you
agree?...
A:
Because I am not sure when I should have – if me by moving to
another lane I would have given him enough space because
I was not in
his head, so I do not know what he was trying to do. Because the
accident could have happened either way, because
he was like a minor
that was driving the car.
Q:
You did not hoot, blow your hooter when you did this reckless
manoeuvre to make him aware of your presence?
A:
The only time I hooted was before when he did not stop and then I
hooted. And then when he did his manoeuvring I did not hoot.”
[16]
The respondent gave no reason why she did not drive on the right-hand
lane thereby giving the
Citi Golf enough space as she would have
passed safely considering that there was no oncoming traffic or sound
a hooter making
her presence known to the driver of the Citi Golf.
[17]
The respondent confirmed that she did not put her foot on the brake
and the reason she did not
do so was because she was nervous and
shocked as this was a scary situation for her. She said that she did
not think about breaks
at that stage. According to her, the crossing
over of her vehicle to the lane of oncoming traffic past the pavement
and the streetlight
was caused by the impact when her vehicle was
bumped by the Citi Golf. She said: “
The reason why I lost
control, it was because of the impact so I had to for some reason,
motherly instincts, I thought of my child
and then there is a vehicle
here, so I - it is given that I could not do both of them fully.”
[18]
The respondent could not control the vehicle because it went down
Gail Road, crossed over the
lane of oncoming traffic, over the
pedestrian walkway, past a streetlight and collided with the boundary
wall. She confirmed that
the vehicle travelled a substantial distance
down the road and moved side to side before it collided with the
boundary wall. When
she was asked why she did not turn it towards the
road if she had some control of it, she could not proffer an
explanation.
[19]
Regarding a reasonable driver,
Diemont
AJA in
Butt
and Another v Van Den Camp,
[2]
Trengove
JA, Cillié JA, Viljoen JA, Holmes AJA and Diemont AJA
remarked:
“
The
reasonable driver is expected to be alert and to have a certain
nerve. He knows that in modern traffic conditions the unexpected
may
happen at any time…Difficult situations arise suddenly; the
reasonable driver must be able to cope with such situations.
The
competent driver who hears something strike the side of his vehicle
is not, as a rule, faced with an emergency. He is dealing
with the
sort of eventuality which an experienced driver must expect or at
least bear in mind and with which he must be able to
cope. He may
stop and investigate, but he will not suddenly swerve across the
road.”
[20]
The appellant was not the reasonable driver referred to above. I say
so because she noticed for
a while the way the driver of the Citi
Golf drove recklessly in front of her, as indicated earlier, yet she
followed him/her at
a distance less than a motor vehicle. Again,
holding her daughter with one hand and the steering wheel with the
other, resulted
in her losing control of the vehicle, and it veered
across the lane of oncoming traffic, past the pavement and a
streetlight and
collided with the appellant’s boundary wall, as
alluded. All this time, she did not put her foot on the brake, to
avoid the
collision either with the Citi Golf or the appellant’s
boundary wall. Her conduct could have had more serious repercussions
for herself, her daughter and other road users. The act of suddenly
swerving without applying brakes as well as her reaction to
the
circumstances at the time, was not what could have been expected of a
reasonable driver. She did not even stop to assess the
damage to her
vehicle.
[21]
It was not the respondent’s case that she was unable to drive
her vehicle after the impact
with the Citi Golf and it was also not
her evidence that her brakes were malfunctioning. She left the
vehicle to move forward without
applying brakes or steering it,
unlike what a reasonable driver would have done in the circumstances.
She relinquished the control
of her vehicle over the concern of her
daughter. She did not even say that everything happened fast and did
not have enough time
to react to the situation she found herself in.
[22]
The respondent also pleaded that she acted out of sudden emergency
because of the third-party
vehicle colliding with her vehicle causing
her to lose control and colliding with the appellant’s boundary
wall. She was
unable to claim that she was faced with an unexpected
incident. I say that because of the reasons already mentioned herein
above.
She did not act reasonably prudent during the whole incident.
I have already found that she had enough time to react to the
situation
but chose to attend to her child whereupon she lost control
of the vehicle. In my view, she did not do what a reasonable driver
in her position would have done for reasons already advanced. Her
conduct fell short of what was expected of a reasonably careful
and
skilled driver in the circumstances. The respondent was therefore
negligent and is liable for the damage caused to the appellant’s
boundary wall.
[23]
In my view, the magistrate committed a misdirection when he found
that the respondent was not
negligent thereby dismissing the
appellant’s claim with costs without giving reasons for his
decision.
Costs
[24]
The remaining issue for determination is costs. Mr Le Roux submitted
that the appellant should
be entitled to costs for bringing the
action before the court
a quo
. That is because the court
a
quo
was requested to award counsel’s fees at a higher scale
than the magistrate’s court tariff. Mr Le Roux submitted
further
that subject to the discretion of the taxing master/mistress,
counsel’s fees should be allowed in all but the simplest of
matters. He referred to
Edwin van Rooyen v Minister of Police case
number CA332/2018,
unreported, Grahamstown High Court delivered
on 26 March 2020 where a plaintiff was detained unlawfully during the
night of 17
February 2016. The court
a quo
’s dismissal
of the plaintiff’s claim was overturned on appeal, and he was
awarded costs of counsel in the magistrate’s
court at a rate
higher than the normal magistrate’s court tariff. This case is
distinguishable from the instant case. In
Edwin Van Rooyen
the
issue dealt with a constitutionally entrenched right regarding
unlawful and wrongful detention, which is not the case here.
[25]
It is a fundamental principle that a party who succeeds should be
awarded costs and this rule
should not be departed from except on
good grounds.
[3]
The award of
costs is wholly within the discretion of the court, but this is a
judicial discretion and must be exercised on the
ground upon which a
reasonable person could have come to the conclusion arrived at.
[4]
As far as I am concerned, there is no reason why the costs of this
appeal should not follow the result.
This
is applicable to the appeal and the judgment of the court
a
quo
.
It is undisputed that the appellant was represented by counsel before
the court
a
quo
.
However,
I
am of the view that this matter had no complex issues. No basis was
laid for the submission that it raised complex issues. Be
that as it
may, the appellant is entitled to costs of suit before the court
a
quo
as
well as costs of the appeal.
[26]
In the circumstances, I issue the following order:
1.
The appeal is upheld with costs.
2.
The order of the court
a quo
dismissing
the appellant’s claim with costs is set aside and substituted
with the following order:
“
(a)
The defendant is found to be negligent, such negligence being
the
sole cause of the damage to the plaintiff’s boundary wall.
(b)
The defendant is ordered to pay costs of suit.”
_____________________________________
BM
PAKATI
JUDGE
OF THE HIGH COURT, EASTERN CAPE, GQEBERHA
I
agree.
____________________________
I
BANDS
JUDGE
OF THE HIGH COURT, EASTERN CAPE, GQEBERHA
APPEARANCES:
For
Appellant :
Adv JD Le Roux
Instructed
by
:
McCallum Attorneys
For
Respondent :
No appearance
Date
heard
:
21 July 2023
Judgment
delivered :
01 December 2023
[1]
R
v Dhlumayo and Another
1948 (2) SA 677
(A)
at
paras [8-12]; See also
Makate
v Vodacom Ltd
2016 (4) SA 121
(CC)
at paras [37] and [40] where the Court as per (Jafta J; Mogoeng CJ,
Moseneke DCJ, Khampepe J, Matojane AJ, Nkabinde J and Zondo
J
concurring) held: “[37] Ordinarily, appeal courts in our law
are reluctant to interfere with factual findings made by
trial
courts, more particularly if the factual findings depended upon the
credibility of the witnesses who testified at the trial.
In Bitcoin
Wessels CJ said: “(T)he trial judge is not concerned with what
is or is not probable when dealing with abstract
businessmen or
normal men, but is concerned with what is probable and what is not
probable as regards the particular individuals
situated in the
particular circumstances in which they were.'
[40]
But even in the appeal the deference afforded to a trial court's
credibility findings must not be overstated. If it emerges
from the
record that the trial court misdirected itself on the facts or that
it came to a wrong conclusion, the appellate court
is duty-bound to
overrule factual findings of the trial court so as to do justice to
the case. In Bernert this court affirmed:
“What must be
stressed here, is the point that has been repeatedly made. The
principle that an appellate court will not
ordinarily interfere with
a factual finding by a trial court is not an inflexible rule. It is
a recognition of the advantages
that the trial court enjoys, which
the appellate court does not. These advantages flow from observing
and hearing witnesses as
opposed to reading the cold printed word.
The main advantage being the opportunity to observe the demeanor of
the witnesses.
But this rule of practice should not be used to tie
the hands of appellate courts. It should be used to assist, and not
to hamper,
an appellate court to do justice to the case before it.
Thus, where there is a misdirection on the facts by the trial court,
the appellate
court is entitled to
disregard the findings on facts and come to its own conclusion on
the facts as they appear on the record.
Similarly, where the
appellate court is convinced that the conclusion reached by the
trial court is clearly wrong, it will reverse
it”.
[2]
Butt
And Another v Van Den Camp 1982 (3) SA 819 (A).
[3]
South
African Association of Personal Injury Lawyers v Heath
[2000] ZACC 22
;
2001 (1) SA
883
(CC) at 912.
[4]
Beinash
v Wixley
[1997] ZASCA 32
;
[1997] 2 All SA 241
;
1997 (3) SA 721
(A).