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[2011] ZASCA 95
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Putco (Pty) Ltd v Mosholi (577/2010) [2011] ZASCA 95 (31 May 2011)
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THE SUPREME COURT OF APPEAL OF
SOUTH AFRICA
JUDGMENT
No precedential significance
Case No 577/2010
In the matter between
PUTCO (PTY) LTD
................................................................................
APPELLANT
and
WINNIE MINA MOSHOLI
...................................................................
RESPONDENT
Neutral citation:
Putco (Pty) Ltd v W M
Mosholi
(577/2010)
[2011] ZASCA 95
(31 May 2011)
Coram: NAVSA, CLOETE, MALAN, MAJIEDT JJA and MEER AJA
Heard: 12 MAY 2011
Delivered: 31 MAY 2011
Summary:
Damages ─ collision ─
mutually destructive versions ─ probabilities and
improbabilities even ─ no grounds
for interference with trial
court's credibility findings.
______________________________________________________________
ORDER
______________________________________________________________
On appeal from:
North Gauteng High Court
(Pretoria) (Van den Heever AJ, sitting as court of first instance):
The appeal is dismissed with costs.
______________________________________________________________
JUDGMENT
______________________________________________________________
MAJIEDT JA (NAVSA, CLOETE, MALAN JJA and MEER AJA
concurring):
[1] The appellant appeals against the judgment and order
of Van den Heever AJ, sitting as court of first instance in the North
Gauteng
High Court, Pretoria, in terms whereof the appellant was held
liable for such damages exceeding the amount of R25 000 as the
respondent
is able to prove to have suffered as a consequence of
injuries sustained in a motor vehicle collision.
This appeal is with the leave of the court below.
[2] The trial proceeded on the issue of liability only,
the issue of the extent of the respondent's damages having been
ordered
to stand over for later determination. The incident giving
rise to the claim concerns a collision between the appellant's bus in
which the respondent, Ms Winnie Mosholi, was a fare paying passenger,
and a bakkie. After hearing evidence the trial court found
the
probabilities and improbabilities to be evenly balanced and decided
the matter on the credibility of the parties' respective
witnesses.
It found the evidence presented by one of the respondent's witnesses,
Mr Fernando Manuel, who was a passenger in the
bakkie, to be more
credible than that of the appellant's sole witness, Mr Stephen
Seloane, the driver of the bus. As a consequence,
the trial judge
held that Seloane's negligent driving was the sole cause of the
collision.
[3] The court below further found that the Road Accident
Fund (RAF) is not a joint wrongdoer for purposes of s 2(10) of the
Apportionment
of Damages Act, 34 of 1956 (the Act). The finding was
made by the trial judge on the basis that, even if he was wrong in
rejecting
Seloane's evidence, Seloane was in any event on his own
version contributorily negligent.
[4] The collision caused the bus to
overturn, resulting in a number of fatalities and injuries to
passengers. The RAF settled the
respondent's claim for damages in the
magistrate's court for its full amount, namely R25 000, being the
erstwhile statutory limit
in respect of a claim of a passenger being
conveyed for reward in terms of the
Road Accident Fund Act, 56 of
1996
.
1
The respondent claimed the balance of
her damages from the appellant in the court below. It was common
cause that, at the time of
the collision, Seloane was acting in the
course and scope of his employment with the appellant.
[5] Appellant's counsel attacked the
trial court's credibility finding in favour of Manuel on a number of
grounds. He alluded to
the fact that Manuel is the only one of a
number of the respondent's witnesses who makes mention that the bus
was swerving from
side to side prior to it crashing into the bakkie
.
But it is
fallacious
to reason that, because other witnesses make no mention of this fact,
it did not happen. In my view it is quite possible
that the
passengers in the bus were not aware of the bus moving from side to
side. Manuel, being conveyed in the bakkie ahead of
the bus, noticed
its lights 'zig-zagging' (as he described it) behind their vehicle. I
am not persuaded that this contention has
any merit. Counsel
contended further that the trial judge was inconsistent in rejecting
the evidence of one Mr Kuzwayo, one of
the respondent's witnesses who
was also a passenger on the bus, for deviating from earlier written
statements, whereas Manuel's
evidence was accepted, despite him not
having mentioned the swerving of the bus in his written statement.
The criticism is unfounded.
Kuzwayo's evidence was rejected on a
number of bases, including his failure to mention material facts
relating to Seloane's driving,
in his earlier written statements. The
trial judge was careful in his assessment of Manuel's evidence. He
found his evidence as
a whole satisfactory and more credible. It is
in that context that the trial judge accepted Manuel's evidence,
despite the omission
referred to above. In any event, Manuel did not
deviate from his written statement; he merely added a further aspect
in his testimony.
2
[6] The trial judge, correctly in my view, found that
the collision occurred due to Seloane's failure to keep a proper
lookout.
He justifiably criticized Seloane's unsatisfactory evidence
in the following respects – Seloane was unable to state whether
he had flashed his lights or whether they were on bright before the
collision, whether he had swerved to the right before or only
after
the collision, whether he applied brakes to avoid the collision and,
if he did, why his speed was not reduced. He was also
unsatisfactory
in his evidence concerning the movement of the bakkie onto the
roadway prior to the accident. The trial judge correctly
found that
the manoeuvres that Seloane claimed to have executed to avoid the
collision, are not compatible with the timeframe of
his description
how the collision occurred. This is particularly so in respect of his
testimony that the bakkie suddenly and without
warning moved into his
path of travel. Seloane's version was rightly rejected by the court
below.
[7] The trial judge cannot be faulted in his finding
that Seloane's negligence was the sole cause of the collision. His
approach
and findings on the probabilities and on the witnesses'
credibility are in my view unassailable. He gave a carefully reasoned
judgment,
furnishing detailed reasons for his credibility findings in
favour of Manuel and against Seloane. The submissions advanced by
counsel
to challenge the credibility findings against Seloane do not
bear scrutiny. The record supports the trial judge's comprehensive
motivation for rejecting his evidence. There are no grounds upon
which this court can interfere with the trial judge's credibility
findings. Upholding the finding of the court below that Seloane's
negligence was the sole cause of the collision has the result
that
the other issue mentioned in para 3 above does not arise.
[8] The appeal is dismissed with costs.
___________
S A MAJIEDT
JUDGE OF APPEAL
APPEARANCES
Counsel for Appellant : T POTGIETER
Instructed by : SAVAGE JOOSTE & ADAMS INC
PRETORIA
NAUDES, BLOEMFONTEIN
Counsel for Respondent : F DIEDERICKS
Instructed by : WILSENACH VAN WYK GOOSEN &
BEKKER, PRETORIA
HUGO AND BRUWER
BLOEMFONTEIN
1
The
respondent's case falls outside the purview of the judgment in
Mvumvu v Minister for Transport
2011 (2) SA 473
(CC) which declared the statutory
limitation provision in the said Act invalid ─ see para 54
thereof.
2
See
S v Mafaladiso & andere
2003 (1) SACRS 83 (SCA) at
593E-594C.