Motus Group Ltd t/a Jaguar Landrover Bloemfontein v Modise (1114/2020) [2022] ZAFSHC 26 (25 February 2022)

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[2022] ZAFSHC 26
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Motus Group Ltd t/a Jaguar Landrover Bloemfontein v Modise (1114/2020) [2022] ZAFSHC 26 (25 February 2022)

SAFLII
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Certain
personal/private details of parties or witnesses have been redacted
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IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case No: 1114/2020
In
the matter between:
MOTUS
GROUP LTD t/a JAGUAR LAND
ROVER
BLOEMFONTEIN
PLAINTIFF
and
DAVID
MALAN LERATO
MODISE
DEFENDANT
BEFORE
:
CHESIWE J
HEARD
ON
:
26 NOVEMBER 2021
DELIVERED
ON
:      25
FEBRUARY 2022
[1]
Plaintiff
instituted an action for damages amounting to R1 039 130,
60 to its vehicle as a consequence of a collision that
occurred on 11
June 2019 on the N8 between Ladybrand and Thaba Nchu. The collision
was between Plaintiff’s Range Rover Velar vehicle
and Defendant’s
Volkswagen Polo Vivo vehicle with registration number [.…] The
matter is defended.
[2]
The
issues in dispute are as follows:
Locus
Standi
of the
Plaintiff; the cause of the negligence; whether there was
contributory negligence on the part of the Plaintiff, quantum and
apportionment of damages.
[3]
Plaintiff
called three witnesses, this being Mr Wally Reynold, Mr Faezel Brown
(the driver), Mr Hein Viljoen (the principal dealer)
and Mr Carel
Gerber (expert witness).
[4]
Defendant
called two witnesses, Mr Modise (the Defendant and driver of the
Black Volkswagen Polo Vivo) and Mr Michael Faltermeier
(the expert
witness).
PLAINTIFF’S
CASE
[5]
Plaintiff
called its first witness, Mr Walter Reynold, who is employed as a
Sales Manager for Land Rover and Jaguar Motor Vehicles.
[6]
He
testified that the Plaintiff was previously called Auto Niche,
operating under the Imperial Group. Imperial Group was separated
into
Logistics Retail and Car Rental. The car rental is now called the
Motus Group Limited, trading as Motus Bloemfontein.
[7]
Mr
Reynolds explained the procedure of acquiring a new vehicle. He
stated that if the client is looking for a vehicle he’d check
on
the system if there is stock available. In this case, the client was
looking for a Range Rover Velar. The client was given a quotation
to
which an offer to purchase was signed on 4 May 2021.  Pursuant
to that, the Lesotho Standard Bank requested an invoice and
gave a
guarantee after all the paperwork was completed. The vehicle was on
its way to being delivered to the buyer.
However,
due to the collision, the vehicle was not delivered to the client.
[8]
Under
cross-examination, Mr Reynolds explained that the vehicle was
purchased from Jaguar South Africa. He had no personal knowledge
of
the contract agreement between Wesbank, Auto Niche Motus and Jaguar
South Africa. He explained that the floor plan of the dealership
allowed the vehicle to be bought from Jaguar South Africa, then
Wesbank pays Jaguar South Africa on receipt of the invoice that
Wesbank
would have received from Motus Group. However, he was not
involved in the payment of the vehicle.
[9]
Mr
Reynolds explained that when the vehicle is paid for by Wesbank, it
is delivered to Motus Group which then registers the vehicle
in the
company’s name, that is Motus Group.
[10]
Mr
Faezel Brown, the driver of the Plaintiff (Motus Group) testified
that he has been working for the Plaintiff since 2019. On 11
June
2019, he was requested by Mr Reynolds to take the Range Rover Velar
and drive it to Ladybrand, whereupon it would be dropped
off at
MacClearing Agency.  He did as was requested and then left the
dealership. He stopped at a petrol station to fill up
the vehicle and
left Bloemfontein using the N8 route. He drove past Thaba Nchu,
driving at a speed of 80km per hour. He mentioned
he knew the road
well as he frequented it and was aware of the speed limit and the
curves on the road.
[11]
Mr
Brown stated that as he approached the intersection on the N8 on the
left side of the road, there is a road sign directing to Tweespruit
and on the right side of the road, the road sign directs to
Hobhouse.  The rest of the road signs were clearly marked up to
the Tweespruit intersection. He noticed for the first time a Black
Volkswagen Polo Vivo vehicle of the Defendant about 100 meters
approaching from Tweespruit heading towards the stop sign at the
intersection. Mr Brown said the second time he noticed the Volkswagen
Polo Vivo, it was about 5 metres from the stop sign. As he uses that
road frequently, he knew that the direction from which the Volkswagen
Polo Vivo was coming, had road markings and road signs bearing a stop
and therefore assumed that the driver of the Volkswagen Polo
Vivo
would stop. Mr Brown further testified that the next thing he
realised there was an impact between the Land Rover Velar that
he was
driving and the Volkswagen Polo which was being driven by the
Defendant. The Land Rover Velar took a knock at the back on
the
left-hand side, rolled towards the right-hand side of the road and
landed in the bushes. Mr Brown testified that he noticed the
Defendant getting out of the vehicle approaching the Land Rover Velar
to check upon him.
[12]
Under
cross-examination, Mr Brown explained that from Bloemfontein, he was
travelling at a speed of 120 kilometres per hour. After
passing Thaba
Nchu, he travelled at a speed of 110 kilometres per hour and the road
permitted for travelling limit at 100 kilometres
per hour. He said at
the intersection, the road was clear and so were the markings on the
road. He confirmed that he saw the black
Volkswagen Polo Vivo
approaching the intersection from Tweespruit, but thought it would
stop as mandated by the road signs and markings.
He did, however,
concede that had he been travelling at a slower speed, it may have
given him a better chance to react.
[13]
Mr
Hennie Viljoen the dealership principal, testified that the company
previously was known as Imperial Group trading as Imperial
Auto
Niche. In November 2018, the name was changed to Motus Group Limited.
As a staff member, he was informed via email about the
name change.
[14]
Mr
Carel Gerber, Plaintiff’s expert witness testified that on 21 June
2019, he inspected the Range Rover Velar and compiled a full
report.
He mentioned that the damage to the vehicle was mostly structural and
was economically not repairable. He explained that
the repairs would
amount to R992 931-00, which amount excluded unforeseen damages
and labour. He mentioned that the vehicle
could not be
salvaged
due to the none demands of the parts as it was a brand new vehicle.
However, under code 3A of selling car parts, it sold
for R61250-00
(as code 3A parts could only be sold by dealerships), but he was not
involved in the salvage of the vehicle.
[15]
Under
cross-examination, Mr Gerber was asked about the correct value of
trade of the vehicle. He explained that the vehicle had no
trade-in
value as it was a new vehicle. Instead, he used the purchase price of
the vehicle. Mr Gerber further explained that the
vehicle was insured
for the retail value and Hollard Insurance paid the insured amount.
He explained that to determine the market
value, he will have to
inspect the vehicle, add the accessories and the market value will
equal the retail value. He confirmed that
because it was a new
vehicle the value remained the same until the vehicle was delivered.
That was Plaintiff’s case.
DEFENDANT’S
CASE
[16]
Defendant
(Mr Modise) testified that on the 11
th
of June 2019, he received a phone
call that he had to drive from Bloemfontein to Tweespruit to remand a
case at the Tweespruit Magistrate
Court. He knew the road very well
as he had driven on the N8 route about four times. On the day in
question, he finished at court
earlier and went to spend time with
his
son.  He
would
thereafter drive back to Bloemfontein. He said as he drove towards
the Tweespruit intersection, the condition of the road and
the
weather did not impede his driving. He recalls driving at a speed of
100 kilometres per hour, but could not recall the speed
limit on the
specific road.
[17]
The
Defendant stated that he was absent-minded as he had a lot on his
mind. When he regained his awareness of the road, he noticed
he was
about one (1) metre near the stop sign at the intersection of the N8.
He attempted to slam on the breaks, but it was already
too late as he
had by then collided into the Range Rover Velar.
[18]
He
conceded that he was not in a good state of mind as he had on the
night before argued with his girlfriend. He was unable to stop
on
time as he was travelling at 100 kilometres per hour. He did however
attempt to break when he noticed the stop sign. The Defendant
further
conceded that the stop sign was clearly marked and visible.
[19]
Under
cross-examination, the Defendant confirmed that he knew that road
well and that at the intersection where he was going to turn
right
towards Thaba Nchu, had a visible stop sign. He agreed that he failed
to apply the car breaks on time. He further agreed that
there was no
stop sign nor a yield sign for Mr Brown and that Mr Brown had right
of way.
[20]
Mr
Michael Faltermeier testified as an expert witness for the Defendant.
He testified that Mr Brown shortly before impact, travelled
at a
speed of one hundred and forty-five (145) kilometres per hour. He
said at the moment of impact, Mr Brown was travelling at a
speed of
one hundred and twenty-seven (127) kilometres per hour. Mr
Faltermeier confirmed that all data was obtained from the vehicle
and
the map overlay from google earth. That was the Defendant’s case.
[21]
Both
Counsel submitted written heads of argument. Oral arguments were
presented on the virtual platform on the 26
th
of November 2021.
[22]
Counsel
on behalf of Plaintiff submitted that the Defendant conceded that he
did not keep a proper lookout at the intersection; he
drove too fast
under the circumstances and that negligence was on the part of
Defendant. Counsel further submitted that road users
can expect other
road users to act reasonably, but Defendant’s unreasonable conduct
was unforeseeable.
[23]
With
regards to
locus
standi
, Counsel
submitted that Plaintiff had proven ownership of the vehicle, as it
was confirmed by Mr Reynolds, the Branch Manager. Surrounding
facts
to determine ownership of the vehicle in respect of the damages,
Counsel submitted that the expert witness was unwavering in
his
evidence and that the actual damage of the Plaintiff exceeded the
amount claimed.
[24]
Adv.
Louw in oral argument submitted that Mr Reynolds and the dealership
did not have any evidence as to how the vehicle was purchased
from
Jaguar South Africa nor any knowledge of any contractual agreement
between Jaguar South Africa, Wesbank and Motus Group Limited.
He
further argued that neither is there such a contract before the
court. Counsel went further to say the registration certificate
did
not prove ownership of the vehicle. Counsel submitted that both Mr
Brown and the Defendant conceded that they were driving fast.
He
submitted that the Defendant was entitled to assume that Plaintiff's
driver, Mr Brown, would slow down when he was about to drive
pass the
intersection.  Counsel did however concede that due to the
contributory negligence of Mr Brown, apportionment of damages
should
be 60/40.
LOCUS STANDI
[25]
The
general requirements for
locus
standi
are that the
Plaintiff must have an adequate interest in the subject matter of the
litigation, that the interests must not be too
remote, that the
interests must be actual, that it must not be abstract and must be
current interests. (De van Loggenber and E Bertelsmann
Erasmus:
Superior Court Practice 2
nd
ed. Vol 1 at D1-186)
[26]
In
Mars
Incorporated v Candy World (Pty) Ltd
[1]
,
the court said the following:
“
In
accordance with the general rule that it is for the party instituting
proceedings to allege and prove that he has
locus
standi
, the onus of
establishing that issue rests upon the applicant.”
[27]
In
Dalrymple
& others v Colonial Treasurer
[2]
,
Innes CJ said the following:
"The general
rule of our law is that no man can sue in respect of wrongful act,
unless it constitutes a breach of a duty owed
to him by the
wrongdoer, or unless it causes him some damage in law."
[28]
The
plaintiff in the amended particulars of claim stated in paragraph 3
as follows:
“
At
all relevant times hereto the Plaintiff was the owner of a brand new
2019 Range Rover (“the Range Rover”) alternatively the
bona fide
possessor thereof the risk thereupon having passed to the Plaintiff.”
[29]
The
Hollard Insurance document on page 6 of the amended particulars of
claim described the vehicle as insured by Imperial Bloemfontein
which
was the previous name of the company before it changed to Motus
Group. The vehicle is further described as a Range Rover
Velar/R-Dynamic
with VIN Number: [....] in the Hollard Insurance
Audatex System. The certificate of registration of the vehicle under
the owner of
the vehicle is stated as “vehicle identification:
[.…], name: Auto Niche.
[30]
It
would therefore not make logical sense for Hollard Insurance, to
insure a vehicle that belonged to another entity or person.
As
an insurance company it has to verify that the vehicle it is about to
insure belonged to the correct entity and the correct details
are
therefore provided correctly for the purposes of the vehicle
insurance.
[31]
Mr
Reynolds in his testimony explained the process of acquiring a new
vehicle. He testified that the dealer has 15 million with Nedbank.
On
purchasing a vehicle from Jaguar South Africa, Wesbank pays the
purchase price and the vehicle remains in their stock. The issue
of a
contract between Jaguar South Africa, Wesbank and Motus Group, Mr
Reynolds explained that he was not part of that agreement,
but was
able to explain to this court how the vehicle was acquired by the
Plaintiff. Mr Reynolds stated that he is more involved
in the process
of acquiring new vehicles and maintaining the floorplan stock. The
issue of the contract between the parties is neither
here nor there.
Plaintiff’s evidence has clearly shown that there is an interest to
litigate and the interest is actual and current.
[32]
In
my view, with the evidence before
me on
locus
standi
, I am
satisfied that Plaintiff has proven
locus
standi
to the
extent that Plaintiff concluded a purchase contract with the buyer of
the Range Rover, a certain Ms Sekhesha. If the Plaintiff
had no
locus
standi
, it would be
in no position to sell the vehicle. Indeed, ownership of the vehicle
would have passed to the purchaser, had the vehicle
been delivered to
the purchaser, but it was still on route to be delivered. Thus
ownership and risk still rested with the Plaintiff,
and the Plaintiff
therefore remained responsible for the Range Rover Velar vehicle.
CONTRIBUTORY
NEGLIGENCE
[33]
It
is trite that the Plaintiff bears the onus of proving negligence on
the part of the Defendant on a balance of probabilities. The
parties
are in dispute as to who was the negligent party that caused the
accident. Plaintiff contends that the Defendant was negligent
by not
stopping at the stop sign as expected and as a reasonable road user.
Counsel for Defendant contends that Plaintiff’s driver
was
negligent as he drove above the required speed limit and has
therefore contributed to the collision.
[34]
The
defendant in oral evidence conceded that he was driving at 100km per
hour when he noticed the stop sign for the first time. He
did not
notice the plaintiff’s vehicle before the stop sign and by the time
he applied the brakes it was too late. Defendant further
conceded
that had he been driving at a slower speed, kept a proper lookout,
stopped at the stop sign, he would have avoided the accident.
Defendant acknowledges that on the day of the collision, he was
distracted as he was in a quarrel with his girlfriend the night
before.
[35]
Defendant
came forth as a truthful witness. He was honest to mention that he
drove the N8 route more than four (4)
times
and knew there was a stop sign at the Tweespruit intersection. Out of
his honesty, he conceded that the Range Rover driver,
that is Mr.
Brown, did have right of way. The defendant was not evasive in any of
his answers. He took accountability in conceding
that he did not stop
at the stop sign.  The court applauds him for that, as taking
accountability and responsibility for one’s
action is in most
instances not an easy thing to do, especially in respect of a motor
vehicle accident, to the extent that he went
to check on Mr Brown
after the accident.
[36]
On
the other hand, Mr Brown conceded to knowing the N8 route very well
and knew the exact spots where traffic officers would be stationed.
He would increase and reduce the speed accordingly. He further
conceded that he saw the Black Volkswagen Polo some distance away
from the intersection and at that stage, he assumed that the driver
of this vehicle would stop at the intersection. However, by conceding
that had he driven at a slower speed, he would have possibly evaded
the collision, is duly noted.
[37]
Mr
Faltermeier in oral evidence and his reports explained that the data
obtained from the Range Rover Velar indicated that the driver
(Mr
Brown) was driving a speed of 147 kilometres per hour before the
point of impact.  At impact, Mr Brown was travelling at
a speed
of 127 kilometres per hour. Mr Faltermeier concluded that the speed
at which Mr Brown was travelling, was unable to take
evasive action
and could not have avoided the conclusion.
[38]
Liability
depends on the conduct of the reasonable person.  The test for
negligence was clearly stated in
Kruger
v Coetzee.
[3]
[39]
In
Beswick
v Crews
[4]
the court said:
“
The
law does not require of any driver that he should be exhibit perfect
nerve and presence of mind enabling him to do the best thing
possible.  It does not expect men to be more than ordinary men
.”
[40]
Indeed,
the Defendant acknowledged that he was absent-minded on the day in
question. He was involved in an argument with his girlfriend.
Driving a motor vehicle in his state of mind, the Defendant did not
take the necessary reasonable care.  Driving a vehicle on
a busy
road, does need extra care and mind alertness.  Due to that lack
of alertness, the Defendant failed to swerve away to
avoid the
collision, as well as being too slow to hit the vehicle breaks on
time.  The duty to keep a proper lookout rested
more on the
Defendant as it is expected of him, as a road user, to stop as
directed before joining a national road/route and  to
take extra
caution before exiting and joining any road.
[41]
In
Maxanti
v Protea Assurance Co LTD
[5]
the Appellate Division (as it then was) with approval from other
authorities, held that: “
Persons
entering a national road from an ordinary road should take care and
see that the national road is clear before entering it.”
[42]
In
Protea
Assurance Company Ltd v LTA Building (SWA) LTD and another
,
[6]
the court said the following: “
A
motorist proceeding on a through road is generally entitled to rely
on the protection of stop signs controlling
entry
from
access
roads. While it is true that a driver in a through road does not have
an absolute right of precedence and is not relived from
the duty of
keeping a general look-out, he is not under a duty to keep the cross
road under the same careful observation which would
be required if it
was not a stop street
.”
[43]
A
driver travelling on a road with an intersection road compared to a
driver driving along a straight road without an intersection
has a
greater duty of care when entering the main road from the side road,
s the main road is usually a busy road and carries greater
volumes of
traffic.
[7]
[44]
In
Cooper
v Armstrong,
[8]
Van Der Merwe J (as he then was) in considering negligence of a
driver, said the following:
“
I
do not suggest that he had the right to rely blindly and stubbornly
on the fact that he entered the intersection first and proceeded
to
cross without regard to other vehicles moving in the neighbourhood,
but I do maintain that until the contrary appears, he is entitled
to
assume that the other person using the street will not conduct
themselves with suicidal abandon.”
[45]
The
Defendant was clear in his evidence that he misjudged the metres
towards the stop sign at the intersection. He was absent-minded
due
to the quarrel he had with his girlfriend. He
conceded
that he was negligent
in
not stopping at the intersection and ended up colliding with the
Range Rover Velar. Both parties confirmed that the road signs
at the
intersection are clearly marked, including the stop sign at the
intersection. Mr Brown correctly assumed that Defendant would
stop
and as a reasonable driver using the national road, the Defendant is
expected to comply with the rules and signs of the road.
[46]
Mr
Brown indeed had right of way. He had no reason to doubt that a car
approaching from the left side-road facing a stop sign at an
intersection would not stop.   Mr Brown was entitled to
assume that the Defendant would obey the road statutory regulations.
In my view, the Defendant indeed was negligent and had the most duty
of care.  Thus, the Plaintiff has discharged the onus resting
on
it to prove on the balance of probabilities that the Defendant was
negligent
[47]
Though
Mr Brown conceded to have been driving at a speed more than the
required limit which is 100 kilometres per hour, he had no
impediments or road signs prompting him to stop nor gave a right of
way to vehicles on either the left or right of the intersection.
The
negligence in this regard is more on the part of Defendant. Taking
into consideration that a motorist is expected to obey traffic
signs
when travelling on a national road, it is to be an assumption that
vehicles entering on either side of this road would stop
and not
disturb the flow of traffic that is on the national road.
[9]
[48]
Mr
Brown had no duty compelling him to keep a lookout for the
Defendant’s vehicle, except if it was obvious to him that the
Defendant
is going to fail to obey the traffic regulations that
compels one to stop.  There was no such evidence that it was
obvious the
Defendant will not stop at the intersection, as the
Defendant had stated that he was indeed absent-minded.
[49]
A
driver will be negligent if the unreasonable conduct is generally
foreseeable and he does not take reasonable preventative action
to
avoid a collision. (See the Law of Collision in South Africa, 7
th
ed. at 72)
DAMAGES
[50]
The
plaintiff in respect of damages presented evidence of the expert
witness, Mr Carels Gerber and the Defendant did not present any
expert evidence in respect of the quantification of the Plaintiff's
damages. The expert's evidence is that the damages to the vehicle
could not be repaired to its pre-collision condition. Indeed, the
vehicle was still new. The expert explained that the damages suffered
by Plaintiff were R1 114 978-00 and if the salvage amount of R61
250-
00
is deducted, the
total damages amounts to R1 053 728-00.
[51]
Despite
the damages suffered by the Plaintiff, the Plaintiff accepted a lower
amount which was
R1 060 380-00
which is less
than the actual loss suffered.
[52]
The
expert witness was honest in the calculations of the damages suffered
by the Plaintiff. He gave the court a detailed explanation
of the
market value pre-collision and could not use post-collision value as
the vehicle was new. The court has no reason to doubt
his expertise
in respect of the calculations towards the damages suffered by
Plaintiff.
[53]
In
Enslin
v Meyer
[10]
,
the court said:
“
Now
not only is the question of proving the amount of damages, but in
proving every other fact, it has been held, rightly I think,
that
there must
insist on
a mathematical demonstration of every fact
(my
emphasis). It is sufficient to prove a high degree of probability in
order to justify a Court giving judgment… It is necessary
for the
Court to assess the amount and make the best use of the evidence
before it. There are cases where the assessment by the Court
is very
little more than an estimate, but even so, if it is certain that
pecuniary damages has been suffered, the Court is bound
to award
damages.”
[54]
In
my view, the damages as calculated by the expert, are fair and
reasonable. The Defendant did not present any evidence to counter
the
evidence as presented by Mr Gerber. I have no other option, but to
accept the evidence as presented by Mr Gerber.
[55]
Counsel
for the Defendant submitted that the court is to consider
apportionment of damages. Having found that the Plaintiff’s driver
was not negligent, I see no reason to apply apportionment of damages.
As in my view, negligence was on the part of the Defendant.
[56]
Accordingly,
the following order is made:
1.
Payment
of the sum of R1 039 130-60;
2.
Interests
a
tempore
morae
thereon
at the prescribed rate of 10% per annum from date of service of
summons to date of payment;
3.
Costs
of suit.
CHESIWE, J
On
behalf of Plaintiff:         Adv.
R van der Merwe
Instructed
by:                       McIntyre
van der Post
BLOEMFONTEIN
On
behalf of Respondents:   Adv. M Louw
Instructed
by:
HJ Badenhorst & Associates Inc.
BLOEMFONTEIN
[1]
(265/89)
[1990] ZASCA 149
;
1991 (1) SA 567
AD
[2]
Dalrymple & others v Colonial Treasurer
1910 TS 372
at 379
[3]
1966 (2) SA 428
(A) at 430 E-G.
[4]
1965 (2) SA 690 (A)
[5]
1979 (3) SA 73 (A)
[6]
1988
(1) SA 303
AD.
[7]
See
the Law of Collision in South Africa – HB Klopper, 7
th
edition,
and Marie and Trade Insurance Co. Ltd v Bijasi
1981 (1) SA 918
(A).
[8]
1939 OPD 140
at 46
[9]
See
Epol (Pty) Ltd v Bezuidenhout 1980 (3) SA 624 (T)
[10]
1060 (4) SA 520
(T) at 523H