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[2022] ZAKZPHC 73
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VDN Carriers and Logistics CC v Gennao Logistics CC and Others (AR13/22) [2022] ZAKZPHC 73 (18 November 2022)
FLYNOTES:
SUDDEN EMERGENCY
Delict
– Sudden emergency – Overturned truck at night –
Defendant truck changing lanes and colliding with
plaintiff truck
– Evidence was that overturned truck was not obstructing the
lane – Layout of road and power
of headlights meaning that
the scene would have been visible – Sudden emergency not
established.
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Appeal
No: AR13/22
Case
No: 2402/2019P
In
the matter between:
VDN
CARRIERS AND LOGISTICS CC
APPELLANT
(REGISTRATION
NUMBER: 2003/062867/23)
and
GENNAO
LOGISTICS CC FIRST RESPONDENT
(REGISTRATION
NUMBER: 2011/052967/23)
KHUWA
MAHAMBA
SECOND RESPONDENT
SUMTAS
TRUCKING CC
THIRD RESPONDENT
ORDER
On
appeal from:
The
KwaZulu-Natal Division of the High Court, Pietermaritzburg (Mngadi J,
sitting as court of first instance):
1.
The appeal
succeeds.
2.
The order of
absolution from the instance is set aside and is replaced with the
following order:
‘
The
first respondent is found to be 100% liable for the appellant's
proven or agreed damages.’
3.
The first
respondent’s conditional claim in reconvention is dismissed
with costs;
4.
The first
respondent’s third party proceedings are dismissed with costs;
5.
The first
respondent is directed to pay:
(a)
the costs
of the appeal;
(b)
the costs
of the appellant’s application for leave to appeal; and
(c)
the costs
of the appellant’s petition to the Supreme Court of Appeal.
JUDGMENT
Mossop
J
(Madondo
AJP and Bezuidenhout J concurring):
[1]
During
the early morning hours of 31 August 2013, a truck was travelling
north between Durban and Johannesburg on the N3. As it
cleaved its
way through the inky darkness engulfing the N3, it approached the
Loskop off-ramp between Mooi River and Estcourt in
KwaZulu-Natal. At
that point it overturned (the overturned truck). Sometime later,
[1]
at around 02h00 on the same morning, the appellant’s truck (the
appellant’s truck) was also Johannesburg bound from
Durban on
the N3 and came upon the area where the overturned truck was. As it
was passing that area, it was struck on its left
side by the first
respondent’s truck (the first respondent’s truck), being
driven by the second respondent, which moved
from the left-hand lane
into the right-hand lane occupied by the appellant’s truck. As
a consequence of the resulting collision,
the appellant’s truck
was damaged beyond economical repair.
[2]
The appellant
instituted action against the first and second respondents, jointly
and severally, for the value of its truck, it
being alleged that the
collision was occasioned by the negligent driving of the first
respondent’s truck by the second respondent.
The first and
second respondents defended the action and delivered a conditional
claim in reconvention. In due course, the first
and second
respondents joined the owner of the overturned truck as a third
party. The third party was referred to at the trial
(and in the
amended pleadings) as ‘the third respondent’. I prefer to
refer to it as ‘the third party’.
The first and second
respondents alleged that the collision between the appellant’s
truck and the first respondent’s
truck had been occasioned by
the negligent driving of the third party’s driver.
[3]
At the
commencement of the trial, the issues were consensually separated in
terms of the provisions of Uniform rule 33(4) and only
the issue of
liability fell to be determined by the trial court.
Each of the three
drivers of the three trucks testified and after hearing that
evidence, the trial court granted absolution from
the instance.
[4]
In
its judgment,
[2]
the trial court
found that no negligence had been proved on the part of any of the
three drivers. Certainly, no negligence was
established on the part
of the appellant’s driver and the third party’s driver.
The judgment appears to have found,
although there was no express
articulated finding in this regard, that the overturned truck was on
the surface of the roadway and
constituted an obstruction to the
second respondent. That having been found, the trial court concluded
that the second respondent
had had no time to check for other traffic
on the road before swerving from the left lane into the right lane.
In fact, the court
found that this was his only alternative and
therefore it was of no significance that he did not look out for
traffic before doing
so. The court found that the evasive measures
allegedly taken by the second respondent were accordingly reasonable.
[5]
Dissatisfied
with this reasoning and this finding, the appellant sought leave to
appeal. This was refused by the trial court, apparently
without any
reasons being provided for such refusal. A petition to the President
of the Supreme Court of Appeal by the appellant
followed. It was
successful and leave to appeal to a full court of this division was
granted. It is consequent upon such leave
being granted that we hear
this appeal. The third party has not participated in the appeal.
[6]
The N3 is a
major arterial road between Durban and Johannesburg. At the area
where the events in question occurred, the N3 has two
carriageways,
one running northward from Durban to Johannesburg and another running
southward, in the opposite direction. The two
carriageways are
separated by a grass reservation. Each carriageway has two lanes. The
events in question occurred on the northern
bound carriageway.
Photographs handed in at the trial show that approaching the area
where the overturned truck lay, the northbound
carriageway descends
slightly and curves gently to the left. Visibility is good. The
collision between the appellant’s truck
and the first
respondent’s truck occurred just before the gentle curve to the
left.
[7]
The appellant
pleaded in its particulars of claim that the collision between its
truck and the first respondent’s truck was
caused by the
negligent driving of the second respondent. It was always common
cause that the second respondent was acting in the
course and scope
of his employment with the first respondent. The grounds of
negligence pleaded by the appellant were the usual
grounds to be
expected in a matter of this nature. The appellant, inter alia,
alleged of the second respondent that:
‘
7.1
He failed to keep a proper lookout;
7.2
He failed to keep the motor vehicle he was driver [sic] under any or
proper control;
7.3
He drove at an excessive speed under the circumstances;
7.4
He failed to apply his brakes timeously, adequately or at all;
7.5
He failed to avoid a collision when, through the exercise of
reasonable care, he could and should have done
so.
7.6
He collided into the side of the Plaintiff’s vehicle;
7.7
He failed to keep a proper following distance from the vehicles in
front of him;
7.8
He failed to take into consideration the rights of other road users,
more specifically the rights of the Plaintiff.
7.9
He changed lanes at a time when it was unsafe and inopportune to do
so.’
[8]
The first and
second respondents delivered a plea in which they pleaded, inter
alia, that:
‘
10.1
Prior to the collision between the plaintiff’s vehicle and the
defendant’s vehicle, a truck of Sumtas Trucking
CC
[3]
bearing registration number FZX 992 MP (“the Sumtas vehicle”)
had overturned creating an obstruction in the second
defendant’s
lane of travel;
10.2
The first defendant’s vehicle had no opportunity to avoid the
accident, and consequently changed lanes in reaction
to the sudden
emergency created by the Sumtas vehicle;
10.3
Consequently the second defendant was not negligent as pleaded or at
all.’
[9]
The
issues before the trial court were thus crisp.
It
was required to determine whether the appellant had established the
negligence of the first respondent’s driver
[4]
and,
if so, whether the first respondent’s defence of sudden
emergency could be relied
upon
by it to avoid liability for such negligence.
[5]
[10]
The
scope
of the defence of sudden emergency was dealt with in
Goode
v SA Mutual Fire and General Insurance Co Ltd
,
[6]
where
King J stated that:
‘
The
other qualification to the rule is that the conduct of the person
setting it up must, of course, be reasonable, for the principle
that
a person in the agony of a moment is not expected to act with the
same judgment and skill as in normal circumstances must
not be
extended to excuse conduct which, even in a critical situation, is
not reasonable (
vide, Van Staden v
May
1940 WLD 198).
It is not,
therefore, every error of judgment which is excusable as not
amounting to negligence, but only one which a reasonably
careful and
skilled driver of a vehicle might commit. There can only be a moment
of agony if the person whose conduct is in question
had neither the
time nor the opportunity to weigh the pros and cons of the situation
in which he found himself.’
[11]
It
is settled law that sudden emergency cannot be relied upon if it was
created by the negligence of the party raising it as a defence.
[7]
[12]
In
considering this appeal, I do not lose sight of the fact that the
trial court enjoyed the singular advantage of seeing and hearing
the
witnesses who testified and would consequently be in a better
position to form a judgment of their value as witnesses. The
trial
court would also have been steeped in the atmosphere of the trial.
[8]
An appellate court is accordingly reluctant to disturb factual
findings made by the trial court. That having been acknowledged,
such
advantages as the trial court enjoyed must not be overstated, ‘lest
the appellant’s right of appeal becomes illusory’.
[9]
[13]
Notwithstanding
the advantages that the trial court undoubtedly has, it is the duty
of an appellate court
to
overrule a conclusion of a trial court of first instance on a
question of fact when the appellate court is convinced that the
conclusion arrived at by the trial court is clearly incorrect.
[10]
[14]
Dealing
firstly with the issue of the alleged negligence of the second
respondent, in the often-cited matter of
Kruger
v Coetzee
[11]
the following was said on the test for negligence:
‘
For
the purposes of liability culpa arises if –
(a)
a
diligens paterfamilias
in the position of the defendant -
(i)
would foresee the reasonable possibility of his conduct injuring
another in his person or property and causing him
patrimonial loss;
and
(ii)
would take reasonable steps to guard against such occurrence; and
(b)
the defendant failed to take such steps.’
[15]
In
a trial, a plaintiff has the onus of proving negligence on the part
of the defendant on a balance of probabilities. If it is
able to
prove an occurrence that gives rise to an inference of negligence,
then the defendant ‘must tell the remainder of
the story, or
take a risk that judgment be given against him’.
[12]
[16]
It is common
cause that at the moment of the collision between the appellant’s
truck and the first respondent’s truck,
the appellant’s
truck was in the right-hand lane of the northbound carriageway of the
N3. There was initially a dispute about
whether the appellant’s
truck was ahead of the first respondent’s truck or behind it.
The appellant’s driver
stated that he was ahead of the first
respondent’s truck and then moved into the right-hand lane as
he approached the area
of the overturned truck. The second respondent
indicated that he was travelling in the left-hand lane and asserted
that he was
ahead of the appellant’s truck. However, he later
changed tack, as revealed in this exchange between the court and
himself:
‘
COURT
He might be slightly ahead, but he was on your right. But in any
case, you said
you did not check even the rear-view mirrors before
you moved to the right, so you cannot deny that. – It is, yes,
M’Lord.’
[17]
On his own
pleaded version, the second respondent changed lanes, and, in his
evidence, he conceded that he did so without looking.
On the face of
it, that is negligent conduct on the part of the second respondent.
To an extent, the appellant was assisted in
establishing negligence
by the very defence relied upon by the first and second respondents:
the doctrine of sudden emergency applies
where a person’s
conduct is
prima
facie negligent.
[13]
[18]
For the
defence of sudden emergency to have a chance of prevailing, the trial
court had to find that the overturned truck was on
the road surface
and constituted an unexpected impediment to vehicles travelling
northwards on the N3. The position of the overturned
truck is
therefore critical to the success of the defence raised. The first
and second respondents pleaded that the overturned
truck, indeed,
constituted an obstruction in the second respondent’s lane of
travel but did not specify which lane that was.
The evidence of the
second respondent clarified the plea: he testified that he was
travelling in the left lane of the northbound
carriageway of the N3
and that was the lane that he claimed was obstructed.
[19]
Before
considering the evidence of where the overturned truck lay, it is
necessary to consider a photograph that was referred to
at the trial
as ‘photograph 35’. I shall continue to refer to it in
that fashion. It is a photograph of the scene taken
after the
collision between the appellant’s truck and the first
respondent’s truck. It was apparently belatedly made
available
by the first and second respondents’ legal representatives the
day before the trial commenced. The photograph was
extensively
referred to at the trial and assumed some significance. It also
attracted some criticism from the trial judge. It is
therefore
necessary to dwell on it for a moment.
[20]
The
trial judge found photograph 35 to be of poor quality. There is some
substance to this finding. It appears that the photograph
was taken
at dawn on the day of the collision. Because of this, it is quite
dark in its tone, but it is still possible to discern
what it
depicts. I do not share the trial judge’s expressed view that
it did not clarify the situation. Nor can I comprehend
his comment
that it ‘resulted not showing objects depicted in the
photo’.
[14]
The learned
judge stated because of the perceived poor quality of photograph 35,
‘
and
the absence of the evidence of the person who took the photograph, it
may not be used in preference to the evidence of the witnesses.’
[15]
An
exhibit is either admissible, or it is not. The parties had agreed
that it was admissible and made considerable reference to
it during
the trial. The absence of the photographer was accordingly of no
moment. The restriction imposed upon the use thereof
and the
significance of the photograph was therefore inappropriate.
[21]
The photograph
was taken with the photographer pointing the camera towards
Johannesburg. The photograph records the appellant’s
truck,
marked on the photograph as ‘A’, on the right of the
photograph on the grass median between the two carriageways
of the
N3. On the left side of the photograph is the overturned truck, lying
to the left of the two lanes that comprise the northbound
carriageway. It is lying on its side with its wheels in the air. It
is possible to determine that no part of the overturned truck
is in
contact with the road surface. The overturned truck is marked on the
photograph with the letter ‘B’. It is possible
that a
small portion of the rear of the truck may overhang the emergency
lane on the left shoulder of the road.
[22]
On the issue
of the position of the overturned truck, the appellant’s driver
expressed himself as follows in response to a
question from the
appellant’s counsel, and with reference to the position of the
overturned truck in photograph 35:
‘
MR
ENDER
… was that resting
position that you observed when your collision happened --- Yes.
Has
the truck been moved from there? --- No. That was the position it was
before.’
That
evidence was never challenged.
[23]
Questioned by
counsel for the third party, the appellant’s driver further
answered as follows regarding the image captured
in photograph 35:
‘
MS
VAN JAARSVELD
As the Court pleases.
So am I then correct to say between the time that you first saw the
vehicle and the time that this picture
was taken, that vehicle that
is depicted as or marked with the letter B did not move? --- Yes, it
did not move.’
The
vehicle marked with the letter ‘B’, as stated above, is
the overturned truck.
[24]
The
appellant’s driver further confirmed that he had been
travelling in the left lane but had been given warning of the
presence
of the overturned truck by someone who was standing in that
lane waving something at him. He moved the appellant’s truck
from that lane into the right lane, not because his path of travel
was blocked by the overturned truck, but because he was exercising
caution.
[25]
When he
testified, the third party’s driver corroborated the
appellant’s driver’s evidence as to where the overturned
truck lay. He further denied that the left-hand lane of the
northbound carriageway was obstructed by the overturned truck. He
testified that there was no other vehicle involved when his truck
overturned. The only source of a possible obstruction was thus
his
truck.
[26]
The third
party’s driver was injured when his truck overturned and had to
be taken to hospital. He estimated that he lay at
the scene for
approximately 45 minutes before he was evacuated by ambulance for
medical attention. He confirmed that his truck
was transporting a
container but that when it overturned, the container had remained
attached to the trailer upon which it was
being transported and had
not become separated from it. As it rested on its side, the container
was thus supporting the trailer
which was above it. His evidence on
this point was also not challenged.
[27]
By the time
that the third party’s driver was removed from the scene, the
collision between the appellant’s truck and
the first
respondent’s truck had not yet occurred. The third party’s
driver accordingly had nothing of significance
to contribute as to
how the collision occurred. But that notwithstanding, he did
contribute some important information regarding
the position of the
overturned truck at the time it overturned and at the time that he
was taken away by ambulance. With specific
reference to photograph
35, the following interaction occurred between the trial judge and
the third respondent’s driver:
‘
MNGADI
J
You have told us
where the truck landed and where it was facing now when you left and
you were taken away was
it still in that position? --- I left it in
the same position.’
The
thrust of this testimony was that the position that the overturned
truck was in when the third party’s driver departed
the scene
is the position depicted in photograph 35.
[28]
Under
cross-examination, the third party’s driver adhered to his
version that ‘the truck had not closed the road’.
He
explained this further by stating that there were other trucks from
the third respondent following behind him and they had not
stopped to
see what had happened to him because, in his opinion,
‘…
they
didn’t see me because my truck had all fallen outside of the
road.’
[29]
That would
mean that the overturned truck could not have been obstructing the
left-hand lane of the N3 because it is not depicted
in photograph 35
as touching the road surface. While it is readily acknowledged that a
photograph is a two-dimensional image of
a three-dimensional scene,
it is evident from the photograph that the overturned truck is
completely off the road surface.
[30]
The second
respondent’s evidence on the obstruction that he claimed
existed was equivocal, at best, confused and untrue at
worst. He
initially testified that he:
‘…
saw a
container that was lying, striding over my lane which is the left
lane.’
He
went on to say that:
‘…
I saw
that this container was lying shutting my left lane; it also reached
the right lane.’
Later,
he stated that:
‘
M’Lord,
the truck itself was not visible. What was visible though was the
container, because the truck has gone on to the
other side of the
road and thus it was not visible from where I was. It was merely the
trailer that was visible.’
Finally,
he stated:
‘
He
failed and thus collided with my vehicle after my vehicle had already
collided with part of this vehicle that was lying in or
the container
that was lying on the road.’
[31]
It is
therefore difficult to comprehend what precisely blocked his lane of
travel: was it a truck, as pleaded, or a container, as
testified to,
or a trailer (which may or may not have had a container on it)?
[32]
What was
testified to by the second respondent was entirely at odds with what
was pleaded by the first and second respondents. The
plea made it
clear that what blocked the forward progression of the first
respondent’s truck was the overturned truck, not
a container or
the trailer of the overturned truck. The fact of the matter is that
there was only one overturned truck and it was
only transporting one
container. That container is depicted in photograph 35 and it at all
times remained attached to the overturned
truck. It could not
therefore have stood alone on the road surface.
[33]
The clarity of
the first and second respondents’ defence of sudden emergency
was further undermined by the second respondent
claiming that the
first respondent’s truck had actually collided with the
container. He explained it thus:
‘
M’Lord,
as I said, as this container was lying in the road I tried to avoid
it and in my swerve towards my right, the right
wheel of my vehicle
collided with the container.’
[34]
This collision
had not been pleaded by the first and second respondents. A version
that included a collision with an obstruction
had, however, been put
to the appellant’s driver in cross-examination by counsel
representing the first and second respondents.
It was not the same
version advanced by the second respondent when he later testified.
What was put was that the overturned truck
itself was struck by the
first respondent’s truck, not the later revelation by the
second respondent that his truck had struck
a container. It must be
remembered that the third respondent’s truck was lying on its
side with its container still attached
to the trailer on which it was
being transported. It is not clear what container could thus have
caused the alleged obstruction.
[35]
The putting of
the version that incorporated the collision with the overturned truck
by the first and second respondents’
counsel drew an objection
from counsel for the appellant, who correctly pointed out that this
version had not been pleaded by the
first and second respondents. The
objection received short shrift from the trial judge, who stated that
‘you don’t
plead all the details’. He proceeded to
allow the unpleaded version to be put and later allowed evidence on
this issue.
[36]
A
pleading must contain all material facts relied upon by the
pleader.
[16]
A pleading will
have sufficient particularity if it identifies and defines issues in
such a way that it allows the other party
to comprehend what they
are.
[17]
It
is trite that the parties to an action are bound by the pleadings. A
party cannot be allowed at trial to raise a different case
to that
pleaded without due amendment to the pleading properly being sought,
granted and effected. The court itself, no less, is
also bound by the
pleadings. The court does not determine the issues or the terms of
reference that are to be utilised to determine
those issues: this the
parties do in their respective pleadings. In
South
African Breweries (Pty) Ltd v Louw
,
[18]
the court stated:
‘
T
he
norm of a fair trial means each side being given unambiguous warning
of the case they are to meet. Moreover, these requirements
are not
mere civilities as between adversaries; the court too, is dependent
upon the fruits of clarity and certainty to know
what question
is to be decided and to be presented only with admissible evidence
that is relevant to that question. Making up one’s
case as you
go along is an anathema to orderly litigation and cannot be tolerated
by a court. Counsel’s duty of diligence
demands an approach to
litigation which best assists a court to decide questions and no
compromise is appropriate
.’
[37]
At the
commencement of the trial, the appellant would have been entirely
unaware that this was now to be the version advanced by
the first and
second respondents. It can only have been taken by surprise by this
development. The prejudice to it is obvious.
[38]
A prior
collision that occurred earlier in time to the collision being
considered by the trial court was a material fact in the
context of a
plea of sudden emergency and ought to have been pleaded by the first
and second respondents. The trial court erred
in
permitting an unpleaded version to be put in cross-examination, and
in later hearing evidence on that unpleaded version.
The objection ought
to have been upheld and the evidence excluded in the circumstances.
[39]
On the
evidence adduced by all those who testified, the trial court ought to
have found that there was no obstruction on the road
surface that
confronted the second respondent. The trial court did not come to
that conclusion.
[40]
In
summarising the evidence of the witnesses, the learned trial judge
indicated that the appellant’s driver had testified
that the
overturned truck was ‘obstructing his lane of travel’.
[19]
That, unfortunately, was not the evidence of the appellant’s
driver. He never testified to that effect. His evidence was
that the
overturned truck was in the position depicted in photograph 35,
namely off the road surface, with a small portion thereof
blocking
the emergency lane. The learned judge also stated on several
occasions that the appellant’s driver had ‘swerved’
his truck to the right to avoid colliding with the overturned truck.
That, too, was never his evidence. This is partly because
of what is
stated above regarding the position of the overturned truck which did
not create an obstruction, and partly because
the appellant’s
driver indicated that he ‘moved’, and had not ‘swerved’,
his truck over from the
left lane to the right lane. The inescapable
inference is that it was a controlled manoeuvre. The first and second
respondents’
counsel even suggested to the appellant’s
driver that he had ‘gently’ moved his truck from the left
lane to right
lane. That proposition accorded with the appellant’s
driver’s evidence. The appellant’s driver indicated
further
that at the time of the collision he estimated the speed of
his truck at 10 kmph. That evidence was never disputed. The finding
that he had swerved, implying a frantic, desperate manoeuvre to avoid
an obstacle, was incorrect and did not accord with the undisputed
evidence led at trial.
[41]
The learned
trial judge did find that the second respondent’s evidence
could be seriously criticised in a number of areas.
Such criticism,
so it was reasoned, could justify an inference that he had sufficient
opportunity to view the overturned truck
at a reasonable distance if
he had been keeping a proper look out and if he was driving at a
reasonable speed. The learned judge
also mentioned that it would
appear that the second respondent misjudged the position of the
obstruction. In my view, the learned
judge was correct in all these
respects, save for his reference to an obstruction. That is what he
ought to have found proved.
The learned judge, however, went on to
find that the evidence of the second respondent could not be looked
at in isolation. He
found that the second respondent’s evidence
was corroborated by the evidence of the appellant’s driver and
the third
party’s driver, who allegedly testified that it
appeared that an object was blocking the roadway. As pointed out
above, that
was not the evidence of the appellant’s driver, nor
was it the evidence of the third party’s driver.
[42]
The acceptable
evidence led at the trial established that the overturned truck did
not obstruct the road surface at any time and
certainly not
immediately prior to the collision between the appellant’s
truck and the first respondent’s truck. The
trial court
incorrectly found that this had occurred. The evidence of the second
respondent was that his headlights shone ahead
of his truck for
approximately 500 metres. The layout of the road and the power of the
headlights on the first respondent’s
truck meant that the
second respondent would have had ample time to observe what lay ahead
of him. The fact that he reacted as
he did as he approached the area
where the overturned truck lay inexorably leads to the conclusion
that he was not keeping a proper
lookout, alternatively that he was
driving too fast, alternatively that he changed lanes when it was not
safe for him to do so.
In the appellant’s particulars of claim,
all three of these grounds of negligence were pleaded.
[43]
In driving the
first respondent’s truck as he did and in turning into the lane
occupied by the appellant’s truck without
looking, the second
respondent was clearly negligent, and the trial court should have
found that.
[44]
The defence of
sudden emergency was accordingly not established. The difference
between the version pleaded and the version testified
to by the
second respondent undermined that plea. The trial court ought to have
found that the overturned truck did not constitute
an obstacle to the
progress of the first respondent’s truck as it proceeded in the
direction of Johannesburg, nor was there
any collision with such
obstacle. Without the obstruction, there could be no sudden
emergency. There being no sudden emergency,
it is not necessary to
consider whether the second respondent acted reasonably in the
circumstances.
[45]
There was a
conditional claim in reconvention delivered by the first respondent
that appears to have escaped the attention of the
learned trial
judge. The claim in reconvention was conditional upon the court
finding that the second respondent was negligent
and that the third
party’s driver was not the sole cause of the collision. By
virtue of the finding that the second respondent
was negligent and
there being no evidence that the third party’s driver was
negligent insofar as the facts of this matter
are concerned, that
conditional claim in reconvention must fail. It also follows that the
third party proceedings brought by the
first defendant against the
third party must likewise fail.
[46]
The order of
absolution from the instance granted by the trial court was
incorrectly granted. Judgment ought to have been entered
in favour of
the appellant on the issue of liability. It follows that the appeal
must succeed. The following order is accordingly
granted:
1.
The appeal
succeeds.
2.
The order of
absolution from the instance is set aside and is replaced with the
following order:
‘
The
first respondent is found to be 100% liable for the appellant's
proven or agreed damages.’
3.
The first
respondent’s conditional claim in reconvention is dismissed
with costs;
4.
The first
respondent’s third party proceedings are dismissed with costs;
5.
The first
respondent is directed to pay:
(a)
the costs
of the appeal;
(b)
the costs
of the appellant’s application for leave to appeal; and
(c)
the costs
of the appellant’s petition to the Supreme Court of Appeal.
MOSSOP
J
MADONDO
AJP
BEZUIDENHOUT
J
APPEARANCES
Counsel
for the appellant
:
Mr G. E.
Ender
Instructed
by:
: Hooker Attorneys
Burnside
Building
410
Jan Smuts Avenue
Craighall
Park
Johannesburg
Counsel
for the first and second :
Mr H. F. Fourie
respondents
Instructed
by
: G P Van
Rhyn Minnaar and Co Incorporated
Rhymin
Building, Republic Square
Uitenhage
Date
of Hearing : 28 October 2022
Date
of Judgment:18 November 2022
[1]
The
shortest estimate of the time between the overturning of the third
respondent’s truck and the subsequent collision between
the
appellant’s truck and the first respondent’s truck is 45
minutes. The gap between the two incidents could, however,
have been
longer.
[2]
VDN
Carriers and Logistics CC v Gennao Logistics CC and others
[2021]
ZAKZPHC 15.
[3]
Sumtas
Trucking CC is the third party.
[4]
The
appellant bore the onus in this regard:
Ntsala
and others v Mutual & Federal Insurance Co Ltd
1996
(2) SA 184
(T)
at 190E–F.
[5]
The
first respondent bore the onus in this regard:
Moyo
v Autopax Passenger Services (Pty) Ltd t/a City to City
[2005]
ZAGPHC 219
at 3.
[6]
Goode v
SA Mutual Fire and General Insurance Co Ltd
1979
(4) SA 301
(W) at 306H–307B.
[7]
Mpete
v Road Accident Fund
[2012]
ZANWHC 38
para 15;
Qusu
Logistics CC v Pohl NO
[2020] ZAFSHC 217
para 18.
[8]
R
v Dhlumayo and another
1948
(2) SA 677
(A) at 697.
[9]
Protea
Assurance Co Ltd v Casey
1970
(2) SA 643
(A) at 648E.
[10]
Mine
Workers’ Union v Brodrick
1948
(4) SA 959
(A)
at 970.
[11]
Kruger
v Coetzee
1966 (2) SA 428
(A) at 430E-F.
[12]
Ntsala
and others v Mutual & Federal Insurance Co Ltd
1996 (2) SA 184
(T) at 190F.
[13]
Van
Staden v Stocks
1936
AD 18
at 22.
[14]
Para
10.
[15]
Para
11.
[16]
Uniform
rule 18(4).
[17]
Nasionale
Aartappel Kooperasie Bpk v Price Waterhouse Coopers Ing en andere
2001
(2) SA 790
(T) at 798F-799J.
[18]
South
African Breweries (Pty) Ltd v Louw
[2017]
ZALAC 63
; (2018) 39 ILJ 189 (LAC) para 4.
[19]
Para
14.