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[2021] ZAKZPHC 15
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VDN Carriers and Logistics CC v Gennao Logistics CC and Others (5539/2014P) [2021] ZAKZPHC 15 (18 February 2021)
SAFLII
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
No: 5539/2014P
In
the matter between:
VDN
CARRIERS AND LOGISTICS CC
PLAINTIFF
And
GENNAO
LOGISTICS CC
FIRST DEFENDANT
MARTIN
KHUWA MAHAMBA
SECOND DEFENDANT
And
SUMTAS
TRUCKING CC
THIRD PARTY
ORDER
It
is ordered as follows:
1
Absolution from the instance is granted
against the first and second defendants, against the plaintiff and
against the Third Party.
2
No order as to costs.
JUDGMENT
Delivered
on:
Mngadi,
J
[1]
This judgment deals with the liability
part of the delictual action for damages arising out of a motor
vehicle collision involving
three trucks.
[2]
The plaintiff is VDN Carriers Logistics
CC a close corporation duly registered and incorporated in accordance
with the Close Corporations
Laws of the Republic of South Africa. The
first defendant is Gennao Logistics CC a close corporation registered
and incorporated
in terms of the Close Corporation Laws of the
Republic of South Africa. The second defendant is Martin Khuwa
Mahamba an adult male
truck driver. The Third Party is Sumtas
Trucking CC a close corporation registered and incorporated in terms
of the Close Corporation
Laws of the Republic of South Africa.
[3]
The collision-giving rise to the action
took place on 31 August 2013 . The vehicles involved in the incident
were the plaintiff's
vehicle bearing registration number [….]
driven by Regis Rudvidzo (Rudvidzo), the first defendant's vehicle
bearing registration
number […], [….] and [….]
driven by the second defendant (Mahamba) and Third Party's vehicle
bearing registration
number [….] driven by Muzi Khumal
(Khumalo) .
[4]
The plaintiff sues the first and second defendants for the costs of
repairs of the
damage to its truck in the sum of R421 446.64. The
damage was caused when its truck collided with the first defendant's
truck driven
by the second defendant in the course and scope of his
employment with the first defendant. The first and second defendants
admit
the collision but deny that the second defendant was in any
manner negligent. They plead that the third party's truck had
overturned
and created an obstruction on the roadway. The second
defendant to avoid colliding with the overturned truck had to and
suddenly
changed his lane colliding with the plaintiff's truck. The
defendants joined the Third Party' to the action on the basis that
the
collision was the result of a sudden emergency caused by the
Third Party's driver who was negligent, in addition, for having
allowed
his vehicle to overturn creating an obstruction in the lane
that the first defendant's vehicle was travelling in. They plead that
the Third Party's driver in overturning its truck on the roadway
caused the collision. Alternatively, they plead that the sole
or
contributory negligence on the part of the plaintiff's driver caused
the collision.
[5]
The Third Party pleaded and it denies that the overturned truck
caused the collision
between the plaintiff's truck and the first
defendant's truck. It denied that its driver was in any way negligent
in causing its
truck to overturn. It alleged that its truck
overturned when it went over a load deposited on the roadway by
another truck. It
pleaded in the alternative sole or contributory
negligence on part of the second defendant and the plaintiff's driver
and that
even if its driver was negligent in overturning its truck
that was not the cause of the collision between the plaintiff's truck
and first defendant's truck. In addition, the Third Party pleaded
that if it is found that its driver was negligent in overturning
the
truck and that caused the collision between the plaintiff and first
defendant's trucks the plaintiff's driver was contributory
negligent.
The plaintiff denied any negligence on the part of its driver.
The
issue for determination is negligence on the part of the plaintiff's
driver, on the part of the second defendant and on the
part of the
Third Party's driver. In addition , if it is found that the Third
Party's driver was negligent in overturning the truck,
it needs to be
determined whether the overturned truck caused the collision between
the plaintiff's truck and first defendant's
truck. Both the driver of
the overturned truck and the second defendant raise the defence of
sudden emergency. The plaintiff's
driver too in denying contributory
negligence on his part raises as an alternative the defence of sudden
emergency due to the presence
of the overturned truck on the roadway.
[6]
The plaintiff in the particulars of
claim pleaded that the second defendant was negligent in one or more
of the following respects,
namely; he failed to keep a proper look
out, he failed to keep the motor vehicle he was driving under any or
proper control, he
drove at an excessive speed under the
circumstances, he failed to apply his brakes timeously adequately or
at all, he failed to
avoid a collision when through the exercise of
reasonable care he could and should have done so, he collided into
the side of the
plaintiff's vehicle , he failed to keep a proper
following distance from the vehicles in front of him, he failed to
take into consideration
the rights of other road users more
specifically the right of the plaintiff, he changed lanes at a time
when it was unsafe and
inopportune to do so, he failed to avoid a
collision when through the exercise of reasonable care he should and
could have done
so. The defendants and the third party alleged
negligence in similar respects.
[7]
The collision took place on a clear
night in the early hours on 31 August 2013. It took place on the N3
freeway on the northbound
lanes. The scene of the collision is on a
curve approaching the Loskop off ramp north of Estcourt. The roadway
to the north at
the area of the collision consisted of two traffic
lanes. A white solid lane on the right borders the right lane. A
solid yellow
lane borders the left lane on the left and the edge of
the surface of the road, which is the emergency lane. The lanes of
the freeway
to the opposite direction are separated from the lanes to
the north by a wide' grass median with hedge running along its
middle.
The
collision took place on a curve to the left. The area outside the
roadway on the left descends and it has a metal barrier through
the
curve. The roadway in approach to the collision is a gentle down
slope. The collision area is outside a built up area. There
were no
streetlights or anything providing artificial lighting. Traffic to
the south would not provide lighting to the collision
area due to the
curve and the wide grass area between the north bound and the
southbound lanes. It is common cause that there was
no lighting from
the overturned truck and that the collision area was dark at the time
of the collision . The area on the left
of the collision area has
grass and some trees or bushes. The road was tarred and dry at the
time of the collision.
[10]
Each party called one
witness. The plaintiff called its driver Regis Munyaradzi Ruzvidzo .
The first and second defendants called
their driver the second
defendant Martin Khuwa Mahamba. The Third Party called its driver
Muzi Khumalo. There was no formal sketch
plan with scale and key
provided. There were no photographs taken at the time of the
·collision presented except photographs
showing damage to the
plaintiff's truck. Only one photo was presented depicting the scene
some hours after the collision which
was close to depicting the scene
at the time of the collision or soon thereafter. Unfortunately, the
photo in question (photo 35)
was of a particularly poor quality. It
was taken when one was standing on the roadway approaching the scene
of the collision. At
that angle , it distorted distances between
objects. It was taken when it was dark and without the use of a
flashlight. It resulted
not showing objects depicted in the photo.
The overturned truck with its wheels on the air and lying on its back
is hardly visible
on the photo. It is a matter of speculation as to
whether the overturned truck is facing north or south. The set of
wheels of the
overturned truck are hardly decipherable from the photo
and neither can one tell whether the trailer is still fixed to the
horse
and whether it was fixed or articulated truck. It can be seen
that the truck is on the left hand side of the roadway. It is
difficult
to make out from the photo whether the overturned truck is
partially on the left lane, on the emergency lane, or off the
roadway.
In fact from the photo one can't make out the emergency
lane. The overturned truck is partly above the level of the roadway.
It
appeared to have ripped through the metal barrier when it
overturned. The photo shows what could be pieces of the metal barrier
pulled over the emergency and left lanes.
[11]
The photo does not show the solid yellow
line. It does not show the line separating the left and the right
lane. If approaching
traffic could see the collision area as depicted
in photo 35 it would have been a confusing scene. The person who took
photo 35
did not testify nor was a person who observed when photo 35
was taken . In my view, photo 35 did not clarify the situation.
Because
of its poor quality 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.
[12]
The three witnesses are not in a
position to give clear evidence on what they observed after the
collision. They were involved in
the collision as drivers and they
would not readily admit fault on their part. It was at night and
dark. They were shaken by the
accident and they sustained injuries,
which were serious in the case of Mahamba and Khumalo . ' Ruzvidzo
pointed out a completely
wrong area as the area of the collision.
They were concerned about receiving medical attention and they were
grateful for having
escaped with their lives. As an example, a person
carried on a stretcher to an ambulance is unlikely whilst so carried
to take
note of the position of vehicles involved in the collision .
[13]
The three drivers testified that they
approached the collision area driving at a normal speed. The normal
speed is a speed of about
80 km per hour. Each truck was loaded and
it was from Durban to Johannesburg. It was around 02h00. In the case
of Khumalo a little
earlier than that. They had their headlights on
at drive level of intensity. They had their attention on the road and
each one
was in control of his truck. There was little or no traffic.
[14]
Ruzvidzo testified that he was driving a fixed box loaded 14-ton
truck. He was driving on the
left slow lane. He passed a person who
was on the left side of the road waving a material to indicate that
there was a danger.
He then noticed that there was an overturned
truck obstructing his lane of travel. It was on a curve to his left.
He applied brakes
reducing speed of the truck. The distance was too
short and he could not avoid colliding with the overturned truck by
stopping
his truck. He then swerved to his right to the right lane.
At that instance, a truck hit him on the left hand side of his truck.
His truck veered of the road to the grass area between the lanes to
the north and the lanes to the south where it came to a stop.
He did
not see the truck that collided with his truck before the collision.
He did not see the overturned truck whilst a distance
from it because
it was in a curve and it was dark. In my view, it is not clear why
Ruzvidzo did not see the first defendant's truck
before it collided
with his truck. It must have been travelling near his truck. It is
difficult to speculate that it tried to pass
Ruzvidzo on his left
because it collided with Ruzvidzo 's truck from the left. It is
likely that Ruzvidzo was not travelling on
the slow lane, he was
travelling on the right lane and the truck that collided with his
truck was on the left lane. It is clear
that Ruzvidzo after seeing
the overturned truck, he concentrated in reducing speed of his truck.
He testified that when he swerved
to his right next to the overturned
truck his truck was driving quite slowly having drastically reduced
speed to about 10 km per
hour. It is possible that the first
defendant's truck caught up with Ruzvidzo as he was reducing speed.
Rudvidzo did not indicate,
hoot or put on emergency lights on his
truck. He did not take note of traffic close to his truck. He claims
that he did not have
an opportunity to do so. On the other hand,
Mahamba's unchallenged evidence is that he too had drastically
reduced the speed of
his truck when he swerved to his right.
[15]
Mahamba testified that he was driving a 22 meter double trailer
articulated loaded truck. He
was driving on the left slow lane.
Although the full beam of his headlights could pick up an object 500
metres away, he noticed
a short distance about 30m ahead that there
was an overturned truck blocking his lane of travel. He reduced the
speed of his truck.
It was on a curve to his left. He did not see any
emergency triangle on the road and he did not see any person waving a
material
to indicate the danger ahead. He realised when he was next
to the overturned truck that he would not be able to avoid colliding
head on with the overturned truck. His truck with its left side
glancingly collided with the overturned truck. He swerved to the
right lane and lost control of his truck. His truck collided with the
plaintiff's truck. It went off the road to the grass area
between the
south bound and the northbound lanes. He was trapped in the cab. He
testified before he swerved to his right he did
not check for traffic
on the right. He did not see the plaintiff's truck. He thinks the
plaintiff's truck was in the process of
overtaking his truck. He too
did not indicate, hoot or put on emergency lights. Mahamba too claims
that he had no opportunity to
take any other
measures except
to
apply brakes and swerve to the right . It is not clear whether first
defendant's truck actually collided with the overturned
truck or not.
However, the presence of the overturned truck on the roadway could
cause Mahamba to be distracted. He was in charge
of a big truck. He
might not have been certain of what was lying ahead . It makes sense
for him to concentrate in bringing his
truck under control. It might
not have left him with anytime when he realised that despite his
attempt he would not be able to
avoid colliding head on with the
overturned truck. In a split decision, he swerved to his right ,
which caused a collision with
the plaintiff's ruck. Further, it is
clear to me that due to the layout of the roadway and the prevailing
circumstances both Rudvidzo
and Mahamba were not able on their
approach at a safe distance to determine the exact position on the
roadway of the 'overturned
truck.
[16]
Khumalo testified that he was the driver
of the overturned truck. The truck was an articulated single trailer
12-metre truck. It
was loaded with a container fastened with metal
bolts to the trailer. He approached the area of the collision at a
normal speed
and with his headlights on. He was negotiating a gentle
curve to his left. He then noticed a white bag of about 1mx1m
standing
in the middle of his lane of travel. He was travelling on
the left hand lane. The bag was standing a waist high on the road.
There
was traffic on the right lane. He applied brakes and tried to
avoid colliding with the bag. The distance was too short. He could
not bring the truck to a stop. He collided with the bag. The
collision with the bag caused the truck to overturn. The truck landed
on the left hand side of the road. It completely overturned b lying
on its back with both the wheels of the trailer and the horse
facing
up but the trailer with the container on it remained attached to the
truck. He crawled out of the cab farther away to avoid
being injured
in case the truck caught fire. A passing motorist called an ambulance
for him. The ambulance people stretched him
from where he had crawled
to the ambulance parked on the road, and took him to hospital. He
testified that he did not ask any person
to warn traffic of the
danger posed by the overturned truck. He could not take any measures
to warn traffic of the danger because
he was severely injured. He did
not see any passing traffic passing the collision area before he was
taken to hospital. The overturned
truck had no lights on it after it
overturned. The collision area was not lit, it was dark. The
overturned truck did not obstruct
traffic lanes.
[17]
In my view, after the truck overturned
Khumalo was not in a position to take particular notice of whether
the overturned truck posed
any danger to approaching traffic or not.
He crawled out of the overturned truck and he remained in that spot
until a stretcher
took him to the ambulance. There was no light and
the collision area was dark. Khumalo testified that if he were in a
position
to do so, he would have warned approaching traffic of the
danger posed by the overturned truck. In my view, If the overturned
truck
was in a ditch away from the roadway there would have been no
need to warn approaching traffic of the danger posed by the
overturned
truck. Both Ruzvidzo and Mahamba saw the overturned truck
as constituting a danger to traffic moving on the roadway. Rudvidzo
testified
of an attempt made by an unknown person to warn the traffic
of the danger ahead.
[18]
There was no evidence of what distance
was required to stop safely each of the trucks in view of the layout
and surface of the roadway.
There was also no evidence how far a
driver keeping a proper look out would have seen the obstruction
caused by the overturned
truck. The three drivers generally agree
that, as it was dark at night and in a curve. What appeared to be an
obstruction in the
curve did not give an approaching truck driver
enough time to stop t e truck and avoid colliding with the
obstruction. During the
trial, the plaintiff forcefully contended
that the overturned truck did not actually block the roadway. In my
view, of significance
is whether the position of the overturned truck
from the view of approaching traffic it called for evasive action or
not. It is
clear from the undisputed evidence of Ruzvidzo and Mahamba
that from their view it did call for evasive action.
[19]
Photos consistently with the evidence of
Ruzvidzo and Mahamba show that the plaintiff's truck was damaged
mainly on the left hand
side of the cab. The quotes for repairs of
the damage show that first defendant's truck was damaged mainly on
its right
side. This is consistent with Mahamba swerving to the
right. Mahamba's undisputed evidence is that he swerved to the right
to avoid colliding head on with the overturned truck, which would
have resulted in him being killed or severely injured. He claims
that
he had no time to look out for traffic on the right. If he had no
other alternative . it is of no significance that he did
not look out
for traffic on the right before he swerved to the right. I reject
Mahamba's evidence that the collision between his
truck and the
overturned truck caused the overturned truck to move away to the left
of the roadway in any significant manner. The
size of the overturned
truck and the concentration of damage on Mahamba's truck disproves
the theory. I am also of the view that
there is no evidence that the
overturned truck was moved before photo 35 was taken . The plaintiff
too in the sketch plan tendered
in terms of Rule 36(10) placed the
overturned truck partly on the left hand lane of the roadway .
[20]
Mahamba's evidence may seriously be
criticised in a number of areas. Standing alone , it may justify an
inference that Mahamba had
an opportunity to see the overturned
object at a reasonable distance to take a timeous evasive action if
he had kept a proper look
out and driving at a reasonable speed.
Therefore, in view of the prevailing circumstances, in may be
contended, he misjudged unreasonably
the position of the overturned
object on the roadway, that he exaggerated the effect of the
collision with the overturned object
on his truck. However, Mahamba's
evidence may not be looked at in isolation. It finds support in the
evidence of Ruzvidzo and to
that of Khumalo to a certain extent.
Their evidence is to the effect that in the prevailing circumstances
an object at the area
of the collision as the overturned truck
appeared to be blocking the roadway from the moment it could be
observed, it did not give
a truck driver keeping a proper look out
and driving at a reasonable speed to take timeous evasive action. In
my view, the particularly
poor depiction in photo
35
does not counter this evidence.
[21]
Ruzvidzo claims that he was travelling
on the left hand lane. Next to the overturned truck, he swerved to
the right. Ruzvidzo's
evidence that he was travelling on the left
slow lane, in my view, is inconsistent with the evidence of Mahamba
and it is not in
accord with the probabilities. However, although his
evidence does not make sense, it does not show any fault on his part
in the
collision between the plaintiff's truck and the first
defendant's truck. I also find it significant that Ruzvidzo testified
that
the collision between the plaintiff'$ truck and the first
defendant's truck took place at a point that is adjacent to or along
the overturned truck as he was in the process of manoeuvring his
truck from the left lane to the right lane. This indicates, in
my
view, that both Ruzvidzo and Mahamba although they were close to the
overturned truck they were of the view that it blocked
the left lane.
In addition, they both independent of each other realised at that
point that applying brakes was not going to help;
they had to move to
the right.
[22]
It has been held that it is irrational
to meticulously examine reactions of drivers in a placid atmosphere
of the court in the light
of after acquired knowledge . Likewise,
reliance on estimated speed and estimated distances made by persons
in moving vehicles
involved in the collision at night during the
occurrence of the event poses risk of stigmatising a person as guilty
of negligence
when in fact he did all that could be expected of him
under the particular circumstances. See
Cooper
v Amstrong
1939
OPD 140
at 148;
South African Railways v Symington
1935 AD 37
at 44-5;
Lambechts
v African Guarantee &· Indemnity
Co
Ltd
1955
(3) SA 459
(A) at 465F.
[23]
It is trite that the onus to prove on the balance of probabilities
rests on the plaintiff throughout
to prove negligence on the part of
the defendant. Once plaintiff proves an occurrence-giving rise to an
inference of negligence
on the part of the defendant, the latter must
produce evidence to the contrary; he must tell the remainder of the
story or take
risk that judgment be given against him. In other
words, the defendant has a tactical onus of furnishing an explanation
of his
conduct which either excludes negligence on his part.
[24]
The presence of an obstruction on the roadway, a bag in the case of
Khumalo, the overturned truck
in the case of Ruzvidzo and Mahamba,
called for evasive measures on their part. In the case of Khumalo the
evasive measure was
to reduce speed, when that did not completely
work out, to collide with the bag. The evasive measures resulted in
the truck overturning
and landing where it posed a danger to other
road users. In the circumstances, it cannot be said that the evasive
measures employed
to deal with the situation were unreasonable. In
the case of Mahamba, his evasive actions constituted trying to bring
the truck
to stop and when that did not succeed, to swerve to the
right. One cannot say the evasive measures were unreasonable.
Likewise,
Ruzvidzo reduced speed and swerved to his right. In my
view, it made sense to try to move away from the area of the
overturned
truck. It turned out that in the case of Mahamba although
the evasive action succeeded in avoiding colliding with the
overturned
truck it resulted in a collision with the plaintiff's
truck. It is of no significance that Mahamba did not look out for the
plaintiff's
truck since it is not shown that he had an opportunity to
look out for such traffic and that if he had seen that traffic he
would
not have swerved to his right.
[25]
The presence of the overturned truck in the freeway roadway at night
when it was dark at a curve
with no warning of its presence caused
the collision between the plaintiff's truck and the first defendant's
truck. Nevertheless,
as explained above, there was no negligence on
the part of Khumalo. He was caught in an emergency. It is common
cause that the
white sugar bag was deposited on the roadway by
another truck which passed before Khumalo . Negligence is conduct,
which falls
short of a conduct of a reasonable person in the
circumstances. The realities faced by the person at the relevant time
are taken
into account in judging his conduct, an armchair approach
is avoided. The judgement arrived at must be based on the totality of
the evidence, speculation must be discounted. The party alleging
negligence bears an onus of proof to be discharged on the balance
of
probabilities. See
Kruger v Coetzee
1966 (2) SA 428
(A) at
430E. In my view , no negligence has been proved on the part of any
of the three drivers. They were faced with certain situations,
which
were not of their creation. They dealt with those situations to the
best of their abilities , which I am unable on the evidence
to find
that they were unreasonable .
[26]
In the result, it is ordered as follows:
Case
Number
:
5539/2014P
For
the Plaintiff
: G.
Ender
Instructed
by
: Hooker
Attorney
c/o Leslie Smith & Company
Pietermaritzburg
For
the first and
second
defendants
: B .
Osborne
Instructed
by
: Botha &
Olivier
Pietermaritzburg
For
the Third Party
: E.
Van Jaarsveld
Instructed
by
: Whalley
& Van Der Lith Inc.
Randburg
Heard
on
: 23-26
November 2020
Judgment
delivered on
: 18
February 2021