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[2019] ZAGPPHC 133
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Ngululu Bulk Carriers (Pty) Ltd v Premier of the Limpopo Provincial Government and Another (63170/2013) [2019] ZAGPPHC 133 (4 April 2019)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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Policy
IN
THE HIGH COURT OF SOUTH AFRICA,
GAUTENG
DIVISION, PRETORIA
NUMBER: 63170/2013
4/4/2019
In
the matter between:
NGULULU
BULK CARRIERS (PTY) LTD
PLAINTIFF
And
THE
PREMIER OF THE LIMPOPO PROVINCIAL
GOVERNMENT
FIRST
DEFENDANT
THE
MEC FOR ROADS AND TRANSPORT OF THE
SECOND DEFENDANT
LIMPOPO
PROVINCIAL GOVERNMENT
JUDGMENT
MAVUNDLA,
J.
[1]
The
plaintiff claims in
delict
against
the defendant for payment of the sum of R993, 529. 65, arising from
alleged damages sustained to its vehicle, a truck tractor
combination
(haulage tractor with registration letters and numbers [….],
Front interlink with registration letters and numbers
[….];
Rear interlink with registration letters and numbers [….])
drove into a porthole-like excavation along or on
the R555 road
between Steelpoort and Middleburg, on the 26 December 2011.
[2]
The
plaintiff's damages claim is based on the defendants alleged wrongful
and negligent omission, in failing to repair a road defect
on the
R555, or warn motorist about the road defect, which road defect
allegedly rendered the truck uncontrollable (through the
steering
locking), causing the vehicle to leave the road and sustain damages.
The road defect in question is referred to as the
edge break or
pothole interchangeably. The incident occurred on the piece of road
RSSS at portion referred to as " road P169/2
in particular at
km14-15. It is common cause that the road concerned was part of a
provincial road, for which the Department was
responsible for
management and control, including repair and maintenance, which is
referred to as P169/2 between Steelpoort and
Middleburg, in respect
of which the defendant owed a legal duty to users of the said road to
act positively to prevent harm.
[3]
The
issue to be determined was wrongfulness; negligence and causation. It
is trite that the plaintiff as the party alleging liability
on the
part of the defendant, bore the
onus
to prove all the three aforesaid
issues in dispute;
vide Mobil Oil,
Southern Africa (Pty) Ltd v Mechin
[1]
where the court held that:
"As is apparent from the much-quoted
dictum of Holmes JA in Kruger v Coetzeel966 (2) SA 428 (A} at 430E -
F, the issue of negligence
itself involves a twofold inquiry. The
first is: was the harm reasonably foreseeable? The second is: would
the diligens paterfamilias
take reasonable steps to guard against
such occurrence and did the defendant fail to take those steps? The
answer to the second
inquiry is frequently expressed in terms of a
duty. The foreseeability requirement is more often than not assumed
and the inquiry
is said to be simply whether the defendant had a duty
to take one or other step, such as... perform some or other positive
act,
and if so whether the failure on the part of the defendant to do
so amounted to a breach of that duty".
[4]
In
order to acquit itself of the onus resting upon it, the plaintiff
called the following witnesses:
4.1
Mr
Mcingeni Joseph Malinga,
the driver
of the relevant truck on the date of the collision; He was traveling
at 70 kmh along the road which has a 80 km limit.
He accident
occurred at about 10H00 in the morning . A vehicle approached from
front, he decided to avoid it by veering, unfortunately
his truck hit
a porthole resulting in the steering wheel locking. He lost control
and the truck careened over the embankment into
the veld and
eventually overturned. The front approaching vehicle had straddled
the barrier lane. Between the approaching vehicle
and his vehicle
there were potholes. There were no other vehicles in the vicinity.
The approaching vehicle was about 14 to 15 meters
away from him. He
veered to his left to avoid the approaching vehicle. He had already
seen the porthole but in the process of veering
off
he hit into the pothole. He knew
that the road at the relevant place had potholes. He said that the
pothole was beyond the yellow
line. Part of his wheels went over the
tarred road and the yellow line on the gravel part
off
the road. He had hoped that by
veering to his left he would avoid colliding with the approaching
vehicle. Only the left front wheel
went into the porthole. On hitting
into the pothole he felt a swing from left to right on the steering
wheel. The truck also swung
to right . The pothole was about 30
centimetres deep. There were no warning potholes signs. The speed
limit at that part of the
section of the road was 80 kmh. The witness
drew a line on the photo at page 61. He said that the tyres of his
truck are about
32 centimetre in width. In his view, but for the
pothole the accident would not have occurred. His truck wheel landed
in the pothole
resulting in impact causing the wheel to lock. He knew
that there are potholes along that road and he used that road thrice
a week.
There were no vehicles behind him at the time of the
accident.
Under cross examination he said
that he told the insurance man that he was traveling at 70 km/h. The
document was not read back
to him and he did not ask that it be read
back to him. He was referred to page 14 of bundle part 1 of 3,
containing his statement.
It was pointed out to him that according to
his statement at page 14 he was traveling at 80 km/h and that he saw
other vehicles.
4.2
Mr
Quinton Louw
31 years old employed
by KVTR (Kempston Vehicle Theft and Recovery) since 2007, a company
appointed by the Insurer, Captive Administrator
(the plaintiff's
insurer), as an insurance investigator . He was appointed to do the
investigation in regard to this accident.
He received instructions to
investigate the accident on the 27 December 2011. He visited the
scene of the accident on the 31 December
2011. He cannot recall who
directed him to the scene. He was given the land marks of the scene.
He was referred to bundle 5 pages
12 etc. He was present when photos
were taken in July 2012, namely items 5-47. He took the photo 61, 5
days after the accident.
There was cement like substances inside the
pothole. The purposes were to gather facts and investigate for the
insurance accompany.
He was referred to top of page 1 of vol 5 and
confirmed that it was his report . He spoke to the driver and a
witness to the accident
but cannot recall their names. In photo 3 is
the circle of the pothole. He prepared the statements of the witness
he interviewed.
He prepared it through a compute r and thereafter
asked the witness to sign after he they had read that statement . He
cannot recall
whether they read these statement.
Under cross examination he said
that he cannot recall who accompanied him when he went to the scene.
He cannot recall what direction
or land marks were given to him. He
was supposed to investigate what happened and what could have caused
the accident. The client
gives him the area where the accident
happened and the driver tells him what happened and he then goes to
the scene. Eddy van Rensburg
was at the scene. Eddie gave him a
background of the matter. Eddy told him that he had already spoken to
the driver and what had
happened. He cannot recall whether Eddie had
given him landmarks. He is not told what to do. He was told that the
driver swerved
to the left to avoid a Corolla and went through a
pothole and lost control, moved to the right off the road over the
culvert up
to where his vehicle it stopped. (I must hasten to state
that this is hearsay evidence to be ignored.) He was looking for the
conditions
of the road, the pothole, the calved he went through and
the final rest place of the vehicle. The road was not in good
conditions
due to the potholes and the uneven condition of the road.
Louw cannot recall which land
marks were given to him nor does he know whether he was taken thereto
by whom. If he was taken thereto
it would be Van Ransburg. If he was
not accompanied there, he would have identified the place through the
landmarks. The truck
had already been removed. There must be another
culvert in the area. There were other potholes before and after the
culvert. He
looked at the direction from which the truck had come
from and there was only one pothole which was big enough to have
caused the
truck to lose control. He went there on the 30 December.
He cannot recall when he interviewed the driver, but according to his
report it was on the 11 January 2012. He did not go to the scene with
the driver because he deemed it not necessary because he had
already
been there on the 301h . Van Ransburg would have been the person who
accompanied him to the scene. To him it is not really
important who
pointed out the scene unless he is unable to locate the scene on his
own. It is not important to him to have the
driver accompany him to
the scene. He deems it not necessary to have someone to point out to
him the pothole. He cannot recall
whether he was provided with photos
before he went to the scene.
He cannot recall whether he met
Malinga at the hospital. He said that it was not only about the speed
he was travelling at he asked
M alinga. In page 14 of bundle 5 of his
statement he recorded the Corolla having overtaken. What is contained
in his statement
was what Malinga told him. He cannot recall whether
he read the statement back to Malinga. He did not establish whether
Malinga
could read. He cannot recall whether he read the statement
back to him. He disputed that he probably took a photograph of a
wrong
pothole. He said that the pothole was already filed up on the
day he went to the scene on 30
th
. At that stage he could
not say whether the pothole was filled up recently, but it was the
only big one around the area. He cannot
say whether this pothole was
filled up at the time of the accident. It was the only big repaired
pothole in the vicinity. He looked
at its width.
I must hasten to state that this
witness visited the scene 5 days after the event, but does not know
whether or not he was accompanied
thereto. It begs the question as to
how he would have been able to identify the exact scene of the
accident. One would have expected
him to have taken measurements of
the pothole or filled pothole. Authorities state that it is difficult
to say how an accident
happened, by merely looking at the scene after
some days, unless there are clear and visible signs such as break
marks, skid marks
and or debris at the scene. Louw conceded that he
was unaware of the condition of the road on the day of the accident.
I find that
his evidence was merely speculative and of no value.
4.3
Mr. Eddy Janse van Rensburg
a
43-year-old testified that:
4.3.1
he
was in the employ of plaintiff as check manager and accident
investigator for 15 years, was assigned on the 26 December to
investigate
this accident and went alone to the scene on the said
date. He went to the vehicle itself to assess whether the driver was
injured.
He spoke to the driver who informed him thc;1t he was
injured and then arranged for him to be taken to the private
hospital. He
did speak to him about the accident. He spoke to him as
he was taken to the ambulance. His first observation was that on the
right
hand side the truck had veered into the embankment. On the left
hand side, there were potholes and on the right, one could see the
markings of the truck where it went over. He overhead the driver
speaking to someone saying that he lost control of his truck as
there
was another vehicle and moved to the left and his steering locked. He
heard him directly saying so to someone. He observed
that the road
had potholes. Photos 51- 55 in bundle 5. Photo 54 shows the end
position of the truck at the road. Photo 62 shows
the end position of
the truck after it had been removed. The pothole was about plus or
minus 70 meters, as measured by the plaintiff's
expect from the end
of the truck rest position. There is a concrete substance in the
pothole which was about 30 centimetres in
depth. It is remarkable
that this witness does not say that he himself measured the pothole.
He saw tyre marks through the pothole
on the edge He said that there
was a black mark on the pothole, which is not reflected in the photo
61. The pothole was not fixed
on the 26th December when he saw it. He
uses the relevant road very often. It is in good condition up to
Lobatsi ridge. There were
quite a few potholes during 2011. He used
the road daily during 2011. The speed limit is 60 km/h but he is
guessing. He cannot
dispute that it was 80 km/h. There are lot of
trucks along that road. There are mines and trucks in that area. He
cannot remember
seeing any warning signs warning of the potholes.
There was no maintenance done on that road. local companies would
repair the
road to minimize costs. Page 61 there were edge breaks in
the vicinity of the pothole but no other potholes. He believes that
the
repaired pothole in 61 is the vey one Malinga drove through. But
he cannot recall when he spoke to Malinga. It could have been about
3
days after the accident. The truck was not loaded. The weight could
be about 28 tons.
4.3.2
Under
cross examination Van Rensburg said that his appointment as
investigator was in accordance with the Occupational Safety Act
s16.2. He investigates accidents for the company, His company is
about 10 km away from the place where he found the truck. Primary
responsibility is to give information to the insurance. He had a
camera. He took photos 51-56. Photo 51 truck rest position in
the
veld. There is no good reason why he did not take photos of the
pothole and the road at the scene of the accident. He saw the
pothole
on the same day but did not take pictures of the pothole. He spoke to
the driver about the accident when he came back from
hospital. He is
not sure whether he went to the scene with Louw at all or before or
after the driver had returned from the hospital.
He and a colleague
came across the pothole. They were looking for the reason why the
steering ripped from the hands of the driver.
He was of the view that
it was a mechanical fault that caused the steering wheel to be ripped
from the driver's hands. He looked
for the condition of the road and
saw the pothole . There were few other potholes which he saw before
the scene of the accident.
He settled on this particular pothole as
it was in line with the place where the accident occurred. He saw a
black mark of a tyre
in the pothole. He still deemed it not necessary
to take a photo. The pothole was about 30 centimetre deep. He was
satisfied that
he had something to work on after seeing the pothole.
He wanted KVTR to further investigate and was going to give to them
whatever
information he had gathered. He did not mark the black mark,
which I find it strange. It was the only one of that size. He had an
arrangement with the insurance. He went to the scene with Louw. He
conceded that he gave Louw directions where the vehicle landed.
He
identified the pothole to Louw. He saw the pothole on the same day he
went to the scene. He is not too sure when he saw it.
The condition
of the road remained in a poor condition for a long time. Some
companies repaired the road. Lion Xstrata repairs
the roads. There
are companies which repair the road themselves. It was put to him
that the driver said that there are many potholes
but did not
identify the pothole he hit. It was further put to him that there was
no pothole hit by the driver but he merely lost
control. He
re-iterated that he does not recall seeing any warning sign. It was
put to him that the reason why he did not take
a photo of the pothole
is because there was none.
4.3.3
Under
re-examination he re-iterated that he wanted KVTR, to come and
investigate. He was satisfied that the damage was more than
R100
000.00. He said that there were black tyre marks. He does not recall
telling Quinton Lauw that this is the particular pothole.
4.3.4
I
must hasten to state that van Rensburg, who professes to have been an
accident investigator for 15 years, having spoken to the
driver of
the truck, having been told of the steering wheel locking and the
truck having gone into or through a pothole, failed
to take a
photograph of the relevant pothole on the same day of the accident,
leaves much to be desired. With the alleged experience
of 15 years,
he failed to demonstrate such experience of 15 years, by not doing
the most basic requirement to be expected of a
seasoned accident
investigator , namely capturing and preserving for future reference,
the state of the scene of the accident,
by taking photographs of,
such as the pothole or potholes and the tyre marks, skid marks to say
the least. In my view, he lacked
experience to be regarded as an
expert at all. I find that his evidence is of no probative value to
this court and stands to be
ignored, as I do. In this regard
vide
IO Tech Manufacturing a Pty Ltd v Gallagher Group Ltd.
[2]
4.4
Mr
Daniel Frederick Oosthiuizen a 45 years old and engineering employee
of plaintiff for about 12 year's testified that:
4.4.1. He was at the scene
of the accident on the day in question. He was a driver on the road
as the accident happened. He
was driving a double cab LVB, in the
opposite direction in relation to the truck when the accident
occurred. There were two other
vehicles in front of him, a white
Isuzu and a light Blue Corolla. These two other vehicles were driving
towards Steelpoort. The
blue Corolla overtook him and the Isuzu which
was in front of him as well. The road is a standard two lane road
allowing another
vehicle to move to the other lane to overtake. When
he saw the Corolla overtaking, he thought that there was going to be
a head
on collision with the truck travelling in the opposite
direction. The truck went to its right hand side without going over
the
white line and after the Corolla passed he saw white dust and the
truck went off the cobalt. He was referred to photo 61 and said
that
he was travelling down the photo. The truck moved to the white line
side. Before that it was in the middle of its path of
travel. When
the Corolla approached he went back to the left . He then saw white
dust and the truck made a sharp right move over
the white line. When
he saw the white dust he thought the truck wheel had burst. The
Corolla at that time had already passed the
truck. The truck moved
through in between the Isuzu and his car. His impression was that the
truck driver steered it to the left
hand side. He witnessed the full
accident. He remained at the scene. He went to the truck and saw that
there was lot of smoke from
the truck and he removed the driver from
the truck. The driver said that he his arm was injured. His phone was
ringing and asked
for it . He gave him his phone. He noticed that the
left wheel had not burst. It was on the left hand side of the road
that he
saw lot of dust. Both tyres left and right front wheels he
inspected. The left wheel was not deflated but the right one was. He
thought the damage of the right tyre was as the result of the truck
going over the culvert. He phoned the owners of the truck as
well. He
thought that because the left front tyre was not burst and concluded
that the dust he saw was as the result of the pothole.
4.4.2
Oosthuizen
said that pictures 63 is the end rest of the truck. Picture 61 shows
a defect on the road on the left side. He on the
day of the accident
saw the pothole. He agrees with the measurement to be 70 centimetre
s. In terms of the dust he saw, it correspondent
with what he had
observed . He placed his foot in the pothole and it was about 100
centimetres under his knee. He said that the
refilled pothole shown
in picture 6 is the same pothole he saw that particular day. The
relevant road is a busy one and he travelled
along that road every
day. There were no warning signs. The speed limit was 100 km/ h.
There were no other potholes. It is long
time ago but he cannot
recall seeing anyone fixing the road. It is busy main road. He cannot
recall whether he was contacted about
the accident. He was referred
to page 15 of bundle 5. He recalls this statement. He was referred to
paragraph 4 of the statement.
His conclusion was that the pothole was
the cause of the accident. The truck driver tried to avoid the
accident and when he hit
the pothole, he pulled hard as he tried to
rectify. The depth of the pothole as measured when the witness
demonstrated in court
was about 45 centimetres. The truck was out of
control. When he saw the cloud of dust he was about 50 meters away
from the truck.
4.4.3
Under
cross examination, Oosthuizen said that at the scene of the accident
he did not see any police vehicle. He said that he did
not read his
statement. The statement was taken from him by someone from the
insurance. He cannot recall whether he signed his
statement. He only
read his statement herein court but not after it was taken. He
thought that the Corolla did not cause the accident.
He said that the
speed on that road was 120 km/h and he was traveling at that speed.
In his statement he had said that he was 500
meters behind the Isuzu.
When the truck swerved out of the road he was about 50 meters away
from it. The truck was much higher
than his vehicle. The truck was on
its correct lane, on the right hand side in relation to the path of
travel of the witness. The
truck moved from the surface to the left
hand. Before the truck moved to the left it moved to the right but
going over the white
lane. The truck did not touch the gravel but
remained on the tarred road. At all times the truck remained on the
tarred road. The
truck had 18 sets of wheels. If it had gone off the
road there would have· been lot of dust. He conceded that in
his statement
there was no mention of a pothole and if it existed it
would have been recorded.
4.4.4
He was referred to the evidence of the
driver and Louw. He said that when he saw the dust he thought it was
the nitrogen of the
tyre. He was looking at the dust and after he had
inspected the wheel and realised that it was not damaged, he then
went to investigate
the cause of the dust and then saw the pothole.
He concluded that the white dust came from the pothole. After
assisting the driver,
he went back to the road to inspect the cause
of the dust and that is when he saw the pothole. He is certain that
the dust came
from the pothole. There were lot of .potholes in the
vicinity. Between Steelport and Lenox there were lot of potholes. He
said
that on the 26 December 2011 there were other potholes before
and after this one in issue. The dust could have been from previous
refilling. Besides taking the driver out of the truck, he has not
been with him at the scene. At the scene on asking the driver
what
happened, his response was that he does not know what happened. (This
contradicts the evidence that the driver would have
said to someone
he does not know what happened.). After he discovered the pothole he
informed the plaintiff's people thereof. The
right tyre had burst as
the result of the rocks. He is an engineer appointed in terms of the
Act. He is skilled to inspect vehicles.
He inspected the vehicle and
concluded that the dust came from the pothole. He cannot remember
what they spoke about with the investigator.
The statement should
have been mailed to him. He cannot remember who he concerning the
pothole but it is the people who came to
do inspection. He said that
he has never seen the Road Department fixing this road. It was put to
him that the road is a stretch
of 30 klm and has a number P169/2
between Steelport and Stofferburg. He said that he does not know
about the road identification
number. He warned his fellow colleagues
of the accident. He went with someone who he cannot recall, to the
scene. He is aware of
accident reconstruction experts. He went to the
scene with road reconstruction experts. It was put to him that he had
estimated
the pothole to be 30 deep. He insisted that the particular
pothole shown on p61 is the correct pothole. He said that the Corolla
was light blue. It was pointed out to him that according to Malinga
the Corolla was white. The version of Malinga that the Corolla
was in
the middle of the road straddling the middle lane and not overtaking
any other vehicle. The truck was about 500 meters as
they are
approaching. He was about 500 metres from the Truck when the Corolla
overtook. He said that it is not possible that the
wheel could have
deflated earlier before the truck veered to the left and or right.
4.4.5
Under
re-examination he said that he is certain that the pothole at page 61
is the correct pothole which he inspected. In the vicinity
of this
pothole there Is no other pothole. This response contradicts his
version in chief that there were other potholes in the
vicinity of
this particular pothole.
4.5
The
plaintiff called it's expect witness, Ms Welhma Bardenhuast a
40-year-old B.Sc. Applied Mathematics graduate who qualified herself
as an accident reconstruction expert of 17 years, and testified
inter
alia,
that:
4..5.1 she prepared a report
after she attended the scene of the accident on 13 September 2013.
She was accompanied by Oosthuizen
who pointed out to her the pothole
which was already repaired. She considered the measurement taken by
KVTR which indicate the
size of the road defect to be 00.9 meters and
the length to be 2.8 meters in width.
4.5.2
The width of the lane, is 3.25 meters
and the width of the defect is 0.9 meters, the actual drivable
section if one wants to avoid
that defect, is in the order of 2.35
meters. Further, considering a width of 2.6 meters or 2.5 meters for
a typical heavy vehicle
combination, the plaintiffs truck if it
wanted to avoid the pothole completely, only had 2.35 meters'
drivable section available
and would have to go into the barrier line
to fit in.
4.5.3
If the truck driver steered to the left,
it would have resulted in the left front wheel going into the road
defect and there would
have been, accepting the depth as testified, a
sudden drop of that left front wheel into the defect. Immediately
thereafter, the
wheel would have struck the opposite side wall of the
road defect. There would have been a first drop, and a second impact
against
the opposite wall of the road defect.
4.5.4
The axle on which the driver basically
sits on· top, if that part is severely affected when the left
front wheel went into
the defect and collided with the opposite wall,
in all probability, that would have resulted in the loss of control
considering
that there are two trailers pushing from behind or follow
from behind.
4.5.5
She agrees that the distance from where
the road defect was until where the truck ended was 77.6 meters. She
said that it cannot
be said that the road defect did not play a role
in this collision.
4.5.6
She further stated that, if one set of
wheels of the truck rotating on the gravel part of the road and the
other set is rotating
on the tarred road, there is a possibility that
this will cause the driver to lose control of the truck.
4.5.7
If the driver applied brakes, it would
have made little difference as the truck use "mechanical lag
time". If the truck
was empty, it would take a few meters before
the truck comes to a complete stop.
4.5.8
If the Corolla had not overtaken the
vehicle of Oosthuizen and the Suzy bakkie, Malinga would not have
veered to the left, she cannot
disagree with this version by the
defendant .
4.5.9
According to Bardenhorst, she premised
her conclusion on what she was told by Oosthuizen. The latter, in my
view, is not an independent
impartial witness because he is in the
employ of the plaintiff. In my view, an expert, must conduct his /her
own investigation
premised on objective facts and make unbiased
independent conclusions; he/ she must not be a hired gun neither
should there be
such taint;
vide
Sheiner NO v Aspeling.
[3]
The court is not bound on the views
of an expert, it is for the court to decide on the facts presented
before it to make its own
determination of the issues before it. Vide
ZS- Syndicate v 43 Air School (Pty)
ltd and Another.
[4]
In the result, I find that the
evidence of Bardenhorst is not impartial but influenced by the views
of Oosthuizen who is also in
my view not an impartial witness.
[5]
The defendant called the following witnesses:
5.1
Mr
Johannes Van Vuuren a 43-year-old of 33 years' experience ,
registered with the professional civil engineering extensively
involved
with road designing and services and rehabilitation of the
roads and managing traffic officers doing Road Accident reports, with
practical experience spans over 2000km town roads, investigation of
road reports, qualified himself, in my view, as an accident-
reconstruction expert. According to his evince:
5.1.1
On 6 March 2013 he conducted an
Inspection in loco between '4 -15 km mark on the road RSSS. He was
furnished with certain documentation
inter He loo ked at the terrain
alia, the photographs of the accident, three 93s) sets of
photographsl-6 taken on 26 December 2011,
7-36 taken on 26 December
2011, and 37-77 taken on 5 July 2012 and police accident report.
5.1.2
At the inspection
in
loco
he among other things took
measurements of the distances from where the edge-break, which is
alleged to have caused the accident
is situated and where the truck
rested. He looked at the terrain in general, the route and whether
there are road signs and whether
the road complies with the
requirement standards and design guidelines set by the Road Agency
Limpopo. He took pictures of the
roads to consider how the edge-break
affected the flow of the traffic on the day of the inspection. The
photographs are part of
his report.
5.1.3
Van
Vuuren had seen the road maintenance (reports) or records of route
RSSS (P169/2) Section of the road. Having considered the
information,
he made the following findings---
5.1.3.1 that the
section of the road meets the guide lines criteria set by the Road
Agency distance of 400 meters at
the speed of 120 km/h.
5.1.3.2
that the section of the road did not
require any maintenance schedule as an indication that the patch of
the potholes and edge-break
was carried out prior to the accident on
26 December 2011.
5.1.3.3
that the photographs taken on 26
December 2011, photographs 1- 6, clearly show the edge- break and
state of the edge-break. That
no repair work was required for that
section. And that the road did not require any road signage.
5.1.3.4
having considered the available
information, physical and documentary evidence, he came to the
following conclusions:
5.1.3.4.1
that
the estimated speed at which the truck may have travelled can be at
about 99.2km/h;
5.1.3.4.2
that
the fact that there were no skid marks visible on the road where the
truck ultimately ended, is inconsistent with the allegation
that the
truck was out of control as the truck was not loaded, otherwise the
skid marks would have been visible;
5.1.3.4.3
further,
that from the photo series 1-6 taken on the day of the accident,
there was no indication that the truck was out of control.
In the
absence of such information it is consistent that the truck was
moving on a straight line;
that the size of the road as between
kilometre mark 14. and 15 is 6.4 meters with a lane width of 3,2
meters and the width
of the interlink combination being 2.48
meters in total, the tyre width of the truck is 300mm and could
pass the edge-break
which was 250mm without damage to the tyres,
therefore the edge-break could be ruled out as the cause of the
accident;
Further that the vehicle
moving in the same direction could easily pass the edge-break
without disrupting the traffic
in the opposite direction.
that the
cause of the accident was as a result of human error because
sometimes drivers accurately perceive and interpret
information
but fail to respond appropriately because they make wrong
decisions or because they make the right decision
but perform a
wrong response.
The lane
width of the road is 3.2 metres and the measured width of tyre
edge-break is 0.25 meters, therefore there is
enough room for a
truck to pass the edge-break. Further, that the tyre width of
the truck is 300mm and could pass the
edge break which was 250mm
without damage to the tyres. He concluded in his opinion that
the edge- break had nothing
to do with the accident.
He also
prepared a supplementary report, which contained the sketch
plans on pages 1-6. In the sketch plans he indicated
what he
called the "the green" and "red zones" the
indication of the bridge and where the truck lost
control and
where it eventually landed. There are measurements taken in
relation to each marking. They are marked "A,
"B",
"C" and "D: indicating certain markings of the
distance the truck travelled before it came
to a complete stop.;
after
receiving Wilma Badenhorst's report, on 9 June 2014 he conducted
an inspection in loco and took certain measurements
at the
accident scene:
He discovered that the truck
driver was alleged to have been driving at a speed of about 80 km/h
but there was no sign of skid marks
or tyres anywhere prior to where
the truck landed. He concluded that the event that followed stated
close to the point "A"
in the sketch which is on page 163
that is when the truck moved to the left to avoid the collision with
the Corolla. After the
truck had swerved to the left to avoid a
collision with the Corolla, the driver by over correcting, lost
control and crossed the
tarred road, left the road at point "C"
and ended up on the right side of the road, at point: D" as
indicate in
the sketch plan.
5.1.3.4.10
H
e further opined that the truck driver
did not have a chance to apply brakes and by utilising the 2.2
seconds reaction time in combination
of speed of the truck and the
maximum distance can be determined by applying the following formula:
"D" = T x V where D=
Distance T= Time and Velocity''.
5.1.3.4.11
He further opined that the maximum
distance that the truck trailer travelled at the start incident "B"
as indicated on
sketch plan 1 is 48 .8 metres. That the second
calculation, the angle of the impact of point "B" and "C"
measuring
24.296 degrees by applying Pythagoras formula, the second
distance can be calculating as 24.787 meters. The third calculation,
the speed of the truck trailer of 80km/h = 22.22m/s + 24.78+ 1.1
second.
5.1.3.4.12
He said using the two (2) distances with
a time span of 1,1 second and 2,2 seconds, one can safely say that
48.8 meters is the maximum
and 24.787 is the minimum. This is marked
as the red zone in the sketch plan.
5.1.3.4.13
He came to the following conclusions:
"that the origin of the
accident was within the red zone indicated . Further, that if the
Toyota Corolla did not start the
event by reckless driving/
overtaking, the accident could have been avoided and that the
accident is a direct result of the Toyota
Corolla driver's action."
5.1.3.4.14
In his opinion the chain of events is:
That the driver of the truck
swerved to the left to avoid the collision with the third party
recklessly overtaking. This was the
start of the events resulting in
the accident. The truck driver with the left side of the wheel on the
gravel shoulder, the driver
of the truck trailer by trying to correct
and move back to the tar surface misjudged himself and by
over-correcting the truck trailer
overshot to the right and ended up
on the right side (point 'D).
5.1.3.4.15
The
speed of 80km/h was high and the roadside ended before the driver
could make a decision the truck trailer was already airborne
and
passed point "B" as indicated in sketch plan 1. All events
prior to Point: B" happened within or less than 2.2
second,
which was quick at the speed of 80km/h as the result the truck driver
could not react on time thus losing control of the
truck trailer
resulting in the accident. The accident could have been avoided had
the truck driver not been travelling at an excessive
speed, and the
Toyota Corolla driver not been driving recklessly. The edge break was
not a factor in the case of the accident.
5.1.3.4.16
He opined that Malinga, confronted by
the Corolla, steered to the left and overcompensated to the right.
Sudden application of brakes would
result in the brakes locking because of the fact that it did not have
any load, and the locking
of brakes would result in tyre marks. His
conclusion was that the driver did not apply brakes. If there is
something on the road,
the sudden reaction would result in applying
brakes. He did not have enough time to do that regard to the time and
velocity equation
of determining the distance and speed. (page 165
para 17.NB. Point B and C in the sketch plan NB 17, 18, 19. The
origin of the
accident was within the red zone as indicated in the
sketch. Based on the given speed of 80 k/h they had to recalculate
and they
determined that the accident was outside the red zone and
the driver had already passed the defect when the accident occurred.
In the previous report they tried to determine the speed of the truck
and determined the speed of the truck on mathematical calculation
which indicated on more than 100km/h. The origin of the accident was
more likely in the centre of the re. d zone. The distance
between the
edge break and the red zone is 25,161 in the green zone. He surmises
that the defect being the cause of the accident
cannot besupport ed.
Page
166 NB 22
The driver of the truck swerved to the left to avoid a
collision with the third party recklessly overtaking. The edge break
was
not the likely cause of the accident. This conclusion is
consistent with his earlier conclusion that the human error was the
cause
of the accident. 80 kmh is the maximum permissible truck speed.
The conclusion that the Corolla was also contributory, because it
overtook two vehicles at an inappropriate moment resulting in the
truck driver swerving to his left to avoid a head on collision
with
the Corolla, which was the root cause of the accident. Par 24, where
the accident happened there was an embankment but if
it had happened
earlier where there was enough berth on the side and the truck driver
would have managed to control and right the
truck without any damage
to the truck. The main cause of the accident was the Corolla.
5.2
Sergeant Ranoto Evans Kwena, a police
officer of 12 years' experience, stationed at Burgersfort SAPS
testified on behalf of the
defendant:
5.2.1 that in 2011 in Decembers he
was stationed at Eerstrgeluk, Burgeford satellite police station. He
knows about the accident
of the 26 December 2011 as he was one of the
police who attended the scene. He was on patrol along the
Eesrtergeluk area when he
received a message from SAPS Radio
informing that there was an accident at R555 near Sputzkop, Rout
about 10 to 12 klm. From the
satellite. He used the RSSS from North
to South to get to the scene of the accident. On arrival at the
scene, they found a truck
written Ngululu, facing south. There was a
person lying on the grounds facing west, complaining of pain. It
turned out that he
was the driver of the truck which was severely
damaged. in the vicinity of the accident there is a bridge and a
river. The truck
was from North to south and flew over the river. On
their arrival they found people on the side and they checked the
driver who
was in pains as a result they could not take a statement
from him. They tried to talk to him but he did not respondent,
besides
complaining of the pains. They were given the driver's
licence from an unknown person, who gave them his names and stated
that
the driver worked for the Ngululu bulk Carriers . None explained
to them what happened. They had to complete an AR form indicates
the
damages on the truck and if there are any injured people. The truck
was severely damaged in front . The truck was pulling two
trailers.
The head was facing south with the two trailers still attached to the
head. The river was not deep but there were wheels'
tracks showing
where the truck traversed. The truck was not that far from the river.
The driver was taken to the hospital by ER
while he was still on the
scene . He knew the state of the road at the time because he does
duties along that road. From its looks
he thought the road was usable
and there was no problem he observed. They did not see any thing as
much as they did not check because
they focused on the driver.
Accidents do occur along that road. He does not know of any accident
caused by a pothole. From 2009
he started working in that area. R555
is a very busy road. Along that area there are lot of mines. He is
the one who opened the
docket and took it to the police station where
a CAS number was allocated and transferred to the investigators. It
is not true
that the police never attended the scene of the accident
on the day in question, as alleged. Although he was cross examined
nothing
of significance came out thereof. It is noteworthy that he
did not say anything of a pothole. If indeed there was a 30cm deep
pothole
this witness would have seen it. I can only surmise that
there was no pothole of the debt or magnitude contended by the
plaintiff.
5.3
Mr Matebutebu David Mangwane, testified
that:
5.3.1
his job is to fix roads under the
department of Works in Libombo province. In 2011 he was in the employ
of the Works department
. His work was multifaceted in road
maintenance, repairing potholes on the road resurfacing or the side
of the road if warranted.
He was supervising the task team charged
with the maintenance and repair of the road. He dispatched people to
do the investigation.
There would be daily returns prepared detailing
the type of work the
team did and
when as well as the material used. At page 17 bundles 15
is part of the weekly maintenance record. And page 18 is part of the
daily
report encompassing 5 days. Page 19 is a reporting detailing
what was done in the week and maintenance done whether it was road
surfacing or tarring of the road. At page 19 pothole indicated on
road 2.40615 denotes the volume area repaired . It is through
the
daily report they would know the quantity used. In respect of
Kilometre mark 14 and 15 there is documentation indicating that
pothole was repaired at that particular place. Page 26 bundle 5 show
on the 10/11/2011 on R169/2 sur facing, volume 22.3813. Page
22 from
11 / 11/ 2011 to 17/ 11/ 2011indicatingthat the work should have been
done over 5 days although it was done on a shorter
period. At page 19
of volume 5 is indicated that a porthole on 169/2 and surfacing is
where the depth is less than 25, they use
their mixture cat 17 a
little bit of tar and with concrete of 13,2 and fill up with mixture
to be concrete and the depth would
be below 25 ml. The issue of
feeling and surf acing are two different issues. The 25 is the
maximum. The mixture of feeling of
pothole they use gravel of quarry
and mix it with cement and tar ss60 called anionic spray, after
putting water to mix the mixture.
They leave a gap to 25 mm on which
they use surfacing. He was referred to page 22He was refereed to page
61 bundle 5 he said that
it could be an edge break and not
necessarily a pothole. He did see the section in 2013. He noticed the
material used to repair
the edge break on that road. The material
differs in colour to the one they use. He does not know who repaired
the road. Bundle
13 page 18 the material used seems to differ to the
material used on photo 61 bundle 5. On page 19 his team repaired this
portion
of the road in 2013.Wlth regard to the allegation that on the
2011 December there was a pothole of 30cm depth, his response was
not
possible because in 2011 they worked between klm 169/1and 2 and 7
they worked on that road he knows this through daily returns.
He
denies that there was an edge break when he passed there , as he saw
it going to part 7 and 14. He knows because during that
year he had
no shortage of staff. There were people who were on tenders and P169
was not one of the trouble roads. They did visual
inspection on that
road, it was himself and his foreman. It was around 16 November 2011
and they closed for Christmas. He denies
that the depth was 30
centimeter. On 1/11/2011 his team had gone to do patch work at Pl69/7
and their mote is that if they had
not completed their work they did
not close. If there was such 30 mm depth they would not have closed
because it would' present
a dangerous situation to road users. He
does not know that there were no road signs because the road was not
a danger to road users.
Returned to work the 1 January of 2012. He is
not aware of private companies or individuals fixing the road in that
area. It was
only the departmental team working on road P169/2.
5.3.2
Under cross examination Mr Mangwane,
testified that he dealt with the quantification and recording of the
yearly business plan regarding
the repairs which were needed in the
year 2011, which Was however not before court. There are also daily
repairs plan showing the
maintenance done. These were also not before
court . These would have shown what work and repair was done on road
P169/2 in 2011.
He conceded that what he testified about in court
were weekly repairs documentation. He conceded that the area where
the accident
happened was on road p169/2 klm 13 and 14. He was
referred to section 5 page 61. It was pointed out to him that the
area depicted
in picture at 61 is near the place where the accident
occurred. He conceded that he did not see this place on the day of
the accident
on 26 December 2011. He would however not agree to that
proposition, but conceded that he was not there on the day when the
accident
occurred. On 16 December 2011 they closed for the holidays.
He conceded having said that he did not believe that the depth of the
road defect was on the 26 December 2011 was 30 centimetre because (1)
the department was not short stuffed and secondly the road
p169/2
then did not need any maintenance or repair. It was pointed out to
him that this photo on page 61 was taken 4 days after
the accident.
It was pointed out that the road defect was measured 2 Days after the
accident as 2.8 meters long and 0.9m into the
road. He does not agree
that the road needed repair, because looking on the photo he is
unable to determine how long the defect
is. He conceded that based on
the measurements given the road needed to be repaired. He said that
to him it does not seem that
there was any work done on the defect at
page 61. He said that looking on the picture the material shown there
is the base material
and what is not there is the top of the road
material which he does not believe that it was 30cmm deep. According
to him there
was no repair done on that defect shown on photo at page
61. He was referred to photo at page 126 volume 6 and volume 30 which
photo was taken ...He conceded that this is not the work of the
departments of Works. He conceded that it must have been someone
else
who did the repair work, which is not bound to the necessary repair
work required. At page 19 is the repair done by the department
while
they were doing the resurfacing . The picture of December 2011 shows
no repairs done on the road defect, a picture taken
in July 2012
shows no repair done by the department but someone else and picture
taken in March 2013 shows repair done by the department.
On photo 18
there are certain things which shows material next to the defect and
which is white in colour, this material is not
there, photo at page
61 what is not there is the top layer; at page 18 the repair done
shows that there is something bad done,
and at page 19 the department
did the repair road as the defect was too deep to cause accident and
they repaired. The road P169/2
is plus or minus 20 klm. He gave
evidence regarding repair work done in 2011, on road P169/2-7. Repair
done on 7 was to do surfacing
and filling of a porthole. There was no
work done on 2 because there was no need. There is difference between
edge break and pothole,
but the repaid is not much different from the
filling of a pothole. The edge break is at the edge of the tarred
road. When they
repair the edge road they used steel edge so that it
should be straight and use the mixture which they then compact. They
balance
the edge steel so that it should not move and fill in the
mixture. Pothole is normally found inside the road. They use the same
material but they first trim the pothole At page 61 the defect is on
the edge of the road. Page 41 of vs reads Road maintenance
2011/2012page 42 shows edge break 9.85 m3 no work was done. Critical
conditions of roads that were mentioned below forced them
to
sacrifice days for doing edge break by doing pothole repairs and
surfacing for at page 43 is shown p169/2 showing road in critical
condition, but the witness does
not agree with this. Surfacing is not
that dangerous to road users. Page 46 and 47 refers to repair for
2011/2012 at 47 shows that
repair was done on p169/2. He believed
that his team would fix a pothole 30 cm deep if they had gone past
it, so he believes.
5.3.3
Under re-examination, Magwane was
referred at page 43, he said that inside the bracket were potholes
fixed or repaired, and (surfacing
= 02537, p116/1, p169/2 and 02484)
. In respect of p61 all that was missing was a layer and that portion
was not dangerous to road
users because the missing top layer is not
more than 30 mml. The white substance around the defect can be seen
at page 61 VS.He
is not sure as to the source of this white material.
Material used must be selected material from a quarry, to be mixed
with cement
and lime and compacted. On this road two type of stones
were used. In November 2011 repair was done on 169p to 7 was done.
His
team would have fixed any repair work needed.
5.3.4 In my
view, Magwane was an impressive witness. I accept his evidence that
before they closed for the Christmas
holiday, they repaired the road
as he explained. I accept his evidence that in respect of the
relevant portion of the road, it
was not dangerous to road users.
This evidence negates the plaintiff's evidence that there was a
pothole of 30 centimetre depth
at the relevant portion of the road.
[6]
In
the matter of
Minister of Safety and
Security v Duivenboden
2002 (6) SA
431(SCA)
at 441E-F Nugent J held that; "Negligence, ... is not
inherently unlawful--- it is unlawful, and thus actionable, only if
it occurs in circumstances that the law recognises as making it
unlawful. Where the circumstance manifests itself in a positive
act
that causes physical harm, it is presumed as unlawful, but that is
not so in the case of a negligent omission. A negligent
omission is
unlawful only if it occurs in circumstances that the law regarded as
sufficient to give rise to a legal duty to avoid
negligently causing
harm.... Where the law recognises the existences of legal duty it
does not follow that an omission will necessarily
attract
liability--- it will attract liability only if the omission was also
culpable as determined by the application of the separate
test that
has consistently been applied by this court in
Kruger
v Coetzee,
namely whether a
reasonable person in the position of the defendant would not only
have foreseen the harm but would have acted to
avert it.....
In
Minister van Polisie v Ewets
1975 (3) SA 590
(A) at 570A-B it was held by this Court that a
negligent omission will be regarded as unlawful conduct when the
circumstances of
the case are of such a nature that the omission not
only evokes moral indignation but the 'legal convictions of the
community require
that it should be regarded as unlawful. ... The
inquiry in that regard is a broad one in which the relevant
circumstances must
be brought to account. In
Knop v Johannesburg
City Council
1995 (2) SA 1
(A) at 27G-I Botha JA held that the
following well-known passage from
Fleming The Law of Torts
4th
ed at 136 correctly sets out the general nature of the enquiry:
" 'In
short, recognition of a duty of care is the outcome of value
judgment, that the plaintiff's invaded interest is deemed
worthy of
legal protection against negligent interference by conduct of the
kind alleged against the defendant. In the decision
whether or not
there is a duty, many factors interplay; the hand of history, our
ideas of morals and justice, the convenience of
administering the
rule and our social ideas as to where the loss should fall. Hence,
the incidence and extent of duties are liable
to adjustment in the
light of the constant shifts and changes in community attitudes.'
The
inquiry encompasses the application of the general criterion of
reasonableness, having regard to the legal conviction of the
community as assessed by the Court."
In the matter of
Sea Havers
Corporation v Duncan Dock Cold Storage
2000 (1) SA 827
(SCA) at
828C-829A-B. it was held that: whether what had been labelled as the
relative theory of negligence (articulated in
Mukheiber and
Another v Roath and Another
1999 (3) SA 1065
(SCA) at 1077E-F) or
what had been labelled as the absolute or abstract theory of
negligence(articulated in
Kruger v Coetzee
1966(2) SA 428 at
30E-F) was adopted, it should not be overlooked that,
ultimately,
the true criterion for determining negligence was whether , in
the particular circumstances, the conduct complained of fell short
of
the standard of the reasonable person.
Further, that, whichever formula
were adopted, there should always be a measure of flexibility to
accommodate 'grey area' cases;
the need for various limitations to
the broadness of the enquiry where circumstances so demanded had been
long acknowledged. It
had thus been recognised that , while the
precise or exact manner in which harm had occurred need not have been
foreseeable, the
general manner of its occurrence had to have been
reasonably foreseeable."
[7]
The
version of the plaintiff, can be summed up as follows: that the cause
of the accident, was that the truck drove into 30 cm deep
pothole,
thus causing the steering wheel of the truck to lock eventuating in
the truck going out of control and veering to its
right and off the
road to its rest place. That the defendant was negligent in not
ensuring that the pothole or road defect was
repaired to avoid any
accident.
[8]
In
so far as the depth of the pothole is concerned, I have not been
persuaded by the plaintiffs witnesses in that regard. It brooks
no
argument that there were no photos of the alleged pothole taken on
the relevant day, notwithstanding the fact that some of the
plaintiff's witness attended to the scene of the accident on the
relevant day, or the 26 December but failed to take photos of
the
alleged pothole, although they took photos of the truck. It is
mindboggling that the very alleged cause of the truck careening
off
the, road, as the result of the alleged pothole, would be neglected.
This can only happen when such alleged pothole did not
exist.
[9]
The
parties are nonetheless
ad idem
that
there was on the relevant road a defect . Malinga, on his own
evidence, he was meandering on the road while travelling at an
excessive speed. The expert witnesses calculated the speed at
100km/h, which was too excessive in the circumstances. The evidence
of Van Vuuren is cogent and lucid, and is to be preferred than that
of his counterpart Bardenhorst, who I have already critiqued
earlier.
According to Van Vurren, the root cause of the accident, was the
Corrola, which overtook at an inappropriate moment, unleashing
a
chain of events, with Malinga, trying to avoid a head on collision
with the Corolla, by swerving to his left and overcorrect
and swung
to his right in the process his vehicle careening over the
embankment. Malinga in my view was also negligent in ravelling
at an
excessive speed in the prevailing circumstances as Van Vuuren
testified inter alia, that the road defect was not the cause
of the
accident. The evidence of the defendant's expert witness Van Vuuren
is in my view cogent and persuasive and to be preferred
than that of
the plaintiff's expert witness Bardenhorst . I have earlier expressed
myself about the evidence of the plaintiff's
witnesses, and need no
repetition.
[10]
From the authorities referred to herein
above, accepting that there was a road defect on the relevant portion
of the road, its presence
does not necessarily attribute negligence
on the part of the defendant. The evidence of Mangwane demonstrate
that repair work was
done along that road. It could not have been
expected of the defendant to have foreseen that the Plaintiff's
driver, would have
in the circustmtances that prevailed at that
particular moment, would have travelled at an excessive speed, when
he was familiar
with the relevant road, and would have been
confronted with a sudden emergency, and would have overcorrected his
path of travel
and lost control of hs vehicle and careened off the
embankment. On the contrary, the evidence of Mamgwana demonstrated
that the
defendant had taken sufficient reasonable steps to effect
repairs on the relevant road. In the premises, I find that the road
defect
was not the cause of the accident. I find that the plaintiff
has not proven any negligence on the part of the defendant. It stands
to reason that the plaintiff's case therefore stands to be dismissed.
[11]
It is trite that costs follow the event.
Both parties engaged the services of senior counsel, justifiable so
regard being had to
the nature and quantum of the claim. The
defendant should not be put out of pocket, as the result it is
reasonable and fair that
the plaintiff should be ordered to pay the
plaintiff's costs inclusive those of engaging senior counsel, where
applicable.
[12]
In the result the plaintiff's claim is
dismissed with costs, which costs to include,
inter
alia,
the cost of employing the
services of senior counsel where applicable.
N.M.
MAVUNDLA
JUDGE
OF THE HIGH COURT
DATE
OF JUDGMEN
:
04/04/2019
PLAINTIFFS'
S ADV
:
ADV H.
P. PRETORIUS
INSTRUCTED
BY
:
NORTON
ROSE FULBRIGHT SOUTH
AFRICA INC.
DEFENDANTS'
ADV :
ADV MAKHUBELA S.C & ADV PHASWANE
INSTRUCTED
BY
:
STATE
ATTORNEYS (PRETORIA)
[1]
1965 (2) SA 706
(AD) at 711E-G.
E
[2]
2014 (2) ALL SAS 134
[3]
2010 (5) SA 203
(W) at 211EE-212B.
[4]
2007(6) (ECO) 389 at p 395 par [18].