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[2019] ZAGPPHC 955
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P O v Road Accident Fund (53091/17) [2019] ZAGPPHC 955 (4 July 2019)
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
CASE
NO: 53091/17
In
the matter between:
P
O
Plaintiff
and
ROAD
ACCIDENT
FUND
Defendant
JUDGMENT
MAKHUVELEJ
lntroductjon
[1]
Philippus Daniel Riekert Opperman, an adult male, who I shall
henceforth refer to as 'the plaintiff or 'Mr Opperman' issued
summons
against the Road Accident Fund, who I shall henceforth refer to the
defendant which is a statutory body established In
terms of the
Road
Accident Fund Act, 56 of 1996
for payment of compensation for damages
suffered by him as a result of a collission that occurred on 12
August 2016 at the intersection
of of Viljoen and First Streets,
Krugersdorp, Gauteng Province.
[2]
It is common cause that at the time of the collision, the plaintiff
was riding on his motor cycle with registration letters
and numbers
C[…] GP and that he collided with a vehicle bearing
registration letters and numbers J[…] GP that was
driven by Ms
Bentle Makhadzl Netshisaulu, who I shall henceforth refer to as the
'insured driver' or 'Ms Netshisaulu.
[3]
The parties advised me at the commencement of the trial that they had
agreed in terms of Rule 33(4) of the Uniform Rules of
Court to
separate the merits and the quantum. I accordingly granted an order
in accordance with their agreement The trial proceed
on the merits
only.
[4]
The relevant bundles that both parties referred to now and again
during the trial were the pleadings, the photo album as well
as the
Accident Report form (AR form).
The
particulars of claim
[5]
In paragraph 5 of his particulars of claim, the plaintiff alleged
that:
"The sole cause
of the accident was negligence of the insured driver, which was
negligent in one of the following respects:
5.1
The
insured driver:
5.1.1
failed
to keep a proper and/or adequate look-out.
5.1.2
Failed
to keep the motor vehicle he was driving under proper control;
5.1.3
Failed
to ensure that the motor vehicle was road worthy;
5.1.4
failed
to pay due regard to other- road users and more specifically that of
the plaintiff, by entering an Intersection at a dangerous
and
Inopportune moment when the Plaintiff had right of way and by
colliding with the motor cycle of which the Pa/Int/ff was the
driver;
5.1.5
failed
to pay due regard to the prevailing conditions on the road he was
traveling on;
5.1.6
failed
to pay due regard to the rights, safety and wellbeing of other road
users and more specifically that of the Plaintiff;
5.1.7
failed
to prevent the accident when, by the exercise of due and reasonable
care he could and should have done so.
5.1.8
failed
to ensure that the motor vehicle Is lo good working order and that
the motor vehicle's tyres and brakes are in good order
5.1.9
failed
to apply the brakes of the motor vehicle he was travelling in
sufficiently atlternatively timeously further alternatively
at all.
5.1.10
failed
to prevent the collission when he could have done so with exersicing
of reasonable care and skill
5.1.11
drove
too fast given the prevailing circumstances.
5.1.12
failed
to observe and heed to the traffic signs regulating the flow of
traffic in an intersection.
[6]
Although the Insured driver is referred to as a 'he' in the
particulars of claim, it is common cause that the plaintiff collided
with a vehicle that was being driven by a woman, therefore a 'she'.
[7]
In its plea, the defendant denied the collision and liability. In the
alternative, it pleaded that the accident was caused by
the sole
negligence of the plaintiff, further alternatively that the plaintiff
contributed to the causation of the accident.
[8]
Particulars of the plaintiffs alleged negligence or contribution to
the causation of the accident are that:
5.2.1
he
failed to keep a proper lookout;
5.2.2
he
travelled at a speed which was excessiove under the circumstances;
5.2.3
he
failed to avoid the collision when, by taking reasonable and proper
care, he both could and should have doene
so;
5.2.4
he
failed to apply brakes of the insured motor cycle at all,
alternatively timeously and/or sufficiently”
Evidence
Plaintiff
[9]
The plaintiff testified and did not call any witnesses.
[10]
In his evidence in chief, plaintiff testified that:
[10.1] On the day in
question at about 07:30 he was on his way to work and was riding his
motor cycle. He was travelling from east
to western direction of
Viljoen Street in Krugersdorp He emphasized the fact that he had a
right of way over traffic travelling
from First Street, which is an
intersecting street from south to north and controlled by a stop
sign.
[10.2] The weather was
clear and he could see his way. He had been using the same road for
about one to two years, and had been
travelling by this particular
motor cycle for about one and a half year. He knows all the traffic
signs and marks along that road.
[10.3] The speed limit is
60 Km per hour and he was travelling exactly at that speed. He knows
the speed he was travelling at because
it was showing on the
speedometer.
[10.4] The intersection
of Vlljoen and First Streets is in e a residential area.
[10.5] On his side of
travel the road was not busy, however. the oncoming traffic from the
western to eastern direction where he
was coming from was heavier
because many people travel to Johannesburg for work at that time of
the day.
[10.6] He was in
possession of a Learner Driving Licence at the time, but he was
entitled to drive alone.
[10.7] He was wearing a
black pair of trousers, black shoes with steel points, a white
helmet, black waistcoat which had the name
of his Motor Cycle club
called 'Xcalibur' emblazoned in big (size 72) white font.
[10.8] His motor cycle
was visible because it had red and blue colours, big headlamp which
was permanently on. He checks it every
morning to ensure that It is
still functional.
[10.9] He saw the insured
motor vehicle when he was approaching the First Street intersection
when he was about 10 metres away It
was on his left hand side, south
to eastern direction and it was moving slowly through the stop sign.
The driver was driving over
the stop street.
[10.10] When he was about
5 metres from her, he realized that she was not going to adhere to
the stop sign because she had moved
from it. He swerved to the right
in front
of
her to avoid the collision. It was too late.
[10.11] The collision
occurred on his lane of travel.
[10.12] On why he did not
swerve to the left or take any other evasive actions, the plaintiff
explained that there was loose sand
on his left and his motor cycle
was going to skid and he would have collided with the pallisade
fence. Swerving to the right was
the only evasive action he could
take. He did not apply brakes because he thought that she would stop
and that she saw him. Furthermore,
applying sudden brakes or
aggressive swerving would have caused the motor cycle to 'slipper'
under him, causing him to fall.
[10.13] On his driving
experience, he testified that he had been using the said motor cycle
to work for about one and a half years.
He also attended a driving
course called 'Road Captains' just four months before the collision.
This is a sort of a defensive driving
course.
[10.4] Asked what he
thought the insured driver's intention was when she crossed the stop
sign, the plaintiff explained that she
appeared like she was about to
turn Into Viljoen street, where he was coming from. The street has
two lanes from west to eastern
direction whereas where he was coming
from (east to west) it has one lane.
[10.5] After the
collision he landed on the lane of travel of oncoming vehicles. He
was severely injured, but fully conscious. The
insured driver ran to
him. She aplogized and told him that she did not see him as she was
busy talking on the phone. He did not
see if she had any passenger.
[10.6] His motor cycle
was damaged on the right handside. The right part of the blue panel
was ripped off. The insured motor vehicle
was damaged on its entire
front part, The number plate also fell off
[11]
The plaintiff also identified the photos depicting certain areas in
the scene of the collision such as the direction of the
respective
drivers, where his motor cycle landed, where the insured driver's
vehicle ended as well as the damage to their respective
motors.
I
will deal with the photographic evidence and the accident report
separately.
[12]
Under cross examination,
[12.1] The plaintiff
maintained that the learners licence authorised him to drive alone
and it was valid for two years, which had
not expired at the time. He
did not give it to the police at the scene because he was still being
attended by ambulance people
and his licence was in the bag He gave
them his identity number. The learners licence got lost in hospital.
[12.2] His opinion about
the insured driver's intention to turn right is informed by the fact
that he saw her indicators flashing
to turn to the right.
[12.3] He did not reduce
speed after seeing her indicate and passing the stop sign because at
that time she was not yet on his lane
of travel to block his way but
she was already over the stop sign.
[12.4] There is a
distance of about one (1) metre between the stop sign and the corner
of the intersection.
[12.5] He confirmed the
damage on the insured driver's vehicle and denied that the extent of
the damage was due to excessive speed
on his part.
[12.6] There was a motor
vehicle in front of him before he collided with the insured driver.
All he remembers is that It turned
to the left, where the insured
driver was coming from.
[13]
This was the end of the cross-examination.
[14]
Under re-examination,
he confirmed photograph 17 that depicted
the stop sign that the insured driver had to adhere to. He estimated
the distance between
the stop sign and where the motor cycle is
standing as more than two (2) meters.
[15]
By agreement between the parties, the Photo Bundle depicting photos
marked 14 to 25 was handed in as Exhibit A. I will address
the
photographic evidence later on.
[17]
The plaintiff closed his case.
Defendant
[18]
The insured driver, Ms Bontle Makhadzi Netshisaulu ('Ms Netshisaulu)
testified on behalf of the defendant.
[18.1] She was driving
her younger sister to school in her father's motor vehicle, an Opel
Astra model. She was travelling along
First Street, from south to
northern direction at a speed of 60 kilometers per hour.
[18.2] She uses that road
on a daily basis and on this particular day the weather condition was
clear and visibility was good.
[18.3] When she reached
the intersection of First and Viljoen Streets, she stopped behind a
vehicle that had also stopped.
[18.4] There were no
vehicles coming from the western direction of Viljoen Street. There
was a vehicle from the eastern direction
that was indicating to turn
left into First Street where she had stopped. After it turned, she
moved in slowly as there were no
other vehicles.
[18.4] She did not see
the plaintiffs motor cycle and she believes that he was travelling
above 60 km per hour because of the impact
on her vehicle and the
fact that he flew high and landed in a different direction to where
the motor cycle rested after the collision.
[18 5] The plaintiffs
motor cycle hit the right fender of her vehicle. Her vehicle stopped
at the point of impact. It simply switched
off.
[18.6] After the
collision she went to the plaintiff and asked him if he was well but
he did not respond though he was conscious.
A group of people
gathered at the scene. They kept on telling her to get away from him,
and she did. $he denied the plaintiffs
version that she apologized to
him and that she told him the reason she did not see him is because
she was on the phone. She was
taking her sister to school and she
could not have been on the phone and drive at the same time.
[18.7] She denied the
plaintiffs version that she did not stop at the stop sign.
[18.8] This concluded the
defendant's evidence in chief.
[19]
Under cross examination, she confirmed that,
[19.1] in the mornings
there was a busy traffic flow at Viljoen Street compared to First
Street, however, according to her by 7:30
it has reached its peak and
no longer busy.
[19.2] there is a solid
line in Viljoen Street separating the two lanes and that if one is
traveling from west to east there are
two lanes whereas there is only
one lane for traffic traveling from east to west.
[19.3] the collision took
place at a residential area.
[19.4] There were no
vehicles coming from the western direction of Viljoen street and that
there was one from the eastern direction.
[20]
She did not report the accident but the police came to the scene
within a very short space of time, about 10 to 20 minutes.
She
confirmed what was written in the Accident Report form, save for what
she indicated as an omission relating to the presence
of a motor
vehicle that was turning left into First Street where she had
stopped. The collisision between her vehicle and the motor
cycle
happened not long after this vehicle had turned because the driver
came to her and enquired if she was well.
[21]
lt was put to her that the version about the presence of a motor
vehicle that was turning into her left side of lane of travel
was not
put to the plaintiff by her counsel during cross examination.
[22]
She denied a suggestion that taking into account the fact that
Viljoen street was busy and that it was a peak traffic ho1,.1r,
this
made her to enter the intersection in a haste.
[23]
She also denied a suggestion that because of the busy nature of the
road (Viljoen street}. it was more difficult for her to
execute a
right turn , which would have required her to look out for traffic
from both directions, unlike if she were to turn to
her left where
she had to worry about traffic from the eastern direction only.
[23.1] She was emphatic
that turning to the right was equally easy as turning to the left.
[24]
She denied the plaintiff's version that traffic was heavier or busy
from the western direction of Viljoen street.
[24.1] She referred to
the photo that showed traffic from west to east that had been stopped
after the collision to argue that it
was not heavy at that time.
[24.2] She also testified
that although traffic was busy in that area in the mornings, by that
time it was no longer busy because
there are two primary schools in
the vicinity, 'Monans' and 'Sulas' which start at 07:30. Traffic is
busier before schools start
because parents drop off children. By the
time the collision occurred It was no longer as busy as plaintiff had
made it out to
be.
[25]
It was put to her that this version about schools and likely peak or
busy hours of traffic was not put to the plaintiff during
cross
examination.
[26]
She confirmed the plaintiffs attire but denied that he was wearing a
white (or black) waistcoat with black or white signage.
According to
her, the plaintiff was wearing shorts and waistcoat but it had no
white signage.
He
was also wearing construction or safety boots but she did not see the
steel points. She did not see the motor cycle's headlamp
that the
plaintiff testified about. Even if the motor cycle had such a head
lamp, it is possible that he did not put it on.
[26]
It was put to her that her version of what the plaintiff was wearing
as well as the accessories of the motor cycle was not
put to the
plaintiff during cross examination.
[27]
She denied the plaintiffs evidence that when he first saw her, 10
metres away from the intersection of First street, her vehicle
was
not completely stationary but was moving slowly into the
intersection.
She
was emphatic that she stopped, fully, at the stop sign.
[28]
It was also put to her that the plaintiff first saw her when he was
about five metres away. Her response was that he could
have slowed
down.
[29]
She denied the plaintiffs verslon that there was loose sand on the
left side of the road and this is the reason he did not
swerve to the
left or applied brakes.
[29.1] According to Ms
Netshisaulu, the alleged sand, in photo 17 is behind the vehicle and
if he had swerved to the left he would
not even be near it.
[30]
It was put to her that her version about the state of the road or
obstructions that the plaintiff testified about was not put
to the
him during cross examination.
[31]
She agreed with the plaintiff's version that the fallen blue panel
depicted in photo 24 is part of the motor cycle.
[32]
She denied the plaintiff's version that the impact was more on the
left back of the motor cycle.
[32.1] According to her,
the motor cycle hit her with its front part and went through the
whole front of the vehicle. The
blue panel probably came off as
he drove through the whole front of the vehicle.
[33]
It was put to her that her version of how the accident occurred and
the likely cause of the damage was not properly ventilated
with the
plaintiff during cross examination
[34]
She confirmed that the ambulances had parked facing oncoming vehicles
to prevent them from running over him where he had landed.
[35]
She denied a suggestion that photo 20 Is evidence or proof that
traffic is busier from the western to eastern direction of
Viljoen
street.
[35.1] According to her,
there are robots (traffic lights) in both west and eastern direction
of Viljoen street. The robots from
west could have opened, and this
is the reason there appears to be more vehicles in photo 20.
[36]
She disagreed with the plaintiff's evidence that she apologized to
him and that she told him that she was busy on the phone
and this is
the reason she did not see him.
[37]
It was put to her that her version that the group of people gathered
at the scene had told her to go away was not ventilated
with the
plaintiff during his cross examination.
[36 1] Her response to
this was that she did not want to use 'a race card', but the area in
which the collision occurred is 'Afrikaner’
and the lady that
came first at the scene told her to go away.
[38]
In re-examination
she confirmed that she heard the impact on
her vehicle but did not see the motorcycle as it approached.
[39]
She said 'sorry' to the plaintiff because sha was concerned that the
accident happened, not that she caused it.
[40]
On being asked by the court, she testified that;
[40.1] the distance
between the stop sign and the intersection is about 2 metres.
[40.2] the distance
between the stop sign and the motor cycle (photo 17) is less than 2
metres.
[40.3] She does not know
who took the photos in the bundle before court.
[40.4] there is a traffic
light (robot) about 500 metres away from the eastern direction of
Viljoen street where the plaintiff was
coming from.
[40.5] there is a traffic
light (robot) about 800 metres away from the western direction of
Viljoen street. There is also a 'crescent'
between the robot and the
intersection of First street.
[40.6] her vehicle did
not move after it was hit. It switched off. She marked the point of
impact in photo 17.
[40.7] the distance
between the stop sign and the point of impact is 200 metres. The
parties agreed that this estimate cannot be
correct.
After
she illustrated with the distances in court, it was agreed that the
correct estimation is about 5 to 6 metres.
[41]
There were no questions from the both counsel on issues arising from
the court's questions.
[42]
The defendant closed its case.
Submissions
Plaintiff
[43]
The written heads of argument in the main dealt with the summary of
the evidence tendered, the common cause and disputed issues,
the
proven negligence, whether there is contributory negligence as well
as the failure by counsel for the defendant to put the
insured
driver's version to the witness (the plaintiff) during cross
examination.
[44]
On the law, the counsel for the plaintiff referred to and relied on
the contentions made by the plaintiffs attorneys in a letter
that was
addressed to the defendant's attorneys in which they attached a copy
of the Eastern Cape High Court judgment of Pickering
J in the matter
of Deysel v Road Accident Fund, case number 213 /2007
[1]
(the Deysel judgment).
[45]
The gist of the plaintiffs case with regard to negligence is that the
insured driver's version that she did not see him and
that the
plaintiff had a right of way is proof that the collission was caused
soley by her negligence.
[46]
On whether he contributed to the collision, the plaintiff's
submission is that the court should accept his evidence that he
was
driving at a speed of 60 kilometeres per hour and reject the insured
version that he was most likely speeding because she is
not an expert
witness and cannot express an opinion In fact, she is not entitled to
say anything about his conduct because she
did not see him.
Furthermore, he took evasive action to avoid the collision and there
is nothing else he could have done as the
suggested actions would not
have prevented the collision but caused him harm.
[47]
On the law, I was told that the circumstances in the Deysel judgment
are actually similar to the matter before me. I was specifically
referred to certain paragraphs. Unfortunately the paragraphs are not
numbered and we had to refer to pages of the judgment, namely,
10,
13, and 16 The essence of the issues arising from this judgment is
that:
[47.1] The approach to be
adopted to resolve Irreconcilable and mutually destructive versions.
[47.2] The credibility
findings, particularly the fact that the insured driver's evidence
and that of his witness were found to
be confusing and utterly
improbable and furthermore the rejection of the police plan as it was
unrelieable and instead preferring
the direct evidence of what
happened. The case was decided on the version of the plaintiff.
[47.3] The rejection of
mathematical calculations.
[48]
On the learners licence controversy, Ms Scholz submitted that it Is
not a statutory requirement and that the defendant has
not proved the
causal link between driving with a learners licence and the accident.
I
agree with this submission.
Defendant
[49]
Replying to
the plaintiffs submissions Mr Sioga argued that having a right of way
does not mean that one has absolute right. A driver
must still
lookout for other traffic. He referred to cases cited in the matter
of
Mmeti
v RAF
[2]
at paragraphs 41 and 42 for this submission.
[50]
In his own heads of argument, Mr Sioga addressed evasive actions that
the plaintiff should have taken, but failed to take to
avoid the
collision.
[51]
He argued that the facts of the matter before me are distinguishable
from the facts in the Deysel judgment that the plaintiff
seeks to
rely on because in the latter, the driver of the Mazda started to
move when he was 6 metres away, but he applied brakes
whereas in this
matter, the plaintiff (Mr Opperman) saw that the Insured driver would
not stop at the stop sign when he was 10
metres away but continued to
drive ahead. He anticipated that she would not stop.
[52]
On the
omission to put the insured driver's version to the plaintiff during
cross examination, Mr Sioga referred to and handed up
a judgment of
De Villiers AJ In this division in the matter of GN Chipwatali v RAF
(Case No. 6629/2015)
[3]
. This is
a judgment on application for leave to appeal. He did not refer to
the main judgment or at least state what has happened
to the appeal
because leave was granted on 8 June 2017, two years ago. De Villiers
AJ granted leave to appeal her decision, on
the basis that her
approach to the issue of whether she erred by relying on the
probabilities in the evidence after ruling out
an objection to the
evidence of the insured driver who was called to testify under
circumstances where the version was not put
to the plaintiff.
[53]
De Villiers AJ referred to authorities that appear to support her
decision in the main action but she felt that probably her
approach
was wrong, hence the granting of the leave to appeal. In her main
judgment she accepted the insured driver's evidence
because there was
no prejudice against the plaintiff and also the fact that putting the
version to the plaintiff would not have
changed anything.
[54]
During argument, Mr Sioga took the blame for failing to put the
insured driver's version to the plaintiff. Apparently he did
not
consult with her properly because there was no firm confirmation that
she was going to attend the trial. He took time to consult
during
breaks as the trial was proceeding.
[55]
On contributory negligence, Mr Sioga submitted that the apportionment
sholud be 50%.
Accident
Report (AR form)
[56]
This form, duly completed by a police officer who attended the scene
of the accident was amongst the documents that were admitted
into
evidence by agreement between the parties. However, no evidence was
led on issues arising from it, except when counsel for
the plaintiff
asked the insured driver to confirm that she gave the police officer
the information recorded under
'brief description
of
the
accident
'.
[57]
Drivers A and B refer to the Insured driver and the plaintiff
respectively. The statement reads as follows:
'As alleged by driver
A she approach the stop sign then she turned right, she didn't see
the motor cycle she saw the motorcycle
late and she was already
entered the road.
As
alleged by driver B he was traveling straight from East to West.
Suddenly the car bumped him'.
[58]
I have already indicated that during cross examination Ms Netshisaulu
(the insured driver) did admit that she told the police
officer what
Is attributed to her in this form, but according to her this is not
all. The police officer omitted information about
the presence of a
vehicle that was turning left into her direction of travel. She
executed a right turn after this vehicle had
turned.
[59]
It can also be noted here that under Driving licence it was recorded
that the plaintiff had 'none'.
[60]
It was also recorded that both drivers were traveling on their
correct road lane before the accident and that A was turning
to right
,whereas B was traveling straight.
[61]
The damage on A's vehicle was indicated as right front, left front,
front centre and the bonnet. The damage In B's motorcycle
is
indicated as 'multiple'.
[62]
The accident was described as a 'sideswipe opposite direction'
[63]
The 'Accident Sketch ' shows the insured vehicle a bit further from
the stop sign and standing In the middle of the solid line,
In a
turning position. It sort of straddled the solid line, partly on the
inner lane of the western direction and the other part
on the the
lane of travel of the plaintiff (east to west).
[64]
The plaintiff's motor cycle is shown to have landed on the northern
side of First Street. on the edge of the road.
[65]
As testified by the both drivers, Viljoen street is indicated as
having two lanes from the western to eastern direction and
one lane
from east to west.
[66]
There are no points indicated or measurements of basic distances such
as (a) the point of Impact, (b) the distance from the
stop sign
regulating traffic on the southern side of the Intersection where the
insured driver was coming from to the point of
impact, {c) the point
of impact to where the vehicle and the motorcyle rested, (d) distance
estimated by the plaintiff with regard
to where he was when he first
saw the Insured driver.
[67]
All these issues that I have noted from the Accident Report Form are
material because as it is often stated, the accident scene
speaks for
itself and form a starting point for evaluation of the parties'
respective versions.
[68]
The
assistance of police officers who attend scenes of road accident 1s
very important and has been emphasized by our courts more
often. In
the matter of
Daly
v Road Accident Fund
[4]
,
Rampai J was faced with a situation where the police officer and
expert witness had failed to take photographs of what was alleged
to
have been a big oil spill. He referred to the matter of Guardian
Royal Exchange Assurance Rhodesia v Jeti
[5]
where Baron JA said:
“’
'This
Court has said repeatedly that it is of the utmost importance for
investigating officers to examine the
scene
of an accident
with meticulous care and to place before the Court the fullest
possible tactual information, including accurate measurements."
[69]
In the matter before me, and as far as the both drivers' evidence
corroborate the AR form, even without measurements, it does
offer
some assistance in that it confirms, where the parties were in
relation to each other when the accident happened. It is unfortunate
that parties often underestimate the value of accident reconstruction
evidence.
[69
1] I am alive to the fact that in the Deysel judgment that the
plaintiff relies on, the expert and police officers' evidence
including the sketch plan were declared as unreliable . The reasons
were clearly stated, as such, one cannot regard those reasons
as a
crystalyzed principle that expert or police drawings of accident
scene is irrelevant. It depends on the facts and how the
evidence was
gathered and presented Of Importance, the Deysel matter was decided
on the factual testimony of the witnesses, which
the Judge found to
be more compelling than that of the reconstruction expert and police
drawings The reason the expert evidence
was discarded is that the
initial calculations were based on a wrong assumption that the
witness in the Mazda was a passenger In
the motor cycle and
furthermore, the calculations of distances and certain points in t11e
sketch plan were found to be factually
incorrect.
Photographic evidence
[70]
At my request photo 16 was marked to illustrate the direction in
which the parties were traveling from It accords with the
Accident
Sketch and the narrative I have given above with regard to the
position of the insured vehicle and motor cycle after the
collision.
The nose (front part) of the insured vehicle is standing on the solid
line separating the traffic from both directions
It protruded Into
the oncoming inner lane Almost the whole body has actually covered
the entire lane of travel from east to western
direction and it is
outside the stop sign 'box'
[71]
A clearer picture of where the insured driver came to a rest 1s in
photos 17, 18, 2·1 and 25. The stop sign board and
the ground
written stop sign are far behind, and looking at the road markings,
the vehicle is standing across the solid line.
[72]
Photo 21 shows where the plaintiffs mo tor cycle came to a rest This
is on the !3dge of the northern part of First. Street.
Tl1e photo
also shows a completely damaged front part of the insured vehicle
which is standing in a turning position. The damage
on the insured
vehicle is also depicted in photos 15 and 25. Photo 24 shows the
fallen number plate.
[73]
There is no photo showing where the plaintiff landed but it is common
cause that he landed on the oncoming lane.
[74]
Photo 23 depicts the damage on the motorcycle. The right part of the
panel has fallen (broken) off. Other than this, the other
parts all
still there and intact. The damage is difficult to tell by looking at
the photos.
Issues
for decision
[75]
Both counsel believe that their witnesses' evidence met the required
standard to discharge the respective burden of proof and
onus. It is
clear from the evidence led that there are material disputes with
regard to how the collision occurred. In this regard,
the question is
which version is more probable.
[76]
If I find that the plaintiffs version with re9ard to the negligence
of the defendant is more probable. the next question is
whether
looking at all the circumstances, the defendant has proved that his
conduct contributed to the causation of the accident.
[77]
Lasly, whether the failure to put the insured driver's version to the
plaintiff during cross examination is fatal to the defendant's
case
and to what extent in the context of the respective burden of proof
and onus.
Legal
principles
[78]
The versions presented before me PY both the plaintiff and insured
driver as to how the accident occurred are totally irreconcilable
and
thus mutually destructive. The legal principles pertaining to
resolution of irreconciliable and mutually destructive versions
are
trite and there is a wealth of authorities in this regard. Under the
circumstances, two issues arise for consideration, namely,
which of
the two irreconcilable versions is most probable and the respective
duties of a driver who enter a stop sign- controlled
intersection and
one who is proceeding straight on a road with intersecting streets.
[78]
With regard to the first issue, the approach is stated in the matter
of
Stellenbosch
Farmers Winery Group & Another v Martell
&
Others
[6]
The court summarized the technique generally employed to resolve
factual disputes in order to come to a conclusion. The court is
required to make findings on (a) the credibility of the various
factual wltnesses;(b) their reliability; and (c) the probabilities
[79]
On the
question of onus, the Supreme Court of Appeal, per Mhlanta JA had
this to say in the matter of the
City
of Johannesburg metropolitan Council v Patric Ngobeni
[7]
had this to say:
"[50] It is trite
that a party who asserts has a duty to discharge the onus of proof In
African Eagle Life Assurance Co Ltd
v Calner,
11
Coetzee J applied the principle set out In National Employers'
General Insurance Association v Gany
1931 AD 187
as follows:
'Where there are two
stories mutually destructive, before the onus is discharged the Court
must be satisfied that the story of the
litigant upon whom the onus
rests is true and the other false. It Is not enough to say that the
story told by Clarke is not satisfactory
in every respect, it must be
clear to the Court of first Instance that the version of the litigant
upon whom the onus rests is
the true version…’
[51] The approach to
be adopted when dealing with the question of onus and the
probabilities was outlined by Ekstean JP in National
Employers'
General v Jagers,
12
as follows:
'It seems to ma, with
respect, that in any civil case, as In any criminal case, the onus.
can ordinarily only be discharged by adducing
credible evidence to
support the case of the party on whom the onus rests. In a civil case
the onus is obviously not as heavy as
it is in a criminal case, but
nevertheless where the onus rests on the plaintiff as in the present
case, and where there are two
mutually destructive stories, he can
only succeed If he satisfied the Court on a preponderance of
probabilities that his version
is true and accurate and therefore
acceptable, and that the other version advanced by the defendant is
therefore false or mistaken
and falls to be rejected. In deciding
whether that evidence is true or not the Court will weigh up and test
the plaintiff's allegations
against the general probabilities The
estimate of the credibility of a witness will therefore be
Inextricably bound up with a consideration
of the probabilities of
the case and, if the balance of probabilities favours the plaintiff.
then the Court will accept his version
as being probably true. If
however the probabilities are evenly balanced in the sense that they
do not favour the plaintiffs case
any more than they do the
defendant's, the plaintiff can only succeed if the Court nevertheless
believes him and is satisfied that
his evidence is true and that the
defendant's version is false.'
[52] In the present
case the plaintiff, during the trial, abandoned his main ground and
pursued his claim on the basis that Ledwaba
negligently discharged
the firearm. It follows that the plaintiff bore the onus of proof and
had to prove that Ledwaba had been
negligent. Accordingly. the
defendant no longer had a duty to prove the defence of justification
as it could not raise such a defence
against a claim of negligence.
In the result, the plaintiff had to prove the element of negligence
on Ledwaba 's part in order
to succeed. Regarding the question of
onus, Spilg J remarked:
'I am satisfied that
after subjecting the evidence in this manner the truth is readily
discernible. Moreover I am satisfied that
irrespective of who was
required to discharge the onus, the result will be the same.'
[53] I do not agree
with the trial judge when regard /s had to the facts. It is difficult
to comprehend how the judge could make
this statement unless he had
pre-judged the issues. He adopted an approach that is flawed and
which cannot be applied when faced
with two mutually destructive
versions. It was imperative for Spilg J lo have been alive to the
Issue relating to the onus and
to make a determination in that
regard. Had the trial judge adopted a proper approach and applied the
principles set out in the
Jagers case, the result would have been
different. I will hereafter show how the trial judge erred in his
approach."
[80]
It Is common cause that the insured driver in the matter before me
was in the process of entering a stop sign controlled intersection
by
executing a right turn. According to her, she stopped at the stop
sign behind one car. There was a vehicle coming from the eastern
side
where she was to turn to. She waited for It and it entered the street
she was traveling in, on her left handside. Thereafter,
she proceeded
to execute the right hand turn. She was already in the intersection
when she heard a bang on her right hand side.
[81]
Her conduct
(executing a right turn) should be judged against the following
principles confirmed by Mslmeki J on behalf of the appeal
court in
the matter of
Jacobs
v Road Accident Fund
[8]
''[12] EXECUTING A
TURN TO THE RIGHT
1. Our Provincial
Divisions and the Supreme Court of Appeal have held that to turn
across the path of oncoming or following traffic
fs an 'Inherent
dangerous manoeuvre' and that a driver who intends executing such a
manoeuvre bears a stringent duty to do so after
satisfying himself
that it is, in deed, safe and then choosing the right moment (often
called the opportune moment) to do so (See
In this regard AA Mutual
Insurance Association L.td v Nonaka,
1976 (3) SA 45
(AD) at 52E, R v Cronhelm
1932 TPD 86
; Sierborger v
SAR & Harbours,
1961 (1) SA 498
(AD)
and
Johannesburg City Council v Pt1blic Utility Transport Corporation
Ltd,
1963
(3) SA
157
(W)).
It ls therefore understandable why a driver turning right has a
greater duty towards both the traffic following as well as
traffic
approaching from the opposite direction.
2. A driver turning to
the right must signal his intention clearly and avoid turning until
an opportune moment presents itself.
(See In this regard Wolf v
Christner
1976 (2) SA 170
(N)).
3. He should only tum
to the right once he has satisfied himself that there is room enough
between his motor vehicle and the approaching
vehicles lo allow him
to complete the manoeuvre safely. (See R v Court,
1945 TPD 133
at 134).
4. A driver Is
entitled to assume that those who are travelling in the opposite
direction will continue in their course and that
they will not
suddenly and inopportunely turn across the line of traffic. This
assumption may continue until it is shown that there
Is a clear
intention to the contrary, (See Van Staden v Stocks,
1936 AD 18
and Rustenburg v Otto,
1974 (2) SA 268
(C)
and Old Mutual Fire and General Insurance Co of Rhodesia {PVT) LTD
and Others v Britz and Another
1976 (2) SA 650
(RAD).
5. Drivers who see a
driver signalling his: intention to turn right are entitled to assume
and accept that that driver will only
execute his tum to the right at
a safe and opportune moment. This is so because they are not obliged
to guard against the unreasonable
and negligent actions of a driver
who signals his intention to turn to the right. In this regard Var,
Winsen AJA (as he then was)
m the matter of Serborger v South African
Railways & Harbours (supra) at 504 - 505 said;" the answer
seems to be 'none
other than keep a look-out'. There was no
obligation upon him to stop or even slow down because of having seen
a signal in parenthesis,
it need scarcely be remarked, that du
Freezes statement in evidence that had he seen appellant's signal he
would have stopped,
eval'! supposing it to be true cannot burden him
with an obligation not imposed by law.'' (My emphasis)
In Moora v Minister of
Posts & Telegraphs
1949 (1) SA 815
at 826,
Schreiner JA (as he then was) said:
"Speaking very
generally one expects and is entitled to expect reasonableness rather
than unreasonableness. legality rather
than illegality, from other
users of the highway.”
6. It therefore
follows that a driver is only called upon to take precautions against
reasonable foreseeable contingencies and not
the reckless driving of
other motorists. See Randalia Versekerings Korporasie van SA Beperk v
De Beer,
1976 (4) SA 707
at
711.
[82]
The plaintiff, on the other hand was proceeding on a straight on the
road (path) that he w s travelling in.
[83]
It is so, as counsel for the defendant has correctly submitted, that
having a right of way does not mean that one has no duty
of care
towards fellow road users. There is an equal number of authorities in
addition to those that the counsel for the defendant
has referred to
on this issue. Every driver has a duty to keep a proper lookout, and
the duty on a driver proceeding in a street
with intersections is
greater than one driving in a street without intersections. A
motorist on a through street must be aware
of what is happening in
the cross roads, even in stop streets.
(Marine & Trade
Insurance Co LTD V Biyasi
1981 (1) SA 918
(A)
[84]
A driver, particularly one who knows the area has a greater duty to
approach intersecting streets with caution. He must have
regard to
traffic coming from an intersecting street and must exercise
reasonable care to avoid a collision. The cases cited in
the letter
that the plaintiff's attorneys wrote to the defendant's attorneys
actually make this point, but for some reason, probably
to gain
strategic advantage, only the parts that support their contentions
were summarized.
The
failure to put the insured driver's version
[85]
The legal principles in this regard are trite. The purpose of putting
a version, as counsel for the plaintiff has submitted,
is to avoid
trial by ambush. However, this is not a mechanical principle cast in
stone. One must look at each case on its own merits
because the
evidence that should have been put must be material and have an
effect on the strength of the opponent's case.
[86]
The principles were restated In the following paragraphs of the
recent SCA decision in the matter of
Mkhize v S (390/18) (2019]
ZASCA 56 (1 April 2019).
[15] The evidence 9f
Captain Hadebe was clear and straightforward. but the appellants
submitted that he initially made a general
statement, but immediately
afterwards clarified It by saying that the first appellant made the
report as to what happened and that
the other appellants were in the
passage when he made the report. I disagree with this submission
because the nub of his evidence
is that when the first appellant
reported to them what had happened. a/I the appellants were present
in the room'. This Important
piece of evidence squarely placed the
appellants at the scene. During cross- examination it was not put to
the Captain Hadebe that
anyone of the appellants were not present
during the interrogation. It was also not put during the trial that
the appellants were
not present In the room. Cross- examination of
Captain Hadebe was focused on the injuries sustained by the deceased
and the cause
of death. At no stage was It ever put ta Captain Hadebe
that the other appellants would disprove his evidence about what
Mkhize
told him in their presence.
It Is the duty of the
cross-examiner to put all contested points to the witnesses
in
cross-examination. A cross-examiner who falls to do so runs the risk
of having his witness criticized of recent fabrication when
that
witness later testifies. Leaving contradictions, improbabilities or
lies undisputed Is dangerous. Fa/lure to do so would in
appropriate
cases lead to an adverse Inference being drawn from the failure to
cross-examine on the contested Issues.
(highlighted for emphasis)
[16] In President of
the Republic of South Africa v South African Rugby Football Union
2000 (1) SA 1
(CC) para 61 it was stated:
'The institution of
cross-examination not only constitutes a right, it also imposes
certain obligations As a general rule it is
essential, when it is
intended to suggest that a witness is not speaking the truth on a
particular point, to direct the witness's
attention to the fact by
questions put in cross examination showing that the Imputation
Is intended to be made and to afford
the witness an opportunity,
while still in the witness-box, of giving any explanation open to the
witness and of defending his
or her character. If a point in dispute
is left unchallenged in cross-examination, the party calling the
witness Is entitled to
assume that the unchallenged witness's
testimony is accepted as correct. This rule was enunciated by the
House of Lords In Browne
v Dunn and has been adopted and consistently
followed by our courts.'
[17] It was further
held para 63:
'The precise nature of
the imputation should be made clear to the witness so that It can be
met and destroyed, particularly where
the imputation relies upon
inferences to be drawn from other evidence in the proceedings. It
should be made clear not only that
the evidence is to be challenged
but also how It is to be challenged. This is so because the witness
must be given an opportunity
to deny the challenge, to call
corroborative evidence, to qualify the evidence given by the witness
or others and to explain contradictions
on which reliance Is to be
placed. (At para 63) and to explain contradictions on which reliance
is to be placed.' (Emphasis added.)
In the present matter
the appellants did not do so Instead they sought refuge in their
silence and declined to join issue with the
state witnesses. The
argument of the appellants loses sight of the fact that
cross-examination cannot be used to prove anything,
it can only
establish inconsistencies or weaknesses in the case, but it cannot
establish evidence. Assertions or questions put
by counsel during
cross-examination remains so and is not evidence.
[87]
The failure to put the insured driver's version in the matter before
me has a lot to do with inexperience or competency of
the counsel, to
which he readily owned up during oral argument.
[88]
The general cross examination in my view failed to elicit the
relevant facts. Similarly, the presentation of the plaintiffs
case
was very basic. In all fairness, most of the material issues, such as
distances, marking of point of impact and the scene
of the accident
in general came from my own questioning. At some point I felt like I
was on the verge of descending on the arena.
[89]
I could have urged the counsel for the defendant to put some sort of
version to the witness but that would have been obvious
because he
ended the cross examination without saying anything about what the
plaintiffs version on her alleged negligence was
going to be.
[90]
The question is whether I, as a trial judge should have questioned
the plaintiff and the insured driver or even urged the both
counsel
to call the author of the accident report or sketch plan, ordered an
inspection in loco or trawled through the bundle to
find relevant
evidence to present to myself. The answer to this question is in the
negative.
[91]
In the
matter of City of Johannesburg Metropolitan Council v Patrick
Ngobeni
[9]
the appeaI court was
requested amongst other things to consider whether the conduct of the
trial judge was irregular under circumstances
where he descended to
the arena and questioned witnesses,
mero
motu
called
witnesses, and on his own initiative decided that an inspection in
loco be held.
[92]
The level of preparation from both sides was not sufficient. I have
already analysed the shortcomings in the Accident Report.
None of the
parties thought of calling witnesses, at least the police officer or
even the person that took the photos.
[93]
Judge Pickering In the Deysel judgment had the luxury of considering
all sorts of evidence, hence he was in a position to discard
the
police evidence, the mathematical calculations of the reconstruction
expert and other evidence and made findings of facts which
resulted
in discrediting the eveidence that was clearly improbable.
[94]
In the matter of
S v Mafua and Others
[2008] ZAGPHC 38
;
2008 (2) SACR 653
(W)
the appeal court, per C.J Claassen
J
discussed these issues
under two headings;
"The competency of the appellant’s
legal representatives'
and
'Descending into the arena".
With regard to the former, at the end, 1t is the litigant's
rights to effective legal representation that are at stake as it
appears
from an extract from the following passages in this judgment.
[23] In para {14] of
his judgement in
S v Halgryn
2002 2 SACR 211
(SCA), Harms JA illuminated the constitutional right to legal
representation as follows:
"The
constitutional right to counsel must be real and not Illusory and an
accused has, in principle, the right to a proper
effective or
competent defence … Whether a defence was so incompetent that
it made the trial unfair is once again a factual
question that does
not depend on the degree of ex post facto dissatisfaction of the
litigant. Convicted persons are seldom satisfied
with the performance
of their defence counsel The assessment must be objective, usually,
if not invariably, without the benefit
of hind sight. The Court must
place himself in the shoes of defence counsel, bearing in mind that
the prime responsibility in conducting
the case is that of counsel
who has to make decisions, often with little time to reflect.. The
failure to take certain basic steps
such as failing to consult,
stands on a different footing from the failure to cross-examine
effectively or the decision to call
or not to call a particular
witness. It is relatively easy to determine whether the right to
counsel was rendered nugatory in the
former type of case but in the
latter instance, where counsel's discretion is involved, the scope
for complaint is limited. '
[24] The idea of being
represented by a legal adviser cannot simply mean lo have somel1ody
stand next to one to speak on one 's
behalf Effective legal
representation entails that the legal adviser acts in the client's
best interests, saying everything that
is needed to be said in the
client's favour and calling such evidence as was justified by the
circumstances in order to put the
best case possible before the court
in the client's defence. Implicit in the rights entrenched in section
35(3)(f) of the Constitution
is the concept that legal assistance to
the accused person must be real proper and designed to protect the
interests of the accused
The legal representative has an obligation
to conduct the case in the best interest of the client while still
ensuring that the
inherent duty towards justice is maintained, In
order to be able to conduct a trial in such manner the legal
representative has
to acquaint him or herself with the charges, the
facts with which the accused is confronted and more Importantly, the
version of
the accused.
7
The principles just set out
accord with the concept of the right to effective legal
representation in an open and democratic society.
In similar vein are
the remarks of Justice Blackmun in
Burger v Kemp
483
US 776
(1987) at 800.
The duty of loyalty to
a client is ·perhaps the most basic' responsibility of counsel
end 'it is difficult to measure the
precise effect on the defence of
representation corrupted by conflicting interests””.
[95]
Now, let us examine the nature of evidence that was not put to the
plaintiff during cross examination.
[97.1] The alleged
apology to the plaintiff and an admission that she caused the
accident as she was on the phone. The insured driver
admitted the
apology but denied the admission of guilt. In my view. the latter
issue, even if it was put to the plaintiff would
best be decided on
the probabilities based on the overall impression that I will have
about the credibility of the both parties.
In terms of Section 61 of
the National Traffic Act, Act No.93 of 1996, a driver of motor
vehicle in a public road that is involved
in or contributed to an an
accident in which a person has been killed or Injured or there has
been damage or loss of property is
obliged to do certain things at
that scene of accident, amongst which is a duty to stop and remain at
the scene, ascertain if any
person has been injured and the extent
thereof and to offer any assistance that he/she is capable of
rendering,
Therefore, there was
nothing wrong with the insured driver's gesture of approaching the
plaintiff and enquiring if he was well.
[97.2] That she did stop
at the stop sign and the presence of a turning motor vehicle. The
evidence of the plaintiff on whether
she stopped or not was not as
clear as it Is made out to be. Initially he said when he first saw
her, he was about 10 kilimetres
away from the Intersection and she
was moving slowly into the intersection. It is only when he was
pressed for a firm answer that
he committed to a version that she did
not stop. They both testified about a vehicle that turned left at
this intersection. The
insured driver says it is the vehicle that he
was waiting for to pass, and then it turned left into the street she
was traveling
in. Then she moved into the intersection, and then
heard a bang on her vehicle. The plaintiff testified that he was
driving behind
a vehicle that turned into First Street. After this
vehicle had turned, that is when he saw the insured driver entering
the intersection.
They both testified about
the same vehicle
[97.3] The presence of
two primary schools in the vicinity of the scene of accident.
I have already alluded to
the duty of both parties to bring relevant evidence before court to
enable a fair assessment of the issues.
The plaintiff did not refer
to anything in his assertion about congested traffic. Pictures of the
accident scene were handed up
but there was no discussion of the
happenings there except the collision of the two motors. The insured
driver's response came
about in response to a question regarding
reasons for congested traffic in the morning. The response was
justified by reference
to photographic evidence, being a picture
depicting stationary vehicles which I believe may be taken into
account even if the Insured
driver's version Is left out.
[97 4] The general
condition of the road This is about the presence of the sand on the
road The insured driver referred to one of
the photos to support her
version that the sand was not on the lane of travel of the plaintiff
but in a corner next to her stop
street It is common cause that
looking at the photos submitted there is no sand or stones on the
road.
The photographic evidence
is sufficient even if the insured driver's version may be discarded
[97.5] The point of
contact between the motor cycle and the insured vehicle. The photos
tell the story.
[97.6] The colours of the
plaintiffs clothes and the head lamp
The insured driver did
not give a reason why she did not see the plaintiff other than that
she entered the intersection after the
vehicle she was waiting on had
turned. Similarly, the plaintiff mentioned the colours of his clothes
but no specific issues arose
from that evidence. It would have been
of assistance if the police officers had done their work properly
because the issues relating
to a lit headlamp are relevant to
questions such as the visibility of the plaintiff to other road users
[97.7] The group of
people that gathered at the scene and that one of them told the
insured driver to go away. The photos tell a
story but whether or not
such utterances were made is not one of the issues for decision in
this matter. The insured driver had
a statutory duty not to leave the
scene of accident and to assist the injured. There are no allegations
that she did not.
Was
the insured driver negligent
[98]
Even without measurements, it is clear from looking at the photos
that the stop sign and actual stop area (what I called stop
box) is
far from the intersection. This would explain the plaintiffs
description of the insured driver's actions as 'slowly moving
away
from the stop sign into the intersection,' The driver of the Mazda in
the Deysel judgment had an advantage of an island that
was meant to
act as a yield sign for turning vehicles, which is not present here.
[99]
From looking at the photos, the southern intersection of Viljoen and
First streets on the left handside where the insured driver
was
coming from curving inwards to the left , leaving a wider area around
the intersection . The stop sign and the actual intersection
are a
bit further apart. A driver intending to execute a right turn would
have to move further away from the stop sign towards
the
intersection. There is no evidence before me as to whether from east
to western direction there are any obstructions that would
have
prevented the plaintiff from seeing the insured driver from a further
distance than what he testified about.
[100]
My overall impression of the insured driver ls that she was an honest
and forthright witness. She was failed by counsel for
the defendant
who failed to put her evidence to the plaintiff. She was criticised
for putting up an argument when required to answer
a question
regarding the easiness of turning to the left compared to the right.
Her attempt to argue in my view is because the
question was not clear
and It appeared as if she was being criticised. She did not try to
make up a story that she saw the plaintiff
and he was far when she
entered the intersection. According to her, she waited for the
turning vehicle and as soon as it had turned
she entered the
intersection. From her description of what happened, the plaintiffs
motor cycle must have been very close to this
turning vehicle.
[101]
It also does not appear from the insured driver's evidence that she
satisfied herself that there was no vehicle behind the
turning one
and why she did not hear the usual noise of a motor cycle such as the
one described by the schoolboy witness in the
Desel judgment which
drew his attention from a distance.
[102]
The insured driver was entitled to move closer to the intersection
due to its position to the stop sign. She had almost turned
when the
motor cycle hit her.
[103]
I am satisfied that the insured driver was negligent by failing to
ensure that there was no traffic coming immediately after
the turning
vehicle that they both described.
Any
contribitory negligence on the part of the plaintiff
[104]
The plaintiffs case was built around the fact that he had a right of
way and as such he could not be expected to have ensured
that there
is no vehicle coming out of the intersecting street. There was no
attempt to mark the point of impact or to call the
person who took
the photos who clearly must have been one of the people standing
around as the lady in the leader jacket can clearly
be seen in photo
16 for example making some pointing gestures.
[105]
His evidence on when exactly did he see the insured driver and what
was happening was not very clear, but having observed
(from the
photos) the visual distance between the stop box and the point of
impact, it is clear that she must have moved out already
when he was
further than the 10 or 6 metres that he testified about I cannot make
a firm finding on this issue .
[106]
What bothers me is the fact that according to him, he was behind a
vehicle that was indicating to turn and could see the plaintiffs
indicators flickering to turn right into Viljoen street. Instead of
reducing speed (which was in any event at the prescribed maximum),
he
remained constant, thinking that she would stop. It is only when he
was closer that he realized that she was not stopping.
[107]
The evidence of heavy traffic from west to east is not supported by
the facts because even though the emergency services arrived
10-20
minutes as testified by the insured driver, he was not run over or
almost hit. Three emergency vehicles that appear like
two ambulances
and a police vehicle were able to occupy a big space between him and
the traffic. Furthermore, the suggestion that
it was more difficult
to cross over to the east of viljoen that it would have been to turn
to the western direction is also not
borne out by evidence because
the insured driver was hit by the plaintiff , not vehicles from the
west.
[108]
I cannot guess or estimate his speed but there is no explanation why
the insured driver's vehicle would be so extensively
damaged.
[109]
The plaintiff was aware that the insured driver was indicationg and
as he approached behind the vehicle that turned, he should
have
driven with caution. In my view, the plaintiff had a greater duty to
be cautious here because he had already seen that the
plaintiff was
turning, or moving slowly into the intersection according to him
Furthermore, this was a one lane road, and unlike
the opposite
direction, he knew that if there was an emergency he would have
nowhere to run to.
[110]
The plaintiff testified that he knows the road very well, its
markings and signs, but failed to adduce any evidence with regard
to
presence of any obstructions that would have prevented him from
seeing the insured driver when he was a bit further than what
he
testified about.
[111]
He created a state of sudden emergency where he could no longer take
meaningful evasive actions to avoid the collission, and
ended up
driving through the front part of the insured vehicle.
[112]
The fact that he knew the surroundings, including the presence of
sand on the left side of the westbound lane at the intersection
of
First street is more evidence that he knew that in a situation of
emergency he was not going to safely turn to the left.
[113]
I am satified that the plaintiff was negligent under the
circumstances and that his negligence was the proximate causation
of
the accident because knowing the area very well and the dangers, he
failed to ensure that he reduces speed as he approached
the
intersection with a vehicle that was already moving into the
intersection as he testified.
[114]
My assessment of the both drivers' negligence is that the insured
driver is more blameworthy for all the reasons I have mentioned
above. Her negligence in my view amounts to 70% whereas the
plaintiffs is 30%.
[115]
There is no reason why the: defendant should not bear the costs of
this action.
[116]
Accordingly, I make an order in terms of the draft attached to this
judgment and marked 'XY' which is incorporated in this
judgment and
as amended in paragraph 2 to reflect that the defendant's liability
is 70%.
TAN
MAKHUVELE J
Judge
of the High Court
APPEARANCES:
PLAINTlff.:
ADVOCATE L.D. SCHOLTZ
Instructed
by: Podbielski Mhlambi Inc
C/O
Kritzinger Attorneys
Hatfield
PRETORIA
DEFENDANT: ADVOCATE KC
SIOGA
Instructed
by Brian Ramaboa INC Attorneys
Hatfield
PRETORIA.
Heard
on: 13 May 2019.
Judgment
delivered on: 04 July 2019.
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
IN COURT 8G
Before
Her Ladyship, the Honourable Ms Justice MAKHUVELE (J)
On
13 and 14 May 2019
CASE NUMBER: 53091/2017
In
the action between:
PHILLIPPUS
DANIEL RIEKERT
OPPERMAN
PLAINTIFF
and
THE
ROAD ACCIDENT
FUND
DEFENDANT
DRAFT
ORDER: MERITS
After
hearing evidence and argument from the parties, the following order
is made an order of Court:
IT
IS ORDERED THAT:
1.
The issues relating to merits are separated from all the issues
relating to quantum;
2.
The Defendant is ordered to pay 70% of the Plaintiff's agreed or
proven damages;
3.
The Defendant pays the Plaintiffs taxed or agreed party and party
costs on the High Court scale for this portion of the claim
up to and
including 19 March 2019 and 13 and 14 May 2019, which costs will
include, but not be limited to:
3.1 all costs of
senior-junior counsel up to and including the trial date of 19 March
2019 and 13 and 14 May 2019, with further
specific inclusion of all
pre-trial proceedings, preparation, judicial case management
meetings, conferences, agendas, practice
notes, consultations and
attendances;
3.2 reasonable costs of
the correspondent on a high court scale where, in the opinion of the
taxing master, more than one attorney
has necessarily been engaged In
the performance in any of the services covered by the tariff, in
which event each attorney shall
be reimbursed on the basis as set out
in the tariff for the work necessarily done by him/her.
3.3 The plaintiff is a
necessary witness and his attendance at court with An interpreter to
medico-legal appointments necessary;
3.4 Costs previously
reserved, herewith becomes unreserved.
3A. In the event that
costs are not agreed the Plaintiff agrees as follows:
3A.1 The Plaintiff shall
serve the notice of taxation on the Defendant's attorneys of record;
and
3A.2 The Plaintiff shall
allow the Defendant 14 (fourteen) court days to make payment of the
taxed costs.
3A.3 The Defendant will
be liable for interest on 10.25% per annum from due date of the costs
up to and including date of payment.
4.
The remainder of the claim is postponed
sine die.
BY
ORDER
____________________
THE
REGISTRAR OF THE HIGH COURT
OF
PRETORIA
APPEARANCE
AT ROLL CALL:
ON
BEHALF OF PLAINTIFF: ADV. L D SCHOLTZ on Instruction by KRITZINGER
ATT
012
942 2218 / 012 430 464617
INSTRUCTING
ATTORNEYS: PODBIELSKI MHLAMBI INC
018
786 2919
I
082 338 0256
ON
BEHALF OF DEFENDANT: BRIAN RAMABOA INC ATTORNEYS
REF:
MS V TSHIKOMBA/RAF31013
012
342 0900
I
082 762 4007
ADV
K.C SIOGA
TEL:
079 251 5380
[1]
Neutral citation : Deysel v Road Accident Fund (213/2007) [2008]
ZAECHC 19 (19 March
[2]
North West High Court, Mafikeng, Case No, 2038/2008, referring to
Protea Assurance Co. Ltd v LTA Building (SWA) Ltd 1988 (1)
SA 303
(A)
[3]
Neutral citation: Chlpwatali v Road Accident Fund (6629/2015) [2017]
ZAGPPHC] 334 (8 June 2017)
[4]
(1857/2001)
[2004] ZAFSHC 14
(4 March 2004)
[5]
198112) SA 102 (ZA at 106B
[6]
2003(1) SCA 11 at 14I-15E
[7]
supra
[8]
(A402/2008) 12011] ZAGPPHC 121 (13 June 2011)
[9]
aupra