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[2018] ZAFSHC 172
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WM Pretorius Vervoer CC v Lime Lite Logistics CC and Another (4943/2018) [2018] ZAFSHC 172 (1 November 2018)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number:
4943/2018
In
the matter between:
WM
PRETORIUS VERVOER
CC Plaintiff
and
LIME
LITE LOGISTICS
CC First
Respondent
PHIWANKOSI
GIKIMA
SIBIYA Second
Respondent
HEARD
ON:
3 AUGUST 2018
CORAM:
P MOLITSOANE, J
JUDGMENT
BY:
P MOLITSOANE, J
DELIVERED
ON:
1 NOVEMBER 2018
[1]
This is an action for damages arising out of the collision of two
trucks along the R70 provincial road between Hennenman and
Ventersburg the night of the 28
th
August 2014. The combination truck of the plaintiff, bearing
registration number 006 WMP FS, at the material time driven by Mr
Japie Shabangu (Shabangu) collided with a truck driven at the
material time by Mr Phiwayinkosi Gikima Sibiya (Sibiya), who was
at
the material time acting in his scope of duty and employment with the
first defendant.
[2]
The trial proceeded on the merits only as the issue of quantum was
separated in terms of Rule 37
procedure read with Rule 33(4) .
[3]
The undisputed or common cause issues are the following:
·
The
citations and details of the parties;
·
The
jurisdiction of this Court;
·
The
details of the accident as pleaded excluding the details of the
driver of the plaintiff ;
·
The
fact that the 2
nd
defendant was the driver of the truck of the 1
st
defendant and also that he (2
nd
defendant) drove same in his scope of employment with the 1
st
defendant.
[4]
Upon perusal of the pleadings it appears that the only issues for
adjudication are the questions of
locus
standi
of the plaintiff and
the negligence of the second defendant. Plaintiff had pleaded the
issue of subrogation which was denied by
the defendants. This issue
of subrogation was not pursued during the trial. It became clear that
the claim of the plaintiff was
based on negligence and as such the
issue of subrogation was irrelevant to determine negligence.
[5]
In support of its case plaintiff called two eye witnesses and a
collision expert. The version of the plaintiff is as follows:
Mr
Shabangu testified that he had been in the employment of the
plaintiff as a truck driver for the plaintiff for fourteen years.
On
the 28
th
August 2014 he was the driver of a truck bearing registration number
006 WMP FS. He was travelling from Kuruman to the harbour
in Durban.
At the material time he was following a truck driven by his colleague
and fellow employee, one Mr Noko. Both of them
were
en
route
from Kuruman to the
harbour in Durban. He was travelling on a tar road. The road surface
was clear and the road was flat with no
ascends or descends.
[6]
He testified that while travelling he saw a truck approaching from
the opposite direction. This truck was travelling on the
gravel next
to the tarmac. He immediately applied his brakes and brought his
truck to a standstill. The oncoming truck passed the
truck driven by
Mr Noko and veered into the road and collided with his stationery
truck .The truck he was driving was damaged on
the left front side.
He testified that the truck he was driving belonged to MW Pretorius
Vervoer.
[7]
Mr Noko also took the stand and testified that he was driving a truck
in front of the truck driven by Mr Shabangu. He testified
that an
oncoming truck left the road and drove on the gravel. This oncoming
truck passed him and collided with the truck driven
by Shabangu.
[8]
A collision expert, Mr Lotter then testified. For the reasons which
will become apparent below, I will deal with his testimony
later.
[9]
The 2
nd
defendant testified that while driving he saw a truck driven by Mr
Noko followed by one of Mr Shabangu. Both were travelling from
the
opposite direction. He saw a vehicle exit the back of the truck
driven by Mr Shabangu and proceed to overtake it. He thought
that the overtaking vehicle was going to return to its lane between
the two trucks driven by the Plaintiff’s employees. When
the
vehicle was 15 metres away from the truck driven by him and at that
stage overtaking the truck driven by Mr Noko, he realised
that the
vehicle was not going to take its place between the two trucks. He
swerved the truck he was driving to the left hand side
and drove on
the gravel leaving the tarmac. Whilst on the gravel he hit a bump
which caused his truck to veer to the right in between
the two trucks
driven by the two employees of the plaintiff and collided with the
truck driven by Mr Shabangu.
[10]
Defendants took issue with the
locus standi
of the plaintiff.
In the particulars of claim plaintiff pleaded that:
“
At all material
times hereto:
1.
The
plaintiff was the owner of a Volvo Strado FH13 480 combination
truck, with registration number 006 WMP FS;
2.
alternatively…,plaintiff
was the bona fide possessor of the said vehicle and bore all risk in
relation thereto;
3.
alternatively…..
plaintiff was the credit receiver in terms of a credit agreement, the
risk in and to the said motor vehicle
having passed to the
plaintiff.”
[11]
Mr Shabangu testified that he was employed by the plaintiff as a
truck driver. He confirmed that the truck he was driving belonged
to
the plaintiff. He confirmed a registration certificate which was
handed in evidence as an exhibit. This registration certificate
depicts plaintiff as the owner. According to the
National Road
Traffic Act 93 of 1996
a vehicle is registered in the name of an
owner and ‘title holder.’ No other evidence was tendered
to the contrary
and the attack on
locus
standi
stands to be
rejected.
[12]
In order for plaintiff to succeed in its claim it will have to prove
that that the conduct of the 2
nd
defendant is wrongful and culpable. It will in addition also have to
prove that such conduct of 2
nd
defendant caused plaintiff patrimonial loss. [See
Natal
Fresh Produce Growers Association and others v Agroserve (Pty) Ltd
and others
1990 (4) SA 749
(N) at 756 I – 756A]. With regard to negligence, the issue is
whether a reasonable driver in the position of the defendant
would
foresee the reasonable possibility of his conduct colliding with the
plaintiff’s vehicle and causing him patrimonial
loss; and
whether he would take reasonable steps to guard against such an
occurrence and lastly, whether the defendant failed to
take such
steps. [See
Kruger v
Coetzee
1966(2) 428(A) at
430 E-F]
[13]
In its particulars of claim, plaintiff alleges that the sole cause of
the collision is attributable to the negligence of the
2
nd
defendant in that he was driving on the wrong side of the road and
attempted to swerve right, thereby colliding with the Plaintiff’s
truck.
[14]
The defendants deny the allegations and plead that the sole cause of
the collision was the negligent driving by the driver
of an
unidentified vehicle who was negligent in one or more of the
following respects:
1.
He
overtook the plaintiff’s vehicle and another truck when it was
unsafe to do so;
2.
He
went into the lane of the defendant’s vehicle when it was
unsafe to do so;
3.
He
caused the collision between the 1
st
defendant’s and the plaintiff’s vehicles when the 2
nd
defendant tried to avoid a collision with the unidentified overtaking
vehicle.
The
defendants further aver that the cause of the collision was a sudden
emergency caused by an unidentified vehicle, alternatively
the
negligent driving by the driver of the plaintiff’s vehicle.
[15]
In motor vehicle collisions the existence of a sudden emergency is
considered to be a factor which precludes negligence. A
driver who is
suddenly confronted with an unexpected danger may and will probably
act differently from a driver who does not have
to act without much
time to make a decision on the spur of the moment. [See
Moses
v Autopax Passenger Services (Pty) Ltd t/a City to City
[2005] JOL 15213(T)].
There are, however, limitations to the defence
of sudden emergency.
[16]
For the defence of sudden emergency to succeed the following
requirements must be complied with:
1.
The
emergency must be unexpected and sudden;
2.
Notwithstanding
the emergency, the wrongdoer must, after encountering an emergency,
still act with reasonable care and skill under
the circumstances.
[See
Klopper:
Law of Collisions in South Africa, 7th
ed
at p 108.]
[17]
A defendant who raises a legal justification or excuse bears the onus
to prove on a balance of probabilities that excuse. [See
Mabaso
v Felix
1981(3) SA 865(A)].
In casu
,
the defendants raise the excuse in the form of sudden emergency and
they thus bear the onus of proving it.
[18]
It is not in dispute that a collision occurred between a truck driven
by Shabangu and the 2
nd
defendant. It is also not in dispute that the truck of the plaintiff
was damaged on its left hand side. The plaintiff relied, inter
alia,
on the evidence of a collision reconstruction expert in support of
its case. During the trial an objection was raised regarding
the said
expert giving testimony. The crux of the objection was based on the
fact that most of the source documents on which the
report was
compiled and conclusions made were all based on inadmissible hearsay
evidence.
[19]
The plaintiff gave a notice in terms of Rule 36 (9) (a) and (b) of
the Uniform Rules of this court of his intention to call
an accident
Reconstruction Specialist, Mr Konrad Walter Lotter. The said notice
summarised his evidence as follows:
That
he was a technical/accident investigation expert and
reconstructionist, Managing Director at DU MeTIER Technical
Investigations
and Consultants (Pty) Ltd. He is on daily basis
involved in the activities of his expertise and he submits he is an
expert in the
investigation and reconstruction of accidents. He
investigated a collision which occurred between a Volvo truck and a
Freightliner
truck. This collision occurred on the R70 between
Hennenman and Venterburg. He indicates that having studied the photos
of the
scene, photos, police report, investigators report, sketch
plan and versions of the parties he opined that the version of Mr
Shabangu
was more probable.
[20]
Mr Lotter is an engineer by profession holding a degree B.Eng.
(Mech.) from the University of Pretoria. He is registered as
such in
terms of the Engineering Council of South Africa Act 114 of 1990.He
has attended the following courses, tyre technology,
basic training
presented by the South African Police Services, Internal safety
Course and an Officers Course also presented by
the South African
Police Services. He has presented the following courses, etch
process, vehicle examiners course, accident
investigation course and
advanced accident investigation. In his line of function he completed
over 1550 reports for court purposes
and was involved in the
investigation and formulation of final reports for courts. He is
without doubt an expert in his field of
speciality. The defendants do
not hold otherwise.
[21]
The evidence of this expert is, however, largely based on hearsay.
The reason that I allowed same to be led was that both witnesses
for
the plaintiff as well as the second defendant testified. Their
evidence could hardly be labelled hearsay. Their statements
also
formed part of the source documents upon which the report of Mr
Lotter was compiled. It is because of this reason that I was
of the
view that the interests of justice demanded that I allow the expert
to testify.
[22]
It is important to note that the expert in this case was given
certain information and was asked to consider the versions and
discuss the probable actions of the drivers in relation to the events
which unfolded at the time. It is apparent from his report
that he
also did not attend the scene of this incident.
[23]
The accident happened on the 26
th
August 2014. He was asked to investigate same on the 6
th
June 2018, about three years and nine months later. It is axiomatic
that the scene would not be static. Much may have changed from
the
time of the collision until at the time of the investigation. Even if
he would have attended the scene in 2018, the integrity
of such a
scene would have been circumspect.
[24]
When all is set and done, the report and conclusions reached by the
expert are based on both admissible and inadmissible evidence.
The
admissible evidence would be constituted by the versions of the three
eye witnesses who testified and the rest of the inadmissible
evidence
is constituted by all other evidence not proven or admitted.
[25]
It has been argued on behalf the plaintiff that an expert may give
testimony on facts not yet proven or on facts contested
by the
opposing party. Mr Steytler submits that the opinion of the expert is
based on a hypothesis. It should, however, been borne
in mind that an
expert should give testimony on matters calling for his specialised
skill and knowledge. The court in
Holtzhauzen v Roodt
1997(4)
SA 766 at C-E said the following:
“
Evidence of
opinion on matters which do not call for specialised skill or
knowledge is excluded because it does not help the court.
At best it
is superfluous and, at worst, it could be a cause of confusion:
‘
If
on the proven facts a judge or jury can form their own conclusion
without help then the opinion of the facts is unnecessary.’
(See
R
v Turner
[1975] QB 834
(CA)
at 841[1975]
1 All ER 70
at 74d-e.)”
[26]
Much as it is submitted that the evidence of the expert is based on
hypothesis, it is clear that what the expert sought to
achieve in
this report is to opine whose version was more probable. This court
is in a position to make that finding without reference
to the
evidence of the expert.’ In
National
Employers General Insurance Co Ltd v Jagers
1984(4)
SA 437(E) “An expert’s view of what might probably
have occurred in a collision must, in my view, give
way to the
assertions of the direct and credible evidence of an eye witness. It
is only where such direct evidence is so improbable
that its very
credibility is impugned, that an expert opinion as to what may or may
not have occurred can persuade the Court to
his view(
cf
Mapota v Santam Versekeringsmaatskappy Bpk 1977(4) SA at 527-8 and
Madumise v Motorvoertuigassuransiefonds
1983(4)SA 207(O) at 209).” I am of the considered view that
much of the report of the expert called by the plaintiff was
largely
based on hearsay and also that it deals with issues which this court
should deal and adjudicate upon, it is superfluous
and unhelpful to
the court. I will accordingly not consider it in my adjudication of
this matter.
[27]
The versions of the parties’ are mutually destructive and are
irreconcilable with regard to whether there was an unidentified
vehicle which overtook two trucks in the face of the approaching
truck driven by the 2
nd
defendant. The approach in dealing
with mutually destructive versions has been set out as follows in
National Employers General Insurance Co Ltd v Jagers
(
supra
)
at 440 at E-G:
“…
..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
satisfies 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 the 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 plaintiff’s case any more
than they do the
defendant, the plaintiff can only succeed if the court nevertheless
believes and is satisfied that his evidence
is true and that the
defendant’s version is false.”
[28]
Both witnesses for the plaintiff testified in a chronological manner
about how the incident unfolded. They were in agreement
about the
scene and how the collision occurred. They both confirmed that the
incident happened on the road that had one lane travelling
in one
direction. They both confirmed that they were following each other
with Mr Noko in front. They were travelling in trucks
of 22 metres in
length. The distance between them was approximately 2-3 trucks
length. Mr Noko testified that as he was approaching
a slight bend in
the road he encountered a truck and he noticed that one side of the
wheels were off the tarmac. He flickered his
lights to warn the truck
in an to warn the driver of that truck to correct his behaviour.
According to Mr Noko the said truck
attempted to get back
onto the road. It however passed him and collided with the
truck driven by Mr Shabangu.
Except a contradiction as to whether
both wheels of the truck driven by the 2
nd
defendant were off the road or if only one side of wheels were off
the road they corroborated each other in material respect.
[29]
The 2
nd
defendant also testified in a chronological and logical manner. He
did not contradict himself although he was subjected to rigorous
cross examination. He testified that he had to swerve in order to
avoid colliding with an unidentified vehicle and in the process
he
collided with the plaintiff’s truck. He denies that he was
negligent.
[30]
It is important to note that after the collision the 2
nd
defendant went to Shabangu in order to ascertain if Shabangu
sustained any injuries. The evidence reveal that at that stage the
2
nd
defendant already indicated to both Shabangu and Noko that the cause
of the accident was an unidentified vehicle. This is confirmed
by the
witnesses for the plaintiff. Of further importance is that both
Shabangu and Noko also denied at that stage that there
was any other
unidentified vehicle which passed them. According to the versions by
both parties it is apparent that both made contemporaneous
statements
about the presence or absence of an unidentified vehicle. In all
fairness to both parties it cannot be said that what
they alleged in
court about whether there was an unidentified vehicle or not cannot
be construed as ‘recent’ fabrication.
[31]
The 2
nd
defendant conceded that he was tired and he lost concentration now
and then. He confirmed that he was looking for a place to sleep.
He
denied that he mistook the flashing lights of the truck of Noko as
those of another vehicle. He was adamant as to how the accident
occurred and further stuck to his version that there was an
unidentified vehicle. It is my considered view that the probabilities
of both parties are evenly balanced in that they do not favour the
plaintiff’s case any more than they do the defendant.
[32]
As alluded above, for the defence of sudden emergency to succeed, the
emergency must be unexpected and the driver faced with
sudden
emergency must act with reasonable care and he must use reasonable
skill to avoid the imminent danger. It is the testimony
of the 2
nd
defendant that when he first observed the unidentified vehicle it was
behind the truck of Noko undertaking an overtaking manoeuvre.
At that
stage that unidentified vehicle was about 120 to 130 metres away. He
did observe it overtaking the truck driven by Shabangu.
It has to be
borne in mind that the space between the two trucks could accommodate
two to three trucks. He testified that he was
under the impression
that the unidentified truck would take its position behind the truck
of Noko but that did not eventuate. In
spite of seeing that the
unidentified truck was not taking its position in its rightful lane
he continued to drive on. In cross
examination when he was why he did
not do anything despite being aware of the speeding vehicle he merely
said he assumed it will
return into its rightful lane behind the two
trucks. He observed when the unidentified truck overtook the truck in
front driven
by Noko.He also testified that he saw that the vehicle
was speeding .He did not even flicker the lights or attempt to hit
his brakes
as Shabangu did. According to him he only reacted when the
unidentified truck was about 15 metres away. He was unable to explain
why he did not react earlier when he noticed that the vehicle was not
going to take its place between the two trucks. On his own
version it
cannot be said that the emergency was sudden as he had ample time to
react in order to avoid a collision. He confirmed
that no negligence
whatsoever could be attributed to Shabangu. It is my view that he
failed to act as expected from a reasonable
driver in the
circumstances and he was accordingly negligent.
[33]
I cannot find a reason to depart from the general rule that the costs
follow a successful party. I accordingly make the following
order.
ORDER
1.
The
defendants are ordered, jointly and severally the one to pay and the
other to be absolved, to pay the quantified damages of
the plaintiff.
2.
The
defendants are ordered to pay plaintiff’s costs, jointly and
severally the one to pay the other to be absolved.
__________________
P.E.
MOLITSOANE, J
On
behalf of Applicant: Adv. S. Stadler
Instructed
by: Hill McHardy and Herbst
Bloemfontein
On
behalf of defendants: Adv. A Sander
Instructed
by: Graham Attorneys
Bloemfontein