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[2017] ZAFSHC 34
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Le Hanie and Another v Metsimaholo Local Municipality (2409/2015) [2017] ZAFSHC 34 (3 March 2017)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 2409/2015
In
the matter between:
ERNEST
LENORD LE HANIE
1
st
Plaintiff
ERNEST
LENORD LE HANIE
2
nd
Plaintiff
and
METSIMAHOLO
LOCAL MUNICIPALITY
Defendant
CORAM:
NICHOLSON,
AJ
HEARD
ON:
28
FEBRUARY; 1 AND 3 MARCH 2017
JUDGMENT
BY:
NICHOLSON,
AJ
DELIVERED
ON:
3
MARCH 2017
[1]
This is an application for absolution from the instance. It was
brought by the defendant at the end of the plaintiff’s
case.
The plaintiff opposes the application.
BACKGROUND:
[2]
The 2nd plaintiff in this matter, Le Hanie Jnr, alleges that he was
involved in a single vehicle collision while riding 1st
Plaintiff’s
motorbike on Gamsberg Street, Vaalpark, Sasolburg, Free State,
(Gamsberg) at approximately 17h50 on the evening
of 22 July 2014. The
date was later corrected to 20
th
July 2014. It is
his contention that the accident was caused as a consequence of the
negligent failure or refusal of
the defendant to perform its
duty by maintaining or repairing the road surface to ensure that it
was drivable and safe for use
or to adequately warn road users of the
poor road surface and the potholes. The plaintiffs also contend
that the defendant’s
negligent failure or refusal to repair the
defective street lights in Gamsberg in the vicinity where the
accident took place, also
contributed to the accident. Both
Plaintiffs claim to have suffered damages as a consequence of the
accident. The first
plaintiff claims for past medical and
hospital expenses incurred as a consequence of the fact that the 2
nd
Plaintiff was a minor at the time of the accident and he was thus
liable for 2
nd
plaintiff’s medical treatment
required as a consequence of the accident. 2
nd
Plaintiff, who has since reached the age of majority, claims general
damages and for future medical expenses.
[3]
The Defendant denied any knowledge of the accident or the damage or
injuries sustained as a consequence thereof. It also
denied
that it failed in its duties and alleges the road was in fact
properly maintained and argues that the accident was caused
by
plaintiff’s sole negligence in that he was driving too fast in
the conditions, was not licensed to drive the motorbike,
failed to
wear adequate protective clothing and failed to apply his brakes to
avoid the accident.
[4]
The parties agreed at a pre-trail conference to separate the merits
and the quantum and the court is thus required only to adjudicate
the
merits of the matter, the quantum to be determined at a later date.
[5]
The following facts are
common cause:
The
citation and addresses of the various parties to the matter and that
the defendant’s address is within the jurisdiction
of the
court.
[6]
In order for the 1
st
and 2
nd
Plaintiff to succeed in this matter they must establish the elements
of a delict. As the case rests upon an alleged failure
or
refusal of the Municipality to repair or maintain the road and or
street lights in the vicinity of the accident, they also need
to
establish the defendant’s legal duty to act positively. There
is considerable authority regarding omissions and
the approach to be
taken by the courts in such cases, however, for purposes of the
present application for absolution from the
instance it is not
necessary to explore this authority here.
THE
LAW:
[7]
Erasmus says the following with regards to absolution from the
instance: (
Superior
Court Practice
at
B1-292):
“
When
absolution from the instance is sought at the close of the
Plaintiff’s case, the test to be applied is not whether the
evidence established what would finally be required to be
established, but whether there is evidence upon which a Court,
applying
its mind reasonably to such evidence, could or might (not
should, or ought to) find for the Plaintiff. It follows that
when
absolution is asked for at the end of the plaintiff’s
case, the court must bring to bear upon the evidence not his own but
the judgment of reasonable man …”
[8]
In
Mpumelelo Projects Construction v Sasol Wax (Pty) Ltd
(),
Case720/2007 FSHC Rampai, J stated: (Par 16)
“
the
decisive consideration at this stage of a civil hearing is the
objective assessment of the undisputed facts in order to determine
a
conclusion of law flowing from such common cause.”
The
test is clear: the plaintiff must make out a
prima
facie
case in the sense that there is evidence relating to all the elements
of a claim on the strength of which the court can find in
favour of
the plaintiff.
[9]
This approach was also supported in
Smith
v RAC
([2015] ZAGPPHC 322) where the court stated (at par 8):
“
The
test for absolution to be applied by a trial court at the end of a
plaintiff’s case was formulated in
Claude
Neon Lights (SA) Ltd v Daniel
1976
(4) SA 403
(A)
at 409G-H
in
these terms:
‘
when
absolution from the instance is sought at the close of plaintiff’s
case, the test to be applied is not whether the evidence
led by the
plaintiff establishes what would finally be required to be
established but whether there is evidence upon which a court
applying
its mind reasonably to such evidence could or might (not should or
ought to) find for the plaintiff. Gascoyne v Paul and
Hunter
1917
TPD 170
at
173; Ruto Flour Mills (Pty) Ltd v Adelson (2)
1958
(4) SA 307
(T).’”
[10]
The court must thus determine whether or not there is evidence
relating to all the elements of the claim to survive absolution
because, without such evidence no court could find for the appellant.
(
Marine
& Trade Insurance Co Ltd v Van der Schyff
1972
(1) SA 26
(A)
at 37G-38A; Schmidt
Bewysreg
4th ed at 91-2).
“
As
far as inferences from the evidence are concerned, the inference
relied upon by the plaintiff must be a reasonable one, not the
only
reasonable one.”
[11]
In
Build-A-Brick
BK en 'n Ander v Eskom
1996
(1) SA 115
(
0)
at 123 A - E
.
Hattingh
J found:
“
that
the test to be applied in determining the question whether the
defendant’s application for absolution from the instance
should
be granted is not whether the adduced evidence required an answer,
but whether such evidence held the possibility of a finding
for the
plaintiff, or put differently, whether a reasonable Court can find in
favour of the plaintiff. Consequently, at the absolution
stage the
plaintiff’s evidence should hold a reasonable possibility of
success for him and should the Court be uncertain
whether the
plaintiff’s evidence has satisfied this test, absolution ought
to be refused.”
[12]
Furthermore,
Casswell
v Powell Duffryn Associated Collieries Ltd
1939
(3) All ER 722
at
733
states
as follows:
“
Inference
must be carefully distinguished from conjecture or speculation. There
can be no inference unless there are objective facts
from which to
infer the other facts which it is sought to establish ... But if
there are no positive approved facts from which
the inference can be
made, the method of inference fails and what is left is mere
speculation or conjecture.”
THE
EVIDENCE:
[13]
The plaintiff led two witnesses, the 1st and 2
nd
plaintiffs.
The
2
nd
Plaintiff, Le Hanie Jnr took the stand first. Mr. Le Hanie Jnr
testified that he had been travelling from his father’s
house
to his mother’s house where he resides at approximately 5.45 pm
on Sunday 22 July 2014, later corrected to 20
th
July 2014, when the motorbike he was riding struck a pothole in the
road. He testified that the bike jerked beneath him and,
despite his best efforts, it was impossible for him to regain control
over the bike and both he and the bike fell. He indicated
that
the road surface was poor and visibility in the area where the
accident took place was also poor as it was dusk, almost dark,
the
sun was setting behind the trees and there were shadows on the road
surface. He testified that the street lights in the
immediate
vicinity of the accident scene were not working.
[14]
The court was taken through photographs of the accident scene and the
witness informed the court that the street was a single
lane
travelling in each direction, that it was a tarred surface and that
the road surface was badly damaged with potholes that
were both close
together and difficult to traverse. He encountered one group of
potholes that he managed to traverse safely
by riding between them
but then came upon the pothole he hit so suddenly that he saw it as
he hit it. Hitting the pothole
caused the bike to jerk, he lost
control, which he was unable to regain, and he crashed.
[15]
Plaintiff 2 indicated that the road is located in a residential area
and is approximately 4m wide. The road surface is
damaged and
potholed and the road markings on the road are faded. He indicated
the sidewalk was planted out with grass and gardens
and there were
trees with turned soil at their bases, offering him no room to pass
the potholes on the left. The only means
by which the potholes
could be avoided entirely was by riding in the right-hand lane into
the face of the oncoming traffic.
The witness indicated that as
he was approaching a T-junction he was afraid to do this as he
anticipated that he might be in danger
from approaching traffic.
[16]
Plaintiff 2 estimated the pothole he hit to be approximately 45cm
wide and maybe 50 cm long. He said he could not estimate
the
depth.
[17]
Plaintiff 2 stated that he was travelling at approximately 30-40
kilometers per hour when the accident occurred. He stated
he
reduced speed when he saw the first group of potholes and that he was
focused on the bend ahead, his need to stop at the T-junction
beyond
the bend and on the other potholes near the one that he hit, hence he
did not see the pothole he hit until he was on top
of it and it was
too late to take evasive action.
[18]
The witness then explained to the court that, after the collision
residents in the vicinity rendered him assistance and called
his
father and an ambulance. Paramedics attended him at the scene,
dressed his wounds, splinted his left leg and put him
onto a
stretcher, into an ambulance and conveyed him to the local
medi-clinic where he received further treatment.
[19]
The 2
nd
plaintiff testified that he suffered the following injuries:
Injuries
to ligaments of his left foot; laceration of his right knee that
required stitches, loss of skin on his right knee, shin
and calf
between knees and ankle, injuries to his right hand and arm and left
arm where there was further skin loss. Injuries
to his toes on
both feet.
[20]
The witness treatment at the hospital included the cleaning and
dressing of his various wounds. The wound to the right
knee
required he be taken to theatre where, under anesthetic, the wound
was cleaned, stitched and a drain was inserted. The
patient was
then returned to the ward. The witness indicated that while he
was in hospital (5 days) and for a few weeks (2-3)
thereafter, the
wounds had to be cleaned and redressed daily. He indicated that
this process caused him pain at a level of
8 out of 10 as the process
re-opened the wounds, taking the newly formed skin off. After
his discharge from hospital the
witness went to the doctor’s
consulting rooms for some dressing changes and his step mother
performed the other dressing
changes.
[21]
2
nd
Plaintiff had to use a moonboot and crutches for a few
weeks after the accident and, after he returned to school could not
wear
school shoes because of the injuries to his toes. It was
his testimony that he suffered pain on a scale of 6-7 out of 10 for
a
few weeks (2-3) after the accident as he had pain and discomfort
walking, especially when navigating stairs. He was unable
to
participate in his various sporting activities, one, (Krav Maga) for
3mths and he has been unable to resume the, Taekwondo as
it requires
him to be on his feet. He had participated in Taekwondo at a
competitive level and visited Korea to participate
in an open
international competition in 2011 where he won a bronze medal.
Krav Maga is only a hobby.
[22]
Plaintiff was, according to his testimony, possessed of a learner’s
permit to drive the motorbike at the time of the
accident. He
had been in possession of same for a period of approximately 4 weeks
at the time of the accident. The
license was issued on 24 June
2014. He testified that he had been wearing a helmet as
required by the law but, as the trip
was a short one, he had no other
protective clothing on at the time of the accident.
[23]
The court was taken through a series of photographs pages 9-32 of the
indexed court bundle. (Hereafter “Bundle
B”) These
photographs were taken by the 1
st
plaintiff who testified to that effect. The photos depicted the
street where the accident took place; damage to the road
surface and
potholes on the road; the street lights that were out of order; the
treatment of the 2
nd
plaintiff at the scene of the accident and later in the hospital; and
the plaintiff’s various injuries. The photographs
of the
injuries sustained were taken at the scene and later at the hospital
both on the night of the accident and in the day/ days
thereafter.
The photos of the street where the accident took place were
taken a few days (2-3) after the accident occurred.
The 2
nd
plaintiff did not point out to the first Plaintiff where to take the
photographs as he was in hospital when they were taken.
[24]
The 2
nd
plaintiff verified that the scene of the accident is depicted in that
the street in which the accident happened is shown, as is
the general
state of disrepair of the road surface. He however admitted
that the pothole he hit is not shown in the photographs
and was
further up the street from where the photos were taken. He did
estimate in testimony that the hole he hit was a mere
5 m beyond
where he passed the potholes depicted in the photos and thus, it is
puzzling that it cannot be seen on the photographs.
That said,
had the witness wished to mislead the court he could have claimed he
hit any one of the potholes actually visible on
the photographs.
[25]
2
nd
plaintiff was adamant that sand and gravel had been put into the
holes before the photos were taken. He assumed by residents.
[26]
2
nd
Plaintiff was adamant that he couldn’t avoid the accident,
there were simply too many potholes. He saw no warning signs.
[27]
It was his testimony that the road now has some visible repairs but
remains patched. Some holes are filled with ground
and others
topped with tar.
[28]
The 1
st
Plaintiff testified that he had taken the photos that had been shown
to the court (Bundle B) and that he did not ask his son to
point out
the actual pothole that he hit. He did not witness the accident
but arrived not long after it had taken place.
The ambulance
was on the scene when he arrived. As 1
st
plaintiff did not witness the accident, he was only able to
corroborate the events that occurred after his arrival at the scene.
APPLICATION
OF LAW TO FACTS:
[29]
The 1
st
and 2
nd
plaintiffs’ entire case
hinges on the existence of the pothole that is the alleged point of
impact of the motorcycle and
which it is alleged caused the accident.
As the 1
st
and 2
nd
Plaintiffs failed to report
the accident in terms of section 61 of the National Road Traffic Act
(93 of 1996), the court has been
deprived of the opportunity to have
before it, an objective assessment of the accident and the accident
scene which police could
have prepared. That said, the failure
of the Plaintiffs to report the accident to the authorities at the
time does not bar
their right to institute or pursue a civil action
to recover damages.
[30]
The absence of any objective report, sketch and, possibly also
photographs does, however present the court with something of
a
conundrum in that, aside from the 2
nd
Plaintiff’s bald assertion that there was a pothole in the road
that was unavoidable and that he hit, and the defendant’s
denial of this in its pleadings, there is no evidence before the
court to prove the existence or otherwise of the alleged pothole.
[31]
That the road is in a poor condition, as depicted in the photos on
page 9 and 10 of Bundle B does not lead to the reasonable
inference
that the pothole existed at the other end of the street. The fact
that the plaintiffs never returned to take a photo
of the offending
pothole in fact argues against such an inference. For the
plaintiffs to succeed with this claim would require
the court to
venture into the realm of speculation. This the court cannot
do.
[32]
Accordingly I have reached the conclusion that on the undisputed
facts, the issue has to be decided in favour of the defendant.
The plaintiffs have failed to present evidence by virtue of which a
reasonable person might possibly find in their favour.
I
therefore grant the defendant’s application for absolution from
the instance. 1st and 2
nd
Plaintiffs to pay the costs.
___________________
C.
NICHOLSON, AJ
On
behalf of Plaintiffs: Adv. R Van Der Merwe
T O’Reilly
Symington & De Kok
Attorneys
169B Nelson Mandela Drive
Bloemfontein
On
behalf of Defendant: Adv. Motaung
MJ Ponoane
Ponoane Attorneys
44 West Burger Street
Bloemfontein