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2017
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[2017] ZAKZDHC 21
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Milling Techniks v T. W. Stene (Pty) Limited (1502/2012) [2017] ZAKZDHC 21 (2 May 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
LOCAL DIVISION, DURBAN
CASE
NO: 1502/2012
In
the matter between:
MILLING
TECHNIKS (PTY)
LIMITED
Plaintiff
and
T.W
STENE (PTY)
LIMITED
Defendant
C
& F
CONSTRUCTION
First
Third Party
MM
MTSHWENI
Second
Third Party
JOSEPH
MASUBE
Third
Third Party
ORDERS
1.
The defendant is to compensate the plaintiff for 100% of its proven
or agreed damages.
2.
The defendant is directed to pay the plaintiff’s costs
occasioned by the action including any reserved costs.
3.
On payment by the defendant to the plaintiff of the amounts in
paragraphs 1 and 2, the defendant will be entitled to recover
50%
thereof from the first third party.
JUDGMENT
HENRIQUES
J
Introduction
[1]
The plaintiff’s action is for payment of the sum of R1 145 000
[one million one hundred and forty five thousand
rand] in respect of
damages to a 2008 Bomag Roller and 2010 Bomag Starfire GPS System.
[2]
The plaintiff alleges that on Friday, 10 June 2011, at approximately
15h15 pm, on the R38 near Carolina, a collision occurred
between the
Bomag Roller operated at the time by one Brian Ndlovu (Ndlovu) and a
grader loaded on a mechanical horse and trailer
driven at the time by
one Fani Guliwe (Guliwe).
[3]
The plaintiff pleads that at the time the collision was caused as a
consequence of the sole negligence of Guliwe in that:
[3.1] he failed to keep a proper look
out;
[3.2] he drove at a speed that was
excessive under the circumstances;
[3.3] he failed to apply his brakes
timeously or at all;
[3.4] he failed to avoid the collision
when by the exercise of reasonable care he could
and should have done
so;
[3.5] he travelled within a restricted
road construction area without having due regard to the Bomag Roller,
aforesaid, which was
within the construction area;
[3.6] he was driving an abnormal
vehicle with a grader loaded onto a trailer which grader had a blade
which was wider than the trailer,
thereby protruding over the sides
of the trailer causing danger to other vehicles;
[3.7] he conveyed an abnormal load
without the necessary permit, alternatively, without complying with
the conditions of the permit
if it existed; and
[3.8] he failed to travel within the
required distance of the lead escort vehicle escorting the abnormal
load.
[1]
[4]
The defendant denied any negligence on the part of its driver and
subsequently joined the first to third third party to the
action. In
the plea filed, the defendant denied that its driver, Guliwe was
negligent and pleaded negligence on the part of Ndlovu
as follows:
[4.1] he failed to keep a proper
lookout;
[4.2] he failed to have regard to the
defendant’s vehicle that was passing through and clear the road
way;
[4.3] he failed to avoid the collision
when by the exercise of reasonable care he could and should have done
so;
[4.4] he failed to heed the
instructions of the driver of the escort vehicles travelling at the
front and rear of the defendant’s
vehicle.
[5]
In the alternative, the defendant pleads that its vehicle was being
escorted at the time of the collision by escort vehicles
of C & F
Construction (the first third party), and the drivers of the escort
vehicles (Mtshweni and Masube) were negligent
and caused the
collision in that they failed to:
[5.1] ‘indicate to the driver of
the Plaintiff’s vehicle to clear the roadway to allow the
Defendant’s vehicle
to pass through;
[5.2] ensure that the roadway was
clear before instructing the Defendant’s driver to pass
through;
[5.3] keep a proper lookout;
[5.4] alert the driver of the
Defendant’s vehicle that the roadway was not clear and safe to
pass through.’
[2]
[6]
In relation to the defendant and the first third party, the defendant
pleads that it contracted with C & F Construction
to supply
certain drivers and escort vehicles to escort its vehicle and to
ensure the safe passage of travel of its vehicle to
its final
destination. In breach of the agreement, the drivers of the said
escort vehicles, Mtshweni and Masube, failed to maintain
a safe path
of travel for the defendant’s vehicle and as a consequence of
the negligent conduct of the second and third third
party, the
defendant’s vehicle was involved in a collision en route to its
final destination.
[7]
The defendant pleads that in the event of the court finding that the
defendant’s driver was negligent in causing the collision,
such
negligence arose out of the negligent conduct of the second and third
third party. Consequently, C & F Construction should
be liable
for the damages arising out of the collision as a consequence of the
drivers acting as agent for it, alternatively, furthering
the
interests of C & F Construction, alternatively, in that Mtshweni
and Masube were acting in the course and scope of their
employment
with C & F Construction.
[8]
At the commencement of the trial, by consent, I ordered a separation
of the issues of liability and quantum in terms of Rule
33(4) of the
Uniform Rules of Court.
[9]
Various exhibits were handed in by consent during the course of the
trial, and I will refer to them in so far as they are relevant
to the
findings I make. The photographs, exhibits “D” and “E”,
depict the scene of the collision, the overturned
Bomag Roller, the
abnormal load including the dozer, the blade of which appears to
exceed the width of the trailer.
[10]
The following were common cause, alternatively undisputed, namely:
[10.1] the date, time and area
of the collision, and the fact that there was road construction
taking place;
[10.2] the fact of a collision
occurring;
[10.3] the plaintiff’s
locus standi
to sue;
[10.4] vicarious liability on
the part of the plaintiff, defendant and first third party;
[10.5] the third third party was
no longer represented by the attorneys of record when the trial
commenced; and
[10.6] the contents of exhibit
“A” being approximate figures in respect of the
specifications of the particular
vehicles involved in the collision.
Issues
for Determination
[11]
As between the plaintiff and defendant, whether the drivers employed
by them at the time of the collision were negligent in
causing the
collision? As between the defendant and the first third party, in the
event of the court making a finding of negligence
on the part of the
defendant’s driver, whether the defendant will be entitled to a
contribution from the first third party
arising from negligence on
the part of the second and third third party?
The
evidence
[12]
The evidence presented during the trial is a matter of record and I
propose to only summarize the evidence in so far as it
is relevant to
the issues to be decided and the findings made in this judgment
regarding negligence.
Plaintiff’s
Case
[13]
The plaintiff led the evidence of the following witnesses. Hendrik
Pieterse confirmed he was employed by the plaintiff as a
contracts
manager at the time of the collision. On the day of the accident he
received a telephone call from Mr Claassens whereafter
he attended at
the stop and go area which was the scene of the collision. He
confirmed that the stop and go area only allowed traffic
flow on one
side, being on the tar section of the road. The stop and go area has
traffic delineators. Immediately prior to the
roadworks area are
traffic signs indicating the speed limit. In addition, delineators
are placed at intervals along the entire
route proceeding toward and
away from the stop and go area.
[14]
He confirmed that at the time of the collision, the slushing process
was taking place which involves the Bomag Roller and a
water tanker
which work hand in hand. The driver of the Bomag Roller as well
as the water tanker are not in communication
with each other and are
merely involved in a forward and backward movement on the gravel area
in which the slushing operation is
taking place. In addition, he
confirmed that the slushing process can only take place with the
Bomag Roller and the water tanker.
He confirmed that he placed the
impact area to the left of the Bomag Roller as on his arrival at the
construction area there was
a ‘huge indentation and gravel
impact with some heavy form of metal that broke off from the Bomag
Roller.’
[3]
He confirmed that on his arrival at the scene, his focus was on the
driver of the Bomag Roller who had sustained injuries when
the Bomag
Roller had overturned.
[15]
Mr Pieterse prepared a sketch four to five days after the collision
had occured and did not place the water tanker on the sketch
as it
had not been involved in the collision. He also confirmed that apart
from the Bomag Roller, the vehicles in the vicinity
had been moved
after the collision.
[16]
Brian Ndlovu, the operator of the Bomag Roller, confirmed that on the
day in question, he was performing a slushing operation
on the gravel
work surface next to the tar strip. He confirmed that the Bomag
Roller was behind the water tanker at the time. In
the process of
performing the slushing operation, he estimated that his Bomag Roller
was a distance of approximately 1 metre to
1.5 metres behind the
water tanker travelling at a speed of between 2 to 3 kilometres per
hour. At the time, he was performing
slushing operations extremely
close to the tar strip.
[17]
Whilst performing such slushing operations, he suddenly heard the
sound of a collision. He confirmed he did not see the abnormal
load
approach, as he was performing the slushing operation behind the
water tanker. His focus was on following the water tanker,
ensuring
he did not collide with it, but more importantly, that he did not
encroach onto the tarred portion of the road. Ndlovu
further
confirmed that there was no escort vehicle in his immediate vicinity,
neither did he receive any warning regarding an abnormal
load
[4]
approaching. Prior to the collision, no one hooted nor did any driver
of a vehicle flash their lights at him.
[18]
He confirmed having made a statement to the police which was handed
in as an exhibit, but denied having informed the policemen
that he
saw the abnormal load coming towards him. In addition, he confirmed
that the roller had a steering wheel and he was able
to manoeuvre the
Bomag Roller in a direction should he need to do so, but could not do
so quickly as the movement of the Bomag
Roller is slow.
[19]
He confirmed that at the time of performing the slushing operation,
traffic was moving from Carolina towards Hendrina and he
would be
able to hear the sound of any vehicles as they pass by the window of
the cab of his roller. The cab of the roller is slightly
lower than
that of the water tanker. On the day of the incident he did not
observe any vehicle collide with the roller.
[20]
During cross-examination,
Mr Jorgensen
, on behalf of the
defendant, suggested to Ndlovu that the driver of the defendant’s
vehicle, Guliwe, would testify that at
the time of the collision,
there was an escort vehicle in front of his vehicle which approached
the area where road works were
taking placing. The escort vehicle
travelled ahead of Guliwe and warned Ndlovu and others of the
approaching abnormal load. The
occupants of the escort vehicle drew
Ndlovu’s attention to the abnormal load and as a consequence,
Ndlovu moved further away
from the path of travel of the abnormal
load.
[21]
As a consequence of Ndlovu’s conduct, Guliwe then proceeded
through the construction area. Ndlovu then changed direction
and
began moving backwards and when the front part of Guliwe’s
vehicle was more or less parallel with the Bomag Roller, Ndlovu
altered his direction and moved forward which is why the collision
occurred as the end part of the dozer connected with the Bomag
Roller. In addition, Guliwe would dispute that there was a water
tanker in front of Ndlovu involved in the slushing process.
[22]
It was suggested to Ndlovu by
Mr Tucker
, who appeared for the
first and third third party, that the driver of the first escort
vehicle, Mtshweni (the second third party)
would testify that he was
driving the escort vehicle travelling in front of Guliwe. Mtshweni
observed Ndlovu when he was approximately
one hundred metres away
from the bridge. There was no water tanker directly in front of
Ndlovu. At the time, Mtshweni was travelling
at approximately fifty
kilometres per hour. On his approach to the stop and go area, when he
was on the bridge approximately 80
metres away, Mtshweni became
concerned about the proximity of the Bomag Roller in relation to the
tar strip.
[23]
He attempted to attract Ndlovu’s attention by flashing his
lights and when Ndlovu did not react he began to hoot. When
Ndlovu
still did not react, Mtshweni waved at him in order that Ndlovu move
away from the tar strip. Despite Mtshweni trying to
warn him for
approximately 20 seconds, Ndlovu did not notice any approaching
abnormal load, hence the collision. He testified that
in his view the
collision was caused as a consequence of Ndlovu not keeping a proper
lookout.
[24]
Vusi Richard Mabaso, (Mabaso) confirmed that on the day of the
collision he was the driver of the water tanker and was performing
a
slushing operation with Ndlovu, who was working in the Bomag Roller.
Mabaso testified that whilst he and Ndlovu were perforning
these
slushing operations, he noticed the truck carrying the dozer approach
and the blade of dozer protruding over the trailer.
He was driving
the water tanker in front of Ndlovu who was behind him in the roller.
At the time they were facing the direction
of Carolina on the
untarred section of the road and were working in very close proximity
to the tarred portion of the road. He
confirmed Ndlovu’s
version that when they perform the slushing operations, they travel
in a straight line behind each other
and there should not be too much
distance between the water tanker and the roller.
[25]
He testified that he became aware of the abnormal load before it
reached the bridge and recalled an escort vehicle travelling
in front
Guliwe’s vehicle. Whilst this happened he kept the roller in
his sight by looking through the side mirrors. As the
abnormal load
approached, the escort vehicle passed and he then saw the abnormal
load and the blade of its cargo protruding. It
was then that he
realised that if he did not move that he would be struck by the
blade.
[26]
The abnormal load had not yet reached the bridge and appeared not to
be travelling slowly, nor did it reduce speed as it was
going
downhill. At this stage he realised that the blade of its cargo
presented a problem, he moved further towards his right side
by
accelerating and swerving. The driver of the abnormal load did not
warn him of its approach, nor did the driver of the escort
vehicle.
He confirmed that as the abnormal load combination proceeded towards
him, the blade did not strike his water tanker as
he accelerated and
swerved to the right. As he did so he heard a loud noise and when he
looked in his side mirror, he noticed the
Bomag Roller lying on its
side. He then parked the water tanker a distance away from the
collision and proceeded on foot towards
the roller. He confirmed that
the escort vehicle driving in front of the abnormal load combination
did not do anything to alert
him to its presence or the presence of
abnormal load travelling behind him.
[27]
Mabaso confirmed that the roller does not move as fast as the water
tanker and could not say whether Ndlovu could have taken
the same
evasive action as he did. He testified that even if he did not see
Mtshweni waving to alert persons of the oncoming traffic,
he would
have seen him flash his lights. He denied that there were any warning
signals from Mtshweni before the collision.
[28]
Harold Claasen, the construction supervisor employed by the
plaintiff, confirmed they were busy with slushing operations at
the
time of the collision. He was at the milling machine approximately
sixty metres from the scene of the collision but did not
observe how
the collision occurred. He testified that what often occurs when an
abnormal load is to travel through a road construction
area, they
will inform the stop and go area of an approximate time that the
abnormal load will approach the area. If an abnormal
load approaches
and the abnormal load’s wheels are far over the work space, the
driver of the abnormal load normally stops
and asks for the road to
be opened. The delineators in the closed off area of the road are
then normally moved so that the abnormal
load can enter in that area
and pass through, whereafter the delineators are returned to the
original position. On the day of the
incident they did not receive
any warning of an abnormal load.
[29]
Mr Claasen testified that on the day in question he was not aware of
any escort vehicle leading the abnormal load nor did he
hear any
hooting. He testified that immediately after the collision the roller
was lying on the shoulder of the road, almost off
the road and the
tyres of the abnormal load were on the join of the tar strip and the
gravel area where the slushing operation
had been taking place. He
testified that even though he could not comment on the speed of the
abnormal load as it passed him, it
came to a stop more than 300
hundred metres from the accident scene on the same path that it had
been proceeding on. In other words,
with the tyres of the vehicle on
the join of the tarmac. The existing tarmac strip was between 3.5 to
3.6 metres wide.
[30]
That then was the plaintiff’s case.
Defendant’s
Case
[31]
The defendant led the evidence of Fani Elias Guliwe (Guliwe), a
driver employed by T W Stene, the defendant, at the time of
the
collision. On the day of the collision he was the driver and sole
occupant of a horse and trailer which was transporting a
grader from
Badplaas to its final destination. He testified that the area where
the collision occurred was under construction and
that it was
drizzling a little at the time of the collision. He testified that he
was being escorted by two vehicles, one in front
of him and one in
the rear. The escort vehicles bore signs indicating he was carrying
an abnormal load. Each escort vehicle had
two red flags and flashing
lights. His vehicle was equipped with four red flags, two in the
front and two in the rear, and the
headlights of his vehicle were on
indicating he was carrying an abnormal load.
[32]
He confirmed that the length of his horse and trailer was
approximately 20 metres and the width of the trailer was wider than
that of the horse but was such that the entire trailer fitted within
the width of a lane, although the bulldozer protruded from
the top of
the trailer and was longer in width. He acknowledged that he was
travelling from Carolina to Hendrina at the time and
that the road
which was under construction did not have any road signs indicating
such. The portion of the road which consisted
of two lanes had one
lane enclosed and only the right lane was in use.
[33]
Immediately prior to the collision, the escort vehicle did not warn
him that it was not safe for him to proceed through the
area. He
confirmed that at all times whilst driving through the area he
maintained his course and speed. He did not observe any
water tanker
performing a slushing process or travelling in front of the roller.
He testified that there was nothing he could do
to avoid the
collision but rather that the driver of the Bomag Roller could have
swerved away as there was space to the right side
of the Bomag
Roller. He testified that having regard to the photographs presented,
the water tanker arrived at the scene after
the collision had
occurred. He confirmed that whilst driving over the bridge and
exiting the bridge into the construction area,
he did not deviate to
his left or to his right as he could not do so as the low bed fits
into the whole lane and consequently he
remained on the tar strip. He
disputed the evidence that he had travelled some distance past the
bridge before the collision occurred.
[34]
During cross-examination Guliwe conceded that:-
[34.1] because of the overhang
of the dozer blade over the bed of the trailer, he had a permit;
[5]
[34.2] the escort vehicle had
passed the Bomag Roller when he saw the Bomag Roller before he
entered the bridge;
[34.3] he did not hoot or flash
his lights to warn the driver of the Bomag Roller of his approach as
the low bed truck has
four red flags and a light on top of the cab
which was flashing;
[34.4] as he was travelling
slowly he could have stopped his vehicle in a short space of time;
[34.5] the driver of the Bomag
Roller did not deviate from its path of travel; and
[34.6.] he observed Mtshweni move
ahead of him and could not say if Mtshweni hooted or waved at Ndlovu
as he approached him.
[35]
He denied that he could move to his right onto the gravelled portion
in an attempt to avoid the collision as the low bed trailer
was too
wide and would have possibly rolled over. He confirmed that as he
approached the roller, the side of the Bomag Roller was
on the left
side of the road, parallel to the tar strip, approximately 1.3 metres
from the edge of the road. He denied the version
put to Ndlovu that
he, Guliwe, had waved at him and flashed his lights at him and saw
him swerve. In addition and most importantly,
he conceded that the
overhang of the blade from the dozer was into the construction area.
[36]
That then was the defendant’s case.
Absolution
from the Instance
[37]
Mr Tucker
, who appeared for the first third party then sought
absolution from the instance in respect of C & F Construction. He
submitted
that the defendant’s witness, Guliwe conceded that if
he or Ndlovu had moved 10 centimetres to either side, there would not
have been a collision. There was no negligence on the part of
Mtshweni and consequently, the first third party was entitled to
an
order of absolution from the instance with costs.
[38]
Mr Frost
, appearing for the plaintiff, submitted that in terms
of the defendant’s plea, the first third party was required to
ensure
the safe path of travel of the defendant’s vehicle. The
version put to the witnesses differed and in addition, Mtshweni would
have to explain what measures he took when it was apparent the driver
of the Bomag Roller did not react to the hooting or flashing
of
lights. In addition, the defendant’s driver, Guliwe, and Mabaso
indicated that they did not observe Mtshweni wave or flash
his lights
or stop and speak to the driver of the Bomag Roller and warn him of
Guliwe’s oncoming approach.
[39]
When a party applies for absolution from the instance, the applicable
test is not whether the evidence establishes what would
finally be
required to be established, but rather 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. This is often
referred to as
prima facie
evidence or a
prima facie
case. The use of the words
prima facie
case means evidence
sufficient to avert the ruling of absolution from the instance but in
addition, is sufficient to cast a duty
to adduce evidence. It
requires an answer from the other party. Normally at absolution
stage, questions of the credibility of witnesses
are not investigated
except when the witnesses have palpably broken down and it is clear
that what they stated is not true. The
court must refuse absolution
from the instance unless it is satisfied that no reasonable court
could draw the inference which is
contended for.
[40]
At the hearing of the matter, I refused absolution from the instance
in respect of the application by the first third party
and indicated
my reasons would follow in the judgment.
Mr Frost
was correct
that what was pleaded by the defendant was that the second and third
third party were to ensure the safe path of travel
of the defendant’s
vehicle. During cross-examination a version was put to the witnesses
which called for a response from
Mtshweni and as a consequence
absolution was refused.
[41]
The first third party led the evidence of the driver of the first
escort vehicle Matthews Mtshweni. He confirmed that he was
employed
by the first third party as a driver of an escort vehicle in June
2011 and was dismissed by the first third party in March
2015. At the
time of the collision, he was escorting the defendant’s vehicle
and was travelling in front of Guliwe. The escorted
vehicle was a
truck with a low bed trailer transporting a bulldozer. It was a hot,
clear day and was not raining. He was travelling
past Carolina
proceeding towards Hendrina and observed a construction area. As he
approached the construction area, he noted a
Bomag Roller in the
construction area on the left hand side of the tar strip. He
proceeded before Guliwe’s vehicle and entered
the construction
area and slowed down next to the Bomag Roller and hooted, indicating
to Ndlovu, the driver of the Bomag
Roller that there was an
abnormal load approaching. According to him, Ndlovu waved him away
dismissively. He denied that at the
time he was unable to see the
driver of the Bomag Roller because a water tanker was in front of it.
He indicated that the driver
of the water tanker was driving away and
further that the abnormal load was not far behind him.
[42]
During cross-examination, Mtshweni conceded that the driver of the
defendant’s vehicle, Guliwe, would have taken the
lead from
him. He did not signal to Guliwe to stop as it was not safe for him
to proceed through the construction area. He conceded
that it was his
duty to ensure that Guliwe could pass safely through the construction
area. He testified that even if he stopped
his vehicle and got out of
his vehicle to warn Guliwe to stop, Guliwe would not have been able
to stop in time as he was
travelling on a downward slope with a
load and at an increased speed. He conceded that when he warned
Ndlovu of the oncoming abnormal
load driven by Guliwe, he was aware
that Ndlovu did not listen to him.
[43]
He did not answer the question put to him by
Mr Frost
that if
Ndlovu was not listening to him, he should have stopped Guliwe, and
that would have prevented the collision from occurring.
[44]
Even though he acknowledged that there was a gravel portion close to
Guliwe’s vehicle, Mtshweni testified that Guliwe
could not have
swerved to avoid colliding with Ndlovu as there were coal trucks
approaching. He also testified that the construction
area allowed for
two vehicles to pass at a time. [Had it not been for the coal trucks
it would appear that Guliwe could have swerved
to his right on
Mtshweni’s version.] Mtshweni confirmed that at all times
Ndlovu was within a marked off area within the
construction site. He
denied that there were any road markings or cones or any delineated
areas on the approach to the construction
site or in the construction
area.
[45]
That then was the evidence.
Submissions
of the parties
[46]
Mr Frost
,
who appeared for the plaintiff indicated that there were two courses
to follow in determining negligence. The first being
[6]
whether or not slushing operations were taking place? In the event
that slushing operations were not taking place, he submitted
that on
the versions of Guliwe and third party driver, Mtshweni, one could
still find negligence on the part of these individuals
for the
plaintiff to succeed in its claim.
[47]
Mr Frost
also submitted that one has the evidence of Mabaso
and Ndlovu as well as Claasen and Pieterse in relation to the
slushing operation.
There is also objective evidence, namely the
photographs indicating where the gouge marks occurred. In addition,
of further importance
to the plaintiff’s case, is precisely
where the collision occurred. Whether the defendant’s vehicle
had travelled some
distance away from the bridge when the actual
collision occurred.
[48]
In contradistinction,
Mr Jorgenson
, who appeared for the
defendant, indicated that the plaintiff’s driver was negligent.
It was clear on his evidence that the
accident occurred a distance
away from the bridge and that the driver of the Bomag Roller was
travelling relatively close to the
end of the gravel strip and close
to the tar strip. He further indicated that as confirmation of the
negligence of the plaintiff’s
driver is the fact that in his
evidence he testified that he did not move his vehicle appreciably.
[49]
In addition he submitted that the driver of the defendant’s
vehicle could not take any evasive action to the right despite
there
being a gravel patch, as the trailer was situated such that it would
tip over.
Mr Jorgenson
also submitted that at the time there
was no slushing operation taking place. He indicated that it was
possible that slushing operations
had taken place earlier on in the
day and consequently this would explain the dampness of the gravel.
He submitted that the defendant
and third parties’ witnesses
corroborated each other on material aspects, more specifically, the
presence or otherwise of
the water tanker.
[50]
Mr Tucker
, who appeared for the first and second third party
submitted that there was no negligence on behalf of the third
party’s.
He submitted that the defendant had not succeeded in
proving foreseeability, causation or any negligence on the part of
Mtshweni.
In addition, the defendant had not complied with the
provisions of Rule 13 in so far as claiming an indemnification or
contribution
from the third party and the pleadings were defective in
that regard.
[51]
Mr Jorgensen
on the other hand indicated that the defendant’s
driver relied on the escort vehicle being driven by Mtshweni.
Mtshweni in
his evidence, and Guliwe testified that the procedure was
that Guliwe would stop his vehicle when Mtshweni brought his vehicle
to a stop and would move it when Mtshweni moved. There was no
indication to Guliwe from Mtshweni that it was not safe for him to
pass through the area.
Analysis
[52]
In assessing the evidence tendered, in deciding negligence in this
matter, the credibility of witnesses and their reliability
and
probabilities are apposite. In
Stellenbosch
Farmers’ Winery Group Ltd & another v Martell et cie &
others
[7]
Nienaber JA formulated the test as follows:
‘
To
come to a conclusion with disputed issues a court must make findings
on
(a)
the credibility of the various factual witnesses;
(b)
their reliability; and
(c)
the probabilities. As to
(a)
,
the court’s finding on the credibility of a particular witness
will depend on its impression about the veracity of the witness.
That
in turn will depend on a variety of subsidiary factors, not
necessarily in order of importance, such as (i) the witness’
candour and demeanour in the witness-box, (ii) his bias, latent and
blatant, (iii) internal contradictions in his evidence, (iv)
external
contradictions with what was pleaded or put on his behalf, or with
established fact or with his own extracurial statements
or actions,
(v) the probability or improbability of particular aspects of his
version, (vi) the calibre and cogency of his performance
compared to
that of other witnesses testifying about the same incident or events.
As to
(b)
,
a witness’ reliability will depend, apart from the factors
mentioned under
(a)
(ii),
(iv) and (v) above, on (i) the opportunities he had to experience or
observe the event in question and (ii) the quality, integrity
and
independence of his recall thereof. As to
(c)
,
this necessitates an analysis and evaluation of the probability or
improbability of each party’s version on each of the
disputed
issues. In the light of its assessment
of
(a), (b)
and
(c)
the court will then, as a final step, determine whether the party
burdened with the
onus
of proof has succeeded in discharging it. The hard case, which will
doubtless be the rare one, occurs when a court’s credibility
findings compel it in one direction and its evaluation of the general
probabilities in another.’
[53]
In assessing the evidence of the witness Zulman JA in
Santam
Bpk v Biddulph
[8]
held that ‘the proper test is not whether a witness is truthful
or indeed reliable in all that he says, but whether on a
balance of
probabilities the essential features of the story which he tells are
true’.
[54]
The test for
culpa
although well-known is worth repeating. Holmes JA in
Kruger
v Coetzee
[9]
said:
‘
For
the purposes of liability
culpa
arises if –
(a)
a
diligens
paterfamilias
in the
position of the defendant –
(i)
would foresee the
reasonable possibility of his conduct injuring another in his person
or property and causing him patrimonial loss;
and
(ii)
would take reasonable
steps to guard against such occurrence; and
(b)
the defendant failed
to take such steps.’
[55]
I agree with
Mr Frost
that what is of importance to the
plaintiff in establishing negligence on the part of the defendant is
the following:
[55.1] Precisely where the
collision occurred; and
[55.2] Whether or not slushing
operations were taking place.
[56]
On his version, Guliwe did not take any evasive action before the
collision. Even though it was suggested during cross-examination
of
Ndlovu that he did, Guliwe’s evidence was that he did not. He
was aware that the blade of the dozer protruded over the
side of the
trailer bed. On his version he took no evasive steps to avoid the
collision. Given the test for negligence, the question
to be answered
is would a reasonable man in the position of Guliwe foresee that in
proceeding through the construction area without
altering his speed
and path of travel, there was a reasonable possibility of a collision
with Ndlovu, given the abnormal load and
being aware of the
protrusion of the blade of the dozer on the trailer bed? In addition
could he escape liability by relying on
Mtshweni?
[57]
On the objective evidence one must accept that slushing was taking
place and that Ndlovu was working in a protected area. Having
regard
to the photographs and the evidence presented, especially of where
the gouge marks were and where the vehicles were found
after the
collision, the collision occurred some distance away from the bridge.
[58]
On the evidence of Mtshweni, prior to entering the construction area,
Guliwe was a considerable distance away from him. However,
when they
entered the construction area, he travelled closer to Mtshweni, and
at a greater speed.
[59]
Prior to the collision, it would appear that Guliwe had sufficient
time and opportunity to move to his right and avoid the
collision.
Mtshweni acknowledges the existence of the gravel strip onto which
Guliwe could have moved, and says he could not do
so given the coal
trucks. The problem with this is that this presupposes the existence
of coal trucks and two lanes of travel.
[60]
The objective evidence is that there was only one lane for travel and
no other witness mentioned coal trucks. Guliwe confirms
one lane for
travel in the stop and go area, and his version as to why he could
not take evasive action and proceed into the gravel
area and avoid
the collision, was that the area was not level and the trailer would
have toppled over. However, on the plaintiff’s
version and that
of Mtshweni, the gravel area was flat and Guliwe could have moved his
vehicle into that area and avoid the collision.
[61]
Having regard to the photographs Guliwe? travelled some distance
before stopping his vehicle – this puts paid to his
version in
respect of the speed he travelled at and where he says the collision
occurred.
[62]
The first issue which requires consideration is whether there has
been any negligence on the part of the plaintiff’s
driver
Ndlovu? If one accepts that the slushing operation was in process, it
would then mean that the water tanker driven by Mabaso
was slightly
in front of Ndlovu. Ndlovu was in a protected environment, being a
construction area. Having regard to the objective
evidence, namely
the photographs which indicate that the construction area where the
compaction process was taking place was slightly
wet, in my view, on
the probabilities, the slushing process was taking place. Inasmuch as
Ndlovu was employed by the plaintiff,
Mabaso, the water tanker
driver, was not. His objective evidence is to the effect that he and
Ndlovu were in the process of performing
a slushing operation. This
was also confirmed by Claasen and Pieterse.
[63]
In addition, during his evidence, Mtshweni indicated that as he
approached the Bomag Roller, the water tanker was driving away
as if
it was going to fetch water. So he too places the water tanker in
close proximity to the Bomag Roller but disputes that the
slushing
process was taking place.
[64]
Mabaso’s evidence is that he observed the escort vehicle
proceed through the construction area followed by the abnormal
load
driven by Guliwe. He did not observe the escort vehicle or Guliwe
flashing lights or hooting to warn either him or Ndlovu
of the
presence of an abnormal load approaching.
[65]
In addition, even though Guliwe and Mtshweni testified that there
were no road markings or warnings as one approached or proceeded
through the construction area, of significance is Mtshweni’s
evidence that Guliwe could not slow down or move to the gravel
strip
to avoid colliding with Ndlovu due to the approach of coal trucks.
This aspect of Mtshweni’s evidence is consistent
with the
plaintiff’s witnesses that there was an area into which he
could have moved to avoid the collision. In addition,
even though
Guliwe and Mtshweni dispute the presence of road markers, chevrons
and delineators immediately prior to and exiting
the construction
area warning vehicles of a construction area and reduced speed limit,
one must accept that as it was not disputed
this was an area where
road construction was taking place, their evidence in this regard
cannot be correct. The photographs depict
this and therefore on the
probabilities, Guliwe and Mtshweni’s evidence in this regard
must be rejected.
[66]
Furthermore, Mtshweni’s evidence is that Guliwe would have
taken the lead from him. He confirmed Guliwe’s version
that he
did not hoot or flash his lights at Ndlovu to warn him of his
approach. Mtshweni’s evidence is to the effect that
it was his
duty to ensure that it was safe for Guliwe to proceed through the
construction area. He would have had the obligation
to warn Ndlovu of
Guliwe’sapproach. He indicated that he did not hoot or flash
his lights, but rather waved at Ndlovu to
warn him of Guliwe’s
approach. He also acknowledged that as Guliwe proceeded through the
construction area, Guliwe was closer
to him and would not have been
travelling as slowly as Guliwe would have the court believe, due to
the fact that he was proceeding
on a downward slope. The objective
evidence also does not support Guliwe’s version that the
collision occurred closer to
the bridge. The objective evidence as
depicted on the photographs and the evidence presented suggest that
the collision occurred
some distance away from the bridge.
[67]
The difficulty which one has is that Guliwe’s evidence and that
of Mtshweni appear to contradict each other. Of further
significance
is the fact that what was put to the plaintiff’s witnesses in
relation to what Guliwe and Mtshweni would testify
to was
different.
[10]
Moreover, Guliwe did not testify as to the movement of Ndlovu in
relation to him moving out of his path of travel. Guliwe in addition
was also aware of the fact that the dozer protruded and exceeded the
width of the trailer bed. He ought to have been aware that
while the
truck and the trailer fitted within the width of the tarmac, the
dozer blade would have protruded and thus have caused
a danger to
anyone travelling close by.
[68]
It must also be noted that no mention was made by any of the
witnesses of the presence of coal trucks as testified to by Mtshweni.
This would mean that had Guliwe kept a proper lookout he would have
been able to move the vehicle to the gravel strip, thus avoiding
the
collision with Ndlovu. The further difficulty in relation to
Mtshweni’s evidence is that he was aware, on his own version
that Ndlovu was not listening to him. He ought to have taken steps to
warn Guliwe not to proceed through the construction area.
[69]
Mr Jorgenson
suggested that the statement made by Ndlovu to
the police was indicative that he was aware of the presence of the
abnormal load
and was aware of the danger posed by the blade of the
dozer, and contradicted his evidence in court. In my view, not much
can be
made of the apparent differences between Ndlovu’s
evidence in court and the statement. He confirmed that he made the
statement
to a policeman and could not account for what had been
written by the policeman as the statement was not read back to him
before
he signed same.
[70]
In addition, not much can be made of the fact that Pieterse did not
sketch the water tanker – his explanation that he
did not do so
as it was not involved in the collision is a plausible one especially
as Mabaso said he had parked the water tanker
some distance away from
the collision. In addition he did not witness the collision and the
sketch was based on his observations
after it had occurred. Mabaso’s
explanation as to why he had parked the water tanker where he did and
his subjective fears
as he proceeded back to the collision area and
the Bomag Roller, in my view also cannot be criticized.
[71]
At the commencement of the trial the first third party’s
attorney had withdrawn as attorneys of record for the third
third
party. In my view this makes no difference to the vicarious
liability arising on the part of the first third party.
This is due
to the fact that at the time of the collision Mtshweni was employed
by the first third party and it would have been
vicariously liable
for any negligence on his part during the course and scope of his
employment. There is no plea that at the time
of the collision he was
engaged in an activity of his own. In addition, Mtshweni testified.
[72]
This brings me to the third party notice. The third parties have been
joined to the action by the defendant. The defendant
pleaded that it
had contracted the first third party to supply drivers and escort
vehicles, to escort the defendant’s vehicle
to its final
destination and ensure the safe passage of travel of the defendant’s
vehicle. In breach of that agreement the
drivers of the escort
vehicles failed to maintain a safe path of travel for the defendant’s
motor vehicle. The defendant
pleads that in the event of the court
finding that Guliwe was negligent in causing the collision, such
negligence arose out of
the negligent conduct of the second and third
third parties.
[73]
As a consequence the defendant seeks an order holding the first,
second and third third parties liable, jointly and severally,
the one
paying the other to be absolved for the sum of R1 145 000 in the
event of the court holding the defendant liable to
the plaintiff.
Such claim is conditional against the first third party and the
second and third third party. Even though the third
party notice does
not specifically state the defendant seeks an indemnification or a
contribution from the first third party, on
a proper interpretation
of such third party notice in the context of the pleadings filed, it
is clear that the defendant seeks
a contribution as against the
first, second and third third parties, should it be found liable to
the plaintiff.
[74]
In its plea the first third party has merely denied any negligence on
the part of its drivers and averred that the sole
cause of the
collision was as a consequence of the negligence of the driver of the
plaintiff’s vehicle and plead contributory
negligence on
the part of the defendant’s driver, in the event of the court
determining the collision was not caused solely
by the negligence of
Ndlovu. The first third party has not pleaded any contributory
negligence on the part of the second
and third third parties.
[75]
Insofar as the
lis
between the plaintiff and the defendant is concerned, it is apparent
that Guliwe was the sole cause of the collision. He proceeded
through
a construction area when it was not safe to do so, and failed to make
any attempt to avoid the collision by either swerving
or
alternatively travelling at a reasonable speed within the
construction area, alternatively ensuring that it was safe for him
to
proceed through the construction area knowing full well that the
blade of the dozer overhung the width of the lane in which
he was
travelling.
[11]
In addition he failed to take any steps to warn Ndlovu of his
approach timeously.
[76]
Even though the suggestion was that he would have relied on Mtshweni,
the authorities are clear that this does not absolve
him from his
responsibilities as a driver
[12]
not does it absolve him from a finding of negligence as a consequence
of Mtshweni’s presence and the obligation to take reasonable
precautions of his own,
[13]
and exercise ‘ a reasonable measure of expertise and the
ability to manage his vehicle.
[14]
Consequently,
in relation to the plaintiff the defendant is liable for 100% of the
plaintiff’s proven or agreed damages. Insofar
as the
lis
between the defendant and the third parties are concerned, even
though the third third party was not legally represented at the
trial, it was apparent that the first third party is liable for the
conduct of the third third party arising from his employment.
It is
not disputed that Guliwe’s negligence contributed to the
collision. In addition, having regard to the version
of
Mtshweni as to how the collision occurred, in my view Guliwe and
Mtshweni are equally to blame for the collision. It is appropriate
that on payment by the defendant to the plaintiff of its quantum and
costs, upon payment thereof the defendant will be entitled
to recover
50% thereof from the first third party.
[76]
In the premises the orders I issue are the following:-
[76.1] The defendant is liable to
compensate the plaintiff for 100% of its proven or agreed
damages.
[76.2] The defendant is directed to
pay the plaintiff’s costs occasioned by the action including
any reserved costs.
[76.3] Upon payment of the amounts in
paragraphs 1 and 2 to the plaintiff, the defendant will be entitled
to recover 50% thereof
from the first third party.
___________________
HENRIQUES
J
Case
Information
Date
of hearing
:
30
- 31 July 2014, 1 August 2014,
2
- 4 September 2015
Date
of judgment
:
2
May 2017
Appearances
Counsel
for Plaintiff
:
Mr
R. S. Frost
Instructed
by
:
Audie,
Botha & Edy
(T)
031-306 2651
Ref:
Mr Audie/PN/R.0200
7
th
Floor, Mercury House
320
anton Lembede Street
DURBAN
4001
Counsel
for Defendant
:
Mr
P Jorgenson
Instructed
by
:
Naidoo
& Company Inc
(T)
031-566 5271
Ref:
K Govender/1029
5
Pencanow Park
Armstrong
Avenue
La
Lucia Ridge Office Estate
4051
Counsel
for First, Second and Third Third Party
:
Mr
M. C. Tucker
Instructed
by
:
Botha
& Olivier Incorporated
239
Peter Kerchhoff Street
Pietermaritzburg
(T)
033-342 7190
(F)
033-342 7197
Ref:
S Botha/1029
[1]
Index to pleadings, pages 7 to 8.
[2]
Index to pleadings, pages 17 to 18.
[3]
Transcript of evidence,page 18.
[4]
In the
judgment reference to the abnormal load refers to the defendant’s
vehicle, the truck with the flatbed trailer on
which the dozer was
loaded.
[5]
This ground
of negligence was not pursued in argument.
[6]
He conceded that this was crucial to the plaintiff’s case.
[7]
2003 (1) SA 11
(SCA) para 5.
[8]
2004 (5) SA 586
(SCA) para 10.
[9]
1966 (2) SA 428
(A) at 430E-G.
[10]
Transcript of evidence, pages 63 and 100.
[11]
He ought to
have allowed more clearance for Ndlovu’s vehicle being aware
he was in a protected environment and the blade
of the dozer was
protruding.
Mapalala
v Marine & Trade Insurance Co Ltd
1979
(4) SA 735
(N) at 744
[12]
To keep a
proper lookout, to travel at an appropriate speed in the prevailing
circumstances, to take evasive steps to avoid the
collision.
[13]
S v
Vishnu
1970(3)
SA 320 (N) at 322;
S
v La Porta
1987 (1) SA 779
(C);
Shleifman
v Levin and Another
1961
(3) SA 277 (C).
[14]
Sardi
and Others v Standard and General Insurance Co Ltd
1977
(3) SA 776
(A)