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[2016] ZAFSHC 121
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Masiteng v MEC for Police, Roads and Transport (419/2013) [2016] ZAFSHC 121 (14 April 2016)
IN THE
HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No: 419/2013
In
the matter:
JONAS
MOKOMA
MASITENG
Plaintiff
and
MEC
FOR POLICE, ROADS
AND
TRANSPORT Defendant
HEARD
ON:
26-27
MAY, 17 JUNE, 14 SEPTEMBER & 1
DECEMBER 2015
DELIVERED
ON:
14
APRIL 2016
MIA,
AJ
[1]
The plaintiff drove his vehicle in the early hours of the morning on
the 7 April 2012 on the R716, a main road in the Free State
province
when he was involved in a collision. No other vehicle was involved.
The vehicle left the road and travelled on the gravel
on the left
hand side of the road and moved across the road to the right hand
side and nosedived into a ditch on the right hand
side of the road.
He sustained injuries and alleged that the cause of the accident was
the defendant's negligence as the road was
riddled with potholes. The
plaintiff claimed payment of the sum of R2, 470, 000.00 from the MEC
for Police, Roads and Transport.
The defendant denied liability.
[2]
The matter proceeded on the merits with the quantum being deferred by
agreement. An order was accordingly made. The parties
handed up an
unsigned joint minute of the experts and undertook to hand up the
signed copy during the course of the trial which
was set down for
three days. The matter was postponed by agreement on the third day.
The experts' joint minute became a point of
dispute and Mr Rontgen
appearing for the plaintiff informed the Court that the experts could
not agree on the joint minute. A signed
copy of the experts' joint
minute was eventually handed up on 1 December 2015, reflecting that
the minute was signed by both experts.
I will refer to the content
hereof later.
[3]
The plaintiff alleged that the accident occurred because the
defendant failed to keep the road in a reasonable and safe state
of
repair. It failed to adequately warn motorists of the existence of
dangers such as potholes when there was a legal duty to do
so and
that it failed to take all reasonable steps to ensure the safety of
those travelling upon the said road. The defendant denied
that it was
negligent in respect of the maintenance of the roads and if it were
found to be negligent, it denied that such negligence
was the cause
of the collision. It alleged that the plaintiff was travelling at an
excessive speed under the circumstances.
[4]
The defendant admitted the accident occurred on the road but placed
in dispute that the vehicle struck a pothole causing the
accident.
The defendant averred that the plaintiff was negligent in that the
plaintiff had failed to observe the road signs indicating
road works
and the condition of the road. The defendant also averred that the
plaintiff had failed to apply brakes timeously, drove
at an excessive
speed and failed to keep the vehicle under control.
[5]
The issues which arise for adjudication were:
5.1
whether there was a pothole as alleged;
5.2
whether it was the cause of the accident in
which the plaintiff was injured;
5.3
whether the defendant was negligent in one
or more or all the respects alleged, or at all;
5.4
in view of the defendants plea, and if
negligence were proved, whether the plaintiff's conduct contributed
to the collision in any
manner, and
5.5
the approprioate apportionment if the
plaintiff was negligent in any manner.
EVIDENCE
[6]
The plaintiff, Jonas Nkona Masiteng (Masiteng) was travelling on the
R716 from Vereeniging to Deneysville. He departed from
the family
home very early in the morning to attend a funeral. The sun had not
yet come out. He testified that he was travelling
at 100 kilometres
per hour and according to the speed limit on that particular section
of the road. He did not notice the pothole
in the road. He also did
not recall any signs that there were potholes or that the speed limit
was reduced due to potholes.
[7]
As soon as his vehicle made contact with the pothole his head hit the
roof of the vehicle. He lost control of the vehicle and
was unable to
control the direction the vehicle travelled in. After he hit the
pothole two of the tyres burst and the vehicle moved
to the side of
the road. As he approached the curve in the road, the vehicle
travelled on the left hand side of the road, crossed
the road to the
right hand side and then nosedived into a ditch on the right hand
side of the road. His tyres were ripped
off
and the front rim was scratched. He
visited the scene sometime after the accident occurred and saw a big
pothole with skid marks
close by. These marks, according to the
plaintiff, were from the rim of his vehicle and were made when his
vehicle veered across
the tarmac. He observed other potholes but they
were smaller.
[8]
The father of the plaintiff, Mr. John Masiteng (Masiteng Snr)
testified that he attended the scene of the accident after the
police
called to inform him there had been an accident. The vehicle was
still on the side of the road when he arrived but his son
had already
been conveyed to hospital. He followed the trail of the vehicle
backwards to ascertain the path of travel before it
came to a halt.
He observed scratches on the road, running from the left to the right
hand side of the road as the vehicle travelled
before coming to a
halt. The scratches traversed the width of the road from left to
right. He observed potholes on the road and
one particularly big
pothole. He also confirmed that his son did not injure his hip before
the accident. He stated that while he
was on the scene he observed
correctional services staff cutting the fence.
[9]
According to Masiteng Snr. the pothole was approximately twenty
centimetres across and quite deep. His view was that it would
not
have been visible in the dark but it would have been visible to a car
with lights. He observed smaller potholes after the big
pothole. He
observed that the left front and back tyres of the vehicle were
damaged and ripped and that the rim was scratched.
He also observed
scratch marks after the big pothole when the vehicle changed course
from left to right.
[10]
Mr Petrus Twala (Twala) is the cousin of the plaintiff. He visited
the scene a day after the accident to inspect the roadway.
He was
accompanied by other persons who also visited the scene on the day of
the accident. He observed a big pothole approximately
thirty to
thirty five centimeters in diameter. He also testified that the mark
on the left hand side of the road was still visible
three months
later. He observed that the tyres and left rim were damaged on the
left hand side of the vehicle. The tyres were on
the rim but were
ripped. He recalled that the front and back tyres were damaged. He
saw the vehicle when it was towed and stored
at home. He could not
recall how far the pothole was from where the vehicle came to a halt.
He recalled that there was a mark on
the road just after the pothole
which went off to the left and then the mark continued on the road to
the right hand side of the
road onto the gravel to the position the
vehicle came to a halt.
[11]
Mr. Masona Murabe (Murabe) testified that he is employed in the South
African Police Service. He is stationed at Deneysville
and holds the
rank of Constable. He compiled the motor vehicle accident report (the
report) relating to the collision on the 7
April 2012. He confirmed
the details noted in the report : the accident occurred 10 km out of
Deneysville on the R71; there were
no other vehicles involved in the
accident; the accident was estimated to have occurred at 06h00; the
speed travelled as informed
by the plaintiff was 100 kilometres per
hour; the vehicle was a BMW 320i. The road was a single carriage on a
two way road. The
weather was clear; the road surface was tarmac and
was dry. He noted that the quality of the road was good and there
were no potholes.
Murabe testified that he obtained information from
the driver who was conscious but in pain. The driver handed him the
keys and
his driver's license.
[12]
Murabe noted that there were no obstructions on the road and the
topography of the road indicated a downward slope in the direction
the plaintiff was driving. He was informed by the driver that the
vehicle overturned and rolled to the point it remained stationery.
He
noted burst tyres, namely two at the back and one in the front on the
left hand side, although the tyres were still on the rim.
He also
noted a skid mark of 20 metres on the left hand side of the road.
Murabe testified that in his view, the driver had exceeded
the speed
limit Which caused the accident. He drew this conclusion from the
information available on the scene.
[13]
He testified that he inspected the road before drawing the sketch.
There was a sharp curve in the road. There was a regulated
"stop
and go" point controlling traffic on the road. The "stop
and go" point covered a stretch of road where
only one lane of
traffic on the two way lane was allowed to pass on the road for a
period of time in either direction whilst workmen
worked on the other
half of the road, effecting repairs. This point ended just before
Groenpunt Correctional Facility and before
the curve and the 9 km
marker in the road.
[14]
From his observation the vehicle came to a halt on the right hand
side of the road opposite the Groenpunt Correctional Facility.
The
barbed wire was intact even though the vehicle went through the
barbed wire fence. The poles were however bent. He did not
see any
potholes or repaired potholes in the vicinity. He conceded that there
were skid marks on the road. He testified that the
skid marks were
not reflected on the report because he forgot to note them. He
admitted however that they were important in determining
the cause of
the accident. He stated that the tyres on the vehicle were flat but
intact and had not burst when he looked at the
vehicle.
[15]
His observation was that after the "stop and go" point, the
road was in perfect condition before the point of impact.
He noted in
the report that the vehicle rolled. He also conceded that if the car
had rolled the roof would have been damaged. He
admitted that the
roof of the vehicle was not damaged when he saw the vehicle. He also
stated that he forgot to mark the skid marks
caused by the rim on the
road. He recalled the skid marks on the road but forgot to place them
on the sketch. His explanation for
this omission was that he was not
good at drawing sketches. He observed tyre marks on gravel but not on
the tarmac.
[16]
The report prepared by Murabe noted the burst tyres but his oral
evidence was that the tyres were not burst. The report thus
contradicted his oral testimony regarding the tyres. This witness was
present in court whilst the evidence of the plaintiff was
led. The
value of his evidence is compromised in terms of serving as an
independent witness as well in respect of the internal
inconsistency.
Murabe who was present at the scene of the accident and prepared the
police report relating to the accident did
not however dispute the
photos taken by plaintiff. He admitted that the photographs on page 6
of the bundle looked like repairs
to the road. The point of repairs
was a distance of 460-479 metres from where the vehicle came to rest
on side of the road.
[17]
The second witness for the defence Mr. Soho Meshack Mokoena
(Moekoena) is employed at the Free State Police Roads and Transport
Department at Heilbron for 36 years. He was appointed as a senior
foreman for the last 15 years. He stated that in 2012 when the
accident occurred he was one of the foremen on duty. His task was to
plan the work schedule and give instructions to the team regarding
the work to be executed and to check whether they were executing
their duties in line with the instructions given. He received
weekly
sheets regarding work executed. He did not inspect the road every
day, however he recalls there were signs indicating that
there were
road works occurring and workmen on the road. He testified that four
"stop and go" signs were erected on the
road and danger
signs were erected on the side of the road in both directions. The
signs indicated road works and included a sign
to reduce speed.
[18]
He referred in his evidence to the instructions and work schedules
relating to road construction in 2012. He did not prepare
the
particular worksheet for the area where the accident occurred. The
work schedule handed up indicated the square metre of product
used.
He explained that based on the amount of product indicated in the
table he estimated that the repairs were massive. He maintained
however that the stretch where the road was repaired was so as to
maintain uniformity of the road surface rather than to repair
potholes.
SUMMARY
OF EXPERTS' JOINT MINUTE
[19]
The experts were not called as witnesses however I was requested to
have regard to the joint minute and to assess the oral
evidence in
relation to the joint minute. The experts' minute took into account
the plaintiff's version that the collision was
caused when he hit a
pothole. They agreed that they could not establish which particular
pothole it was that the plaintiff went
through. They agreed that the
area Indicated by
the plaintiff on the road
had been repaired and the repairs were consistent with the repair of
potholes. This area, alleged to be
riddled with potholes at the time
of the collision, was 195 metres before reaching the 9 kilometre
marker on the road. The vehicle
came to rest approximately 200 metres
past the 9 kilometre marker.
They agreed further that the
vehicle travelled a distance of 345 to 395 metres from the area of
the pothole to the point it came
to rest.
[20]
Based on the plaintiff's version that he travelled at a speed of 100
kilometres per hour and having regard to the point of
rest of the
vehicle after the collision, they agreed that it would have taken
12.4 to 14.2 seconds to cover the distance of 345
to 395 meters. If
the plaintiff was
compos mentus
they
agreed that this time would have been sufficient for him to have
brought the vehicle to a safe stop in advance of the area
where it in
fact came to rest. This calculation was based on a stopping distance
of 98 metres travelling at 100 kilometres per
hour which included a
visualisation, perception and reaction time of 1.5 seconds. They
agreed that generally it should take approximately
5.5 seconds to
stop the vehicle from a speed of 100 kilometres per hour including a
visualisation, perception and reaction time
of 1.5 seconds. They
further agreed that it would have been highly fortuitous for the
plaintiff to negotiate the sharp curve to
the left in the road and to
travel so far past the curve and then come to a rest, if he was
non
compos mentis.
They also agree that if
he was
non compos mentis
it
was highly unlikely that the plaintiff's foot would have jammed on
the accelerator pedal for an extended period of time, which
implied
that his speed on striking the pothole would have been in excess of
100 km per hour. In simple English I understand the
experts to
conclude that, in order to have travelled the distance traversed
before stopping, the plaintiff travelled at a speed
in excess of 100
kilometres per hour. It should have taken him 1.5 seconds to react
and apply his brakes and to bring the vehicle
to a
stop within
5.5 seconds and 98 metres from the point of hitting the pothole.
CASE
LAW
[21]
In assessing the evidence tendered, in deciding negligence in this
matter, the credibility of the witnesses, their reliability
and the
probabilities are apposite. The articulation of
Nienaber J, in
Stellenbosch Farmers
Winery Group & Another v Martell et Cie
&
Others 2003(1)SA 11 (SCA)
at
para [5] formulates the test as follows:
"To
come to a conclusion on the 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)(
i i),
(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."
[22]
In assessing the evidence, I have had regard to the
dictum
of Zulman JA in
Santarn
Bpk v Biddulph
2004 (5) SA 586
(SCA)
at
para [10]
where the Court states:
"
However, 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 (cf
R v Kristusamy
1945
AD 549
at 556 and HC Nicholas "Credibility of Witnesses"
(1985) 102
SALJ
32
especially at 32-35)."
[23]
Masiteng Snr, Twala and Murabe's evidence relate to observations
after the collision occurred regarding the road and the vehicle.
From
the evidence of the plaintiff's witnesses it is clear that there were
skid marks on the road. Murabe did not indicate skid
marks on the
road in the report but conceded in testimony that he forgot to
indicate the skid marks in the report. He also indicated
in the
report that there were no potholes on the particular stretch of road
but did not dispute the photographs of the pothole
in the plaintiff's
photos during cross examination. From the evidence of these witnesses
it is clear that there were potholes and
skid marks on the road. It
is also evident from the evidence that there were road works on the
road.
[24]
The plaintiff's photos taken shortly after the accident were not
clear. Had the photographs of the relevant area been clear
it would
have been possible to show that there were no road signs as alleged
by the plaintiff. The photo shows a point in the road
referred to as
repairs. The experts accept that there were repairs to potholes in
the road. Moekoena's evidence was that the road
was properly
signposted to indicate road works and to reduce speed accordingly.
The photographs of the area taken one year later
show the roadwork
signage as well as reduced speed signage. It is clear from the
photographs taken by the defendant that (at least
one year after the
collision) drivers on this road were alerted to a reduced speed being
applicable and that the speed of 100 kilometres
per hour as testified
by the plaintiff was not applicable. The signage in the plaintiff's
photos is not visible.
[25]
In determining liability I have had regard to the "reasonable
man test” as set out in
Kruger v Coetzee
1966 (2) SA 428
(A)
at 430E-F
where Holmes JA stated:
"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."
[26]
The probabilities indicated by the experts based on the plaintiff's
version indicate that the plaintiff was probably travelling
at a
speed in excess of 100 kilometres per hour to have ended up on the
right hand
side of the road in the ditch.
In
RAF v Sharma; RAF v McAlister and Another
2005 JOL 14568
(T)
at
7, Van der Merwe J refers to the 1984 Oliver Schreiner
Memorial
Lecture
delivered by HC Nicholas J (as
he then was), "Credibility of witnesses", published in 102
(1985)
SALJ
at
32 in relation to credibility of witnesses where the learned
author says:
"A
witness is proved to be in error where his statements are
contradicted by the proved facts or where he is guilty of
self-contradiction.
Where he has made contradictory statements, since
both cannot be correct, in one at least he must have spoken
erroneously. Yet
error does not in itself establish a lie. It merely
shows that, in common with the rest of mankind, the witness is liable
to make
mistakes. A lie requires proof of conscious falsehood, proof
that the witness has deliberately misstated something contrary to his
own knowledge or believe." (check spelling -is it "believe"
or "belief'?)
[27]
In respect of the factual causation and negligence, the plaintiff's
case was that the collision had occurred as a result of
the condition
of the road and the defendant's failure to warn motorists of the
danger and or to take steps to avert the danger.
Several witnesses
were called upon to comment on the condition of the road. It was
evident that the road was riddled with potholes.
The road works
indicate the defendant was addressing this problem. The plaintiff
asserted that the warning signs on the road had
been non-existent and
insufficient and submitted that the defendants should have erected
signs warning the public of the existence
of potholes. The
plaintiff's photographs do not prove this statement. The defendant's
photographs show reduced speed signs in the
area, and there is
nothing to suggest that these signs were not present at the time of
the collision
[28]
The plaintiff has not succeeded in proving that the defendant failed
to maintain the road as road works were occurring at the
time. There
was no unexpected emergency or sudden danger. The road was being
repaired and the photos tendered in evidence indicate
that there were
signs indicating reduced speeds applicable. A driver in the position
of the plaintiff ought to have kept a proper
look out and if this was
done, the signage indicating reduced speed, and repairs effected to
'the road would signal to the diligent
driver to be careful. The
topography of the road also indicated downward slope and a bend which
required an adjustment of speed.
The plaintiff's evidence that he
travelled at 100km per hour was not an appropriate speed for a
portion of the road characterised
by road works and reduced speed.
[29]
The plaintiff's evidence indicated that he lost control when he hit
the pothole. It seems probable that upon hitting the pothole
he lost
control of the vehicle, moved onto the gravel to the left and to
correct his direction at the speed he was travelling,
turned the
steering wheel too far to the right causing him to move across the
road into the ditch on the right hand side. The plaintiff's
evidence
indicated that he was able to avoid smaller potholes. Even if he did
not observe the signage, the act of avoidance of
these potholes
indicated that he was aware of the condition of the road. There is no
explanation why he was not able to observe
the big pothole and
instead drove through it. His father's evidence was that a vehicle
with lights would have seen the pothole.
There was no suggestion that
the vehicles' lights were defective. On his own evidence he lost
control of the vehicle upon hitting
the pothole suggesting that he
travelled at an excessive speed and, at least, at a speed at which he
could not maintain control
of the vehicle having regard to the
topography of the road.
[30]
The experts' joint minute agreed on the probabilities of the version
of events given by the plaintiff. It seems that the plaintiff
if
indeed he lost control of the vehicle tried to regain control by
applying action to the steering wheel causing the vehicle to
cross
the road to the right. Even if it was accepted that factual causation
existed and the collision had occurred as a result
of the pothole the
question is whether the plaintiff had, on a balance of probabilities,
proved negligence. In this regard the
question is whether the
defendants had failed to display proper and adequate road signs on
the road in order to warn road users,
or to make them aware, of the
dangerous condition of the road. The danger to road users was
foreseeable.
[31]
The next question is therefore whether reasonable steps had been
taken to prevent the damage. Having regard to the evidence
of Murabe
and Mokoena the "stop and go" points and surrounding signs
indicated reduced speeds applicable and roads works
in progress and
indicated a reduced speed applicable. This evidence shows that the
defendant had taken steps to meet its obligation
to maintain the road
and to warn road users of the road works in progress. In the
circumstances, the plaintiff has not shown what
other steps could
reasonably have been expected to be taken by the defendant or what
other safety measures could have been taken.
The plaintiff has not
proved negligence on a balance of probabilities and his claim cannot
succeed.
[32]
The defendant requested a punitive cost order in the matter in the
event that this court found in favour of the plaintiff in
view of the
matter not proceeding on quantum. At the outset of the matter the
parties indicated that the matter would proceed on
the merits only.
This matter was set down for three days and proceeded on the merits
only. No expert witnesses were present. The
award of costs is in the
discretion of the court, which discretion must be exercised
judiciously. A punitive order for costs usually
signals the court's
displeasure at the manner in which a party has conducted himself in
relation to the matter. I am unable to
find that the plaintiff
conducted himself in a manner that warrants a punitive costs order. I
am, therefore, not satisfied that
a punitive costs order is
appropriate under the circumstances.
ORDER
[33]
In view of the above the following order is made:
1.
The plaintiff's claim is dismissed.
2.
The plaintiff is ordered to pay the costs
of the defendant which includes the cost of two counsel.
____________________
S.C.
MIA, AJ
On behalf of the
plaintiff: Mr
KM Rontgen
Instructed
by: Rontgen
& Rontgen Inc.
Pretoria
(c/o
Mcintyre & Van Der Post Attorneys, Bloemfontein)
On behalf of the
defendant: Adv
JY Claasen SC assisted by Adv B
S Mene
Instructed
by: The
State Attorney
BLOEMFONTEIN