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[2016] ZAFSHC 197
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Potgieter v Lingenfelder (A204/2014) [2016] ZAFSHC 197 (24 November 2016)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable: NO
Of Interest to other
Judges:NO
Circulate
to Magistrates:NO
Case number:
A204/2014
In the
matter between:
HENDRIK
JOHANNES POTGIETER
Appellant
and
ANNA
SUSANNA LINGENFELDER
Respondent
CORAM:
RAMPAI,
J et DAFFUE, J
JUDGMENT
BY:
DAFFUE, J
HEARD
ON:
17
OCTOBER 2016
DELIVERED
ON:
24 NOVEMBER 2016
I
INTRODUCTION
[1] A
motor vehicle collision on 28 May 2010 between a truck and trailer
and a light motor vehicle (“LDV”) on the N1,
south of
Bloemfontein near the Tierpoort dam exit led to the litigation in
casu. This is an appeal against the judgment of
the
magistrate’s court, Bloemfontein finding that defendant was
solely responsible for the collision.
II
THE
PARTIES
[2]
Appellant is Mr H J Potgieter, the unsuccessful defendant in the
court
a
quo
.
[3]
Respondent is Ms A S Lingenfelder, the successful plaintiff in the
court
a
quo
.
[4]
I shall refer to the parties as in the court
a
quo
in order to avoid confusion.
III
ORDER
OF THE COURT
A
QUO
[5]
The merits and
quantum
were separated and after hearing evidence on the merits, the court
a
quo
made the following finding:
“
Na
oorweging van die getuienis, bevind die hof dat die botsing waaroor
dit in die onderhawige saak gehandel het, veroorsaak is deur
die
uitsluitlike nalatigheid van die verweerder. Die teeneis word
afgewys. Uitgestel
sine
die
vir beregting van quantum en koste.”
Hereafter
the parties settled the
quantum
of plaintiff’s claim in the amount of R45 200,00 together
with interest thereon whereupon the court
a
quo
made an appropriate order and also held defendant liable for payment
of plaintiff’s taxed or agreed party and party costs.
This order was made on 19 May 2014.
IV
BRIEF
SUMMARY OF THE EVIDENCE
[6]
The evidence tendered will be discussed in more detail
infra
when I evaluate the court
a
quo’
s
reasons and submissions by the parties. However a brief summary
of the evidence is required to put the reader in the picture.
[7]
The driver of the plaintiff’s truck was Mr L Stander
(“Stander”). He was at all relevant times followed
by Mr Dennis le Roux (“Le Roux”) who was also driving a
truck. They were travelling southwards on the N1 towards
the
Eastern Cape after off-loading freight at Fouriesburg in the Eastern
Free State. (The reference to Fauresmith in certain places
of the
record and in the evidence of Stander is objectively speaking
incorrect. It is common cause that plaintiff resided
in the
district of Fouriesburg and the goods transported had been off-loaded
on her farm.
[8]
Shortly after sunset a collision occurred on the N1 just before the
Tierpoort dam off-ramp for vehicles coming from Bloemfontein.
The
headlamps of the vehicles were switched on. Neither of the two
trucks driven by Stander and Le Roux respectively
was at any relevant
stage in its incorrect side of the road. Defendant’s LDV,
approaching from the front and thus moving
in a northern direction
towards Bloemfontein, veered to its right-hand-side, crossed the
white centre lines demarcating the middle
of the road and initially
came in collision with plaintiff’s truck whereupon it spun out
of control, hitting plaintiff’s
trailer and thereafter Le
Roux’s truck. The LDV came to a standstill across the
yellow line on its incorrect side of
the road. There is no
conclusive proof of an exact area of collision, not even to speak of
a point of collision, based on
any real evidence and the court
a
quo
had
to rely on the
viva
voce
evidence
of the eyewitnesses in respect of the movement of the vehicles and
the removal of debris from the road afterwards.
[9]
According to Stander the point of collision was close to the yellow
line on his correct side of the road, whilst Le Roux was
uncertain in
this regard as he did not have a clear view to the front of
plaintiff’s truck. However, he was adamant
that the
collision occurred in Stander’s correct side of the road and
thus to the left of the white centre lines as they
were travelling.
Defendant, on the other hand, has no memory of what happened and was
of no assistance. His son, Mr
Potgieter Jnr, (“Potgieter
Jnr”) visited the scene afterwards and based on his
observations tried to persuade the court
that the impact and/or point
of collision was in defendant’s correct side of the road.
[10]
The court
a
quo
was satisfied that the various witnesses could be regarded as
credible and honest and Le Roux in particular made a good impression
on her. In fact, Le Roux’s evidence was regarded to be
beyond reproach by Mr Schuurman who appeared for defendant in
the
court
a
quo
and Mr Snellenburg who appeared in the appeal on behalf of defendant
before us. They accepted that he was a good and credible
witness.
V
GROUNDS
OF APPEAL
[11]
Defendant relies on not less than seventeen grounds of appeal.
It is not my intention to quote these, but I shall do
my best to
summarise the essential grounds of appeal. According to
defendant the court
a
quo
erred in the following respects:
11.1
In finding that the collision occurred in the eastern side of the
road, i.e. in Stander and Le Roux’s
correct side of the road,
or stated otherwise, in the lane for traffic from Bloemfontein to
Cape Town, whilst it should have found
that the collision occurred in
defendant’s lane, i.e. in the lane of traffic travelling from
south to north.
11.2
In not considering material contradictions in the versions of Stander
and Le Roux and in finding that Stander
was a credible witness
notwithstanding the fact that he was contradicted by Le Roux; that
Stander’s version was improbable
and overall not
credible.
11.3
In not making a negative deduction insofar as plaintiff failed to
call the passengers in her truck.
11.4
In finding that Potgieter Jnr tried to reconstruct the collision, and
in doing so failed to take photographs
of the spiral oil spillage
allegedly starting on defendant’s correct side of the road and
continuing to the position where
defendant’s LDV came to a
standstill.
11.5
In concluding that the position of the LDV after the collision is
reconcilable with the version of Stander
and Le Roux that the
collision occurred in Stander’s correct lane of traffic.
11.6
To find that Potgieter Jnr’s version as to the point of
collision was improbable.
11.7
To place too much emphasis on the damages caused to the
right-hand-side of the two trucks in reasoning where
the collision
occurred, especially bearing in mind that Le Roux testified that the
LDV was spinning out of control in his direction.
VI
APPLICABLE
LEGAL PRINCIPLES
[12]
It is an established principle that where an appeal is lodged against
a trial court’s findings of fact the court of appeal
must take
into account that that court was in a more favourable position than
itself to form a judgment. Even when inferences
from proven
facts are in issue the court
a
quo
may also be in a more favourable position than the court of appeal
because it is better able to judge what is probable or improbable
in
the light of its observations of witnesses who have appeared before
it. Therefore if there are no misdirections on fact
a court of
appeal assumes that the court
a
quo
’s
findings are correct and will accept these findings unless it is
convinced that these are wrong. See
R
v Dhlumayo and Another
1948
(2) SA 677
(AD) at 705 to 706. Therefore in order to interfere
with the court
a
quo’s
judgment it has to be established that there were misdirections of
fact, either where reasons on their face are unsatisfactory
or where
the record shows them to be such. See also
S
v Monyane and Others
2008 (1) SACR 543
(SCA) at para [15] where the SCA stated that it is
only in exceptional cases that it would be entitled to interfere with
the trial
court’s evaluation of oral evidence.
[13]
I accept that the advantages which a trial court enjoys should not be
over-emphasised “
lest
the appellant’s right to appeal becomes illusionary
”
,
as mentioned in
President
of the Republic of South Africa and Others v South African Rugby
Football Union and Others
2000 (1) SA 1
(CC) at para [79] and the CC continued to state that
the truthfulness or untruthfulness of a witness can rarely be
determined by
considering demeanour alone without regard to other
factors including, especially, the probabilities.
[14]
Stander was criticised for making contradictory and improbable
estimates. This is not an unusual feature when the evidence
of
eyewitnesses is considered. In motor vehicle collision cases
the respective drivers and eyewitness are without exception
requested
to estimate aspects such as speed, duration and distance. It is
obviously necessary to obtain clarification from
witnesses, but there
can be no doubt that it is notoriously difficult for anyone to make
accurate estimates in the proverbial split
second and/or in the agony
of the moment. See
Olivier
v Rondalia Versekeringsmaatskappy Van SA Bpk
1979
(3) SA 20
(AD) at 26-27 and
Rodrigues
v SA Mutual and General Insurance
1981 (2) SA 274
(AD) at 279 and 280. A strictly mathematical
approach, although undoubtedly very useful as a check, can rarely be
applied
as an absolute test in collision cases since any mathematical
calculation depends on exact positions and speeds whereas in truth
these are merely estimates almost invariably made under circumstances
wholly unfavourable to accuracy. See
Van
der Westhuizen v SA Liberal Insurance Co
1949 (3) SA 160
(C) at 168 quoted with approval in
Diale
v Commercial Union Assurance Co of SA Ltd
1975 (4) SA 572
(AD) at 577A.
[15]
I wish to quote the following from Cooper,
Delictual
Liability in Motor Law
,
1996 ed, vol 2 at 471, relying
inter
alia
on
President
Insurance v Tshabalala
1981 (1) SA 1016
(A),
Kapp
v Protea Ass
1981 (3) SA 168
(A) and
Marine
& Trade Ins v Van der Schyff
1972 (1) SA 26
(A):
“
In
a civil case a court is obliged to determine all issues on a balance
of probabilities. If on the totality of the facts,
and after
making due allowance for the risk of error, the court is satisfied on
a balance of probabilities of the reliability of
the estimates, there
is no reason why it should not adopt a ‘mathematical’
approach, not merely as a ‘useful
check’ but to determine
the negligence issue. The many reported judgments in collision
cases reflect the important
role this line of reasoning plays in the
determination of the negligence issue.”
[16]
It is necessary to mention aspects in respect of reaction time,
taking into consideration the estimates provided by Stander
in
particular. Reaction time, that is the time that a driver takes
to respond to any adversity, differs from person to person
and
experts make provision for different reaction times when
reconstructing collision scenes. Reaction time of the normal
person ranges between 1 and 1.5 second. See
Rodrigues
supra
at 279G where the reaction time was accepted as 1.5 second and
Road
Accident Fund v Grobler
2007 (6) SA 230
(SCA) where the expert allowed for reaction time of
about 1 second. See footnote 1 on page 233 of the judgment.
[17]
The court
a
quo
was
in reality not confronted with two mutually destructive and
incompatible versions as is generally the case in especially motor
vehicle collisions, but in order to evaluate its reasons I shall take
cognisance of the
dictum
of
Cooper quoted
supra,
but
also adopt the reasoning of Nienaber JA in
SFW
Group Ltd and Another v Martell Et Cie and Others
2003 (1) SA 11
(SCA). I quote from paragraphs 5 and 34:
“
[5]
The technique generally employed by courts in resolving factual
disputes of this nature may conveniently be
summarised 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)
(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. The more convincing the former,
the less
convincing will be the latter. But when all factors are equipoised
probabilities prevail.”
“
[34]
In assessing the probabilities, phase by phase as events unfolded, as
well as comprehensively and in retrospect, the conclusion
seems to me
to be inescapable that of the two versions before Court as to what
the parties agreed to, SFW's is the more probable.
That being so,
Seagrams has not succeeded in discharging the
onus
which
it assumed for itself in suing for a declaratory order. It further
follows that SFW's appeal must succeed.”
[18]
No expert witness testified
in
casu,
but
in light of certain deductions that were either made by Potgieter
Jnr, or suggested by him should be made, I deem it apposite
to
mention the following. Experts are frequently called in to
assist our courts, but courts are not bound by the opinion
of an
expert. An expert must be called as a witness on matters
calling for specialised knowledge. It is the duty of
the expert
to furnish the court with the necessary scientific criteria for
testing the accuracy of the expert’s conclusions
so as to
enable it to form an independent judgment by the application of these
criteria to the facts proved in evidence.
See
Coopers
(South Africa) (Pty( Ltd v Deutsche Gesellschaft Für
Schädlingsbekämpfung MBH
1976 (3) SA 352
(A) at 370H – 372A. In the evaluation of
the evidence of experts it is required to determine whether and to
what extent
their opinions advanced are founded on logical
reasoning. See
Michael
and another v Linksfield Park Clinic (Pty) Ltd and Another
2001 (3) SA 1188
(SCA) at para [36].
[19]
In
Mapota
v Santam Versekerings Maatskappy Bpk
1977 (4) SA 515
(AD) at 527H Potgieter JA commented as follows:
“
Dit
is egter welbekend … dat direkte geloofbare getuienis dikwels
aanvaar kan word al sou daardie getuienis indruis teen
waarskynlikhede wat voortspruit uit menslike ervaring of
wetenskaplike menings. In die onderhawige geval sou, na my oordeel,
die
wetenskaplike mediese getuienis slegs die sterk en andersins
aanvaarbare en gestaafde getuienis van appellant kan ontsenu indien
daardie getuienis onteenseglik getoon het dat die redelike
moontlikheid dat die ongeluk kon plaasgevind het soos deur appellant
beskryf is, nie bestaan nie.”
[20]
In
Stacey
v Kent
1995 (3) SA 344
(ECD), the full bench of the Eastern Cape
Division considered several
dicta
from a number of judgments dealing with the manner in which expert
evidence should be considered and concluded as follows at 350G-I:
“
As
pointed out in the authorities cited above, it is the duty of experts
to furnish the Court with the necessary criteria for testing
the
accuracy of their conclusions, so as to enable the Court to form
its own independent judgment by the application of those
criteria to
the facts proved in evidence. The mere pitting of one hypothesis
against another does not constitute the discharge
of the functions of
an expert. The Court should also be on its guard against any tendency
on the part of expert witnesses to be
biased in favour of the side
which calls them and an unwarranted readiness to elevate harmless or
neutral facts to confirmation
of preconceived theories or to
dismiss facts supporting an opposing conclusion.”
[21]
Bearing in mind the quoted
dicta,
direct and credible evidence of what happened in a motor vehicle
collision often carry greater weight then the opinion of an expert
who had to reconstruct the event from his experience and scientific
training. It is only where the direct evidence is so
improbable
that its reliability is impugned that an expert’s opinion of
what may have occurred should prevail. Having
said this, in the
final result a decision must be reached on the evidence as a whole.
In
casu
the
court
a
quo
had
to consider the evidence of a lay witness who was not qualified to
give any opinion at all as to how the collision occurred.
VII
EVALUATION
OF THE COURT
A
QUO
’S
REASONS AND SUBMISSIONS BY THE PARTIES
[22]
It must be mentioned at the onset that Stander testified two years
and nine months and Le Roux and all other witnesses three
and a half
years after the collision. Clearly their memories, especially
pertaining to details that cross-examiners often
try to extract from
witnesses, would have faded.
[23]
As mentioned above everybody concerned, i.e. the presiding
magistrate, Mr Schuurman, the attorney for defendant who
cross-examined
Le Roux, as well as Mr Snellenburg who appeared for
defendant on appeal before us, were satisfied that Le Roux was a
credible witness.
Mr Schuurman called Le Roux
“
a
very honest witness”
and
Mr Snellenburg agreed during oral argument that he was
“
not
questionable”,
that
he made a
“
good
overall impression”
who
gave
“
a
fair indication of what happened.”
That
being the case, it should really be the end of the appeal.
Although I agree that Le Roux was a credible and also reliable
witness, I am also mindful of the fact that he was no doubt uncertain
about some aspects as will be shown
infra.
[24]
Le Roux was adamant, notwithstanding the fact that he could not see
exactly where and how the plaintiff’s truck and the
LDV
collided with each other, that the plaintiff’s truck was at all
relevant times in its correct lane of travel. Mr
Snellenburg
tried to persuade us based on three passages in Le Roux’s
cross-examination that he made a material concession.
The first
passage read as follows:
“
Is
it possible for you to inform the Court in connection with the middle
of the road where approximately was
the
impact
between the two vehicles, how far was it from the solid middle, the
solid line in the middle of the road? Would you say it was
almost in
the middle of the road or can you help us with that? …..
I
am not sure.”
A
bit further the following passage appears:
“
Now
his version
(Stander’s)
is
that prior to the
impact
stage
he actually left, moved into the yellow area line on the left hand
side of the road to avoid an accident from taking place and
you say
you disagree. That is not how it happened……..Basically
sir all I can remember is the hopping, the hopping.
From the hopping
until where Mr Stander’s vehicle came to a standstill.
That is all I, I can basically keep, remember.
But before the
hopping I cannot tell you yes he did veer off to the yellow line or
he tried to swerve out. I, I will not
be able to tell you
that.”
The
third and more important passage relied on is the following:
“
Can
you tell the Court in relation to the middle of the road where the
impact between the two vehicles were (sic),
the
point of accident
?
Would you say it was very much in the middle of the road?....
Basically in the middle of the lane yes.
In
the middle of?..... The lane.
The
lane you were travelling in?.... Yes. Oh it is, it is it is
actually difficult to say because of my following distance
and the
light, it was becoming dark so I would not be able to tell you it was
in the middle of our lane or in the middle of the,
the road on the
white line or on the yellow side of the line or [indistinct].”
(my
underlining).
[25]
It must be remembered that the right front parts of plaintiff’s
truck and the LDV were damaged as is apparent from the
photographs
and in particular the LDV that was not damaged from the middle to the
left front. We are thus not dealing with
a full frontal head-on
collision. If Plaintiff’s truck was travelling less than
a metre from the white centre lines,
it would not be wrong to
conclude that impact occurred approximately in the middle of the
road. However Le Roux was uncertain
and rightly so. It
could not have expected of him to indicate a point of collision as
requested.
[26]
The fact that Stander and Le Roux contradicted each other pertaining
to the exact moment when plaintiff’s truck
started to
move to the left and eventually entered the slipway to the Tierpoort
dam and whether or not Stander applied the brakes
of plaintiff’s
vehicle, must be seen in proper context. Le Roux stated that
plaintiff’s truck was at the moment
of impact travelling
normally in its lane whilst Stander testified that he had moved to
the left and also applied brakes just prior
to the collision.
However the passages quoted indicate that Le Roux was uncertain of
himself which is quite acceptable in
the circumstances.
[27]
According to the objective and common cause evidence Stander moved to
his left and even exited the N1 by taking the slipway.
Collisions do not occur in slow motion, but often in split-seconds.
As mentioned
supra
it
is extremely difficult for people to give exact accounts of what
happened prior to and during a collision and in what sequence;
also
what measures, if any, were taken to avoid the collision. An
armchair approach should be avoided in evaluating such
evidence.
[28]
One may even speculate that Le Roux, travelling right behind Stander,
might have been mistaken (in fact, he conceded being
uncertain as
shown
supra)
and
that plaintiff’s truck started to move to the left prior to the
collision, but it is also possible that Stander was merely
mistaken
when he testified that he was so far to the left of the road at the
point of impact as testified. Fact is that he
at a stage moved
to the left and also applied brakes to come to a standstill. Le
Roux was also uncertain, contrary to Stander’s
version that he
applied brakes before impact, as to whether Stander did so before
impact. Speculation aside, the obvious
contradictions between
the two versions must be seen in proper context, but in any event
does not assist defendant’s case
at all. The different
versions are rather indicative of a lack of collusion. The
court
a
quo
received direct and credible evidence pertaining to the events
leading to the collision and what actually happened. That
evidence supported plaintiff’s case 100%.
[29]
It is obvious that Stander has no idea of the duration of 2 or 3
minutes as testified in examination-in-chief or a minute or
a minute
and a half as suggested in cross-examination, being the time it took
for the collision to happen since the LDV crossed
the solid white
lines. He tried to explain his difficulty by saying that the
collision occurred more than two years earlier.
A simple
mathematical calculation would inform us that, at a combined speed of
120 km/h it would take about 1.5 second to travel
the fifty metres
estimated by him. This is a far cry from any of his estimates
and if his estimate of the distance could
be accepted which is
doubtful in light of the moving vehicles, relative darkness and
suddenness of the event, he would not have
time to react based on the
generally accepted reaction time referred to
supra.
However,
it would be wrong to reject his whole version as untrue or improbable
as he made an obvious innocent mistake about duration
and possibly
even in respect of distance as is often found in similar cases.
[30]
Mr Snellenburg submitted that a negative deduction should have been
made in respect of plaintiff’s failure to call anyone
of the
two passengers who were travelling in plaintiff’s truck.
In my view there was no compelling reason to make such
a deduction.
Le Roux’s evidence, he being independent, was damning for
defendant’s case. Although he could
not testify whether
the headlamps of plaintiff’s truck were in proper working
condition, there is no reason not to accept
Stander’s version.
Defendant could not really tell that the lights were on bright and
the best he could do was to mention
that he was blinded. This issue
is to my mind in any event irrelevant, bearing in mind the aspects
referred to
infra.
[31]
Mr Snellenburg submitted that the court
a
quo
was
guilty of applying double standards. Potgieter Jnr was blamed
for not photographing the spiral oil spillage, but Stander
escaped
blame although he did not photograph the oil patch testified about.
Fact is that Stander did not take any photographs
at all while
Potgieter Jnr tried to collect evidence that the plaintiff’s
truck was not roadworthy and also in respect of
the damage caused to
the vehicles. He took some twelve photos, but failed to take a
photograph of the oil spillage which
he believed was vital evidence.
Counsel’s submission is not acceptable.
[32]
Defendant has no recollection of the collision. He cannot blame
Stander for the collision even though he tried to persuade
the court
a
quo
that
the headlamps of plaintiff’s vehicle were on bright and that he
was blinded as a result. On his own version he
reduced speed
even more, bearing in mind that he was travelling at the very low
speed of 40km/h when entering the N1 where the
speed limit is 120
km/h and simultaneously moved to his left to avoid the so-called
danger caused by bright headlamps of the truck.
On his version
there should have been a collision on the western side of the lane in
which he was travelling, far across the white
centre lines and
clearly in Stander’s incorrect lane. The court
a
quo
could not make such a finding bearing in mind the direct credible
evidence of Le Roux, substantially supported by Stander.
[33]
The aspect about the alleged blinding caused by bright headlamps is a
non-starter, firstly because defendant was not blinded
to such an
extent that he moved into his incorrect side of the road and right in
front of plaintiff’s truck; secondly because
it was never
defendant’s case on the pleadings that plaintiff’s driver
failed to switch the headlamps to dim at the
appropriate time; and
thirdly because defendant specifically relied on the headlamps being
defective as one of the alleged causes
of negligence, of which there
is no acceptable evidence.
[34]
Potgieter Jnr arrived at the scene afterwards. It was dark by
then. He made observations and even took photographs.
He
is not an expert in respect of motor vehicle collision reconstruction
matters and any opinions that he might have submitted
should and
could have been regarded as inadmissible evidence. A matter
that caused me concern when reading Mr Schuurman’s
cross-examination of Stander is that it was put to him that according
to his instructions the collision had occurred in defendant’s
lane of traffic; yet no evidence was tendered in support of this
apparent unfounded statement. The closest defendant came
to
such evidence is the inadmissible version of his son. The
spiral oil spillage allegedly starting on defendant’s
correct
side of the road and continuing until the position of the stationary
LDV could not take the matter any further even if
his version in this
regard could be regarded as reliable and credible. The first
problem is that he failed to take photographs
of the oil spillage
although he was extremely keen to show that plaintiff’s truck
was not roadworthy, bearing in mind the
photographs of the windscreen
trying to show the absence of a valid licence and roadworthiness
certificate. Secondly, and
on acceptance that the oil spillage
came from the LDV, there is absolutely no expert evidence as to how
long it would take for
oil to be deposited on the tarmac after a
collision and damages of a similar nature caused to the LDV, and
furthermore how far
from the actual point of collision the oil would
be spilled for the first time, bearing in mind that the LDV was
spinning out of
control as testified by Le Roux, an aspect correctly
conceded by the lay witness, Potgieter Jnr. Finally, the
version of
Potgieter Jnr is contradicted by Stander who conceded that
spiral oil spillage was found but only in his correct lane of
travel.
Potgieter Jnr was obviously not an independent witness
and his suggestion in cross-examination that the point of impact was
in
defendant’s correct lane is indicative of his bias towards
his father.
[35]
Potgieter Jnr’s excuse for not taking photographs of the oil
spillage does not hold water. If he believed that
the SAPS
personnel would take all relevant photographs at the scene, as he
wanted the court
a
quo
to
accept, there would be no reason to take a total number of twelve
less significant photographs, but not a single one of a crucial
piece
of evidence such as fresh oil spillage on his father‘s correct
side of the road. The omission was telling against
his version.
[36]
There is no reason not to accept Stander’s evidence pertaining
to the correct working condition of the headlamps of plaintiff’s
truck. It is clear that defendant had to find an excuse for the
collision and one such excuse might be that he was so blinded
by the
bright lights of the oncoming truck that he lost all sense of
position and direction and that this caused him to veer into
the
incorrect side of the road, causing the collision. This would
have been an issue for discussion amongst his family members
and with
Potgieter Jnr in particular, prompting him to testify as he did.
In my view, even if it is found that the headlamps
of the plaintiff’s
truck were on bright, this could not have contributed to the
collision bearing in mind defendant’s
own evidence.
[37]
As mentioned the court
a
quo
received
one direct version only as to how the collision occurred.
However I shall briefly consider the principles set out
in
SFW
supra.
The
court
a
quo
observed
the witnesses and was satisfied with their inherent credibility.
She was mindful of the differences in the versions
of Stander and Le
Roux, but stated quite logically that no two witnesses will provide
exactly the same description of a collision
which happens in a split
second. There is no reason to reject the evaluation. The court
a
quo’
s
criticism of Potgieter Jnr’s failure to take photographs of the
oil spillage, even the next day when he visited the scene
again in
broad day light with his mother, is understandable and cannot be
regarded as an application of double standards.
The
observations of plaintiff’s witnesses, notwithstanding
differences as mentioned, are reliable and supported by the
probabilities.
Finally, the probabilities favour the
plaintiff’s version, bearing in mind the nature and extent of
the damage to the vehicles
– mainly the front right and
right-hand-side – the spinning out of control of the LDV which
also collided with plaintiff’s
trailer and Le Roux’s
vehicle, the position of the vehicles after the collision as well as
the debris and other articles
which came off the LDV. It is
highly improbable that Stander could have veered across the white
centre lines, causing a collision
in defendant’s correct lane
and be able to return to the left in order to exit the N1 as he did.
One would have
expected the LDV to be pushed off the road to the
western side in such a case without it colliding with Le Roux’s
truck,
but quite the opposite transpired.
[38]
There is no merit in any of the grounds of appeal or in the
submissions on behalf of defendant presented to us.
Consequently
I am satisfied that, in evaluating the evidence based on
the principles set out in
SFW
supra,
plaintiff’s witnesses were reliable and credible and above all,
the version put forward on behalf of plaintiff is far more
probable
than the version feebly put forward by defendant.
VIII
CONCLUSION
[39]
In conclusion I am satisfied that the court
a
quo
’s
judgment and reasons for the orders granted are beyond reproach and
therefore the appeal falls to be dismissed.
IX
ORDER
[40]
The appeal is dismissed with costs.
_____________
J.
P. DAFFUE, J
I
concur.
______________
M.
H. RAMPAI, J
On behalf of
appellant: Adv. N. Snellenburg
Instructed
by:
Hill,
McHardy & Herbst
BLOEMFONTEIN
On behalf of
respondent: Adv. J. Johnson
Instructed
by:
Honey
Attorneys
BLOEMFONTEIN
/EB