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[2016] ZANCHC 16
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EC Traffic Services v Erasmus and Others (1283/2011) [2016] ZANCHC 16 (5 February 2016)
HIGH
COURT OF SOUTH AFRICA
[NORTHERN
CAPE HIGH COURT, KIMBERLEY]
Case
No: 1283/2011
Heard:
16-11-2015
Delivered:
05-02-2016
In the matter between:
EC
TRAFFIC SERVICES
APPELLANT/DEFENDANT
AND
SHARON LOLITA
ERASMUS
1
ST
PLAINTIFF/RESPONDENT
JOHANNA MAGARETHA
VAN
HUYSSTEEN
2
ND
PLAINTIFF/RESPONDENT
KIMBERLEY
DANIELLE PASCOAL
3
RD
PLAINTIFF/RESPONDENT
MANUAL SOARES
PASCOAL
4
TH
PLAINTIFF/RESPONDENT
ROAD ACCIDENT FUND/
5
TH
RESPONDENT
THIRD PARTY
Coram: Kgomo JP;
Williams J et Pakati J
JUDGMENT
KGOMO JP
1.
This
appeal, with the leave of the Supreme Court of Appeal, lies from the
judgment of Mamosebo AJ, as she then was, delivered on
13 June 2014.
The appellant, EC Traffic Services CC, appeals against the whole
judgment of the trial Judge. The order now interfaced
stipulates
that:
“
1.
The defendant (EC Traffic Services CC) is ordered to compensate
STEPHAN BEKKER, as represented by the first plaintiff
(Adv. Sharon
Erasmus NO), 100% of the proven damages by him as a result of the
injuries sustained by him in the series of collisions
(with the heaps
of gravel and between the vehicles driven by Bekker and Burger which
occurred within the road works deviation on
the N12 between Warrenton
and Kimberley on 19 January 2009.
2. EC
Traffic Services is ordered to compensate the Second Plaintiff,
Johanna Van Huyssteen, 100% of the
proven damages suffered by her as
a result of the injuries sustained by Bekker in the accident.
3. EC Traffic
Services is ordered to compensate the Third and Fourth Plaintiffs,
Kimberley Pascoal and her father
Manuel Pascoal, 100% of their proven
damages suffered by them as a result of the injuries sustained by
Kimberley Pascoal in the
accident.
4. Traffic
Services is ordered to pay the Plaintiffs’ taxed or agreed
party and party costs in relation
to their liability to date (save
for the costs in respect of the postponement of 17 September 2012,
which costs have already been
paid by the Defendant), which costs
will include the following:
4.1 The costs of two counsel (it
being recorded that Adv Mullins SC will not charge a day fee for
Monday 28 and Tuesday 29 October
2013, and that Adv Dredge will not
charge a day fee for Tuesday 05 November 2013 and further he is not
entitled to any fees with
effect from 01 January 2014 to date of this
order).
4.2 Adv Mullins SC’s
day fee for Tuesday 05 November 2013;
4.3 The reasonable
reservation, preparation and qualifying fees of Messrs Grobbelaar and
Roodt;
4.4 The reasonable costs of
Messrs de Jongh (Senior and Junior) and Mr Burger, all of whom are
declared to have been necessary witnesses;
4.5 The reasonable
travel and accommodation costs of the plaintiffs’ Hartswater
attorney and Pretoria advocates
and those of Messrs Grobbelaar and
Roodt.
5. As between Traffic Services
and the Third Party (RAF), it is ordered that:
5.1 Traffic Services’
joinder of the Third Party (RAF) is dismissed with costs.
5.2 The aforesaid costs are to
include the following:
5.2.1 Adv Shepstone’s day
fee for Tuesday 05 November 2013;
5.2.2 The
reasonable reservation, preparation and qualifying fees of Professor
van der Spuy”.
2.
In
light of the aforegoing litigation it will be convenient to refer to
parties as they were at first instance except that the “Third
Party” will be identified as the “Road Accident Fund”
or “RAF”.
3.
The
grounds of appeal, partly paraphrased, are that the trial Judge erred
in fact and/or law in the following respect:
3.1 In finding that the
Appellant/Traffic Services was causally negligent;
3.2
In
finding that Bekker and Burger acted reasonably in circumstances
where they travelled at 20 k/ph in excess of the speed limit;
3.3
In
not applying the well-known tests set out in
Stellenbosch
Farmers Winery et al v Martell et cie
to
come to a fatual finding in the face of mutually destructive
versions;
3.4
In
not having regard to the inherent probabilities and/or
improbabilities of the mutually destructive versions;
3.5
In
finding that the factors mentioned in para 44 of the judgment
overwhelmingly support the version advanced by the Plaintiffs;
3.6
In
finding that the deviation depicted on photographs 85, 86 and 87
bears no resemblance to what it looked like on the night of
the
accident and in rejecting the version of Traffic Services’
witnesses;
3.7
In
finding that Bekker was not contributorily negligent, alternatively
in not addressing the issue of contributory negligence;
3.8
In
not finding that the Plaintiffs failed to discharge their onus of
proving on a balance of probabilities causal negligence on
the part
of Traffic Services;
3.9
In
not finding that the Plaintiffs’ version is inherently
improbable having regard to the credibility and reliability of all
the witnesses who testified about the incident;
3.10
In
not finding that an adverse inference is to be drawn against the
Plaintiffs for failing to call Van Der Merwe (a member of SAPS)
and
the Fourth Plaintiff, who were consulted by the legal representatives
of the Plaintiffs and who were available to testify;
3.11
In
not finding that the Plaintiffs failed to prove on a balance of
probabilities that the road closure had been removed to allow
three
motor vehicles to travel on the incorrect side of the deviation;
3.12
In
not finding that the witnesses called on behalf of the Plaintiffs
materially contradicted one another and that their evidence
was
objectively shown to be unreliable, especially in circumstances where
all the witnesses were consulted in a group and not individually;
3.13
In
not finding that the Plaintiffs failed to prove any causal negligence
on the part of the Traffic Services and in not dismissing
the
Plaintiffs’ claims with costs, alternatively, in the event of
the Court finding that Bekker and/or Burger were contributorily
negligent, then the Court a quo erred in not finding Traffic Services
will be entitled to a contribution from the RAF in an amount
equal to
the RAF’s statutory liability in terms of the provisions of the
Road Accident Fund Act, 56 of 1996
.
4.
Evident
from what appears hereinbefore is that as between Traffic Services
(the appellant) and the four claimants (the plaintiffs)
the
appeal is essentially one of fact, more particularly relating to the
question of how it came about that three vehicles found
themselves in
the works-lane of the road deviation controlled by the now appealing
Traffic Services. As between the latter and
the RAF the appeal
combines fact and Law. The legal question, to be determined last, if
necessary, being whether Traffic Services
was in law able or entitled
to join the RAF as a party. Flowing from that, and if the question is
answered in the affirmative,
whether the requisite causal link was
established involving the vehicles and/or object which are the
subject of this investigation.
5.
It
is common cause that the versions of the plaintiffs and Traffic
Services are mutually destructive or diametrically opposed to
each
other. There is no better way to illustrate this than by giving a
summary of the evidence of the factual witnesses of the
accident on
each side of the divide. The summary by the trial Judge (with minor
indicated omissions but no supplementations) is
beyond reproach. I
quote from paras 12-17 of the judgment:
“
12.
The following factors appear to be common cause or not in dispute
between the parties:
Bekker
was the driver of the red Ford Dash and Kimberley, the third
plaintiff, was a passenger in his vehicle. Burger was the driver
of
the Ford Territory and Mr De Jongh (Snr) was the driver of the Ford
Bantam. The accident occurred on the N12 between Warrenton
and
Kimberley on 19 January 2009 in the evening. The South African
National Road Agency (SANRAL) was repairing a portion of the
road on
the N12 on the 25 North and 32 North kilometer markers. The main
contractor was Haw & Inglis who had sub-contracted
the traffic
accommodation responsibility to EC Traffic Services CC (the
defendant). The speed limit at the deviation was 60km per
hour.
Bekker and Burger were travelling at around 80 km per hour. Traffic
Services admitted in its pleadings that it was engaged
on the
relevant portion of the road with the traffic direction services in
connection with the road works on the N12 between Kimberley
and
Warrenton. Traffic Services does not dispute that it owed a duty of
care to motorists and their passengers in general travelling
on the
N12, particularly on 19 January 2009. The road works on the N12 were
designed (signalled) in such a way that at specific
areas motorists
had to be diverted into deviation lanes where road works were in
progress and traffic services were required. The
description of the
plan where the incident occurred is not in dispute. It was further
admitted that Bekker and Kimberley collided
with a heap of gravel and
it was not seriously disputed that subsequently another vehicle,
driven by Burger, travelling behind
them collided with their vehicle
from behind.
13.
The chronology of events unfolded as follows: Bekker testified that
he had no recollection of what transpired that evening
due to the
head injuries he sustained. Kimberley testified that she and Bekker
were on their way from Warrenton to Kimberley to
watch a movie. There
were three Stop/Go control points. At the middle crucial control
point a lady traffic controller, who turned
out to be Ms Wendy Mokwa,
removed the cones and hand-motioned them to go. There was no vehicle
ahead of them. They were, so to
speak, the first in the queue. She
noticed that there was a vehicle a distance away behind them. There
were some road delineators
which, as suggested in cross-examination,
could have been 25-30 metres apart. They proceeded through the
Stop/Go controls and travelled
on the left hand lane. She reckoned
that the speed at which they travelled was about 80 km/h. She heard
Bekker swear as he slammed
on his brakes but it was too late to avoid
colliding with a gravel heap.
14.
Kimberley and Bekker had been travelling for about 5 km from where
the lady traffic controller had given them the go-ahead.
Apart from
their headlights the road was dark and the weather was quiet and
clear. She and Bekker were injured as already explained.
The gravel
heap was in the drive-way demarcated by the delineators. Kimberley
denied that Bekker did not follow the path set out
by the delineators
or that Bekker zigzagged across the road. She was rescued from their
damaged car by Wayne de Jong who was in
the company of his father,
who drove the Ford Bantam Bakkie.
15.
Mr Burger testified that he was driving some distance behind Bekker’s
vehicle and was in the company of his young son.
He noticed Bekker’s
vehicle standing at the control point. Before he could stop a lady
traffic controller, the same Ms Mokwa,
removed the cones and motioned
them to proceed. At that point there was no sign directing them to
switch over to the right lane
— which was in fact the proper or
the open lane. So both his and Bekker’s vehicles kept to the
left hand lane. He drove
at about 60km/h. Burger saw what he thought
could have been a black cow suddenly crossing in front of them as
Bekker’s headlights,
which appeared [to Burger] to have been on
bright, disappeared.
16.
Mr Burger bumped into a portion of the rear of Bekker’s vehicle
and drove over a gravel heap. His vehicle came to a stop
across the
tarred road or skewed next to the third heap of gravel. Shortly
thereafter the Ford Bantam driven by the said Mr WA
de Jong, in which
his son Wayne was a passenger, arrived. The de Jongs agree with
Kimberley and Burger that Kimberley was removed
from Bekker’s
vehicle and transferred to the backseat of Burger’s vehicle.
Burger denied that he negligently bumped
into Bekker’s vehicle.
He maintained that it was impossible for him to have avoided the
collision. He also denied that the
collision caused or contributed to
the injuries sustained by Bekker and Kimberley. It was never
suggested to Burger that he jumped
lanes from the right (where he was
supposed to be) through the delineators to the work lane on the left.
17.
The de Jongs corroborate each other that Mr WA de Jong was the driver
of the Ford Bantam and his son Wayne the passenger. They
also drove
Southbound from the direction of Warrenton to Kimberley on the N12.
They drove on the left lane. When they arrived at
the Stop/Go
controls the lane was open and they proceeded on that lane. At that
stage there was no vehicle driving ahead of them.
They drove at 70-80
km/h and had the headlights on bright. De Jong (Snr) noticed a gravel
heap and reduced speed. He drove around
this obstacle to the right
hand side. At that stage the pair noticed Bekker’s vehicle
between two gravel heaps and another
vehicle (Burger’s) past
the second heap standing at an angle across the road”.
6.
On
the part of Traffic Services there was really only one factual or eye
witness to the accident. That of Mrs Wendy Mokwa. However,
I will
stretch Mr Medupe Isaac Pitso’s account into this category, for
what it is worth. The trial Judge stated:
“
37
The next witness for the defendant (Traffic Services) was Ms Wendy
Mokwa. She was a radio operator who also
controlled the Stop/Go sign
for Traffic Services. She was on a shift that started at 17h00 to
24h00. She testified that she had
closed the lane and switched the
robot to red. During the day she employed the Stop/Go sign to control
the movement of traffic
but at night she used the robot. She also put
two cones in front of the first motor vehicle in the queue. A red car
and an ambulance
approached the closure and passed without stopping
even though she had closed the road. They travelled on the right hand
side of
the road which was open for traffic. The ambulance was
driving in front of the red car. There were no other vehicles that
drove
past this closure except for these two. She communicated on
radio with the controller on the other side not to open the closure
for the oncoming vehicles until the said two vehicles had exited. The
other controller intimated that only the ambulance has gone
through
but not the red car. In cross-examination by Mr Mullins Ms Mokwa
confirmed that she sometimes uses a hand gesture to signal
to the
motorists the all-clear to enter the deviation. According to Ms Mokwa
she had communicated to the other radio controller
that the last car
to enter the deviation from her side was the ambulance. I can,
already, only describe her evidence as fanciful”.
These are the words of the trial
Court who went on to remark as follows:
“
36
Mr Pitso, a Traffic Safety Officer of Traffic Services, testified
that he was not at the scene of the collision but overheard
the
report on the radio communication channel between Ms Wendy Mokwa and
Mr Molale concerning motor vehicles that skipped a Stop/Go
sign. He
proceeded to that Stop/Go accident scene. He only cleared the road by
removing the debris after the accident. He made
a report to Mr Ian
Meyer, his supervisor. In cross-examination by Mr Dredge, Mr Mullins’
junior, he stated that he saw torn
delineators that were earlier
placed on the gravel heap two to three metres away from the first
heap of gravel. As is the case
in Benjamin’s version, none of
the photos in the photo bundle could bear out his version. Mr Pitso’s
evidence was of
no use to Traffic Services. He may as well not have
testified”.
7.
In
support of the ground of appeal set out in para 3.3 (above) Adv. JC
Pieterse, for Traffic Services, contended in his written
submission
that in light thereof that the trial Judge “in not applying the
well-known test set out in
Stellenbosch
Farmers Winery v Martele Et Cie
2003 (1) SA 11
(SCA)
paras 5-7 in circumstances when faced with mutually distructive
versions” it therefore “misdirected itself”.
In the
Stellenbosch Farmers Winery case the Supreme Court of Appeal stated
at paras 5 and 7:
“
5.
On the central issue, as to what the parties actually decided, there
are two irreconcilable versions. So too on a number of peripheral
areas of dispute which may have a bearing on the probabilities. 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’s
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’s 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.
6.
----.
7. I
propose to discuss the probabilities with reference to various
successive phases as events unfolded between the parties during
the
period under discussion”.
8.
Mr
Pieterse’s criticism of the judgment, which sometimes bordered
on discourtesy, were unfounded. In this regard I agree with
Adv
Mullins SC that the case quoted by Mamosebo AJ, as she then was, and
her approach are equally apposite where she stated at
para 42 of her
judgment:
“
42
The onus of proving the allegations concerning the inaction or
omission by EC Traffic Services or its employees in relation to
the
accommodation of the traffic at the deviation rests upon the
plaintiffs. See
Cape
Town Municipality v Bakkerud
2000 (3) SA 1049
(SCA)
para 31. It is clear that the presented version by the plaintiffs and
that of Traffic Services’ eye witnesses and their experts
on
either side pertaining to what happened in the deviation are
mutually destructive. The Supreme Court of Appeal in the
Bakkerud
case adopted the approach followed by Kannemeyer J in
Abdo
NO v Senator Insurance Company Limited and Another
1983 (4) SA 721
(ECD) at 725 D-H:
‘
One
is thus faced with two mutually destructive versions as to how the
accident occurred, the third party making common cause with
the
plaintiff. One has expert evidence and eye witnesses on both sides.
Appreciating that the onus is on the plaintiff to prove
Jeanette's
case on a balance of probabilities, it is convenient at the outset to
consider the approach to be adopted if one is
faced with both expert
evidence and the testimony of eye witnesses in a case such as this.
In
Putzier
v Union and South West Africa Insurance Co Ltd 1973 ECD
(unreported)
ADDLESON J was faced with such a problem. The decision
in Putzier's case was reversed on appeal
on the facts. The judgment
of the Appellate Division is also not reported but the approach
adopted by ADDLESON J in the following
terms was not questioned
therein: ….
‘
It
seems to me however that unless the opinion of the experts is either
uncontroverted or incontrovertible, one should look first
at the
evidence of the eye witnesses, if any. If such eye witnesses are
unacceptable then naturally the Court is bound to decide,
if
possible, which of the opinions of the various experts is preferable
and to found its judgment on such opinion. On the other
hand, where a
choice can be made on a balance of probabilities and on
accepted principles between two sets of eye
witnesses, the Court
should first make a provisional assessment of which of the versions
of the eye witnesses is acceptable. Having
provisionally accepted one
or other version, the Court should then consider the expert evidence
and decide whether that evidence
displaces the provisional findings
made on the evidence of the eye witnesses. In this regard, where the
onus is on the plaintiff
and where there is a dispute between the
experts, it is my view that, if the eye witnesses favour the
plaintiff, the evidence of
the defendant must be shown to displace
that of the plaintiff's eye witnesses; but, if the eye witnesses
favour the defendant,
the plaintiff must show that the evidence of
his experts must be accepted in preference to the experts and the eye
witnesses for
the defendant. If, at best, the Court is left in doubt
as to whether the experts for the plaintiff have advanced opinions
preferable
to those of the defendant, then it seems to me that the
plaintiff has failed to displace the findings made in respect of the
eye
witnesses and has consequently failed to discharge the onus on
him. This is the approach which I propose to adopt in the somewhat
complicated task of examining the evidence of the experts. See also
Motor
Vehicle Assurance Fund v Kenny
1984 (4) SA 432
(E) at 436 H-I; Stacey
v Kent
1995 (3) SA 344
(E) at 348-349”.
It
is for the aforegoing comparison that I reject Mr Pieterse’s
argument for the distinction without a difference that he
sought to
draw.
9.
Ground
3.5 is to the effect that the trial Judge misdirected herself in
having found that “the factors mentioned in paragraph
44 of
[her] judgment overwhelmingly support the version advanced by the
[Plaintiffs]”. The trial Judge gave nine reasons
in support of
that view. At paras 44.1 to 44.9 she stated:
“
44.1
If the deviations looked exactly as depicted on photographs 85 and 86
the first plaintiff, (Bekker), Burger and De Jong senior
would not
have entered the incorrect deviation which suggest that the scene
must have been staged subsequently;
44.2 If the signage was adequate
from the warning outside the deviation to the transition phase and
the delineators were placed
10 meters apart entry in the incorrect
deviation would have been prevented. This much was testified to by Mr
Roodt, the civil engineer
who specializes in roads and roads safety.
His evidence remains uncontested because he supported it with
legislation, contract
documents that Traffic Services were party to
and Project Specifications;
44.3
Mr Farmer did
not inspect the deviation at 19h15 as it was put to Kimberley Pascoal
by Traffic Services, otherwise he would have
noted the deficiencies;
but if he noted the shortcomings he did nothing about it which
omission amounts to negligence which still
renders Traffic Services
liable to the plaintiffs;
44.4
If the gravel
heaps were tipped during the afternoon of 19 January 2009, even if De
Jong (senior) had used the N12 between Warrenton
and Kimberley about
three times during that period, and the fact that 3000 motorists used
that road daily, is of no consequence.
This is so because the
circumstances on the deviation were changed by the gravel heaps at
that crucial time. What is more is that
the gravel was of the same
colour as the road surface. The principle on dark and unilluminated
objects on the driving surface of
the road at night was stated in
these terms
in
Hoffman v South African Railways and Harbours
1955 (4) SA 476
(A) at
478 D-H
Schreiner ACJ pronounced:
“
I
prefer, however, the language used by RAMSBOTTOM, J., in other case
cited by DE VILLIERS, J., namely
Rex
v Yssel,
1945 T.P.D
235.
This was a criminal case but for present purpose that is immaterial.
At P.234 RAMSBOTTOM, J., says,
‘
if
the Crown proves that a pedestrian or cyclist or other object with
which the motorist collided was visible so that a person keeping
a
proper look-out or driving at a reasonable speed in the circumstances
ought to have seen the obstruction in time to avoid the
accident then
the inference of negligence can be drawn. But where the evidence does
not show that the person with whom the car
collided was visible in
that sense then there is no ground for drawing the inference of
negligence.’
Could with the exercise of
reasonable care is a legitimate elaboration of the word ‘reasonable’
is preserved and that
one does not slip into the error of supposing
that, if the collision could have been avoided, it therefore should
have been, in
the sense that failure to avoid it proves negligence.
In the case of Manderson, to which DE VILLIERS, J., refers, HOEXTER,
J.A.,
giving the majority judgment of this Court, quoted with
approval from LORD GREENE’s judgment in
Morris v Mayor of
Luton,
1946 K.B. 114
, the
view that no rule of law can be
laid down that a person driving in the dark must be able to pull up
within the limits of his vision.
It is of course difficult to refrain
from generalising in a matter of this kind; careless driving of swift
vehicles is certainly
dangerous and there is obviously a relationship
between the speed and visibility. But the generalisations regarding
night driving,
of which our reports contain many examples (see, e.g.
Venter v London & Lancashire Insuarance Co. Ltd,
1951 (4)
SA 554
(AD) at pp.
556
and 560)
,
must not be construed as laying down a rule of law which can be
applied as governing the facts of each case of this kind. It is
the
facts that are decisive throughout and they are too infinitely
variable to admit of the formulation of a legal rule’.
44.5
The version
given by Richard Benjamin, for Traffic Services, that he had placed
two delineators on each side of the gravel heap
and/ or the road is
patently incorrect. There was no debris of such delineators found at
the scene as testified to by Captain Van
Nieuwenhuizen for Traffic
Services. The debris could not be detected on any of the photographs.
The Captain’s observation
was very poor and his note taking or
record keeping was non-existent;
44.6
Ms Mokwa’s
testimony about the ambulance and the red car (the Ford Dash) jumping
the queue is also spurious. If the red car
driven by Bekker was
followed by the ambulance what became of the ambulance after Bekker
had driven into this gravel heap? If Bekker’s
car followed the
ambulance there is no explanation on how the ambulance exited the
barricaded lane unscathed. More importantly
the ambulance must have
been seen by the Traffic controller on the exiting side. The fact
that Traffic Services did not call such
a witness must be indicative
of the fact that Mokwa was busy with self-preservation;
44.7
Mr Ian Meyer
was shown to have certified daily sheets that were clearly not in
accordance with the specifications in the designs.
For several months
before the accident in January 2009 the inspection times of the road
works were not reflected on the daily sheets.
The recording of the
times from January 2009, without explanation or cogent explanation,
is highly suspicious;
44.8
In para 7.7 of
the minutes dated 02 December 2008, about a month before the
accident, the following was stated: “closures
were deficient in
obstruction boards and directional arrows at changes in direction.
Rocks and kerbs had been used in Warrenton
instead of delineators.
This demonstrates that Traffic Services was prone not to adhering to
Project Specifications;
44.9
If Mr Benjamin
could drive on the left lane (the construction side), as he
intimated, after the gravel was tipped, the only reasonable
inference
to be drawn is that the lane was not completely closed and vehicles
could use it, as did those that crushed into the
gravel heaps”.
10.
Most
crucially, we enquired from Mr Pieterse why could Ms Mokwa not
account for the vehicles driven by Mr Jacobus Burger (the Ford
Territory) and that driven by Mr De Jongh (Snr) (the Ford Bantam)
because it is irrefutable that they all ended up in the works
lane,
two of them having collided with a gravel heap or heaps and/or with
each other. Mr Pieterse could only speculate that
Ms Mokwa may
have been communicating with her colleague on the other side of her
controlling point.
11.
It is therefore pivotal to examine Ms Mokwa’s evidence closely.
I deal first with her evidence under cross-examination
and thereafter
with her evidence-in-chief. I will then bring in the evidence of Mr
Pitso to demonstrate how it contradicts portions
of Ms Mokwa’s
evidence-in-chief. Ms Mokwa is cross-examined by Mr Mullins.
12.
“
Q
:
when you do turn on your robot to red, if there are cars coming, am I
right you turn it to red and you put either one or two cones
down to
stop them, is that correct?
A:
when the vehicles come from my direction going towards the other
stop-sign they will see a red robot, then they will stop and then
I
will put the cones in front of the vehicles.
Q:
And when you decide to change your robot to green am I right that
what you do is you change your robot to green and then you step
into
the road and then you remove the cones so that the vehicles can move
forward?
A:
Yes correct.
Q:
And when you initially in your evidence were telling us how you do
that, you showed that you sometimes use an arm gesture as well
to
show the vehicles you can go. Am I right?
A:
Yes
I remove these cones. Even though the people can see that the robot
is open, I still show them by moving my arms saying that
they may go
now”. (Vol 13: P1001(20)-1002(13)).
13.
“
Q:
Can you remember when you radioed the other side to say what the last
car was that had gone through, was that quite a while before
the
ambulance and the red car came through or had you just radioed and
then the ambulance and the red car came through?
A:
It was a while”. (Vol 13 :P1004(4) – (10)).
14.
“
Q:
How many cars were there stationary at your stop and go [Stop/Go] at
the time when the ambulance and the red car overtook everybody?
A:
I do not remember because
the person who works on the cars will be the one who remembers how
many cars there were
. I only work with the radio.
Q: Was it just two cars
maybe or as many as ten? Can help us there?
A: There were more than ten,
because the person who was stopping the cars from the back was a bit
far. So there were already more
than ten.
Q: A lot more than ten or a few
more than ten or can you not say?
A: I think it was more than
ten.
Q: And then you say this
ambulance came through followed by the red car. Am I right?
A: Correct.
Q: And the ambulance that was in
front of the red car was its lights on?
A: Yes the lights were on.
Q: And was its siren wailing?
A: Yes.
Q: So you have got these ten or
more cars, you have radioed through a bit before and suddenly this
ambulance with lights on and
sirens wailing comes on the right
followed by the red car. Is that correct?
A: Correct.
Q: And you could not stop
them, not so?
A: No I cannot stop them because
they will hit me.
Q: So what you did is you
radioed straight through to the other person as soon as they went
past to say listen there are two
more cars coming. Am I right?
A: Correct.
Q: And am I correct that
when you radioed through to the other side they said the ambulance
has come through but not the red
car?
A: Correct.
Q: That ambulance must have been
going fast?
A: It is possible.
Q: Did it look to you like
it was going very, very, very, fast?
A: I think so because it
was an emergency.
Q: And you have said to us
that there were no other cars that went past.
A: After these two cars?
Q: Yes?
A: Correct.
Q: And you are sure of that
because you were there?
A: Correct.
Q: And you were not asleep? ----
A: I do not sleep on the job.
Q: I am sorry to have to ask you
this but you were not intoxicated?
A: I do not drink.
Q: And you were sane, you
knew what was going on in your head? A: No. [Meaning “yes”]
Q: And you remember clear that it
was the ambulance first in front and then the red car?
A:
Correct”. ( Vol
13: P 1004(19)
– 1007(4)).
15. Ms Mokwa testified that she
reached Grade 11 at school. She confirmed that she gave a
statement of the accident to a Mr
Greg Oosthuizen on 21 January 2009
which was completed at 15h43, which she signed having initialled each
page. The cross-examination
by Mr Mullins continues:
“
Q:
I
am going to read to you from the seventh line. It says: ‘
The
red car then jumped the line of cars and did not stop. The red car
jump first and then an ambulance with lights followed.’
Do you see that?
A:
What I remember is the ambulance passed first and then the red car.
Q: But do you agree with me that
is not what it says here?
A: Yes I see.
Q: And then I am going to read
further and I am going to read from the eighth last line on that
page, page 217: ‘I then told
the other person in the other
‘hokkie’”, that is the person on the Kimberley
side, not so?
A: Correct.
Q: I am continuing: ‘’“That
the two cars had jumped and the last car was now an ambulance.’
Do you
see that?
A: Yes I see it.
Q: Now Ms Mokwa the last car
could only be the ambulance if the red car was in front of it, not
so?
A: Repeat that please.
Q: The last car could only
be the ambulance if the red car was in front of the ambulance, not
so?
A: He explained to me that
he only saw, or received, the ambulance and I told him to wait for
the red car to come.
Q: Yes. My point is that when you
gave this statement you said in two places that the ambulance was
behind the red car but now you
tell us that the red car was behind
the ambulance?
A: Yes correct.
Q: Now how can you be so
confused, do you not remember who was in front?
A: Yes I remember. The car that
was travelling in front was the ambulance and behind the ambulance
was the red car.
Q: And now I want to ask you on
the subject of confusion, this.
You heard Mr Pieterse, your
advocate, say that there was evidence about three vehicles that went
through.
A: No there was no such thing
as three vehicles. Only two vehicles passed.
Q: Only the
red car and the ambulance?
A: Correct.
Q: Because you see the
evidence was that there was the red car, then there was a silver Ford
Territory and I am going to stop
there because when the red car hit
the gravel, the Ford Territory hit the car.
A: No I do not know about that. I
only know of two cars.
Q: You see that is the thing. The
Ford Territory was there because it hit the red car.
A: I do not know about that
car. I only know of the red car and the ambulance.
Q: How come you never saw the
Ford Territory? Can you think of how it could get past you without
you seeing it?
A: I never saw that car. I never
really saw that car because I only saw two cars passing.
Q: And then, if you look at
that photo bundle in front of you, if you look at that photo 8 on
page 6, the top photo. You see
the pages are numbered top right and
then the photos are numbered at the top. Can you see the man that is
closest to the camera
in photo 8?
A: Yes I can see him.
Q: Now he was the driver of a
third car, a Ford Bantam bakkie. He was there as well but you did not
see him either.
A: Yes I did not see him.
Q: And you
know what, we have heard all the evidence of those people and not one
of them saw an ambulance. How would you explain
that?
A:
Yes they did not see the ambulance because they were wrong”.(Vol
13: P 1008(8)
– 1010(21)).
16.
Reverting to Ms Mokwa’s evidence in-chief (examined by Mr
Pieterse) she said:
“
Q:
Do you see there are two photographs on page 50 depicting a hut on
the left-hand side and a road closure?
A:
Yes, I can see it.
Q:
Is that the stop-go where you were working on 19 January 2009?
A:
Yes, it is the stop-and-go.
Q
:
As depicted on that photograph, is that what it looked like at five
o’clock when you started your shift?
A:
Correct.
Q:
It appears from the photograph that the left-hand lane,
travelling in the direction of Kimberley, is closed for traffic
and
the vehicles should travel on the right-hand lane.
A:
Correct.” (Vol 13: PP 985(18) – 986(4)).
17.
Mr Pitso testified partly as follows under cross-examination by Adv
Dredge, Mr Mullins’ junior:
“
Q:
Can I ask you to turn to page 14? That is in front of the first heap
of gravel. You do not see the delineators that were torn
to pieces
there. Do you see them there, Mr Pitso?
A:
No.
Q:
Mr Pitso, you will agree with me that these delineators that
you say you found torn to pieces, that was a very important
piece of
evidence?
A:
Correct.
Q:
You will agree with me that you will have told anybody that you
spoke to about this accident about those delineators. Not
so?
A:
I do not agree.
Q:
You would not tell anybody about this very important find that you
made of these delineators that were torn?
A: If I remember
correctly what I said is I reported this accident and the questions
that Mr Oosthuizen asked me about, he
did not ask me about the
delineators.
Q:
Mr Pitso, you [were] the assistant traffic safety officer --- at the
time of this accident. Correct?
A:
Correct.
Q:
And your job is making sure that the works area is safe?
A:
Correct.
Q:
And you know that these delineators if they were there were
there to make the work zone safe?
A:
Correct.
Q:
And that is important to you as the assistant traffic safety officer?
A:
Correct.
Q:
And you want to make sure that everybody knows you did your job and
so you would have told everybody about these delineators
if they were
there at that time of the accident?
A:
Correct.
Q:
So you would have told everybody about them that spoke to you about
this accident?
A:
My duty is to make sure that the public is safe. So I think I did my
job when I reported the accident. My mind was not on the
delineators.
I thought after I had reported the accident, I had done my duty.
Q:
But Mr Pitso you said in your evidence in cross- examination in the
beginning I asked you specifically whether you would have
reported
everything that you told Her Ladyship to the people at Haw &
Ingles and you said to me yes you would have?
A:
Everything about the accident, yes.
Q:
Everything except these delineators?
A:
As I said the delineators were not in my mind. I did not think
about them. The only important thing to me then was the
accident. Q:
But of course delineators were important to you because you reported
to Haw & Ingle---. And if you look on page
216--- is that your
signature?”
A:
Correct.
Q: And just above your signature,
the words appear “I hereby declare that my statement given to
Mr Greg Oosthuizen, Haw &
Ingles site agent, is the truthful
account of the events of what happened on 19 January 2009”. Is
that correct?
A:
Correct”.(Vol
13 P 968(1)-(970(23)).
18.
“
Q: Then Mr Pitso we were talking earlier about delineators.
Your statement near the bottom of the page you specifically told Mr
Oosthuizen about delineators. You say “there were delineators
on the centreline of the road. The delineators were also facing
the
correct way”.
A:
Correct.
Q:
So it was important for you to
tell Mr Oosthuizen that the delineators on the centreline were there
and they were facing the correct
way. Correct?
A:
Correct.
Q:
But you say it was not
important to tell him about these delineators in front of the heaps
of sand.
A:
The delineators I told
Greg about are the ones that were on the side of the road that [was]
being used by the public. The ones on
the side of the
road
were the heaps after the construction workers
[sic]. I did
not see the importance of telling him that because the public was
covered. Their delineators were there.
Q:
But, Mr Pitso, you know that
these questions that you dealt with Mr Oosthuizen related to an
accident which happened on the work
side of the road according to
you. You say that these public vehicles drove over those delineators
and yet you do not think it
is important to tell Mr Osthuizen about
that.
A:
The delineators that I am
speaking about, are the ones that are on the right-hand side of the
road where the public uses the road.
Now my concern to me then was to
make sure or to confirm that those delineators were in place and they
direct the public or the
traffic to drive on that side of the road.
Q;
Well, Mr Pitso, you were asked
by Mr Oosthuizen and you said earlier he never asked you about these
delineators. But let me tell
you what Mr Oosthuizen asked you about.
He said: “Will you please tell me what happened with the
accident on Monday, 19 January
2009” and you told this whole
story. Mr Oosthuzen did not know what happened. You had to tell him
what happened?
A:
Yes”.
(Vol
13 P 971(13)-972(25)).
19.
“
Q: Earlier in your evidence you said that everything that
you had told Her Ladyship about this accident was important enough to
tell the people at Haw & Ingles and what I am now saying that you
are now changing your version by saying to you is that everything
except these two delineators was important enough to tell the people
at Haw & Ingles about?
A:
Now this question confused me because I do not know if you
are talking about the delineators that are next to the small heaps or
the delineators that are on the centreline of the road.
Q:
Mr Pitso, I am talking about two delineators that you testified you
found in front of the heaps of gravel.
A:
My answer is at that time the only important thing to me was
the accident. I did not even think about the delineators.
It did not
seem relevant to me to mention them because the only important thing
then was the accident”. (Vol
13 P 974(11)-975(3)).
20.
The aforegoing extracts demonstrate ineluctably that the trial Judge
was justified to say about Ms Mokwa: “
I
can already only describe her evidence as fanciful”
and dismissed Mr Pitso’s evidence with the words: “
He
may as well not have testified.”
Regard must then be had to the analysis of the evidence that the
trial Judge made in paras 44.1 to 44.9 (quoted above) of
her
judgment. I cannot trace the aberration that Mr Pieterse was so
scathing about. On the contrary placing Mokwa and
Pitso’s
evidence under the microscope revealed how Mr Pieterse glossed over
their evidence-in-chief, how he struggled to
keep them in check with
leading questions and how counsel was sailing close to the wind of
cross-examining Ms Mokwa, his own witness,
when re-examination was
his exit point. Mokwa and Pitso were not only totally
discredited but they were out-and-out liars.
So much for the mutually
destructive versions which was the fulcrum of Traffic Services’
defence.
21.
With regard to the ground of appeal quoted at para 3.10 of this
judgment counsel for Traffic Services had this to say in his
written
submissions:
“
In
paragraph 44.6 the Court a quo draws an adverse inference from the
fact that Appellant did not call the traffic controller (on
the
Kimberley side of the deviation) who indicated that she received the
ambulance but not the red car.
It
is further respectfully submitted that the Court a quo erred in not
drawing an adverse inference from the Respondents’
[the
plaintiffs’] failure to call Warrant Officer V D Merwe and or
the Fourth Respondent [Manual Soares Pascoal], whose availability
was
established, to give evidence on the status of the road closure at
the relevant time. These witnesses were clearly in a position
to do
so on Respondents’ version
.
See
Leeuw
V Firstrand Bank Ltd
2010 (3) SA 410
(SCA)
par 20 and the authorities therein cited”.
(Own emphasis).
Mr
Manuel Pascoal is Kimberley’s (the 3
rd
plaintiffs) father who arrived on the scene more than an hour after
the accident when he was summoned from Warrenton. At that stage
the
police and emergency services had long been there. This was no longer
clutching at straws by appellant’s counsel, it
was waffling.
22.
Mr Mullins’ take on this criticism is as follows in his written
submission:
“
The
Defendant [Traffic Services] appears to suggest that an adverse
inference is to be drawn somehow to the effect that the intersection
must at the time have looked as the Defendant suggests it did. The
most telling point in this regard is that the defendant was
told, in
open court, that the Plaintiffs did not regard it as necessary to
call Warrant Officer Van Der Merwe, and that the Defendant
was
welcome to consult with him and call him should they wish. See p376
lines 5-10. One suspects that if the Appellant really thought
that
Warrant Officer Van der Merwe’s evidence would harm the
Plaintiffs’ case, they would have taken up that invitation,
consulted with him, and called him. They clearly chose not to do so.
Perhaps they consulted with him and chose not to call him.
Perhaps
they chose not to even consult with him. But on what earthly basis
can they still contend for a negative inference?”
23.
In Vol 14 p1088 Mr Pieterse closed Traffic Services’ case.
He chose not to call Mr Van der Merwe whom he suggested
will assist
the Court when he cross-examined Mr Burger at Vol 6 pp 374(12)
-378(17). Mr Mullins was categorical that Mr Van
der Merwe was
superfluous to his requirements or would not advance plaintiffs’
case. What Mr Pieterse skirts is an
explanation on why, as the
trial Court puts it in para 44.6 of the judgment:
“
If
Bekker’s car followed the ambulance, there is no explanation on
how the ambulance exited the barricaded lane unscathed.
More
importantly the ambulance must have been seen by the traffic
controller on the exiting side.
The
fact that Traffic Services did not call such a witness must be
indicative of the fact that Mokwa was busy with self-preservation.
”
(Own emphasis).
24.
Why Mr Pieterse has qualms with the emphasized statement by the trial
Judge is beyond comprehension. It is in fact worse
for the
appellant because Mokwa’s averment of what her colleague on the
exiting side conveyed to her remains hearsay and
inadmissible because
the veracity of the exiting of the ambulance could only have been
asserted by that illusive witness.
The case for Traffic
Services degenerates even further on this aspect. In his
evidence-in-chief Pitso speaks of:
“
The
people who were working at that stop and go [Stop/Go] were Mokwa and
Molala”.
Molala was not called, whoever he or she may be. Further, Mokwa
says in-chief at p911(11) – (13): “
Now,
where I had stopped the cars and there is someone who normally goes
and stands behinds the last car to stop that car also.”
Later at p1004 (19) – (24) under cross-examination:
“
Q:
How many cars were there stationary at your stop and go at the time
when the ambulance and the red car overtook everybody?
A:
I do not remember because
the person who works on the cars will be
the one who remembers
how many cars there were. I only work with
the radio.”(own emphasis)
What
Mokwa was saying, not once but twice, is that there is a lacuna in my
evidence that can only be plugged by this person who
manages the
tail-ender-cars, be that Molala or the anonymous person. Mr
Pieterse was clutching at straws once more.
25.
There is no reason to disturb the trial Court’s finding that
the cause of the accident is solely attributable to the collective
negligence of the employees of Traffic Services. The negligence
commenced with the triple action by Ms Mokwa: Switching
the
robot to green, removing the two cones in front of the lead-car
(Bekker’s car) and that the wave of the hand meant
bon
voyage,
which left nothing to the imagination. Having considered
the evidence of the factual and expert witnesses the trial Judge was
satisfied
and therefore found that there was no contributory
negligence on the part of Bekker. In
R v Dlumayo and Another
1948 (2) SA 677
(A)
at 706 paras 8-12 the Court stated:
“
(8)
Where there has been no misdirection on fact by the trial Judge, the
presumption is that his conclusion is correct; the appellate
court
will only reverse it where it is convinced that it is wrong.
(9)
In such a case, if the appellate court is merely left in doubt as to
the correctness of the conclusion, then it will uphold
it.
(10)
There may be a misdirection on fact by the trial Judge where the
reasons are either on their face unsatisfactory or where the
record
shows them to be such, there may be such a misdirection also where,
though the reasons as far as they go are satisfactory,
he is shown to
have overlooked other facts or probabilities.
(11)
The appellate court is then at large to disregard his findings on
fact, even though based on credibility, in whole or in part
according
to the nature of the misdirection and the circumstances of the
particular case, and so come to its own conclusion on
the matter.
(12)
An appellate court should not seek anxiously to discover reasons
adverse to the conclusions of the trial Judge. No judgment
can ever
be perfect and all-embracing, and it does not necessarily follow
that, because something has not been mentioned, therefore
it has not
been considered”.
26. The Court also rejected the
causality defence, correctly in my view, raised by Traffic Services
based on
Standard Charted Bank of Canada v Nedperm bank Limited
[1994] ZASCA 146
;
1994 (4) SA 747
(A) at 764H -765A
where Corbett CJ
decided:
“
My
conclusion is that the untrue report issued by Nedbank was a factual
cause of Stanchart’s loss. In other words, it was
a conditio
sine qua non of such loss. That, however, does not conclude the
enquiry. It is still necessary to determine legal causation,
ie
whether the furnishing of the untrue report was linked sufficiently
closely or directly to the loss for legal liability to ensue,
or
whether the loss is too remote. The principles applied in such an
inquiry have recently been expounded by this Court in the
cases of S
V Mokgethi en Andere
1990 (1) SA 32
(A) at 39D-41B; International
Shipping Co (Pty) Ltd v Bently (supra at 700E-701G); and Smit v Abram
[1994 (4) SA 1
(A)]. As appears from these judgments, the test to be
applied is a flexible one in which factors such as reasonable
foreseeability,
directness, the absence or presence of a novus actus
interveniens, legal policy, reasonability, fairness and justice all
play their
part”.
27.
In light thereof that Bekker has not been found to have been
contributorily negligent and that causality was not established
by
Traffic Services the need to weigh up the relative degrees of
negligence does not arise. See
Harrington
NO and Another v Transnet Limited and Others
2007 (2) SA 228
(C) at
254A-256H;
and
Minister
of Safety and Security v Venter
2011 (2) SACR 67
(SCA) at 77h.
28. On the Third Party (the RAF)
joinder and liability issue Mr Pieterse seems to want to sit on two
chairs. In order to avoid paying
the RAF’s costs if the case
goes against Traffic Services he advanced the half-hearted argument
that there was no need for
the RAF to have instructed counsel for
this appeal and for that reason Traffic Services prays that the order
of the trial Judge
be substituted with an order that:
28.1
The plaintiffs’ claims be and are dismissed with cost; and
28.2
The defendant (Traffic Services) be and is ordered to pay the costs
of the Third party (the RAF).
29. Mr Pieterse submitted that
should we find that there was no road closure at the 32 km mark, then
in that event, the concession
is made that, on the accepted evidence,
Traffic Services was negligent, but only to the tune of 70%, and
that Mr Bekker was
30% negligent. Traffic Services therefore prays
for an alternative order in the following terms:
29.1 That the appeal is upheld with
costs.
29.2 That the defendant (Traffic
Services) is ordered to pay 70% of First Plaintiff’s (Mr
Bekker’s) proven or agreed
damages suffered as a result of the
injuries sustained by Bekker in the collision that occurred on 19
January 2009.
29.3 That the defendant is ordered
to pay 100% of 2
nd
to 4
th
plaintiffs’
proven or agreed damages suffered as a result of injuries sustained
by Bekker and the 3
rd
plaintiff (Kimberley Pascoal).
29.4 That the Third Party (the RAF)
is declared to be a joint wrongdoer as a result of the negligent
driving of the motor vehicle
driven by Bekker.
29.5 That the Third Party (the RAF)
be and is hereby ordered to indemnify the defendant (Traffic
Services) and/or to make a contribution
towards the amounts paid by
the defendant in terms of para 29.3 (above), equal to the amount
which the 2
nd
to 4
th
plaintiffs are entitled to
claim from the Third Party (the RAF) in terms of the provisions of
the RAF Act 56 of 1996, and
26.6
That the Third Party (the RAF) be and is hereby ordered to pay the
defendant’s (Traffic Services) costs.
30.
On the other hand Adv R S Shepstone, for the RAF, confined himself
to the joinder of the RAF in terms of the Notice dated 12
November
2012. At the pre-trial conference held on 16 August 2013 Traffic
Services (the appellant) and the RAF agreed that the
legal issues
excepted to by the RAF, relating to the joinder, be argued at the end
of the trial, which duly happened at trial stage.
31.
It is common cause that Traffic Services does not persist in its
contention that the RAF was the primary insurer for all damages
suffered as a result of the bodily injuries sustained (due to the
negligence of any vehicle in South Africa) which would therefore
oblige the RAF to indemnify Traffic Services for the alleged damages
suffered in terms of the provisions of the RAF Act, 56 of
1996.
32.
Similarly, Traffic Services does not persist in the causality defence
(the so-called divisibility of damages defence). Concomitantly,
Traffic Services concedes that it failed to prove that Mr Burger, who
drove the Ford Territory, the second vehicle in the accident,
was
negligent and thus causally connected to the injuries suffered by the
plaintiffs.
33. Mr Shepstone submits that the
alternative prayers by Traffic Services set out in para 29 (29.1 to
29.6) impels him, however,
to argue that the RAF cannot be joined as
a wrongdoer in this action, and that the trial Judge was correct in
holding so, albeit
for different reasons. His argument goes
essentially along the following lines:
The
Appellant seemingly places reliance for its contention on s 2(1) of
the Apportionment of Damages Act 34 of 1956. On a proper
interpretation of the above section it is clear that to be labelled
as joint wrongdoers the persons must be jointly or severally
liable
in
delict
to
a third person; that the RAF’s liability to the Plaintiffs is
not in delict but statutory and in particular the RAF is
liable to
the Plaintiffs by virtue of the provisions of s 17 of the Act; that s
17 of the Act imposes liability on the RAF to compensate
road
accident victims who are injured as a result of the negligent driving
of a motor vehicle and; that the aim of the Act is to
compensate the
victim, and not compensate or indemnify the negligent driver of the
motor vehicle.
34. In
Smith v Road Accident
Fund
[2006] ZASCA 15
;
2006 (4) SA 590
(SCA)
the Court succinctly set out who
the beneficiary of the RAF Act is. Heher JA stated at 595G-596D
(paras 9 and 10) that:
“
[9]
In my view, their submissions are contrived and untenable. I have
drawn attention to the substance of s 17 of the Act, viz the
compensation of victims of road accidents arising out of death or
bodily injury. The appellant is not a victim and the loss against
which he seeks indemnification is purely pecuniary in nature. The
designated beneficiary of the fund is not the uninjured negligent
driver but the victim of his driving. The Act and regulations
manifest a clear and consistent intention in this regard. To imply
the existence of a right in such a person to sue the fund for a
contribution or indemnity would fly in the face of reason and would
be contrary to the express terms of the Act. The limitation cannot
have been accidental nor does the exclusion of persons in a
position
of the Appellant give rise to an anomaly since it is fair to say that
such a negligent driver does not even have a moral
claim on the fund.
[10] Counsel’s reliance on
the Apportionment of Damages Act is also misplaced. That statute does
not, as counsel submitted,
create a cause of action in s 2(1). What
it does is to provide a means of sharing the burden of damages
between joint wrongdoers
in delict. Prima facie, the fund is not such
a wrongdoer when an unidentified driver or owner is involved because
its liability
is essentially statutory, proof of a delict alone
being, by reason of the regulations to the Act, wholly insufficient
to establish
a cause of action against it. But the Legislature has,
in the circumstances of this appeal, put the matter beyond doubt by
providing
(in s 3 of the Apportionment of Damages Act) that s 2
applies where a liability is imposed in terms of the
Road Accident
Fund Act. While
the Fund is a person on whom liability is imposed in
circumstances contemplated in that Act to the third party, it is not,
as I
have found, under any liability to a negligent driver who
inflicts loss or damage upon a third party. The consequence is that
the
fund cannot be a joint wrongdoer with the appellant in the
circumstances of this appeal.”
In
Smith (supra) the SCA held that the RAF is not such a wrongdoer when
an unidentified driver or owner is involved because its
liability is
essentially statutory and not delictual in nature. The SCA did not
express an opnion as to the correctness of the
opposite conclusion
reached by Du Plessis AJ, in
Maphosa
v Wilke en Ander
1990 (3) SA 789
(T) at 789 A-G
.
35. Mr Shepstone submitted that
should the plaintiffs pursue a claim against the RAF then the fund’s
liability would be based
on s 17 of the Act, read with the new
regulations, that the new regulations, which would be applicable
should the plaintiffs pursue
a claim against the RAF, restrict
compensation in respect of general damages to defined serious
injuries only, and limit the extent
of the injured party’s
claim for future loss of income, and; that the plaintiffs’
claims against the RAF are accordingly
statutory in nature, and are
not delictual claims.
36. Mr Shepstone submitted
that a further reason why the RAF cannot be joined as a joint
wrongdoer by the appellant is the
clear wording of s 3 of the
Apportionment of Damages Act, which reads:
“
The
provisions of s 2 shall apply also in relation to any liability
imposed in terms of the Motor Vehicle Insurance Act, 1942 (Act
No. 29
of 1942), on the state or any person in respect of loss or damage
caused by or arising out of the driving of a motor vehicle.”
To
paraphrase, counsel argues that, the RAF can only be joined and will
only attract liability to a joint wrongdoer if it would
have been
liable to the joint wrongdoer in terms of s 17 of the RAF Act. The
appellant, he goes on, does not have a lawful claim
against the fund
(it has a lawful claim against Stephan Bekker as a third party in
respect of the damages suffered by Kimberley).
37.
Counsel’s contention is that the RAF cannot be equated to an
insurer “who steps into the shoes” of the insured
person,
and indemnify the insured person against particular risks. The RAF
was established to compensate road accident victims
for injuries
sustained by them. The RAF Act places emphasis on the compensation of
victims of road accidents, and not on the indemnification
of
negligent drivers. In the result, Mr Shepstone submits, the
appellant’s reliance on the decision of the Appellate Division
in the matter of
Dodd
v Multilateral Motor Vehicle Accidents Fund
1997
(2) SA 736
(A) that it is indeed competent to join the RAF as a joint
wrongdoer in terms of the Apportionment of Damages Act is misplaced.
The cause of action in Dodd, the argument went, was in delict as the
passenger sued the driver of the vehicle in which he was travelling
for that portion of the claim for which the insurer was not liable
i.e. the passengers claim was founded on the common law in Dodd.
38.
Adv Mullins SC, magnanimously, and basically acting as an
amicus
curiae
on this lis to which his client is not a party,
volunteered the following approach in differing with the submission
by Mr Shepstone:
“
4.2
Prior to the Amendment Act, a passenger’s claim against the
Fund based on the negligence of her driver was
limited to R25 000,00,
but her claim against the Fund based on the negligence of any driver
other than that of the vehicle
in which she was a passenger, was
unlimited.
So,
Passenger A driven by driver B injured in a collision between that
vehicle driven by driver C could claim compensation from
the Fund on
the basis of C’s negligence, but only R25 000,00 on the
basis of B’s negligence, and would then have
to sue B himself
for the balance.
4.3 By the same
token, in the example postulated in paragraph 4.2 above, where A
chose to sue the Fund on the
basis of C’s negligence, the Fund
had the right to join B as a joint wrongdoer together with it as
against A, save in respect
of the first R25 000,00 of A’s
damage.
4.4 The
situation as outlined in paragraphs 4.2 and 4.3 above was confirmed
by the Appellate Division in
Dodd v Multilateral Motor Vehicle
Accidents Fund
[1996] ZASCA 132
;
1997 (2) SA 763
(A).
The
plaintiffs were the dependants of a passenger in a motor vehicle who
was killed in the collision. The appellant had been
the driver
of the vehicle. The plaintiffs sued the Fund on the twin bases
of negligence of the other driver (unlimited claims),
and that of the
appellant (limited claims), and they also sued the appellant for the
balance over their limited claims. The trial
court found the
collision to have been caused by the joint negligence of both
motorists, the appellant as to 1/3
rd
and the other driver as to 2/3
rd
and,
subject to the appellant’s exclusion of liability for the first
R25 000,00 of each claim, held him and the Fund
jointly and
severally liable. The appellant appealed, contending that
irrespective of his negligence, the Fund was exclusively
liable.
The appeal failed, Zulman JA (with whom EM Grosskopf, Eksteen,
Olivier and Schultz JJA concurred) saying the following:
44.1
At 766I:
‘
The
essential matter in dispute in this appeal which concerns only the
appellant and the MMF is whether the provisions of Article
52 of the
Schedule deprive the plaintiffs of their common-law right to hold the
appellant liable, as a joint wrongdoer, for their
damages in excess
of R25 000,00’.
4.4.2
At 767F-G:
‘
The
crux of the problem … is that had the appellant been the only
driver, the MMF would only have been liable for a maximum
of
R25 000,00 per passenger. The appellant would have been
liable to the passengers [plaintiffs] for the balance of
their
claims. What happens if there are two vehicles involved?
Does the common-law liability of the appellant simply
disappear?
This question may only be of academic interest to the plaintiffs, but
is of vital importance as far as the right
of contribution, inter se
between the appellant and the MMF is concerned’.
4.4.3
At 769D-F:
‘
The
clear intention of the Legislature … was to limit the
liability of the MMF to R25 000,00 for the claim of each
passenger or dependant … it is impermissible to so frustrate
that intention because another vehicle is involved.
To
summarise, I am of the view that the introduction of a second vehicle
which happened to be insured, as it were, by the MMF, does
not alter
the position. The appellant is, as between the appellant and
the MMF in this case, one which is regulated by the
provisions of
Article 52 read with Articles 40 and 46. The claims are
excluded in total but are merely reduced by the sum
of R25 000.00’.
4.5
The law is nothing but logic. And logic tells one that, in
accordance with Dodd, had the situation been
otherwise, had A (the
plaintiffs in Dodd) chosen to sue B (the appellant in Dodd) only,
then just as Dodd decided that the Fund
could join B, so too could B,
where the roles were reversed, join the Fund.”
39.
Both arguments are compelling. However, there is no need for me
to reconcile the dichotomous arguments. Firstly,
because my
views would be academic and therefore inconsequential; secondly, by
virtue of the precedent system it is not for this
Court to state,
categorically, which of the Supreme Court of Appeal cases is
incorrectly decided. If, however, I had found
that Bekker, the
driver represented by S L Erasmus NO, was contributorily negligent it
would have been incumbent on me to state
whether the RAF is declared
to be correctly joined or not and to justify the basis for my
decision.
40.
My decision for leaving this aspect open does not, however, preclude
the RAF or deprive the RAF from recovering its costs.
41.
In the premises I make the following order:
(1)
The appeal is dismissed with costs in respect of all five respondents
[the first to the fourth plaintiff and
the Third Party (the Road
Accident Fund)].
(2)
The costs of appeal for which the appellant (EC Traffic Services CC)
is responsible include the costs of the
first to fourth respondents
(plaintiffs) and those of the application for leave to appeal to the
Supreme Court of Appeal and the
reasonable travel and accommodation
costs of the respondents’ (plaintiffs’) Hartswater
attorney(s) and Pretoria advocate(s).
(3)
The costs to include the Third Party’s (the RAF’s) costs
in opposing the application for leave
to appeal to the Supreme Court
of Appeal and the costs occasioned by the Third Party (the RAF’s)
Cape Town attorneys and
Johannesburg advocate having to travel to
Kimberley.
__________________
F DIALE KGOMO
JUDGE PRESIDENT
Northern Cape High Court, Kimberley
I concur
_____________
C .C WILLIAMS
JUDGE
Northern Cape
High Court, Kimberley
I concur
________________
B.M PAKATI
JUDGE
Northern Cape
High Court, Kimberley
Counsel:
For the Appellant:
Adv. J.C
Pieterse
Instructed by:
Van De Wall & Partners
For the 1
st
–
4
th
Respondent:
Adv. J.F Mullins SC
Instructed
by:
Duncan &
Rothman Inc.
For the 5
th
Respondent:
Adv. R.S Shepstone
Instructed
by:
Robert Charles Attorneys