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[2016] ZANCHC 42
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Vorster v Sol Plaatje Municipality and Another (CA&R30/2016) [2016] ZANCHC 42 (2 December 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape Division, Kimberley)
Saakno
/ Case number:
CA
&
R
30/
2016
Datum
aangehoor/Date heard:
19
/ 09 /
2016
Datum
gelewer/Date delivered:
02
/ 12
/
2016
In
the appeal of:
LOUISE
VORSTER
Appellant
and
THE
SOL PLAATJ E M
UNICIPALITY
First
Respondent
FAYIKA
ALEXANDER
Second
Respondent
C
oram
:
Williams, J
et
Erasmus, AJ
JUDGMENT
ON APPEAL
ERASMUS,
AJ
[1]
This is an appeal against the judgment of the Magistrate Kimberley,
in terms whereof the claim of the appellant (hereinafter
referred to
as "the plaintiff") had been dismissed after having found
that the plaintiff had not proved negligence on
the part of the
defendants.
[2]
The plaintiff herein instituted action against the defendants for
damages arising from a motor vehicle collision. The following
facts
are common cause between the parties:
2.1
The plaintiff had complied with the provisions of Act 40 of 2002;
2.2
The collision occurred between a silver BMW 530i vehicle (hereinafter
referred to
as 'the BMW') and a municipal compactor truck
(hereinafter referred to as 'the truck') on 8 July 2014 at the
intersection of MacDougall
and Memorial Roads, Kimberley (hereinafter
referred to as 'the intersection');
2.3
The intersection was regulated by traffic lights in all directions;
2.4
The road was dry, there was nothing obscuring the view of either of
the drivers and
the collision took place in broad daylight.
2.5
A certain Mr Jooste was driving the plaintiff's BMW at the time of
the collision.
2.6
The first defendant was the owner of the truck and, at the time of
the collision,
the second defendant had been the driver of the truck;
2.7
The first defendant accepted being vicariously liable for the actions
of his employee,
being the second defendant herein.
[3]
At the commencement of the trial the quantum
and merits were separated and the learned Magistrate
was
required to decide on the issue of negligence
only. The plaintiff's attorney, Mr Steyn, placed
on
record:
"Dit
is
'n
motorbotsing en
die
partye
het
vooraf
ooreengekom
dat
die
meriete
en
kwantum
apart
bereg
sat
word en
dat ans
van
u sal
verlang
bloat om net
'n bevinding
te maak
op die meriete
en in
hierdie geval
die
dispuut met betrekking
tot die kwessie
van nalatigheid
.
"
[4]
Mr Job, on behalf of the defendants, confirmed this to be the
position.
[5]
The plaintiff specifically pleaded that the collision was caused by
the sole and exclusive negligence of the driver of the first
defendant's vehicle and listed several grounds therefor. The
defendants disputed the negligence of the second defendant as well
as
the quantum of the damages claimed. The defendants pleaded that the
collision had been caused by the sole and exclusive negligence
of the
driver of the plaintiff's vehicle.
[6]
Adv Olivier, on behalf of the defendants, submitted before us that
the issues to be decided on appeal are whether the appellant
had
succeeded in showing negligence on the part of the second defendant
and further, whether or not the quantum of the claim should
be dealt
with in terms of the provisions of the Apportionment of Damages Act,
No 34 of 1956 ('the Act').
[7]
Adv Sieberhagen, on behalf of the appellants, submitted that the
learned Magistrate had erred in not finding that the second
defendant
had acted negligently. She also submitted that the issue of
contributory negligence and apportionment of damages are
not relevant
in this instance as the plaintiff had not been the driver cf the BMW
at the time of the collision.
[8]
A large portion of the judgment of the Court
a quo
was
allocated to the negligence of Mr Jooste, the driver of the
plaintiff's vehicle. The learned Magistrate found that he had
been negligent and, as a result thereof had caused the
collision and also that the plaintiff had not proved any
negligence on the part of second defendant .
[9]
The
learned
Magistrate,
in
the
judgment,
noted
that
the
defendants
pleaded
contributory
negligence
on
the side of the
driver
of
the
plaintiff
'
s
vehicle.
I
n
this
instance
the
plaintiff
was
not
the
driver
of the
BMW
and
her
claim
cannot be subject
to
apportionment
as
she
had
not
been
at
fault.
The
driver,
Mr
Jooste, was
not
a party to the
proceedings,
as
he
had
not
been
joined
as
a
third
party
in
terms
of
rule
28A
of
the
Magistrate's
Court
Rules.
I
n
terms
of
this
rule
an apportionment of
fault
in
the
form of a declaratory order could have
been
sought
against
Jooste.
[1]
Mr
Jooste
had
also
not
been served with
a
notice
in
terms
section
2(2)
of
the
Apportionment of
Damages
Act,
34
of
1
956
and
no
relief
under section 2(6)(a) of
the
said Act had been sought against
him
in
the
form
of
a
judgment
for
the
payment
of
a
sum
of
money
determined
by
the court. This
being
the position the contributory negligence of Mr
Jooste,
as conceded by him, is not
relevant
for
the
adjudication
of
the
negligence
of
the
second defendant.
If
the
second
defendant
had
been
only
1
%
negligent
and there was a
sufficient
causal
link
between the
conduct
of
the
second
defendant and
the
collision,
the
plaintiff would be
successful.
The
defendants would then be liable
for
payment of the
plaintiff's
proven damages
resulting
from the
collision.
II
t
appears
from
the
reasoning of the
learned
Magistrate
that
this
was
not
taken
into
account
in
the
evaluation of the evidence.
[
1
0]
It
i
s
trite
that
the
test
to
be
applied
in
respect
of
motor
vehicle
collisions
is
whether
the
driver
had
acted
as
any
reasonable
person
would
have
acted
under
the
prevailing
circumstances.
[2]
If
such
reasonable
person
in
the
position
of
the
second
defendant
would
have
foreseen
the
reasonable
possibility
of
his
conduct
injuring
another
in
his
property
and
causing
him
patrimonial loss
and
could
have
taken
reasonable steps
to
prevent
against
the
occurrence,
but
still
failed
to
do
so,
the
plaintiff would
have
succeeded
in
proving that the second
defendant
was negligent.
[11]
From applicable case law it appears that a breach of statutory
provisions and/or duties pertaining to actions frequently executed
by
drivers will usually justify a conclusion of negligence on the part
of a driver.
[12]
In this instance the plaintiff relied on several grounds of
negligence, as set out in the particulars of claim. These included
several common law duties owed to other road users,
inter
alia,
the duty to keep a proper lookout, to apply
brakes timeously, to consider the safety of other road users, to
approach an intersection
at an acceptable speed and to prevent a
collision which he could have prevented by applying reasonable care.
Establishing whether
or not the plaintiff had proved that the second
defendant was negligent requires an evaluation of the evidence.
[13]
It was the uncontested evidence of Mr Jooste that shortly before
08:00 on the morning of Friday 18 July 2014 he had approached
the
intersection from the direction of the Diamond Pavilion Mall and
stopped as the lights had already turned red. When the light
had
turned green for him he looked to his left for vehicles that might
have been approaching from the direction of Ritchie and
others still
standing in the intersection, waiting to turn right in the direction
of the Pavilion Mall and then looked to the front.
The collision took
place after he had slowly proceeded approximately 4 meters into the
intersection. According to Jooste the truck
had hit the BMW on the
front right hand side and the impact pushed the BMW to the left.
[14]
During cross-examination Mr Jooste conceded only having looked to his
left when the light had turned green for him to enter
the
intersection and not having looked to the right. In fact he conceded
that his failure in this regard constituted negligence
on his part
and that this negligence had contributed to the collision. He denied
however that the collision had been caused solely
by his negligence.
[15]
The second defendant's version, as put to Mr Jooste, was that the
truck had almost exited the intersection when Jooste had
entered same
and collided with the midsection of the truck. It was put to him that
from the damage to the BMW, it appears as though
he had driven into
the truck. Jooste denied this version and stated that the damage to
the BMW was mostly on the front end of the
vehicle or as he put it,
"the nose of the vehicle". This is corroborated by the
photos taken of the BMW after the collision.
[16]
According to Jooste, the truck must have entered the intersection
when the light was amber or had already turned red. He further
added
that the second defendant had not applied the brakes.
[17]
The other witness, Mr Jooste's son, who had also testified on behalf
of the plaintiff, corroborated evidence that the BMW had
been
stationary at the red traffic light. He confirmed that they had
proceeded slowly into the intersection, after the light had
turned
green. He also affirmed that the truck had hit the BMW on the right
front section, but denied that the BMW had driven into
the truck.
[18]
Mr De Villiers, an independent witness, was a pedestrian who had
approached the intersection from the direction of the Pavilion
Mall.
He had observed the stationary vehicles at the red traffic light in
MacDougall Street. He was crossing the intersection while
facing the
red traffic light, when he observed the truck approaching the
intersection from his right out of Memorial Road. He did
not perceive
it to pose any threat to him. While crossing the street, he noticed
that the light had changed to amber for the vehicles
approaching from
the right from Memorial Road. After having crossed the street and
reaching the other side of the intersection
he heard the impact of
the collision behind him. He stated that the truck had been some
distance away as he would not have crossed
had he not been able to do
so safely.
[19]
During cross-examination he testified that the truck must have been
at least 30 meters away from him and that the traffic light
for the
vehicles travelling on Memorial Road only turned red after he had
reached the other side of the road.
[20]
The second defendant, Mr Alexander, testified that he had been
travelling on Memorial Road in the direction of Ritchie. He
had
entered the intersection while the traffic light was still green for
him. He had heard the impact on having almost exited the
intersection. The concluded that the BMW had driven into the truck as
it passed as he had observed a mark on the last wheel of
the truck.
[21]
During cross-examination it was elicited that the truck weighed in
excess of 10 tonnes. The driver's seat was approximately
two meters
above ground level and the cabin of the vehicle had large windows
making proper observation possible. The length of
the truck was
described as needing two parking spaces to park. According
to him he was travelling at a speed of 30
or 40 kilometres per hour
whilst approaching the intersection. He had reduced speed as per
usual when coming to that intersection.
Even when the light was
green for him, he would keep a lookout for cars on the
left and usually reduce his speed
as anything could happen at the
intersection. At the time of reducing his speed, he was approximately
the length of the truck away
from the solid line at the entrance to
the intersection. He had entered the intersection
travelling approximately
30 or 40 kilometers per hour.
[22]
During cross-examination it emerged that Mr Alexander had only
reduced speed after entering the intersection. He had not observed
any vehicles on entering the intersection and the truck had been the
only vehicle in the intersection. He had neither observed
the vehicle
of the plaintiff, nor the pedestrian at all. He could not explain w
here the BMW had come from. He had not observed
any vehicles waiting
at the intersection from the direction of the Pavilion Mall in
MacDougall Street. According to Alexander,
the traffic lights were
green on his approach to the intersection, from the time he had
reached the overhead billboards, situated
approximately 40 metres
from the entrance to the intersection. He conceded that had he
observed the BMW at the intersection, he
would have applied his
brakes before entering the intersection.
[23]
From the evidence it appears and must be accepted that the BMW
entered the intersection after the light had already changed
from red
to green, allowing him to proceed. It has not been contradicted that
the BMW, which had been travelling straight on into
MacDougall
Street, had already moved approximately 4 metres into the
intersection when the collision had occurred . As appeared
from Mr
Jooste 's evidence and from the photos illustrating the damage to the
BMW, it had been hit on the right front section of
the nose of the
vehicle.
[24]
When
considering
the issue of negligence,
it
should
be
done
in
the
context
of
accepted
duties
of
drivers
owing
to
other
road
users.
All
road
users are
required
to
keep
a
proper
lookout at all
times
so
as
to
avoid
colliding
with
other
road
users.
[3]
I
t
entails
more
than
merely
looking
straight
ahead
and
requires
an
awareness
of
what
i
s
happening
in
the
immediate
vicinit
y
.
This
standard
is
even
higher
for the driver travelling
on
a
road
with
intersections.
[4]
The
duty
of
a
driver
is
to
have
regard
to
traffic
coming
from
a
side
street,
to
exercise
reasonable
care
and
avoid
colliding
with
another
car
entering
the
intersection.
It
should
be
kept in
mind
that
priority does
not
confer
an
absolute
right
of way.
[5]
[25]
When
approaching
an intersection
regulated
by
a
traffic
light
the
driver
does
not
have
an
absolute
right
to
proceed
and
cannot
ignore
a
vehicle
of
which
he
is aware,
even
if
that
vehicle
is
driven
in
a
negligent
manner.
He
is required to regulate
his
speed
and his entry so as
to
not
endanger
the
safety
of
traffic.
[6]
When
entering
a
main
thoroughfare
and
proceeding
across
the
path
of traffic, a driver
is
required to proceed with great caution,
keeping
a
careful
lookout
and
adjusting
his
speed to be able to stop within
a
few
feet
should a vehicle appear too near to
him.
[7]
[26]
There is no
general
right
entitling
a driver
to
proceed
against
an
amber
light
as
a
driver
is
required
to
keep
a
proper
lookout
for
and
regulate
his
speed
so
that
he
can
respond
timeously
to
an
adverse
signal
without
having
to stop suddenly.
He
is
however
required
to
stop
if
he
observes
either
a
red
or
amber
light against
him
.
[8]
[27]
If these principles are applied to the second defendant, we are
satisfied that he did not act like a reasonable person under
the
circumstances that had prevailed at the time of the collision. He had
not kept a proper lookout in that he had not seen the
BMW and
pedestrian. He had not taken any steps to reduce his speed before
entering the traffic light controlled intersection during
peak hour
traffic. It should have been accepted by the Court
a
quo
that Mr Jooste had entered the intersection when the light had
already turned green for him. On the probabilities it must then be
accepted that, at best for the second defendant, the traffic light
had turned from green to amber on his approach to the intersection.
On his own version he proceeded into the intersection without having
applied the brakes and/or reducing speed.
A reasonable driver in his position would have foreseen the
possibility of a collision and damages arising from such collision
and would have taken reasonable steps to have prevented the collision
and resulting damage from occurring. He did not exercise
the standard
of conduct which the law required of him and was therefore negligent.
In our view there is a sufficient causal
link between the
conduct of the second defendant and the collision and damages arising
therefrom . The appeal therefor stands to
succeed.
Wherefore
we make the following order:
1
THE APPEAL SUCCEEDS WITH COSTS.
2
THE ORDER OF THE MAGISTRATE S SET AS DE AND S REPLACED WITH THE
FOLLOWING:
"1
THE PLAINTIFF'S CASE ON THE MERITS SUCCEEDS;
2
THE DEFENDANTS ARE ORDERED JOINTLY AND SEVERALLY TO PAY THE
PLAINTIFF'S COSTS N RESPECT OF THE TRIAL ON THE MERITS."
3
THE
CASE
S
REFERRED
BACK
TO
THE MAGISTRATE
K
I
MBERLEY
FOR THE ADJUD
CATION OF THE QUANTUM OF
THE
PLAINTIFF'S
CLAIM.
_________________
SL
ERASM US
ACTING
JUDGE
I
concur.
_________________
CC
WILLIAMS
JUDGE
For
the Appellant:
Adv. N. Sieberhagen (oio Duncan & Rothman)
For
the Respondent:
Adv. D. Olivier (oio Attorneys)
[1]
Hart v Santam Insurance Co Ltd 1975(4) SA 275 (E) at 2770-G
[2]
Kruger v Coetzee
1966(2)
SA 428 (A) at 430E; Griffiths v Netherlands Ins 1976(4) SA 691 (A)
at 695G
[3]
Butt v Van den Camp
1
982(3)
SA 8
1
9
(A)
[4]
Martindale v Wolfaardt
1
940
AD 235
at 242 and 245; Kotton v Schultz
1
953
(
1
)
PH 03 (A)
[5]
Van der Westhuizen v SA Liberal
I
nsurance
Co Ltd
1
949
(3) SA
1
60
(C) at
1
72
[6]
Santam Insurance
Co
Ltd
v
Gouws
1
985
(2) SA 629
(A) at 634
[7]
Grobbelaar v Federated Employers
I
nsurance
Co Ltd
1
974
(2) SA 225
(A); Ronda
lia
Assurance Corporation of SA Ltd
v
Page
1
975
(
1
)
SA 708
(A)
[8]
S
v
Van Stryp
1979
(2) SA 707
(E)