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[2016] ZAGPPHC 196
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Van Der Walt t/a J Van Der Walt Farming v Ngululu Bulk Carriers (Pty) Ltd (A700/14) [2016] ZAGPPHC 196 (24 March 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Case
Number: A700/14
DATE:
24 MARCH 2016
In the matter
between:
JOHANNES VAN DER
WALT
.........................................................................................
APPELLANT
T/A J VAN DER
WALT FARMING
And
NGULULU BULK
CARRIERS (PTY)
LTD
................................................................
RESPONDENT
Coram: A.A LOUW
J, FABRICIUS J et HUGHES J
JUDGMENT
[1] The respondent
had instituted an action for damages against the appellant and Mr
Mandavha Solomon Mashile (Mashile). Incidentally,
Mashile died before
the summons could be served upon him. The damages claim arose as a
result of a collision on 6 December 2011,
between the respondent’s
truck with two side tippers then and there being driven by Mr
Makolokolo John Zwane (Zwane) and
the appellant’s tractor with
a trailer, being driven by Mashile.
[2] This is an
appeal against the judgment of the court a quo where the court
granted judgment on the merits in favour of the respondent
in this
appeal. The entire appeal revolves around the issue of negligence
either of the appellant’s driver, Mashile or the
respondent
driver, Zwane, who at the time of the collision both drove the
vehicles of the appellant and the respondent respectively,
in the
course and scope of their employment
[3] The truck had a
load of 34.5 tons of lime whilst the tractor had a trailer which was
loaded with manure.
[4] The presiding
officer in the court a quo, Moseamo AJ, found that Mashile, the
tractor driver was negligent in causing the collision
and that no
negligence could be attributed to Zwane, the driver of the truck.
[5] The details of
the collision are briefly as follows: the collision took place at
around 14h50 on the N11 between Groblersdal
and Middelburg, in the
Province of Limpopo. Both drivers were driving in the direction of
Middelburg. Initially, the tractor was
traveling on the gravel
portion on the side of the national road, whilst the truck was
traveling on the road, in the same direction.
A sign post appeared in
the path of travel of Mashile and he swerved to the right and drove
his vehicle onto the road into the
path of travel of Zwane.
[6] In an attempt to
avoid colliding with the tractor Zwane swerved to the left as the
tractor was proceeding to the right of the
truck. Zwane managed to
avoid colliding with the tractor and instead collided with the left
rear of the trailer and the
sign post. Zwane
lost control of the truck and the two side tippers which landed on
its side across the entire national road. The
tractor became detached
from the trailer losing its load of manure.
[7] Immediately
after the collision the respondent conducted an investigation. During
the course of this investigation statements
were obtained from both
drivers. This was fortunate as a version of Mashile’s account
of how the collision transpired was
admitted into evidence during the
testimony of the investigator, Mr Quintin Louw.
[8] According to
Mashile, he was driving very slowly as he was 1km away from the main
farm entrance. As he drove on the gravel surface
he noticed a sign
post in his path of travel. In order to avoid the sign post he
steered the tractor with the trailer to the right.
In doing so his
right side tyres of the tractor and trailer were on the tar surface
of the 8travelling lane”, whilst the
other side was on the
gravel. He states that with the height of the load on the trailer he
was unable to observe traffic approaching
from the rear as it
obstructed his view: “As I steered to the right I suddenly felt
hard impact to the tractor rear... I
noticed that the truck ...was
still approaching the tractor so I subsequently steered the tractor
to the right across the road...”[That
in italics extracted from
Mashile’s statement].
[9] On the other
hand the account given by Zwane, is that he was traveling at 85km
when he observed the tractor in front of him.
It was driving on the
gravel surface on the left side of the road. He testified that when
he was 2 km away from the tractor he
noticed that the tractor was
travelling with two wheels on the road and the other two wheels were
still on the gravel, this is
when he reduced his speed and moved the
truck to straddle the centre line. As he drove on, he decided to
overtake the tractor,
so he accelerated to pass the tractor. When he
was about 20 metres from the tractor it swerved to the right, he then
applied his
brakes as it seemed as though the tractor was proceeding
to the right hand side of the road. He realised that he was going to
collide
with the tractor, so he swerved to the left and attempted to
pass between the trailer and the sign post. In doing so, the driver’s
side of the truck collided with the left rear of the trailer,
thereafter the truck collided with the sign post. The truck and the
two side tippers fell on its side on the entire width of the road,
[10] In this case
the court a quo found that Mashile was negligent in that he did not
keep a proper look out, did not have regard
for other road users
especially Zwane and he drove the tractor from one side of the road
into the path of travel of Zwane. The
court a quo further found that
Zwane swerved to the left to avoid colliding into the tractor which
had entered into his path of
travel and that he had taken all the
necessary precautions as he could not pass the tractor on the right,
as he thought that Mashile
was intending to turn to the right, and
his only option was to swerve to the left. Lastly, that the two
versions before the court
were not mutually destructive. That the
version of Mashile in fact supported or corroborates Zwane’s
version as to how the
collision occurred.
[11] It is trite
that an appeal court is reluctant to disturb the findings of the
trial court on questions of fact. This is so,
as the trial court,
with regards a question of fact was in a better position to observe
the witnesses as they testified and was
at a better advantage having
being steeped in the trial proceedings. Where there has been no
misdirection on the facts by the trial
court it is presumed that its
decision is correct and the appeal court will only upset that
decision if it is convinced that it
is wrong.
[12] From the
judgment, in analysing whether Mashile was negligent in the
circumstances, the court a quo took cognisance of the
fact that
Mashile steered right into the path of travel of Zwane, that Mashile
was driving slowly and did not look out for vehicles
that were
already on that lane of travel that he encroached on to” and
that Zwane swerved “left in order to avoid colliding
with the
tractor and instead collided with the left hand comer” of the
trailer attached to the tractor, [pg. 453 para [17]
of the record]
[13] The court a quo
in the light of all the evidence before it, in respect of the
negligence of Mashile, concluded that "...it
was required of the
second defendant (IVlashileJ to exercise extra caution in moving on
to a national road from the side of the
road. The second defendant
should have foreseen that they (sic) may already be vehicles on the
road on which he wished to swen/e
to and therefore exercise caution
before swerving or entering or steering on to the road. A reasonable
person in- his position
would have realised that steering a slow
moving cargo
carrying tractor
onto a busy national road might cause danger to other road users and
acted cautiously”, [pg.453 para [19]]
[14] In my view no
material misdirection on the facts is evident in reaching the
conclusion reached in respect of Mashile’s
negligence. This is
apparent to me if one has regards to his version outlined in his
statement provided to Mr Louw. On his own
version, he did not look
out at all before entering into the path of travel of Zwane. He also
did not even warn vehicles following
him of his intent to swerve to
the right. He moved his slow going tractor and trailer onto the road
and in the path of travel of
other vehicles and in conducting this
manoeuvre he was reckless, endangering those vehicles following the
tractor with its trailer
See Beswick v Crews
1965 (2) SA 690
(A) at
701A-B.
[15] Can any
negligence be attributed to Zwane? His evidence is that he saw
Mashile, in the tractor, traveling ahead of him on the
gravel path;
he was traveling at 80km; he observes the tractor swerve onto the
road, he reduces speed and when the tractor continues
to travel
partially on the gravel and the road he attempts to overtake it
however it continues to proceed towards the right, into
his path, so
rather than collide with the tractor he swerves to the left instead.
[16] It was argued
on behalf of the appellant that Zwane did not act as is expected of a
reasonable extra heavy duty truck driver
in the prevailing
circumstances and he did not exhibit the required skill. Further,
that this was a case of res ipsa loquitur,
in that it was a rear end
collision and thus Zwane was negligent.
[17] In my view the
court a quo was correct in concluding that the manoeuvre adopted by
Mashile was such that it was not what a
reasonable driver in Zwane’s
position would have expected of the tractor to execute. It was the
manoeuvre executed by the
tractor that no reasonable driver would
have expected that was the catalyst of this collision. Zwane cannot
be faulted to guard
against that which a reasonable driver in his
position would not have expected.
[18] The dictum by
Schreiner JA in Moor v Minister of Post and Telegraphs
1949 (1) SA
815
(A) at 826 comes to mind :
'...recognises the
obligation to watch a vehicle that one has seen, not only after it
has begun to show signs of dangerous driving,
but “in case the
owner of the other car should be careless and reckless"...
Speaking very generally one expects and
is entitled to expect
reasonableness rather than unreasonableness, legality rather than
illegality from other users of the highway...What
one is entitled to
expect depends on common experience and not on a fiction that others
will always accord us our just rights and
will always guard our
persons and property from harm.’
[19] I cannot find
fault with the conclusion that, “...a reasonable driver in Mr
Zwane’s position could not have foreseen
that a slow moving
tractor that was traveling on the side of the road would swerve or
turn right in to his lane of travel”
as he was entitled to
assume that the tractor would continue in the manner it had been
traveling all along, [pg.455]
[20] The appellant
took issue with the speed that Zwane was travelling, that Zwane
failed to swerve to the right timeously and allow
a reasonable berth
when overtaking and he did not hoot. In my mind, it was rightly
concluded that this criticism was not fair in
the circumstances which
Zwane was faced with, as the swerve manoeuvre adopted by Mashile was
not what one would expect of a reasonable
driver. In the
circumstances Zwane acted appropriately by reducing his speed to
assess the next move that the tractor would execute
and when he saw
it continued to move right whilst he attempted to overtake it, which
was not a move expected in the circumstances,
Zwane was correct in
moving left to avoid a collision.
[21] The reliance on
the rear end collision maximum of res ipsa loquitur, in my view, is
not applicable in the circumstances of
this collision. The court a
quo was correct in concluding so. From the facts it is clear that the
tractor had not been driving
in the path of travel of the truck but
instead entered the path of travel of the truck at an inopportune
time. This is not a rear
end collision scenario.
[22] In conclusion,
after an analysis of the versions of Mashile and Zwane, it is crystal
clear that the versions corroborate each
other and are not
irreconcilable as
argued by the
appellant. The rejection by the court a quo that this was not a case
with two mutually destructive versions was correct.
[23] For the reasons
set out above the appeal must fail as there is no merit in the
appeal.
[24] Consequently
the following order is made:
[24.1] The appeal is
dismissed
W. Hughes
Judge of the High
Court Gauteng Division Pretoria
I Agree
A. A. Louw
Judge the high
Court Gauteng Division Pretoria
I Agree
H.J Fabricius
Judge of the High
Court Gauteng Division Pretoria
APPEARANCES.
For the
Appellant: Adv. G B Botha (SC)
Instructed by:
Sonja Weldeman Attorneys c/o GP Venter Attorneys
For Respondent:
Adv. Venter
Instructed by:
Whalley van der Lith C/o van Stade van der Ende Attorneys
Date of hearing:
16 March 2016
Date of judgment:
24 MARCH 2016