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[2015] ZAGPPHC 33
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Madodi Bus Company (Pty) Ltd v Coldsure Distribution Services (A143/14) [2015] ZAGPPHC 33 (4 February 2015)
REPUBLIC
OF SOUTH AFRICA
GAUTENG
HIGH COURT DIVISION, PRETORIA
Appeal Case No.:
A143/14
Date: 4 February
2015
Not reportable
Not of interest
to other judges
In the matter
between:
MADODI
BUS COMPANY (PTY)
LTD
.....................................................................
Appellant
and
COLDSURE
DISTRIBUTION
SERVICES
............................................................
Respondent
JUDGMENT
MNGQIBISA-THUS
I
,
J
1. This appeal is
against the whole judgment of Magistrate Semenya, Mokorong Regional
Court, Limpopo, in which she dismissed the
appellant's claim for
damages arising from a collision between a motor vehicle ("the
bus"), bearing registration number
YTR 543 GP, driven by the
appellant's driver ("the plaintiff at the trial") and motor
vehicle ("the truck"),
bearing registration number FKJ 826
L, driven by the respondent's driver ("the defendant at the
trial"). The collision
occurred on 19 November 2010 at the
intersection of Grobler and Church Streets, Polokwane.
2. The appellant had
instituted an action for damages suffered because of the collision
and the defendant opposed the claim and
instituted a counterclaim for
loss suffered as a result of the collision. The parties agreed that
should any of the drivers of
the motor vehicles involved be found to
have been negligent, the owner would be vicariously liable for the
loss suffered by the
owner the other vehicle.
3. Henceforth I will
refer to the parties as in convention.
4. Mr Malesela James
Thobakgale, the driver of the bus, gave evidence on behalf of the
plaintiff. In brief, his evidence is as follows.
On the relevant day,
he was driving along Church Street, Polokwane, in a South-westerly
direction, travelling on the left lane
of a dual carriage with two
lanes in each direction. As he was about to reach the intersection of
Grobler and Church Streets, which
is controlled by traffic lights,
travelling at a speed of approximately 50km per hour, the traffic
light turned green in his favour
and he proceeded to enter the
intersection. When he was about to exit the intersection, he saw a
truck entering the intersection
on his left side from Grobler Street
and he tried to avoid it by swerving to the right. However, his
evasive action was unsuccessful,
he collided with the truck, hitting
it on its right side door, and the right head light of the bus was
damaged. Grobler Street
is a four lane street and the truck was
travelling on the left lane. On approaching the driver of the truck
who at that was still
seated inside the truck, the truck driver
apologised to him.
5. During
cross-examination, Thobakgale testified that at the time he entered
the intersection, there were no vehicles travelling
in front of him.
Furthermore, on being asked as to whether he saw the truck entering
the intersection, Thobakgale testified that
because of trees lining
Globler Street and vehicles parked at a dealership near the
intersection which obstructed his view, he
could not see further into
Grobler Street. Thobakgale denied that when the collision occurred he
was driving too fast. He further
testified that after the collision
and both vehicles had come to a standstill; both vehicles were facing
in a Northeast direction.
Thobakgale further denied the truck
driver's version that there were vehicles in front of him also
crossing the intersection from
West to East.
6. The next witness
called by the plaintiff was Moses Masekwameng, a passenger in the
bus, sitting on the third seat from the front,
on the left side of
the bus. His evidence is that when the bus was about to exit the
intersection, he felt the bus swerving and
he then saw the truck
coming towards the bus from the left and colliding with the bus. He
testified that when the bus entered the
intersection, the traffic
light was green in favour of the bus. During cross-examination,
Masekwameng maintained that the traffic
light was green for the bus
when the bus driver entered the intersection. He further testified
that at the time of the collision,
the bus had already traversed
three lanes of the four lanes Grobler Street.
7. The evidence for
the defendant is as follows. Mr Jankie Sethato, the driver of the
truck testified that when he reached the intersection
of Grobler and
Church Streets, the traffic light had turned red and he stopped. When
he was already in the intersection he saw
the bus on his right side
and heard the bus driver, who at the time was driving fast, engage
the lower gears. He then suddenly
heard a sound and for a moment felt
dizzy. He testified that when he entered the intersection he had seen
the bus. The bus had
swerved to the right and he had swerved to the
left and the front portion of the bus collided with the truck However
he later testified
that he could not swerve hence the front portion
of the bus collided with the truck. He further testified that there
were other
vehicles in the intersection, one of which was behind the
truck. After the collision, he alighted from the trick and the
paramedics
attended him. He further testified that the bus driver
inquired from him if he was all right.
8. During
cross-examination, he testified that he saw the bus as he was moving
from his stationary position. He further testified
that when he
entered the intersection the bus had not yet reached the last lane.
Contrary to his evidence in chief, he testified
that the bus driver
came to him when he was already in the ambulance.
9. The following are
common cause. On 19 November 2010 at the intersection of Grobler and
Church Streets, Polokwane vehicles driven
by the plaintiff and the
defendant's drivers collided. Further, that the plaintiff's driver
was travelling from South to North
along Church Street, a dual road
with one lane in each direction and the defendant's driver was
travelling from West to East along
Grobler Street, a dual road with
two lanes in each direction.
10. The plaintiff
and the defendant gave contradicting versions as to how the collision
occurred, particularly with regard to who
had the right of way when
the two vehicles entered the intersection.
11.
The court
a quo
was
faced with two mutually destructive versions as to how the collision
occurred. In
Stellenbosch
Farmers Winery Group Ltd and another v Martell et Cie and others
2003
(1) SA 11
(SCA), Nienaber JA stated that:
"The technique
generally employed by the 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 various factual
witnesses; (b) their reliability
and (c) the probabilities. As to (a), the court will depend on its
impression about the veracity
of the witness. That in turn will
depend on a variety of subsidiary factors, not necessarily in order
of importance, such as (i)
the witness' candour and demeanour in the
witness-box, (ii) his bias, latent and blatant, (iii) internal
contradictions in his
evidence, (iv) external contradictions with
what was pleaded or put on his behalf, or with established fact or
with his own extra
curial 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 the
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 the latter. But when all factors are equipoised
probabilities prevail."
12.
In reaching its decision the court
a
quo
rejected
as false Thobakgale's evidence that he could not see the truck as his
view was obstructed by some trees alongside the road
and that the
plaintiff's driver was negligent in not timeously stopping the bus
when he saw the truck. At the same time, the court
rejected Sethato's
version that he saw the bus when he was 500m from the intersection
and that he heard Thobakgale shifting to
lower gear on the ground
that this version was not put to either Thobakgale or Masekwameng,
the plaintiff's witnesses. The court
a
quo
concluded
that the collision was as a result of the sole negligence of the
plaintiff's driver, and consequently, dismissed the plaintiff's
claim
and upheld the defendant's counterclaim without making a finding on
the probabilities of the two differing versions as to
how the
accident occurred.
13. To reiterate,
the plaintiff's version is that as the bus approached the
intersection of Church and Grobler Streets traffic lights
turned
green and he proceeded to enter the intersection and had traversed
three lanes when the bus driver saw the defendant's truck
entering
the intersection along Grobler Street. He swerved to the right in
order to avoid colliding with the truck but failed.
The defendant's
version is that the truck driver had stopped at the intersection as
the traffic light for traffic travelling along
Grobler Street had
turned red. He changed into first gear and when the traffic light
turned green, he started proceeding into the
intersection, when he
saw the bus coming along Church Street and he tried to swerve the
truck but could not and the two vehicles
involved collided.
14. I am of the view
that the court a quo misdirected itself in rejecting Thobakgale's
evidence on the obstruction of trees. Thobakgale's
evidence was a
response to a question whether he could not see the truck when he
entered the intersection. His evidence is that
he could not see
further into Grobler Street as along the street there were trees and
not that the trees were at the intersection
which is what is depicted
in the photos used as exhibits. His further evidence is that when he
entered the intersection, the truck
was not at the intersection. On
probabilities, I am of the view that the plaintiff's evidence as to
how the collision happened
is more probable than that of the
defendant if one takes into account that for the bus to cross the
intersection, it had to traverse
four lane across Grobler Street. The
plaintiff's evidence is that at the time the collision occurred, the
bus was already on the
fourth lane across Grobler Street. This
evidence was not disputed. Sethato's evidence is that he had stopped
at the traffic lights.
It is, therefore, not probable that he could
not have seen the bus entering the intersection, particularly in view
of the fact
that the bus had already traversed three lanes of the
intersection. It is not probable, as testified to by Sethato that he
would
have moved a laden truck from its stationary position, into the
intersection without seeing the bus, which was already inside the
intersection. Even if the truck driver saw the bus, bearing in mind
that he had only started moving into the intersection, he could
easily have applied his brakes to avoid the collision.
15. I am of the view
that the plaintiff proved its case on a balance of probabilities and
that the appeal ought to succeed.
16. Accordingly the
following order is made:
ORDER:
1. The appeal is
upheld with costs.
2. The order of the
court below is set aside and replaced by the following:
'2.1 The plaintiff's
claim is upheld.
2.2 The defendant's
claim is dismissed.'
NP
MNGQIBISA-THUSI
Judge of the High
Court
I agree
N RANCHOD
Judge of the High
Court
Appearances:
For Appellant: Adv
SPM Vorster
Instructed by:
Blakes Maphanga Inc
For Respondent: Adv
WW Geyser
Instructed by:
Dyason Inc