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[2015] ZAGPPHC 75
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Kotze v Road Accident Fund (A831/09) [2015] ZAGPPHC 75 (20 February 2015)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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IN
THE GAUTENG DIVISION, PRETORIA
(REPUBLIC
OF SOUTH AFRICA)
CASE
NO: A831/09
COURT
A QUO
CASE
NUMBER: 12230/2007
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
In the matter
between:
DERICK WILHELM
KOTZE
..................................................................................................
APPELLANT
(Plaintiff a quo)
And
ROAD ACCIDENT
FUND
......................................................................................................
RESPONDENT
(Respondent a
quo)
JUDGMENT
MSIMEKI J:
INTRODUCTION
[1] At 16H30, on 15
January 2008 and at the robot controlled intersection of Barend and
Lombard streets in Klerksdorp, a collision
occurred between the
plaintiff’s motor vehicle, a Passat, with registration number
BFG [...] (the Passat) and the insured
motor vehicle a white Nissan
Micra, bearing registration number FJL [...] (the Nissan). The motor
vehicles, at the time, were driven
by the plaintiff and Ms R Foley,
the insured driver. Having been injured in the collision the
plaintiff instituted an action against
the defendant, the Road
Accident Fund (the RAF) claiming damages that he suffered allegedly
caused by the insured driver’s
negligent driving. On 19 June
2009 Ledwaba J (as he then was) dismissed the plaintiff’s claim
with costs. The plaintiff (now
appellant) has appealed to the full
court of this Division “against the whole of the judgment and
orders.” Leave having
been granted the matter, as a result,
serves before us.
[2] The appeal is
opposed. Advocate N C Maritz (Mr Maritz) represents the appellant
while the respondent is represented by advocate
A Frosch (Ms Frosch).
[3] The grounds of
appeal are that:
1. The Court a quo
erred in finding that the versions of the Appellant and the
eyewitness are mutually destructive.
2. The Court a quo
erred in not finding that the matter can be adjudicated on the
probabilities alone, which probabilities favour
Appellant’s
version.
3. The Court a quo
erred in not finding that the insured driver was contributorily
negligent in causing the collision.
4. The Court a quo
erred in finding that the Appellant’s evidence, that he did not
see the insured driver’s vehicle
before the collision, is
inconsistent with Appellant’s version in exhibits “C”
and “D”.
5. The Court a quo
erred in finding that Appellant suddenly swerved to the middle lane,
when the eyewitness conceded in cross-examination
that there was no
“sudden swerve" but rather a gradual movement to the right
which could have taken anything from one
to three seconds.
6. The Court a quo
erred in finding that the Appellant’s “sudden swerving”
to the middle lane was the sole cause
of the collision.
7. The Court a quo
erred in concluding that the Appellant’s claim should be
dismissed with costs.
[4] The respondent
contends that the appellant has failed to make out a case for the
relief that he seeks.
[5] The respondent
filed its heads of argument late while the appellant did not comply
with the time periods set out in Rule 49
(6) (a) and 49 (7) (a). The
appellant brought an application for an order reviving the
appellant's appeal which had lapsed; condoning
the appellant’s
late prosecution of the appeal and condoning the non compliance with
Rule 49 (6) (a) and 49 (7) (a). The
respondent also, sought an order
condoning the late filing of its heads of argument. Both parties in
their applications made out
good cases for the relief that they
sought and persuaded the court to accede to their requests. The
applications were granted and
the appeal was then argued.
[6] Prinsloo J
ordered that the merits and quantum be separated. The matter before
Ledwaba J, as a result, concerned the merits
only.
THE ISSUE
[7] The issue, in a
nutshell, is whether the collision was caused by the negligence
and/or contributory negligence of the insured
driver and/or the
plaintiff.
COMMON CAUSE
FACTS
[8] These are that:
1. On 15 January
2006, and at 16h30, a collision occurred between the appellant’s
motor vehicle and the motor vehicle driven
by Ms Foley.
2. The appellant was
the driver of the Passat while Ms Foley drove the Nissan.
3. The Passat was
towing a Mercedes Benz motor vehicle (the Mercedes Benz) by means of
a cable. Mr Lee Tshene, behind the wheel,
was controlling the
Mercedes Benz which was being towed by the Passat.
4. The collision
occurred at the intersection of Barend and Lombard streets.
5. Barend street is
a one way street with the left lane compelling motor vehicles to turn
left.
6. Lombard Street is
also a one way street moving from west to East. Motor vehicles, at
the intersection, are forbidden from turning
to the right.
7. The Passat, the
Mercedes Benz and the Nissan were all travelling from North to South
in Barend street.
8. The Nissan, after
colliding with the Passat, rolled and landed on its roof.
9. The insured
driver, only had a Learner’s drivers licence which was still
fresh.
10. The insured
driver, contrary to the Learner’s licence, was driving without
someone who had a valid driver’s licence.
11. The insured
driver did not see the Passat and the Mercedes Benz prior to the
collision.
12. Barend street is
tarred and flat.
13. The weather, at
16H30 on 15 January 2006, was clear and the street was dry
14. Berea motors was
on the left hand side of Barend street but further south from the
intersection.
[9] The plaintiff,
in his particulars of claim, inter alia, alleged that the insured
driver “het versuim om met voldoende
oplettenheid te bestuur.”
This, according to the appellant, is one of the respects he relies on
for alleging that the insured
driver was negligent.
THE LAW
[10]
Potgieter J, in
De
Bruyn, N.O v Minister Van Vervoer
1960 (3) SA 820
(O.PA.) at 823 G-H
said:
“
Maar
soos ek reeds opgemerk het, indien ’n person n behoorlike
uitkyk hou, het hy n blik oor die hele straat voor hom-dus
van kant
tot kant. Dit is nie nodig vir hom om sy kop eers na links te draai
on te sien wat op die linkerkant van die straat aangaan
en dan weer
sy kop na regs te draai om te sien wat aan die regterkant aangaan
nie.”
[11]
Potgieter
JA when dealing with proper look-out in
Neuhaus,
N.O v Bastion Insurance Co. Ltd
1968 (1) SA 398
(A) at 405 H-406A
said:
“
Proper
look-out means more than looking straight ahead - it includes an
awareness of what is happening in one’s immediate
vicinity. He
should have a view of the whole road from side to side and, in the
case of a road passing through a build up area,
of the pavements on
the side of the road as well”
All that this means
is continuous scanning of the road ahead, from side to side for
obstructions or potential obstructions.
A
boy in
Neuhaus N.O
v Bastion Insurance
had
run diagonally across the road without looking or without stopping to
wait for traffic. The court found that the boy was negligent.
The
conclusion was arrived at on the basis that if the boy had stopped to
look left and right for traffic, he would have seen the
vehicles on
the road and would not blindly have run into the truck which ran him
over.
[12] Briefly the
plaintiffs case is as follows:
He, at 16H30 on 15
January 2006 and in Klerksdorp, towed a Mercedes Benz motor vehicle
using his Passat motor vehicle. Lee Tshene
was alone in the Mercedes
Benz seated behind the steering wheel and controlling it. The
emergency (hazard) lights of the two motor
vehicles were on. He
stopped at the intersection of Barend and Lombard streets as the
robot facing him had been red and against
him. To avoid the breaking
of the cable, he slightly moved the Passat forward in order to
tighten the towing cable. This, he did
before the robot turned green.
As he did that he felt an impact on the right side of the Passat. The
Passat and the Mercedes Benz,
were moving from North to South along
Barend street. The Passat collided with the Nissan which he had not
seen before the collision.
[13] The insured
driver’s version is that she, too, was driving along Barend
street from North to South approaching the intersection.
She was
accompanied by her younger brother. She was moving in the middle lane
and did not see the Mercedes Benz and the Passat
before the
collision. She, at the time, was travelling without someone who had a
valid driver’s licence. Her testimony was
that she heard the
younger brother screaming and saying Carla! and their Nissan was then
airborne and ended up landing on its roof
next to Doves.
[14] The appellant
testified and called professor Lemmer as his expert witness. His
expertise was never challenged and so was that
of Mr Barry Grobler
the respondent’s expert witness. The respondent also called Ms
Carla Foley, the insured driver, Jacques
Nagel the independent
witness, inspector Hendrik Jacobus, Petrus Lourens and inspector
Andries Jacobus Van Deventer to testify
on its behalf.
[15]
Professor Gerald Lemmer
testified
on behalf of the plaintiff. He is an expert who, as an expert, has
testified in courts several times. His expertise as
shown above was
not challenged. He and Mr Barry Grobler are accident
deconstructionists. His testimony is that he and Mr Grobler
agree
that the Passat and the Mercedes Benz were not stationary at the time
of the collision. He testified that it was possible
that there was
contact between the Passat and the Nissan. This, because the final
position of the Passat, according to him, shows
that the Passat
rotated through almost 180°. He was unable to explain if the
Nissan overturned on impact or immediately after
the collision. He
held the view that the insured driver would probably have jerked on
her steering wheel causing the Nissan to
move across the road. The
witness found it a little improbable that the Passat could have
turned to the right. It was, according
to him, unlikely that the
Passat could have made a sudden turn. The implication, according to
him, is that the Nissan could have
been overtaking at a substantial
speed while being close to the Passat and the Mercedes Benz. The two
experts never inspected the
motor vehicles. They also had no access
to photographic evidence. He testified that the position of glass was
not a particularly
good indicator of the point of collision as glass
could be all over the show after a collision. When cross examined he
testified
that it was probable that the presence of glass could
denote the point of collision. He reiterated that the motion of the
Nissan
across the road was due to a steering action on the part of
the insured driver.
[16]
Inspector Lourens
drew
the sketch plan on page 32 of the merits bundle which is page 235 of
the court record. (Volume 3 of 4). He went to the scene
of the
accident approximately 10 minutes after the collision. He testified
that the point of collision was approximately 6 meters
from the stop
line before the robots. The sketch plan was not drawn according to
scale. He could not tell the court as to which
vehicle the pieces of
glass found at the scene were from. He also could not tell the court
if the broken glasses found in the middle
lane were not in the other
lanes. He could not explain if the Mercedes Benz had not been pushed
to where he found it. The Passat,
according to him, had been damaged
in front.
[17]
Inspector Van Deventer
spoke
with the eye witness at the scene. The eye witness (Nagel) explained
to him that the Passat had been towing the Mercedes Benz
in the left
lane of Barend street. The motor vehicles travelled from North to
South. The Nissan, according to the eye witness,
had been travelling
in the middle lane. The witness further told Mr Van Deventer that the
Passat turned right in front of the Nissan.
Mr Nagel told Mr Van
Deventer that the Nissan was overtaking the Passat and the Mercedes
Benz when the Nissan collided with the
Passat causing the Nissan to
roll ending up on its roof. Inspector Van Deventer, under cross
examination, testified that Mr Nagel
had explained to him that the
Passat which was towing the Mercedes Benz had turned right in front
of the Nissan. He, in re-examination,
changed his evidence and
testified that Mr Nagel had told him that the Passat had moved to the
right lane and not that the Passat
had turned to the right in front
of the Nissan. This is an obvious contradiction.
[18]
Mr Nagel
confirmed
the occurrence of the accident on 15 January 2006. He and his family
were at point E of the sketch plan when the accident
took place. He
saw a Passat towing a Mercedes Benz. The motor vehicles were moving
in the left lane. The Passat moved to the right
whereupon the driver
of the Mercedes Benz cautioned against that. In doing so the driver
used his hands and even hooted. The Nissan
was in the middle lane.
The Nissan and the Passat collided when the Passat moved over to the
middle lane. The collision, according
to him, occurred before the
intersection or at the intersection. The uncertainty, as he
testified, was as a result of the fact
that he could not remember
everything that took place 4 years back. He did not notice that the
hazard lights were on as his attention
was not thereon. He denied
that the driver of the Mercedes Benz pushed it to where it finally
stopped. Cross examined he testified
that the incident, at the time,
was about 4 years old and that the accident had happened fast. Put to
him that Mr Van Deventer’s
evidence was that the Nissan,
according to him (Nagel), was busy overtaking the Mercedes Benz and
the Passat when the Passat suddenly
moved to the right he answered
that he had no quarrel with that. He conceded that Berea Motors was
on the left side of Barend street
and that while driving along Barend
street one cannot turn right into Lombard street which is also a one
way street. He testified
that the Passat, whether it took it one,
four or five seconds, gradually moved over to the right lane. The
Passat and the Mercedes
Benz were 25-30 meters when he saw them
coming. He only realised that the Passat was towing the Mercedes Benz
when they were almost
at the intersection and not at the distance of
25-30 meters. The hazard lights of the Passat were not on. He was not
sure of the
hazard lights of the Mercedes Benz. The Passat, according
to him, was slower than the Nissan when he first saw them. The damage
to the Passat was severe. According to him the Passat never stopped
at the intersection.
[19]
Mr Barry Grobler
compiled
his report using the warning statement of the plaintiff, the sketch
plan, the statement of inspector Van Deventer and the
photographs. He
testified that it was improbable that the Passat was stationary when
it collided with the Nissan. The witness confirmed
that the debris,
generally, are not a good indicator of the point of impact. He agreed
that the issue was whether the Nissan drove
into the front side of
the Passat or whether the Passat turned right into the path of travel
of the Nissan. He further agreed with
Professor Lemmer who said that
the laws of physics could not solve the problem. He disagreed with
Professor Lemmer who held the
view that the motion of the Nissan was
due to the steering action on the part of the insured driver.
[20]
Ms Carla Foley,
the
insured driver, testified too. Her testimony was that she was at the
intersection of Barend and Lombard streets. She and her
younger
brother were going to watch a film when she heard the younger brother
scream. She then felt the impact and the next moment
she was in the
air and the Nissan then rolled. She did not see where the motor
vehicle she collided with was from. She never saw
a motor vehicle
moving towards her lane. She testified that she was over the stop
line when the collision occurred. She was not
going to the left or
the right but proceeding straight on. She only realised that they had
met with an accident when the younger
brother screamed. She testified
that she remembered nothing further about the accident. Her Nissan
landed on its roof. She did
not see which motor vehicle collided with
theirs. She, at the time, only had a learner’s license which
was still fresh as
it was a month to two old. When cross examined she
testified that she saw nothing when the accident occurred as she, at
the time,
was looking ahead where she was going to. Her testimony was
that the collision took place on the other side of the stop line
beyond
the line. Her evidence is not in accord with Mr Nagel’s
evidence who testified that the collision occurred before or at the
intersection. The point of impact, according to her, was after or
beyond the stop line which, according to her, was a meter after
the
stop line. When asked if the inspectors had been wrong when they
testified that the collision took place before the stop line,
she
emphatically answered that they indeed, were wrong. This is a serious
contradiction. Her Nissan was first airborne, landed
on the tarmac,
rolled and ended up on its roof. She did not see the Mercedes Benz.
She could also not tell if the hazard lights
of the motor vehicles
had been on. She knew nothing about the damage to the Passat. She
conceded that she had not kept a proper
look out and that she was not
an inexperienced driver. She further conceded that a driver has to
drive at a reasonable speed; keep
a reasonable distance between her
and the motor vehicle in front of her and make provision for motor
vehicles on her sides which
may move in a manner which may endanger
her movement. She conceded that she did not act as expected. She
neither hooted nor braked.
Informed that she had not kept a proper
look out she answered that that was 100% so. Her re examination only
got her to testify
that it could be possible that she was behind the
line. This question and the answer remained unhelpful as the line was
not identified.
She testified that she could not drive in town on the
day in question.
[21] The appellant,
to succeed, had to prove that the accident had been caused solely by
the negligence of the insured driver or
that the insured driver was,
to an extent also negligent. This is the onus that the appellant had
to discharge.
[22] If reliance was
placed on contributory negligence, then the appellant, as well as the
respondent, needed to discharge the onus
relating to contributory
negligence. It was conceded on behalf of the appellant that the
respondent had discharged its onus of
establishing contributory
negligence on the part of the appellant.
[23] Mr Nagel is the
independent witness. His evidence is in direct conflict with the
evidence of the insured driver regarding the
point of impact.
According to him this point is before the stop line at the robot. The
insured driver places the point of impact
beyond the stop line.
Inspector Van Deventer in the main gave evidence following what he
had been told by Mr Nagel. The court below
was informed that the
Passat had turned in front of the Nissan. This version changed to say
there was gradual movement of the Passat
towards the middle lane.
Another version is that the collision between the Nissan and the
Passat occurred when the Nissan was overtaking
the Passat and the
Mercedes Benz.
[24] The evidence of
the insured driver was not very much helpful as she testified that
she did not see the Passat and the Mercedes
Benz before the
collision. She made several concessions which demonstrated that she
had not kept a proper look before the collision.
She, in fact, in so
many words conceded that she, 100%, had not kept a proper look out
and that she had not followed the rules
that a Leaner driver ought to
have followed. The insured driver, had she kept a proper look out,
would and could, indeed, have
seen the Mercedes Benz and the Passat
and avoided the collision. Her conduct clearly demonstrates that she,
as well, was to an
extent negligent on the day of the accident. The
degree of her negligence remains to be determined.
[25] Mr Maritz, for
the appellant, submitted that there was no reason for the appellant
to turn or to move to the right lane as
Lombard street is a one way
street from West to East. The appellant, according to the
submissions, was towing the Mercedes Benz
to Berea Motors which was
still ahead and on the left hand side of Barend street. The appellant
was shown the differences between
his affidavits and his testimony
and he responded by saying that his evidence was correct. The
differences, in my view, are not
material. The appellant testified
that he was in the left lane as he towed the Mercedes Benz. This
evidence is confirmed by Mr
Nagel. The appellant, just like the
insured driver, testified that he did not see the Nissan until after
the collision. This, too,
demonstrates that the appellant was also
negligent. What remains to be determined is the extent of his
negligence.
[26] Professor
Lemmer and Mr Grobler, in my view, do not make the case any clearer.
The gist of their testimony is that the Passat
and the Mercedes Benz
were in motion when the collision took place.
[27]
Ms Frosch, for the respondent, referred to the cases of
Sampson
v Pimm
1918 AD 657
and Kok v SKF Laboratories (Pty) Ltd
1962 (3) SA
764
(OK) 776B
to
implore the court to hold against the appellant for failing to call
Lee Tshene. It must be remembered that the respondent too
failed to
call the insured driver’s younger brother. I am not going to
blame any of the parties.
[28] It is not clear
why Mr Nagel would testify about the fact that the driver of the
Mercedes Benz hooted and used gestures to
caution the appellant
against moving to the middle lane when the insured driver says
nothing about it.
[29] The appellant
and the insured driver, in my view, would and could have seen each
other before the collision had they kept a
proper look out. They
could have avoided the collision. The two, in my view, are equally to
blame for the accident. They both were
contributory negligent. The
court below, in my view, erred in finding that the appellant was the
sole cause of the accident. The
appeal to the extent referred to in
this judgment should succeed.
[30] I, in the
result, make the following order:
1. The appeal is
upheld with costs
2. The order of
the court a quo is set aside and replaced with the following order:
2.1. “The
defendant is ordered, to pay 50% of the plaintiff’s proven or
agreed damages
2.2. The
defendant is ordered to pay the costs of the action.”
M.W. MSIMEKI
JUDGE OF THE
GAUTENG DIVISION
PRETORIA
I agree
N.B TUCHTEN
JUDGE OF THE
GAUTENG DIVISION
PRETORIA
I agree
And it is so ordered
W. HUGHES
JUDGE OF THE
GAUTENG DIVISION
PRETORIA
COUNSEL FOR THE
APPELLANT: ADV N C MARIZT
INSTRUCTED BY:
ADAMS & ADAMS ATTORNEYS
COUNSEL FOR THE
RESPONDENT: ADV A FROSCH
INSTRUCTED BY:
MOTHLE JOOMA SABDIA INC.
DATE OF HEARING:
8 OCTOBER 2014
DATE OF JUDGMENT.