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[2007] ZASCA 66
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Pietermaritzburg Society for the Prevention of Cruelty to animals v Peerbhai (422/06) [2007] ZASCA 66; [2007] SCA 66 (RSA) (29 May 2007)
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REPUBLIC OF SOUTH AFRICA
THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Not Reportable
Case Number :
422 / 06
In the matter
between
THE PIETERMARITZBURG
SOCIETY FOR THE PREVENTION
OF CRUELTY TO
ANIMALS
...............................
APPELLANT
and
JUNAID PEERBHAI
...............................
RESPONDENT
Coram
:
CAMERON, PONNAN JJA ET SNYDERS AJA
Date
of hearing
: 18 MAY 2007
Date
of delivery
: 29 MAY 2007
SUMMARY
Motor
vehicle collision - two irreconcilable versions - onus of proof -
failure to discharge.
Neutral
citation: This judgment may be referred to as :
Pietermarizburg
SPCA
v
Peerbhai
[2007] SCA 66 (RSA)
___________________________________________________________________
J U D G M E N T
___________________________________________________________________
PONNAN JA
[1] This appeal is a sequel to a motor collision between a Nissan
bakkie and a Toyota car that occurred at approximately 19:30 on
21
July 2001 in the vicinity of Woodhouse and Alice Grange Roads in
Pietermaritzburg. In consequence of the collision the owner of
the
Nissan bakkie, the Pietermariztburg SPCA ('the appellant') sued the
respondent, Mr Junaid Peerbhai, the driver of the Toyota,
in the
Pietermaritzburg Magistrates' Court for payment of R21 330 being
damages allegedly suffered by it.
[2] The claim was dismissed by the trial court with costs, as was an
appeal to the Pietermaritzburg High Court (Baqwa AJ and Hugo
J). The
further appeal to this Court is with the leave of the High Court
(Hugo J and Lopes AJ).
[3] The magistrate in essence concluded that on a conspectus of all
the evidence he was not persuaded one way or the other and, in
the
result, the appellant had not proved that the respondent was
negligent. Moreover, according to the magistrate the appellant would
in any event have failed on quantum as well. The conclusion that I
reach on the first aspect renders it unnecessary for me to consider
the second.
[4] Each driver alleged that the other motor vehicle had veered onto
its incorrect side of the road. Each asserted that he had been
forced
to take avoiding action but was unable by the exercise of reasonable
care and skill to avoid the collision. Mr Alec Stewart
Wylie, an
employee of the appellant who was the driver of the Nissan at the
relevant time, testified that he was returning to the
property of the
appellant in Woodhouse Road, where he then resided, when he observed
the lights of an oncoming motor vehicle. As
he negotiated a bend in
the road he realised, 'at the last second', that the lights of the
oncoming vehicle were on his side of the
road. The vehicle was then
no more than two-and-a-half to three metres away. He braked, hooted
and swerved but was unable to avoid
the collision with the oncoming
motor vehicle, which according to him was straddling the middle line
at the point of impact.
[5] Mr Junaid Peerhbai testified that he was travelling together with
two passengers in his father's Toyota motor vehicle from his
home in
the suburb of Allandale to Durban Road. According to him, whilst
travelling on an incline in Woodhouse Road and just before
Alice
Grange Road veered to his left off Woodhouse Road, he observed an
oncoming vehicle 'beginning to usurp' his lane. To avoid
what he
described as a head-on collision he swerved into Alice Grange Road
but was unable to avoid the collision, which on his version
occurred
in Alice Grange Road.
[6] The two versions were mutually destructive in the sense that the
acceptance of the one necessarily had to lead to the rejection
of the
other.
[7] A third witness, Ms Louise Janse van Vuuren who had apparently
also witnessed the collision in question was called by the plaintiff.
One would have thought that her evidence would have tipped the scales
one way or the other. The trial court concluded that it did
not. In
that conclusion, in my view, the trial court cannot be faulted.
According to Ms Janse van Vuuren, that evening she was awaiting
the
arrival of a friend who was en route to her home to take her to the
cinema. When her friend called to inform her that she had
lost her
way, Ms van Vuuren set off on foot down Alice Grange Road, where she
then lived, in the expectation that she could meet
her friend at the
intersection of Alice Grange and Woodhouse Roads. As she was
approaching that intersection she observed what she
described as a
collision between a white bakkie with a canopy and another motor
vehicle. From her vantage point the white bakkie
was travelling in a
direction roughly away from her and the other vehicle towards her.
She was emphatic that it was the driver of
the other motor vehicle
(not the bakkie) who was in the wrong as his vehicle had veered onto
its incorrect side of the road. In other
respects her evidence was
not only less than certain but difficult to reconcile with what was
either common cause or undisputed between
the drivers. Thus, for
example, according to her, after the collision an argument ensued
between the drivers. Both of them had testified,
however, that they
had exchanged particulars without any rancour or acrimony. Her
evidence as to where the vehicles came to rest
immediately after the
impact was also at odds with the common cause facts. She did not
observe the distinctive SPCA sign on the door
of the bakkie, nor for
that matter did she notice Peerbhai's two passengers.
[8] I accept, as was urged upon us by counsel, that Ms van Vuuren was
an honest and impartial witness. That, however, in and of itself
cannot exonerate her evidence from careful scrutiny. The blemishes in
her evidence to which I have already alluded render her observations
neither reliable nor credible. Whilst the poor lighting and the
distance of her vantage point from the collision explain many of
the
unsatisfactory features in her evidence, they hardly serve to explain
the audible argument between the drivers that she allegedly
overheard. That seemingly inconsequential piece of evidence is
particularly troubling for it is irreconcilable with the evidence
of
both Wylie and Peerhbai and impacts in a direct and substantial way
on her cogency as a witness. Taken together with the other
criticisms
that can be levelled against her, it ultimately impels one to the
conclusion that her evidence does little to assist the
appellant in
the discharge of the onus that confronted it.
[9] For, in a case such as the present, where there were two mutually
destructive versions, the appellant, upon whom the onus rested,
could
succeed only if it satisfied the trial court on a preponderance of
probabilities that its version was true and therefore acceptable,
and
the other version advanced by the respondent was either false or
mistaken and fell to be rejected. That, in my view, the appellant
did
not do. Peerbhai came across as a mild-mannered, easy-going witness,
who obviously made a good impression on the magistrate.
Nothing in
his evidence was inherently improbable and the version advanced by
him was as plausible as that advanced by the appellant.
In the
circumstances the trial court was right to conclude that the onus
resting on the appellant had not been discharged.
[10] One final aspect merits mention. The amount claimed in this
matter was R21 330 — paltry when compared to the legal costs
that have hitherto been incurred in the courts below and will be
incurred in this Court. The case raised no question of principle
and
there were no considerations which called for the attention of this
Court. In order to avoid the clogging of the roll of this
Court with
matters that do not require its attention, it is important that lower
courts give careful consideration to the grant of
leave to appeal to
this Court. The inappropriate granting of such leave results in cases
of greater complexity, which are truly deserving
of the attention of
this Court, having to compete for a place on the court roll with a
case which is not. (
See Monyane and Others v The State
[2006]
SCA 141 (RSA) para 28.)
[11] In the event the appeal is dismissed with costs
_________________
V M PONNAN
JUDGE OF APPEAL
CONCUR:
CAMERON JA
SNYDERS AJA