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[2007] ZASCA 78
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Road Accident Fund v Grobler (96/06) [2007] ZASCA 78; [2007] SCA 78 (RSA) ; 2007 (6) SA 230 (SCA) (31 May 2007)
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THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Reportable
Case no: 096/06
In the matter between:
ROAD ACCIDENT FUND
...............................
Appellant
and
JASON KING GROBLER
...............................
Respondent
__________________________
___________________________
Coram
:
Farlam JA, Hancke et Musi AJJA
Date of
hearing:
23 March 2007
Date of
delivery:
31 May 2007
Summary
: Collision
between a motor vehicle and motor cyclist ─ to avoid a
collision, the cyclist swerved to his incorrect lane of travel
─
if the motor cyclist committed an error of judgment, the question is
whether a reasonable man in the circumstances could
have done the
same ─ it is wrong to examine meticulously the options taken by
the cyclist in the light of after-acquired knowledge
─ no
contributory negligence proved on the part of the motor cyclist ─
order in para [15].
Neutral citation:
This
judgment may be referred to as
RAF v Grobler
[2007] SCA 78 (RSA).
_____________________________________________________
JUDGMENT
_____________________________________________________
HANCKE AJA
HANCKE AJA
:
[1] I have had the advantage of reading the judgment of
my colleague Musi AJA. I have come to the conclusion that the appeal
must
fail for the reasons which follow.
[2] The facts I consider relevant for the determination
of the appeal are either set out in my colleague’s judgment, or
are
referred to hereinafter.
[3] It is common cause between the parties that
immediately prior to the collision, the insured driver had executed
an overtaking
manoeuvre, overtaking a Isuzu bakkie which was
stationary in his lane and thereby entering his incorrect lane of
travel, being the
lane of travel upon which the respondent was
travelling. The appellant having conceded the negligence of the
insured driver, it bore
the onus to prove contributory negligence on
the part of the respondent. Of importance was the distance between
the two vehicles
at the point when the insured vehicle failed to
return to its correct side of the road, presenting the respondent
with a sudden emergency.
On the evidence, the distance between the
two vehicles at that point was between 50 metres, as estimated by the
eyewitness Basson,
and a maximum of 100 metres, being the
reconstruction of the expert Professor Lemmer.
[4] It is apparent from the evidence that the respondent
must have had an unrestricted view down the road ahead of him of more
than
1,5 kilometres as he crested the rise, and that in this vista he
would have been able to see both the stationary Isuzu in the oncoming
lane, and the insured vehicle. There was however no evidence as to
the distance between the crest and the stationary Isuzu, and,
more
importantly, as to where the insured vehicle would have been at that
point. It is important to note that nowhere in the evidence
was a
distance between the Isuzu and the crest or the dip canvassed.
[5] As already mentioned the distance between the
insured vehicle and the respondent’s motorcycle at the point
where the former
failed to return to his correct lane was, at best
for the appellant, somewhere between 50 metres and a maximum of 100
metres. That
was accordingly the distance between the vehicles when
the respondent could first reasonably have realised that the oncoming
vehicle
was not returning to its correct lane.
[6] In this regard, the Court
a
quo
stated the following:
‘
Only
when the insured driver failed to take the expected action, did the
emergency arise. There is no evidence indicating at what
distance
this motorcyclist should have realised that the insured driver was
acting oddly. Likewise, there is no evidence indicating
how much
earlier than its abortive swerve to the left, the insured driver
could have returned to its correct side of the road.’
[7] The respondent was obliged to take evasive action.
One possibility was to swerve away from the oncoming vehicle to the
left. According
to the evidence the terrain to the left was
hazardous. There was loose gravel, a culvert, trees and a fence.
According to Professor
Lemmer’s evidence, even if the vehicles
were 100 metres apart at that point, going off onto the gravel to the
respondent’s
left would have been ‘quite a dangerous
exercise’. It is also important to note that approximately 80
metres in front
of the respondent, there was a stationary Golf with
five people (including Basson) standing next to it on the gravel to
his left.
On the other side of the road there was the stationary
Isuzu and, further to the right, Basson’s vehicle parked on the
opposite
gravel verge to the Golf. According to Professor Lemmer’s
calculations, on the assumption that the distance between the two
vehicles was 100 metres at that stage, then they probably had two
seconds to impact. If the distance between the two vehicles at
the
time was closer to the 50 metres as estimated by Basson, the time to
impact could have been closer to one second.
1
The evidence of Basson in this regard is not
contradicted and his impression was that it happened ‘in the
wink of an eye’.
[8] A driver of a motor vehicle who is faced with an
oncoming vehicle which has swerved and entered its incorrect lane of
travel,
and an impending collision must, as a general rule, avoid
swerving to its incorrect lane as his primary course of action.
Kleinhans v African Guarantee and Indemnity
Company Ltd
1959 (2) SA 619
(E) at 624F;
President Insurance Company Ltd v Tshabalala
and Another
1981 (1) SA 1016
(A) at 1018F-H
and 1020C;
Burger v Santam
Versekeringsmaatskappy Bpk
1981 (2) SA 703
(A) at 708A. It is important that each case be judged on its own
merits. The cases referred to must be seen in the context of their
own facts. In all the cases mentioned the motorists who veered onto
the incorrect side of the road had more opportunity and/or options
than the respondent had.
[9] It is clear from the evidence that the respondent
was plunged by the insured driver’s negligence into a situation
of sudden
emergency, that he had no more than a second within which
to escape that emergency, and that he effectively was given a choice
between
facing the danger, or veering away from it and hoping that it
would not follow him. He did the latter. In
Rodrigues
v SA Mutual & General Insurance Company Ltd
1981
(2) SA 274
(A) Van Heerden AJA stated the following on 280H-281A:
‘
He
was confronted by a sudden emergency as a result of the unexpected
presence of a kneeling person in the street. He judged that
by
swerving as he did he would be allowing a sufficient berth to avoid
colliding with the appellant. He also had to consider his
own safety
as well as that of the passengers in the back of the van, which could
have been endangered by a violent swerve. In my
view the
circumstances were such that his failure – if indeed it was one
– to swerve more to his left did not amount
to negligence but
at the most to an error of judgment.’
2
[10] If he committed an error of judgment, the question
is whether a reasonable man in the circumstances could have done the
same.
In
Ntsala and Others v Mutual &
Federal Insurance Company Ltd
1996 (2) SA 184
(T) Els J stated the following on 192F-H:
‘
Where a driver of a vehicle
suddenly finds himself in a situation of imminent danger, not of his
own doing, and reacts thereto and
possibly takes the wrong option, it
cannot be said that he is negligent unless it can be shown that no
reasonable man would so have
acted. It must be remembered that with a
sudden confrontation of danger a driver only has a split second or a
second to consider
the pros and cons before he acts and surely cannot
be blamed for exercising the option which resulted in a collision.’
3
[11] The question is whether the respondent acted
reasonably in the circumstances. In
SAR and H
v Symington
1935 AD 37
Wessels CJ stated
(at 45):
‘
Where
men have to make up their minds how to act in a second or in a
fraction of a second, one may think this cause better whilst
another
may prefer that. It is undoubtedly the duty of every person to avoid
an accident, but if he acts reasonably, even if by a
justifiable
error of judgment he does not choose the very best course to avoid
the accident as events afterwards show, then he is
not on that
account to be held liable for
culpa
.’
4
[12] When a person is confronted with a sudden emergency
not of his own doing, it is, in my view, wrong to examine
meticulously the
options taken by him to avoid the accident, in the
light of after-acquired knowledge, and to hold that because he took
the wrong
option, he was negligent.
5
The test is whether the conduct of the respondent fell
short of what a reasonable person would have done in the same
circumstances.
[13] In finding no contributory negligence on the part
of the plaintiff, the Court
a quo
stated the following:
‘
There
is no basis upon which it cannot be found, that until a very late
stage the second plaintiff had no reason to anticipate that
the
insured driver would not return to his lane. After all, the insured
driver was executing the more dangerous manoeuvre of passing
the LDV
on its right, and on the wrong side of the road, and one would have
expected him to be very alert as to when he was to return
to the
correct lane.
It is so, that if the motorcyclist
carried straight on, then the collision would not have occurred. On
the other hand, if the insured
driver did not also swerve to the east
and tried to travel in its correct lane, the motorcyclist would have
avoided the collision
with its right hand swerve.
It is my view, that a sufficient basis
has not been established by the defendant on which the court can find
that the conduct of the
second plaintiff fell short of what a
reasonable motorcyclist would have done.’
[14] I agree and am accordingly of the view that the
Court
a quo
was
correct in finding that no contributory negligence was proved on the
part of the plaintiff.
[15] I would therefore make the following order:
The appeal is dismissed with costs, including the costs
consequent upon the employment of two counsel.
________________
SPB HANCKE
AJA
CONCUR:
FARLAM JA
MUSI AJA
:
[16] This is an appeal from a judgment of the Transvaal
Provincial Division of the High Court delivered on 28 October 2005.
The dispute
arises out of a road accident that occurred on 4
September 1999 on the road between Pretoria/Tshwane and Hammanskraal
(the old Warmbaths
road) some 8 kilometres from Hammanskraal, in
Gauteng. The collision involved a Nissan Skyline motor vehicle driven
by one Mr SR
Matseke (hereinafter referred to as the insured driver)
and a Yamaha motorcycle there and then driven by the respondent. As a
result
of the collision, the respondent was severely injured. The
injuries are described in the following terms in the judgment of the
Court
a quo
:
‘
The second plaintiff sustained
severe injuries as a result of the collision the most traumatic of
which, is the fact that he is completely
paralysed below T8, with
concomitant incontinence complications and that the use of his arms
and his hands, have become impaired.’
[17] The respondent, who was a minor at the time and was
duly assisted by his mother, instituted action against the appellant
as the
body that carries responsibility for compensation of the
victims of road accidents in terms of s 2(1) of the Road
Accident Fund
Act No 56 of 1996 (the Act) claiming compensation for
the damages he sustained as a result of the accident. Hartzenberg J
found that
the collision was due to the sole negligence of the
insured driver and awarded the respondent damages in the total amount
of R3 931
461 with costs, including the costs of two counsel and the
qualifying fees of the experts who testified in the trial. He made a
further
order that the appellant furnish an undertaking in terms of s
17(4)(a) of the Act relating to the respondent’s future medical
treatment. I should mention that the respondent’s mother, who
featured as the first plaintiff in the court
a
quo
, also claimed and was awarded an amount
of R438 031.51 for the expenses that she had personally incurred in
respect of the respondent’s
injuries. This award is not the
subject of this appeal and hence the erstwhile first plaintiff no
longer features.
[18] The appellant now appeals, with leave of the court
a quo
, against the
whole of the judgment and the orders made in respect of the
respondent.
[19] The factual background to this matter is largely
undisputed. By the time that the case was tried, the insured driver
had died
of causes unrelated to the accident and could therefore not
testify. On the other hand, due to the fact that he had become
unconscious
upon impact, the respondent could not remember the events
of the day, save for a hazy recollection of what transpired
immediately
before the collision. The case was decided largely on the
testimony of the sole eye-witness, Mr Ronald Basson, who was called
by
the respondent. In addition, two experts testified on behalf of
the respondent on the merits and the appellant relied solely on the
testimony of an expert. Photographs of the scene of the accident were
also handed in and they give a very clear picture of it.
[20] In summary, the evidence is as follows. The
accident occurred on a clear sunny day at about 12h30 and traffic was
not busy. The
section of the road where the accident happened is made
up of two lanes, one in each opposite direction. It is a tarred road
with
broad gravel shoulders on either side. It is a straight road
that moves in the direction of north to south as one goes towards
Pretoria
and south to north as one travels towards Hammanskraal. Just
before the scene of the accident, as one comes from the south, there
is a rise followed by a gentle curve to the left and then the road
straightens, declining toward a dip and then inclining again.
The
same would be the case with a person travelling in the opposite
direction. He would be declining towards the dip and then going
up
the rise. The accident happened in the area between the dip and the
rise as one travels southward. As the respondent emerged from
the
rise coming from the south he would have had a clear, undisturbed
view ahead of him extending to about 1.5 kilometres to 2 kilometres.
The same would be the case with the insured driver as he approached
the dip from the north.
[21] Basson testified that he had come from Hammanskraal
on his way to Pretoria at about 12h00 and when he got to this spot
where
the accident happened he found an Isuzu bakkie stationary in
his lane. The Isuzu had apparently been involved in an accident
earlier.
He overtook it, pulled off to his left and parked his
vehicle a short distance from the Isuzu. Opposite the stationary
Isuzu on the
gravel on the other side of the road was a red Golf
sedan, next to which stood four men who turned out to be police
officers. He
walked across the road and talked to these men. The
contents of the discussions are not necessary for the purposes of
this judgment,
save that Basson alerted the policemen to the danger
posed by the stationary Isuzu to other road users. At that point he
observed
the Skyline approaching from the direction of Hammanskraal.
The insured driver overtook the stationary bakkie but then did not
immediately
return to his correct lane. Basson says that he then
observed the respondent approaching. The insured driver had still not
returned
to his correct lane. At that point the Skyline and the
motorcycle were 50 metres apart facing each other in the same lane
and an
emergency ensued. In an attempt to avoid the accident, the
respondent swerved to his right but then the insured driver also
swerved
to his correct lane. Both drivers then swerved back to the
western lane and collided with each other in the process.
[22]
According to Basson, this was a
head-on collision. The motorcycle hit the Skyline on its right front
side, on the driver side, and
as he did so the respondent and his
vehicle split. The respondent hit the top of the Skyline twice, flew
over and went to land on
the eastern lane. The photographs of the
scene confirm this insofar so as the location of the damage on the
Skyline and the positions
of the respondent and the motorcycle are
concerned.
[23] I should say in passing that there are aspects of
Basson’s evidence that are inherently illogical and
unconvincing. Take
the evidence that he saw the respondent’s
eyes turning when the motorcycle went on top of the Skyline. How
could this be when
he was 30 metres away and the respondent wore a
head shield that partly obscured his face? Then there is this piece
of evidence,
that having first swerved to the eastern lane, both the
Skyline and the motorcycle swerved back to the western lane and
collided
in the course of that manoeuvre. In that event, one would
have expected the motorcycle to have hit the Skyline either on its
left
front or on the middle front. But strangely they collided head
on with the motorcycle hitting the Skyline right in front of the
driver.
It appears that the proposition that was put to Basson under
cross-examination to explain why the respondent would have landed
where
he did would best explain how the collision occurred. It is to
the effect that the collision occurred at the point where the
respondent
was in the process of veering to his right and the Skyline
simultaneously swerving back to its correct lane. The force of the
impact
would then have carried the respondent in the direction in
which he had been moving. The proposition could not be sustained
though
because its exponent, Professor Lemmer, readily conceded the
counter propositions put to him under cross-examination, as he did
with
numerous other propositions that he had made. Basson’s
impartiality and objectivity in this matter is also suspect and this
begs the question whether he was perhaps not biassed in favour of the
respondent. He would have been a vital witness in any possible
prosecution of the insured driver but never made any attempt to
contact the investigating officer in the matter. Instead he contacted
another policeman in Pretoria who apparently gave him information
about the earlier accident involving the Isuzu bakkie. Under
cross-examination
he would not disclose at whose instance he made the
typed statement that was handed in in the trial. And he was evasive
as to why
did he not contact the police. He seems to have avoided
disclosing to the investigating officer that there were other eye
witnesses
to the accident and this may explain why none were called.
Be that as it may, Basson’s credibility appears not to have
been
challenged in the court
a quo
and the issue was not even raised in this court. There
is therefore no basis on which one can question the acceptance by the
court
a quo
of his
evidence. In any event, in the view that I take of the matter the
discrepancies in his evidence are immaterial.
[24] In the court
a quo
,
as in this court, the appellant correctly conceded that the insured
driver was negligent. The crux of its case is that there was
contributory negligence on the part of the respondent. The issue for
determination therefore is whether there was such contributory
negligence and, if so, the extent thereof.
[25] The thrust of the submissions made on behalf of the
appellant was that the respondent was negligent in swerving to his
incorrect
lane in an attempt to avoid the accident. It was submitted
that there were two clear options that he should have exercised
before
taking the dangerous step of swerving to his right. The one
was that he could have reduced his speed and moved as close as
possible
to the edge of his lane to his left. Counsel for the
appellant pointed out that it is possible for a motorcycle and a
motor vehicle
to go past each other on the same lane. The second
option was to reduce speed considerably and then swerve to his left
out of the
tarred road and onto the gravel shoulder. Regarding the
evidence of the respondent’s expert witnesses that it would be
dangerous
to stray on to the gravel side at the speed of 70
kilometres per hour, counsel for the appellant countered that it
would have been
a lesser risk than swerving into the path of an
oncoming vehicle and thereby risking a head on collision. He argued
that swerving
into the incorrect lane in circumstances such as the
present was inherently dangerous and should have been done as a last
resort.
In support of his submissions counsel cited
inter
alia Burger v Santam Versekeringsmaatskappy
1981
(2) SA 703
(A) at 708A;
President Insurance
Company Ltd v Tshabalala
1981 (1) SA 1016(A)
at 1020C;
Kleinhans v African Guarantee and
Indemnity Company Ltd
1959 (2) SA 619(E)
at
624F.
[26] The gist of the argument advanced on behalf of the
respondent was that the respondent’s conduct should be judged
against
the reality that he found himself in an emergency due to no
fault of his own and that he only had a matter of seconds to respond.
Counsel for the respondent referred to Basson’s evidence to the
effect that the incident happened in a split second or “the
wink of an eye” and submitted that it was unreasonable to
expect the respondent to have first pondered the other options
mentioned
by the appellant’s counsel. He submitted that a
reasonable driver finding himself in a similar situation would have
reacted
similarly. In hindsight it could be said that the respondent
committed an error of judgment but that does not constitute
negligence,
so it was argued. Counsel cited reported cases dealing
with the position of a driver who finds himself in a situation of
emergency
due to the fault of the other driver. See
inter
alia South African Railways and Harbours v Symington
1935
AD 37
at 45;
Sierborger v South African
Railways and Harbours
1961 (1) SA 498
(A);
Rodriques v SA Mutual & General Insurance
Company Limited
1981 (2) SA 274(A)
;
Von
Wielligh v Protea
1985 (4) SA 293
(C);
Diskin
v Lester Braun
1992 (3) SA 978
(T) 981 C-F.
[27] The difficulty I have with the approach and oral
submissions made on behalf of the parties is that they focus
exclusively on
the conduct of the drivers from the moment that the
emergency arose. During the course of the hearing I broached the
subject of what
precautionary measures the respondent took to avoid
the impending emergency. In this regard three of the cases that were
cited in
argument are apposite. The first is
Burger
v Santam Versekeringsmaatskapp, supra
. In
this case a Cortina motor vehicle and a panel van (bakkie) were
involved in a head on collision on the bakkie’s incorrect
lane.
The driver of the Cortina (appellant) was unable to testify because
she was suffering from amnesia. The driver of the bakkie
(Kotze) was
the only eyewitness. Kotze had for some distance seen the appellant
steadily moving towards her incorrect side of the
road but had
assumed that she would go back to her lane. He had observed that if
the appellant continued to veer onto the incorrect
side of the road a
collision would be inevitable and was aware that the appellant was
not seeing him. When the vehicles were about
30–35 metres from
each other, Kotze swerved to his right in order to avoid the accident
but the appellant then also swerved
to the same lane and the vehicles
collided on Kotze’s incorrect lane.
[28] Although Kotze had been put in an emergency due to
the substantial negligence of the appellant it was held that he
nonetheless
had the opportunity to take pre-emptive measures to avoid
the accident but failed to do so. The following passage is
instructive:
‘
Die kernvraag is wat ‘n
redelike bestuurder in die plek van Kotze sou gedoen het. Dit is
nodig om in gedagte te hou dat die
appellante nie skielik oor die pad
geswaai het nie, maar oor ‘n aansienlike afstand na regs beweeg
het. Kotze het derhalwe
voldoende geleentheid gehad om aanvanklike
voorsorgmaatreëls te tref. Na my mening sou ‘n redelike
bestuurder in sy plek
minstens drie stappe gedoen het. Hy sou
naamlik, desnoods deur rem te trap, die spoed van die paneelwa tot ‘n
baie stadige
pas laat daal het; hy sou so ver moontlik na links
gedraai het, en hy sou aanhoudend getoet het.
Die
rede vir die draai na links spreek vir sigself. Hy sou spoed
verminder het omdat dit dan langer sou neem voordat die voertuie
mekaar sou bereik en derhalwe ‘n langer tydperk aan die ander
bestuurder sou bied om tot verhaal to kom, en ook omdat hy dan
moontlik in ‘n posisie sou wees om desnoods oor die skouer te
ry. Hy sou soos voornoemd getoet het omdat hy sou besef het dat
die
ander bestuurder waarskynlik vanweë onagsaamheid oor die pad
beweeg het en by bewuswording van die posisie van sy of haar
voertuig
na links sou draai.’
[29] The other case that was cited is
Fourie
v Road Accident Fund
1999 (3) All SA 661
(O).
The facts of this case are almost similar to those in
Burger
.
The difference is that in
Fourie
the plaintiff had taken precautionary measures to try to
alert the driver of the other motor vehicle to the fact that he was
on the
wrong side of the road. The plaintiff had slowed down
considerably, hooted and flicked his headlights to no avail, and only
moved
to the incorrect lane as a last resort. He was exonerated. The
unreported judgment of
LC le Grange v Guardian
Verskeringsmaatskappy Bpk
No 12711/91
delivered in the Cape Provincial Division on 7 July 1993, which is
annexed to the Respondent’s Heads of Argument,
falls in the
category of
Fourie
and
does not assist the respondent.
[30] In my view, the above cases illustrate one crucial
point. In a situation like the present the proper approach is not to
confine
the inquiry into negligence to the conduct of the drivers
from the moment they became embroiled in an emergency. The inquiry
must
be extended to cover what steps a driver took to avoid the
impending emergency. If he/she had the opportunity to take measures
ahead
of the emergency to avoid the accident, and he/she failed to do
what a reasonable person in similar circumstances would have done,
then she/he would be negligent.
[31] Reverting to the facts of the instant case, in his
Heads of Argument, counsel for the appellant contended that because
the respondent
had a clear view of the whole vista as he descended
from the rise, he should have seen that the insured driver was
approaching on
the incorrect lane and should have taken evasive
action timeously. Counsel submitted that the fact that the respondent
failed to
do so shows that he had not kept a proper lookout.
[32] This is the same subject that I canvassed with
counsel during oral argument. Counsel for the appellant indicated
that the point
of impact is far away from the crest of the rise and
that the respondent would have travelled for a considerable distance
of more
than 150 metres in the straight before the emergency arose
and I did not understand counsel for the respondent to dispute this
estimation
of distances. Surely the respondent should have seen the
stationary Isuzu on the road surface, Basson’s vehicle in front
of
it and the red Golf with the group of people standing next to it.
And then there was the Skyline coming towards him on his lane.
All
this should surely have rung a bell that there was something amiss
and it called for alertness and extreme caution. In such
circumstances
the respondent should at the very least have reduced
his speed considerably so that should the unexpected happen he would
be in a
position to pull safely off onto the gravel to his left.
[33] Basson further testified that both the respondent
and the insured driver had been travelling at about 70 kilometres per
hour
at the point when the respondent swerved to his right. And the
evidence of the two experts who testified on behalf of the respondent
was that at such speed it would be dangerous to veer onto the gravel
shoulder. However, had the respondent kept a proper lookout
and,
given the long clear view and the distance he would have travelled
before the emergency arose, he should have been able to reduce
speed
to at least between 30 and 40 kilometres per hour. On the evidence of
Professor Lemmer he would have been able to brake and/or
pull out at
that speed. Furthermore it can be accepted that if he had hooted,
Basson would have heard it, judging by the fact that
Basson testified
that he could hear the sound of the engine and was able to deduce
that the respondent had decelerated because of
the hammering of the
engine. At any rate, there is nothing on record to show that the
respondent had hooted or done anything else
for that matter to draw
the attention of the insured driver to his approach.
[34] I conclude therefore that there was negligence on
the part of the respondent which causally contributed to the
accident. I think
that the estimation of the degree of such
negligence made by the appellant (30%) is reasonable. Failure to keep
a proper lookout
is a serious infraction which can have catastrophic
consequences as the facts of this case demonstrate. I would therefore
allow the
appeal with appropriate orders as to costs and the
substitution of the orders of the court
a quo
.
__________________________
HM MUSI
ACTING
JUDGE OF APPEAL
1
Allowance
must be made for reaction time. Cf
Pretorius
v African Gate and Fence Works Ltd
1939
AD 567
at 575;
R v Goodall
1969 (3) SA 541
(RAD) at 543A-B. In his evidence
Professor Lemmer allowed for reaction time of about one second.
2
See
also
Von Wielligh v Protea Versekeringsmaatskappy Bpk
1985
(4) SA 293
(C) at 301D-F.
3
See
also
Rabe v Multilaterale
Motorvoertuigongelukkefonds
[1997] 4
All SA 407
(T).
4
See
also
Sierborger v South African Railways and Harbours
1961
(1) SA 498
(A) at 506D-G.
5
Van
den Heever J in
Cooper v Armstrong
1939 OPD 140
at 148.