About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2015
>>
[2015] ZAGPPHC 665
|
|
New Century Transport (Pty) Ltd v Member of the Executive Committe - Mpumalanga Provincial Government of Public Works, Roads & Transport (20093/2012) [2015] ZAGPPHC 665 (5 August 2015)
REPUBLIC OF SOUTH
AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION,
PRETORIA)
5/8/15
CASE NO: 20093/2012
In
the matter between:
NEW
CENTURY TRANSPORT (PTY) LTD
PLAINTIFF
and
MEMBER OF THE
EXECUTIVE COMMITTEE -
MPUMALANGA PROVINCIAL
GOVERNMENT OF PUBLIC
WORKS, ROADS & TRANSPORT DEFENDANT
and
EMALAHLENI LOCAL
MUNICIPALITY
THIRD
PARTY
J U D G M E N T
KUBUSHI, J
INTRODUCTION
1. The plaintiff is suing
the defendant for damages to its motor vehicle arising from an
accident in which the plaintiff's motor
vehicle was damaged when it
capsized.
2.
The parties were in agreement that the issue of liability and
quantum
should be separated and the
quantum
postponed
sine die.
I as a result granted an order for the separation of the issues.
The matter before me is only on the merits part of the claim and
the
damages claim is postponed
sine die.
3.
Six books of documents were presented in court, namely, the index -
pleadings; index - expert reports; index - trial bundle;
index -
notices; index - discovery and index- pre-trial minutes. The book of
index - trial bundle was marked as annexure "A"
and
consisted of the documents and correspondence which both parties
intended to rely on during the trial.
4.
The book of index - expert report consists of the report of Mr J P
Verster ("Mr Verster''), a reconstruction specialist
called to
testify on behalf of the plaintiff. Seven photographs form part of
the reconstruction report. Five of the photographs,
that is,
photographs on pages 7, 10 and 11, were taken by Mr Verster at the
place where it is alleged the accident took place.
The two
photographs in page 7 depict the general layout of the road along
which the accident is alleged to have occurred and in
the directions
of Witbank and Blackhill, respectively (Witbank and Blackhill are in
opposite directions). There are two photographs
on page 10: the
photograph at the top of the page shows the length of the excavated
portion of the road and the photograph at the
bottom of the page
shows the depth of the excavated portion of the road from the tarred
surface to the ground level. On page 11
of the report, there is one
photograph depicting a road sign indicating workers ahead.
5. The photographs on
pages 8 and 9 were not taken by Mr Verster but were most probably
taken by the police officer(s) who visited
the accident site after
the accident. The photograph on page 8 depicts the accident scene
towards Witbank with the motor vehicle
still lying where it is said
to have capsized; and the photograph on page 9 shows the damage to
the left side of the motor vehicle
due to the roll over.
6.
As
per
the pre-trial minutes, contained in the index -
pre-trial minutes' bundle, the parties agreed that the documents
included in the
respective bundles are what they purport to be
without thereby admitting the truthfulness of their contents. It was
further agreed
that the discovered documents will, without further
proof, serve as evidence of what they purport to be and that copies
of such
discovered documents may be used at the trial of the action
and will have the same evidentiary value as their originals, subject
to any party's right to challenge the authenticity and validity of
any specific document. It was furthermore agreed that if any
party
wishes to challenge the authenticity or validity of a document, such
party should make all reasonable attempts to provide
the other party
with sufficient notice of its intention to challenge the authenticity
and/or validity of any or all documents individually
identified in
such notification. The parties also agreed that only those documents
referred to in evidence may be relied upon either
by the court in its
consideration of the dispute or the parties in argument.
PLEADINGS
7.
The plaintiff alleges in its particulars of claim that on 21 November
2010 at approximately 02h50 and whilst travelling on the
R544 Black
Hill - Zaaihoek Road, Witbank, the plaintiff's motor vehicle was
damaged when it capsized. The cause of the motor vehicle
capsizing is
stated as being due to the fact that part of the paved road surface
on which the plaintiff s motor vehicle was travelling
was excavated
to a depth of approximately 800 mm; the excavation stretching away
from the paved road surface over some considerable
distance presented
a dangerous situation which previously did not exist.
8.
The defendant is being sued in her or his official capacity as she or
he was at all relevant times in terms of s 9 (1) of the
Mpumalanga
Roads Act 1 of 2008 the person responsible for the construction and
maintenance of Provincial roads and any other work
which is necessary
for maintenance of Provincial roads. As the R544 where the accident
in question is alleged to have happened
is a Provincial road, it is
the plaintiff's case that the defendant authorised and/or caused the
works where the excavations were
performed and as such the defendant
had a legal duty to ensure that adequate precautionary measures were
implemented and adequate
warning signs erected to warn users of the
road about the dangerous situation created by the excavations.
9.
The plaintiff holds the defendant in her or his official capacity
negligent in that she or he failed to ensure that adequate
precautionary measures were implemented and warning signs created or
put out to warn users of the road against dangers created
by the
excavations. The plaintiff avers in its particulars of claim that
there were neither warning signs created or put out to
warn users of
the road about the dangerous excavations nor were there any other
precautionary measures implemented to warn the
users of the road of
the dangerous situation created by the excavations.
10.
The defendant is defending the matter and in her or his plea denies
that she or he was responsible for the excavations and in
the event
that it is found that she or he was responsible for the excavations,
she or he pleaded that the positioning of the excavations
was on the
side of the road and not on the road itself and consequently posed no
danger to motor vehicles keeping on the road.
The defendant avers
further that the accident occurred when the driver of the plaintiff's
motor vehicle was attempting to avoid
the oncoming traffic from the
opposite direction. The defendant also denies negligence and
avers that should
it be found that she or he
was negligent, in that event, the driver of the plaintiff's motor
vehicle contributed
to the said negligence.
11.
The defendant joined the Emalahleni Local Municipality as a third
party to the proceedings. In the third party notice, the defendant
avers that in the event that it is found that the cause of the
plaintiff's motor vehicle capsizing was due to the aforementioned
excavations, then the defendant pleads that the capsizing was caused
by the negligence of the third party in that it failed to
put proper
warning signs for the users of the road. And, in such event, the
third party is obliged to indemnify the defendant in
respect of any
damages which is found the plaintiff may have suffered.
12.
The plaintiff led evidence and called four witnesses to testify on
its behalf. The defendant closed its case without leading
evidence.
THE
PLAINTIFF'S TESTIMONY
Jacobus
Pieter
Verster
13.
A reconstruction expert gave evidence in favour of the plaintiff. He
prepared a report which he handed in court. According to
the
particulars of claim the incident occurred on 21 November 2010 but Mr
Verster visited the scene of the accident on
25
November 2010. He took photographs of the scene of the accident;
these photographs, as already said, are contained in pages 7,
10 and
11 of his report. Mr Verster confirmed that the photographs were
taken post the accident and after the motor vehicle concerned
had
been removed. The road sign depicted in the photograph on page 11 of
his report, was according to Mr Verster, approximately
2km away from
the scene of the accident. This was the only visible road traffic
sign indicating the road works. There were
no other visible
road traffic signs along the side of the road to indicate any danger
and/or excavations ahead. At the excavation
itself, there were no
barriers or danger road traffic signs to indicate danger.
14.
The two photographs on page 10 of his report depicted the excavated
portion of the tarred surface where the incident allegedly
took
place. He did not measure the depth of the excavation. He could not
remember the length of the excavation but estimated it
to be not more
than 1OOm. Photograph 7 shows the excavation along the side of both
roads. Under cross examination he conceded that
as
per
the
conclusion in his report he considered the road to be under the Local
Municipality and not the Provincial Government.
Alfred
Moriri
15.
This witness was the driver of the plaintiff's motor vehicle that
capsized on the road in question. He was travelling on the
road in
Blackhill near Witbank. He was travelling from Nyanga Exxaro Mine
going to Blackhill. He was carrying a load of coal. There
was only
one lane for traffic travelling in one direction. An oncoming truck
travelling more towards the middle of the road blinded
him with its
bright head lights and as he was trying to avoid the oncoming truck
his truck fell into the excavated part of the
road. The truck as well
as the trailer that he was driving left the road because of the
excavation and capsized. The incident happened
in the early hours of
the morning around 3h00. It was dark and there were no lights
illuminating the road where he was travelling.
The road was lit by
the lights of on coming traffic. There were no warning signs to
warn road users about the road works.
There were no road signs in the
immediate vicinity of the excavation as well. He was shown photograph
7 and 10 depicting the scene
of the incident and asked whether he
recognised the scene. He could only recognise the scene as depicted
on photograph 7. When
the truck fell in the ditch he lost
consciousness and only came to after about 10 minutes.
16. Under cross
examination he stated that his shift started at 18h00 the day before
the incident as he would be driving at night.
He travelled that road
frequently, at least four times in a day. He knew the road very well
but he knew that there were excavations
along that road but there was
no work taking place there. Even though he travelled the road during
the day, but at night, he could
not ascertain where the excavations
were on the road. He had been working day and night shifts at the
mine for eight months at
the time of the incident in question. His
further evidence was that he could have missed to see the excavations
because of the
long grass that grows along the side of the road
during November month that changes the topography of the road.
17.
At the time he was blinded by the bright lights of the oncoming truck
his lights were not on bright but the on-coming truck
set its light
on bright when it was about 50m from him. The other truck was driving
at a very high speed and he was travelling
at about 70 to 80 km/h a
speed which he had maintain at all times. He applied breaks slightly.
18.
It was put to him that the story of the other truck driver putting on
bright lights was a fabrication and that there must be
a reason why
he drove the truck into the ditch which reason he was not prepared to
disclose. It was put further to him that there
is no evidence of
another truck.
Petrus
Jacobus Knotze
19.
A civil engineer employed by NKP as a consultant around the time of
the incident. NKP was doing work along that road but finished
on 13
November 2009. He was not aware of any other project in the vicinity
where NKP was working and he did not visit the site
after the project
was completed. His work did not entail excavations
Liziwe
Kama
20.
The witness was employed by the Emalahleni Local Municipality as head
of the Department: Roads and Transport. The Local Municipality
was
doing work at a four ways stop of which they had received approval
from the Provincial Government. They later applied for traffic
circles and were still awaiting approval when they were ordered by
the Provincial Government to stop any further work. The works
done by
the Local Municipality were finalised on 13 November 2009. The
Provincial Government wrote them a letter informing
them they
were taking over the works. The Provincial Government did not
have to grant them a way leave because when approval
is granted the
Local Municipality creates their own way leave. The municipality
created the excavation but the Provincial Government
took over the
responsibility to finish the work.
21.
According to the witness, the Local Municipality had created the
dangerous situation and had placed warning signs on the site.
When
the municipality left the site it left those warning signs there. She
was however not sure where the accident happened but
was adamant that
it could not have been at the site where they had been doing work
before they were stopped by the Provincial Government
because,
according to her, at that site there were enough warning signs. She
was certain that there were warning signs at the site
where the Local
Municipality worked before they were stopped because she had visited
the site and saw the warning signs. The signs
would have been about
100 km from the excavation site.
ANALYSIS
OF EVIDENCE
22.
The defendant's counsel raised various points
in /imine
which ought to be dealt with before the merits of the
case can be determined.
23. The first point
raised by the defendant's counsel is that the evidence presented by
the plaintiff does not accord with the case
pleaded in the
particulars of claim. According to counsel, the purpose of pleadings
is to define the issues so as to enable the
other party to know what
case she or he has to meet. Counsel's further submission is that
while a pleader's first duty is to allege
the facts upon which she or
he relies, her or his second duty is to plead the conclusions of law
she or he claims follow from the
pleaded facts. The parties are
limited to their pleadings, so he argued. In this regard counsel
relied in the judgment in
lmprefed
(Pty) Ltd v
National Transport
Commission
1993 (3) SA 94
(A) at 107C - E;
Erasmus: Superior
Court Practice
Service
35 (2010) at 81 - 130A;
Benson
&
Simpson
v Robinson
1917 WLD 126
at 130
and
Beck:
Theory and Principles
of
Pleading in Civil Actions
p3 at 45.
24.
I am in agreement with this point as raised by the defendant's
counsel although for different grounds as raised by him in his
heads
of argument.
25.
The plaintiff's allegation in its particulars of claim is that the
cause of the motor vehicle capsizing is because the paved
road
surface on which the motor vehicle was travelling was excavated to
the depth of 800 mm. And, that the excavation stretched
away from the
tarred road surface over a considerable distance. However, the oral
evidence presented in court through the evidence
of Mr Moriri, is to
the effect that the cause of the motor vehicle capsizing was as a
result of the driver of the motor vehicle
(Mr Moriri) being blinded
by the bright head lights of an on-coming truck which was travelling
more or less in the middle of the
road. When trying to avoid crashing
with the truck, the motor vehicle fell into a ditch (excavation) and
capsized.
26.
On the other hand, Mr Vester testified that the excavations, as also
depicted in the photographs on page 10, were on both sites
of the
road. This evidence shows that the excavations could not have been on
the paved road surface as alleged in the particulars
of claim.
27. Secondly, it is
alleged in the particulars of claim that the excavations presented a
dangerous situation which was never there
before. But, Ms Kama in her
testimony was adamant that the excavations did not present a
dangerous situation because there were
adequate precautionary
measures taken and road signs put up warning the users of the road
about the excavations. She testified
that the road signs were about
100 m away from the excavations.
28.
Thirdly, in the particulars of claim an allegation is made that there
were neither precautionary measures taken nor road signs
put up to
warn road users about the excavations. Yet the evidence of Mr Verster
is that there was a road sign indicating workers
ahead about 2 km
from the excavations. And, Ms Kama, as already stated in paragraph 22
above, was adamant that there were road
signs about 100 m away from
the excavations warning road users about the excavations. In fact, Ms
Kama's testimony is that there
were adequate precautionary measures
in place and warning signs along the road to warn the road users
about the excavations.
29.
Fourthly, another allegation in the particulars of claim is that the
defendant is sued in terms of s 9 (1) of the Mpumalanga
Road Act 1 of
2008 and it is thus alleged in the particulars of claim that he or
she is as such responsible for the construction
and maintenance of
Provincial roads - R544 is one such road. On that basis it is alleged
that the defendant authorised and/or caused
the works where the
excavations were performed. This is contrary to the evidence of Ms
Kama that even though the Provincial Government
had undertaken to
repair the excavations, the Local Municipality is the one that
performed the excavations and was, therefore,
responsible to set up
the precautionary measures and the warning signs.
30.
The second point
in
limine
raised by the
defendant's counsel is that the plaintiff's matter is premised on s 9
(1) of the Mpumalanga Roads Act 1 of 2008 which
has not been
promulgated. The submission being that the underlying substratum of
the plaintiff's case is absent. The claim
not being premised on
either the common law or some other statutory duty should therefore
be dismissed out of hand. I agree with
the counsel's submission to
the extent that the Act has not been promulgated, however, the
plaintiff raised the issue of negligence
in its particulars of claim
which would have sustained the plaintiff's claim. Unfortunately the
plaintiff failed to prove any negligence
on the part of the
defendant. There is no evidence before me which establishes
negligence on the part of the defendant. In order
to have proved
negligence the plaintiff ought to have established that the defendant
should have foreseen the danger and taken
steps to guard against such
danger. That is, he or she should have foreseen that the excavations
were a danger to the road users
and that a driver might be blinded by
the bright lights of an on-coming motor vehicle and fall into the
excavations.
31.
In the third instance, the defendant's counsel submitted that, on the
evidence presented in court, no court would ever be able
to find that
the plaintiff has proved its case on a balance of probabilities. And,
he is correct.
32.
Firstly, the plaintiff failed to demonstrate the place where the
accident occurred. The only specific place pointed out as a
possible
place where the accident occurred, is the one pointed out by Ms Kama
as to the place where the municipality performed
the excavations.
But, it is not the plaintiff's case that the accident
occurred there. This place, according to Ms
Kama, was well demarcated
and visible. There were warning signs put up about 1OOm form the
excavations and precautionary measures
set up near the excavations
warning road users about the excavations. Ms Kama could, however, not
say it was the same place the
accident took place. Mr Verster's
evidence, to the contrary, is that he visited the alleged scene of
the accident after the motor
vehicle was removed and could not say
for sure that the photographs he took set out the place where the
accident occurred with
certainty. According to Mr Verster where the
accident occurred, that is, at the place where he took the
photographs, in particular
the photographs on page 10, there were no
warning signs or any precautionary measures warning motorists of the
excavations. The
only warning sign he saw was about 2 km from the
scene of the accident. Mr Verster visited the scene after the
motor vehicle
had been removed. From his report, it appears that the
site where the accident occurred was indicated to him by one
Heindrich from
Imperial Tipper Resources, but the said Heinrich was
not called to testify.
33.
Secondly, the testimony of the plaintiff's witnesses is contradictory
and does not sustain the plaintiff's claim. The evidence
of Mr
Verster is that the road sign depicted on page 11 of his report, that
was approximately 2km away from the scene of the accident,
was the
only visible road traffic sign indicating the road works. There were
no other visible road traffic signs along the side
of the road to
indicate any danger and/or excavations ahead. At the excavation
itself, there were no barriers or danger road traffic
signs to
indicate danger. To the contrary, Ms Kama's testimony is that where
they had excavated there were visible warning signs
about 100 m from
the excavations and precautionary measures were put up where the
excavations were created. The warning signs and
precautionary
measures could not be missed, so she testified.
34.
Mr Verster at paragraph 13.1 of his report states the following:
"13.1
The
road
1.
2.
3.
The road is a tarred road surface.
4.
The road is a single carriage way in both directions.
5. The road is a dual
carriage way on both sides. The two directions travel lanes are
separated by an island.
7. The outlay of
the road makes provision for turning lanes at the
intersection.
8. The north and
southbound carriage ways are separated by a large island.
This
explanation of the road by Mr Verster is not depicted in the
photographs taken by him of the scene of the accident, in particular
the photographs on pages 7 and 10 of his reconstruction report.
35.
Mr Moriri's evidence is that he could have missed to see the
excavations because of the long grass that grows along the side
of
the road during the November month that changes the topography of the
road. There is, however, no evidence of any grass which
might have
obscured Mr Moriri's vision of the excavations because from the
photographs taken there are no signs of grass growing
around the
accident scene. If Mr Moriri's evidence, that there was grass where
the accident happened, is accepted as correct, then,
in that event,
the place depicted in the photographs cannot be the scene of the
accident. If the evidence of the photographs is
to be taken as
depicting the scene of the accident, then in that event, Mr Moriri's
evidence should be rejected.
36.
According to Ms Kama the excavations created by the Local
Municipality were at a four ways stop. It does not appear that it
could be the place where the plaintiff's motor vehicle capsized. Mr
Moriri's evidence is that the accident occurred when a truck
coming
at the opposite direction, travelling at a very high speed, blinded
him. It is not probable that if the accident occurred
at a four ways
stop, the truck that blinded Mr Moriri could have been travelling at
the speed at which Mr Moriri alleges it was.
Coming from a stop sign
at the four ways stop, the truck would have just started
accelerating. In any way, there is no evidence
of how far off the
four ways stop was from the place where the accident is said to
have occurred. The converse
is Mr Moriri could also
not have been travelling at the speed at which he say he was
travelling at, which he had maintain
for a considerable time, because
when approaching the four ways stop he would have reduced speed. Mr
Moriri should also have testified
that the accident happened at a
four ways stop, which he did not say. He was specifically cross
examined about the place where
the accident happened and was even
shown photographs which Mr Verster alleged were taken at the place
where the accident occurred.
The photographs to not show a four ways
stop.
37.
Most importantly, it is not clear from the evidence, who was
responsible for the road at the time in question. The plaintiff's
claim is against the defendant in her or his capacity as the MEC of
public works, roads and transport. According to Mr Verster,
even
though he knew that the R544 road was a Provincial road, he
however, concluded in his reconstruction report that 'the
local
authority should have taken the necessary precaution to secure the
safety of road users on the road.'
38.
I am therefore satisfied that the plaintiff has failed to put any
evidence on which a reasonable court could find that the defendant
can be held liable for damages suffered by the plaintiff. In
the circumstances, I have to conclude that the defendant is
entitled
to absolution from the instance.
39.
It is trite that a party who succeeds on absolution is considered to
be the successful party and is as such entitled to costs.
40.
In the premises the defendant is granted absolution from the instance
with costs.
____________________________
E. M.
KUBUSHI
JUDGE
OF
THE
HIGH COURT
APPEARANCES
HEARD
ON
THE
: 04 JUNE 2015
DATE
OF
JUDGMENT
: 05 AUGUST 2015
PLAINTIFF'S
COUNSEL
ADV. W. W. GEYSER
PLAINTIFF'S
ATTORNEY
DAYSON INCORPORATED
DEFENDANT'S
COUNSEL
ADV. T. P. KRUGER
DEFENDANT'S
ATTORNEY
STATE ATTORNEY, PRETORIA