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South Africa: North Gauteng High Court, Pretoria
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[2015] ZAGPPHC 623
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Koch v Minister of Police and Another (218328/2011) [2015] ZAGPPHC 623 (14 August 2015)
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Certain
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NUMBER:
21832/2011
In
the matter between:
ELIZABETH
DOROTHEA
KOCH
PLAINTIFF
and
THE
MINISTER OF
POLICE
1
st
DEFENDANT
M
F
MONANYANE
2
nd
DEFENDANT
JUDGMENT
MALULEKE
AJ
1.
In
this case the plaintiff instituted a claim against the first and
second defendants for damages in the amount of R 317 823.70
as a
result of a motor vehicle collision. The fact of this case are
set out as follows:
1.1
On
the 22
nd
of June 2010 at or near Jorrisen and Voortrekker Roads, Polokwane a
collision occurred between the plaintiff’s motor vehicle
being
a black Mercedes-Benz CLS350 with registration [......] and a white
SAPS marked Ford Ranger with registration letters and
numbers
[......], which was driven by the second defendant. The
plaintiff alleged that at all material times the latter vehicle
was
been driven by the second defendant who at all material times was
acting in the scope and cause of his duties with the first
defendant
and/or furthering the first defendant’s interest as pleaded in
paragraph 5 of the particulars of claim. According
to the plaintiff
the sole cause of the aforesaid collision was due to the negligent
driving of the second defendant, who was negligent
in one or more or
all of the ways pleaded in paragraph 6 of the particulars of claim.
The defendants deny negligence, in the alternative
the defendants
pleaded contributory negligence on the part of the plaintiff.
2.
The
question that I must decide is whether the second defendant was
negligent and whether his negligent driving is the cause of
the
collision as claimed by the plaintiff.
3.
At
commencement of these proceedings counsel for the Plaintiff and the
Defendants informed this court that there is no dispute regarding
the
quantum of damages claimed in this matter. Therefore the only
issue in dispute are the merits of this case.
4.
It
was common course between the parties that the collision occurred in
the intersection between Jorrisen and Voortrekker Streets
in
Polokwane which is controlled by traffic lights. That the traffic
lights were functioning properly on the day of the collision.
The
weather condition was clear and visibility was very good. That
Jorrisen Street is comprised of four lanes for traffic.
The two
lanes of Jorrisen run from the West to the Eastern direction whereas
the other two lanes run from the East to the western
direction. That
Voortrekker Street is a two way traffic road comprised of two lanes,
one lane runs from the South to North direction
while the other lane
runs from North to South. It is also common cause that on the day of
the collision the Plaintiff was driving
her motor vehicle in
Voortrekker Street from south towards the northerly direction,
whereas the second defendant was driving along
Jorrisen Street from
the West to the Easterly direction. That the sketch plan appearing on
page 51 of the trail bundle 3 is accepted
as a true reflection of the
scene of the collision. The description of the key points of
the sketch plan appear at page 44
of bundle 3.
5.
The
following witnesses were called to testify on behalf of the
Plaintiff, namely Ms Koch, the Plaintiff herself and Mr Nico Botha.
The following witnesses were called to testify on behalf of the
defendant, namely Mr Frans Monanyane (the “second defendant”)
and Lesetja James Chuene.
6.
The
plaintiff testified that on the 22
nd
of June 2010 at approximately 10:22am she was on her way to Game
Stores travelling form her office driving in Voortrekker Street
in a
northerly direction. She said she was travelling at a speed of
55 km/h in an area where the speed limit is 60 km/h and
that the
weather was fine and visibility was 100%. As she approached the
intersection at Voortrekker and Jorrisen Streets the traffic
light
was green for her. She entered the intersection and saw a vehicle
from her left side approaching at high speed and realised
that that
vehicle was not going to stop at the red traffic light. It was
her testimony that the moment when she saw this
vehicle she applied
her brakes but collided with this vehicle causing damage to her
vehicle being the full front. She also
testified that the
impact on the other vehicle was on the back right wheel. She
said she could not see this vehicle approaching
the intersection from
her left in Jorrisen Street due to the high cement wall on the left
corner which obstructed her view.
During cross examination she
confirmed the date on which the collision took place, the direction
in which she was travelling as
testified above, the colour of the
robot being green for her and that Jorrisen Street consist of two
lanes of traffic in each direction.
She testified further that
the robot turned green for her shortly before her arrival at the
intersection. She stated that
she was already in the
intersection just after the box marked with a cross on page 51,
Section 3 of the bundle, when she first
noticed the approaching
vehicle of the first defendant. She also informed the court
that the intersection consist of four
lanes, in other words, it is
four lanes wide, crossing Jorrisen Street. She said when she
saw the other vehicle she immediately
applied brakes and that
physically (the force of the accident, in other words, the impact)
broke her foot which was on the brake
and maintained that she was
travelling at 55 km/h. She informed this court that point E on
page 51, Section 3 of the bundle,
indicates the position of her
vehicle after the impact and that it is almost in the middle of the
two lanes along Jorrisen Street
when travelling in an easterly
direction. She disagreed with the statement that had she
applied the brakes she would have
been able to stop and therefore
avoid the collision. She also testified that she and the driver
of the other vehicle entered
the intersection at the same time, but
that one is talking a about a matter of split seconds. She also
testified that the
photos on page 47 and 48 in Section 3 of the
bundle indicates the damage and the position of the two vehicles
after the collision.
She told this court that she could not
have avoided the accident as she applied her brakes the moment she
saw this other vehicle
that in fact had she not applied brakes, her
vehicle would have passed in front of this vehicle and the driver of
the other vehicle
would have collided with her vehicle. It was
her testimony that she collided with the other vehicle and denies
that the traffic
light was red for her; and that she was negligent in
any way. She did not dispute that she would have required to
pass at
least three lanes prior to the collision with the defendant’s
motor vehicle having regard to the point of impact.
7.
Turning
to the second witness that testified on behalf of the Plaintiff, Mr
Nico Botha (Botha). During evidence in chief,
Mr Botha
testified that he was a witness during the collision on 22
nd
of June 2010 and that he was on his way to an appointment. That he
was driving behind the black Mercedes-Benz (the plaintiff’s
motor vehicle) approaching the intersection of Jorrisen and
Voortrekker Streets. He testified that the light was green for
the black Mercedes-Benz and his vehicle. He then said that a
collision occurred between the black Mercedes-Benz and a vehicle
approaching from the left side in Jorrisen Street. He testified
that it was approximately 20 – 30 metres from the intersection
when he saw the vehicle approaching from the left side for the first
time. During cross examination he confirmed that the weather
conditions were clear and that there was no rain and as such
visibility was very good. He testified that the space between
his motor vehicle and the black Mercedes-Benz was about 80 –
100 meters. He said when he noticed the other motor vehicle
approaching from the left the black Mercedes-Benz was already in the
intersection. During examination in chief he testified
that
both the plaintiff and the second defendant were to blame for the
cause of the collision and testified that in his opinion
the white
bakkie was the guilty one. He informed this court that he did
not see the white bakkie before the collision.
8.
It
was at this point that the Plaintiff closed its case. Counsel for the
Defendants then brought an application in terms of Rule
39 (6) for
absolution from the instance on the basis that the Plaintiff failed
to put a case for the Defendants to answer and prayed
for this court
to save his clients the pain of having to answer in circumstances
where the Plaintiff did not establish a
prima
facie
case. Upon consideration of this application I was satisfied that
there was a
prima
facie
case upon which a court, properly applying its mind reasonably to
such evidence before it, could or might find in favour of the
Plaintiff. The application was accordingly dismissed.
9.
The
Defendants then proceeded with evidence and called Mr Frans
Monanyane, being the driver of the defendants’ motor vehicle,
to testify as the first witness for the defendants. His testimony was
that on the day of the collision he was driving the first
defendant’s
motor vehicle. Monanyane was in the company of his two
colleagues being Chuene and Baloyi who were passengers
seated in the
front and back seats respectively. His testimony was that he
was driving the state vehicle, Ford Ranger, [......]
from west to
east at a speed of between 40 and 50 km/ph while approaching the
intersection. He said as he was approaching
the intersection
the robot was green for him allowing him to pass through the
intersection. He testified that he was travelling
in the far
left hand lane of Jorrisen Street when he was approaching the
intersection. He testified that on approaching the
intersection
there were two stationary vehicles at his left hand side. The
two stationary vehicles were facing the southerly
direction of
Voortrekker Street. His testimony was that these vehicles had
stopped because the traffic lights were red and
they were giving
right of way to the second defendant. He told this court that
when he was already in the intersection, he
noticed a black
Mercedes-Benz emerging from his right hand side on Voortrekker Street
from south to north. He said that this
black Mercedes-Benz was
travelling at high speed and it passed through the red traffic
lihts. According to Monanyane the
collision happened in the
blink of an eye and the only thing he could have done was to move
away from the door and shift a bit
away from the panel of the door as
the collision was inevitable and that is when the other vehicle
collided with the car he was
driving, nearly overturning this Ford
Ranger due to the impact. As testified earlier on Lt. Chuene
and Sergeant Baloyi were
also in the vehicle at the time of the
collision. According to Monanyane he was the first person to
enter the intersection
when he noticed the plaintiff’s motor
vehicle emerging from south to north in Voortrekker Street. He
testified that
he was doing crime prevention patrol with Chuene and
Baloyi on that day; and that they were not traveling at high speed
since there
was no emergency.
10.
Monanyane
told this court that the blue lights of the vehicle he was driving
were not switched on as an illustration that they were
not in a hurry
and not travelling at a high speed. It was his testimony that
according to him, blue lights would normally
be switched on when
there is an emergency that the police had to attend to and in those
circumstances the police motor vehicle
would be travelling at high
speed. He also testified that even when the police motor
vehicle’s blue lights are switch
on, on approaching an
intersection it is required of the driver to observe and only pass
the intersection when it is safe to do
so. He testified that
the traffic lights were green on his side which permitted him to pass
through the intersection and
that there were two stationary vehicles
on his left which gave him right of way. He also testified that
the motor vehicle
he was driving was next to the box marked with
letter “E” on page 51, Section 3 of the trial bundle when
he saw the
black Mercedes-Benz for the first time. According to
Monanyane the collision happened because the driver of the black
Mercedes-Benz
was negligent in that she was driving at an excessive
speed in the circumstances, passed through the intersection when the
traffic
lights were red for her, that she failed to apply her brakes
in order to stop her vehicle from colliding with the defendants
vehicle,
she failed to see that he was about to cross the
intersection and the manner in which she collided with his vehicle,
all pointed
to her negligence. He said the black Mercedes-Benz
approached the intersection by keeping straight at a high speed and
there
was no time to avoid the collision. He testified that the
point of impact of the motor vehicle driven by him was between
driver’s door and the passenger door and at the back of his
vehicle. He denied that he was travelling at a high speed
as
testified by the plaintiff and also denied the fact the two vehicles
entered the intersection at the same time.
11.
During
cross examination Monanyane was referred to a sketch plan on page 51,
Section 3 of the bundle to the box marked with letter
“E”
which according to him indicated the position of his vehicle when he
first saw the plaintiff vehicle approaching
the intersection.
If regard is had to the fact that the box marked with letter “E”
is the position of his vehicle
when he first noticed the approaching
vehicle of the plaintiff it means he was already in the intersection
and almost crossed the
lane, in fact he was about to pass the middle
lane of Voortrekker Street. He agreed that point “C”
on the sketch
plan, page 51 Section 3 of the bundle, is an indication
of the point of impact. It was put to him that considering the point
of
impact, his vehicle already passed the first lane in Voortrekker
Street when the collision occurred according to the sketch plan.
According to him the point of impact should be in the centre lane of
Voortrekker Street, in other words in the middle of the
intersection.
In terms of the sketch plan point “D”
indicates the position of the police vehicle after the impact and
point “E”
the position of the plaintiff’s vehicle
after impact. However, he disagreed with the position of these
two vehicles.
He was then given the sketch plan which indicated
the place of the collision which he marked with the letter X
indicating the position
of the plaintiff’s vehicle when he
first saw this vehicle. Letter Y being a point which indicates
the position of his
vehicle when he first noticed the plaintiff’s
vehicle approaching at letter X. Letter Z as the correct point
of impact
if one has regard to this letters. Letter Y indicates
the position of his vehicle when he first noticed the plaintiff’s
vehicle approaching at letter X, which is the middle lane in
Voortrekker Street, direction south to north. The point of
impact indicated by him, being letter Z is in the middle of the road
between the two lanes of Voortrekker Street. Based on
this
evidence, it was put to him that his vehicle therefore travelled half
a lane from the point when he first noticed the approaching
vehicle
of the plaintiff to the point of impact. The plaintiff’s
vehicle consequently travelled the distance between
letter X and the
start of the intersection as well as across three lanes in Jorrisen
Street prior to impact. When he was
asked why he did not
include or make any reference to the two stationary vehicles in
Voortrekker Street in his statement to the
investigating officer at
the police station, he testified that he did not find it necessary to
do so. However he informed
this court that he mentioned in
consultation with his advocate that there were two stationary
vehicles, the fact that his evidence
would be that he entered the
intersection before the plaintiff and that according to his
testimony, she was travelling at a high
speed.
12.
The
second witness of the defendants was Mr Chuene, who testified that he
was a passenger in the defendants’ vehicle, sitting
on the left
side in the front. According to his evidence, the defendants
vehicle was at point E, page 51 Section 3 of the
bundle, when he
noticed the approaching black Mercedes-Benz. Chuene testified
that the black Mecedes-Benz was travelling
at high speed and that the
traffic light was green for them, when they entered the
intersection. That the traffic light was
red for the black
Mercedes-Benz. He also testified that visibility was good, the
sun was shining and there were no clouds
on the day of the
collision. He testified that the first defendant’s motor
vehicle entered the intersection prior to
the plaintiff’s fast
moving vehicle. He testified that after the defendant’s
motor vehicle entered the intersection,
the black Mercedes-Benz
emerged from the right, travelling from south to north along
Voortrekker Street. It was his evidence
that the plaintiff’s
motor vehicle was travelling at a high speed and passed through the
red traffic light thereby colliding
with the defendant’s motor
vehicle. Chuene confirmed that on the day in question they were
doing crime prevention patrol
in the Polokwane area and that the
defendant’s motor vehicle was not travelling at high speed when
approaching the intersection
as they were not in a hurry for
anything. According to Chuene, on arrival at the intersection
there were two stationary vehicles
on their left on Voortrekker
Street. The two vehicles had stopped because the traffic lights
were red at the side of Voortrekker
Street. He testified that
the driver of the black Mercedes-Benz was negligent and caused the
collision. He was not
able to say the exact speed that the
plaintiff’s motor vehicle was travelling at, but testified that
the second defendant
was traveling at a speed of 40 km/h.
According to him had the second defendant known that the plaintiff’s
motor vehicle
was not going stop at the intersection when the traffic
lights were red the second defendant would properly have accelerated
to
move away. It was his testimony that the second defendant
did not anticipate that the black Mercedes-Benz was not going to
stop
and that this black Mercedes-Benz collided with the first defendant’s
motor vehicle. According to Chuene the plaintiff
is responsible
for the collision because she was supposed to stop and she travelled
at a high speed. He denied that the second
defendant passed through a
red robot and thereby causing the collision through his negligence.
13.
During
cross examination Mr Chuene testified that travelling at a high
speed, or speeding, is travelling faster than the speed limit
of 60
km/h. He was also referred to the sketch plan to indicate where
the plaintiff’s vehicle was when he saw it for
the first time
and with a pink marker he marked letter O on page 51, Section 3 of
the bundle as the point where the plaintiff’s
vehicle was when
he saw it for the first time. It was his testimony that he did
not mention the two stationary vehicles on
the left side of
Voortrekker Street during consultation with the advocate because he
was afraid to contradict himself because he
wrote many things and
that the other cars were not part of the collision. It was his
testimony that the two stationary vehicles
on the left side in
Voortrekker Street is evidence that the light was green when they
entered the intersection and that these vehicles
allowed them to
pass. He said his evidence that the second defendant could have
avoided the accident had he known that the
plaintiff would not stop
by accelerating, was based on the distance between point C, being the
point of impact on page 51 Section
3 of the bundle and point O, being
the point of the plaintiff’s motor vehicle when he saw it for
the first time.
14.
During
arguments Counsel for the defendant’s submitted that the
plaintiff gave contradictory versions which are mutually exclusive
regarding the sequence of events leading up to the collision which
are improbable and she thus rendered herself to be an unreliable
witness. He submitted that the first version by the plaintiff
was that she noticed the defendant’s motor vehicle being
driven
at high speed when she entered the intersection and that she was the
first person to enter the intersection while the second
defendant was
approaching the intersection at high speed. Having seen the
defendant’s motor vehicle driven at high
speed and which was
not going to stop at the red traffic light, she applied brakes, but
could not stop and collided with the defendant’s
motor
vehicle. If the plaintiff was travelling at a speed of 55 km/h,
Counsel submitted that her version is improbable that
she could not
stop when she noticed the defendant’s motor vehicle if one has
regard to the wideness of the intersection.
It was submitted
that Jorrisen Street is comprised of four lanes which would have
meant that for the plaintiff to have collided
with the defendant’s
motor vehicle, she would have had to pass three lanes of Jorrisen
Street before she reaches the fourth
lane wherein the defendant’s
motor vehicle was travelling. He said that the plaintiff was
driving a Mercedes-Benz CLS
350 which is a factor that this
Honourable Court must take into account on the probabilities of the
plaintiff’s version given
the above. It was counsel’s
submission therefore that the version is clearly improbable and that
the court should reject
the plaintiff’s version as not
credible. Counsel for the defendants proceeded to state that
under cross examination
the plaintiff introduced a second version
namely that she arrived at the intersection simultaneously, with a
difference of split
seconds with the second defendant. He said
it is so bizarre that the plaintiff could have collided with the
defendant’s
motor vehicle when she was driving at a speed of 55
km/h and the second defendant was driving at high speed when they
reached the
intersection simultaneously. He submitted that if
indeed the second defendant was travelling at high speed and the
plaintiff
was travelling at 55 km/ph when they reached the
intersection at the same time, it follows that the second defendant
would have
long passed the intersection before the plaintiff could
even pass the first two lanes of the four lanes of Jorrisen Street.
According to counsel the second defendant had a shorter distance to
cover in order to pass the intersection in view of the fact
that he
was travelling from west to east along Jorrisen Street and he only
had two lanes of Voortrekker Street to pass. It
was his
submission further that if the plaintiff and the second defendant
reached the intersection simultaneously while the second
defendant
was driving at a high speed it would have taken longer time to reach
the fourth lane of Jorrisen Street. The first
and second
versions of the plaintiff are mutually exclusive.
15.
Counsel
also pointed out that the plaintiff conceded that she is the one who
collided with the defendant’s motor vehicle during
her
evidence. He submitted that the plaintiff’s evidence was full
of contradictions, mutually distractive versions and unreliable
and
that the probabilities of the plaintiff’s version are zero.
Therefore this court is urged to reject the plaintiff’s
versions of events in their entirety as she was not a reliable and
credible witness and gave contra-dictionary versions of events.
Counsel concluded by saying that the plaintiff has not succeeded in
proving negligence on the part of the second defendant.
16.
With
regard to Botha’s testimony, Counsel for the defendants
submitted that Botha was called to testify on behalf of the plaintiff
and that he was referred, throughout the proceedings, as an
independent witness to the collision. He argued that it has
emerged during cross examination that Botha did not in fact witness
the collision taking place and that to the extent that evidence
was
sought to be elevated because he was referred to as an independent
witness, counsel found it necessary to refer this court
to the
judgement of Colman J in the matter between
Gomes
vs Visser, 1971(1) SA 276 (T)
at page 278 where it was held was follows:
“
In
weighing up conflicting evidence at a trial it is, of course, proper
for the presiding officer to have regard to the fact that
some of the
witnesses may have a motive to misrepresent the facts whereas others
appear to have no such motive.
It does not
follow from that, however, that the litigant who calls an independent
witness to support his version should necessary
succeed against an
opponent who has no such witness available to him. Even an
apparently impartial and independent
witness can be mistaken or
untruthful, while the testimony of an admittedly interested witness
can be impressive and convincing.”
It was
argued for the defendants that Botha’s evidence was full of
contradictions, inconsistent and that his version should
be rejected.
It was his submission therefore that Botha was not of any assistance
to this court in that his evidence is irrelevant
and should
accordingly be rejected and that on consideration of the evidence
given on behalf of the Plaintiff there is no case
made against the
defendant for the relief sought.
17.
In
argument Counsel for the plaintiff submitted that Botha is an
independent witness who confirmed that he did not know the plaintiff
prior to the collision and that his evidence in essence corroborated
the evidence of the plaintiff and importantly that the traffic
light
was green for her when she entered the intersection and contented
that there is no motive as to why Mr Botha will come to
court on his
own time to testify on a version that is not true when he has no
interest in the matter. Botha’s evidence
was also
straight forward, forthcoming and at no time did he contradict
himself or even the evidence of the plaintiff.
18.
As
regards, the evidence of Mr Frans Monanyane, the second defendant in
this matter, it was submitted that his evidence should be
disregarded
by this court for the following reasons. When he was faced with
certain points where he needed to make certain concessions,
he became
evasive and vague in his answers, one had to repeat not only the
questions, but also the previously given answers.
He would give
evidence on a certain point just to go back on his evidence once he
realised that same will not favour his version
of events. The
following examples were pointed out to the court:
a.
Initially
in his evidence in chief as well as in cross examination he would
testify that his vehicle was next to the box marked
with letter E on
page 51, Section 3 of the bundle. However in cross examination
he later on moved this point to the mark
letter Y.
b.
He
initially in cross examination agreed to the point of the impact
marked with letter C as per page 51, Section 3 of the bundle.
However later on in cross examination he moved the point of impact to
the middle of the road, in other words Voortrekker Street
marked with
letter Z.
c.
He
initially agreed that his vehicle travelled half a lane (point Y –
point Z) from the time he saw the plaintiff until impact.
However, later on in cross examination he did not want to commit to
this answer and kept on referring to the fact that he is not
good
with distances. When pressured on the fact that he was not
asked to give a specific distance and merely to confirm,
his previous
evidence on this point, he reluctantly agreed on.
d.
He
refused to concede to the fact that if his vehicle had travelled half
a lane from letter Y to letter Z and plaintiff’s
vehicle
travelled three full lanes plus the portion from mark X to the start
of the intersection to mark Z, his version is improbable
that a
collision would have occurred as the plaintiff would have already
passed his vehicle by the time she reached the point of
impact.
Counsel for the plaintiff submitted further that it should also be
considered that the evidence of the second defendant
and the evidence
of Mr Chuene as to the point of impact differs furthermore and
importantly according to Mr Chuene the defendant’s
vehicle was
at the box marked E when he first noticed the plaintiff whom was at
that stage at mark O, marked with a pink marker.
The honourable
court would note that mark O and mark X are at the exact same point.
However the point of the defendant’s
vehicle seems to differ.
One can but just speculate as to the exact point agreed on of the
plaintiff’s vehicle that
different points are pointed out by
the two witnesses of the defendant’s vehicle at the same time.
Counsel further
argued that it is also important to mention the fact
that certain aspects of his evidence was never put to the plaintiff,
nor the
independent witness and thereby same could never be tested
before court. It therefore follows that the honourable court
cannot
give any weight to any of the evidence being the following:
(i)
That
there were two vehicles stationary on the left side in Voortrekker
Street waiting for them to enter and cross the intersection
because
the light was green for him;
(ii)
That
the plaintiff was travelling at a high speed;
(iii)
That
the second defendant entered the intersection prior to the
plaintiff. Mr Monanyane could never explain why the aforesaid
was never put to the plaintiff, nor the independent witness, nor can
he really explain same was not included in his statement to
the
investigating officer two days after the collision.
19.
It
was contended by Counsel for the plaintiff that on the evidence of Mr
Chuene one can again argue that this witness was not credible,
neither reliable on his version of how the collision occurred.
Again, when this witness was pressured on certain aspects
he would
become vague, evasive and would just not give a straight answer, she
argued. Of importance she submitted, is the
contradiction of
the evidence of Mr Chuene and the evidence of Mr Monanyane as to the
point of impact and the position of the defendant’s
motor
vehicle when the plaintiff was allegedly at points X and O as
reflected on page 51 of section 3 by Mr Monanyane and
Mr Chuene
themselves. Counsel argued that it is furthermore important
that although Mr Chuene allegedly indicated to the
defendants’
counsel that the plaintiff was travelling at a high speed (speed
according to this witness), the speed travelled
by the plaintiff on
her evidence of 55 km/h was never placed in dispute by the
defendants.
20.
Counsel
for the Plaintiff argued that it seems on the evidence that the
Honourable court is faced with two irreconcilable versions.
It
is however respectfully contended that after having considered the
evidence of the witnesses with specific reference to their
credibility, reliability and probabilities, the honourable court
should find in favour of the plaintiff for the following reasons:
20.1
There
is no basis for arguing that the plaintiff should be regarded as an
incredible and unreliable witness based on her evidence;
20.2
As
already pointed above there is nothing improbable in the evidence of
the plaintiff;
20.3
Mr
Botha, an independent witness with nothing to gain by testifying
before court is without a doubt a credible and reliable witness
and
in fact assisted the court through his testimony;
20.4
Mr
Monanyane is clearly not credible, nor reliable, considering the fact
that a criminal record will affect him personally and in
his career,
also important aspects of his evidence was never put to the
plaintiff, nor the independent witness and the fact that
he was
evasive and vague in answering certain questions. Furthermore,
counsel argued his evidence of the distance between his vehicle
when
he saw the plaintiff for the first time is improbable considering the
fact that from that point to the point of impact his
vehicle
travelled half a lane whereas he expects the honourable court to
believe that in that same time the plaintiff’s vehicle
travelled three lanes plus the distance between X and the start of
the intersection. In other words, the plaintiff travelled
more
than 6 times the distance his vehicle travelled. In this regard
the court should have regard to the fact that according
to him, he
was travelling between 40 and 50 km/h whereas according to the
plaintiff she was travelling at 55 km/h, which is undisputed.
Considering the two distances between Y and Z, and Y and X, the
aforesaid clearly does not make sense and is improbable.
21.
Counsel
further submitted that Mr Chuene’s evidence should also be
guarded against and it is respectfully submitted that this
witness
was not credible, definitely not reliable and as discussed above, the
evidence of the distance between the point of the
defendant’s
vehicle and the point of the plaintiff’s vehicle when he first
noticed her, is improbable as the defendant’s
vehicle would
have passed the point of impact by the time the plaintiff reached
this point. It was therefore submitted that
the plaintiff
proved her case on a balance of probabilities and that the Honourable
court should find that the traffic light was
green for the plaintiff
when she entered the intersection and thereby the second defendant
was negligent and his negligent driving
caused the collision.
Counsel contended further that there is no evidence to indicate that
the plaintiff was contributory
negligent. She concluded that in light
of the aforesaid the plaintiff seeks judgement against the defendants
in the amount of R
317 823.70, together with interest and cost.
Counsel for the defendant’s argued in closing that the
witnesses on behalf
of the defendants presented the most credible and
reliable events on the probabilities of how the collision occurred.
He
argued that the witnesses corroborated each other on material
aspects relating to the collision whereas evidence on behalf of the
plaintiff was full of contradictions and mutually distractive
versions. He argued that this honourable court is therefore
urged to accept the defendants’ version as the most reliable
and credible on the probabilities of how the collision occurred
and
that the plaintiff’s version of events should accordingly be
rejected. It was his submission that on the basis
that was set
out above, it is clear that the plaintiff has failed to prove her
case on a balance of probabilities and in the circumstances
the
plaintiff’s claim should be dismissed with costs. He
submitted further that in event that the court were to find
that the
second defendant was negligent, which is denied, the defendants’
pleaded in the alternative that the plaintiff’s
negligent
driving contributed to the collision. In this regard, the
defendants stand by their evidence as set out above.
The court
is requested to assess and apportion negligence 80% against the
plaintiff and 20% against the defendants. It is
accordingly
within the court’s discretion to grant an order of costs and
accordingly the court is requested to grant an appropriate
order
related to the costs, argued counsel for the defendants.
22.
It
is trite law that a party seeking relief in a civil suit has a duty
or an onus so to speak to satisfy the court on a balance
of
probabilities that he/she is entitled to succeed on his/her claim.
The Plaintiff in this case bears the onus to prove, on a
balance of
probabilities that the first Defendant’s driver was negligent
and that it was his negligence that caused the collision
which caused
the Plaintiff damages (See
Ntsala
& Others V Mutual & Federal Insurance Co. Ltd
1996 (2) SA 184
(T) at 190E-F)
.
This court must therefore decide whether on all of the evidence,
probabilities and inferences before it, the plaintiff has discharged
the onus of proof on the pleadings on a preponderance of probability.
It is a well-established principle that the court does not
adopt a
piecemeal approach of first drawing the inference of negligence from
the occurrence itself and then regarding this as a
prima
facie
case
and then deciding whether it has been rebutted by the Defendants’
explanation.
23.
The
Plaintiff was in my view a credible witness who remained calm and
steadfast in providing her version of events which preceded
the
collision in question. She answered questions spontaneously and
displayed a good demeanour in answering all questions put to
her and
she did so without much hesitation. Her testimony that she was
driving at 55km/h was never placed into dispute. Mr Botha
corroborated her version that the traffic light was green for her
when she entered the intersection where the collision occurred.
The
fact that she conceded to the fact that she collided with the
Defendants’ motor vehicle is a factual issue which in my
view
does not on its own point to any
culpa
on
her part. I therefore find her version reliable.
24.
Although
Mr Botha in cross examination conceded that he did not see the motor
vehicle of the Second Defendant prior to the collision,
I found him
to be a good and credible witness. His testimony which was not placed
into dispute was that the traffic light was green
for the Plaintiff
and himself. This evidence is important. I cannot reject his entire
testimony merely because he did not see the
motor vehicle of the
Defendants’ prior to the collision as this does not detract
from what he saw namely, that the traffic
light was green for the
Plaintiff and himself. This is a fact which the Defendants never
disputed. I am also not convinced
that he came here to give
testimony that will support the Plaintiff’s case as was
suggested by the Defendants’ Counsel.
His statement that he
thinks both the plaintiff and the Second Defendant caused the
collision testify to his independence and lack
of any personal motive
to mislead this court in favour of the Plaintiff.
25.
The
Second Defendant (“Monanyane”) was also in my view calm
and steadfast in his version. However he did not impress
me in his
testimony as being entirely honest and candid in his version that was
corroborated by Mr Chuene that the robot was green
for him and red
for the Plaintiff. My difficulty with this evidence is the reference
to the stationery vehicles facing South in
Jorrisen street. This
witness and Chuene referred me to these stationery vehicles in an
attempt to convince me that these vehicles
were a further support of
their version that the robot was green for them and that the Second
Defendant’s vehicle had a right
of way. It should be noted that
both these witnesses are senior members of SAPS with many years of
service and experience. They
both conceded to the importance of these
two stationery vehicles in supporting their version in court that the
traffic light was
green for them, yet they did not put this in their
respective statements to the Police when reporting the incident.
Neither was
this put to the Plaintiff’s witnesses by their
Counsel. Suffice it to say that Monanyane could not explain this
glaring and
important omission. If I must attach any weight to this
evidence it should have been put in the statements to the Police and
at
the very least it should have been put to the Plaintiff’s
witnesses during evidence so that it can be tested. In this
regard I reject as an excuse, the testimony of Chuene that because
they do not work in the office they do not know how to take
down a
statement. Monanyane testified that if he was to be found guilty of
negligent and reckless driving he will have a criminal
record and
also have a negative record which may impede prospects of future
growth and employment within the SAPS. Surely a person
with so much
to lose will make sure he put all the evidence and information in
support of his case before Court especially in a
collision like this
where a state vehicle is involved. His evidence and that of his
witness Chuene differ significantly regarding
material aspects of the
same collision they are testifying about. This relates to the point
of impact of the 2 vehicles. Having
regard to where the Plaintiff’s
vehicle was when he first saw it to the point of impact it is
improbable at the speed of
40 to 50 km/h that the collision would
have occurred where he suggest it did. I did not find Monanyane
to be a credible and
reliable witness and therefore do not believe
him.
26.
Mr
Chuene on the other hand was not very forthcoming with straight
forward answers. I have already pointed out that he contradicted
Monanyane with regard to the point of impact, a very material aspect.
This witness was indeed vague and somewhat evasive too. This
is
besides the fact that he said he did not want to contradict himself
because they wrote many things during evidence when he was
sked about
his omission of the reference to the 2 stationery vehicles referred
to above. This raised serious alarm bells as regards
his reliability
and credibility as a witness because his fear of contradiction means
he wanted to tailor a version which supported
his testimony. I
therefore reject his testimony.
27.
Counsel
for the Defendants referred me to the decision of Colman J in
the
Gomes
v Visser
supra at Page 279:
“…
..That
being so it is, in my view, proper for a Court to take a judicial
notice of the facts that when the traffic lights facing
in one
direction at a right angled intersection are green for those facing
at the right angles of them should be, and probably
are red.
That of course,
is no irrebuttable presumption. Any mechanical or electrical device
can be faulty at times. But if there is no evidence
of malfunction
the Court trying a civil case should, in my view, take into account
as a probability that if the lights facing in
one direction were
green at a particular point of time, those at right angles to it ere
red
”
.
28.
Ultimately
the decision of this Court will turn on whether the traffic light was
green for the Plaintiff or the Second Defendant
at the time
immediately preceding the collision based on the versions of evidence
tendered by each of the witnesses. I am faced
with two irreconcilable
versions by the litigants. The Plaintiff may have been inconsistent
or contradicted herself on one aspect
of her testimony which pertains
to her assertion that she and the Second Defendant arrived at the
intersection at the same time
with only the difference of split
seconds. Apart from that she was a very good witness. Her testimony
that she was travelling at
55km/h speed is undisputed. Her version
that the traffic light was green for her when she was approaching the
intersection was
corroborated by Mr Botha. On the other hand
Monanyane and Chuene assert that the traffic light was green for them
and red for the
Plaintiff. In support of this they refer to two
stationery vehicles on their left hand side in Voortrekker Street. I
have already
pointed out the difficulty that I have with this
evidence. Even if I were to consider for a moment that their version
that the
traffic light was green for them has some truth to it I
cannot sustain that argument because they also differ materially with
regards
to the point of impact of the collision notwithstanding that
the sketch plan on page 51 section 3 of the bundle was accepted as
a
true reflection of the accident scene. Based on their different
versions regarding the point of impact and where they place the
Plaintiff’s motor vehicle when they saw it for the first time
it is very improbable that the traffic light was green for
them. I do
not even want to attach any value to the story about the blue lights
and their significance given the aforesaid. I have
also given views
of my impression of them as witnesses. I reject their version that
the plaintiff was negligent as they advanced
no evidence to support
this. When I take all the versions in terms of inferences,
probabilities and improbabilities of the same
I am of the view that
the defendants failed dismally to convince me that they are entitled
to succeed on their defence. I think
that it is more probable that
the traffic light was green for the second defendant when he was a
distance away from the intersection,
it turned orange and he wanted
to beat the caution by driving faster to pass through the
intersection before the traffic light
turned green for the other side
and that is when the collision happened. It is therefore my view that
the version they put before
this Court is simply not true let alone
probable.
29.
On
the other hand I am satisfied that the Plaintiff proved its case on a
balance of probabilities and that its claim ought to succeed.
I am
convinced on the totality of the evidence before me that the Second
Defendant crossed a red traffic light which was green
for the
Plaintiff.
30.
Accordingly
I am of the view that the Second Defendant was negligent and that the
collision happened as a result of his negligence.
31.
In
the circumstances, I make the following order:
31.1
The first defendant and second defendant jointly and severally, the
one paying the other to be absolved,
shall pay to the plaintiff the
sum of
R317
823.70 (Three Hundred and Seventeen Thousand Rand Eight Hundred and
Twenty Three Rand, Seventy Cents)
.
31.2
The first defendant and second defendant jointly and severally, the
one paying the other to
be absolved, is liable for the
interest on the aforesaid amount
at a rate of 9% pa
a
tempora morae
from 20 October 2010 until date
of payment.
31.3
The amounts in paragraph one and two above shall be paid to
plaintiff’s attorney of record, Erasmus
Scheepers Attorneys,
into the following trust account:
Erasmus
Scheepers Attorneys, Absa Hatfield, Account Number: , Branch Code:
335545 / 632005.
31.4
The defendants, jointly and severally, the one paying the other to be
absolved, shall pay the plaintiffs
costs on a party and party scale
which costs shall include the costs occasioned by the employment of
counsel.
________________________________
MALULEKE
JUDGE
OF THE HIGH COURT
GAUTENG
DIVISION, PRETORIA
Date
of hearing
:
3 August
to 5 August 2015
Representation for
the Plaintiff:
Counsel
:
M Van
Antwerpen
Instructed by
:
Erasmus
Scheepers Attorneys
Representation for
the Defendant:
Counsel
:
T B
Hutamo
Instructed by
:
The
State Attorney