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[2015] ZAGPPHC 732
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Koch v Minister of Police and Another (218328/2011) [2015] ZAGPPHC 732 (14 August 2015)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
14/8/15
CASE
NUMBER: 21832/2011
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
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 22nd 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 22nd 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 22nd 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
lights. 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 plaintiffs
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 plaintiffs
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 he collision. He was not able
to say the exact speed that the plaintiff's motor 1•ehicle 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
t at the plaintiffs 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 no-.: 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 0 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 0, 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 thi 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
reeded 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.
nitially 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
late r 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 0,
marked with a pink marker. The honourable court
would note that mark 0 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 0 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 plaintiffs 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 wc. s his submission that on the
basis that was set out above, it is clear that the p aintiff
has
failed to prove her case on a balance of probabilities and in the
circ1.: mstances the plaintiff's claim should be dismissed
with
costs. He submitted fu her 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 t·e plaintiff's
negligent driving contributed to the collision. In this
regard, the
aefendants 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 01· 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.
Itherefore 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
Nas
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 th.:it they
are entitled to succeed on their defence.
I think that it is more
probat le 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 bt!at 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
I
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