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[2015] ZAFSHC 24
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Drakensberg Logistics (Pty) Ltd v Prestprops 1251 CC and Another (A249/2013) [2015] ZAFSHC 24 (5 February 2015)
IN
THE HIGH COURT, BLOEMFONTEIN
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal
No.: A249/2013
In
the appeal between:
DRAKENSBERG
LOGISTICS (PTY) LTD
…................................................................
Appellant
and
PRESTPROPS
1251 CC
….........................................................................................
1
st
Respondent
ALL
PAY FREE STATE (PTY) LTD
…...................................................................
2
nd
Respondent
CORAM:
RAMPAI, AJP
et
NAIDOO, J
et
MOENG, AJ
JUDGEMENT:
RAMPAI, AJP
HEARD
ON:
27 OCTOBER 2014
DELIVERED
ON:
5 February 2015
[1]
These were appeal proceedings. The appellant unsuccessfully
sued the second respondent but was successfully sued by the
first
respondent. The appellant was aggrieved by those outcomes of a trial
in which two actions had been consolidated. The appellant
came before
us with the leave to appeal granted by the Supreme Court of Appeal.
The appeal was against the whole of the judgment
by Kubushi AJ as she
then was.
[2]
A collision happened between two motor vehicles at Bethlehem in the
Free State Province on 18 December 2008. The scene of the
collision
was at the intersection of Commissioner Street and Kerk Street. The
one motor vehicle, a truck was owned by the appellant
and the other
again was owned by the second respondent. The truck and the van were
driven by Mr Kubheka and Mr Lepele at the time
of the collision. As a
result of the physical impact the truck veered off the road, moved
across the middle line over the pavement
and ultimately crashed into
a nearby building owned by the first respondent.
[3]
For ease of reference the parties involved will be referred to as
follows:
3.1
Drakensberg Logistics (Pty) Ltd (Drakensberg);
3.2
All Pay Free State (Pty) Ltd (All Pay);
3.3
Prestprops 1251 CC (Prestprops).
[4]
The following were undisputed facts:
4.1
The citation of each of the parties was common cause;
4.2 Drakensberg was
the owner of the Mercedes Benz truck with registration identity
number NKR 33935 – the truck;
4.3 The driver of
Drakensberg truck namely Mr Alfred Kubheka drove the Drakensberg
truck within the course and scope of his employment
with Drakensberg;
4.4 There was one
cabin passenger in the truck, a gentleman by the name of Mr Patrick
Mazibuko. He was called as a witness number
two for Drakensberg;
4.5 All Pay was the
owner of the Ford Bantam van with registration identity number CWK
782 FS - the van;
4.6 The driver of
All Pay’s van, Mr Pule Lepele drove the Bantam van within the
course and scope of his employment with All
Pay;
4.7
There was one cabin passenger in the van, Ms Mantolo Mohale. During
the vehicular collision she sustained severe bodily injuries.
[5]
The hearing in the court a quo commenced on 25 October 2011 before
Kubushi AJ. Mr H J Benade appeared for Prestprops, Mr A P
Den Hartog
for Drakensberg and Mr F J Becker SC for All Pay. By agreement
between the parties the court
a quo
granted an order whereby the issues were separated. The issues
pertaining to the quantum were reserved. The issues pertaining to
merits were adjudicated first.
[6]
What remains to be adjudicated by the court
a
quo
in the consolidated proceedings
were therefore the following:
6.1
Whether Prestprops was the owner of the business conducted at the
building into which the truck collided.
6.2
Whether Prestprops was the owner and/or bore the risk of loss in the
equipment and stock that was allegedly damaged.
6.3 Whether there
was any negligence on the part of the driver of Drakensberg or All
Pay or both.
6.4
If the court should find that both drivers were negligent the degree
of such individual negligence between the driver of Drakensberg
vis-à-vis the driver of All Pay and what extent the negligence
of each of the drivers, if any, contributed to the damages
suffered
by Prestprops.
[7]
The collision subsequently gave rise to three delictual claims in two
separate but consolidated action proceedings.
Firstly,
Drakensberg sued All Pay in the South Gauteng High Court. Those
action proceedings were initiated under case number 20500/2009.
In
its particulars of claim Drakensberg averred that the collision was
brought about by the exclusive negligence of the driver
of the van
owned by All Pay.
Secondly,
and in return All Pay filed a counter-claim in the same South Gauteng
High Court against Drakensberg under same case number.
In the
particulars of its claim All Pay alleged that the cause of the
collision was occasioned by the sole negligent driving of
the driver
of Drakensberg’s truck.
Thirdly,
Prestprops instituted a civil action against Drakensberg in the Free
State High Court under case number 787/2010. In its
particulars of
claim Prestprops alleged that the cause of the damage to its property
was the negligence of the driver of Drakensberg’s
truck.
[8]
Pursuant to Prestprops’ action against Drakensberg,
Drakensberg by virtue of a third party notice issued out of the Free
State High Court, joined All Pay as the second defendant. Obviously
Drakensberg became the first defendant. After the joinder,
All Pay
did not file new pleas as the second defendant. In the Free State
High Court Drakensberg joined All Pay as a third party
claiming an
indemnity alternatively a contribution in the event it is being
finding liable in favour of Prestprops. By agreement
between the
parties All Pay’s plea as against the claim by Prestprops was
deemed to have been filed pursuant to Drakensberg’s
third party
notice. The court
a quo
formally made an order to that effect.
[9]
The version of the appellant, in other words Drakensberg was narrated
by two witnesses, namely:
Mr
Alfred Kubheka, the truck driver and Mr Patrick Mazibuko, the truck
passenger.
The
version of the second respondent, All Pay was narrated by two
witnesses, namely:
Mr
Pule Lepele, the van driver and Ms Mantolo Mohale, the van passenger.
The
version of the first respondent, Prestprops was narrated by one
witness, namely:
Mr
Manuel Agostino Gonzales Baeta.
The
hearing ended on 25 October 2011. Judgment was then reserved.
[10]
The judgment by Kubushi AJ was handed down on 6 February 2012. The
following order was made:
“
[120]
In the premises I make the following order:
120.1
Absolution from the instance against Drakensberg Logistics (Pty) Ltd
in respect of the main claim against All Pay Free State
(Pty) Ltd.
120.2
Absolution from the instance against All Pay Free State (Pty) Ltd in
respect of the counterclaim against Drakensberg Logistics
(Pty) Ltd.
120.3
Costs in respect of the claim and counterclaim to be costs in the
cause.
120.4
Judgment is granted with costs in favour of Prestprops 1251 CC /
Three Rivers Multimarket CC against Drakensberg Logistics
(Pty) Ltd.”
[11]
It was against that judgment and that order Drakensberg lodged its
appeal. Its application for leave to appeal was filed. It
was heard
by Van Zyl J on 28 March 2013. Leave to appeal was denied.
[12]
The appellant was again aggrieved by the order of Van Zyl J. It
applied to the SCA on 30 April 2013. The application for leave
to
appeal was considered by Ponnan JA
et
Meyer AJA. The relevant portions of the
Supreme Court order dated 18 October 2013 may be rephrased as
follows:
“
14.1
The applicant, in other words Drakensberg, is granted leave to appeal
to the full bench of the Free State High Court;
14.2 The costs order
pertinent to Drakensberg’s unsuccessful application for leave
to appeal in the court
a quo
is set aside;
14.3
The costs of Drakensberg’s application for leave to appeal both
in the court
a quo
as well as in the SCA shall follow the ultimate outcome of the appeal
to the Free State High Court.”
[13]
The appellant, Drakensberg, filed its notice of appeal on 30 October
2013. The grounds of appeal were that the court
a quo
erred in
no less than 13 respects. The grounds of appeal relied upon were set
out as follows in the notice of appeal.
1. Her Ladyship
erred in finding that Lepele was a credible witness and that his
version could not be rejected.
2. Her Ladyship
erred in not finding that Lepele’s version of the collision was
an impossible one and should therefore be
rejected.
3. Her Ladyship
erred in not finding that the sole cause of the collision was the
negligent driving of Lepele in not stopping at
a red robot.
4. Her Ladyship
erred in finding absolution in the instance against the Plaintiff
vis-à-vis the Second Defendant.
5. Her Ladyship
erred in finding that the Appellant’s driver acted negligently
in the situation of “sudden emergency”.
6. Her Ladyship
erred in finding that Kubheka’s conduct in the circumstances
was not that of a reasonable man.
7. Her Ladyship
erred in not finding that there was no way that Kubheka could have
avoided the collision and that the Appellant
attracts no liability.
8. Her Ladyship
erred in not finding that the cause of the “sudden emergency”
was the negligent driving of Lepele and
that, that was the direct
cause of the damages suffered by Prestprops.
9. Her Ladyship
erred in finding that Kubheka’s loss of control of his senses
and acted in a state of automatism constitutes
negligent conduct.
10. Her Ladyship
erred in not finding that the total loss of control of the truck in
the circumstances was reasonable and due to
circumstances beyond
Kubheka’s control.
11. Her Ladyship
erred in finding that Kubheka would not have collided with the
building/business had he applied the brakes. The
logical conclusion
is that a truck travelling at the speed as set out by Kubheka could
not have stopped within 2 to 3 metres.
12. Her Ladyship
erred in not taking into account the full effect of the right front
tyre that burst in the collision.
13.
Her Ladyship erred in making an inconclusive finding as to the
location of the damages of the Bantam bakkie.
[14]
On the one hand Mr Hartog, counsel for the appellant, contended that
the court
a quo
misdirected itself as alleged. Counsel submitted that Drakensberg had
made out a case against All Pay; that All Pay was erroneously
absolved from the instance and that its sound defence of sudden
emergency to Prestprops’ claim was erroneously dismissed.
Accordingly counsel urged us to interfere by upholding the appeal,
setting aside the order by the court a quo and replacing such
order
with the following order:
“
11.1
The claim of Prestprops 1251 CC against Drakensberg Logistics (Pty)
Ltd is dismissed with costs;
11.2
The counterclaim of All Pay Free State (Pty) Ltd against Drakensberg
Logistics (Pty) Ltd is dismissed with costs;
11.3
Judgment is granted with costs in favour of Drakensberg Logistics
(Pty) Ltd as claimed in case number 787/2010.”
[15]
On the other hand Mr Benade, counsel for the first respondent
differed. He argued that on his own version, Mr Kubheka, the
truck
driver was clearly negligent; and that his negligence was the cause
of Prestprops’ damages. Counsel submitted that
the court a quo
had not erred in finding that the appellant was liable for the first
respondent’s loss. He submitted that
the court a quo could not
be faulted in any way. Accordingly counsel urged us to dismiss the
appeal with costs.
[16]
Like Mr Benade, Mr Becker, counsel for the second respondent,
supported the judgment of the court
a
quo
. He too opposed the appeal and
urged us to dismiss it with costs. As regards the first action he
contended that the court
a quo
correctly granted absolution from the instance in respect of both the
competing claims of Drakensberg and All Pay,
vis-à-vis
each other. As regards the second action he contended firstly, that
there was no conceivable basis upon which All Pay could be
held
liable for Prestprops’ damages, and secondly that Drakensberg
can only escape liability for Prestprops’ damages
if we, on
appeal, can find in favour of Drakensberg on its defence of sudden
emergency.
Counsel
submitted that, in all the circumstances Drakensberg was correctly
held liable for Prestprops’ damages and that Prestprops’
claim against All Pay should have been dismissed with costs. In the
light of all these submissions, counsel urged us to dismiss
Drakensberg’s appeal with costs.
[17]
It appeared practically convenient to consider the two actions
separately. I propose to deal first with the merits of the first
action, in other words, the case which originated from the South
Gauteng High Court in 2009. That dispute concerned Drakensberg
and
All Pay only. I shall determine the issue of negligence there in the
first place.
Once
I have identified the driver whose negligence was the primary cause
of the collision and in what manner or to what extent his
or their
respective degree of negligence, if any, contributed to damages
allegedly suffered by Prestprops. The second exercise
would entail
consideration of the merits of the second case, in other words the
action proceedings which originated from the Free
State High Court in
2010. It will be recalled that in those proceedings the first
respondent, Prestprops was the plaintiff, the
appellant Drakensberg
the first defendant and the second respondent All Pay the second
defendant.
[18]
I deem it unnecessary to discuss the evidence of each of the five
witnesses in detail. However, I shall thematically highlight
important aspects of the evidence by each individual witness along
the way. Before I do that, I consider it appropriate to restate
some
of the applicable legal principles.
[19]
The principles relative to general approach on factual findings on
appeal have been laid down in a number of decisions. It
appeared to
me advisable to refer to a few of the guiding principles.
It
has been held that, notwithstanding the practical advantages from
which an appellate court suffers as compared to a court of
first
instance, it is the duty of an appellate court to overrule a
conclusion of a court of first instance on a question of fact
when it
is convinced that the conclusion to which the court of first instance
has come is clearly wrong.
Mineworkers
Union v Brodrick
1948 (4) SA 959
(A) on 970.
[20]
It has repeatedly been laid down that, in general an appellate court
is reluctant to disturb factual findings made by the court
of first
instance in view of the advantages enjoyed by the trial court in
seeing and hearing the witnesses and in being steeped
in the
atmosphere of the trial.
[23]
As regards appellate approach to factual findings by the court of
first instance important principles applicable to questions
of fact
on appeal were laid down authoritatively in
R
v Dhlumayo and Another
1948 (2) SA
677
(A) on 705 to 706. That decision has repeatedly been relied upon
by various courts and upheld with approval by the SCA itself. Among
others, the following principles may be recited here.
1.
An appellant is entitled as of right to a rehearing, but with the
limitations imposed by these principles; this right is a matter
of
law and must not be made illusory.
2.
The trial judge has advantages – which the appellate court
cannot have – in seeing and hearing the witnesses and
in being
steeped in the atmosphere of the trial.
3.
The appellate court is reluctant to upset the findings of the trial
court as regards findings of fact.
6.
Even in drawing inferences the trial court may be in a better
position than the appellate court in the sense that that court
may be
more able to estimate what is probable or improbable in relation to
the particular people or witnesses whom it has observed
during the
course of the trial.
7.
That sometimes, however, the appellate court may be in as good a
position as the trial court itself to draw inferences whether
they
are either drawn from admitted facts or from the facts as found by
the trial court itself.
8.
That where there has been a misdirection of fact by the trial court
the presumption is that the conclusion of the trial court
is correct.
The appellate court will only reverse it where it is convinced that
it is wrong.
10.
That there may be a misdirection on fact by the trial court where the
reasons are either on their face unsatisfactory or where
the record
shows them to be such; there may be such a misdirection also where,
though the reasons as far as they go are satisfactory,
the trial
court is shown to have overlooked other facts or probabilities.
11.
That in such circumstances the appellate court is then at large to
disregard the findings of the trial court on fact, even though
based
on credibility, in whole or in part according to the nature of the
misdirection and the circumstances of the particular case,
and so
come to its own conclusion on the matter.
12.
That an appellate court should not seek anxiously to discover reasons
adverse to the conclusions of the trial court, because
no judgment
can ever be perfect and all-embracing, and it does not necessarily
follow that, because something has not been mentioned,
therefore it
has not been considered.
13.
That the appellate court is constrained to decide the case purely on
the record, the question of onus becomes all- important,
whether in a
civil or criminal case.
14.
That subject to the difference as to onus, the same general
principles regarding an appellate court apply both in civil and
criminal cases.
[24]
It seemed apparent to me that the court
a quo
predicated its
factual and credibility findings in the South Gauteng High Court
matter on the following:
24.1
The respective versions of Drakensberg and All Pay were mutually
exclusive in that both drivers averred that they entered a
robot
controlled intersection having right of way. Each of the drivers was
certain that he entered the intersection when the traffic
lights were
green in his favour;
24.2
None of the drivers was, according to their respective evidence,
driving at an excessive speed;
24.3
None of the drivers could take any precautionary measures to avoid
the collision;
24.4
No independent witnesses testified in respect of the alleged
negligence of either of the drivers;
24.5
None of the versions of the drivers could be rejected as untruthful
or false;
24.6
There was no objective evidence in favour of the version of the one
driver at the expense of the other;
24.7
There were no probabilities to corroborate or to repudiate the
version of any of the drivers;
24.8
Drakensberg bore the onus of proving its main claim and all pay its
counterclaim.
[25]
I now proceed to examine the versions of the truck driver. The
evidence of Mr Kubheka was that he was travelling from the direction
of Fouriesburg toward Bethlehem. He entered the town of Bethlehem via
Commissioner Street. He approached Kerk Street, which he
intended
crossing. At the intersection formed by those two streets, traffic
was regulated by means of traffic lights. It was the
first such set
of traffic lights he came across since he entered the town. The
traffic lights were initially red against him as
he approached the
intersection. His view from the intersection down Kerk Street to his
right was obscured. The physical impediment
was created by buildings.
Situated right in the south-eastern corner of the intersection was
KFC building. As a result of such
obstruction, he could not ascertain
the traffic situation of the motor vehicles travelling up in Kerk
Street towards Commissioner
Street.
[26]
Despite his impeded vision, he did not reduce speed. He was more or
less in the middle of Trent Tyre business premises, adjacent
to KFC,
when the traffic lights turned green in favour of the truck. The
truck entered the intersection at the estimated speed
of 45 km per
hour. The critical evidence of Mr Kubheka was that he never saw the
van driven by Mr Lepele at all before the collision.
If
his range of vision was so dangerously obscured by the building, so
much the reason why he should have entered the intersection
with
caution. He could have done so in two ways at least. Firstly, by
reducing speed as he was nearing the obviously hazardous
intersection. Secondly, he should have paid particular attention to
the situation of the traffic approaching the truck from the
right in
Kerk Street seeing that Kerk Street was a one way street. A cautious
driver would have concentrated on the traffic approaching
him from
the right, since there would have been none approaching him from the
left.
[27]
Even if Mr Kubheka’s vision was as severely restricted as he
claimed, on his own say-so, he clearly kept no proper look-out
whatsoever at the crucial moment. He blindly entered the
intersection. That was the only probable explanation for his failure
to see the van of All Pay at all prior to the collision. The
admission was telling. It strongly militated against his assertion
that the driver of the van belonging to All Pay was the sole cause of
the collision. Since he did not see the van at all, he took
no
evasive action whatsoever. By the exercise of reasonable care he
could and should have avoided the collision.
[28]
The evidence of the driver of Drakensberg’s truck, Mr Kubheka,
was unsatisfactory in many material respects. His conduct
immediately
prior to the collision fell hopelessly short of that of a reasonably
careful driver. He was driving a heavy truck at
night. He was
approaching the first and main intersection in Commissioner Street.
The traffic lights were red against him seconds
before the disaster.
His vision was drastically curtailed. Notwithstanding all those
unfavourable factors, there was virtually
no positive signals on his
part which demonstrated that he appreciated or sensed that crossing
Kerk Street might be a hazardous
attempt. His venturing into the
intersection in that careless manner constituted negligence in my
view.
[29]
According to all the witnesses, the intersection was well lit, with
little or no traffic and there would have been no obvious
reason for
him not to have seen the bakkie from his elevated position when he
entered the intersection. When Mr Kubheka entered
that intersection
he would have had an unrestricted line of sight up and down (in other
words, left or right), in Kerk Street.
However, as I have already
indicated, there was no need for him to even bother about the traffic
situation to his left, because
Kerk Street was a one-way traffic
street. The material damage to the vehicle was captured
photographically. See exhibits ‘a’
and ‘b’.
It is apparent from that photographic evidence that the primary
impact was with the left front portion of
the van. These two factors
appeared to militate against Mr Kubheka’s evidence. The
location of the physical damage to the
truck and the physical damage
to the van, as can be seen from those exhibits tended to support the
version of Mr Lepele to the
effect that he entered the intersection
before Mr Kubheka, because the traffic lights were green in his
favour.
[30]
There are two further aspects of Mr Kubheka’s evidence which
required to be explored.
Firstly,
he attempted to ascribe blame for the collision to the alleged high
speed at which Mr Lepele was driving the van. It must
be bore in mind
that he did not see the van approaching the truck. Therefore, he made
that inference solely on the alleged loudness
of the impact. Clearly
his allegation was not based on personal observation of the speed of
the van at the time it was approaching
the truck prior to the
collision. His evidence was, therefore, suspect because he did not
actually see the van at all. When confronted
during cross-examination
with the fact that he would not be able to distinguish the speed of a
van travelling at a speed of 50,
60 or 70 km per hour in terms of the
loudness of the collision, he offered no answer at all.
Secondly,
Mr Kubheka maintained that the van of All Pay travelled in the middle
lane in Kerk Street. The evidence of Mr Lepele,
the driver of the
bakkie, was that he had used the outer lane in Kerk Street. Again the
question arose if Mr Kubheka did not see
the van, driven by Mr Lepele
or even the collision as he had testified, how could he have known
that the van was travelling on
the middle lane before the impact.
This too makes his evidence highly suspect. It is significant to note
that, according to the
police sketch plan, the van driven by Mr
Lepele was travelling on the outer lane. Mr Kubheka’s version
that the van was travelling
in the middle lane was recorded nowhere
in the police sketch plan.
[31]
Mr Kubheka admitted that he was present when the police drew up the
sketch plan. It is extremely unlikely that his version,
which
materially differed from that of Mr Lepele, would not have been
recorded by the police, had he informed them that Mr Lepele
was
travelling on the middle lane and not on the outer lane. By his
silence, he implicitly corroborated the version of Mr Lepele.
The
police stood nothing to gain in not recording the version of Mr
Kubheka. It is unlikely that Mr Kubheka had ever indicated,
to the
police on the scene, that Mr Lepele’s van was travelling on the
middle lane. Had he done so, the police would probably
have recorded
his version on the police sketch plan as well, just as they had
recorded Mr Lepele’s version.
[32]
It was Mr Kubheka’s evidence that, shortly before the
collision, the truck he was driving was travelling at a speed of
between 40 and 45 km per hour. During intense cross-examination he
conceded that if he had indeed travelled at to that speed, he
would
have been able to stop the truck between 2 to 3 metres if he had
applied the brakes. On his own version, therefore, he would
have
slammed the brakes, he would have been able to stop the vehicle and
he would have been able to avoid the collision irrespective
of which
of the two vehicles (the truck or the van) had the right of way had
he kept a proper lookout. It is clear, therefore,
that even if
Mr Kubheka’s evidence is accepted that he had the right of way
at the intersection because the traffic lights
were green in his
favour, it is abundantly clear that he could have taken an invasive
action to avoid the collision, created by
Mr Lepele’s
negligence as he claimed, by disobeying the red traffic lights
against him and entered the intersection at a
time when it was
dangerous to do so. In my view, all these unsatisfactory
aspects of Mr Kubheka’s evidence weakened
the contention that
he was careful and that Mr Lepele was careless. On his own evidence,
it is not difficult to come to a contrary
conclusion.
[33]
Here I pause to make an observation. It is an important one.
The
aforesaid evidence of Mr Kubheka was representative of Drakensberg’s
modified version. The essential feature of his version
as amended was
the assertion that the truck and the van were approaching each other
at 90 degree angle. By so doing, the evidence
of Mr Kubheka, in fact,
ammounted to a re-alignment of the version of Drakensberg. In
essence, such evidence was an admission that
the van driven by Mr
Lepele was travelling in a different street (Kerk Street) and not the
same street (Commissioner Street) as
Drakensberg had earlier pleaded.
It has to be mentioned and stressed that shortly before the
amendment, which was made on the first
day of the hearing, the
original version of Drakensberg had been that prior to the collision
the van was also travelling in Commissioner
Street, the same street
in which the truck was travelling prior to the collision.
[34]
Prior to the amendment, the case of Drakensburg was completely
different. It was premised on the averment that the van approached
the truck from the opposite direction in Commissioner Street.
The premise of Drakensburg’s case drastically changed
on the
first day of the trial. At the trial it was commonly accepted that
the van travelled in Kerk Street, and never in Commissioner
Street,
at all material times prior to the collision.
[35]
The obvious question is how such statement and sketch plan could
exist at all if the information was not forthcoming from Khubeka,
as
well as the inferences which are to be drawn from the existence of
such an initial statement and sketch plan. There is
only one of
two possibilities, namely that:-
35.1 Khubeka
initially lied in making such a statement and providing the
information for such a sketch plan to be drawn; or
35.2
Khubeka paid no attention to the presence of other road users or
vehicles when entering the intersection, to such an extent
that he
initially thought that the All Pay bakkie had approached the
intersection from the opposite direction while travelling
in
Commissioner Street.
[36]
It was important to bear in mind that the case of Drakensberg as
pleaded in the SGH case was completely different from its
case as
amended and pleaded in the Free State High Court. As the very
first allegation of negligence Drakensberg asserted
that the van of
All Pay, while it was approaching the truck of Drakensberg at an
angle of 180°, turned right across the path
of travel of the
truck of Drakensberg at a time when it was dangerous and inopportune
to execute such a manoeuvre. It has
to be noted that such an
original version of Drakensberg precisely corresponded with the
initial statement and rough sketch plan
of the collision submitted in
support of Drakensberg’s insurance claim against its
comprehensive insurer.
[37]
Furthermore, in the Drakensberg plea to the claim by Prestprops in
the Free State High Court case, this is also
the
first reason
why it contended that the
driver of the All Pay bakkie was negligent. It should therefore
be apparent that until its formal
amendment at the commencement of
the trial (its notice of amendment having been filed a few days prior
to the trial and its amended
pages having been filed a few days prior
to the trial and its amended pages having been delivered and handed
up at the commencement
of the trial),
Drakensberg’s
case had always been that the All Pay bakkie executed a right turn
directly in front and across the path of
travel of its vehicle
(in other words out of Commissioner Street right into Kerk Street).
This version then changed before the trial. One
can only assume
that it was realised that this false version would have been exposed
at the trial.
[38]
Khubeka was furthermore confronted with the fact that the statement
contained such detailed information regarding his names,
identity
number, age, business address, telephone numbers and particulars of
his driver’s licence
that no one
else, except Khubeka, could have provided this information.
He
could not provide any explanation for this. More importantly,
he could not give an explanation as to why the statement
(and sketch
plan) would contain this (according to him) wrong version.
[39]
Although the statement (exhibit a) and the rough sketch of the
collision (exhibit b) were unsigned, it was improbable that
anyone
other than Mr Kubheka could have provided the detailed information
concerning Mr Kubheka’s very personal and private
particulars
contained in the initial statement. I pause to point out that Mr
Kubheka’s one and only passenger, Mr Mazibuko,
denied being
answerable for the existence of those two exhibits. In any event, it
was doubtful that Mr Mazibuko would have had
knowledge of such
detailed information relative to Mr Kubheka’s peculiar personal
particulars. Mr Mazibuko’s disassociation
strengthened the
contention that it was objectively more probable than not that Mr
Kubheka was the source of such information.
[40]
The statement was ostensibly made to Drakensberg’s insurer. The
statement and the sketch plan contained at the top of
both the
reference of Drakensberg’s insurance broker or underwriter
namely “
Wheels Underwriting
Manager”
. This in turn
corresponded with the motor accident claim form administered by
“
Wheels”
.
[41]
Mr Kubheka furthermore testified that he specifically went to the
police to make a statement. However, whether or not Mr Kubheka
made
this statement to Drakensberg’s insurer (i.e. Wheels as their
broker or underwriter) or to the police for purposes of
a police
statement, he was, on a balance of probabilities, clearly the person
responsible for providing the information which was
recorded on both
the statement and the sketch plan. He testified that he spoke to the
policeman in Zulu; that the policeman recorded
the statement in
English and that the statement was read back to him in English and
translated in Zulu. It matters not that he
did not read the statement
or he did not even sign it. No other statement to the police or to
the insurer or to the investigator
other than this statement was
discovered. The only known statement which was substantively and
peculiarly associated with Mr Kubheka
was this disputed statement.
[42]
The fact of the matter is that he conveyed the information which was
read back to him and translated to him in his mother tongue.
As I
have already pointed out, the police would hardly have had anything
to gain in recording such a wrong or false version.
Therefore,
any insinuation that the relevant policeman (or anyone else, for that
matter) was responsible for this false version
should be rejected as
utter speculation and conjecture.
[43]
Similarly, it is improbable that the representative of Drakensberg’s
insurer (i.e. an employee or representative of Wheels)
would have
incorrectly recorded the very crux of how the accident occurred, so
soon after it had occurred. Again one would have
to ask what the
motive would have been for anyone else to falsely record such a
version if it did not emanate from Mr Kubheka himself.
I pause to
observe that it did appear that the testimony of Drakensberg, which
was ultimately presented at the trial was not backed
up by any prior
statement obtained from Mr Kubheka. That too is telling against Mr
Kubheka’s veracity. For these reasons
Mr Kubheka’s entire
version should be regarded with such circumspection that it could not
be seriously relied upon. As I
have indicated his new version, in a
rather strange kind of way, corroborated the steadfast version of Mr
Lepele that the two motor
vehicles were travelling in two different
streets shortly before the collision occurred. That had been Mr
Lepele’s evidence
or stance as evidenced by the pleadings of
All Pay and his own oral testimony at the time. That version was
never readjusted, as
was the version of Drakensberg.
[44]
If we accept, and I think we have to, that Mr Kubheka made two
materially inconsistent statements as to how the collision occurred,
then his veracity as a witness was greatly diminished. When a witness
gives two irreconcilable explanations in respect of one and
the same
question, then he is not allowed to summersault. Instead the
witnesses is held to the answers he first gave. When that
principle
is applied to the facts of the instant matter, the credibility and
reliability of Mr Kubheka appears to be badly tarnished.
[45]
However, if I am wrong in finding that Mr Kubheka’s evidence
was adversely and materially blemished by unfavourable features
of
untruthfulness that justified its rejection, then it should be plain,
at the very least, that Mr Kubheka had simply paid no
proper
attention to the ever present possibility of the presence of other
road users such as motorists at the time of his entering
the
intersection.
If
his initial belief was genuine, that the van of All Pay approached
the intersection from the opposite direction of the truck
of
Drakensberg in Commissioner Street, then the facts speak for
themselves. He evidently failed to keep a proper lookout. He hardly
knew where the van came from. It had to be borne in mind that he
conceded during cross-examination that had he seen the van he
could
have stopped the truck within a reasonably safe distance of 3 metres
or so, at least to allow the van to pass. The negligence
of Mr
Kubheka was, with respect to anyone who believed otherwise,
self-evident. The failure of Drakensberg to have the initial
statement explained had consequences.
[46]
A striking omission in the trial by Drakensberg was its failure to
call a witness from its comprehensive insurer or Wheels
Underwriting
Managers to explain the conflict between Mr Kubheka’s initial
statement and the common cause facts at the trial
regarding the
direction in which the van of All Pay travelled. If one accepts Mr
Kubheka’s evidence, (which we were urged
not to) he could not
provide any explanation for the very existence of the statement and
sketch plan. It was clearly incumbent
upon Drakensberg then to either
call a witness to explain this crucial issue or even proffer some
explanation why such witness
could not be found or would have no
knowledge of these facts. Drakensberg did neither.
[47]
Drakensberg’s gallant attempt in the court
a
quo
to explain the previously false
statement and worse, blaming Prestprops or All Pay for not leading
evidence about such statement,
held no water. Ever since the decision
in
Sampson v Pim
1918 AD 657
at 662, it is trite law that if a witness who could
confirm another witness’ allegations was available but did not
testify,
the inference is irresistible that his or her evidence would
have been prejudicial. In these circumstances a court is entitled to
make a negative inference of the failure to call such a witness. This
leads to one of the following three possibilities in the
instant
matter:-
47.1
The witness was located but not called for obvious reasons (that
his/her evidence would not support Mr Kubheka’s evidence);
47.2
Drakensberg did not even attempt to locate such a witness, which begs
the question why this was not done;
47.3
Such a witness could not be located, without this fact being placed
on record.
[48]
In casu
,
such a negative inference is called for. It is, after all, its own
driver’s statement and sketch plan which are under scrutiny
and
its alleged inexplicable incorrectness calls for an explanation.
Furthermore, it is unclear when Prestprops or All Pay could
have
found the time to investigate the matter and locate or subpoena a
witness, bearing in mind that the amendment was effected
at the last
minute and immediately before the commencement of the trial.
Therefore, it will be unfair to have expected the respondents
to have
done anything constructive in an attempt to trace the investigator
concerned. To put it mildly, the respondents were ambushed
by the
belated amendment. For all these the appellant was to blame.
[49]
I find it necessary to refer to certain contradictions by Mr
Mazibuko. Mr Kubheka testified that the traffic lights at the
intersection of the two street turned green in his favour when the
truck was opposite the Tren Tyre building which is the building
before the Kentucky Fried Chicken. The building of Kentucky Fried
Chicken was right at the corner of Commissioner and Kerk Streets.
[50]
Mr Mazibuko on the other hand testified that the Drakensberg truck
was approximately in the middle of the Kentuck Fried Chicken
building, in other words closer to the intersection, when the traffic
light has turned green for the truck. Later on when he was
confronted
with the testimony of Mr Kubheka, only then did he adjust his
evidence when he learned what Mr Kubheka had said.
[51]
There was a big bang at the moment of impact between the truck and
the van. The evidence of Mr Kubheka was that he ducked under
the
dashboard when he heard that loud bang which he mistakenly thought
was a gun shot. It has to be pointed out that Mr Kubheka’s
explanation as to why he ducked was never mentioned during his direct
evidence. The trial court heard about the gun for the very
first time
during the course of his cross-examination. Now one would have
expected the gun to have featured early during
the direct evidence of
the witness in view of its perceived catastrophic impact on the
witness’ actions. However, it
strangely appeared that the
gunshot was not right on the forefront of the witness’ mind but
right at the back thereof.
[52]
Curiously, Mr Mazibuko could also not wait to testify that the
traffic light was in favour of the truck when it entered the
intersection. He could not wait to mention that particular aspect.
The haste in which he said it was rather surprising. He did
so in a
curious fashion. He created the impression that he was called as a
witness simply to confirm that fact.
Unlike
Mr Kubheka, he proffered no evidence as to the alleged high speed of
the van shortly before the collision.
Like
Mr Kubheka, Mr Mazibuko also testified that he also made a statement
to the police and yet he could provide no explanation
for the
statement and the sketch plan.
[53]
Otherwise, the significant point was that Mr Mazibuko’s
evidence contributed little to the Drakensberg version of the
events.
Although the version of Drakensberg was narrated by two witnesses and
that of All Pay by one witness the version of Drakensberg
was
nonetheless singularly unconvincing in my opinion. Accordingly, the
attempted head count by Drakensberg’s counsel did
not persuade
me otherwise. The point is this: A bad story does not become a good
story because it is repeatedly told by many.
[54]
Now I turn to the version of All Pay. The passenger of the van, Ms
Mantolo Mohale could not contribute anything meaningful
as to how the
collision occurred. This was so, because, as a result of the
accident, she suffered memory loss pursuant to the severe
injuries
she sustained during the collision.
[55]
The driver of the van, Mr Lepele testified that he returned from a
work function that night. He had consumed three beers (in
other
words, “
dumpies”
or small bottles of beer) over a period of four hours. It was his
responsibility to see to it that all the eight vehicles of his
employer were taken back, parked and locked up at his workplace that
evening after the function. From the venue of the function
he
used the national road N5 for about 1km and then turned left into
Kerk Street. I pause to point out that Kerk Street itself
forms
an exhaustion or continuation of the national road.
Approximately 200 metre before Commissioner Street, he stopped
at an
intersection. From there he noticed that the next traffic lights at
Commissioner Street were red against him.
[56]
He was 100 meters closer to Commissioner Street when the traffic
light there turned green in his favour. The buildings partially
obscured his vision in such a way that he could not see road users
travelling in Commissioner Street and approaching Kerk Street
from
his left hand side. Shortly before the collision, he estimated that
he was travelling at the speed of no less than 40 kilometres
per hour
and no more than 60 kilometres per hour. He testified that he was
already “inside the intersection’’
when he first
saw the truck. At that stage, the truck was approximately 10 metres
away from the van. He said that he immediately
took his foot off the
accelerator. However, before he could slam the brakes, the truck
crashed into the van. He supposed that he
would have taken an evasive
action by swerving to the right second before the collision.
[57]
He denied the truck driver’s evidence that, at most, the truck
was travelling at the speed of 45 kilometres per hour.
He estimated
that the truck was travelling at the speed of 50km per hour. His
impression was based on the fact that, after
the initial impact, the
truck veered off the road and uprooted a tree. He confirmed that
exhibit “a” on page 48 of
the record depicted the
positions of the van and the truck at impact. He also confirmed that
exhibit “a” page 64-5
of the record depicted the physical
damage to the van. Photographic evidence tended to indicate that
there was corresponding connection
between the apparent physical
damage to the van and the position of the vehicles at primary impact.
[58]
On behalf of Drakensberg it was submitted that Lepele had placed an
impossible version before the trial court. In support
of that
submission we were invited to consider a mathematical calculation.
Because the distances were estimated, because
the accuracy of each
speedometers was unknown, because the mass of each vehicle was
unknown, because the mass of the cargo on the
truck was unknown - the
mathematical calculation was obviously unreliable. There were simply
too many unknown factors in the equation.
It was very difficult if
not impossible to establish, on the strength of counsel’s
mathematical calculation, whether the
truck would have missed the van
altogether or whether the truck would have clipped the tail of the
van or whether the truck might
have caught the van, as it did, on the
left and moved towards the front.
[59]
In my view the foundation was not laid to sustain the submission that
the evidence of the van driver boiled down to an impossible
version.
The entire foundation of the calculation was mathematically flawed.
Such calculation is best left for an accident reconstruction
specialist provided (s)he is furnished with accurate and reliable
information about all the critical factors. It was not
done in
casu
.
[60]
Both counsels for the respondents submitted that, at best for
Drakensberg, the court a quo correctly granted absolution from
the
instance in respect of the competing claims in the South Gauteng High
Court.
[61]
The driver of the truck alleged that he had the right of way at the
intersection because, as he asserted, the traffic lights
were green
in his favour. The corollary of the assertion was that the traffic
lights were red against the driver of the van. However,
according to
the driver of the van the factual matrix was different. The converse
also applied. Where, as in this case, there
are two mutually
destructive versions by litigants, the principle was enunciated as
follows in
National Employees Mutual
Insurance Associated v Gany
1931 AD
187
on 199 per Wessels JA:
“
Where
there are two stories mutually destructive, before the onus is
discharged, the Court must be satisfied upon adequate grounds
that
the story of the litigant upon whom the onus rests is true and the
other false. It is not enough to say that the story told
by Clark is
not satisfactory in every respect. It must be clear to the
Court of first instance that the version of the litigant
upon whom
the onus rests is the true version, and that in this case absolute
reliance can be placed upon the story as told by A.
Gany …”
[62]
The aforesaid principle was analysed by Coetzee in
Koster
Koöperatiewe Landboumaatskappy v Spoorweë en Hawens
1974 (4) SA 420
(W). The learned Judge reasoned that the principle
only applied to cases where there were no inherent probabilities that
could
be deduced from other acceptable evidence. Where mutually
destructive stories appear to be evenly balanced probabilities or
inferences
are resorted to and applied to resolve the impasse one way
or the other.
[63]
In
African Eagle Life Assurance Co
Ltd v Cainer
1980 (2) SA 234
(W) at
237E – 238A Coetzee J revisited the principle owing to the
negative critique levelled against Gany decision. The judge
was at at
pains to elucidate his decision in Koster’s case. He stressed
that the Gany approach to problems of proof in this
type of cases
only applies to cases where there are no probabilities one way or the
other. The judge dismissed as fallacious the
frequent criticism that
Gany principle does not apply to civil cases.
“
In
quite a few cases which I have heard since the Koster Koöperatiewe
Landboumaatskappy case this portion of my judgment has
been quoted to
me out of context. At 426 I had hoped to make it clear what I thought
what WESSELS JA meant, and something which
does not seem to have been
sufficiently clearly stated (judging by the frequency with which this
further portion of the judgment
is not quoted) is that this approach
to problems of proof in this type of case only applies in cases where
there are no probabilities
one way or the other. Where there are
probabilities, inherent or otherwise, there is no room for this
approach. On the other hand,
where there are no probabilities -
where, for instance, the factum probandum was whether a particular
thing was white or black,
with not the slightest evidence as to the
preponderance of white or black things in that particular community,
there are clearly
no probabilities of any sort. And, when the
testimony of witnesses is in conflict, the one merely saying the
thing was white and
the other black, it does not matter logically
what the measure of proof is, whether it is on a balance of
probabilities or beyond
a reasonable doubt. The position is simply
that there is no proof, by any criterion, unless one is satisfied
that one witness evidence
is true and that of the other is false. It
is frequently said that the dictum in the Gany case does not apply to
civil cases because
of the omission of the learned Judge to have
regard to the measure of proof in civil cases being on a balance of
probabilities.
But this criticism is invalid because, unless suitably
qualified, it confuses proof with the measure of proof. Where there
is no
probability there is simply no proof of anything (regardless of
the measure by which you measure it) unless you believe one person
and disbelieve the other. Until then the chances of it being black or
white remain exactly evenly balanced. This is simple logic.”
[64] The principles
as distilled from the aforesaid authorities may be summarised.
Firstly,
in the case of two mutually destructive versions, where the one
litigant alleges this and the other alleges that, then
the litigant
upon whom the onus of proof rests, must discharge such onus before
judgement can be granted in his favour.
Secondly,
In a case where the court cannot make a decision based on its
acceptance of veracity of the evidence of the party upon
whom the
onus rest or decision based on its rejection of the other party’s
evidence as false, then the court should have
regard to the
probabilities or otherwise of the matter; and
Thirdly,
unless there are probabilities or otherwise inherent in the matter on
the strength of which a finding, on a balance of
such probabilities,
can be made in favour of one or other litigant, then the party who
bears the onus of proof should fail.
[65]
I was persuaded that there were no probabilities that tipped the
scale of equilibrium in favour of Drakensberg in support of
its
contention that the traffic lights were green in its favour at the
time its driver entered the intersection. For the reasons
already
given, if anything, the probabilities favoured All Pay. Since
Drakensberg bore the onus of proof its claim should
have failed.
On the substantive merits, therefore, the version of All Pay had a
comparatively favourable or meritorious edge.
Notwithstanding this
finding, no appellate interference is called for. This is so because
Mr Becker pertinently urged us not to
disturb the finding of the
court a quo that the two versions were evenly poised – hence
absolution from the instance was
ordered. This then concludes the
appeal in connection with the South Gauteng Case.
[66]
Now I turn to deal with the second component of the appeal. The
Free State High Court case needs to be considered. The
common cause
facts showed that the truck of Drakensberg crashed into the building
of Prestprops causing damage to the building.
The delictual act
suggested,
prima facie
,
that the Drakensberg truck negligently crashed into the building of
Prestprops. Because the truck was mobile, and obviously the
building
not, it was for Drakensberg to prove justification for such
prima
facie
negligent conduct. In an
endeavour to do so, Drakensberg confessed that its truck drove into
the building of Prestprops but averred
that it did so on account of
sudden emergency created by a third party, All Pay.
[67]
It becomes necessary, in view of Drakensberg aforesaid confession and
avoidance, to take a closer look at the actions of Mr
Kubheka after
the impact between the truck and the van. In order to ascertain the
merits of the defence of sudden emergency, such
an investigative
excursion appears to be necessary. It was common cause in the
matter that, immediately after the collision,
Mr Kubheka ducked to
his left horizontally with the dashboard and remained in that
position until the truck had also collided with
the building. In
addition to that his right foot was sort of entangled. It
pressed upon the accelerator causing the truck
to travel faster than
it otherwise would have. He testified that he hung onto the steering
wheel all the time which logically caused
the truck to veer off to
the left and ultimately to collide with the building. During
cross-examination Mr Kubheka conceded that
he would not have collided
with the building of Prestprops had he applied the brakes or had he
remained upright instead of ducking
and had he not remained in the
horizontal position while the truck was gaining speed. That
concession was telling.
[68]
At the commencement of the proceedings in the court
a
quo
a further last minute amendment by
Drakensberg was introduced. Through such an amendment,
Drakensberg relied on the defence
of sudden emergency. Some confusion
existed as to whether Drakensberg had given proper notice of its
proposed amendment in this
regard. However, whether or not such
notice was furnished in good time, the fact remained that the
amendment containing its allegation
of sudden emergency was
nonetheless allowed at the commencement of the hearing by consent
between the parties. Such a belated amendment
related to
Drakensberg’s plea and its third party notice in the Free State
High Court case.
[69]
Perusal of the appeal record showed that no objective evidence or
statement by Mr Kubheka existed or was given in which this
issue was
ever raised. Counsel for All Pay contended that the so-called sudden
emergency defence relative to Prestprops’
claim appeared to be
a contrived after-thought.
[70]
Fundamental requirements and qualifications or limitations of the
doctrine of sudden emergency are firstly, that the doctrine
applies
only when a party’s conduct has been prima facie negligent (see
Van Staden v Stocks
1936 AD 18)
; Secondly, that the party relying on sudden emergency in
effect concedes negligence, but pleads that the option exercised by
the
apparent negligent driver was an error of judgment; thirdly that
such error was occasioned by the agony of the moment, or that his
conduct was reasonable in those prevailing circumstances and
fourthly, that his apparently negligent behaviour should be excused
as not being wrongful.
[71]
The scope of the defence of sudden emergency was appositely
elucidated in
Goode v SA Mutual Fire
and General Insurance Co Ltd
1979
(4) SA 301
(W) at 306H – 307B per King J:
“
The
other qualification is that the conduct of the person setting it up
must, of course, be reasonable, for the principle that a
person in
the agony of the moment is not expected to act with the same judgment
and skill as in normal circumstances must not be
extended to excuse
conduct which, even in a critical situation, is not reasonable (vide
Van Staden v May
1940 WLD 198).
It is not, therefore, every error of judgment
which is excusable as not amounting to negligence, but only one which
a reasonably
careful and skilled driver of a vehicle might commit.
There can only be a moment of agony if the person whose conduct is in
question
had neither the time nor the opportunity to weigh the pros
and cons of the situation in which he found himself.”
[72]
In
Ntsala & Others v Mutual &
Federal Ins Co Ltd
1996 (2) SA 184
(T) the court held that in reacting and possibly taking a wrong
option in a sudden emergency, the driver was required to act like
a
reasonable man should have in the abnormal circumstances.
[73]
In
S v Lombard
1964 (4) SA 346
(T) at 3474 – 348A the court found that if a
horsefly or any other insect which could perhaps cause trouble, flies
in through
a car window, a reasonable driver, will immediately apply
his brakes and bring his vehicle to a stop. In the course of the
judgment,
reference was made to various other disturbingly unnerving
situations that may unsettle a driver. The court concluded with
the warning that many unforeseen things can happen on a road such as:
lights of an oncoming vehicle going out; a driver being blinded
by
the lights of an oncoming vehicle; a stone from another vehicle
hitting the windscreen making it impossible to see or a frightening
tyre burst of one’s own motor vehicle. The court found that in
all such instances it was still expected of a driver to apply
his
brakes immediately and bring the vehicle to a stand-still.
[74]
In
S v Erwin
1974 (3) SA 438
(C) a bee stung a
motorist on the left cheek while he was in the process of overtaking
another motor vehicle. The driver instinctively
pulled his head away
to the right and bumped his spectacles against the window of the
right door with the result that the right
lens of the spectacles
broke. He, thereupon, released the steering wheel and grabbed his
spectacles to protect his eyes against
glass splinters, causing his
motor vehicle to go out of control and to veer off to the left, where
it collided with another vehicle.
The court specifically dealt with
the question whether the driver of the vehicle who was stung by the
bee had acted as could be
expected of a reasonable motorist in those
circumstances. The court confirmed the principle that an error
of judgment should
be that which a reasonable driver would make
before his conduct would be excused. The bottom line of the
decision was, in
my view, that not every error of judgment was
excusable.
[75]
In to
R v Du Toit
1947 (3) SA 141
(A) at 145, it was confirmed that the driving of a
motor vehicle requires skill, care and courage and that drivers
cannot be excused
if their judgment or courage should, without
justification, fail them at the very moment when such attributes of
skill, care and
courage were most required in order to avert
accidents or disaster. The fact that that principle was enunciated in
a criminal matter
makes no difference with the requirements expected
of a driver faced with a sudden emergency or unexpected occurrence.
The principle
applies equally well to civil matters (
Erwin
supra
at
439H).
[76]
In
Butt and Another v Van den Camp
1982 (3) SA 819
(A) the Court dealt with a similar situation to the
one
in casu
,
namely whether the driver in the alleged sudden emergency acted
reasonably after hearing something hit or strike the side of his
car.
The following
dictum
is
especially apposite in the present matter:
“
We
are dealing with a driver who sees nothing but hears something strike
or hit the side of his car. It may be a dog, it may be
a stick or a
stone, it may be a wild creature. Whatever it is, he is not entitled
to overreact and swerve so as to endanger other
traffic on the road.
The reasonable driver is expected to be alert and to have a certain
nerve. He knows that in modern traffic
conditions the unexpected may
happen at any time and that it may not, if I may mix my metaphors,
always be plain sailing. Difficult
situations arise suddenly; the
reasonable driver must be able to cope with such situations. As was
pointed out be Holmes JA in
Sadie
and others v Standard and General Insurance Co Ltd
1977 (3) SA 776
(A) at 782:
‘
The
licenced driver of a motor vehicle is expected to have a reasonable
measure of expertise and the ability to manage his vehicle’.”
I am in respectful agreement.
[77]
In
Butt
supra
at
826H the Court concluded the issue as to what is expected of a driver
faced with sudden emergency by the following
dictum
:-
“
The
competent driver who hears something strike the side of the vehicle
is not, as a rule, faced with an emergency. He is dealing
with a sort
of eventuality which an experienced driver must expect or at least
bear in mind and with which he must be able to cope.
He may stop his
car and investigate the problem, but he will not suddenly swerve
across the road. In this case it was unnecessary
for the defendant to
swerve. Indeed she was not able to explain in the witness box why she
did so, save to agree with counsel’s
suggestion that she may
have had a fright.”
Indeed
fright was the reason why the truck driver behaved as he did in the
instant matter. He was not entitled to hide.
He lacked
the required courage to deal with his fright. He should have
been able to cope with the eventuality occasioned
by the first
impact.
[78]
In a case where a driver lost control of a motor vehicle when the
bonnet suddenly opened, partially obscuring her view which
caused her
to swerve onto the incorrect side of the road where the collision
occurred, the court held that although the experience
must have been
unpleasant, there was no sudden emergency and the driver was liable
for the damages caused to another motorist.
See
De
Ridder v Rondalia Versekeringskorporasie van SA Bpk
1967 (2) PH (O) 50 (T).
[79]
In applying the aforesaid principles when adjudicating Kubheka’s
actions after the collision, it is respectfully clear
that Kubheka
was not faced with a “
sudden
emergency”
, but that the alleged
sudden emergency was one of his own making. Even if Mr Kubheka
mistook the impact of the collision for a
gunshot, his subsequent
conduct was not that which was expected of a reasonable driver faced
with unexpected circumstances. He
heard only one “
gunshot”
and yet he remained in the horizontal
position and inexplicably pressed upon the accelerator instead of
applying the brakes.
[80]
Since he took the wrong option, which no reasonably skilful, careful
and courageous driver would have taken in those prevailing
circumstances –
Du Toit
supra
he
committed an inexcusable error of judgment –
Erwin
supra
.
He heard something but saw nothing to justify his over-reaction –
Butt
supra
.
[81]
I deemed it necessary to comment on the duty of the driver
approaching an intersection. There are certain rules of the
road as regards the duties of a driver approaching an intersection.
On the authorities stated below there is no residual
or additional
duty on a driver approaching an intersection unless of course, the
vehicle with which his vehicle collides was already
in the
intersection. In this instance, Kubheka conceded that if he had
not reacted the way he did, he would have brought
the truck to a
stand-still and that, in that way, he would have avoided the second
impact with the building. The fact of
the matter was that he
saw no gunman. Therefore, there was no gunshot to justify the
way he reacted. In my view, Mr
Kubheka was not justified to
over-react, to duck and to let the truck go astray and move on
without his guidance.
[83]
A driver, who hears something strike his vehicle, is not, without
more, faced with a state of sudden emergency –
Butt
supra
skill. Mr Kubheka failed to display skill, care and courage at
the very crucial moment when he was expected to display those
attributes as a reasonable, careful and alert driver would have done
in such abnormal circumstances
R v Du
Toit
supra.
The principle is that a person in agony
of the moment is not expected to act with the same judgment and skill
as in normal circumstances
but such protection must not be extended
to excuse conduct which, even in a critical situation, is not
reasonable and justifiable
(
Van
Staden v Mey
1940 WLD 98).
It is
not, therefore, every error of judgment which is excusable as not
amounting to negligence, but only one which a reasonable
careful and
skilful driver of a vehicle might commit. There can only be a moment
of agony if the person whose conduct is in question
had neither the
time nor the opportunity to weigh the pros and cons of the situation
in which he found himself (
Goode
matter
supra
at 306H – 307B). See also
Ntsala
and others v Mutual and Federal Insurance Co Ltd
1996 (2) SA 184
(T) where the court found that in reacting and
possibly taking a wrong option in case of a sudden emergency, the
driver is still
to act like a reasonable man and should have in the
circumstances. That the truck driver failed to do.
[83]
The version of Drakensberg that the van of All Pay was initially
travelling in Commissioner Street and approaching Kerk Street
from
the opposite direction as compared to the truck was drastically
amended shortly before the commencement of the trial.
That
version which was advanced in the South Gauteng High Court as well as
in the Free State High Court then changed a few days
before the trial
started. Mr Becker remarked that one could only assume that it
was realised that that version was false
and that it would have been
exposed as such at the trial. I am inclined to agree. The
particulars of the defence of
sudden emergency were belatedly
pleaded.
[84]
It was indeed so that Kubushi AJ disallowed the statement. She did so
because the statement was unsigned. Mr Kubheka denied
it and the
investigator was not called to testify. In my view, that simplistic
and cosmetic approach to the statement was incorrect.
The
probabilities were overwhelming that the statement was crafted on the
information elicited from Mr Kubheka, the driver of the
truck. I find
myself unable to repudiate the statement as the trial judge did. The
factual finding was flawed and clearly wrong
in my respectful view.
It is the duty of an appellate court to overrule a conclusion of a
court of first instance when it is convinced
that the conclusion to
which the court of first instance has come was clearly wrong -
Botdrick’s case supra. Sitting
as we are in an appellate mode
we are at large to disregard that factual finding and to come to a
finding of our own on the matter.
The finding by the court
a
quo
boiled down to repudiating
substance in favour of form. It is my considered opinion that, on
that score, the court
a quo
misdirected itself. The argument and submissions made by counsel for
the second respondent were persuasive. I have no hesitation
to find
that it was highly probable that Kubheka was the provider of the
information contained in that statement.
[85]
I am persuaded that Mr Kubheka had ample opportunity to see the
building, to slam the brakes and to avoid the secondary collision
with the building. If he did not react as he did, he would have had
ample time to execute an invasive action in order to avoid
the second
collision with the building. After the first collision he had time to
execute the corrective action. The bang
did not justify his
decision to remain in a horizontal position. Even the very act of
“ducking” appeared curious in
the circumstances. Firstly,
Mr Mazibuko who was faced with exactly the same circumstances did not
react in that fashion. See
Butt
supra
.
Secondly, there was no suggestion that there had been subsequent
bangs (or gunshots) to justify his decision to remain in
a horizontal
position in a moving vehicle. He made no effort to establish
whether there was indeed a gunman firing at the
truck. Nothing
justified his remaining in that dangerous position until the truck
collided with the building. In my view, he reacted
in a disturbingly
unreasonable manner.
[86]
After the first collision the truck of Drakensberg veered off the
road. Mr Kubheka did nothing to steer it back onto the road.
On its
path of devastation the truck uprooted a tree on the side of the
road. Again Mr Kubheka did nothing to regain control
of the
truck. The evidence clearly showed that Mr Kubheka simply abdicated
his responsibility to control the truck. It is improbable
that a
reasonable man would have acted the way he did, after the first
impact. In those circumstances a reasonable driver
would have
immediately applied the brakes in order to bring the truck to a halt
after the first collision –
Lombard
supra.
[87]
The law imposes certain duties on a driver approaching an
intersection. As suggested above both drivers testified that they
entered the intersection without taking any additional precautions on
the basis that both of them presumed that they had a right
of way by
virtue of the fact that the traffic lights were green in their
favour. It is improbable that the lights would have been
green in
favour of both drivers travelling in two different streets that were
crossing each other. Neither of them slowed down
nor took any other
precaution. Mr Kubheka never became aware of the van driven by Mr
Lepele. Mr Lepele became aware of the truck
at the time when it was
dangerously close. At least, he saw something. Mr Kubheka saw nothing
at all.
[88]
During cross-examination Mr Benade, counsel for Prestprops, put it to
Mr Lepele that if he had slowed down prior to entering
the
intersection he could have prevented the collision from occurring. It
must be borne in mind that it was common cause that both
drivers had
restricted view of the traffic situation on the streets they were
about to cross. The suggestion, in other words, what
was put to Mr
Lepele on behalf of Prestprops, seemed to require an additional
measure by Mr Lepele before he entered the intersection
in order to
avoid a possible collision. In the
Netherlands
Insurance Co of SA Ltd v Brummer
1978 (4) SA 824
(A) Muller JA remarked as follows at 833E-F about the
driver approaching an intersection where the green lights were in his
favour:
“
Sien
ook Cockrant v Durban City Council1965 (1) SA 795 (N) op 801 - 2;
Rondalia Assurance Corporation of SA Ltd v Collins NO1969
(4) SA 345
(T) E op 347; Walton v Rondalia Assurance Corporation of SA Ltd1972
(2) SA 777 (D) op 779 - 780. Soos in bogenoemde
gewysdes verduidelik
moet 'n bestuurder wat 'n kruising binnegaan terwyl die verkeerslig
vir hom groen is, uitkyk vir verkeer wat
reeds in die kruising is, bv
verkeer wat die kruising binnegegaan het voor die verkeersligte
verander het. Hy mag natuurlik ook
nie 'n voertuig ignoreer waarvan
hy bewus is en wat duidelik op 'n nalatige wyse bestuur word. Maar
dit word nie van hom verwag
om uit te kyk vir verkeer wat moontlik
onwettiglik die kruising teen 'n rooi verkeerslig van links of regs
kan binnegaan nie.”
[89]
Accordingly, a driver is entitled to assume that those who are
precluded or prohibited from crossing the street by the red
traffic
lights would not unlawfully try to cross the street by disobeying or
skipping such traffic lights and try to pass from
left or from right
the path of a driver who has a right of way by virtue of the green
traffic lights.
[90]
In
AA Onderlinge
Versekeringsmaatskappy v Mantje
1980 (1) SA 655
(A) reference was made
to the
Netherlands Insurance
case
supra
by
the defendant’s counsel and dealt with by the court
a
quo
. However, and importantly, the
appellate division appears to agree with the principles enunciated
therein and applied them in coming
to its conclusion on the facts of
that case. Both decisions in the
Netherlands
case
supra
and
Mantje’
s
case
supra
were referred to in the matter of
Santam
Insurance Co Ltd v Gouws
1985 (2)
SA 629
(A). Again the trial judge referred to those cases. In
my view, she did so correctly. The court a quo clearly
agreed
with the principles supplied in those cases and certainly did not
indicate that they were wrong or no longer part of our
law. However,
in the
Gouws
case
supra
,
the court, went a step further and discussed the situation that the
closer the motor vehicle is to the intersection before the
traffic
lights turn green in his favour, the more likely it is that the
intersection may not be completely clear of traffic.
[91]
Therefore, it was quite evident that, on the authorities cited above,
Mr Lepele could not be fairly criticised for entering
the
intersection without taking any additional precautions since his
evidence that the traffic lights were green in his favour
could not
be rejected as false or improbable. In my view his evidence was more
credible and reliable than that of Mr Kubheka.
[92]
The court
a quo
granted absolution from the instance as regards the South Gauteng
Case. The claim of Drakensberg against All Pay was not proven
on a
balance of probabilities. Similarly the court also found that the
counter-claim of All Pay against Drakensberg was not established
on a
balance of probabilities. Both Mr Benade, and Mr Becker, urged us not
to disturb the findings of the court
a
quo
as regards the order of absolution
from the instance. I am inclined to accede to that request. On the
strength of that order and
the available evidence, there was no
conceivable basis on which All Pay could have been held liable for
Prestprops’ damages.
[93]
It will be remembered that there was no physical contact between the
van of All Pay and the building of Prestprops. A secondary
collision
gave rise to the proceedings relative to the Free State High Court
case, in other words, the claim of Prestprops against
Drakensberg.
The building of Prestprops was damaged as a result of the secondary
collision in which the truck of Drakensberg alone
was involved. As
regards the secondary collision Drakensberg would only escape
liability for Prestprops damages if we were to find
in its favour on
the question of the defence of sudden emergency. In my view,
Drakensberg failed to establish such a defence. If
that is the
case, then All Pay has to be eliminated from the equation.
[94]
On behalf of the appellant the argument that Prestprops was not the
lawful owner of the building damaged was not seriously
pursued, if at
all it was, on appeal. In my view, there was no substance in the
argument. Therefore, I am also inclined to dismiss
that special
defence raised by the appellant. In all the circumstances Drakensberg
was correctly held liable for the damages to
Prestprops’
property and Prestprops’ claim against All Pay sho
u
ld
have been dismissed with costs.
[94]
In the result I make the following order:
94.1 The appeal is
dismissed with costs, which shall include the costs relative to the
appellants’ applications to the court
a quo
and to the
Supreme Court of Appeal for leave to appeal.
94.2 The judgment of
the court
a quo
in respect of both matters is upheld.
_________________
M.
H. RAMPAI, AJP
I
concur.
____________
S.
NAIDOO J
I
concur.
________________
L.B.J.
MOENG AJ
On
behalf of appellant: Mr A P Den Hartog
Instructed by:
Lovius Block
Attorneys
BLOEMFONTEIN
On
behalf of first respondent: Mr H J Benade
Instructed by:
Phatshoane Henney
Attorneys
BLOEMFONTEIN
On
behalf of second respondent: Advocate F J Becker SC
Instructed by:
Du Toit & Co
JOHANNESBURG
Rossouw Attorneys
BLOEMFONTEIN