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[2014] ZAGPPHC 80
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Mdlalose v Afgri Operations Ltd (A 454/13) [2014] ZAGPPHC 80 (13 February 2014)
REPUBLIC
OF SOUTH AFRICA
IN
THE NORTH GAUTENG HIGH COURT, PRETORIA
CASE
NO: A454/13
DATE:
13/2/2014
In
the matter between
PW
MDLALOSE
….................................................................................
APPELLANT
And
AFGRI
OPERATIONS
LTD
..................................................................
RESPONDENT
JUDGMENT
THULARE
AJ
[1]
The appellant issued summons against the respondent in the
Magistrates Court of Pretoria in respect of damages arising out of
a
motor collision between his Tazz motor vehicle and respondent’s
truck driven by one B Makwadikwa, a driver in respondent’s
employment.
[2]
The appellant and his sister testified after which the respondent
successfully applied for absolution from the instance. It
is against
that order of the magistrate that appellant comes for higher relief.
[3]
It is common cause that both vehicles were moving in the same
direction, which was an off-ramp from the N2 freeway with three
lanes
traveling in the same direction. It is also common cause that there
are two intersections in that road, both to the left
allowing a turn
towards Springfield. It is also common cause that the collision
between the two vehicles occurred between the two
intersections
leading to Springfield.
[4]
The point of impact is in dispute. The appellant alleges that the
point of impact was on the extreme left lane in his path of
travel
and that respondent’s driver drove into his car from behind as
he was proceeding straight. The respondent alleges
that the point of
impact was in the lane next to the extreme left lane in respondent’s
path of travel and that it was when
appellant was changing lanes
after overtaking its driver on the left when appellant realized that
the left lane was a compulsory
left turn.
[5]
Appellant testified that he was driving from his brother with his
sister, and was on his way to his home in Umlazi, but had
first to
drop his sister where she lived in Springfield and he was to use the
second exit into Springfield. To get home, he would
not have taken
the off-ramp but would have proceeded straight on the N2 freeway.
[6]
He had passed the first exit into Springfield and was approaching the
second exit. He was not aware of the respondent’s
truck behind
him until he saw its lights very close to him. There was traffic in
front of him. According to him the respondent’s
truck was
travelling at a high speed. The truck drove into his vehicle and the
Tazz spun clockwise a number of times and came to
a standstill. His
sister sustained injuries for which she lodged a claim with the Road
Accident Fund. He did not see what happened,
but from the damages, he
deducted that the Tazz was hit from its right rear by the Truck’s
left front. After the collision,
the driver of the truck said he did
not see the appellant’s car before the collision.
[7]
Ziphondile Lorraine Ngcobo testified that she was the passenger in
appellant’s Tazz on that evening. Appellant was driving
in the
extreme left lane as he was preparing to take the second exit into
Springfield to take her home. He could not have taken
the first exit
as it leads to an industrial site and is long winded whereas the
second exit is simple and straightforward to get
her home. She did
not see the Truck before the collision. After the collision, the
driver of the truck said he did not see the
Tazz before the
collision. She could not explain the damages to the vehicles nor how
the collision occurred.
[8]
The approach that this court should adopt is set out in
Gafoor v
Unie Versekeringsadviseurs (Edms) Bpk
1961 (1) SA 335
(A) at
340D-G as follows:
“
Another
observation that may be made is that as a rule when a trial Court
refuses absolution at the close of the plaintiff’s
case, it
avoids unnecessary discussion of the evidence, lest it seem to take a
view of its quality and effect that should only
be reached at the end
of the whole case. In the same way on appeal it is generally right
for the Appellate Tribunal, when allowing
an appeal against an order
granting absolution at the close of the plaintiff’s case, to
avoid, as far as possible, the expression
of views that may
prematurely curb the free exercise by the trial Court of its judgment
on the facts when the defendant’s
case has been closed.”
[9]
The approach to an absolution application is set out in
De Klerk v
ABSA Bank Ltd and Others
2003(4) SA 315 (SCA) at 323B-G in
paragraph 10 as follows:
“
The
correct approach to an absolution application is conveniently set out
by Harms JA in Gordon Lloyd Page & Associates v Riviera
and
Another
2001 (1) SA 88
(SCA) at 92E -93A:
‘
[2]
The test for absolution to be applied by a trial court at the end of
a plaintiff’s case was formulated in Claude Neon
Lights (SA)
Ltd v Daniel
1976 (4) SA 403(A)
at 409G-H in these terms:
“…
(W)hen
absolution from the instance is sought at the close of plaintiff’s
case, the test to be applied is not whether the
evidence led by
plaintiff establishes what would finally be required to be
established, but whether there is evidence upon which
a Court,
applying its mind reasonably to such evidence, could or might (not
should, nor ought to) find for the plaintiff. (Gascoyne
v Paul and
Hunter
1917 TPD 170
at 173; Ruto Flour Mills (Pty) Ltd v Adelson (2)
1958(4) SA 307 (T),”
This
implies that a plaintiff has to make out a prima facie case –
in the sense that there is evidence relating to all the
elements of
the claim – to survive absolution because without such evidence
no court could find for the plaintiff (Marine
& Trade Insurance
Co Ltd v Van der Schyff
1972 (1) SA 26
(A) at 37G-38A; Schmidt
Bewysreg 4
th
ed at 91-2). As far as
inferences from the evidence are concerned, the inference relied upon
by the plaintiff must be a reasonable
one, not the only reasonable
one (Schmidt at 93). The test has from time to time been formulated
in different terms, especially
it has been said that the court must
consider whether there is ‘evidence upon which a reasonable man
might find for the plaintiff’
(Gascoyne (loc cit) – a
test which had its origin in jury trials when the ‘reasonable
man’ was a reasonable member
of the jury (Ruto Flour Mills).
Such a formulation tends to cloud the issue. The court ought not to
be concerned with what someone
else might think; it should rather be
concerned with its own judgment and not that of another ‘reasonable’
person or
court. Having said this, absolution at the end of
plaintiff’s case, in the ordinary course of events, will
nevertheless be
granted sparingly but when the occasion arises, a
court should order it in the interests of justice.”
[10]
Plaintiff’s case is simply that he was travelling straight on
the extreme left lane of three lanes travelling in the
same direction
approaching an exit which he was to take when a speeding truck drove
into his Tazz from behind in his path of travel.
This version is
corroborated by his sister, who alleges she was a passenger in that
Tazz. Applying her mind reasonably to such
evidence, the magistrate
might find for the plaintiff, in my view. The inference of negligence
of the respondent’s truck
driver is a reasonable one under the
circumstances, in my view. In those circumstances absolution ought
not to have been granted
and the appeal must succeed.
[11]
In my view, wrong tests were applied.
The
penultimate paragraph of the Magistrate’s reasons is very
worrying. Therein she says:
“
In
the absence of personal observation of both of the two witnesses in
correlation what is seen on the exact damages on the bodies
of both
vehicles this court is not in a position to say how this accident
occurred to come to a finding based on the plaintiff’s
case
that any one party could have been negligent at the end of the
plaintiff’s case.”
Earlier
on, the magistrate had this to say at page 8 from line two of the
judgment:
“
Now
the court is taking cognizance of the defendant’s version which
is not evidence unless it is repeated under oath but should
the
defendants be placed to give a version in all likelihood there will
be two mutually exclusive versions before this court and
a similar
test on credibility, reliability, probabilities and improbabilities
inherent in both versions and a discharge of onus
will still persist
at the end of the defendant’s case.”
[12]
I would make the following order:
1.
The appeal is upheld with costs.
2.
The order of the court
a quo
is set aside and replaced with
the following order:
“
The
application for absolution from the instance is refused. The costs
occasioned by the application are costs in the cause.”
3.
The matter is referred back to the magistrate to be dealt with
further in accordance with the law.
DM
THULARE
ACTING
JUDGE OF THE HIGH COURT
I
agree, and it is so ordered.
JR
MURPHY
JUDGE
OF THE HIGH COURT