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South Africa: North Gauteng High Court, Pretoria
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[2014] ZAGPPHC 254
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Muller v Mashabela (A781/2013) [2014] ZAGPPHC 254 (29 April 2014)
IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG DIVISION,
PRETORIA)
DELIVERED:
29/4/2014
CASE
NUMBER: A781/2013
In
the matter between:
ANTON
MULLER
Appellant
and
MODISE
MASHABELA
Respondent
JUDGMENT
POTTERILL
J
1
The appellant is appealing the judgment of
the court
a quo
wherein
the appellant’s counterclaim was dismissed with costs and the
respondent’s claim was granted with costs.
2
The claim and counterclaim flowed from a
collision that occurred on 30 March 2011 between the appellant and
respondent as the respective
drivers of their vehicles, both
bakkies. The respondent’s bakkie was towing a trailer.
It is common cause that
the accident occurred at approximately 07:50
on a sunny morning. The collision occurred on the N12 between
Fochville and
Potchefstroom. There are two lanes in a westerly
direction i.e. the direction both the appellant and the respondent
were
travelling in. There is a single lane in the opposite
direction and the western and eastern lanes of the road are separated
by a broken white line. The collision occurred at the
T-junction with the Losberg Road.
3
The appellant submitted that the court
a
quo
erred in accepting the respondent’s
version and rejecting the appellant’s version. The court
did not apply the
trite test in a civil matter of finding facts and
on these facts finding a preponderance of probabilities. The
court in fact
speculated and did not make any findings. The
court further did not give reasons for coming to its finding.
4
It is common cause that both the drivers
were driving in a westerly direction. The dispute is in which
lane the appellant
was travelling. The respondent testified
that the appellant was in the right hand lane of the two lanes going
westerly.
On the other hand the respondent testified that the
appellant and the respondent were both in the left hand lane going
westerly
and that the appellant was in front of the respondent.
The appellant further testified that he had passed the respondent 7,4
kilometres earlier and was travelling in front of the respondent but
that the appellant was travelling to the right hand side of
the left
lane to avoid potholes and to avoid people standing at the T-junction
to alight from taxis. The appellant never
saw the respondent
prior to the collision despite him looking in his mirror. He
also did not see the Mercedes Benz the respondent
referred to.
The respondent testified that he was in the left lane and without
putting on an indicator the appellant suddenly
turned left. He
could not swerve right because of the Mercedes Benz approaching and
he could not swerve left because of the
chevron on the left side of
the road. He accordingly hooted and braked but was not able to
avoid the accident. He estimated
the speed of the appellant at
about 90 km/h. The damages to the respective vehicles are
common cause. The appellant’s
vehicle was damaged
severely on the left passenger door and the respondent’s
vehicle was damaged on the right front extending
to the middle of the
vehicle. The respondent identified the point of impact on the
road as shown out on photo 1. That
pointing-out can be
described as being on the very left side of the road just before the
turn. He initially in cross-examination
conceded that the point
of impact on the road was where the appellant had shown the point of
impact to be and that is in the middle
of the T-junction in the left
lane.
5
It is thus common cause that both the
drivers were driving in a westerly direction. The dispute is in
which lane the appellant
was travelling. The appellant insisted
that he was in the left lane going westerly and that he had 7.4
kilometres before
that point passed the respondent and he did not see
the respondent before the collision. He suspected that the
respondent
was in his blind spot just before he executed his left
hand turn. The respondent testified that the appellant was in
front
of him but to his right in the right hand lane whereas the
respondent was travelling in the left lane going westerly.
6
The court
a
quo
did not on credibility
per
se
make a credibility finding in
rejecting either the appellant or the respondent’s version.
He found on p150 of the record:
“
I
am satisfied that the most plausible version would be of two vehicles
that were travelling to the same direction in parallel to
each other
with one vehicle bit further to the other.”
He
bases this on the point of impact on the road because that would mean
“
for the point of impact to be
where either party’s to be, the plaintiff’s vehicle would
have to be completely on the
gravel edge of the road and on the left
to complete the impact.”
It
would seem that he found this point of impact to be crucial to
determine the cause of the collision in general and the negligence
of
the drivers in particular.
7
On the appellant’s own version he
contradicted himself pertaining to the point of impact on the road
surface. He initially
indicated it to the very left of the road
and then conceded that it is where the respondent indicated it.
His initial point
of impact is of course highly improbable as the
point of impact is then before he could even execute a turn.
Furthermore
his explanation that he kept to the right of the left
hand lane to avoid potholes and people is inconsistent as in the
evidence
there was no reference to any potholes on the road and from
the photographs no potholes could be seen. Furthermore on the
evidence there weren’t any people standing to alight from taxis
on that particular day. A collision occurred so the
respondent
must have been in close proximity, as the trite saying goes the
respondent could not have fallen from the sky.
Yet the
appellant did not see him. If on the appellant’s own
version the respondent was in the appellant’s blind
spot then
the respondent must have been in close proximity. For the
appellant’s version to be probable the respondent
must then
have left the road on the left hand side with the trailer to then
pass the respondent on the left side of the road.
This is mere
speculation because the damages to the vehicles are consistent with
either the respondent’s or the appellant’s
version.
8
On the respondent’s version the
appellant at 90 km/h executed a sudden very sharp turn to the left on
a road that he travels
often and of which he is very alive as to
where the left turn off is. This is also improbable.
9
The point of impact can be utilised in
coming to a finding on a preponderance of probabilities. This
is so even without a
reconstructive expert report.
In
casu
however the point of impact is
probable on the version of the appellant and the respondent.
This is so because it is in the
left lane where both the appellant
and the respondent agree the collision occurred and it is more or
less at the T-junction which
is consistent with both versions.
10
The court
a
quo
accordingly erred in finding that
the one version was more probable than the other version. There
are no common cause facts
or findings that he made that can render
the one version more probable than the other. The correct order
would thus have
been absolution from the instance with costs.
11
Counsel for the appellant conceded that
this should have been the order and he suggested that on appeal each
party pay their own
costs. In view of the fact that the
appellant is substantially successful but there was an offer of each
party to pay their
own costs I exercise my discretion in making the
following order:
11.1
The appeal is upheld;
11.2
The order made by the court
a
quo
is set aside and replaced with the
following:
“
Absolution
from the instance with costs”;
11.3
Each party is to carry their own costs
pertaining to the appeal.
__________________
S.
POTTERILL
JUDGE
OF THE HIGH COURT
I
agree
__________________
S.
POTGIETER
ACTING
JUDGE OF THE HIGH COURT
CASE
NO: A781/13
HEARD
ON: 17 April 2014
FOR
THE APPELLANT: ADV. S. KROEZE
INSTRUCTED
BY: Van der Merwe Peché
FOR
THE RESPONDENT: ADV. O.H. SCHOEMAN
INSTRUCTED
BY: Hardam & Associates Inc
DATE
OF JUDGMENT: 29 April 2014