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South Africa: North Gauteng High Court, Pretoria
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2014
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[2014] ZAGPPHC 286
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Nhlapho v Road Accident Fund (61619/2012) [2014] ZAGPPHC 286 (9 May 2014)
IN THE HIGH COURT
OF SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
Case
Number: 61619/2012
DATE:
09 MAY 2014
In the matter
between:
FANYANA JOHANNES
NHLAPO
............................................
PLAINTIFF
And
THE ROAD ACCIDENT
FUND
............................................
DEFENDANT
JUDGMENT
LEPHOKO AJ
[1] The plaintiff
sues the defendant for damages he suffered as a result of a motor
vehicle accident that occurred on 25 June 2009
at the intersection of
Park Street and Wessels Street in Sunnyside, Pretoria.
[2] The merits and
quantum were separated in terms of rule 33(4). The matter proceeded
only in respect of the merits and the determination
of the quantum
was postponed sine-die.
[3] The plaintiff
testified that on the 25 June 2009 at approximately 12h45 he was the
driver of a Toyota Quantum motor vehicle
and was travelling in a west
to east direction on Park Street. He was travelling at a speed of
less than 60 km/h. The intersection
where the accident occurred is
controlled by traffic lights. The traffic lights were green in his
favour and he had the right of
way. The plaintiff further testified
that before entering the intersection he noticed the insured vehicle
approaching in front
of him travelling in an east to west direction
on Park Street. The plaintiff entered the intersection with an
intention to proceed
on Park Street. The insured vehicle suddenly
made a right turn in front of him across his path of travel. He did
not have an opportunity
to swerve, apply brakes or take any evasive
action due to the insured driver’s sudden and unexpected
maneuver. His only evidence
of the extent of the damage to his
vehicle was based on hearsay and was disregarded by the court.
[5] Mr. Philip
Chauke, the insured driver, testified on behalf of the defendant. He
testified that on the day in question he was
travelling in an east to
west direction on Park Street. He intended to turn right into Wessels
Street at its intersection with
Park Street. The traffic lights were
green for traffic travelling on Park Street. He indicated his
intention to turn to his right,
started his turn into Wessels Street
and came to a stop with his vehicle encroaching on the path of the
eastbound traffic. He stopped
in order to allow that traffic to pass.
He stated that, though not demarcated, the eastbound section of Park
Street is wide enough
to accommodate two eastbound vehicles
travelling parallel to one another. He had stopped in the middle of
what could be the inside
lane of the eastbound lane had it been
demarcated into two lanes.
[6] Mr. Chauke
further testified that he had stopped there for about a minute when
he noticed the plaintiff’s vehicle approaching
from
approximately 12 to 15 meters and driving in a zigzag manner at a
speed of above 60 km/h. The plaintiff’s vehicle collided
with
his vehicle whilst the insured vehicle was stationary and the insured
vehicle was pushed by the impact to a point where it
was stopped by
the pavement. He admitted that the damage to his vehicle was to the
right front and right mid front as indicated
in the vehicle damage
section of the police accident report
[8] Our courts have
on numerous occasions pronounced on what conduct is expected of a
driver turning across the line of traffic
as well as the conduct
expected of a driver travelling in the line of traffic. In Milton v
Vacuum Oil of SA Ltd
1932 AD 197
at 205 the court held that where
there are two streams of traffic in a road in opposite directions, a
person in a vehicle proceeding
in one direction is entitled to assume
that those who are travelling in the opposite direction will continue
in their course and
that they will not suddenly and inopportunely
turn across the line of traffic until he is shown a clear intention
to the contrary.
When a person wishes to cross the line of traffic
and to turn out into a side street he must give ample warning of his
intention
to other vehicles and execute his turn at the right moment
and in a reasonable manner.
[9] In AA Mutual
Insurance Association Ltd v Nomeka
1976 (3) SA 45
(A) 52F the court
stated that “To execute a right turn across the line of
oncoming or following traffic is an inherently
dangerous manoeuvre
and there is a stringent duty upon a driver who intends executing
such a manoeuvre to do so by properly satisfying
himself that it is
safe and opportune to do so.
[10] In Sierborger v
South African Railways and Harbours
961 (1) SA 498
(A) at 505 A-D,
the court stated that. A driver of a vehicle proceeding in the line
of traffic does not, with reference to a vehicle
whose driver has
signaled an intention to turn across his path and who is directing
his vehicle towards the middle of the road
preparatory to doing so,
incur an obligation to stop or slow down. Certainly he must keep such
vehicle under observation and as
soon as it is clear that, despite
the inappropriateness of the moment, it intends to cross in front of
him, he must take all reasonable
steps that may be necessary to avoid
colliding with it”
[11] The direction
of the insured vehicle at the point of impact, the fact that it had
started its right turn into Wessels Street
and was encroaching on the
path of the eastbound traffic is common cause. The versions of the
plaintiff and that of the insured
driver as to the cause of the
accident are mutually exclusive. In order to resolve the factual
dispute where there are two irreconcilable
versions, the court must
make findings on the credibility of the various factual witnesses,
their reliability, and the probabilities.
When all factors are
equipoised probabilities prevail: see Stellenbosch Farmers’
Winery Group Ltd & Another v Martell
ET CIE & Others
2003 (1)
SA 11
SCA at 14i – 15D.
[12] The court was
not able to make an adverse credibility finding on the scanty
evidence of the plaintiff and the insured driver
nor was their
reliability put in serious question. The insured driver testified
that the impact of the collision pushed his vehicle
to a point where
it was only stopped by the pavement. In my view a reasonable
inference to be drawn from this evidence is that
the insured vehicle
was in motion at the time of impact and continued to move until it
was stopped by the pavement. It is highly
improbable that the
plaintiff’s car, a minibus, travelling at the alleged speed
could have propelled the stationery insured
vehicle to the point
alleged by the insured driver. This makes the version of the
plaintiff more probable than that of the defendant.
[13] The insured
driver could execute the turn only after satisfying himself that it
was safe to do so. His evidence is that he
had stopped in the path of
oncoming traffic. He noticed the plaintiff’s vehicle
approaching and zigzagging on the road whilst
it was still some 12 to
15 meters away from him. He made no attempt to take evasive action,
get out of the way or hoot to warn
the plaintiff of his presence
notwithstanding his precarious position on the road. The insured
driver was not entitled to assume
that the plaintiff had observed him
and his intention to turn or that because the road was wide enough
the plaintiff would safely
negotiate his path around his encroaching
vehicle.
[15] It appears
from the totality of the evidence and the balance of probabilities
that the insured driver’s negligence was
the sole cause of the
accident.
I the circumstances,
it is ordered that:
1. The defendant was
the sole cause of the accident that took place on 25 June 2009.
2. The defendant is
liable to pay the plaintiff 100% of the plaintiff’s proven or
agreed damages.
3. The defendant is
ordered to pay the plaintiff’s costs in respect of the merits
of the plaintiff’s claim.
A L C M LEPHOKO
(ACTING JUDGE OF
THE HIGH COURT)
Heard on: 16
April 2014.
Judgment
delivered on: 09 May 2014
For the
Plaintiff: Adv.: M Upton
Instructed by: V
Rea and Associates
For the
Defendant: Mr. T Chauke
Instructed by: T
M Chauke Inc