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[2013] ZAGPPHC 22
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Rathebe v Road Accident Fund (16432/2000) [2013] ZAGPPHC 22 (5 February 2013)
NOT
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT. PRETORIA /ES
(REPUBLIC
OF SOUTH AFRICA)
CASE
NO: 16432/2000
DATE:05/02/2013
IN
THE MATTER BETWEEN
GAN
RY
RATHEBE
…............................................................................................
PLAINTIFF
AND
ROAD
ACCIDENT
FUND
.................................................................................................
DEFENDANT
JUDGMENT
SITHOLE,
AJ
(A)
INTRODUCTION
[1]
This is a matter which involves a road accident between a bakkie
driven by the plaintiff and a stationary bus driven by the
insured
driver, in which the court was called upon to give a decision.
[2]
The matter was heard by me on 24 April 2004 and there has been an
inordinate delay since then before judgment could be given.
This is
on account of the fact that the first volume of the transcript of
proceedings somehow got lost under circumstances beyond
my control.
I, however, hereby express my sincere apology to the parties and
their legal representatives for any inconvenience
they may have
experienced as a result of the delay.
[3]
The plaintiff was legally represented by Adv C W Jordaan and the
defendant by Adv A G Horak. The parties agreed at the relevant
pre-trial conference to have the merits separated from the quantum
and such separation was accordingly effected by the court at
the
inception of the trial. As per agreement the parties proceeded on the
merits of the matter and the issue between them is a
question of the
point of collision, otherwise most facts are common cause.
(B)
EVIDENCE FOR THE PLAINTIFF
[4]
Counsel for the plaintiff led him in chief and called a certain Ms
Mmusi in support of plaintiffs version which is to the effect
that:
on 17 July 1999 at approximately 20:00 he was driving a blue Nissan
1400 bakkie on the Bethanie/Rustenburg road. He was from
Maluka
Village to Rustenburg.
[5]
When he approached a T-junction the defendant's insured bus driver
turned into his line of travel from a gravel side road and
a
collision occurred. Upon being asked by his counsel whether there was
anything between him and the bus that might have obscured
his vision,
he answered affirmatively that it was a lot of wind and dust that did
so. He was also asked what he did when he saw
the bus for the first
time and what avoidance action he took so as not to collide with the
bus. He answered that he tried to avoid
the bus but unfortunately he
did not succeed. To avoid the collision, he testified that he applied
his brakes, swerved towards
his right side and swerved back onto the
tarmac as he was not aware of what lay ahead on the side of the road.
The collision then
occurred and he lost his consciousness. He does
not think there was anything else he could have done to avoid the
collision, except
what he did.
[6]
Cross-examination by counsel for the defendant, inter alia, yielded
the following:
6.1
that plaintiff was with a certain Israel Khatani in the bakkie at the
time of the collision;
6.2
that plaintiff was travelling at a speed of 80kph;
6.3
that it was a dark night with no street lights;
6.4
that there was much dust which was blowing towards him;
6.5
that plaintiff could only see six metres ahead;
6.6
that the first time the plaintiff saw the bus was when it entered the
tarmac;
6.7
that there was no oncoming traffic;
6.8
that plaintiff collided with the right hand rear comer of the bus;
6.9
the plaintiff was informed at the hospital that his friend, Israel
Khatani, died at the collision scene;
6.10
that plaintiff sustained head injuries as a result of the collision.
[7]
Ms Mmusi testified that on 17 July 1999 at or about 20:00 she was at
the community hall with others. She stood at a certain
spot outside
the hall because the bus they were supposed to board was full and it
left them at that spot. The bus proceeded to
a stop sign and turned
left without stopping at the stop street. She then saw dust and heard
a "goo sound" as she described
it. She and others then
rushed to where the sound was coming from because she heard people
screaming. Upon arriving there she saw
a van which had collided with
the rear of the bus not far from the stop sign (about fifteen to
sixteen paces, as she said). Besides
the van and the bus there were
already a lot of people and confusion at the collision scene and many
things were lying around there,
as she said. When asked whether there
were any other vehicles at the scene, she replied that she could not
see properly because
it was at night and there was dust.
[8]
Cross-examination of Ms Mmusi inter alia elicited the following
responses:
8.1
she is 20 years of age about to turn 21 and still at school;
8.2
she had been at the community hall to attend the opening ceremony and
there was drama being choral music being performed;
8.3
although she saw dust there was no wind that night. The dust was
caused by the bus and not the wind;
8.4
the bus drove straight past the stop sign without stopping;
8.5
she was shocked by the accident and consequently cannot say what she
saw and what she did not;
8.6
she did not tell anybody that she saw the bus make a turn without
stopping. She also denied the insured driver's version that
he
stopped at the T-junction;
8.7
she does not agree that the collision occurred 130 paces away from
the stop sign as per the insured driver’s version;
8.8
upon being asked why she did not notice the bakkie drive past the
T-junction she replied: "Remember, the bus had dust towards
the
tar surface and by then when the bus Was gone there was only a cloud
of dust hanging there and it was obscuring my view."
That
concluded the case for the plaintiff.
(C)
EVIDENCE FOR THE DEFENDANT
[9]
Counsel for the defendant led the evidence of three witnesses,
namely: the insured driver Mr Matsonyane, Mr Molefe an inspector
of
the SAPS and Mr Rheeder an investigator of the Road Accident Fund
(defendant).
9.1
The insured bus driver Matsonyane testified that on the night in
question he was transporting passengers (the Obakeng choir)
from the
community hall to their homes in Modikwe. The bus was full and it was
dark. Fie approached a stop street and stopped at
a stop sign. He
further approached the tarred road where he stopped. There was a car
approaching from his right hand side and he
waited for it to pass. He
then looked right again
and
after that car had passed there was nothing coming and so he turned
into the tarred road.
9.2
He further testified that he pulled away in second gear, changed
into third and fourth gears and as he was going into the fifth
gear
the collision occurred about sixty metres away from the T-junction.
By then he was travelling at 40kph as the speed limit
on that road is
60kph. At the time of the collision he felt a bump and he lost
control of the bus but fortunately, as he said,
he managed to control
it until after it was out of the tarmac road. He then pulled his
handbrake, alighted from the bus and went
to the rear of the bus on
foot to inspect what happened.
9.3
He further testified that at the rear of his bus he found an open
roofed bakkie stationary where it collided with the bus on
the left
hand side lane of the tarred road. In the roofless bakkie he found
two passengers, the one whose body was tilted to the
front and the
other who was busy trying to lift his body to get out of the bakkie.
Furthermore, he also testified that the following
morning he drove
past the collision scene while taking school children to school in a
smaller car and found people cleaning blood
and debris strewn on the
road. That enabled him to determine the exact spot of the collision,
he said. He consequently could not
agree with the version of the
plaintiff and his witness (Mmusi) on the collision spot.
9.4
Cross-examination of the insured driver did not yield any significant
facts save for the following few ones:
9.4.1
there were some people who wanted to board his bus when he departed
from the community hall at around 20:10;
9.4.2
those outside the bus could not climb into it because it was full and
its doors were closed;
9.4.3
the road was dry and there was dust moving with a gust of wind;
9.4.4
he was stationary before he pulled onto the tarmac;
9.4.5
he was familiar with the T-junction as he used it quite often;
9.4.6
before turning left onto the tarred road he had to stop and did stop;
9.4.7
while changing to the fifth gear he did not look at the rear view
mirror. That is why he did not see the vehicle which hit
his bus from
behind;
9.4.8
the noise of the collision sounded to him like a tyre burst or a
gunshot;
9.4.9
he did not know that it was a vehicle which collided with his bus
from behind because the whole thing happened very quickly;
9.4.10
he denies the version of the plaintiff as to how the collision
occurred as well as that of Ms Mmusi that his bus created
a lot of
dust and that he never stopped at the stop street.
[10]
The testimony of Inspector Molefe amounts to the fact that he is an
SAPS member who trained at Potchefstroom in 1995 in the
taking of
measurements, police photographs and plans. In June 1999 he was based
at the Brits Local Criminal Record Centre and he
visited the
collision scene on the night the accident occurred at 20:30. At the
accident scene he said he found a 1400 bakkie on
the road and a bus
on the side of the road. He also found paramedics who were busy
attending to the bakkie passengers. He took
measurements and
photographs but unfortunately they did not come out, as he said. He
further testified that the point of impact
is at B on p7 of the photo
album. When asked how he determined that that is the point of impact,
he responded that he did so "through
glass concentration",
as he put it. He also stated that the T-junction is far away from the
collision scene, about sixty paces
away. Also, that from the back of
the bus to the collision point is twenty three metres, and from the
T-junction to the point of
impact is sixty metres.
[11]
Cross-examination of Inspector Molefe, inter alia, elicited the
following responses:
11.1
that the police plan does not reflect a true picture of the accident
scene because it is not drawn to scale;
11.2
that measurements were taken on the night of the collision;
11.3
that point 0 in photograph 6 and point P in photograph 10 cannot be
one and the same point;
11.4
that he was shown the points he testified about by someone else,
namely, Sgt Kgobane;
11.5
that what Sgt Kgobane pointed out to him, includes the point of
impact.
[12]
Re-examination of this witness revolved around points he drew on the
police plan and the point of impact. When asked why there
is no
T-junction nor stop sign in the police plan, he replied that the
accident is far away'from the T-junction.
[13]
The last witness called by counsel for the defendant was Mr Hendrik
Petrus Rheeder, who, by occupation, is an investigator
of the
defendant's panel of investigators. He testified in Afrikaans that he
took a series of photographs in respect of an investigation
of the
accident which occurred on 17 July 1999.
13.1
He identified photo 1 on pi 7 of bundle A as one he took from a
southern to a northern direction. He also testified that by
means of
a measuring wheel, he measured the distance from a point in line with
the stop street to the T-junction, which is 14,5
metres.
13.2
Photograph 2 was taken in the opposite direction, he said. He put a
man with a yellow and orange jacket next to the stop sign
in order to
make it visible. The 14,5 metres is the distance from a point on the
left hand side of the person with a yellow and
orange jacket to the
tarmac, he said.
13.3
The third photograph he took from the east to the western direction
and it is 15,5 metres from the T-junction. This distance
he measured
by means of the measuring wheel.
13.4
The fourth photograph, with the inscription "from a point
opposite the centre of the T-junction" was taken in the
opposite
direction. It depicts a blind side and a dent and the road emerges
from the eastern direction. He further testified that
counsel for the
defendant asked him to conduct an experiment in terms of which, from
the T-junction, how long a vehicle would disappear
in the dent and
re-appear again when moving from the eastern direction to the western
direction. The results were those of three
vehicles, the first took
nine seconds, the second twelve and the third fifteen seconds. These
vehicles were about 180 metres from
the T-junction, which he measured
by means of his wheel.
13.5
Photograph 5, which is the same as photo 4, was taken 2,5 metres
south of the tarmac. He testified further that he thought
it was more
or less the point where one would stop before one got onto the tarred
road while looking in an eastern direction. This
photo shows a
vehicle in a lane approaching the T-junction. This is the 160 metres
distance referred to earlier.
13.6
Photograph 6 was taken almost opposite the middle of the T-junction
in a western direction. He further identified two brake
marks on a
lane of the descending road.
13.7
Photograph 7 depicts a residential area on the south western side of
the T-junction, whose first entrance is on the right side
of the
brick wall depicted in the photo, he said.
13.8
Photograph 8, he said, was taken from north to south, opposite the
first entrance of the residential area.
13.9
Photograph 9 was taken from north to south opposite the second
entrance to the residential area. He further testified that
in this
photo he sees the man with a glowing jacket who stands on the same
spot as in photograph 7.
13.10
In photograph 10 the same man is depicted as standing next to the
stop sign. This photo was taken from west to east in the
opposite
direction from which the bus is said to have come. He also testified
that in this photograph brake marks are depicted
and these are the
same brake marks which appear in photograph 6, save to say that in
photograph 10 these marks are from the opposite
direction.
13.11
Photograph 11 depicts the speed limit if one drives from east to west
before entering Bethanie residential area, he said.
13.12
Photograph 12 is just a close photo of the T-junction. Also, the BAFA
Funeral Services board and a white car with an open
boot on the
opposite side are depicted.
13.13
Furthermore, Mr Rheeder testified that he took photographs 13, 14 and
15 which depict the insured driver’s bus. He also
took
photographs contained in album marked C. The first photograph in this
album was taken from the east to a south western direction
and it
depicts the concrete wall shown in photo 4. Photograph 2 in this
album is a close shot of the concrete wall referred to
above. Photo 4
in the album depicts the hall whereat, it is alleged, the bus
passengers were standing before they boarded it. Photo
5 in the album
was taken from the gate of the hall in the direction of the
T-junction, and is 250 metres to the T-junction. This
distance he
measured by means of his measuring wheel. The sign "Stop 500"
in photo 5 is totally wrong, he said.
13.14
He further testified that he was asked by counsel for the defendant
to conduct another experiment, namely to see how fast
he can move on
foot for a distance of 100 metres, especially when he moves very
fast. He first measured the 100 metres with his
wheel and took 55
seconds to cover the distance. The second attempt took 75 seconds and
the third "stroll", as he called
it, took 95 seconds. He
concluded his evidence-in-chief by explaining to the court that he
first measured the 100 metres by marking
the starting and end points
and thereafter walking this distance rapidly and the outcome was 55
seconds.
13.15
Cross-examination of Mr Rheeder was to the following effect: He was
referred to photographs 3 and 4 and was asked whether
the BAFA board
that is depicted in photo 3 also appears in photo 4. He answered
negatively.
13.15.1
He was then asked how broad the gravel road which runs parallel to
the tarred road is. He answered that he did not measure
it but
estimated that it could be five to six metres broad. This gravel road
is depicted in photograph 9.
13.15.2
He was further asked about the man with the red and yellow coat
depicted on photo 9. The question was where was this man
standing
when the photograph was taken. He answered that he was standing on
the opposite side, that is,
on
the furthest side of the gravel road on which he was standing. He was
then asked to give an estimation of the distance between
the tarred
road and the person with a red and yellow coat. He answered that it
could be twenty to twenty five metres.
13.15.3
He was further asked whether he sees the pole marked M, to which he
answered affirmatively. The next question was that if
he drew a
straight line from the tarred road to the pole, how far does he
estimate the distance. He answered that it is very difficult
to
estimate this distance, but if his memory is anything to go by, it is
sixty to seventy metres. He supported his estimation by
stating that
the said pole is beyond the first pole.
13.15.4
He was then referred to photograph 8 and asked whether he sees the
wall depicted therein, to which he answered affirmatively.
Further,
he was asked how far this wall is from the tarred road. Could it be
approximately twenty metres? He conceded that it could
be more or
less twenty metres. Upon being asked about the same exercise in
respect of the pole M, he answered, once more, more
or less the same.
This concluded the cross-examination of Mr Rheeder and there was no
re-examination. Counsel for
the
defendant indicated that this is the case for the defendant.
(D)
ANALYSIS OF EVIDENCE AND FINDINGS THEREON
[14]
A close examination of the plaintiffs evidence indicates, if
anything, that he was a
poor
witness for himself. For example:
14.1
He, on several occasions, avoided questions put to him during cross-
examination on the difference in his oral evidence in
court and what
appeared in his affidavit.
14.2
Although he conceded that what appears in his statement to the
police and his testimony do not correlate, he gave a somewhat
poor
explanation of the difference in his testimony and the statement and
had no explanation for the clash of incompatible statements.
14.3
He also conceded that the raging dust that night played a big role
in the collision, causing him to temporarily lose control
of his car
and swinging it back onto the tarred road and thus colliding with the
rear of the bus in the process.
14.4
On being asked by counsel for the defendant whether the dust obscured
his view of the bus, he refused to answer the question
or any further
questions by saying the following: "1 have got no further
comment M'Lord. I am going to end there. That is
all what I know."
The record further reads as follows:
"COURT:
Do you mean you are no longer prepared to answer questions put by
counsel? — Saying anything further M'Lord I
will be lying to
the court.
Yes,
but are you going to continue answering questions put by counsel? —
I am not going to answer any more. My mind is confused
now.
Are
you confused now? — It is because M’Lord I am not capable
of speaking or talking the whole day. My nerves are starting
to
disturb me because I can feel that through my eyes. I cannot take it
anymore.
So
you do not want to continue with the trial, you want it to stop right
there? — Yes, 1 am not proceeding anymore."
14.5
Before making the above intimation to the court, he conceded that he
was travelling too fast although he denied being negligent.
He
testified that he forgot to tell his attorney about the dust storm
when he gave his statement to him.
14.6
The evidence of the plaintiffs witness, Ms Mmusi, is also not much
helpful because she testified that she did not see the collision
occur but merely heard a loud bang. Besides, when asked by counsel
for the plaintiff whether there were any other vehicles on this
road
that she could see, she answered: "I could not see properly due
to the fact that it was at night and as well as because
of the
presence of the dust."
14.7
Although she could remember and testify about paces between her and
the bus, she could not testify about where the bus and
the bakkie
were after the collision. Instead she answered: "By then we were
so shocked due to the accident itself, I cannot
say exactly what I
see and what I did not see."
14.8
Upon being asked why she did not see the bakkie which struck the bus
drive past the T-junction that she was walking towards,
she answered:
"Remember, the bus had dust towards the tar surface and by then
when the bus was gone there was only a cloud
of dust hanging there
and it was obscuring my view."
[15]
The rebuttal evidence adduced on behalf of the defendant, when viewed
as a whole, was purposefully and meticulously presented
to the court.
The testimony of the insured bus driver in particular, in so far as
the issues in this matter are concerned, is,
in my view, open to
little or no criticism. The record speaks for itself and it should
not be rehashed herein. Suffice it to say
that the dust cloud,
whether it was wind-driven or caused by the bus, played a critical
role in the collision.
(E)
DUST AS A RESTRICTIVE FACTOR OF VISIBILITY
[16]
Our law imposes a duty on the driver of a motor vehicle to drive it
so as to avoid causing harm to others. R v De Swardt
1949 1 SA 516
(N). To this end he is obliged, inter alia, (a) to keep a proper
look-out, (b) to drive at a reasonable speed, and (c) to drive
at a
safe distance from the vehicle ahead. Keeping a proper look-out means
"more than looking straight ahead - it includes
an awareness of
what is happening in one's immediate vicinity". He (the driver)
should have a view of the whole road from
side to side and in the
case of a road passing through a built-up area, of the pavement on
the side of the road as well. (See Neuhaus
v Bastion Ins
1968 1 SA
398
(A).) The duty to drive at a reasonable speed and the duty to
keep a proper look-out are, in my view, two sides of the same coin.
It follows that for a driver at night to travel at a speed which does
not permit him to stop within his range of vision implies
that he
will be driving towards a part of the road which his eyes cannot see,
ie blindly. Such a speed effectively precludes the
driver from
keeping a proper look-out. "Reasonable speed" can therefore
be defined as the speed at which a driver is
able to stop his vehicle
within his range of vision. (See R v Wells
1949 3 SA 83
(A) 88.) The
driver of a vehicle following another is under a duty to regulate his
speed and distance from the vehicle ahead of
him so as to be able to
avoid colliding with it should the vehicle ahead make a sudden stop.
(See Uniswa v Bezuidenhout
1982 3 SA 957
(A) 965B-C.) It should be
stated that in our law proof that a following vehicle collided with
the rear of the vehicle travelling
ahead is prima facie evidence of
negligence. (See Kruger v Van der Merwe
1966 2 SA 266
(A).) The
situation is an instance of res ipsa loquitur. An evidential onus of
rebuttal is cast on the following driver. If he
fails to adduce
evidence to negotiate the inference of negligence, his failure tilts
the scale in the ahead driver and the latter
is entitled to succeed.
(See Cooper W E: Delictual Liability in Motor Law Juta & Co Ltd
1996 at pi41.)
[17]
According to Cooper op cit at pi36, a driver who encounters a cloud
of dust ahead of him who realises, or should realise, that
the dust
is so dense that when he enters it he may be able to see ahead of him
for only a short distance should conduct himself
as follows:
"(a)
He should enter the dust cloud, if he does so at all, at a speed
which will enable him, within the range of his restricted
vision, to
avoid a collision with any vehicle, person or other object which he
might reasonably expect to encounter in the dust.
(b)
He should drive in the dust with such skill, care and alertness as
will enable him to avoid the collision.
(c)
If the visibility in the dust cloud is expected to be so bad that
even at a slow pace there is a danger that he will be unable
to avoid
a collision, he should not enter the dust cloud but should stop and
wait for it to disperse. There may be circumstances
in which the duty
to exercise reasonable care will require a motorist to drive off the
road and stop on the verge or the veld.
In other circumstances he may
be required to hoot or switch on his lights.
(d)
If the dust is not stationary but is one which the driver has seen
moving towards him and he has, because of that, been able
to see a
stretch of the road ahead of him before it becomes obscured by dust
and he has satisfied himself that it is clear of obstruction,
he may
drive over that stretch even after it has been obscured, provided
that he does so at an appropriate speed and with appropriate
care."
[18]
I am in full agreement with the above succinct propositions by
Cooper, for they are directly applicable in casu, more so that
they
are in line with our case law where the driver's vision was impaired
by dust. (See Rondalia v Mtkombeni
1979 3 SA 967
(A) and Maphosa v
Wilke
1990 3 SA 789
(T) at 795G.)
(F)
CONCLUSION AND ORDER
[19]
In the light of the aforegoing facts and analysis, I am convinced
that, if anything, this collision was, in the main, caused
by the
plaintiff who was travelling too fast at night into a raging dust
cloud while his vision was restricted. For him to refuse
to answer
the question whether the dust obscured his view of the bus can, and
does, in my considered opinion, attract an adverse
inference. He knew
that the dust cloud obscured his vision but was not prepared to admit
this fact in an open court, and rather
chose not to answer questions
any further. I find that there is contributory negligence in this
case.
[20]
As to the point of collision as an issue between the parties, the
plaintiff also failed to indicate to the court how far he
travelled
when he saw the bus for the first time, tried to take avoidance
action and ultimately collided with the rear of the bus.
The insured
driver, on the other hand, explained in detail how he determined the
collision point. He concluded this part of his
evidence by stating
that the
following
day he drove past the collision spot and found people clearing blood
and debris strewn on the road. I find that the point
of collision has
clearly been demonstrated by the defendant.
[21]
Having found much contributory negligence on the part of the
plaintiff, it remains for me to indicate the apportionment of
liability in respect of each party in terms of the Apportionment of
Damages Act 34 of 1956 (as amended). I conclude that in this
matter
the apportionment of liability is 75% on the part of the plaintiff
and 25% on the defendant. I therefore make the following
order:
(a)
on the merits of the matter, the plaintiff is held to have been 75%
negligent and liable in causing the collision, the defendant
25%;
(b)
the defendant is hereby ordered to pay 25% of the plaintiffs costs.