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[2013] ZAGPPHC 472
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Mdlalose v Afrgri Operations Ltd (A454/13) [2013] ZAGPPHC 472 (13 February 2013)
REPUBLIC OF SOUTH
AFRICA
IN THE NORTH
GAUTENG HIGH COURT, PRETORIA
CASE
NO: A454/13
DATE:
13 FEBRUARY 2013
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 plaintiffs
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 plaintiffs
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 plaintiffs
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 TPD170 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 4th ed at
91-2). As far as inferences from the evidence are concerned, the
inference retied 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] Plaintiffs 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 plaintiffs 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 ail 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.
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