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[2013] ZAGPPHC 522
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Tikana v Road Accident Fund (2720/10) [2013] ZAGPPHC 522 (15 March 2013)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN THE
HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT, PRETORIA)
Case
Number: 2720/10
DATE:
15/3/2013
In
the matter between:
SICELO
TIKANA
...............................................................................................................
PLAINTIFF
and
THE
ROAD ACCIDENT
FUND
....................................................................................
DEFENDANT
JUDGMENT
MAKHUBELE
AJ
INTRODUCTION
[1]
Sicelo Tikana (the plaintiff) is an adult male attorney who resides
at Room [….], O[…] Flat, […] C[…]
Street,
Pretoria, Gauteng Province.
[2]
The plaintiff issued summons against the Road Accident Fund (the
defendant), a statutory body established in terms of the
Road
Accident Fund Act, 56 of 1996
for payment of compensation for damages
suffered by him as a result of a motor vehicle accident that occurred
on 30 January 2009
at the intersection of Louis Botha and Fife
Streets, Berea, Johannesburg.
[3]
It is common cause that at the time of the collision, the plaintiff
was a driver of his motor vehicle (vehicle) with registration
letters
and numbers V[…]. The plaintiff’s vehicle collided
with a vehicle bearing registration letters and numbers
VZ[…]
that was driven by Samuel Phutego Moloi (the insured driver).
3.1
The particulars of claim indicated that the plaintiff was the driver
of the latter car, however, this was rectified in a supplementary
affidavit
[1]
deposed to by him
on 02 December 2012.
[4]
At the commencement of the hearing, the parties
advised me that they had agreed in terms of Rule 33(4) of the
Uniform Rules
of Court to separate the merits and the quantum. I
accordingly granted an order in accordance with their agreement. The
trial proceed
on the merits only.
4.1Plaintiff
handed in trial bundle (bundle) that contained amongst others, all
pleadings, notices and expert reports. Both parties
now and again
referred to specific documents therein.
[5]
In his particulars of claim, plaintiff alleged that the accident was
caused by the sole negligence of the insured driver whowas
negligent
in one or more or all of the following respects:
5.1
Drove without due consideration of other road users, particularly the
plaintiff.
5.2
failed to keep a proper look-out.
5.3
drove at an excessive speed under the prevailing circumstances.
5.4
failed to apply brakes at all or timeously and adequately.
5.5
failed to take adequate steps to avoid the accident when he could
have done so by exercise of reasonable
care and diligence.
[6]
The defendant raised three special pleas that I will not get into
because they were not pursued during trial.
[7]
On the merits, the defendant denied the collision and liability. In
the alternative, it pleaded that the accident was caused
by the
negligence of the plaintiff, further alternatively that the plaintiff
contributed to the causation of the accident. Particulars
of the
plaintiff’s alleged negligence or contribution to the causation
of the accident are similar to those stated by the
plaintiff in his
particulars of claim, save for one addition, namely, that the
plaintiff failed to take sufficient account
of the presence of other
road users, in particular the insured vehicle.
[8]
The issues were narrowed down during the pretrial conference
[2]
and the remaining dispute I was required to adjudicate on was the
negligence of the insured driver.
EVIDENCE
[9]
The plaintiff testified and did not call any witnesses.
[10]
In his evidence in chief, plaintiff testified that:
[10.1]
He could remember the events of the morning of 30/01/2009 very well.
He left his house in Pretoria for Johannesburg
where he worked.
He used the N1 then M1 highway. He off-ramped at Hillbrow, Joe Slovo
Drive (formerly Houghton Drive).
[10.2]
He arrived at the Y-shaped intersection of Joe Slovo and Louis
Botha Avenue where there are several traffic lights
(robots)
regulating traffic. The robot was green and in favour of him. He then
entered the intersection, turning right into
Louis Botha
Avenue.
[10.3]
He referred to the sketch plan
[3]
and marked the direction he was travelling in and showed that for him
to proceed, robots marked E and B would have to be red. These
robots
control traffic in Louis Botha Avenue.
[10.4]
When he was in the middle of the intersection with an X1 marking, he
heard a bang on the right hand side of his motor
vehicle. He
then collapsed ( was rendered unconscious). He later learnt
that he was transported by helicopter ambulance to
the hospital.
10.5
I enquired from defendant’s counsel if he has no objection to
the sketch plan being used without calling the person who
drafted it.
There was no objection.
[11]
This was the end of the plaintiff’s evidence in chief.
[12]
Under cross examination, plaintiff testified that he was 35 years
old. He denied a suggestion that he had had five accidents
in his
lifetime. He admitted having told a certain Dr Kumburayi whose
report appears in the bundle that he had other accidents
in the past.
He denied that he was a driver in all of them and that this is not
clarified in the report. He indicated that in some
he was a passenger
and could have been a pedestrian in others. The defendant’s
counsel did not pursue this point.
[13]
Plaintiff was asked about his alleged memory loss or forgetfulness as
indicated in the reports of several experts. This information
was
apparently provided by his wife who complained that he sometimes
forget appointments or to prepare for court. Plaintiff put
water on
the extent of his alleged memory loss or forgetfulness as alleged by
his wife. He dismissed it as her “
observations, maybe what
she realized”.
[14]
Counsel for the defendant enquired from plaintiff how he could
recall the accident in view of allegations of memory loss,
slow
cognitive function and forgetfulness. It was put to him that his
evidence is what he think happened. His answer was
that:
[14.1]
He was on his way to work and he uses the road regularly. The damage
on his motor vehicle indicates more or less how the
collision
occurred.
[14.2]
His mind was still in its “positivity” before the truck
struck him and as such, he can still remember the vicinity
where the
accident occurred. He went on to state that he can still remember
things that happened before the accident, his family
too, which he
had before the accident.
[15]
He was asked about the third motor vehicle, a Mazda that was involved
in the accident that he was, up to that point not talking
about.
It was put to him that his motor vehicle collided with the
Mazda after his first collision with the truck.
[15.1]
Plaintiff maintained that he was not aware of a collision between his
car and the Mazda. He only know being struck by the
truck that was
coming from the direction of Hillbrow.
[16]
Counsel for the defendant put the following propositions to the
plaintiff:
[16.1]
Mr Mini was the driver of the Mazda and he was going to testify that
his motor vehicle was stationary at the red robot waiting
to proceed
in the intersection of Louis Botha.
[16.2]
The driver of the truck (insured driver) would also testify and say
that his robot was green for his and the opposite traffic
where the
Mazda was and this is why he proceeded to pull away.
[17]
Plaintiff denied that the robot was green for the insured driver. He
reasoned that the version of the driver of the Mazda cannot
be true
because the insured driver collided with him on his right hand side,
and if the Mazda was on his left hand side, his motor
vehicle would
have been damaged on the left hand side too. He admitted though that
the sketch plan shows three motor vehicles,
namely; A, B and C.
Plaintiff
also remarked that if the points indicated in the sketch plan are
correct, vehicle A (Mazda) would have been struck by
the insured
motor vehicle before it landed on point C. This, according to
plaintiff is indicative of the fact that the insured
driver was
driving at a high speed.
[18]
Plaintiff admitted that the point of impact between his and the
insured vehicle was in point X1. He stated further that
the point of
impact supports his version. His and the insured vehicle push each
other after the collision .
18.1
Plaintiff marked certain important points in the sketch plan
such as the direction he was coming from, the point of and
the
direction of the truck. His pointings were marked Exhibit 1.
[19]
When asked whether he admits that X2 is the point of impact
between him and the Mazda, plaintiff reiterated that
he did not
see the collision with the Mazda if it happened at all. If he hit the
Mazda, it could have been that his vehicle
was pushed after the
insured vehicle struck him. He maintained that he did not collide
with the Mazda because he was unconscious
and he was no longer
in control of his vehicle. Plaintiff maintained that when he look at
the sketch plan and the position of the
vehicles after the collision,
it is impossible that the insured vehicle did not struck the
Mazda too. He also reiterated
his reasoning that if he collided with
the Mazda as alleged, his car would have been damaged on its left
hand side.
[20]
It was further put to him that the driver of the Mazda would testify
that he pulled off and the plaintiff disregarded the robot
and came
at high speed and hit both the insured and his motor vehicle. He
denied the suggestion and maintained that the Mazda driver
was struck
by the truck, if he was at all and not by him. Furthermore, his
vehicle has no damage on the left hand side.
[21]
It was also put to the plaintiff that the insured driver would
testify that the robot went green in his favour as he was approaching
and he proceeded. According to him, plaintiff came at high speed and
disregarded the robot, and first struck the insured vehicle
and then
the Mazda. Plaintiff denied this suggestion again and maintained that
the insured vehicle struck him. He does not know
anything about the
Mazda, except what he could discern from the sketch plan. His vehicle
was only damaged on the right hand side,
between the two doors. The
rear and the left hand side were not damaged.
[22]
Plaintiff was also asked about the robots in the vicinity and which
traffic each one of them controlled.
I
then suggested that all robots be marked from 1 to 5. The plaintiff
then indicated how which robot regulates traffic.
[22.1]
Robot 1 , opposite Houghton (Joe Slovo Drive.
[22.2]
Robot 2, after F and in front of the island.
[22.3]
Robot 3, in front of X1.
[22.4]
Robot 4, in front of street names “Fife Ave and Louis Botha
Ave.
[22.5]
Robot 5, further down after robot 4 in Louis Botha Avenue.
[23]
According to plaintiff, robot 1 regulates him whereas robot 2
regulates the insured motor vehicle. Robots 3, 4, and 5 control
traffic from Fife Ave.
He
denied a suggestion that as he came through, robots 3,4 and 5 were
green and he mistook them for his own robot (1).
[24]
When asked what motive the two drivers who are supported by sketch
plan would have to lie against him, plaintiff replied that
he would
not know what is in their minds, but that as far as the Mazda driver
is concerned, it means that he had stopped because
the robot was red
for him. The insured driver, so the reasoning of the plaintiff went,
ignored the red robot and collided with
him. He went on to state that
after the truck struck him, he no longer had control over his
vehicle.
[25]
Finally the plaintiff was challenged to point out a document in the
bundle where he had stated that the insured driver skipped
a robot.
It turned out that this allegation is contained in a supplementary
affidavit referred to above.
[26]
Under re-examination, he testified that no one reminded him about the
accident and that as far as he knows he collided with
one vehicle. He
heard about the third vehicle in court.
He
confirmed the damage on his vehicle, which is on the right hand side
doors and the roof that had a dent as well as a rear light
that was
disconnected.
He
entered the intersection because the robot was green for him and red
for the insured driver.
[27]
The court asked him questions to clarify certain issues. The
questioning yielded the following information:
[27.1]
The accident occurred at about 7 in the morning.
[27.2]
The weather condition was cloudy.
[27.3]
He did not give a statement to the police because he was rendered
unconscious. The only statement he gave is in page 185
of the bundle.
[27.4]
He does not know who pointed out the points in the sketch plan
(p208). He saw it for the first time in court.
[27.5]
He was unable to estimate the distance between his vehicle and
vehicle A. It is a double carriageway though, with two lanes
as it
appears from the sketch plan. He saw some cars , but they were
stationery.
[27.6]
There were no vehicles in front of him and no other vehicle turning
at that time.
[27.7]
He does not know if there are pictures of his vehicle in a damaged
state. The vehicle is at his house, but the damaged parts
were cut
and replaced.
[28]
Counsel for the defendant pointed out to plaintiff that it is not
correct that he only made one statement (p.185) because there
is
another one with his signature that accompanied the claim form.
Plaintiff explained that he could not remember because the signature
does look like his. He was also referred to the pictures of his
vehicle in page 249 of the bundle.
[29]
The case for the plaintiff was closed.
Defendant
[30]
The first witness for the defendant was Samuel Phuthego Moloi (Moloi)
who testified that he was the driver of the insured vehicle
(truck)
and that it was raining as he approached the robot. It became green
for him when suddenly a Yaris approached at high speed.
He hit the
Yaris on the right hand side.
[31]
When asked which part of his vehicle made contact with the Yaris,
Moloi indicated that it was the right hand side corner.
[32]
He indicated that he was able to recognize the area, although the
sketch plan had no markings. He was from left to right (
South to
North).
[33]
When asked how far away he was from the Yaris when he first saw it,
he answered that “
not far way as he was in the
intersection”.
He maintained that the Yaris was “
so
close”
when it was put to him that he must have entered the
intersection from left.
[33]
Moloi went on to testify that he flicked his head lights, hooted,
applied brakes and then hit the Yaris at point X1.
He
indicated that there is nothing else he could have done even now when
he reflect on the matter.
[34]
When asked about a third motor vehicle, he replied that yes, there
was a Mazda, but he did not see the collision between the
Mazda and
the Yaris because he was trying to control his car.
[35]
He admitted that his vehicle ended up at point X3, which is the
opposite lane to which he was travelling in. He explained this
by
stating that he lost control, and the vehicle jumped to the other
lane.
[36]
He did not see the collision between the Mazda and the Yaris.
[37]
Cross examination yielded the following facts:
[37.1]
He first saw the Yaris as it was “
entering the
intersection
”, “
when it entered the intersection”.
[37.2]
He was about 3 metres away from his robot at the time.
[37.3]
He flicked lights, hooted and applied dead brakes because he could
see that “
the man cannot see the robots are red for him”.
[37.4]
His vehicle was sliding and continued to move forward even after he
had applied brakes. This was caused by the wet conditions
as it was
raining, not because he was speeding as counsel for the plaintiff had
suggested.
[37.5]
He obtained his driving licence in 1999 and it was not the first time
for him to drive in such conditions.
[37.6]
When asked if he has a problem with stopping a car, he replied that
according to his knowledge, a truck does not stop immediately,
more
especially in wet conditions.
[37.7]
He did not check the speedometer, but he knows he was travelling at
60 km/h because that is the speed limit indicated in
the signs. He
conceded though that he does not always drive at the prescribed speed
limit.
[37.8]
He started to apply brakes when he was on top of the line (robot) and
by this time plaintiff was already in the intersection.
[37.9]
Defendant’s counsel objected to a question that he “
failed
to take a proper lookout”
because plaintiff did not testify
about it. I upheld the objection because the words are a conclusion
and no foundation was laid
during evidence in chief.
[37.10]
There was a stationary Mazda on points B and A in the sketch plan. He
saw it as it was stationary and after he crossed the
robots. The
Mazda was coming from robot 5. The robot was green but the Mazda did
not move. It was green for him too, and he moved
forward.
[37.11]
He swerved into the direction where the Yaris was coming from (left
hand side) because the truck lost control and if he
had swerved onto
his right hand side, he could have collided with the stationary
Mazda. He hit the Yaris on its right hand side.
There were no other
vehicles behind the Yaris.
[37.12]
He saw the Yaris before it passed its own robots.
[37.13]
There were other vehicles travelling towards same direction as his
vehicle, but on the “slow” (left ) lane.
There was
nothing to obstruct his view.
[37.14]
He denied that the Mazda was stationary because the robot was red for
it, and him too.
[37.15]
The collision between the his vehicle and plaintiff’s vehicle
occurred in the middle of the road at X1.
[37.16]
It was put to him that defendant’s counsel submitted that the
Yaris collided with him and the Mazda. He denied this
and reiterated
that he did not see the latter collision.
[37.17]
After the collision, he came out of the vehicle, and sat down
because he was confused. He saw an ambulance. He cannot
remember much
because the place was “
too busy”.
[37.18]
He was not injured, just confused by what happened. The truck was
damaged on its right hand side corner.
[37.19]
There were no other vehicles where the Mazda had stopped (at the
robot).
[37.20]
He was able to speak to the police.
[38]
Moloi was asked to indicate important points in the sketch plan
such as the direction he was coming from, the point of
impact and
where he first saw the Yaris. His pointings were marked Exhibit 2.
[38]
The second witness for the defendant was
BENEDICT MINI
, who
testified (contrary to what counsel had earlier put to the
plaintiff), that he was the owner, not the driver of the Mazda,
with
registration letters and numbers P[…]. On the day in question,
he was a passenger in this vehicle , and his friend,
Vusi was the
driver because he does not have a driving licence.
[39]
Just like the plaintiff and Moloi, Mini too made certain markings in
the sketch plan. The points as indicated by him were marked
exhibit
3. The vehicle in which he was travelling is indicated as A in the
Accident Report Form and the sketch plan and was travelling
in the
opposite direction in relation to the truck. The both of them were
regulated by the same set of robots.
[40]
He testified that the robot was red for the Yaris and green for
the insured vehicle and his.
[41]
When asked when was the first time he saw the Yaris, he replied that
“
when the truck hit it and it spinned and came and hit my
car”.
[42]
He also testified that the Mazda started to move when the robot
turned green, but stopped due to the impact with the Yaris.
He
confirmed that X1 is the point of impact between the Yaris and the
truck. The Yaris spinned and hit his car at the right rear
door at
point X2, with two blocks A and B inside. His car after the impact
was still facing where it was going and did not move.
[43]
After the collision he went to assist the plaintiff. He realized that
he had “collapsed” (rendered unconscious).
He tried to
open the driver’s door, but it was locked. He then opened
the passenger door. He called the police. The
ambulance came too. He
did not see a helicopter. He went to open a case at Hillbrow but was
referred to Loveday Police Station.
He went to see the plaintiff at
the hospital, but he was in a coma. When he went there again he was
told that he had been transferred
to another hospital. He spoke to
plaintiff’s wife about the damage on his vehicle.
[44]
Under cross examination he testified that his car had slightly jumped
after it collided with plaintiff. His driver told the
police what
happened, and pointed out how the accident occurred. He
assisted too.
[45]
He also mentioned that when they saw the truck, it had stopped
because the robot was red for both of them. When it turned green,
they moved. The Yaris came and in his opinion it was probably trying
to beat the robot. The Yaris spinned towards his vehicle.
The truck
passed them, but he did not see it. The Yaris ended behind his
vehicle after the collision
[46]
The accident had not yet happened when his driver
started to move away after the robot turned green. He did not
finish
the move and he does not know the reason why, it could be that he was
afraid of the accident.
[47]
He did not know Moloi before the accident. They exchanged telephone
numbers and he spoke to Moloi’s manager, one Sabelo
after the
accident about the owner of the Yaris.
[48]
They were travelling on the left lane. Their car was in front. There
were no cars in the right hand side lane.
[49]
He went on to state that the Yaris was speeding but he does not
know if the truck was speeding too. He did not verify
the damage on
the truck because he was concerned about the damage on his own
vehicle.
[50]
Upon questioning by me, Mini indicated that he first saw the Yaris
after it had been hit by the truck. When asked at what point
he saw
the Yaris speeding as he alleged, he replied by stating that
after it was struck by the truck and that he did not
see it (Yaris)
before this.
He
indicated further that the truck stopped at the robot, but he did not
see it move forward.
He
did not make a statement to the police. When asked who gave
information to the police about the points in the sketch plan, Mini
replied that he and his friend (the driver of the Mazda) did.
[51]
The case for the defendant was closed.
[52]
Before I analyze the evidence and make findings on the facts, I need
to address a concern I have about the manner in which
this trial was
conducted, namely; the level of preparedness and whether I should
have done something to fill in the gaps.
[52.1]
Counsel for the defendant did not object to the sketch plan being
used without calling the author to explain the points,
however, the
exercise was time-consuming and in the final analysis it was not very
helpful because there are no markings. The distances
that could have
been helpful were not indicated. He/she only measured the distances
from the point of impact to where the vehicles
landed. The distances
were measured by paces. I find it strange, to say the least, to
estimate a distance in terms of paces
in this millennium where there
are measuring instruments. I do not accept that a pace of short
person can ever be equal to a long-legged
one.
Plaintiff
struggled to understand the sketch plan, despite the fact that the
sketch is dated 30/01/2009, and is in the bundle that
was handed in
by his counsel. He lamented that he saw it for the first time in
court.
[52.2]
The accident report forms part of the bundle, but was never referred
to. I perused it and in any event I do not think it
could have
assisted because the versions of the drivers (at least those who were
at the scene with the police) were not recorded.
The involvement of a
third vehicle caught plaintiff by surprise and apparently he heard
this in court for the first time too. I
wonder if he consulted with
his counsel at all before taking the stand.
[52.3]
The photos depicting the damage on plaintiff’s vehicle are also
in the bundle and they were never referred to in his
evidence. In
response to my question, plaintiff responded by stating that he was
not aware if there are photos. Counsel for the
defendant directed him
to the relevant pages. Although the photos in the bundle are black
and white, leading evidence about them
could at least have supported
the plaintiff’s version about how the collision occurred. This
is a non-issue because
the defendant did not deny the damage.
Again, the question remains whether plaintiff and his counsel were
familiar with their own
documents in their own bundle.
[53.4]
Plaintiff could have done better in his evidence in chief to
substantiate the allegations in his particulars of claim. His
evidence was simply that he entered the intersection because the
robot was green for him and he was struck by a truck that jumped
a
robot. Should he fail to prove this, then it is the end of his case.
[53.5]
The question is whether I, as a trial judge should have questioned
the plaintiff to establish all the facts, called the author
of the
accident report or sketch plan, ordered an inspection in loco or
trawled through the bundle to find relevant evidence to
present to
myself.
[53.5]
The answer to the question I posed in 53.5 is in the negative.
In
the matter of
City
of Johannesburg Metropolitan Council v Patrick Ngobeni
[4]
,
the appeal court was requested amongst other things to consider
whether the conduct of the trial judge was irregular under
circumstances
where he descended to the arena and questioned
witnesses, mero motu called witnesses, and on his own initiative
decided that an
inspection in loco beheld.
[53.6]
This is not to say that the evidence not led or brought before me
would have added some immeasurable value . A trial judge
can do and
order certain things in the course of a trial, but not as a
substitution for counsel’s ineptitude or lack of preparedness.
[53.7]
I am raising these issues because it was glaring that plaintiff and
his counsel were not adequately prepared for trial. At
the end of his
very brief evidence in chief, I had to ask him questions to establish
such basic information like time of
the accident , weather
condition, damage on his vehicle, distances, etc.
[53.8]
I do appreciate the fact that it is not the quantity but quality of
evidence that matters. However, in this matter, plaintiff
has boxed
himself in a very small compartment. Having alleged several grounds
of negligence in his particulars of claim, the evidence
tendered only
raise one question; whether the insured driver jumped a red robot or
not.
THE
LAW
[54]
The collision took place at a traffic light (robot) -controlled
intersection. The versions presented before me as to how the
accident
occurred are totally irreconcilable and thus mutually destructive.
Under the circumstances, two issues arise for consideration:
[54.1] which of the
two irreconcilable versions is most probable.
[54.2] the duties of
a driver who enters a traffic light-controlled intersection.
[55]
With regard to the first issue, the approach is stated in the matter
of
Stellenbosch
Farmers Winery Group & Another v Martell & Others
[5]
. The court summarized the technique generally employed to resolve
factual disputes in order to come to a conclusion. The court
is
required to make findings on (a) the credibility of the various
factual witnesses;(b) their reliability; and (c) the probabilities.
[56]
On the question of onus, the Supreme Court of Appeal, per Mhlanta JA
had this to say in the matter of the
City
of Johannesburg metropolitan Council v Patric Ngobeni
[6]
had this to say:
“
[50]
It is trite that a party who asserts has a duty to discharge the onus
of
proof. In African Eagle Life Assurance Co Ltd v Cainer,
11
Coetzee
J applied the principle set out in National Employers' General
Insurance Association v Gany
1931
AD 187
as
follows:
'Where
there are two stories mutually destructive, before the onus is
discharged the Court must be satisfied that the story of the
litigant
upon whom the onus rests is true and the other false. It is not
enough to say that the story told by Clarke is not satisfactory
in
every respect, it must be clear to the Court of first instance that
the version of the litigant upon whom the onus rests is
the true
version . . . .'
[51]
The approach to be adopted when dealing with the question of onus
and the probabilities was outlined by
Eksteen JP in National Employers' General v Jagers,
12
as follows:
'It
seems to me, with respect, that in any civil case, as in any criminal
case, the onus can ordinarily only be discharged by adducing
credible
evidence to support the case of the party on whom the onus rests. In
a civil case the onus is obviously not as heavy as
it is in a
criminal case, but nevertheless where the onus rests on the plaintiff
as in the present case, and where there are two
mutually destructive
stories, he can only succeed if he satisfied the Court on a
preponderance of probabilities that his version
is true and accurate
and therefore acceptable, and that the other version advanced by the
defendant is therefore false or mistaken
and falls to be rejected. In
deciding whether that evidence is true or not the Court will weigh up
and test the plaintiff's allegations
against the general
probabilities. The estimate of the credibility of a witness will
therefore be inextricably bound up with a
consideration of the
probabilities of the case and, if the balance of probabilities
favours the plaintiff, then the Court will
accept his version as
being probably true. If however the probabilities are evenly balanced
in the sense that they do not favour
the plaintiff's case any more
than they do the defendant's, the plaintiff can only succeed if the
Court nevertheless believes him
and is satisfied that his evidence is
true and that the defendant's version is false.'
[52]
In the present case the plaintiff, during the trial, abandoned his
main ground and pursued his claim on the basis that Ledwaba
negligently discharged the firearm. It follows that the plaintiff
bore the onus
of
proof and had to prove that Ledwaba had been negligent. Accordingly,
the defendant no longer had a duty to prove the defence
of
justification as it could not raise such a defence against a claim of
negligence. In the result, the plaintiff had to prove
the element of
negligence on Ledwaba’s part in order to succeed. Regarding the
question of onus, Spilg J remarked:
'I
am satisfied that after subjecting the evidence in this manner the
truth is readily discernible. Moreover I am satisfied that
irrespective of who was required to discharge the onus, the result
will be the same.'
[53]
I do not agree with the trial judge when regard is had to the facts.
It is difficult to comprehend how the judge could make
this statement
unless he had pre-judged the issues. He adopted an approach that is
flawed and which cannot be applied when faced
with two mutually
destructive versions. It was imperative for Spilg J to have been
alive to the issue relating to the onus
and to make a determination in that
regard. Had the trial judge adopted a proper approach and applied the
principles set out in
the Jagers
case, the result would have been
different. I will hereafter show how the trial judge erred in his
approach.”
[57]
It is common cause that the plaintiff was in the process of entering
an intersection by executing a right turn. According to
him, the
robot was green and in his favour. He was already in the intersection
when he heard a bang on his right hand side.
His
conduct (executing a right turn) should be judged against the
following principles confirmed by
Msimeki
J on behalf of the appeal court in the matter of Jacobs v Road
Accident Fund
[7]
“
[12]
EXECUTING A TURN TO THE RIGHT
1.
Our Provincial Divisions and the Supreme Court of Appeal have held
that to turn across the path of oncoming or following traffic
is an
'inherent dangerous manoeuvre' and that a driver who intends
executing such a manoeuvre bears a stringent duty to do so after
satisfying himself that it is, in deed, safe and then choosing the
right moment (often called the opportune moment) to do so. (See
in
this regard AA Mutual Insurance Association Ltd v Noneka,
1976
(3) SA 45
(AD) at 52E; R v Cronhelm
1932
TPD 86
;
Sierborger v SAR & Harbours,
1961
(1) SA 498
(AD) and Johannesburg City CounciI v Pub lie Utility Transport
Corporation Ltd,
1963
(3) SA 157
(W)). It is therefore understandable why a driver turning right has a
greater duty towards both the traffic following as well as
traffic
approaching from the opposite direction.
2.
A driver turning to the right must signal his intention clearly and
avoid turning until an opportune moment presents itself.
(See in this
regard Welf v Christner
1976
(2) SA 170
(N)).
3.
He should only turn to the right once he has satisfied himself that
there is room enough between his motor vehicle and the approaching
vehicles to allow him to complete the manoeuvre safely. (See R v
Court,
1945
TPD 133
at 134).
4.
A driver 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. This
assumption may continue until it is shown that there
is a clear
intention to the contrary. (See Van Staden v Stocks,
1936
AD 18
and Rustenburg v Otto,
1974
(2) SA 268
(C) and Old Mutual Fire and General Insurance Co of Rhodesia (PVT)
LTD and Others v Britz and Another
1976
(2) SA 650
(RAD).
5.
Drivers who see a driver signalling his intention to turn right are
entitled to assume and accept that that driver will only
execute his
turn to the right at a safe and opportune moment. This is so because
they are not obliged to guard against the unreasonable
and negligent
actions of a driver who signals his intention to turn to the right.
In this regard Van Winsen AJA (as he then was)
in the matter of
Serborger v South African Railways & Harbours (supra) at 504 -
505 said;"...... the answer seems to be
'none other than keep a
look-out'. There was no obligation upon him to stop or even slow down
because of having seen a signal In
parenthesis, it need scarcely be
remarked, that du Freezes statement in evidence that had he seen
appellant's signal he would have
stopped, even supposing it to be
true, cannot burden him with an obligation not imposed by law."
(My emphasis)
In
Moore v Minister of Posts & Telegraphs
1949
(1) SA 815
at 826, Schreiner JA (as he then was) said:
"Speaking
very generally one expects and is entitled to expect reasonableness
rather than unreasonableness, legality rather
than illegality, from
other users of the highway."
6.
It therefore follows that a driver is only called upon to take
precautions against reasonable foreseeable contingencies and not
the
reckless driving of other motorists. See Rondalia Versekerings
Korporasie van SA Beperk v De Beer,
1976
(4) SA 707
at 711.
[58]
The insured driver, on the other hand was supposed to proceed
straight on the road (path) that he was travelling in. It is
common
cause that when the traffic light is green for the plaintiff, it is
red for the insured driver, and vice versa.
[58.1]
The duties of a motorist (such as the insured driver) approaching a
traffic light are summed up in judgment of Viljoen JA
in the matter
of
Santam
Insurance Co Ltd v Gouws
[8]
“
Dealing
with the issue as to whether Jackson was negligent, the learned Judge
had regard to what was said in Netherlands Insurance
Co of SA Ltd v
Brummer
1978
(4) SA 824
(A) and A A Onderlinge Versekeringsmaatskappy v Mantje
1980 (1) SA 655
(A)
and concluded that, in his view, the reasonably prudent driver in
Jackson’s
position should have kept a lookout for traffic in the intersection
that may have entered the intersection before
the lights changed, and
had not yet cleared the intersection. This is so, said the learned
Judge, particularly in view of the considerable
length of the
intersection. He was satisfied that the reason why Jackson did not
see the respondent at an earlier stage than he
did was because he
only transferred his attention to his right when he commenced to turn
to the right. The learned Judge considered
the aspect of the lighting
and was satisfied that Main Road was sufficiently lit for the
respondent to have been clearly visible
despite his dark clothes. He
concluded as follows:
“
Considering
all the circumstances, such as the absence of other traffic, which
left sufficient room for Jackson in which to take
avoiding action;
the slow speed at which plaintiff was
travelling and Jackson’s own relatively slow speed, it seems
clear that had Jackson
seen plaintiff when he should have, he could
have avoided the collision.”
I
have no hesitation in agreeing with the learned trial Judge that the
respondent was clearly negligent. His negligence borders,
in my view,
on recklessness. Almost as soon as he entered the intersection the
traffic lights facing him changed to amber at which
colour they
remained for a period of three seconds before turning to red. He
could therefore not have proceeded far into the intersection
before
the traffic lights showed red for him. In spite thereof he proceeded
forward in the middle of the road without looking at
the traffic
lights facing him and without taking any precaution whatsoever to
avoid a collision with traffic that might, with the
green light in
its favour, emerge from Cecil Road into the intersection. If regard
is had to the all red period of two seconds
the respondent must have
proceeded into the intersection for a period of five seconds from the
time the light turned to amber for
him until it turned green for
Jackson. At that stage Jackson was still some 40 metres in distance
from the intersection and some
5 seconds in time. Were one to add to
that another two seconds (including reaction time) before the
collision occurred it would
follow that the respondent must have
travelled in the intersection for a period of roughly 12 seconds with
first the amber and
then the red light facing him without keeping a
lookout at all.
What
remains is to consider whether the learned trial Judge was right in
finding that Jackson was also causally negligent. The duty
of a
motorist who approaches an intersection and enters it with the green
light in his favour is to have regard to the reasonable
possibility
that traffic which entered the intersection lawfully, may still be in
the intersection.
He
should therefore regulate his speed and his entry into the
intersection in such a manner as not to endanger the safety of such
other traffic. The closer the motorist is to the intersection when
the traffic light turns green in his favour the more likely
it is
that the intersection may not be completely clear of traffic.
SeeDoorgha and Others v Parity Insurance Company Ltd
1963
(3) SA 365
(D) at 367F 368;South
British Insurance Company v Barrable
1952
(3) SA 239
(N) at 242 F G;
Cockram v Durban City Council 1965(1) SA 795 (N) at 802 A B.”
SUBMISSIONS
BY THE PARTIES, FINDINGS AND ANALYSIS OF EVIDENCE
[59]
At the end of the trial, counsel for both parties submitted written
heads of argument at the close witnesses testimony. I am
grateful for
their submissions and authorities I have been referred to.
[60]
Counsel for the plaintiff submitted that there is no evidence to
suggest that he (plaintiff) may have forgotten the details
of the
accident. I agree with this submission because the suggestion was
merely put to the plaintiff on the basis of certain extracts
from the
expert reports. The full report, which could probably have placed the
matter in a proper perspective was not placed before
the court. I am
satisfied with plaintiff’s responses that he can still recall
things that happened before the accident. His
evidence was
consistent. He appeared to me to be a reliable witness and his
evidence except for whether the robot was red or green
was
corroborated by the defendant’s insured driver. The accident
took place in an intersection where plaintiff had to execute
a right
hand turn. If he had problems with memory, he would have muddled the
explanation. He may be forgetful , but there is no
evidence to
suggest that he forgot things that happened before the accident,
after the accident or both. The only reason I allowed
questions
around this issue is because I thought the defendant would actually
prove that he cannot possibly recall on the basis
of scientific
proof. This point was abandoned by counsel for defendant when
plaintiff explained what he can still remember.
[61]
The fact that plaintiff cannot remember that there was a third
vehicle that was allegedly involved in the accident does
not mean
that he cannot recall details of the accident. His explanation is
that after he was struck by the truck, he lost consciousness
and
obviously was no longer in control of the vehicle. This is
corroborated by the second witness for the defendant (Mini) who
testified that the Yaris spinned after it was struck by the truck and
when he went to it he found the driver (plaintiff) unconscious.
According to Mini, the impact on his car was as a result of the Yaris
spinning towards his direction after being struck by the
truck. The
fact of the matter is that plaintiff recalls how his and the insured
vehicles collided. It is a fact that he was rendered
unconscious
thereafter, and as such he cannot be expected to recall his vehicle
spinning and hitting the Mazda, if it did.
[62]
Having disposed of the issue of memory and how it may impact on the
value to be attached to plaintiff’s evidence, the
only
remaining issue is whether the traffic light was green for the
plaintiff and red for the truck.
[63]
I do not agree with the assertion by counsel for the defendant that
Mini and Moloi corroborated each other with regard to the
issue of
the traffic light. I have already summarized in great detail, the
evidence of all witnesses.
If
anything, Mini contradicted himself on the issue of whether the
traffic light was red for the truck or not.
[63.1]
In response to a question by plaintiff’s counsel about the
first time he saw the truck , he answered that it had stopped
and
their vehicle (Mazda) had stopped too because the light was red. He
also confirmed this when I asked him the same question.
This is a
contradiction to the evidence of the insured driver, who testified
that he did not stop because it turned green in his
favour as he was
approaching the intersection.
[63.2]
The evidence of Mini suggest that he did not see plaintiff jumping
the traffic light despite assertions to this effect at
some point.
Under cross examination, he indicated that he first saw plaintiff’s
vehicle after it was struck by the truck
and spun and hit his
vehicle. He confirmed this when I asked him. I asked him at what
point he saw the Yaris speeding and his response
was that “
after
it was hit by truck.. I did not see Yaris before it was hit”
[63.4]
On his own (contradictory) versions, it is highly improbable that
Mini saw the Yaris before the collision. The fact that
the vehicle he
was travelling in had stopped because the traffic light was red ( red
for the truck too) can only mean that the
Yaris had a right of way.
[64.4.1]
Although there are no measurements between the plaintiff’s
traffic light (marked 1 by agreement), and the point of
impact (X1)
with the truck, it is clear that plaintiff was almost at the end of
clearing and finishing his turn. He was closer
to the Mazda than
traffic light 1. If he jumped the light, the truck would have hit him
closer to where he entered the intersection.
[63.5]
The insured driver’s version about the traffic light is
also improbable. According to him, he slowed down because
the light
was red as he was approaching. Three metres before he reached the
light he saw the Yaris crossing and he started hooting,
flicking and
applying brakes. There is no explanation as to why he decided to slow
down and wait for the light to be green instead
of proceeding and
wait at the stop (light). He indicated that he was driving at 60km
p/h simply because that is the speed limit,
not because he checked
the speedometer.
[63.6]
On the insured driver’s version, it was raining, he knows
that the truck does not stop immediately in wet conditions.
[63.7]
Under cross examination, the insured driver indicated that he first
saw the Mazda “
when it was standing and before I crossed the
robots”.
The
insured driver and the truck were regulated by the same set of
traffic lights. The Mazda had stopped and on the version of Mini
the
collision occurred as they were about to move. The collision occurred
in the middle of the intersection and this indicates
that the Yaris
had already entered and was about to complete his turn. If the truck
had stopped, it would have still been standstill
when the Yaris
cleared the intersection.
Had
the insured driver stopped at the robot or had reduced speed as he
alleged, the truck (heavy to an extent that it does not stop
immediately) would not have picked speed accelerated to such an
extent that it stopped 35 paces
[9]
away after the collision.
[63.8]
The insured vehicle’s right hand side made contact with the
Yaris’s right hand side. The truck was damaged on
its right
hand side. This, in my view corroborates the plaintiff’s
evidence that he was in the middle of the intersection.
If he was
entering or just entered, the insured driver would have hit his car
on the front through its left side. The explanation
of the insured
driver as to how the accident occurred is not compatible with the
damage on both vehicles.
[63.9]
I accept that the traffic light could have turned green just before
the truck reached the stop (where robot is and where
he is supposed
to wait), but under the circumstances (having seen the Yaris enter
the intersection, rain, and his knowledge that
the truck does not
stop immediately in wet conditions), the insured driver should have
exercised more caution. He should have proceeding
to stop at
the robot and not play a waiting game on the road by slowing down
until it turned green and then accelerating.
[63.10]
Counsel for the defendant submitted that if I make a finding that the
truck ignored the traffic light, I should also make
the same finding
with regard to the Mazda because they were regulated by the same set
lights. I am not prepared to make a
finding that the Mazda
ignored the traffic light because I never heard evidence of the
driver of the Mazda.
In
fact counsel for the defendant misled the court and the witnesses by
telling the plaintiff when he was under cross-examination
that the
driver of the Mazda was going to testify and make certain assertions.
He never did. Instead, Mini, who was a passenger
testified. The
observations of a passenger and a driver can never be the same. The
passenger (Mini) may testify that they were
about to move away from
the robot, but it is the driver who would have been able to tell the
court what this phrase “about
to move” mean with
reference to driving actions. There is no evidence to suggest that
the driver was discussing each and
every driving action he took or
intended taking with the passenger (Mini).
[63.10]
The evidence of Mini with regard to their traffic light is that it
was red, which is why they had stopped. It went green
and as they
were about to move, their vehicle was hit by the Yaris that came
spinning towards them after being hit by the truck.
This indicates
that the Yaris entered the intersection long before. There are no
measurements but it is clear from the sketch plan
that the road is
wide, two lanes on each direction and at least five traffic lights
that were marked in court by agreement between
the parties.
[64]
According to the sketch plan and the evidence of Mini, the Mazda
remained in its position , facing the same direction it was
going
despite the fact that it was hit by an alleged speeding vehicle
whilst it was in a stationary position. Plaintiff suggested
that the
Mazda could have been hit by the truck. Neither witnesses for the
defendant disputed the assertion by plaintiff that his
vehicle was
only damaged on the right hand side doors and the roof was dented. I
do not have to make a finding in this regard because
as I have stated
above, plaintiff was rendered unconscious (this was confirmed by the
passenger in the Mazda, Mr Mini) when the
vehicle allegedly spun and
struck the Mazda.
[64.1]
The fact that the insured driver’s vehicle ended up the
furthest from all the other vehicles is in my view an indication
that
he was travelling at an excessive speed under the circumstances. Had
he reduced speed as he approached the traffic light
as he
alleged, he would not have ended up 35 paces away from the point of
impact.
Whether
failure to plead that the insured driver ignored a traffic light is
fatal to plaintiff’s case.
[65]
I do not agree with the submission by counsel for the defendant that
plaintiff’s claim should be dismissed because he
did not allege
in his particulars of claim that the insured driver ignored the red
traffic light. In my view, jumping or ignoring
a traffic light
is just but one example of reckless driving that has the potential to
cause harm to property or persons.
[66]
Sections 63
and
64
of the
National Road Traffic Act, 93 of 1996
provide as follows:
Reckless or
negligent driving
“
63. (1) No
person shall drive a vehicle on a public road recklessly or
negligently.
(2)
Without restricting the ordinary meaning of the word "recklessly"
any person who drives a vehicle in willful or wanton
disregard for
the safety of persons or property shall be deemed to drive that
vehicle recklessly.
(3)
In considering whether subsection (1) has been contravened, the court
shall have regard to all the circumstances of the case,
including,
but without derogating from the generality of subsection (1) or (2),
the nature, condition and use of the public road
upon which the
contravention is alleged to have been committed, the amount of
traffic which at the relevant time was or which could
reasonably have
been expected to be upon that road, and the speed at and manner in
which the vehicle was driven.
Inconsiderate
driving
64.
No person shall drive a vehicle on a public road without reasonable
consideration for any other person using the road.”
[67]
I have already dealt with the circumstances (according to the
insured driver) under which the accident occurred. At the risk
of
repetition and overburdening this judgment, he testified that (a) it
was raining, (b) the truck does not stop immediately under
wet
conditions. Despite this knowledge and circumstances under
which he was driving, he nevertheless , on his own version
approached
the traffic light, which was still red at 60 km/h. He slowed down,
but could not say to what speed. I do not accept
that this is the
speed he was driving because the truck stopped 35 paces after it hit
the plaintiff’s vehicle. 35 paces is
a long distance, even for
a short-legged (paced) person. I invited the parties to estimate the
distances in metres and no one took
up the challenge.
[68]
The conduct of the insured driver can at best be described as
reckless disregard for the safety of other road users.
[68.1]
The intersection is amongst others fed by traffic that comes from the
highway. Plaintiff testified that he was coming from
N1 (M1) and
other local roads
[10]
.
[68.2]
It is a dual carriageway with two lanes each.
[68.3]
The driver of the Mazda testified that there were other vehicles.
[68.4]
There were no obstructions that could have prevented him from seeing
the plaintiff’s vehicle. In fact he testified
that he saw it as
it was entering the intersection. At some point he said he saw it
when it was in the intersection.
[69]
Recklessness in the context of motor accidents has been a subject of
many cases and the leading authority is in the judgment
of
Steyn
CJ, in the matter of S v Van Zyl
[11]
where
he said the following:
“
In
die woordeboeke word aan die woord „roekeloos”
betekenisse toegeskryf wat verskillende grade van onvoorsigtigheid
uitdruk, soos sonder sorg, sonder
sorg
met betrekking tot gevolge of gevaar, onverskillig, onverskillig vir
gevaar, nie op gevaar lettende, onbesonne, baie onbesonne,
onberade.
Vir die
ooreenstemmende
woord in die Engelse teks, „recklessly”, word naas „in
a reckless manner”, die betekenis
aangegee van „without
regard to consequences,
rashly”,
terwyl „reckless” sou beteken „careless, heedless,
lacking in prudence or caution, characterised
or distinguished by
heedless rashness”, en ook
„
destitute
of heed or concern for consequences, foolishly heedless of danger,
headlong, rash, not caring or noting, neglectful, indifferent”.
Dit sou gesê kan
word
dat met betrekking tot gedrag of ’n handeling, soos die bestuur
van ’n motorvoertuig, die aangewese betekenis gevind
moet word
in begrippe soos
sonder
sorg met betrekking tot gevolge of gevaar, onverskilligheid vir
gevaar, nie op gevaar lettende nie, sonder ag te slaan op
gevolge
;
maar ook hierdie
begrippe
behels nie noodwendig ’n bewustheid van gevolg of gevaar nie.
Dit wil dus blyk dat die gewone betekenis van „roekeloos”
(„recklessly”), gevalle van
onverskilligheid,
onbesonnenheid of onoplettendheid insluit waarvan gevolgsbewustheid
geen deel uitmaak nie. So ’n betekenis
word in verskillende
gewysdes
aanvaar. In R. v. Mahametsa,
1941
A.D. 83
op bl. 86, is daar, in
verband met die straf wat opgelê was vir manslag
voortspruitende uit ’n padongeluk, die volgende
bekende
passasie:
“
We
do not disagree with the view that imprisonment is an appropriate
punishment in case of recklessness, if by recklessness is meant
gross
negligence or a willful disregard of the rights of other road users,
as for example in the case of numbers of accidents which
are caused
by the dangerous practice of ‘cutting in’, or driving
round a blind corner on the wrong side of the road,
or passing
another car on the crest of a hill.”
Hier
word heel duidelik aanvaar dat roekeloosheid, afgesien van opsetlike
verontagsaming van die regte van ander persone op die
pad, ook uit
growwe
nalatigheid
kan bestaan. Ten minste die eerste voorbeeld wat genoem word,
veronderstel nie noodwendig ’n opsetlike verontagsaming
van die
regte van
ander
nie. In R. v. Roopsingh,
1956 (4) S.A. 509
(A.A.) op bl. 519, word
met verwysing na hierdie passasie gesê:
„
Although
the appellant did none of these things it seems to me that a further
instance of gross negligence might well be added to
those described
by the learned Judge and that is: driving, while under the influence
of liquor at a speed of 40 miles an hour within
some two feet of a
stationary car, behind the right mudguard of which a man was
standing.”
Hierdie
bygevoegde geval is blykbaar gesien as een waarin die bestuurder
roekeloos sou optree in die sin van grof nalatig, en ook
hierdie
geval veronderstel
nie
noodwendig ’n besef van die gevaar wat geskep word nie. (Vgl.
R. v. Swanepoel,
1945 A.D. 444
op
bl. 448; R. v. Bredell,
1960 (3) S.A. 558
(A.A.) op bl. 560).
In
S. v. Grobler,
1964 (2) S.A. 776
(T) op bl. 780, kom die Hof tot die
gevolgtrekking dat daar regverdiging bestaan vir die sienswyse dat
die begrip roekeloos wyd
genoeg is omgrowwe nalatigheid in te sluit,
en in S. v. Barnard,
1965 (3) S.A. 644
(T), word bevind dat die
gedrag van ’n bestuurder op grond van growwe nalatigheid as
roekeloos beskryf kan word, sonder dat
dit nodig is om in te gaan op
die vraag of hy bewus was van die gevaar en onverskillig omtrent die
moontlike gevolg van sy gedrag.
Uit Engelse gewysdes omtrent die
betekenis van die woord „reckless”, blyk dieselfde
strekking. In R. v. Bates,
(1952) 2 All E.R. 842
, het dit
gegaan
oor die verbod in art. 121 (1) van die „Prevention of Fraud
(Investments)
Act”,
1939, op die roekelose maak van ’n verklaring, belofte of
voorspelling
wat misleidend,
vals of bedrieglik is. Op bl. 845 word opgemerk:
„
The
ordinary meaning of ‘reckless’ in the English language is
‘careless’,
‘
heedless’,
‘inattentive to duty’. Literally, of course, it means
‘without reck’. ‘Reck’
is simply an old
English word, now, perhaps, obsolete, meaning ‘heed’,
‘concern’ or ‘care’.”
Die
Hof besluit dat die bepaling die geval dek
„
where
there is a high degree of negligence without dishonesty”. In
Shawinigan v. Vokins & Co. Ltd.,
(1961) 3 All
E.R.
396
op bl. 403, heet dit:
„
In
my view ‘recklessly’ means grossly careless. Recklessness
is gross carelessness—the doing of something which
in fact
involves a risk, whether the doer realises it or
not:
and the risk being such, having regard to all the circumstances, that
the taking of that risk would be described as ‘reckless’.”
(Vgl.
R. v. Chitanda,
1968 (1) S.A. 427
(R), en die vorige Rhodesiese sake
waarna daarin verwys word).
Uit
die voorgaande blyk dit, meen ek, dat die gewone betekenis van
„roekeloos” („recklessly”) ook slaan
op
growwe nalatigheid met of sonder risikobewustheid.
Ek
kan geen ander gewone betekenis vind wat die wetgewer in art. 138 (2)
wou behou nie. Dit kan nie die meer beperkte juridiese
betekeniswees
nie van die soort risikobewustheid wat gepaard gaan met
onverskilligheid ten aansien van die intrede van die gevolg,
d.w.s.
van opset met moontlikheidsbewussyn, want daardie betekenis word
inbegrepe by die toegedigte betekenis en dit sou geen sin
hê om
te bepaal dat dit nie deur die toegedigte betekenis beperk word nie.
Die enigste gewone betekenis wat deur die uitdruklike
vermelding van
opsetlike of moedswillige verontagsaming van
veiligheid
beperk sou kon word, is die van roekeloosheid in die wyere sin wat
ook growwe nalatigheid dek, waarvan risikobewustheid
sonder bedoelde
onverskilligheid ’n bestanddeel kan wees maar nie noodwendig
hoef te wees nie. Dit, meen ek, is die gewone
betekenis wat die
wetgewer moes bedoel het, en daaraan moet gevolg gegee word, al is
die grens tussen gewone en growwe nalatigheid
moeiliker van geval tot
geval te trek as die_
CONTRIBUTORY
NEGLIGENCE
[66]
The defendant pleaded contributory negligence on the part of the
plaintiff, however, this was not pursued in cross examination
or
written heads of argument. In fact counsel for the defendant
submitted that this is not a case where I should consider
contributory
negligence because plaintiff was solely to blame for the
collision.
I
agree that I do not have to consider contributory negligence, but for
a different reason. There are
two
irreconcilable versions before me and the collision could have only
occurred on either of the versions tendered. I have accepted
that the
plaintiff was already in the intersection when the collision occurred
and that the insured driver did not stop at the
traffic light.
[67]
Therefore, under the circumstances, I make the following order:
[67.1]
the insured driver was the sole cause of the collision [67.2]
the defendant is ordered to pay the plaintiff
100% of his proven
damages.
[68]
The issue of costs was not canvassed before me. In my discretion, I
hereby order the defendant to pay the costs of this action.
__________________________________
MAKHUBELE
AJ
Acting
Judge of the High Court
Date
Heard: 29 January 2013.
Date
of Judgment: 15 March 2013.
Appearances:
Plaintiff:
Advocate Rasekgale
Instructed
by: Makwarela Attorneys
PRETORIA.
Defendant:
Advocate SJ Myburgh
Instructed
by: Moothle Jooma Sabdia Inc
Brooklyn, PRETORIA.
[1]
Page 185 of the trial bundle.
[2]
See pre-trial minute signed on 22 January 2013. P255-259 of the
trial bundle.
[3]
P208 of the trial bundle.
[4]
9314/110
[2012] ZASCA 55
(30 March 2012)
[5]
2003(1)
SCA 11 at
[6]
supra
[7]
(A402/2008) [2011] ZAGPPHC 121 (13 June 2011)
[8]
1895 (2) SA 629 (A)
[9]
measurements per sketch plan.
[10]
See sketch plan
[11]
1969 (1) SA 553
(A)