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[2013] ZAGPPHC 237
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SBV Services (Pty) Ltd v Mahlangu (1817/2011) [2013] ZAGPPHC 237 (2 August 2013)
NOT
REPORTABLE
IN THE NORTH GAUTENG HIGH COURT.
PRETORIA
(REPUBLIC OF SOUTH AFRICA)
CASE
NO: 1817/2011
DATE:02/08/2013
In
the matter between:
SBV SERVICES (PTY)
LTD
...........................................................
Plaintiff
and
J
MAHLANGU
...................................................................................
Defendant
JUDGMENT
[1]
This matter relates to a motor vehicle collision which occurred
between a Nissan UD 40 TFM Armoured cash transfer vehicle belonging
to SBV Services (Pty) Ltd of Rutherford Estate, 1 Scott Street,
Waverley and a white VW Polo, on the 24th of December 2009 at the
corner of Aubrey Matlala Street and the R80 in Soshanguve.
[2]
The accident was serious in that the cash transfer vehicle not only
collided with the VW Polo, but as a result of the collision,
swerved
into a taxi rank, on the left-hand side of the R80 close to the said
corner, killing several people.
Separation of merits and quantum
[3]
The plaintiff claimed an amount of R170 206.04 in respect of the
damage caused to its motor vehicle plus interest. The defendant
counterclaimed for an amount of R27 400.00 plus interest.
[4]
This court was called upon to adjudicate only the merits regarding
the issue of which driver’s negligence has caused the
said
collision. A separation of the merits and quantum was called for at
the commencement of the action, and, after hearing submissions,
was
granted by the court.
Plea of lis pendens and counterclaim
[5]
Initially a plea of lis pendens was raised in the pleadings because
of certain court proceedings which were pending in a Randburg
Magistrate’s Court, but this plea was formerly abandoned at the
commencement of the hearing.
[6]The
defendant’s counsel also formally withdrew the counterclaim.
[7]
It also bears mention that although copious reference was made to an
Aubrey Mailala Street, the accurate name of the road is
Aubrey
Matlala Street. (The street’s name is, for example, correctly
reflected in the pre-trial minutes.)
The circumstances which gave rise to
the collision
[8]
The driver of the plaintiff’s cash transfer vehicle was a Mr
Vuyani Nicholas Mntameka. Mr Mntameka was the first witness
to be
called on behalf of the plaintiff.
[9]
Mr Mntameka was the driver of the plaintiff’s cash transfer
vehicle, and an assistant protection officer of the plaintiffs
money
in transit, at the time of the accident. Mr Mntameka testified that
he was on duty on the 24th of December 2009, the day
on which the
collision occurred and commenced work at 05h00. He testified that on
that day he, a Mr Doctor Masisi, who was seated
in the passenger seat
of the cash transfer vehicle and a Mr M.N. Teffu, who was seated in
the back of the cash transfer vehicle,
were dropping off money at
various areas in and around Pretoria and also fixing faulty ATMs. He
testified that the last ATM that
they visited was the Nedbank ATM at
Central City Shopping Centre’s Nedbank, which is situated at
Mabopane. He testified that
they left the Central City Shopping
Centre at 19h20, which fact he remembered (as part of his duties
consists of filling in a log
sheet for each stop of the day) and that
was the time that he had recorded when he had filled in the log sheet
prior to leaving
Central City Shopping Centre. He stated that they
were on their way to the plaintiffs Arcadia Cash Centre to drop off
monies and
were travelling on the Highway Road (the R80) in the
direction of Soshanguve towards Pretoria.
[10]
The R80 is a major arterial road with a dual carriageway carrying
east and westbound traffic in the directions of Pretoria
and
Mabopane, respectively (east to Pretoria and west to Mobopane). There
are two demarcated lanes in each carriageway and the
carriageways are
separated by a central barrier.
[11]
The collision occurred, so Mr Mntameka testified, at about, or just
after 19h20. He stated that he had filled the details in
on a printed
accident report and drew the rough map (not to scale) to be found
therein, which report and map he referred to in
evidence. What the
map does not make clear, but what is clear from photograph number 3
referred to in evidence by the witness (numbered
photographs were
discovered and referred to in evidence) is that at the intersection
the two lanes of the R80 branch into a third
lane (on the right hand
side) intended solely for drivers who wish to turn right into Aubrey
Matlala Street. There are two traffic
lights on the part of the
carriageways of the R80, which lead to Pretoria - on the left- hand
side and another in the middle of
the R80 at the concrete barrier -
separating the four lanes of the R80. On the left of the R80
carriageway leading to Pretoria,
just before the intersection, there
is a slipway on the left hand side for motor vehicles wishing to turn
left into Aubrey Matlala
Street. Such vehicles need not stop at the
intersection but merely have to turn into the slipway if they wish to
turn into Aubrey
Matlala Street. Hence, when a motor vehicle
travelling on the R80 in the direction of Pretoria reaches the
traffic lights at the
Aubrey Matlala Street crossing, the driver is
confronted with two sets of traffic lights, indicating either red,
orange or green.
The same holds true for the motor vehicles driving
on the R80 from Pretoria to Soshanguve/Mabopane. The two lanes of the
carriageway
similarly split into three, the third lane being
dedicated to drivers who wish to turn right into Aubrey Matlala
Street. Once again,
such drivers are faced with two sets of traffic
lights - the one on the left-hand side of the R80 and the other
located on the
concrete barrier separating the carriageways of the
R80. These traffic lights do have a green arrow which starts
flickering the
moment the traffic lights turn green. The arrow then
turns yellow. Thereafter the traffic lights remain green and anybody
who wishes
to turn right into Aubrey Matlala Street has to wait
patiently for the traffic moving into the direction of Pretoria for
an opportune
and safe moment to turn right.
[12]
The top part of the map drawn by Mr Mntameka is in the direction of
Pretoria, the bottom part in the direction of Soshanguve
away from
Pretoria. Further, after the Aubrey Matlala Street intersection and
on the left-hand side of the map, there is a huge
BP garage with a
taxi rank.
[13]
I pause to point out that the other witnesses who testified were
referred to this map and asked to indicate where north, south,
west
and east were. Because the witnesses clearly did not know from which
angle to interpret the map and were clearly unable to
understand the
map. (A slipway, as can be seen from the map, was drawn in, on the
map, on directly opposite sides thereof by the
witnesses; vehicles
and traffic were stated to be in the most unlikely places, for
example, traffic lights in the middle of a lane,
etc. As a result the
court ultimately requested that the witnesses not be taken to the map
and that they testify without any reference
being made thereto.)
[14]
A driver in the right-hand lane of the R80 carriageway, travelling to
Pretoria would have, on his right, motor vehicles wishing
to turn
right into Aubrey Matlala Street and, as far as oncoming traffic
travelling from Pretoria is concerned, vehicles in the
third lane of
the R80 carriageway waiting for an opportune moment to turn right
into Aubrey Matlala Street (should they have missed
the period of
time whilst the green arrow flickers, allowing them to turn right
into Aubrey Matlala Street). These motor vehicles
will, to some
extent, obstruct a driver’s view of the traffic in the other
two lanes of the opposite carriageway leading
to Soshanguve/Mabopane
travelling straight on, not wishing to turn right (or for that matter
left) into Aubrey Matlala Street.
[15]
Mr Mntameka testified that when he approached the intersection, the
traffic lights were green. At that time he saw a Toyota
Hi-Ace
hesitating whether it should stop or turn into Aubrey Matlala Street
and testified that it made a “yielding stop”
but then
accelerated. It turned safely, but Mr Mntameka hooted and flicked his
lights at the driver of the Toyota Hi-Ace taxi,
as Mr Mntameka
believed that because he was so close, the manoeuvre was dangerous.
The Toyota Hi-Ace was followed by the defendant’s
white VW Polo
vehicle. Mr Mntameka testified that even though his foot was on the
brake pedal and he reduced his speed, the impact
with the white VW
Polo vehicle was unavoidable. He also testified that his headlights
were on. He testified that the driver of
the VW Polo vehicle did not
even look in his direction. He further testified that the time it
takes to travel between the Central
City Shopping Centre to Aubrey
Matlala Street was short - only about 12 minutes.
[16]
Mr Mntameka could not say whether the green arrow was still
flickering when the Toyota Hi-Ace and VW Polo turned into Aubrey
Matlala Street. The reason therefore is obvious, as he could only see
the rear of the tragic lights facing the traffic in the opposite
carriageway of the R80.
[17]
Mr Mntameka further testified that when he saw the white VW Polo it
was only about three paces away and he collided with the
VW Polo
hitting the left front side of the VW Polo between the wheel and the
passenger door. One should remember that the human
brain requires a
certain reaction time, which luxury was not afforded Mntameka, on his
version. The force of the impact was such
that the cash transfer
vehicle’s steering locked and he could no longer control the
vehicle. The cash transfer vehicle then
continued to move forward and
ended up on the left-hand side of the R80, colliding with a white
Toyota Quantum taxi that was stationary
and parked on the left hand
side of the road (just after the BP garage - about 30 metres away
from the point of impact). He further
testified that he was driving
at about 40km an hour before the collision took place.
[18]
Mr Mntameka stated that upon impact with the Toyota Quantum taxi the
cash transfer vehicle’s engine died. He also stated
that at
that stage he was not sure if the accident was part of a robbery or
if it was a genuine collision. He testified that he
and his occupants
observed what was going on through the windows. He stated that they
endeavoured to contact their base without
success as the vehicle’s
network was affected by the collision. His gunman, Mr Teffu, tried to
fix the phone and pressed
the panic button. Mr Mntameka stated that
he tried to start the vehicle but due to the power failure the
vehicle would not start
nor would the doors open. He stated that he
opened the escape hatch at the top of the vehicle and looked out of
the vehicle to
ascertain what was going on.
[19]
Mr Mntameka stated that at that stage it was still their priority to
protect the money and that he told his gunman, Mr Teffu,
to cover him
with his firearm whilst he climbed through the hatch of the vehicle
in order to get out and check on the occupants
of the VW Polo.
[20
Mr Mntameka testified that when he reached the VW Polo he saw the
driver of the VW Polo sitting in the vehicle smoking a cigarette,
with a passenger next to him. He asked the driver of the VW Polo why
he had cut in front of them, whereupon the driver of the VW
Polo
answered that he had not seen the cash transfer vehicle approaching.
Mr Mntameka testified that he enquired as to what injuries
they had
sustained, but that he
received
no response. A police officer in uniform approached them at that
stage.
[21]
Mr Mntameka stated that when he walked back to the cash transfer
vehicle he saw that there were two people lying in front of
the
Toyota Quantum. He did not whether they were alive or dead but he did
not venture closer as the crowd that had gathered around
the taxis
were becoming hostile and threatening to burn the cash transfer
vehicle.
[22]
Mr Mntameka stated that he had no alcohol to drink and that blood
tests were conducted on him.
[23]
Mr Mntameka also stated that the R80 was not busy that evening and
that there were no vehicles close to him on his side of
the R80. He
also stated that visibility was fine, as the sun had only started to
set when the collision took place.
[24]
Under cross-examination it was put to him that the green flicker
lights were still on for the VW Polo and that the collision
occurred
after the VW Polo driver had completed his turn. Mr Mntameka stated
that he did not know whether the green flickering
light was on. (As
stated, he could only see the rear of the traffic lights facing the
VW Polo vehicle.) It was further put to him
that the traffic light
was red for him and that he swerved because of a stationary Toyota
Corolla at the intersection. It transpired
later that the defendant
alleged that the Toyota Corolla was stationary in the left lane of
the R80 carriageway facing Pretoria
and also deduced from this that
the traffic light facing the cash transfer vehicle was red. Why this
deduction is incorrect, is
set out below.
[25]
It is emphasised that the witnesses testified in their various home
languages (save for Elsie Nkosi who testified in English)
and that
the evidence and cross-examination took place in English and
Afrikaans. How much might have been lost in translation is
unclear to
the court.
[26]
However, as transpired from the evidence which was tendered later,
the stationary Toyota Corolla was actually standing near
the slipway
on the left-hand side of the R80 in the direction of Pretoria.
Because of the slipway, there is no necessity to stop
at the
intersection when a vehicle wishes to turn left into Aubrey Matlala
Street. The motor vehicles simply turn left into the
slipway.
Apparently the motor vehicle had experienced engine trouble.
[27]
In cross-examination Mr Mntameka said that he was unsure as to the
precise time of the accident but that it could have occurred
at
approximately 19h45. He stated that he gave his work telephone number
and address to the first police officer who arrived at
the scene of
the collision.
[28]
As to the period which elapsed from him leaving Central City Shopping
Centre and the collision he said he was unsure, but conceded
that it
could have been half and hour.
[29]
When asked as to how far the VW Polo was from him before he collided
with it he said five paces. It was put to him that in
evidence-in-chief he had stated that it was three paces. He stated
that he had merely given an estimate of how far behind the Toyota
Hi-Ace the VW Polo had been and that he had not given an exact
distance.
[30]
Mr Mntameka further testified that when a motor vehicle negotiates a
turn it should do so gradually and not recklessly as the
VW Polo
driver had done. He said he never saw the VW Polo before it was too
late. It was put to him that three to four people had
died because of
his negligence. Mr Mntameka denied that he had driven recklessly or
negligently. He was questioned as to why he
had never seen the VW
Polo and why he had testified that onlookers threatened to burn the
cash transfer vehicle. He reiterated
that he saw the VW Polo too late
and answered that the onlookers alleged that he had skipped a red
traffic light. He continued
to maintain that the light was green for
him.
[31]
The next witness called on behalf of the plaintiff was Mr Mntameka’s
left front passenger, Mr Doctor Masisi. Mr Masisi
stated that he was
34 years old and was also a protection officer in the employ of SBV
Services (Pty) Ltd. He testified that their
last stop had been
Central City Shopping Centre’s Nedbank at 19h20. He stated that
when they reached the Aubrey Matlala Street
and R80 intersection, a
white taxi bus cut in front of them and that Mr Mntameka flashed his
lights and hooted. He testified that
the white VW Polo then appeared
and that Mr Mntameka sought to avoid a collision by swerving and thus
only hit its bonnet.
[32]
Mr Masisi further testified that had Mr Mntameka not swerved they
would have collided with the passenger side of the VW Polo.
He stated
that the VW Polo had appeared out of the blue. He emphasised that the
traffic lights were green and that he did not check
the time when the
collision took place. (Mr Mntameka did not testify that he had
swerved but he could have done so, given the point
of impact with the
VW Polo.)
[33]
During cross-examination Mr Masisi stated that he had been working
with Mr Mntameka for six years, that they were colleagues
but that
they did not socialise. He stated that he often worked with Mr
Mntameka - depending on their allocations. He testified
that he knew
that they had left Central City Shopping Centre’s Nedbank at
19h20 because Mr Mntameka had recorded the time
on his timesheet and
that he seen him doing so. He testified that the filling in of the
timesheet was Mr Mntameka’s duty.
He said that he did not check
to see whether Mr Mntameka had perhaps filled in the wrong time on
the timesheet. Upon a question
as to how far from Central City the
collision occurred, he replied 2km and he did not know how long it
took them to get to Aubrey
Matlala Street because of speed humps and
traffic. Mr Masisi stated that the Mabopane highway was not busy that
evening. He stated
that there were no other vehicles on the road at
the point where the collision occurred. He reiterated that the VW
Polo motor vehicle
was very close to the cash transfer vehicle, in
fact, just in front of them and that Mr Mntameka tried to avoid it.
He also referred
to the Toyota Hi-Ace vehicle which cut in before
them and that Mr Mntameka hooted and flicked his lights. He said that
when he
suddenly saw the VW Polo it was too close behind the Toyota
Hi-Ace vehicle to avoid a collision. He said that the lighting was
good as the street lights were already on and that they were
travelling at a normal speed.
[34]
Mr Masisi’s testimony was to the effect that he did not know
what the speed limit was. He testified that Mr Mntameka
did not brake
for the Toyota Hi-Ace vehicle as there was sufficient time for it to
negotiate the turn safely. (In this respect
he contradicted Mr
Mntameka.) When he was asked as to why Mr Mntameka would hoot and
flicker at the Toyota Hi-Ace motor vehicle,
he testified that it was
because it was close. He indicated on the rough sketch that the star
on the rough map was the point of
impact with the VW Polo motor
vehicle and he also indicated that the point of impact of the cash
transfer vehicle with the taxis
was at the top left hand corner of
the rough map drawn by Mr Mntameka. This distance, he stated, was
about 30 metres, whereas the
distance between the cash transfer
vehicle to the VW Polo before the collision was about from where he
sat in the witness box to
where the court stenographer was seated.
[35]
Mr Masisi testified that after they had collided with the taxi,
people were injured and killed as these people had been standing
around the taxis. But that, at the time, he did not know or ask
whether people had been killed or injured and stayed inside the
cash
transfer vehicle.
[36]
Mr Masisi stated that the crowd around the cash transfer vehicle was
hostile and that certain of the people were crying and
that they were
stating that the cash transfer vehicle had skipped a red traffic
light.
[37]
Mr Masisi stated that he was unaware of what the condition of the
occupants of the VW Polo was and that they pushed the panic
button.
He stated that it was his duty to protect the money in the cash
transfer vehicle. He reiterated that Mr Mntameka had not
braked for
the Toyota Hi-Ace motor vehicle nor the VW Polo because the collision
was unavoidable. He testified that even had Mr
Mntameka braked, the
collision would have occurred and denied that the damage caused would
have been less due to the weight of
the cash transfer vehicle which
added to its impetus.
[38]
The plaintiff then called an expert witness, Mr Mabadimo Lehlongonalo
Molapu. No expert witness summary had been prepared for
him. The
explanation proffered by Mr Theron, on behalf of the plaintiff, was
that the plaintiff only managed to get hold of him
early the week
before the trial. He testified that he had in his custody the
information pertaining to the City of Tshwane’s
traffic
signals, qua employee of the City of Tshwane in control of data
pertaining to traffic signals. He testified that the arrow
for motor
vehicles travelling to Soshanguve from Pretoria does not flicker
after 19h 15 nor over weekends and that his brother
had designed the
program for the traffic lights. During cross-examination he conceded
that he did not know whether the arrow flickered
on the 24th December
2009 and that he did not know when the arrangement regarding the
times when the arrow would flicker was implemented.
Hence his
testimony took the matter no further, and the defendant suffered no
prejudice as a result of him being allowed to testify.
[39]
The plaintiff then closed its case.
[40]
For the defendant the driver of the VW Polo motor vehicle was called
to testify. He testified that he remembered the collision
well and
that it took place after 18h00 on the evening of 24 December 2009 but
before 19h00. He testified that visibility was good,
and that
although the collision took place after sunset, it was still light
enough to see properly. He testified that he was the
owner of the VW
Polo motor vehicle. He stated that he had left from Secunda to be
with his wife Elsie Nkosi’s family for
Christmas, and that his
wife and her child were passengers in his motor vehicle. He testified
that he had been a teetotaller from
2005 and that although blood
alcohol tests were conducted on him he had never - even until the
date of the trial - been notified
of what the results were. He stated
that nobody had instituted any action against him personally. He
stated that when he arrived
at the crossing of the R80 and Aubrey
Matlala Street the traffic light was red. He stated that a Toyota
Hi-Ace taxi stood before
him waiting for the light to turn green.
When the light turned green and the arrow flickered and the Toyota
Hi-Ace turned right
into Aubrey Matlala Street, he followed. He
testified that there was a stationary Toyota Corolla motor vehicle on
the R80 on which
the cash transfer vehicle was travelling.
[41]
Mr Mahlangu stated that the roads were busy. He further testified
that he never saw the cash transfer vehicle before impact
and that it
apparently never stopped but just continued driving. He testified
that all that he saw was the stationary Toyota Corolla,
the Toyota
Hi-Ace in front of him, and the flickering light. He confirmed that
the cash transfer vehicle only came to a stop on
the left side of the
R80 at the top of the rough sketch drawn by Mr Mntameka. He testified
that the distance from the point of
impact to where the cash transfer
vehicle came to a stop was plus-minus one and a half lengths of the
courtroom. He testified that
Mr Mntameka came to his motor vehicle.
He stated that he struggled to open the door of his vehicle to remove
his unconscious wife,
who had cut wounds, and then proceeded to lay
his wife down on the ground. He stated that the child exited on her
own from the
motor vehicle. He stated that he had no injuries and
never spoke to Mr Mntameka whilst inside his motor vehicle - only
when he
had exited therefrom. He stated that Mr Mntameka asked him
what he thought he was doing. He denied seeing the cash transfer
vehicle
flicking its lights, nor did he hear it hoot. He also
testified that he only smoked when standing outside his motor
vehicle.
[42]
Mr Mahlangu further testified that the cash transfer vehicle must
have been driving at a high speed because had he driven more
slowly
he would have seen it. He stated that he could not dispute the
plaintiffs expert witness’ evidence but that he maintained
that
the arrow had flickered when he turned into Aubrey Matlala Street.
[43]
Mr Mahlangu stated that the people at the taxi rank were extremely
hostile and angry and that his wife was taken to the hospital
by the
second ambulance that arrived at the scene. He testified that the
speed limit at that point was 60km per hour and that the
cash
transfer vehicle must have exceeded the speed limit and could not
have been travelling at 40km per hour as contended by Mr
Mntameka. He
testified that had the cash transfer vehicle travelled slowly, both
of them would have ended up where his VW Polo
ended up, namely next
to the pole on the pavement.
[44]
During cross-examination Mr Mahlangu testified that they left Secunda
at about 15h00 because he had still worked in the morning.
They
stopped only once on the way for about thirty minutes. He was asked
how long it takes to drive from Secunda to Soshanguve
and he stated
approximately two hours, depending on the traffic. He stated that
when they reached Pretoria the roads became busy,
that the sun had
set and that it was dusk. He reiterated that he was a teetotaller
since 2005 because he was robbed of all his
money and injured during
2004 whilst under the influence of alcohol.
Hence
his decision never to drink any alcoholic beverages again.
[45]
Mr Mahlangu testified once again that the purpose of the visit to
Pretoria was to spend Christmas with his wife’s family.
He
confirmed that the traffic light was red and conceded, during
cross-examination, that he never came to a complete stop before
the
green arrow flickered. He testified that he only looked at the arrow
and did not concentrate on the colour of the traffic light.
It was
put to him that the traffic light would be green when the arrow
flickered green, and that he had a selective memory. He
testified
that he only looked at the arrow and did not focus on the colour of
the traffic lights per se. He conceded that he would
have been able
to see the colour of the traffic lights perse had he concentrated.
[46]
Mr Mahlangu was also asked why he saw the stationary Toyota Corolla
but not the cash transfer vehicle. He answered that the
cash transfer
vehicle was clearly driving at a very high speed and that the speed
limit was 60km an hour. It was put to him that
he simply did not look
out for motor vehicles on the R80 driving in the direction of
Pretoria and he admitted simply following
the Toyota Hi-Ace taxi. He
further testified that there were many vehicles. (The version put to
Mr Mntameka during cross-examination,
namely that he swerved to avoid
the stationary Toyota Corolla, could thus not be accurate as Mr
Mahlangu, on his testimony, never
saw the cash transfer vehicle.)
[47]
When Mr Mahlangu was asked whether he had a clear view, he conceded
that there were no trees on the central barrier pavement
which could
have obstructed his view.
[48]
Further from the cross-examination it transpired that the stationary
Toyota Corolla was parked on the R80, in the left lane,
where there
is a slipway to turn into Aubrey Matlala Street without a driver of a
vehicle having to stop. This of course could
explain why the cash
transfer vehicle would allegedly have swerved to avoid it. Mr
Mahlangu testified that he saw the stationary
Toyota Corolla after he
had turned into Aubrey Matlala Street, but said nothing, as indicated
above, about the case transfer vehicle
swerving.
[49]
Mr Mahlangu also stated that he was not able to dispute the fact that
Mr Mntameka had flicked his vehicle’s lights and
had hooted.
[50]
It was also put to Mr Mahlangu that the longest days are during
December and January, which Mr Mahlangu stated he could not
dispute.
[51]
It was further put to Mr Mahlangu that to state that a collision
occurred between 18h00 and 19h00 was a very vague statement
but he
was adamant that the collision had occurred then.
[52]
Mr Mahlangu once again reiterated that the reason why he did not see
the cash transfer vehicle was because of the speed at
which it was
travelling. Mr Mahlangu further alleged that if the cash transfer
vehicle was indeed travelling at 40km per hour,
that Mr Mntameka
would have seen his VW Polo and that he should have braked. (All of
this evidence was, clearly, speculation.)
[53]
Mr Mahlangu was asked why he thought the Toyota Corolla was
stationary at the point that he said it was. He answered that it
was
because the traffic lights were red. It was put to him that he was
not giving evidence but drawing inferences. It was also
put to him
that because there was a slipway that one could use to turn left into
Aubrey Matlala Road, there would be no necessity
for a motor vehicle
to stop at the intersection.
[54]
It was further put to Mr Mahlangu that the Toyota Corolla was not
facing forward but stood angled to the left. Mr Mahlangu
testified
that did not concentrate on the stationary vehicle’s precise
position. It was put to him that the Toyota Corolla
was stationary
because it had broken down. Mr Mahlangu was in no position to furnish
an answer to this statement and nobody was
called to testify as to
the precise position of the Toyota Corolla and why it was allegedly
stationary. This “evidence”
should therefore be
disregarded.
[55]
The next witness called for the defendant was Elsie Nkosi.
[56]
Ms Nkosi stated that she lived with Mr Mahlangu and was his wife and
that they left Secunda at about 15h00. She stated that
her youngest
daughter aged 13 sat in the back of the VW polo and that she sat in
the passenger seat. She testified that at the
crossing of the R80 and
Aubrey Matlala Street there are three lanes/carriageways and that
they had turned into the third lane/carriageways
intended for drivers
who wish to turn right into Aubrey Matlala Street. She said that the
roads were busy. She testified that they
followed a Toyota Hi-Ace
taxi which turned right and that they were right behind it. She said
they moved slowly and when they reached
the crossing the red light
turned green as well as the arrow. She said she could not remember
anything thereafter. She stated that
she, also, did not see the cash
transfer vehicle and neither did she see it flicking its lights or
hear it hooting.
[57]
Ms Nkosi stated that she could not estimate the time of the collision
correctly. She pertinently testified that the traffic
light was green
when they turned right into Aubrey Matlala Street.
[58]
During cross-examination Ms Nkosi confirmed that she and her husband
had left Secunda at 15h00 because he had worked that day,
and that
they stopped only once for about 30 minutes. She testified that the
highway was quite busy.
[59]
Ms Nkosi said that they were nine paces away from the intersection
(indicating the breadth of the court room) and that they
stopped at
the intersection and only turned right, following the taxi, after the
traffic light turned green. She testified that
she did not think that
there were any other motor vehicles in the intersection. Hence, on
her version, she did not see the Toyota
Corolla motor vehicle. She
also testified that she did not know what the colour of the traffic
lights were for motor vehicles travelling
in the opposite direction
as she could not see the colour of the traffic lights (clearly
because the rear ends faced her).
[60]
It was put to her that they never stopped at the intersection
according to her husband, Mr Mahlangu (the defendant). She answered
that she was not really looking out because they were following the
Toyota Hi-Ace taxi when turning right. She was adamant that
she had
never seen the cash transfer vehicle.
[61]
The next witness called on behalf of the defendant was a Mr Moses
Skosana. He is a 61 year old taxi driver who owns his own
taxi. He
stated that he was at the taxi rank close to the BP garage at 17h00
on 24 December 2009. He stated that the collision
took place at about
18h00. He testified that he did not check the time but still
maintained that the collision took place at 18h00.
He was referred to
a photograph and confirmed that it was the BP garage on the corner of
the R80 and Aubrey Matlala Street. He
stated that just before the
garage (in other words next to the garage, closer to Pretoria) there
was a bus stop and a taxi rank.
He also testified that the taxi rank
was indicated with a red “T”. The taxis were loading
passengers. He testified
that he was talking to customers going to
town and looking into the direction of the intersection because that
was where potential
customers were coming from. He stated that the
cash transfer vehicle skipped a red robot and collided with a VW
Polo. He said that
the cash transfer vehicle just carried on moving
and collided with six taxis. The taxis were loading passengers. He
said his taxi
was also damaged and that the sliding door of his taxi
was dislodged. The cash transfer vehicle then came to a stop.
Onlookers
streamed to the scene and he said he panicked because two
taxi drivers were lying dead on the ground. He felt weak with shock
and
sat down. He was adamant that the robot was red for the cash
transfer vehicle.
[62]
Mr Skosana reiterated that six taxis were damaged. Four were standing
parallel, the fronts of the taxis facing the R80 and
that the other
two taxis were parked parallel, and that his taxi was parked behind
the first taxi parked parallel to the street,
and which was closest
to the intersection. He disputed that the cash transfer vehicle was
driving at 40km an hour. He testified
that if this were accurate the
cash transfer vehicle would have been able to stop after the
collision with the VW Polo. He disputed
that the onlookers who
flocked to the scene threatened to burn the cash transfer vehicle.
[63]
Mr Skosana was asked, in cross-examination, how it came about that he
was a witness. He stated that he did not have an attorney
but did
know that Mr Mahlangu was coming to court and thus became a witness
for the defendant. He stated that it took a long time
to fill the
taxi as it only became busy at 19h00. He stated that the road was not
very busy before then.
[64]
Mr Skosana denied, as Mr Mahlangu had testified, that the accident
could have taken place at 18h00 because the sun had not
yet set. He
had no idea as to the time when the collision took place. He
testified that the sun was only beginning to set. (How
one should
reconcile this evidence with his evidence-in-chief, is unclear.)
[62]
Mr Skosana stated that he was looking in the direction of Soshanguve
as that is where potential passengers would come from.
He reiterated
that the traffic lights were red for the cash transfer vehicle.
[63]
It was put to Mr Skosana that he was blatantly lying as the rear of
the traffic lights was facing him - which fact he conceded.
He was
forced to agree that he could not see the colour of the traffic
lights facing the cash transfer vehicle. Mr Skosana said,
however,
that the lights were synchronised. If they were red for the VW Polo
vehicle, they would, similarly, be red for the cash
transfer vehicle.
[64]
Mr Skosana also conceded that he could be mistaken as to the time
when the collision took place because he does not have a
watch.
[65]
Mr Skosana stated that the VW Polo and the taxi that it was following
stopped first for a short while and then the arrow turned
green and
they entered the intersection. It was put to Mr Skosana that a
witness who was a few paces away had testified that the
VW Polo had
never stopped.
[66]
Mr Skosana answered that when the light turned green a taxi turned
right and the VW Polo vehicle followed.
[70]
It was also put to Mr Skosana that the cash transfer vehicle is a
very heavy vehicle and it would not be able to stop immediately.
Analysis of evidence
[71]
It was argued that the version of the plaintiff’s driver, Mr
Mntameka, was more probable than that of the defendant,
given the two
opposing versions. It was argued by Mr Theron that Mr Mntameka did
not contradict himself and that his estimation
of when the collision
took place was accurate. It was pointed out that his version was
supported by Mr Doctor Masisi’s evidence.
(This was not an
accurate submission in all respects as Mr Masisi’s had stated
that Mr Mntameka has not braked but had swerved.)
It was further
emphasised that he was an honest witness who did not seek to
elaborate on facts which he did not know. It was also
emphasised that
if a Toyota Corolla was parked where the VW Polo vehicle’s
driver (the defendant) stated it was, it would
be precisely at the
traffic light on the left hand side of the R80 but that that could
not be accurate as it would have turned
left using the slipway.
Furthermore, the VW Polo driver could only see the green arrow and
not the green traffic light and therefore
demonstrated a selective
memory. It was emphasised that the VW Polo vehicle’s driver
also conceded that he did not fully
stop and simply followed the
Toyota Hi-Ace taxi when it turned right. He also contradicted himself
regarding the colour of the
traffic light. On one version it was red,
because he stopped. On another version, he never looked at the
traffic light, only at
the colour of the arrow.
[72]
It was further emphasised that the defendant admitted that he focused
on the arrow only and did not look at the traffic tights
per se.
Elsie Nkosi stated that she did not see any other motor vehicles in
the intersection (yet the Toyota Corolla should have
been visible to
her if it were standing where Mr Mahlangu stated it did). Ms Nkosi
said that both traffic lights were visible to
her (and yet she did
not see the Toyota Corolla.)
[73]
Furthermore, the defendant’s witness Mr Skosana was clearly
also mistaken in believing that the defendant stopped at
traffic
lights for a short while and then turned right, following the taxi.
He was also far away from the scene of the collision,
talking to
customers, on his own version. He also conceded that he could not see
the colour of the traffic lights facing the cash
transfer vehicle and
could be mistaken regarding the time of the accident. In general, his
evidence was unsatisfactory and clearly
based on perceptions rather
than on what he had actually witnessed. It was further submitted that
Mr Skosana had probably discussed
the matter with the defendant.
Their time estimate of the collision was also erroneous. It was
argued that there were simply too
many contradictions in the
defendant’s version.
[74]
Advocate Niemann, counsel for the defendant, emphasised that the
driver of the plaintiffs motor vehicle had no independent
witnesses
to collaborate his version. He emphasised that the speed at which the
cash transfer vehicle must have been travelling
must have been high
because it only came to a rest 20 to 30 metres beyond the point of
collision with the VW Polo vehicle. He stated
that this could not be
attributed to the weight of the vehicle only, but had to relate to
the speed at which the vehicle was travelling.
He further argued that
it was difficult to state, with any certainty, how far away the VW
Polo was from the plaintiff’s motor
vehicle when it executed
the turn. He emphasised, that neither the driver of the cash transfer
vehicle nor his passenger, who testified,
saw the VW Polo until the
moment of impact.
[75]
The court agrees with the plaintiffs counsel that the cash transfer
vehicle’s driver and his passenger were credible
witnesses who
openly admitted that they did not see the VW Polo. Clearly, their
attention was focused on the Hi-Ace taxi which
can be understood,
given the circumstances. Their version of the time when the collision
took place was also much more credible
than those of the defendant
and his witnesses. The court disregards the evidence of the expert
witness due to the fact that he
could not testify regarding the
flickering arrow’s time sequences on 24 December 2009. The
evidence of the witnesses for
the plaintiff to the effect that the
traffic light was green for them is plausible. The preponderance of
probabilities also favours
the plaintiffs version, because the
defendant admitted not looking at the colour of the traffic light but
simply following the
Toyota Hi-Ace taxi. His version regarding a
stationary Toyota Corolla, was not borne out by his passenger, his
wife. Furthermore
it was common cause that a Toyota Hi-Ace taxi
preceded the VW Polo and, on the probabilities, the VW Polo closely
followed the
Toyota Hi-Ace taxi. Mr Skosana; evidence was clearly
based on perceptions, and should be disregarded.
Legal
principles
[76]
How to deal with two mutually destructible versions is discussed in
the case of National Employers’ General Insurance
Co Ltd v
Jagers
1984 (4) SA 437
(E) at 444E-G, where Eksteen J held that: -
"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 satisfies 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 plaintiffs 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 plaintiffs 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 defendants version is false.
This
view seems to me to be in general accordance with the views expressed
by COETZEE J in Koster Ko- operatiewe Landboumaatskappy
Bpk v
Suid-Afrikaanse Spoorwee en Hawens
1974 (4) SA 420
(W) and African
Eagle
Assurance Co Ltd v Cainer
1980 (2) SA 234
(W). / would merely stress
however that when in such circumstances one talks about a plaintiff
having discharged the onus which
rested upon him on a balance of
probabilities one really means that the Court is satisfied on a
balance of probabilities that he
was telling the truth and that his
version was therefore acceptable. It does not seem to me to be
desirable for a Court first to
consider the question of the
credibility of the witnesses as the trial Judge did in the present
case, and then, having concluded
that enquiry, to consider the
probabilities of the case, as though the two aspects constitute
separate fields of enquiry, in fact,
as / have pointed out, it is
only where a consideration of the probabilities fails to indicate
where the truth probably lies, that
recourse is had to an estimate of
relative credibility apart from the probabilities
[77]
In the matter of Ruthenberg v Otto
1974 (2) SA 268
(C) it was
held
that in the absence of some reasonable explanation as to how a
collision occurred, the driver who takes a right-angle right-hand
turn and places his vehicle in the path of an oncoming vehicle which
he does not succeed in avoiding is prima facie in the wrong
(at page
268C).
[78]
In Sierborger v South African Railways and Harbours
1960 (1)
SA
498
(A) it was held at 505B-505D that a driver has a general duty
whilst driving along a road to keep a look-out ahead to observe
traffic
in the road he drives but also, as he approaches a
cross-section, traffic which might emerge from the cross-section: -
A
driver of a vehicle proceeding in this latter direction does not,
with reference to a vehicle whose driver has signalled an intention
to turn across his path and who is directing his vehicle towards the
middle of the road preparatory to doing so, incur an obligation
to
stop or slow down. Certainly he must keep such vehicle under
observation and as soon as it is dear that, despite the
inopportuneness
of the moment; it intends to cross in front of him,
he must take all reasonable steps that may be necessary to avoid
colliding
with it"
[79]
A dictum, along the same lines, is to be found in Old Mutual Fire &
General Insurance Co of Rhodesia (Pvt) Ltd and Others
v Britz and
Another
1976 (2) SA 650
(RA) at 652C-F: -
“
What
has got to be shown here, therefore, is not whether Britz, by driving
at the speed he did, was negligent in the abstract, but
that his
negligence consisted of a breach of duty of care, which he owed to
O'Connor, McKerron, 7th ed., p. 36, is to the same
effect. In order
for Britz to be found guilty of breaching this duty of care, it seems
to me it must be shown that in the circumstances
he might reasonably
have foreseen the possibility that O'Connor, without signalling;
would suddenly turn across his path, because
if O'Connor had not done
that there would have been no accident In these circumstances. it
seems to me it is expecting too high
a standard of care to expect a
motorist to anticipate that another motorist approaching him in the
opposite direction, will suddenly,
without any warning, turn right
across his path. On the first approach, therefore, Britz was not
negligent; when negligence is
considered in the light of his duty to
O'Connor, and for the same reasons, he did not fail to take
reasonable steps for his own
safety." [emphasis added]
[80]
In the matter of Biddlecombe v Road Accident Fund (797/10)
[2011]
ZASCA 225
(November 2011) the following was stated: -
Drivers
of southbound vehicles could not proceed on the blithe assumption
that such an event would not happen, as it is one of the
ordinary
risks of everyday driving. In a perfect world it would not happen,
but experience teaches us that it does. If the traffic
lights had
changed to red, as Mr Motaung said they had, the position is
reversed. It was perfectly proper for him to expect to
be able to
proceed to complete his turn before traffic in River Drive could
proceed, but he could not simply assume that traffic
in Maiibongwe
Drive would stop to enable him to do so. The phenomenon of vehicles
speeding up to try and go through traffic lights
as they change from
green to amber and amber to red is sufficiently commonplace for any
driver in Mr Motaung’s position to
recognise it as a risk and
guard against it."
[81]
In Smith v SA Eagle Insurance Co Ltd
1986 (2) SA 314
(SE)
the
following is further stated: -
“
To
return therefore to the enquiry as to whether, if Du Preez had seen
the signal, any action was at that stage required of him
to answer
seems to be \'none other than to continue to keep a look-out'. There
was no obligation upon him to stop or even slow
down because of
having seen the signal. In parentheses, it need scarcely be remarked,
that Du Preez's 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. The heavy flow of
urban traffic would be seriously interfered with if, on each occasion
when a signal is exhibited
by a motorist intending to turn across the
line of traffic, such traffic were required to come to a stop or slow
down. Such signal
is of course a notification to following and
oncoming traffic that
the
driver intends to turn across the iine of traffic, but equally
implicit in it is that he intends to do so at an opportune moment
and
in a reasonable manner It is also, more particularly, a signal to
following traffic that the driver in question intends to
move over
towards the middle of the road preparatory to choosing the opportune
moment to cross over on to that half of the road
being used by
traffic coming in the opposite direction. A driver of a vehicle
proceeding in this latter direction does not, with
reference to a
vehicle whose driver has signalled an intention to turn across his
path and who is directing his vehicle towards
the middle of the road
preparatory to doing so, incur an obligation to stop or slow down.
Certainly he must keep such vehicle under
observation and as soon as
it is dear that, despite the inopportuneness of the moment, it
intends to cross in front of him he must
take all reasonable steps
that may be necessary to avoid colliding with it"
[82]
On the preponderance of probabilities, the plaintiffs driver had
every right to proceed along the R80 highway at the speed
of 60km an
hour. The evidence of the driver was that he was driving at 40km per
hour. Mathematically, this means that he was driving
at approximately
11.1 metres per second. Within two and a half seconds he thus drove
27.7 metres. If he were driving at 60km an
hour, he would advance
approximately
16.6
metres per second. Within two seconds he would thus drive
approximately 33 metres. Taking into account that the driver of the
cash transfer vehicle required reaction time, it would appear that
the Hi-Ace taxi and the VW Polo simply drove into the pathway
of the
cash transfer vehicle at an inopportune time.
[83]
What puzzles the court, though, is that if the arrow was flickering
for the Hi-Ace Taxi and the VW Polo, the traffic lights
would only
just have turned green and the question arises as to why the cash
transfer vehicle had not slowed down to stop at the
traffic lights
which must have been red, at first, when it approached the
intersection and turned green moments before the collision
occurred.
[84]
Questions along these lines were not posed to Mr Mntakwena or Mr
Masisi. It is probable that the arrow was not flickering and
that the
taxi and the VW Polo turned right after the arrow had stopped
flickering and that the traffic light was hence green at
an
inopportune moment for them, as traffic was still approaching in the
direction of the Pretoria on the carriageway to Pretoria.
However,
the defendant and his wife were adamant that the arrow was flickering
green. Yet, once the defendant conceded that he
did not keep a
look-out for oncoming traffic and “blindly” followed the
taxi when turning, he admitted to being negligent.
[85]
The evidence of the cash transfer vehicle’s driver was that he
had his foot on the brake pedal when the taxi turned into
his lane at
the intersection where Aubrey Matlala Street crosses the R80. This
should have alerted him to the fact that he should
be on the
look-out. In any event, if the defendant is to be believed, the arrow
had just turned green and this, depending on how
long the arrow
flickers for traffic driving from Pretoria to Soshanguve on the R80,
the traffic light must have been red for the
plaintiff’s driver
or barely have turned green. However both he and his fellow passenger
were adamant that the light was
green.
[86]
The case law is to the effect that a driver has a certain duty of
care when approaching an intersection, in the knowledge that
there
may be traffic wishing to turn into his pathway. On his own version,
the plaintiff’s driver did slow down when the
Hi- Ace taxi
turned right into his pathway and he hooted and flicked his lights.
The Toyota Hi-Ace taxi still had sufficient time
to complete the
manoeuvre. This should have alerted the driver to the very real
possibility of further motor vehicles doing the
same but both on his
own version and that of his passenger, Mr Masisi, the collision with
the VW Polo was inevitable as it was
right behind the Toyota Hi-Ace
taxi.
Conclusion
[87]
On the evidence, it is clear that an apportionment in respect of
negligence is called for. The court was urged by the defendant’s
counsel to hold that the probabilities were evenly balanced, and that
the plaintiff’s action should be dismissed, or that
absolution
of the instance should be granted.
[88
However, the two witnesses for the plaintiff (who were in the cash
transfer vehicle) were honest and their version credible
and
probable, even though there were small discrepancies between their
versions, whereas the defendant’s version had more
discrepancies, a cardinal one being that he had stopped at the red
traffic light, whereas he was forced to concede during
cross-examination
that he did not even see the colour of the traffic
light, nor the vehicles coming from the opposite direction, nor did
he stop
fully at the red traffic light as he had stated in his
evidence in chief. This, of course, by necessity, means that he did
not
look at the colour of the traffic light nor did he keep a
look-out for oncoming traffic - a fact which he conceded.
[89]
It is thus held, that on a preponderance of probabilities, that the
Toyota Hi-Ace taxi “took a chance” by turning
into the
pathway of the plaintiffs cash transfer vehicle at an inopportune
moment and that the defendant, the driver of the VW
Polo, blindly
followed suit. On a preponderance of possibilities, Mr Mntameka could
not avoid a collision with the VW Polo as it
was simply too close and
had not even stopped properly before turning.
[90]
However, the defendant’s negligence was not the sole cause of
the collision - the plaintiff’s negligence contributed
to the
collision occurring in not radically reducing his speed as he
approached the intersection. It is one of the risks of ordinary
driving that the drivers of motor vehicles speed-up to turn at
inopportune moments, which is precisely what the Hi-Ace taxi did
with
the VW Polo following suit. Mr Mntameka testified that he saw the
Toyota Hi-Ace taxi hesitating whether it should stop or
turn. That
should have alerted him to the immediate need to slow down
drastically. On his own testimony there was enough time for
him to
see the taxi before it turned, whilst it turned, and when it had
completed its turn. It is difficult to understand why the
plaintiff’s
driver did not see the VW Polo.
[91]
The court therefore believes it appropriate to apportion the blame
between the two parties as follows: 25% negligence of the
part of the
plaintiff’s driver and 75% negligence on the part of the
defendant.
Costs
[92]
It remains unexplained why the plaintiff instituted proceedings in
this court. This action falls within the jurisdiction of
the civil
magistrate’s regional court as the underlying amount is less
than R300 000.00 rand. The lack of jurisdiction on
this ground can be
remedied by an appropriate costs order.
[93]
The plaintiff was substantially successful and hence, in the exercise
of its discretion, the court is of the opinion that the
defendant
should pay the costs of the hearing on the merits of the action.
Order
In
the event, the following order is made: -
1.
Blame, in the form of negligence is to be apportioned between the
parties, the plaintiff being held 25% negligent and the defendant
75%
in causing the collision in issue in these proceedings.
2.
The defendant to pay the costs of the hearing in respect of the
merits on a party and party basis on the scale of a magistrate’s
court.
3.
No costs regarding the Plaintiff’s expert witness are allowed.
MM
JANSEN AJ
ACTING
JUDGE OF THE HIGH COURT
ATTORNEYS
FOR THE PLAINTIFF HWTHERON INC.
536
Makou Street Monument Park X2 Pretoria
Tel:
(012)347 2000
Fax:
(012) 347-2013
REF:
MR THERON/HRM022
COUNSEL
FOR THE PLAINTIFF
Mr
H W Theron
ATTORNEYS
FOR THE DEFENDANT CRONJE, DE WAAL - SKHOSANA INC.
REF:
S SKHOSANA/CS/M9042 c/o OJ BOTHA ATTORNEYS
198
Dr Van der Merwe Street
Montana
Pretoria
0001
Tel:
(012) 548-7531
Fax:
(086) 633 9537
REF:
SONJA BREEDT
COUNSEL
FOR THE DEFENDANT Advocate PJ NIEMANN