MEC for Public Works Roads and Transport Free State v Esterhuizen and Others (488/05) [2006] ZASCA 97; 2007 (1) SA 201 (SCA) (7 September 2006)

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[2006] ZASCA 97
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MEC for Public Works Roads and Transport Free State v Esterhuizen and Others (488/05) [2006] ZASCA 97; 2007 (1) SA 201 (SCA) (7 September 2006)

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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
Case No: 488/05
NOT REPORTABLE
In the matter between:
MEC FOR PUBLIC WORKS,
ROADS AND
TRANSPORT, FREE STATE
APPELLANT
v
THEOPHILUS ESTERHUIZEN
FIRST RESPONDENT
MARYKE
VAN ROOYEN NO SECOND RESPONDENT
REINER
ZIETSMAN THIRD RESPONDENT
AREND
HENDRIK ADRIAANSE FOURTH RESPONDENT
Coram: Nugent, Cloete JJA
and Cachalia AJA
Heard: 28
August 2006
Delivered: 7 September
2006
Summary: Serious
allegations of impropriety made against the trial judge. The
allegations were abandoned on appeal without apology
or explanation.
Punitive costs order as between attorney and client imposed as a mark
of court’s opprobrium.
Neutral citation: This case may be
cited as
MEC for Public Works, Roads and Transport v Esterhuizen
[2006] SCA 96 (RSA).
______________________________________________________________
JUDGMENT
_____________________________________________________
CACHALIA AJA
[1] This is an appeal against a
finding by the Free State Provincial Division (Van Coppenhagen J)
that the appellant’s negligence
caused a motor vehicle accident on
the R64 road between Dealesville and Bloemfontein on the evening of
22 June 2001.
[2] The court found that the accident
occurred in the following circumstances: Driving from west to east
the driver (‘Joubert’)
had, after observing a small buck in front
of him, taken evasive action by veering to the left thereby bringing
the two wheels on
the left side of the vehicle off the tar onto the
gravel verge on the northern side of the road while the two wheels on
the vehicle’s
right side, i.e., the southern side remained on the
tar. As Joubert attempted to regain the tar he felt a jerking action
on his steering
wheel and then lost control of the vehicle. The
vehicle swerved to the right across the road, struck an embankment on
the southern
side of the road, rolled over and came to rest on its
wheels in a field. The court found as a fact that the point at which
Joubert
had attempted to bring the two left wheels back on to the tar
had a dangerous difference in height between the gravel and the tar.
This, it concluded, was the cause of the jerking action of the
steering wheel which resulted in Joubert’s loss of control of the
vehicle. The appellant was held liable because it had failed properly
to maintain the road.
[3] In the course of argument in the
court below the appellant’s counsel submitted that it was
improbable that the accident had
occurred in that way. He submitted
that it was probable that Joubert had never veered to the left of the
road but had swerved to
the right to avoid the animal and lost
control of the vehicle at a point further west from where the court
found the incident had
occurred. Support for this submission was
sought on three grounds. The first was that a police plan of the
incident apparently compiled
on the night of the incident, but never
proved in evidence, made no reference to the vehicle having veered to
the left before leaving
the road on the right side. Secondly, a
statement that had been compiled by the attorney of one of the
vehicle’s occupants for
submission to the Road Accident Fund also
bore no such reference. Finally, reliance was sought to be placed on
the discovery by the
appellant’s expert witness several years after
the incident, of parts of vehicle wreckage in the ploughed fields
next to the road
at a different point to where the court found that
the incident had happened. There was no direct evidence that the
wreckage emanated
from the vehicle involved in this accident, and
that fact the appellant’s counsel sought to establish by inference.
[4] The court below rejected this
submission on the basis that it had never in any shape or form been
put to any of the respondent’s
witnesses. On the contrary, it
observed that the cross-examination of all the witnesses by the
appellant’s counsel was based on
the premise that the accident
occurred at the place and in the circumstances referred to in para
[2] above. At a stage during the
respondents’ (the plaintiffs in
the court below) case in the court below counsel for the appellant
(the defendant in the court
below) applied for the witnesses who had
already testified on the respondents’ behalf to be recalled to put
its version to them.
This was declined at that stage, the trial judge
indicating that another such application could be entertained at the
end of the
appellant’s case. No such application was made by the
appellant’s counsel, nor was the version put to experts called to
testify
on behalf of the respondents.
[5] In this court the appellants
persisted in the argument that the vehicle did not leave the road to
the left at all, but that Joubert
swerved to the right to avoid the
animal and lost control of the vehicle. As pointed out by the learned
judge in the court below,
that hypothesis of how the accident
occurred is in direct conflict with the evidence of Joubert, and it
was never put to him that
that is how the accident occurred. That
apart, a Mr Payne visited the site of the accident a few days after
it had occurred, in the
company of Joubert and his father. He said
that he observed a fresh track leaving the left edge of the road,
proceeding some way
along the gravel verge, and then again regaining
the tar road. Moreover, he said that on the right hand side of the
road the grass
had been ploughed up, consistently with a vehicle
having left the road at that point, and that the point at which this
occurred was
consistent with the vehicle having veered across the
road after mounting the left edge. His observations, which were
altogether consistent
with Joubert’s evidence as to how the
accident occurred, were not placed in issue at all. (Mr Payne was not
even cross-examined.)
Indeed, the whole case was conducted in the
trial court on the basis that Joubert’s evidence as to what had
occurred was not in
dispute. To suggest in those circumstances, and
then on tenuous grounds, that the accident did not occur in that
manner at all, is
quite without merit. In my view the argument put
forward on behalf of the appellants, and repeated in this court, was
rightly rejected
by the court below. As to the remaining findings of
the court below, they are dealt with in its thorough and
well-considered judgment,
and were not placed in issue before us.
[6] In my view this appeal has no
merit. Indeed, the reason that it has reached this court is only
that, in support of their application
for leave to appeal, the
appellant’s legal representatives impugned the conduct of the trial
judge in conducting the trial. The
trial judge made it clear in his
judgment granting leave to appeal that it was for that reason alone
that he considered himself bound
to grant leave to appeal. But for
the allegations that were made in relation to the conduct of the
trial judge I am satisfied that
leave to appeal would also have been
refused by this court, and that the appeal would not have come before
this court at all.
[7] The
grounds upon which the conduct of the trial judge was attacked are
set out in the notice of appeal in the following terms:
‘
Die verhoorhof het
onreëlmatig gehandel:
1.1 deur nie geregtigheid
te laat geskied nie en dit ook nie duidelik te laat voorkom dat
geregtigheid wel geskied nie;
1.2 deur onredelike
tydsdruk op Applikant te plaas in die aanbieding van Applikant se
saak en in besonder tydens die stellings wat
namens Applikant aan
Respondente se deskundige getuies gemaak is;
1.3 deur onredelik in te
meng met die aanbieding van Applikant se saak;
1.4 deurdat sy optrede
tydens die verhoor gedui het op die afwesigheid van objektiwiteit,
onbevangendheid en relatiewe onbetrokkenheid.’
[8] There is not the slightest support
in the record of the trial for any of these allegations, and, indeed,
they were not pursued
before us, nor in the heads of argument. We
were told in the course of argument that they were founded upon
allegations that were
made in an affidavit that the appellant sought
to introduce in the course of applying for leave to appeal, but which
the court below
refused to receive. What we were also told, however,
and this was not placed in dispute by the appellants’ counsel, was
that that
affidavit dealt exclusively with matters that had occurred
in the courtroom during the course of the trial, all of which appear
from
the record, and that the affidavit that was tendered to the
trial court added nothing to what was already before us.
[9] I have already pointed out that
the allegations that were made against the trial judge were
altogether groundless, so much so
that they were not persisted in at
all, and were expressly retracted in the course argument during the
appeal. It is unacceptable
that allegations of impropriety can be
made against a judge in so cavalier a fashion. The effect of this has
been that the respondents
have been put through considerable and
unnecessary expense, inconvenience and delay and this court has had
to expend scarce judicial
resources on an appeal utterly devoid of
any merit. As a mark of opprobrium, I think a punitive costs order
should be imposed on
the scale as between attorney and client.
[10] Counsel for the respondents
submitted that the appropriate costs order should be on the scale as
between attorney and own client.
However I do no think that the
circumstances described above can be considered so extraordinary that
they warrant such an order.
1
[11] I make the following order:
The appeal is dismissed with costs on
the scale as between attorney and client, such costs to include the
costs of two counsel.
______________
A
CACHALIA
ACTING
JUDGE OF APPEAL
CONCUR:
NUGENT
JA
CLOETE
JA
1
See
in this regard
Sentrachem Ltd v Prinsloo
1997 (2) SA 1
(A)
22B-D.