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[2013] ZAFSHC 205
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Makola v Imperial Group (Pty) Ltd (A57/2013) [2013] ZAFSHC 205 (21 November 2013)
IN THE HIGH COURT
OF SOUTH AFRICA
FREE STATE
DIVISION, BLOEMFONTEIN
Appeal number: A57/2013
In the matter between:-
MOTLHAGO FLORENCE
MAKOLA
...........................................
Appellant
and
IMPERIAL GROUP
(PTY) LTD
...............................................
Respondent
CORAM:
RAMPAI, AJP
et
SEPATO, AJ
JUDGMENT
BY:
RAMPAI, AJP
HEARD
ON:
18 AUGUST 2013
DELIVERED
ON:
21 NOVEMBER 2013
[1] This was an appeal by
the erstwhile defendant against the judgment of the district
magistrate. The judgment appealed against
was delivered in the
Bloemfontein Magistrate Court on 12 November 2008. The respondent,
who was the erstwhile plaintiff in the
court
a quo
opposed the
appeal.
[2] Before us there were
also two condonation applications. The first was brought by the
appellant since her appeal was filed out
of time. The respondent
opposed the application. The second was brought by the respondent
since his heads of argument were filed
out of time. The appellant did
not oppose the application.
[3] In the first place I
deal with the respondent’s condonation application. The
respondent’s heads of argument were
filed out of time. They
were one day late. The appellant did not oppose the respondent’s
application. The respondent took
immediate steps to address its
failure to strictly comply with the rules. Its heads of argument were
filed within the shortest
possible time after the expiry of the
formal time-line. The one day delay caused no serious prejudice to
the appellant hence the
application was unopposed. I would,
therefore, condone the respondent’s failure to comply with the
rule.
[4] In the second place I
deal with the appellant’s condonation application. She breached
uniform rule 50(4) and uniform rule
50(7). The appeal was filed out
of time and so was the record.
[5] In terms of court
rule 27 any time period maybe extended by agreement between the
parties or by the court upon application and
on good cause shown. In
the instant matter there was obviously no agreement between the
parties for the relaxation of the provisions
of rule 54 or rule 57.
That being the case, we were called upon to determine whether good
cause has indeed been demonstrated by
the appellant.
[6] Although a hard and
fast definition of the concept of good cause cannot be formulated our
courts have in a number of decisions
proclaimed certain principles in
terms of which a court may exercise its discretion in favour of a
party applying for condonation.
In
Van Wyk v Unitas Hospital
(Open Democratic Advise Centre
amicus curiae)
[2007] ZACC 24
;
2008 (2) SA 472
CC at 477 A – B, the court determined:
“
This Court
has held that the standard for considering an application for
condonation is the interests of justice. Whether it is
in the
interest of justice to grant condonation depends upon the facts and
circumstances of each case. Factors that are relevant
to this enquiry
include, but are not limited to the nature of the relief sought, the
extent and cause of the delay, the effect
of the delay on the
administration of justice and other litigants, the reasonableness of
the explanation for the delay, the importance
of the issue to be
raised in the intended appeal and the prospects of success.”
[7] The applicable
factors are inter related. In considering an application of this
nature the court will take into consideration
that those factors
should be collectively and not disjointly considered –
United
Plant Hire (Pty) Ltd v Hills
1976 (1) SA 717
(A). That then
is the correct approach.
[8] Upon closer
examination of the written heads and indeed during the course of oral
argument it became quite apparent that the
thrust of the argument
revolved around only a few of those factors. Therefore I consider it
unnecessary in this matter to deal
with a great variety of the
applicable factors. Most of those factors were not in issue, in my
view.
[9] An applicant who
applies for condonation must give a full explanation for the delay.
The explanation so given must cover the
entire period of the delay.
Moreover, the explanation given must be reasonable –
Van
Wyk v Unitas Hospital
,
supra
at 477E – G.
[10] At the heart of the
current matter was a crucial question pertaining to the
reasonableness or otherwise of the explanation
offered for the delay
as well as the extent and cause of such delay.
[11] Counsel for the
appellant, Mr Williams, did not really deal with the substance of the
issues other than to state that the circumstances
which led to the
delay were set out by appellant’s attorney in the supporting
affidavit. On the strength of such credentials
of an attorney,
counsel submitted that a proper case had been made out which
justified that the appellant’s default be condoned.
[12] Counsel for the
respondent, Mr Groenewald, sharply differed. He argued that no such
case had been made out. He argued that
the appellant’s
explanation for the delay since the order on the merits was granted
was characterised by baldness, sketchiness
and vagueness. He
submitted that the explanation given by the appellant fell short of
the requirements as stipulated in
Van Wyk v Unitas Hospital
supra
. Accordingly counsel urged us to refuse the appellant’s
application for condonation.
[13] I now turn to
consider the appellant’s case as regards the condonation
application. On her behalf it was averred that
after receipt of the
said order Krino Transcription Services was instructed to transcribe
the record of the court proceedings in
the court below. However, the
appellant failed to disclose the dates on which, the court order was
received. That was the first
critique. The lack of details concerning
the date on which Krino was accordingly instructed was the second
critique. The appellant’s
attorney further stated that on
receipt of the transcribed record he discovered that the record was
incomplete. Again the date
on which the transcribed record was
received by the attorney was amiss. This was the third critique.
[14] In an attempt to
reconstruct the record or to complete the record the appellant’s
attorney approached the trial magistrate
who promised that she would
try to locate her notes. Once again the appellant failed to indicate
on which date the magistrate was
approached. To that extent the
appellant’s explanation was indeed vague. Together with the
respondent’s attorney the
appellant’s attorney again
approached the trial magistrate somewhere in June 2012.
[15] Time went by. On the
27 August 2012 the appellant’s attorney wrote to the
respondent’s attorney to enquire whether
the magistrate had
completed the reconstruction of the record. I was amazed. I could not
understand why the appellant’s attorney
did not directly
enquire from the magistrate instead. During September 2012 the
respondent’s attorney advised the appellant’s
attorney
that the respondent was no longer prepared to wait for the
reconstruction of the record. That response was not surprising.
Subsequently and on 26 October 2012 the incomplete record was served
on the respondent.
[16] Almost two months
later, in December 2012 the respondent’s attorneys received,
from the appellant’s attorney, handwritten
notes of the trial
proceedings together with a copy of the appellant’s heads of
argument.
[17] On 5
th
March 2013 the appellant served the current condonation application
on the respondent. The appellant’s application was accordingly
filed almost 27 months since the order appealed against was made.
[18] The appellant did
not comply with the rules. She failed to give a full explanation for
the delay. The explanation given did
not cover the entire period of
the delay. The explanation was characterised by vagueness as well as
inadequate reasons for the
prolonged delay – See
Van Wyk
v Unitas Hospital
supra.
Accordingly I have come to
the conclusion that the explanation for the delay lacked the required
measure of reasonableness and
adequacy. There were several
unexplained gabs between the date of the order and the date of the
filing of the application. That
alone, however, does not dispose of
the matter.
[19] The inquiry now
shifts to another important consideration, namely whether in the
light of all the factors relevant to the adjudication
of this
condonation application we should nonetheless exercise our discretion
in favour of the grant of the application –
Van Wyk v
Unitas Hospital
supra
and
Santam v Melanie
1962 (4) SA 531
(A). It has to be borne in mind that the enquiry was
not limited to the extent and cause of the delay and the
reasonableness of
the explanation for the delay. Important though
those factors were, there were other equally important factors which
also have
to be taken into account. Notwithstanding the fact that I
have found in favour of the respondent as regards the inadequate
explanation
pertaining to the extent and cause of the delay, as well
as the unreasonableness of the explanation for the delay the
application
cannot be merely dismissed on the strength of those
grounds only. The interests of justice require more.
[20] The case of the
appellant was primarily that the court
a quo
erred in
apportioning, as it did, the respective blame or degree of negligence
between the two drivers. That was the primary nature
of the attack
mounted by way of an appeal.
[21] Any form of delay in
the prosecution of an appeal entails inevitably adverse impact on the
administration of justice and on
the other litigants. Although this
is always the case, in this instance the respondent did not challenge
the condonation application
on that ground. The result is that we
were in the dark as to the actual effect the delay has had on the
respondent as a litigant.
The issue of actual prejudice to the
respondent was never raised either in its written heads of argument
or during the course of
oral argument on appeal. We therefore have to
accept that prejudice, in whatever form it might have manifested
itself, had very
minimal adverse effects on the respondent.
[22] The important issue
to be raised in the intended appeal was whether the respective
negligence of the two drivers was correctly
assessed and the degree
of negligence justly apportioned. As regards that issue I hold a very
firm view, that the appellant had
good prospects of success on
appeal.
[23] Having carefully
considered all the relevant factors applicable to this application
for condonation I am inclined to think
that those factors favourable
to the appellant such as the good prospects of success, substantially
eclipse those factors unfavourable
to her. In the circumstances I am
of the firm view that good cause exists which requires that the
appellant’s default be
condoned. I would, therefore, condone
the appellant’s failure to comply. The interests of justice
dictate that we should.
[24] On appeal before us
it was argued that the court
a quo
erred in finding that the
appellant was the sole cause of the collision. It was submitted that
the negligent driving of the respondent’s
driver was the
contributory cause of the collision. The respondent, however,
contended that the court
a quo
was correct in its finding that
the collision was caused by the exclusive negligence of the
appellant. It was argued that she failed
to keep a proper look-out as
a result of which she failed to stop at the stop sign, failed to
yield and that she attempted to cross
the path of the respondent’s
driver at an inopportune moment when it was dangerous to do so.
[25] Mr Williams, counsel
for the appellant argued that the court
a quo
erred in finding
that the respondent’s driver was completely not to blame for
the collision. Counsel submitted that the respondent’s
driver
was grossly negligent in the driving of the respondent’s
vehicle and that such negligence was the main cause of the
collision
between two sedans. Therefore, counsel urged us to uphold the appeal
with costs.
[26] Mr Groenewald,
counsel for the respondent, differed. He argued that the court
a
quo
was correct in its finding that the collision was brought
about by the exclusive negligence of the appellant. Counsel submitted
that the court
a quo
had committed no misdirection.
Accordingly he urged us to dismiss the appeal with costs.
[27] Recognising the
universal truth that motor vehicles are potentially dangerous mobile
machines, the courts have formulated a
body of traffic rules that
seek to define the general driving precautions which a motorist is
expected to observe once she/he sets
such a machine in motion.
[28] To keep a proper
look-out is a basic duty of a motorist –
Butt v Van den
Camp
1982 (3) SA 819
(A).
[29] To drive at a
reasonable speed is another basic duty of a motorist –
Santam
v Strydom
1977 (4) SA 899
(A).
[30] To recognise the
possibility of erratic driving behaviour by other motorist(s) and to
regulate his or her driving conduct in
a way that would reasonably
allow a practical margin for safety –
Woods v
Administrator Transvaal
1960 (1) SA 311
(T) at 314F.
[31] To exercise
reasonable care when approaching dangerous crossing in order to avoid
possible collision with another car entering
a through street from a
side street is an important duty of a motorist –
Robinson
Bros v Henderson
1928 AD 138
on 141 – 142.
[32] To realise that
traveling on a through street gives a motorist a relative and not an
absolute right of way when approaching
an intersection and to have
careful regard to other cars coming from side streets –
Martindale v Wolfaardt
1940 AD 235
on 242 – 245.
[33] To take all
reasonable steps to avoid a collision as soon as it becomes evident
that another motorist’s conduct created
a hazardous situation
on the road –
Solomon v Musset & Bright
1926
AD 427
on 443 – 444.
[34] I now proceed to
examine the findings of the court
a quo
to ascertain whether
there was rational connection between them and the proven facts.
[35] Before I do so I
deem it necessary to give some description of the two streets we are
here dealing with. The respondent’s
driver was travelling
southwards in the through street. He was familiar with the street. He
knew perfectly well that it was a very
busy street. It has to be
accepted, therefor, that he also knew that there was a service street
on the eastern side of the through
street which ran parallel to it.
The eastern service street, as he would have known, was primarily
used for commercial purposes.
[36] Moreover, there was
also another service street running parallel to the through street on
the western side. This too the respondent’s
driver must have
known. The western service street primarily fulfilled a residential
purpose.
[37] The through street
was intersected by a few side streets all the way down. One of those
side streets linked up Lengau Centre
on the western side of through
street and Hamilton on the eastern side. The side street is commonly
known as Gutsche Street. It
is sandwiched by a residential
neighbourhood in the north and the aforesaid provincial centre for
the licencing of the vehicles
and drivers in the south. The scene of
the collision was at that particular point where the side-street
intersects the through
street.
[38] I have mentioned all
those fine and descriptive details about the streets and the scene of
the collision to demonstrate that
the respondent’s driver was
driving on a very busy road and that he knew or ought to have known
the danger spots found on
that road.
[39] Now I turn to the
substantive merits of the appeal. The evidence clearly showed that it
must have been apparent to the respondent’s
driver that the
appellant’s car did not intend to stop between the two traffic
streams after it had disobeyed a stop sign.
The conduct of the
appellant provided warning signals that would have been evident to
any reasonable driver in the position of
the respondent’s
driver that the appellant’s conduct was creating a dangerous
situation. Although the respondent’s
driver must have observed
the offending Cressida driven by the appellant for some time before
the collision he took no practical,
reasonable and appropriate steps,
in good time, in order to avoid the collision.
[40] I am persuaded that
the finding of the court
a quo
to the effect that the actions
of respondent’s driver were adequate in those circumstances and
that he took appropriate steps
to avoid the collision, constituted a
material misdirection. It was a finding which, on the facts and on
appeal, I cannot support.
[41] The respondent’s
driver was driving a sedan, a Volkswagen Caddy. He was traveling in
the southerly direction and on the
inner lane of a dual carriage way.
Prior to the collision he was travelling at an estimated speed of
70km/h at least or 80km/h
at most.
[42] The appellant was
also driving a sedan, a Nissan Cressida, she was driving from west to
east. Her intention was to cross Church
Street. Church Street is one
of the major arteries of the traffic network in the city. It carries
by far bigger volumes of traffic
than the small street on which the
appellant was travelling before the collision. At this particular
intersection the maximum speed
limit in both streets was 60km/h.
[43] The court
a quo
found: firstly, that the respondent noticed the appellant’s car
at the intersection; secondly, that he saw it proceeding
across the
north bound traffic lanes of Church Street; thirdly, that the
appellant did not stop before crossing the north-bound
traffic lanes;
fourthly, that there was a stop sign which required the appellant to
stop before entering Church Street; fifthly
that the respondent’s
driver expected the appellant to stop in the middle of the
intersection before proceeding across the
south-bound traffic lanes
of Church Street; and sixthly, that the appellant did not yield, let
alone stop, before entering the
south bound traffic lanes of Church
Street.
[44] I find it difficult
to ascertain the basis of the expectation by the respondent’s
driver. The danger signals were all
there. It was obvious that the
appellant was unlikely to yield. After all, she had just flagrantly
disobeyed a stop-sign.
[45] The evidence showed
that the respondent’s swerved to his left at the intersection
when he realised that the appellant
was not going to let him pass
first. There and then the Caddy and the Cressida collided. The point
of impact could not be precisely
determined. However, it was common
cause that the point of impact was in one of the two south bound
traffic lanes. It was also
common cause that the speed limit against
the respondent’s driver was 60km/h. It was also undisputed that
at the time of
the collision the respondent’s driver was
travelling at an excessive speed. Moreover, it was also common cause,
that the
respondent’s driver did not slam the brakes of his
vehicle in order to avoid the accident. His evident was that he was
unable
to apply the brakes of his vehicle in order to avoid an
accident as a result of the speed at which he was travelling.
[46] Over and above that
the respondent’s driver took an evasive action by swerving to
the left, the same direction in which
the appellant was travelling.
That, in my view, was an error of judgment. It is probable, in my
view, that the accident might have
been narrowly avoided had the
respondent taken an evasive action to the right instead of going to
the left, as he did. There was
a chance, however slim, that he could
have succeeded in his desperate last attempt to avoid the accident.
His forced move to the
outer lane was doomed to fail
ab initio
.
[47] It was also
undisputed that the appellant first saw the respondent’s
vehicle approaching the intersection from her left.
At that time, so
she testified, the respondent’s vehicle was approximately 200
metres away from the intersection. The appellant
was aware that the
driver of the respondent’s vehicle had a right of way at the
intersection seeing that Church Street was
a principal street.
Furthermore, the appellant was aware that she had to stop before she
could proceed across such major street.
It was her case that she
indeed obeyed the stop sign before she entered Church Street.
[48] She admitted though,
that after taking off from the stop sign, she did not again stop in
the middle of the intersection before
she proceeded further in an
attempt to cross the two south-bound traffic lanes of Church Street
on which the respondent’s
driver was traveling. According to
her she reckoned that it was safe for her to cross because, as she
said, the respondent’s
vehicle was still more than 200 meters
away from her at the time.
[49] Her evidence was
that the respondent’s vehicle crashed into the left front wheel
of her car. Her version that she stopped
before she crossed the
north-bound traffic lanes was false, in my view. So was her evidence
that the respondent’s driver
was still far away at the time she
moved into his path of travel. The probabilities strongly suggest
that she failed to yield before
she entered the inner lane of the
south bound traffic stream precisely because she had just disobeyed a
stop-sign before she crossed
the traffic lanes for the north-bound
traffic stream. Her conduct indicated that she hopelessly failed to
keep a proper look-out
–
Butt v Van den Camp
supra
.
[50] The court
a quo
found that the accident was occasioned by the exclusive negligent
driving of the appellant. It was precisely that finding which
precipitated the current appeal. The crucial question in the appeal
was whether the aforesaid principal finding of the court
a quo
was on the proven facts legally sustainable.
[51] On his own say-so,
the respondent’s driver was fully aware that the street in
which he was driving was no ordinary street
but a very busy street
which carries heavy traffic volumes. The evidence showed that he saw
the Cressida and that he kept it under
surveillance from the moment
he saw it ignoring the stop sign on the western side of the through
street. The appellant’s
vehicle came from the direction of
Lengau Centre. He was therefore aware of its impending crossing of
his path of travel. The conduct
of the appellant would have alerted
any careful and reasonable driver that a potentially dangerous
situation was developing ahead
of him. The conduct of the appellant
should have made the respondent’s driver aware that something
dangerous might happen
ahead of him.
[52] He foresaw imminent
danger, he had no reason to assume that the appellant, who had
flagrantly disobeyed a stop sign, would
obey a road marking to yield
and to let him pass before she crossed the south-bound traffic lanes
on which he was travelling. According
to the evidence, the appellant
had done nothing to justify the assumption made by the respondent’s
driver that she would
respect his right of way. Notwithstanding his
observation of a dangerously erratic driving behaviour ahead, he
failed to regulate
his driving conduct accordingly. He did nothing to
allow a practical margin of safety –
Woods
supra
.
[53] As was to be
expected the appellant’s Cressida never slowed down in the
middle of the two traffic streams, never yielded
but simply proceeded
across the path of the respondent’s driver. In those
circumstances any careful driver would have realised
and would have
foreseen the great possibility that the Cressida driven by the
appellant was not going to stop before moving across
the through
street. In spite of the appellant clearly negligent driving, the
respondent’s driver made absolutely no attempt
to reduce speed.
He failed to slam the brakes of his vehicle at all. Instead he
swerved to his left. Perhaps the collision could
have been avoided
had he taken an invasive action by veering to the right and not to
the left.
[54] In the circumstances
I am persuaded that the court
a quo
materially erred in
finding that the appellant’s negligence was the sole cause of
the collision. The conclusion which completely
exonerated the
respondent’s driver could not be reconciled with the findings
of the court itself. For instance the court
a quo
found that
the respondent’s driver was traveling at an excessive speed;
that he saw the appellant’s car at the intersection
and that he
noticed that the appellant’s car disobeyed a traffic stop sign
and that it proceeded across the through street
without any effort to
stop or to slow down.
[55] If only he had
obeyed the maximum speed or if only he had carefully reduced the
excessive speed at which he was approaching
the careless appellant
inside the intersection – no swerving would have become
necessary. Over and above that the court
a quo
correctly found
that the respondent’s driver did not at all apply the brakes of
his vehicle immediately before the collision.
A careful motorist
drives in such a way that he would be able to safely apply the brakes
in a sudden emergency.
[56] Instead of slamming
the brakes he belatedly swerved. By then the evasive action was
hopelessly late and practically futile.
The collision was imminent
and unavoidable. In the light of those findings one would have
expected the court
a quo
to have apportioned the degree of
negligence between the two drivers. In my view the failure of the
court
a quo
to do so, constitute a material and appealable
misdirection. As I see it, the respondent’s driver was
certainly also negligent.
His contributory negligent driving casually
brought the collision about. Therefore, he too was delictually
responsible for the
collision. The respondent was vicariously liable
for the delictual wrongs of its driver
qua
employee.
[57] The court
a quo
correctly identified the applicable principles as set out in
National Employers’ General Insurance Company Ltd v
Sullivan
1988 (1) SA 27
(AD). However, its application of
those principles to the facts was, with respect, unsound. The
respondent’s driver behaved
as though he had an absolute right
of way at the obviously dangerous intersection. He had no such
absolute right – Martindale
supra
. The glaring neglect
of the wrongdoer to give way always signals that the rightful user,
is bound to re-adjust his conduct, and,
if needs be, to forego his
right of way in order to avoid a collision –
Solomon
supra
.
[58] I am persuaded that
the appeal should succeed. The appellant was not the sole cause of
the collision. The respondent’s
driver was also negligent. His
negligent driving significantly contributed to the eventual collision
between the two sedans. The
submission of Mr Groenewald that the
court
a quo
was correct in finding that the appellant’s
negligence was the sole cause of the collision was not borne out by
the evidence.
Similarly the submission of Mr Williams that the
respondent’s driver was the main cause of the collision could
not be justified
on the facts.
[59] The respondent’s
driver, and not the appellant, had a right of way at the
intersection. The appellant was obliged by
the traffic rules to keep
proper look-out before she ventured to cross the main street.
However, she carelessly breached the rules.
In the first place she
failed to stop. In the second place she failed to yield. In the third
place she failed to ascertain, in
good time, the traffic situation in
the through street she intended to cross. All those pieces of
evidence were indicative of gross
negligence. The respondent’s
driver must have been dangerously close when the appellant carelessly
tried to cross his path
of travel at an inopportune and unsafe
moment.
[60] In the circumstances
I believe that the appellant was substantially more to blame than the
respondent’s driver. In my
view her share of the blame was 70%.
It follows, therefore, that the negligence of the respondent’s
driver delictually contributed
30% towards the eventual occurrence of
the collision. Consequently I am inclined to apportion the
comparative degree of negligence
of the two drivers as follows 70% :
30% in favour of the respondent’s driver.
[61] Now the issue of
costs. The appellant has been successful on appeal. That being the
case, she is entitled to the costs of the
appeal.
[62] In the result I
propose the following order:
62.1. The appeal succeeds
with costs.
62.2. The order of the
court
a quo
is set aside and it is substituted with the order
set out bellow.
62.3. The defendant is
70% liable for the respondent’s damages if any with costs.
62.4. The plaintiff is
30% liable for the defendant’s damages, if any, with costs.
_________________
M. H. RAMPAI, AJP
I
concur and it is so ordered.
________________
R. M. SEPATO, AJ
On
behalf of appellant: Adv. A. Williams
Instructed
by:
N.W.
Phalatsi
BLOEMFONTEIN
On
behalf of respondent: Adv. W. J. Groenewald
Instructed
by:
Phatsoane
Henney Inc
BLOEMFONTEIN
/ebeket