About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2012
>>
[2012] ZAGPPHC 18
|
|
Manganye v Ngobeni and Another (A546/11) [2012] ZAGPPHC 18 (9 February 2012)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG, PRETORIA)
Case
no: A546/11
DATE:09/02/2012
In
the matter between:
Sipho
Petrus
Manganye
................................................................................................
Appellant
And
Solly
Gezane
Ngobeni
.....................................................................................
First
Respondent
William
Mahlangu
........................................................................................
Second
Respondent
Judgment
Baqwa
A.J
1.
This
is an appeal against the judgement of the Magistrate's Court
Soshanguve delivered on 26 April 2011.
2.
The
appeal arises out if an accident which occurred on 28 November 2009
and at Eer stems.
Ex
facie the record of evidence the following facts are common cause:
3.1.cThe
collision occurred between motor vehicle with registration number FJN
692 NW driven by William Mahlangu (Second Respondent)
and motor
vehicle with registration number TYL 755 GP driven by Appellant.
3.2.
Motor vehicle with registration number FJN 692 NM belonged to the
First Respondent.
3.3.
The collision took place at night on a slight bend on a road which
carried on one lane in each direction.
3.4.
The two vehicles involved were travelling in opposite directions at
the time of the collision.
4.
According
to the Second Respondent the cause of the accident was Appellant's
vehicle which crossed the centre line and collided
with his vehicle
on the right hand side.
5.
According
to the Appellant the Second Respondent overtook another vehicle and
nearly caused a head on collision with his vehicle.
He swerved to the
left to avoid a collision but the other vehicle collided with the
right hand side of his vehicle.
6.
The
Second Respondent also gave evidence about the ownership and damage
to his vehicle. He did not throw any light on the accident
itself
because he was not at the scene.
According
to the finding of the Magistrate "the evidence of the Plaintiff
s driver and that of the defendant is mutually destructive
in that
each blames the other as to what happened on the day of the
collision".
8.
It
is at the time of reaching this conclusion that the magistrate ought
to have been guided by the law as clearly enunciated in
the case of
National Employers General Insurance Co. Ltd v Jagers 1984(4) SA 437
at 440 D to G where the law is stated as follows:
" It seems to
me, with respect, that in any civil case, as in any criminal case,
the onus can ordinarily only be discharged
by adducing credible
evidence to support the case of the party on whom the onus rests. In
a civil case the onus is obviously not
as heavy as it is in a
criminal case, but nevertheless where the onus rests on the plaintiff
as in the present case, and where
there are two mutually destructive
stories, he can only succeed if he satisfies the court on a
preponderance of probabilities that
his version is true and accurate
and therefore acceptable, and that the other version advance 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
allegation against the general probabilities.
The estimate of credibility of a witness will therefore be
inextricably bound up
with a consideration of the probabilities of a
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 nonetheless believes him
and
is satisfied that his evidence is true and that the defendant's
version is false".
In
casu, the Magistrate did not find the Appellant's version false in
which event he would then have been justified to prefer the
Respondents version. He states as follows " the difficulty the
court faces is that there is no reason to disbelieve either
version
of the plaintiffs driver and that of the defendant's because of the
manner in which the collision occurred which seems
to be consistent
with the damages on both vehicles".
10.
After
making this very clear and correct summation of the facts the
magistrate appears to take what can only be described as an
inexplicable leap of faith and apportions liability between the two
drivers on a fifty percent basis.
11.
On
this basis he orders the Appellant to pay ten thousand nine hundred
and four rand (RIO 904, 00), and costs to the Respondent.
He
dismisses the second claim by First Respondent for loss of earnings
on the basis that the First Respondent did not produce proof
of his
claim.
12.
In
my view the magistrate clearly misdirected himself in coming to this
conclusion and giving the judgment I have referred to. He
misdirected
himself because after finding that the two versions were evenly
balanced there is no basis in which he could prefer
one of the two
versions.
13.
The
magistrate further misdirected himself by purporting to apply the
maxim ' 'res ipsa loquitur " which could clearly not
be applied
in casu. 'For example, if a swab is left in a person's body after an
operation, or an unattended car runs down a hill,
or a lorry suddenly
swerves to the wrong side of the road the court, in the absence of
some explanation, is entitled to infer negligence
from the common
knowledge that such events do not usually happen unless someone has
been negligent".
See
Hoffma/? & Zeffert on Evidence 2" edition pp218-219.
The
learned authors go on to explain the maxim as follows: " this
kind of reasoning does not depend upon any rule of law, it
is simply
an exercise of common sense. Res ipsa loquitur is therefore not a
presumption of law. It is merely a permissible inference
which the
court may employ if upon all the facts it appears to be justified".
14.
In
this case, with two mutually destructive versions, and no finding of
fact prima facie pointing to negligence on the part of either
driver,
such an inference could clearly not be made.
15.
The
final misdirection by the magistrate was when he awarded damages to
the First Respondent. Counsel for the Appellant correctly
summarised
the requirements to be met for such an award to be made.
15.1.
The plaintiff has to prove that the repairs to his motor vehicle were
necessary,fair and reasonable. Set Heath v Legrange
1974(2) SA 262 at
p263.
15.2.
A plaintiff is obliged to adduce evidence of the necessity of the
repairs and the reasonableness of the costs.
See
Joubert v Santam Versekeringsmaatskappy Beperk 1978(3) SA 328(T) at
pp333.
15.3.
The mere production of an account or quotation is not sufficient and
the person who effected the repairs should testify as
to the work
done by him.
See
Scrooby v Engelbrecht 1940 TPD pp l00; Hugo v Rossouw
1946 CPD 54.
None
of these requirements were satisfied by the First Respondent.
In
the result I propose that the following order is made:
16.1.
The appeal succeeds with costs.
16.2.
The orders made by the learned magistrate are set aside and the
following substituted in the place thereof:
"16,2.1.
Plaintiffs first claim against defendant is dismissed with costs.
16.2.2. Plaintiffs second claim against defendant
is dismissed with
costs"
I
agree
S.
A. M. Baqwa
Acting
Judge of the High Court
I
agree, it is so ordered.
W.R.C
Prinsloo
Judge
of the High Court