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1984
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[1984] ZASCA 15
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Uithaler v Uitenhage Passenger Transpost Ltd. (468/81) [1984] ZASCA 15 (19 March 1984)
LORRAINE UITHALER (born BONAPARTE)
Petitioner
and
UITENHAGE PASSENGER TRANSPORT LIMITE
D Respondent
mp 468/81
IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE
DIVISION)
In the matter between:
LORRAINE UITHALER (born BONAPARTE)
Petitioner
and
UITENHAGE PASSENGER TRANSPORT LIMITED
Respondent
CORAM
:
KOTZé JA, GALGUT et SMUTS AJJA
HEARD:
24 February 1984
DELIVERED:
19 March 1984
JUDGMENT GALGUT, AJA
During the night of 31 December 1977 and in
the
2. the Black area of Uitenhage, the petitioner, to whom I
shall refer as the plaintiff, whilst a passenger aboard
a bus owned by the respondent, sustained bodily injuries
in consequence of stones being thrown at the bus by
bystanders. The bus
was being driven by an employee of the
respondent. Plaintiff sued the
respondent, to whom I
shall hereafter refer as the defendant, in the South
Eastern
Cape Local Division for damages in the sum of R11 788.90.
The
parties later agreed the amount of damages. The
figure so agreed was R8
500.
The action came before DE WET, J. On 10 November 1981 he handed in a judgment
in which he ordered absolution from the instance with
costs. The plaintiff was
dissatisfied with the judgment and within
21 days
3. 21 days, as required by rule 5(1) of the Appellate
Division (AD) Rules of Court, noted an appeal to this
Court, viz on 2 December 1981. She failed to lodge the
record of the proceedings within three months of the
judgment as required by AD rule 5(4)(b). In consequence
the appeal is
deemed to have been withdrawn. She wishes
to proceed with the appeal but
because of her financial
position now seeks to do so in
forma
pauperis.
In terms
of AD rule 4(7)(a) a petition for leave to appeal
in
forma pauperis
must be lodged not later than 21 days after
the
appeal has been noted. This was not done.
The relief which plaintiff now seeks from the Court is: (i) condonation of
her failure to timeously lodge her
petition
4. petition for leave to prosecute her appeal in
forma
pauperis
; and
(ii) condonation of her delay in prosecuting the appeal
and (iii) if such condonation is granted, for leave to
prosecute the appeal in
forma pauperis.
Plaintiff had
brought her action in the Court
a quo
with the assistance of the Legal
Aid Board (the Board). After the judgment was handed in, and the appeal duly
noted on 2 December
1981, it was decided to again approach the Board for
assistance to finance the appeal. In order to support the request a memorandum
was obtained from Counsel in which he expressed the
view
5. view that plaintiff's chances of success on appeal were
reasonable. Pursuant thereto the application to the
Board was made on 11 January 1982. The application was
refused. A further application for assistance was
then made direct to the Chairman of the Board. This
in turn was refused on
2 February 1982.
I pause to mention that on 2 December 1981, plaintiff's attorney had written
to defendant's attorney requesting an extension of time
for the lodging of the
record pending the Board's decision. The defendant's attorney replied saying
defendant was prepared to grant
a reasonable extension and inquired what period
was required. Further inconsequential correspondence followed
causing
6.
causing defendant's attorney on 12 February 1982 to write
asking whether plaintiff intended proceeding with her appeal and if so
requesting that the record be filed by 1 March 1982. Plaintiff's
attorney did
not reply to this letter.
After the aforesaid appeal to the Chairman of the Board had failed an unusual
extra-judicial step was taken. It was decided to ask
the local Member of
Parliament to interview the Minister for Justice in the hope that the latter
would persuade the Board to give
financial assistance. After some delay, during
which requests were made to the Member of Parliament to try and expedite the
matter,
the Minister, on 24 May 1982, advised
that
7. that he could not aid plaintiff. For reasons which
have not been satisfactorily explained, it was only at
the end of June that it was decided to investigate the
possibility of proceeding in
forma pauperis.
As we have seen, because of the provisions of AD rule 5(4)(b) the appeal was,
on 10 February 1982, deemed to have been withdrawn.
On 13 July 1982, plaintiff's
attorney wrote to defendant's attorney advising that plaintiff was contemplating
proceeding in
forma pauperis
and asking defendant to agree to the appeal
being reinstated. Defendant's attorney, on 2 August, advised plaintiff's
attorney that
defendant was not prepared to agree to that request.
Thereafter
on
8. on 13 August 1982, plaintiff's attorney wrote asking
whether the defendant was prepared to consent to plaintiff
prosecuting her appeal in
forma pauperis.
Defendant's
attorney, in
a letter dated 8 September, for reasons
therein set out, advised that
defendant refused its consent.
The petition for the relief set out above, i.e. for condonation and for leave
to proceed in
forma pauperis
was launched on 10 September 1982, i.e. some
eight months late.
The inordinate delay is due to the following factors:
(a) the decision, after the Board had refused assistance, to take the
extraordinary extra-judicial step of
asking
9. asking a member of parliament to approach the Minister
of Justice, instead of then deciding to seek leave to
proceed in
forma pauperis;
(b)the unexplained delay from 24 May 1982
(when it was
known the Minister could not assist) till 13 July when
defendant was asked to reinstate the appeal, (c) the delay from July 1982
till 10 September 1982. This
delay was partly due to correspondence which passed
between the attorneys.
The defendant opposes the grant of the condo= nation sought and also opposes
the grant of leave to sue in
forma pauperis.
There can be no doubt that
the delay is due in large measure to the misguided decision by the
attorney
10. attorney to take the extra-judicial steps detailed above.
and to the unexplained delay from 24 May till 13 July.
This Court is always anxious that a poor person is not kept out of his
rights; on the other hand, it must also see that his opponent
is not put to
needless expense; see
MacRose v Robinson
1946 AD 1
at p8. It is well
settled that, in considering applications for condonation, the Court has a
discretion. In essence it is a matter
of fairness to both sides. The relevant
considerations have frequently been stated in this Court. There is no need to
repeat them.
They are set out in the cases cited below. The merits of the appeal
may in some cases be very important. If there are no prospects
of
success
11.
success condonation will not be granted. See
Liquidators,
Myburgh, Krone and Co. Ltd. v Standard Bank and Another
1924 AD 226
at p231;
Federated Employers Insurance Co. v McKenzie
1969(3) SA 360(A) at p364;
Kgobane and Another v Minister for Justice and Another
1969(3) SA 365(A)
at p370.
The relevant facts leading up to the unfortunate accident can be stated
shortly. The Congregational Church in Uitenhage had arranged
an Old Year's eve
service for 11 pm in its Dale Street Church. The members of this Church lived in
three coloured townships, Rosedale,
Thomas Gamble
12. Thomas Gamble and Gerald Smith. Three buses to convey
the congregants to church, were hired from the defendant.
The buses started at Rosedale and en route picked up
members of each
township. After the service, members
entered the buses for the return
journey. Plaintiff
entered a bus driven by one Rayibo. The passengers
in
his bus were going to Rosedale. No route was specified
in Rayibo's waybill. There were two routes from the
Church to Rosedale.
The longer one was a winding one
which passed first through the Gerald Smith
township and
then through Thomas Gamble to Rosedale. The other, a
substantially shorter route, ran along Maduna Road through
a Black township.
Plaintiff
13. Plaintiff, in her particulars of claim, alleged that
Rayibo was acting in the course of his employment with defendant and that
he
owed a duty to the passengers to exercise reasonable care with regard to their
safety. These allegations were admitted by defendant.
Plaintiff further alleged
that it was the duty of the driver, Rayibo, to avoid taking the bus through the
Black residen= tial area
of Uitenhage; that it was reasonably foreseeable that
if he did drive the bus through that area an incident such as stone throwing
might occur resulting in possible injury to the passengers; that in breach of
that duty he negligently drove the bus through the
Black township with the
result that plaintiff was injured by one of the
stones
14. stones thrown at the bus.
Defendant, in its plea, made the admissions
aforementioned and went on
-
(aa) to deny that it was reasonably foreseeable that stones would be thrown at
the bus as alleged; that the driver had been negligent
as alleged or had acted
in breach of his duty to the passengers. In an alternative plea defendant
pleaded:
(bb) that plaintiff was being conveyed for reward in the course of the business
of the owner (defendant); that the injuries sustained
by plaintiff were caused
by, or arose out of the driving of the bus; that accordingly the plaintiff
should have sued the
authorised
15. authorised insurer of the vehicle in terms of section
27 of
Act 56 of 1972 and not the defendant.
It appears from the judgment of the learned Judge
a quo
that a
passenger, Jochens, testified that when he saw the bus take the turn off towards
Maduna Road he shouted to Rayibo that that
was the wrong road and was dangerous.
A passenger, Brower, confirmed what Jochens had said, saying that passengers
shouted and exclaimed
that the route was dangerous. They both said that the
words "dis gevaarlik" were used. A witness, Tshiko, testified that on New Year's
eve the inhabitants of the Black townships expect to enjoy themselves and at
midnight some of the rowdies interfere with cars and
sometimes
16. sometimes stone people and cars. That is a summary of
the evidence for the plaintiff.
For the defendant Rayibo testified. He said he had been told by someone at
the Church, and before the passengers had embarked, to
take the Maduna road;
that he was not told at any time, nor did he consider, that the route was
dangerous; that he had often travelled
the route without incident; that had he
considered it dangerous he would not have taken it. A Lt. Annandale gave
evidence. He said
that he had been in Uitenhage 5 /2 years and had often
patrolled the township. He considered Maduna Road quite normal and had not
found
the Black township rowdy during the festive season.
The
17. The following extract from the judgment of the
learned Judge
a quo
is significant:
"I am inclined to the view that Jochens and Brower exaggerated to some
extent. I am prepared to accept that the passengers might very
well have shouted
that Rayibo was taking the wrong route, but I am not at all satisfied that
passengers shouted that the route was
dangerous. This allegation came too pat
when these witnesses testified. These two witnesses gave me the impression that
they were
inclined to overstress this aspect. It must be born in mind that
Rayibo is Xhosa speaking whereas the members of the congregation
are coloureds
and speak Afrikaans.
I am not satisfied that Rayibo understood the cries, if indeed there had been
these warning shouts."
There was evidence that on occasions the buses had been stoned but these
incidents did not follow any
pattern
18.
pattern.
The Judge
a quo
found Rayibo to be a truthful witness. As we have seen
he did not accept the evidence of Jochens or Brower. Whilst he did not comment
adversely on the witness Tshiko, it is implicit from his judgment that he
accepted Lt. Annandale's evidence.
The principles which guide an appellate court in an appeal on facts have so
frequently been set out that they need not be repeated.
It is sufficient to say
that an appellate court will not lightly interfere with a trial court's findings
of fact and credibility.
It follows that the plaintiff failed to show that
Rayibo was told that the route was dangerous or that he knew,
or
19.
or had any reason to believe, that persons would throw
stones at the bus. I say this because that Judge
a quo
-
(aaa) did not believe Jochens and Bower;
(bbb) whilst not saying he rejected Tshiko's evidence,
accepted Lt. Annandale's evidence; (ccc) accepted that Rayibo did not know,
or have reason
to think, that the route was dangerous; (ddd) even if Tshiko had knowledge of
stone throwing
incidents on New Year's eve, this does not mean that
Rayibo had, or ought to have had, such knowledge.
The existence of negligence is ascertained by applying to the facts of each
case the standard of conduct which the law requires. That
standard is the degree
of
care
20. care and skill which a reasonable man would exercise in
the circumstances. In view of the fact that it was not
shown that Rayibo knew or had any reason to believe that
stones would be thrown at the bus, plaintiff failed to
prove that Rayibo
was negligent. It follows that plaintiff
has failed to show any prospects of
success on appeal.
This Court would therefore not be justified in condoning
the
late lodging of the petition for leave to sue in
forma pauperis.
There is no need to discuss the defendant's
alternative plea.
The application is accordingly dismissed with
costs.
O. GALGUT, AJA
KOTZé, JA)
Concur SMUTS, AJA)