About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2011
>>
[2011] ZAFSHC 34
|
|
Road Accident Fund v Fourie NO (A168/2010) [2011] ZAFSHC 34 (24 February 2011)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No.: A168/2010
In the appeal between:
THE ROAD ACCIDENT
FUND
….............................................
Appellant
and
J A FOURIE NO
…................................................................
Respondent
CORAM:
H M
MUSI, JP
et
VAN DER MERWE, J
et
SINGH, AJ
JUDGMENT:
VAN DER MERWE, J
_____________________________________________________
HEARD ON:
14 FEBRUARY 2011
_____________________________________________________
DELIVERED ON:
24 FEBRUARY 2011
_____________________________________________________
[1] This is an appeal
against the judgment of a single Judge in a road accident trial
matter. The appeal is with the leave of the
court
a quo
.
[2] Between 16H00 and
17H00 on 23 December 2006 and on the road between Arlington and
Senekal, a collision occurred between a blue
Volkswagen Caravelle
vehicle with registration number CZG163FS (“the Caravelle”)
and a white Toyota Hi-Ace vehicle
with registration number TWD243GP
(“the Toyota”). Both vehicles were microbusses that were
operated as taxis at the
time. The Caravelle carried a full load of
passengers and also towed a trailer. The driver of the Caravelle has
since died. The
driver of the Toyota was Mr Nkopone Lawrence Matlali.
The Toyota carried four passengers.
[3] The collision took
place on a long and straight stretch of tarred road, approximately
6,3 meters wide. The road has one lane
for traffic in each direction
and has no emergency lanes on either side thereof. On both sides of
the road there are grass verges.
The Caravelle travelled in the
direction from Arlington to Senekal and the Toyota approached from
the opposite direction. In the
area where the impact took place there
is a broken middle line on the road as well as a solid white line
that prohibited overtaking
by the Toyota. Visibility was good. It is
also common cause that the right front of the Caravelle came into
contact with the right-hand
side of the Toyota.
[4] Juda Peter Hlongwane
(“Juda”) was a fare-paying passenger in the Caravelle and
he sustained injuries as a result
of the collision. Juda’s
father, Mr Andrew Molahloa Hlongwane therefore instituted action on
his behalf against the appellant
for payment of damages on the basis
that the collision was caused by the negligence of the driver of the
Toyota, alternatively
by the negligence of the driver of the
Caravelle. However, subsequently an order was made in terms of which
advocate J A Fourie
was appointed curator
ad litem
for Juda
with the result that advocate Fourie in his official capacity was
substituted as the plaintiff and therefore presently
the respondent.
The negligence of the driver of the Caravelle was not placed in
issue. In the plea the respondent pleaded that
that was the sole
cause of the collision.
[5] The parties agreed to
a separation of issues that was ordered by the trial court. The
result hereof was that the issue for determination
at the trial was
whether the negligence of the driver of the Toyota caused or
contributed to the collision.
[6] After hearing
evidence the trial court found that the collision was mainly caused
by the negligence of the driver of the Caravelle
but that the
negligence of the driver of the Toyota contributed thereto. On the
basis that the collision was caused solely by the
negligence of the
driver of the Caravelle, the respondent’s claim against the
appellant is on the pleadings limited to the
amount of R25 000,00. As
a result the trial court in effect made a declaratory order that the
appellant is liable for payment of
Juda’s proved or agreed
damages. The trial court also ordered the appellant to pay the costs
of the hearing.
[7] The issue on appeal
is whether the court
a quo
was correct in finding that the
driver of the Toyota was negligent.
[8] Juda has no
recollection as to how the collision happened. In this regard the
respondent relied on the evidence of Mr Lerato
Joseph Tseke and Mr
Fusi Francis Tsenase. Both were passengers in the Caravelle at the
time of the collision. Their version is
essentially the following.
The Caravelle was travelling in its lane at a speed of approximately
120km/h. The Toyota that approached
from the opposite direction was
travelling with its right wheels on the solid barrier line in the
middle of the road. The driver
of the Caravelle changed a music
compact disk (CD). As a result hereof the Caravelle moved towards its
right and travelled with
its right wheels also on the middle line but
not over the middle of the road. The driver of the Caravelle
corrected this by moving
the Caravelle back to its position in its
lane. At this stage it was realised that the oncoming vehicle had
moved over the middle
of the road into its incorrect lane. The driver
of the Toyota moved the vehicle to its left in order to attempt to
avoid a collision
but was unable to do so. As a result the collision
took place near the middle of the road but in the lane in which the
Caravelle
was travelling.
[9] Mr Matlali, the
driver of the Toyota, testified for the appellant. He said that he
was not able to tell at what speed he was
travelling but that he was
not in a hurry. He saw the Caravelle approaching but there was no
reason for him to anticipate erratic
or irregular driving of this
vehicle. When he was about to pass the Caravelle, it suddenly swerved
to its right over the middle
of the road onto its incorrect side of
the road and into the path of the Toyota. Mr Matlali said that as a
result of this emergency
there was nothing that he could do to
attempt to avoid a collision other than to swerve to his left, which
he did but without success.
[10] The appellant also
presented the evidence of Mr H A Visser of the South African Police
Service. He attended the scene of the
collision in the exercise of
his duties within hours of the collision occurring. He testified as
to his observations on the scene,
including gouge and scrape marks on
the tarmac in the lane in which the Toyota travelled, indicating that
the area of impact was
on that side of road. He took photographs and
drew a sketchplan and key thereto indicating this, all of which was
handed in as
exhibits.
[11] In terms of section
34 of the Civil Proceedings Evidence Act, nr 25 of 1965, counsel for
the appellant attempted to hand in
as exhibit a statement made by the
driver of the Caravelle. The contents of this statement provide
material corroboration for the
evidence of the driver of the Toyota
and the version of the appellant.
[12] The trial court
refused to admit this statement into evidence. It also found the
evidence of Mr Visser to be “…
in its totality
unhelpful”. Counsel for the appellant argued with some
persuasion that the court
a quo
erred in both these respects.
In the light of the conclusion that I have reached I do not find it
necessary to make a finding on
these matters.
[13] The court
a quo
rejected the evidence of Mr Tseke and Mr Tsenase. The court
a quo
accepted the evidence of Mr Matlali that the collision was caused by
the movement of the Caravelle over the centre line into the
lane and
path of travel of the Toyota. The court
a quo
however held
that this movement was not a sudden movement as described by Mr
Matlali but gradual one as a result of which there
was sufficient
opportunity for the driver of the Toyota to avoid a collision by
swerving to his left onto the grass verge. In this
regard the court
a
quo
found support in the evidence of Mr Tsenase.
[14] I am by no means
persuaded by the argument of counsel for the respondent that the
trial court erred in rejecting the evidence
of Mr Tseke and Mr
Tsenase. Both were poor witnesses. In evidence they contradicted
themselves, each other and their respective
police statements in
material respects such as when did the Toyota move over to its
incorrect side of the road, for what period
of time it travelled on
the incorrect side of the road, to what extent it did so and where on
the road the impact took place. The
evidence of Mr Tsenase in
particular is very improbable. At some stage in his evidence he said
that whilst the Toyota was approaching
on its incorrect side of the
road and thereby created a very dangerous situation, he took his eyes
off it, relaxed and talked to
his fellow passengers. The version of
these witnesses provides no conceivable reason for the Toyota to move
to its incorrect side
of the road but it does provide a reason for
the Caravelle to have done so.
[15] In my judgment there
is no reason why the evidence of Mr Matlali should not have been
accepted in its totality. There is no
valid criticism of his
evidence. He was criticised for not using the equivalent of the word
“sudden” in his police
statement, in which the following
description of the collision is given:
“
Ek het in
die rigting van Arlington gery. Ek het in my regte baan gery. Daar
het ‘n groenerige Volkswagen Kombi van Arlington
se rigting af
aangekom. Die genoemde voertuig het oorgekom in my baan in. Ek het
probeer uitswaai na links om ‘n botsing
te vermy. Die voertuig
het my voertuig steeds aan my regterkant getref.”
The person who took the
statement obviously intended to provide a brief description of the
collision. In the circumstances I can
see no contradiction between
this statement and the evidence of Mr Matlali. At best for respondent
this aspect is neutral. Counsel
for the respondent was constrained to
concede that there is no evidential basis for the finding that a
gradual movement of the
Caravelle took place. In the result, this
finding is pure speculation or conjecture. The court
a quo
also erred in relying on a piece of evidence extracted from the
wholly unacceptable and rejected evidence of Mr Tsenase.
[16] It is not disputed
that on the version of Mr Matlale there was no negligence on his
part. He had no reason to anticipate any
danger and a reasonable
person in the circumstances would not have done more than what Mr
Matlali did to avoid a collision. It
follows that the court
a quo
should have found that the respondent did not prove contributory
negligence on the part of the driver of the Toyota. The trial
court
should therefore have made an order declaring that the collision was
caused solely by the negligence of the driver of the
Caravelle.
Counsel for the appellant asked that the costs of the trial be
reserved for later determination.
[17] In the result the
following orders are issued:
The appeal succeeds with
costs.
The orders of the trial
court are set aside and replaced with an order declaring that the
negligence of the driver of Caravelle
vehicle with registration
number CZG163FS was the sole cause of the collision in question and
that the costs of the trial be
reserved for later determination.
_________________________
C. H. G. VAN DER
MERWE, J
I concur.
_________________
H. M. MUSI, JP
I concur.
__________________
S. SINGH, AJ
On behalf of the
appellant: Adv. A. Combrink
Instructed by:
Matsepes Inc.
BLOEMFONTEIN
On behalf of the
respondent: Adv. C. Ploos van Amstel SC
Instructed by:
Phatshoane Henney Inc.
BLOEMFONTEIN
/eb