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South Africa: Kwazulu-Natal High Court, Pietermaritzburg
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[2011] ZAKZPHC 36
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Vather and Others v Road Accident Fund (AR 75/2010) [2011] ZAKZPHC 36 (30 August 2011)
IN THE KWAZULU-NATAL
HIGH COURT, PIETERMARITZBURG
REPUBLIC OF SOUTH
AFRICA
CASE NO. AR 75/2010
In the matter between
:
ZAHEEDA VATHER FIRST
…................................................
APPELLANT
ZAHEEDA VATHER
obo
Layyah Vather
…...........
SECOND
APPELLANT
ZAHEEDA VATHER obo
Jahaan Vather
…...............
THIRD
APPELLANT
ZAHEEDA VATHER obo
Riyah Vather
…...............
FOURTH
APPELANT
and
ROAD ACCIDENT FUND
….................................................
RESPONDENT
______________________________________________________
APPEAL JUDGMENT
Delivered on 30 August 2011
KRUGER J
[1] This is an appeal
against the Judgment of Niles-Dunér J dismissing the
plaintiff’s claim against the defendant,
with costs.
[2] It is common cause
that a collision occurred during the early hours of the morning of 18
August 2001 when a Volkswagen Golf,
driven by the deceased, struck
the rear of a refuse removal truck driven by the insured driver. It
is also common cause that the
collision occurred upon the right hand
lane of two lanes travelling in the same direction along the Old
Greytown Road, Pietermaritzburg.
It is also common cause that the
deceased driver was negligent in that he was travelling too fast. The
only issue to be determined
was whether the insured driver was also
causally negligent.
[3] The plaintiff’s
claim was based essentially on the evidence of the witness Nivigasen
Naidoo. Mr. Naidoo alleged that he
was travelling behind the refuse
removal truck when it suddenly changed lanes into the path of the
Volkswagen Golf motor vehicle.
The Court
a quo
considered and
analysed, in detail, the evidence of Naidoo and concluded that his
evidence was improbable. The Court
a quo
also expressed a
doubt as to whether Mr. Naidoo witnessed the collision or was
travelling along the road at the time the collision
took place.
[4] The Court a quo found
the evidence of Mr. Naidoo wanting for three reasons:
he did not see the
indicators or revolving light on the refuse truck,
he was reluctant to
overtake the refuse truck on its right and travelled behind it; and
he did not follow up the
matter with the police.
[5] Mr. Naidoo initially
testified that he could not remember whether or not the yellow
rotating light on the bin of the truck had
been switched on. He later
changed his testimony and stated that he could not dispute that the
yellow rotating light was on at
the time and also could not dispute
that the hazard lights had been on as well. As the trial progressed
he became all the more
certain that neither the hazard lights nor the
rotating light on the bin of the truck were switched on. This however
is in contrast
with the evidence of the insured driver, Mr. Lucky
Mngwevu, who testified that the yellow rotating light on top of the
vehicle
automatically illuminates when the vehicle’s ignition
is switched on. Indeed the photographs tendered in evidence show that
the light was still on when the police officers arrived at the scene
and took the necessary photographs. Counsel for the appellant
has
conceded that the lights were indeed on and that Mr. Naidoo was
incorrect in his evidence. However he has submitted that because
of
Mr. Naidoo’s uncertainty on this aspect, the Court was wrong in
concluding that there was a possibility that Mr. Naidoo
did not
witness the collision.
[6] The Court
a
quo
also did not accept Mr. Naidoo’s
version that he travelled behind the refuse removal truck as the
driver of the truck appeared
not to be very steady on the steering,
“in the sense that he was straddling the lines and he was
moving to the extreme left”
.
This
was repeated during cross-examination when he testified that
ordinarily he would have overtaken the truck but because of the
way
in which the truck was driving, he decided to drive slowly behind it.
The Court
a quo
found
that his evidence in this regard was improbable. I agree with the
conclusions of the Court
a quo
for,
inter alia
, the
following reasons:
Mr. Naidoo was driving a
Mercedes-Benz 220 motor vehicle and could easily have overtaken the
refuse removal truck on the right
hand lane which was free at the
time.
It was not his evidence
that the refuse removal truck was straddling the centre lane or
encroaching upon the right hand lane which
made him nervous to
overtake.
He testified that he
travelled behind the truck for a distance of approximately two
hundred and fifty or three hundred metres
and was prepared to
continue travelling behind it in the left hand lane as he had
another two kilometres to travel to reach his
destination.
The speed travelled by
the refuse removal truck was approximately forty to fifty kilometres
per hour. Mr. Naidoo had to accordingly
reduce his speed in order to
maintain a safe travelling distance behind the refuse removal truck.
Notwithstanding his
reluctance to overtake the refuse truck, when it moved into the
right hand lane, he decided to overtake the
truck on the left and
accelerated to do so.
[7] Mr. Naidoo’s
evidence was also criticized regarding the manner in which he behaved
after the collision. He testified that
he returned to the scene and
remained there for only approximately five minutes. During this time
he identified himself to a police
officer and gave a police officer
his details, stating that he was a witness. He could not remember the
policeman’s name
but averred that he was never contacted by the
police again. He however found out later on the same day that the
driver of the
vehicle had died and yet did not make any follow up
enquiries at the police station. The Court
a
quo
had difficulty in accepting that Mr.
Naidoo did not bother to enquire about the collision for a period of
six years but immediately
responded when he read an article in the
newspaper. Counsel for the appellant has argued that his behaviour in
this regard ought
not to be criticized as it is rare for witnesses to
follow up matters with the police. I am of the view that the Court
a
quo
was correct in disregarding his evidence
on this score, more especially in the light of his evidence that the
police officer to
whom he reported, did not write anything down. One
wonders how then he would have expected the police to contact him.
When he learnt
of the death of the deceased, and knowing that the
policeman did not write down his details, one would have expected him
to report
to the police station to ensure that his details were
recorded and that his statement was taken.
[8] Perhaps the most
improbable aspect of his testimony was his evidence that he overtook
the refuse removal truck, on the left
hand side, after the collision
had taken place. If one has regard to the report of the expert
witness, Mrs. Wilna Badenhorst, the
following emerges:
The Volkswagen Golf was
driving in the right hand lane and swerved to the left immediately
prior to the collision occurring.
The area of impact is
close to the broken barrier line that divides the left hand east
bound lane from the right hand east bound
lane.
The Golf collided with
its right front against the left
rear of the truck.
The Golf came to rest on
the extreme left hand side of the left hand east bound lane
almost
opposite the area of impact
(my underlining).
If the accident happened
in the manner described by Ms Badenhorst (as is the plaintiff’s
claim) the question then arises how
did Mr. Naidoo escape being
involved in the collision? Indeed it is improbable if not impossible
for him to have avoided the collision.
It is also highly improbable
and impossible that he would have been able to overtake the refuse
removal truck on its left after
the collision. His explanation for
this was that he believed that the truck driver was trying to get
away because the truck did
not stop immediately after the collision
but stopped a few metres ahead. In this regard he
“accelerated”
and
“shot past him”
as
the truck was still continuing. This, in my opinion, reinforces the
finding of the Court
a quo
that
either Mr. Naidoo was not present or the accident did not occur in
the manner in which he described. I am accordingly of the
view that
the Court
a
quo
was
correct in rejecting his version.
[9] Having reached this
conclusion and as there is no conflicting evidence to gainsay that of
the insured driver, the Court
a quo
was correct in concluding
that there was no basis upon which the insured driver’s
evidence could be rejected and that there
was absolutely nothing
which he could have done to avoid the collision. Accordingly, I agree
with the finding of the Court
a quo
that the plaintiff has
failed to prove any causal negligence on behalf of the insured
driver.
[10] I accordingly make
the following order:
The appeal is dismissed
with costs, such costs to include the costs incurred consequent upon
the employment of two Counsel.
_____________
KRUGER J
I agree
_____________
GORVEN J
I agree
___________
LOPES J
Appearances/
Appearances
For the Appellant :
Mr
J Marais S C with
Mr V Naidoo
Instructed by :
Chetty Asmall & Maharaj
Pietermaritzburg
For the Respondent :
Mr M G Roberts with
Mr. C. Snyman
Instructed by :
Tomlinson Mnguni James
Pietermaritzburg
Date of Hearing :
22 August 2011
Date of Judgment
:
30 August 2011