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
>>
2009
>>
[2009] ZAGPPHC 39
|
|
Strydom v Van der Griendt (11991/2005) [2009] ZAGPPHC 39 (30 April 2009)
IN
THE HIGH COURT OF SOUTH AFRICA
NORTH GAUTENG HIGH COURT,
PRETORIA
CASE
NUMBER:
11991/2005
NOT
REPORTABLE
DATE: 30
April 2009
P.G.
STRYDOM
APPLICANT
V
B.R.
VAN DER GRIENDT
RESPONDENT
JUDGMENT
SAPIRE,
AJ
This
is an application for leave to appeal to the full court of this
division against a judgment I gave on the 26
th
of March this year. The issue before me at the time was limited to
finding who the driver was of a vehicle, described as a bakkie
at the
time of an accident in which both parties were seriously injured.
It
had been agreed
by
the parties that my decision would determine the outcome of claims
made by the parties the one against the other. I do not intend,
in
this judgment, to again traverse the evidence upon which my judgment
was based. I will instead examine the some of the grounds
upon which
the applicant, who was defendant in the action, seeks leave to
appeal.
The
issues raised by the applicant are all questions of fact. Because of
this the applicantâs first obstacle is a disinclination
of courts
of appeal to overrule a lower courtâs decisions on questions of
fact. The lower court usually has the advantage of
seeing and
hearing the parties and on the basis of this first hand observation
is usually better placed than an appeal court to
come to a
conclusion.
The
plaintiffâs case rested on the evidence of the plaintiff himself
who described how the accident happened and was quite firm
that he
was a passenger in the car at the time and wearing his seatbelt. He
has no doubt that it was the defendant who was the
driver of the car
and that the defendant was driving in order to test the car. The
plaintiff has recounted how the defendant loss
control of the car
which left the tarred road and careered into the veld landing in a
ditch far from the edge of the tarred road.
The
first ground of appeal is that I erred in accepting the respondentâs
testimony that the applicant was driving the vehicle
at the time of
the occurrence in order to get a feel of the engine. In order to
determine this, a number of other aspects have
to be considered.
The
respondent was able to offer no direct evidence to contradict what
the plaintiff said. This is because the defendant claimed
complete
retrograde amnesia. There was no confirmation of this by a doctor
who attended on the defendant at any time after the
accident. I did
not hold this against the applicant and accepted that because of his
loss of memory he was unable to give a version.
The
evidence adduced by the defendant was that of one Strydom
,
unrelated to the applicant, who, on the basis of the facts and
circumstances of the accident, as he ascertained them two years
after
the occurrence determined that it was the respondent who was the
driver of the vehicle. The basis of this deduction was
that the
applicant must have been thrown from the vehicle before it came to
rest, and he was found some 30 metres from the vehicle
in the
direction of the tarred road from which it had come. The respondent
on the other hand, was found lying next to the vehicle
on the left
hand side immobilized by hip and leg injuries. The fact that the
respondent was found lying next to the left hand
side of the vehicle,
where it came to rest, was I considered, a significant factor. To
speculate on how the applicant was thrown
from the vehicle poses a
problem but it is not possible to exclude, in the light of other
evidence, the plaintiff having left the
vehicle through the right
hand side.
The
other evidence to which I refer is
the direct evidence of the respondent, as well as the hospital
records which became part of the evidence. The hospital record
shows
that a version of the collision to which the plaintiff had testified,
was indeed the manner in which the accident took place.
The hospital
record is subscribed to by the applicant with his signature. I bore
in mind that the record which is not in the Applicantâs
handwriting, is in English, and the Applicant is Afrikaans speaking.
The subscribing signature is nevertheless admittedly that
of the
Applicant. While this is not proof that the accident did indeed occur
in the manner so described, it is an indication that
that version of
the occurence was current at the time of the applicant being in
hospital and that he accepted what was there written.
My
acceptance of the hospital record is stated to be an error on my
part. As indicated above I did not accept the hospital record
as
describing the truth of the manner in which the accident occurred.
What it is, is a record of what the applicant or someone
on his
behalf informed the hospital. It was not claimed by the defendant
that at that time he was suffering from amnesia and there
is no
medical evidence that this was so. I am satisfied that I was correct
in placing the interpretation of the record in the
manner I did.
Of
significance is the question as to why the Applicant should have been
in the vehicle at all. The probabilities favour the parties
having
been on a test drive, and the Applicant driving the vehicle in order
to get a feel of the engineâs performance.
A
further ground of appeal is that I erred in finding that the
applicantâs expert, Mr Hans Strydom, was not an objective witness.
By this I understand is meant impartial. Mr Strydom was only
consulted some two years after the accident, at the time when it
became necessary for the Applicant, to offer a version of what to
place which excluded negligence and consequent liability on his
part,
because the respondent had issued summons claiming a substantial
amount. My observation was that experts in many cases tend
to offer
opinions which support the version of the party who has employed
them. In this case the expert did not even meet with
the respondent
to ascertain his version as what had taken place.
A
further error on my part, so the applicant states, is my not
mentioning the evidence of Alex Strydom and Martinus Dry in my
judgment.
The reason for this is that I did not consider that their
evidence was useful in coming to a conclusion.
These
are the principal grounds upon which the applicants seeks leave, but
the ancillary grounds are not such as would incline a
court of appeal
to come to a different conclusion to that which I have come.
Although a fair amount of money is at stake,
making
the matter an important one for the parties. This is not sufficient
ground to grant leave to appeal. The primary consideration
is whether
I consider that another court may come to a different conclusion. I
do not think this is so, as on the evidence I have
outlined, the
respondentâs version has to be accepted as , on the balance of
probabilities, correct.
The application of leave
to appeal is accordingly refused with costs.
________________________
SAPIRE, ACTING
JUDGE
OF THE HIGH COURT