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[2009] ZAGPPHC 274
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Hadebe v Road Accident Fund (14396/2004) [2009] ZAGPPHC 274 (25 September 2009)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT, PRETORIA)
CASE
NO: 14396/2004
DATE:25/09/2009
In
the matter between:
RICHARD
M HADEBE
…...................................................................................................
Plaintiff
and
ROAD
ACCIDENT FUND
….............................................................................................
Defendant
JUDGMENT
LEDWABA,
J
[1]
The plaintiff instituted an action for damages against the defendant
arising out of an accident which occurred on 3rd June 1999,
on the N4
highway next to Cullinan in the Gauteng district. The plaintiff was
the driver of an Isuzu three ton truck with registration
number DCB
756 GP, (first truck), which collided with a twenty-two metre long
truck with registration number HTF 595 GP, (second
truck), driven by
France Mathaba, (the insured driver).
[2]
When the trial commenced I ordered that the merits and quantum be
separated in terms of Rule 33(4). The trial was to proceed
on the
merits and the proceedings in relation to issues concerning quantum
were postponed sine die or stayed. The parties by agreement
handed to
the court exhibit A, a bundle consisting of documents and photos, and
exhibit B, a bundle of photos.
[3]
The facts of this matter are not complex; it is common cause that on
3rd June 1999 at about 22H00 the first truck collided with
the rear
of the second truck on the N4 highway. Both trucks were on the
extreme left lane before the collision and were facing
the western
direction. After the impact of the two trucks came to a standstill on
the same left lane.
[4]
The plaintiff and the insured driver, together with his witness, Mr.
Isaa Riba, (Mr. Riba), did not agree on the exact location
of the
accident. However, they all said the scene where the accident
happened had no street lights, the moon was not shining and
it was
dark. Furthermore, it was not raining and the road was dry.
[5]
The plaintiff’s version of how the accident occurred is that as
he was driving at a speed of about 80 kilometres per hour,
his head
lights were on ‘bright’ and they shone for a distance of
about 7 metres. He saw an obstruction before him,
the second truck,
for the first time at a distance of 5 to 6 metres. He further said
that the second truck’s lights were
off, its reflectors and the
yellow reflective sign plate (chevron) at the back of the truck were
not visible.
[6]
Plaintiff said to avoid the collision, he changed down the gears and
applied brakes but the accident occurred. He further said
he did not
swerve the first truck because there could be a ditch on the side of
the road.
[7]
Plaintiff stated that after the accident the insured driver
approached him whilst he was stuck behind the steering wheel and
he
asked the insured driver why was the second truck on his path, the
insured driver’s response was that it broke down and
it could
not move. The insured driver, when he testified, denied that he told
the plaintiff and that the second truck had a break
down.
[8]
The plaintiff further said that the police came to the scene, after
furnishing the police with his particulars, he collapsed
and was
taken to the intensive care unit where he was kept for five days.
[9]
The version of the insured driver and his passenger Mr. Riba, is that
on the day of the accident they left Middelburg, in the
Mpumalanga
district, between 17H00 and 18H00 after loading twenty-five tons of
washed coal dripping with water.
[10]
They said when they left Middelburg they checked if the indicators
and lights of the second truck were in good working condition.
They
were satisfied that the lights were in good working condition and
that the chevron on the back of the second truck was clearly
visible
and not covered with the coal dust.
[11]
As they were driving on the freeway towards the west with the lights
of the second truck on the road was ascending. The insured
driver
said he saw the first truck from his rear-view mirror approaching. He
estimated the speed of the second truck to have been
about sixty
kilometres per hour, and Mr. Riba estimated the speed to have been
about fifty kilometres an hour. They suddenly heard
a bang and the
second truck came to a stand still.
[12]
Mr. Riba said that he went to the rear of the truck to check what
happened and reported to the insured driver who also went
to check
what happened. They saw the first truck which had collided with the
rear of the second truck and the front part thereof
was underneath
the second truck. About two tyres on the second truck were damaged.
Both of them said that the lights of the second
truck were on when
the accident occurred.
[13]
From the aforesaid it is clear that the crucial issue to be
determined is whether the second truck was mobile or stationary
when
the accident occurred.
[14]
When the plaintiff was specifically asked if the second truck was
stationed or mobile his response was that it was not visible.
His
response to the same question asked by the court he said he does not
know if the second truck was mobile or stationery.
[15]
The plaintiff in paragraph 5 of his particulars of claim made the
following allegation:
“
The
aforesaid collision was caused solely by or arose out of: The
reckless/negligent driving of the Insured vehicle by the Insured
driver, who was reckless/negligent in one or more of the following
respects;
5.1.
He failed to adhere to the road traffic rules by keeping his vehicle
stationery in the middle of the road at night.
5.2.
He failed to take any, alternatively sufficient cognizance of the
presence and the actions of the Plaintiff by not putting
up
reflectors to warn other road users in particular the Plaintiff.
5.3.
He failed to discharge his reasonable duty of care by putting the
lives of other road users in particular the Plaintiff at
risk by
leaving his vehicle stationery on a highway and at night.
5.4.
He failed to avoid the collision when, by taking reasonable and
proper care he could have done so”.
[16]
During arguments, the plaintiff’s counsel brought an
application, which application was opposed, to amend paragraphs
5.1
and 5.2 of the plaintiff’s particulars of claim by further
adding that the second truck was travelling at a low speed.
[17]
The plaintiffs counsel further submitted that the defendant should be
held liable because the defendant drove the second truck
at a very
low speed on a highway without warning other road users and that the
insured driver was further negligent in that, he
operated a truck
covered with coal on a free way without ensuring that it was visible
to other road users.
[18]
Of importance, in paragraph 2 of the plaintiff’s affidavit
dated 13th May 2002 on page two of exhibit A, he said the
following:
“
2.
I collided into a stationery truck in the left lane. The truck had
neither lights nor any signs to warn oncoming traffic. / did
not see
the truck until I collided into it. There was no way / could avoid
the accident.” (own underlining).
[19]
Plaintiff’s attorney instructed Fleet Management Consultancy CC
to reconstruct the accident. In their report, see page
20 of the
exhibit A it is noted that the plaintiff told A. M. Savage that he
saw a stationery vehicle which had no tail-lights.
It is further
noted that "... Mr. Hadebe could not identify the exact location
of the accident as many aspects such as the
tall plaza’s and
road markings had changed in the last ten years since the accident
occurred. ”
[20]
Contrary to what is set out in the aforesaid, the plaintiff testified
that he does not know if the second truck was mobile
or stationery
and he testified that he did see the second truck before the
collision.
[21]
When the plaintiff was cross-examined he said he could not say if the
truck was covered with dust or not, according to him
it was not
visible. The submission made by the plaintiff’s counsel, that
the truck was not visible because it was covered
with coal dust is
contrary to the evidence of the insured driver and Mr. Riba
Furthermore, there is no evidence to support same.
[22]
The plaintiff’s counsel submitted that the insured driver and
Mr. Riba’s evidence had material contradictions.
Despite the
contradictions mentioned by the plaintiff’s counsel, I find
that they were reliable and credible witnesses and
their version that
the truck was mobile, visible and that its lights were on is probable
and cannot be rejected.
[23]
The insured driver and Mr. Riba’s failure to explain
satisfactorily why at about 22H00 they were still on the road on
the
freeway next to Cullinan and have only covered a distance of about
100 kilometres if they left Middelburg at about 17H00, does
not in my
view, negate the fact that the vehicle was mobile and that the lights
on the back of the second truck were on.
[24]
The insured driver and Mr. Riba testified, that after the accident,
that the second truck was moved from the road and parked
under the
bridge. Mr. Riba further said the second truck was driven to Rosslyn
after its tyres were changed. If the truck could
move after the
accident I fail to understand why the insured driver would have let
it stop it in the left lane used by the vehicle
on the N4 freeway.
[25]
On the plaintiff’s version the head lights of the first truck
did not shine for a reasonable distance and the fact that
he said he
could not see the truck is, in my view, an indication that he did not
keep a proper lookout. Plaintiff’s failure
to observe and
respect the rights of other vehicles on the road constitutes
negligence, see Hoffman v South African Railways and
Harbours
1955
(4) SA 476
(A) and S v Van Deventer
1963 92) SA 475
(A).
[26]
The plaintiff keeps on supplementing and changing his version.
Initially he stated that the defendant’s vehicle was
stationery, now in his evidence he said he did not know if it was
stationery.
[27]
The application to amend at such a late stage of the proceedings
would be prejudicial to the defendant.
[28]
The alleged negligence raised by the plaintiff’s counsel about
driving at a slow speed on a highway has no causal link
to the
accident. I have considered the question of contributory negligence
and cannot find that the plaintiff proved same.
[29]
I therefore, make the following order:
(i)
Plaintiffs claim is dismissed with costs.