September and Another v Henney (A150/2007) [2009] ZAFSHC 74 (4 March 2009)

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[2009] ZAFSHC 74
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September and Another v Henney (A150/2007) [2009] ZAFSHC 74 (4 March 2009)

IN
THE HIGH COURT OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION
)
Appeal No.:
A150/2007
In the appeal between:
J.
J. SEPTEMBER
1
st
Appellant
P.
M. BEUKES
2
nd
Appellant
and
R.
R. HENNEY
Respondent
CORAM:
C.J.
MUSI, J
et
MOLOI, AJ
_____________________________________________________
HEARD
ON
:
2
FEBRUARY 2009
JUDGEMENT
BY:
C.J.
MUSI, J
DELIVERED
ON:
4
MARCH 2009
[1]
On
9 June 2005, on Meadows Road Bloemfontein, a motor vehicle collision
occurred between two minibus taxis. The plaintiff
1
(owner of vehicle with registration no CFB 806 FS) instituted an
action in the Bloemfontein Magistrate’s Court against the second

defendant (driver) and the first defendant
_____________________________________________________
1. I will refer to the
parties as they were referred to in the Court a quo.
(the
owner
of the vehicle with registration number CNY 979 FS). The magistrate
found that the collision was caused by the exclusive negligence
of
the first defendant. The counterclaim was dismissed. This appeal is
aimed at those findings of the magistrate.
[2] It
was common cause that both drivers acted within the cause and scope
of their employment. The quantum of both the main claim
and the
counterclaim were admitted.
[3] The
facts of this matter are relatively simple, and can be summarised as
follows. Mr Dikgang Joseph Sonjeca testified that
he was driving a
motor vehicle with registration number CFB 806 FS at 5H45 on the
morning of 9 June 2005 on Meadows Road. His
taxi was full of
passengers and he was driving in the direction of the City. Meadows
Road has a single lane in each direction.
Whilst driving at
approximately 40km/h he noticed a bus approaching from the opposite
direction. The bus driver indicated right
and stopped, whilst
waiting for his vehicle to pass. As he was approaching the bus, he
suddenly noticed a vehicle coming from
behind the bus in his lane and
direction. He attempted to avoid a collision by veering to his left
towards an open piece of land.
Unfortunately, his evasive action
could not avoid the collision and the collision occurred on the
vacant piece of land. The right
front corner of his vehicle was
damaged in the middle, slightly towards the left front. After the
collision he climbed out of
his vehicle and confronted the second
defendant. He asked him
“
wat maak hy, hoekom het hy so gery,
wat het hy gedink”.
The
second defendant did not answer he jus
t
shook his head.
[4] Mr
George Ntakazana testified that he is a taxi driver. On 9 June 2005
at approximately 05H45 his taxi was stationary on a
vacant piece of
land adjacent to Meadows Road. He was waiting for commuters /
passengers to get into the car. He saw a bus indicating
to turn
right. He looked in his rear view mirror and saw a motor vehicle’s
lights. He saw a white thing moving behind his vehicle
and the next
moment he heard a bang and saw how the car driven by the second
defendant moved across the road to where it came to
a stand still.
He was of the opinion that the second defendant wanted to execute a
U-turn when the collision occurred. He did
not know the second
defendant or Sonjeca.
[5] Ms
Patricia Windvoël testified that she was a commuter in the
plaintiff’s vehicle. She was seated in front next to the
driver.
She corroborates Sonjeca’s evidence in all material respects. They
differ in relation to the point of impact. I will
deal with aspect
later in this judgment. Ms Windvoël was the last witness to
testify on behalf of the plaintiff.
[6] The
second defendant, Mr Moses Beukes, testified that at the time in
question he was driving from the city towards Bergman Square
with
three passengers and his assistant. He saw a bus 100 metres before
him travelling in the same direction. The bus was standing
still and
indicating to the right. He then drove across the road, towards his
right, to the open field. It was safe to do so
because there were no
oncoming cars. When he reached the vacant piece of land still facing
in his original direction he drove
approximate 50 metres and stopped.
Whilst standing there for a few seconds, he suddenly saw the
plaintiff’s vehicle in front
of him. He could do nothing to avoid
the collision. That vehicle then collided with his vehicle. The
impact was so hard that
his vehicle turned, faced the opposite
direction and moved across the road to the other side of the road.
He was not in control
of the vehicle when it so moved.
[7] Mr
Jacobus September (first defendant) testified that he is the owner of
the vehicle that was driven by the second defendant.
Mr Beukes
called him, telephonically, and he went to the scene. There he spoke
inter alia to Sonjeca who told him that he was
trying to avoid an
accident when he went off the road and collided with his vehicle. He
saw debris on the ground approximate 4
metres from the tar surface
and deduced that that must be the point of impact.
[8] The
learned magistrate was of the view that the only issue to be decided
was whether the vehicle driven by the second defendant
was stationary
or moving when the collision occurred. The magistrate found that the
plaintiff’s version is more probable and
credible and therefore
correct i.e. that first defendant’s car was moving when the
collision occurred.
[9] This
finding is hotly contested by Mr Esterhuyse on behalf of the two
defendants. Mr Grobler, on behalf of the plaintiff supports
the
magistrate’s findings.
[10] It
is trite that a Court of appeal will not easily interfere with the
credibility findings of a trial court. The principles
which should
guide an appellate court in an appeal purely upon fact has been set
out in
Rex
v Dhlumayo and Another
.
2
If I find that the magistrate misdirected herself or that she was
wrong with regard to the credibility findings that she made
I will be
at large to interfere therewith
3
.
I must also be mindful of the fact the overemphasis on the
advantages which the trial court enjoyed should be avoided. It has

also been said that credibility findings cannot be judged in
isolation, but they must be considered in the light of proven facts

and the probabilities of the matter under consideration.
4
[11] Mr
Esterhuyse argued that the evidence of Sonjeca and
________________________________________________
2.
1948
(2) SA 677
(AD) at 705 – 706.
3. See Mohammed and
Another v Jassien
[1995] ZASCA 115
;
1996 (1) SA 673
(AD) at 701 D – F.
4. Santam BPk v Biddulph
2004 (5) SA 586
(SCA) at paragraph [5].
Windvoël
indicated that the point of impact was on the tar
surface.
He was of the view that they changed their respective versions to
indicate that the point of impact was on the vacant
piece of land.
He contents that this discrepancy which he calls an irregularity was
never explained. The evidence of Sonjeca
was clearly that the point
of impact was on the vacant piece of land. He testified in chief and
during cross examination that
the point of impact was on the vacant
piece of land. The magistrate made the following finding in this
regard:
“
die volgende
feite blyk gemeensaak tussen die partye te wees… dat die punt van
impak grootliks op die grondgedeelte; langs die
teeroppervlak
plaasgevind het.”
I
simply can’t understand Mr Esterhuyse’s criticism of the
magistrate’s finding. Ms Windvoël also indicated that the

point of impact was on the vacant land.
[12] Mr
Esterhuyse referred us to parts of Sonjeca, Ntakazana and Windvoël’s
evidence to point out what to him are serious
discrepancies. I must
confess I don’t share his enthusiasm. It does not help to quote
portions of witnesses’ evidence out
of context and then say that
they are unreliable or that their evidence is untruthful. What is
required is to show that the essential
features of the witnesses’
story or recollection is on a balance of probabilities not true. It
is not the number of discrepancies
between witnesses that is of
paramount importance in making credibility findings, it is the impact
of such discrepancies on the
witnesses’ evidence, its impact on
other witnesses’ evidence and whether it is in sync with the
probabilities of the case.
The magistrate was mindful of the
contradictions in the state witnesses’ evidence and said the
following in this regard:
“
Klein weersprekings het wel
voorgekom, maar was dit myns insiens nie van so ‘n wesenlike aard
dat dit ‘n verwerfsing van hul
weergawes noodsaak nie”.
The magistrate was also
thoroughly aware that the evidence must be evaluated in the light of
the probabilities too. She came to
the conclusion, rightly so, that
the defendant’s version is improbable.
[13] The
evidence of Sonjeca was indeed corroborated by Windvoël and
Ntakazana. Sonjeca’s evidence that he confronted the
second
defendant immediately after the accident and that the second
defendant only shook his head was never disputed. The question
that
invariably arises is: why did the second defendant not there and then
say to him but you are talking nonsense you drove into
my car whilst
it was stationary. He does not do that; instead he keeps quiet and
shakes his head. When the first defendant came
on the scene Sonjeca
told him that he was trying to avoid an accident when the collision
occurred. Again he was not confronted
with the second defendant’s
version. Strange enough the first defendant does not ask his own
driver (the second defendant) what
happened. It is clear that the
second defendant gave no explanation because his fabrication was
still in its infancy. This also
shows that Sonjeca’s evidence is
not a recent fabrication. Ntakazana and Windvoël are independent
witnesses. They had no
axe to grind with the second respondent.
Windvoël was slightly injured. I find it strange and improbable
that she would protect
the very person who caused her injuries.
[14] It
is in my view also highly improbable that Sonjeca’s vehicle
collided with the second defendant’s vehicle with such force
as to
turn the vehicle to face in the opposite direction and then move
across the road, unassisted. What is more probable is that
the
second defendant was still in control of the vehicle after impact and
drove it whilst trying to control it to the place where
it came to a
halt.
[15] The
magistrate correctly pointed out that the first and second
defendant’s hypotheses (speed and blinding by the bus’s
lights)
in relation to what caused Sonjeca to drive into the first
defendant’s vehicle is improbable. The hypotheses do not
tally
with the probabilities.
[16] Although
the magistrate found that the second defendant contradicted himself
in relation to whether the bus was indicating
to the right whereas I
could find no such contradiction, nothing much turns on this point.
This misdirection – if it is one
– is negligible and has no
impact on the totality of the magistrate’s reasoning and findings.
Mr Esterhuyse emphasised that
the second defendant did not contradict
himself. This is cold comfort. The second defendant’s version is so
out of kilter with
the probabilities that the lack of contradictions
in his version barely counts for anything.
[17] Much
has been made of the first respondent’s reconstruction of the
accident scene. The first defendant is by no stretch
of the
imagination an expert when it comes to accident reconstruction. His
evidence is opinion evidence and therefore inadmissible
because he is
not an expert. The first defendant’s evidence is only relevant and
admissible in relation to what he saw at the
scene and not in
relation to what inferences he drew from what he saw.
[18] I
find that the magistrate’s reasoning is solid, correct and in line
with the probabilities.
[19] I
agree with Mr Grobler that Sonjeca found himself in a position of
imminent danger and had to do his best under the circumstances.
By
veering to the left he took reasonable evasive action – if not the
only evasive action. I can’t imagine any other steps
that Sonjeca
could have taken under the circumstances. There is in my view no
contributory negligence on the part of Sonjeca.
The appeal ought to
be dismissed.
[20]
There is no reason why the costs should not follow the
success.
[21
]
I
accordingly make the following order.
The appeal is
dismissed with costs.
____________________
C.J.
MUSI, J
I concur
____________________
K.J.MOLOI,
AJ
On
behalf of Appellants: Mr J.L. Esterhuyse
Instructed by:
Esterhuyse
& Lunch BLOEMFONTEIN
On
behalf of the Respondent: Adv. S Grobler
Instructed by:
McIntyre
& Van Der Post
BLOEMFONTEIN
/ms