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[2009] ZAGPPHC 147
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Shongoane v Segabetla and Another (18284/2004) [2009] ZAGPPHC 147 (20 November 2009)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT, PRETORIA)
CASE NO:
18284/2004
20
November 2009
In
the matter between:
MOLEFE
CAIPHUS SHONGOANE
Plaintiff
And
S.
SEGABETLA
First Defendant
M.
M. SEGABETLA
Second
Defendant
______________________________________________________
JUDGMENT
LEDWABA,
J
[1] On 3
rd
August 2001 the plaintiff was a passenger in a E20 minibus taxi motor
vehicle with registration number MJV656GP (the vehicle), driven
by
the second defendant who was acting within the course and scope of
his duties with the first defendant. The said vehicle collided
with a
cow on the road between Lephalale and Shongoane.
[2] The
Road Accident Fund, since the plaintiff was a passenger, paid him a
limited amount of R 25 000. The plaintiff is now claiming
for the
difference of his damages allegedly caused by the second defendant’s
negligently driving, under common law, from the
defendants jointly
and severally.
[3] As the
parties agreed I ordered in terms of Rile 33(4) of the rules of this
court that the merits and quantum be separated. The
trial proceeded
on merits and the issue of quantum be stayed.
[4] The
plaintiff testified and closed his case after calling one witness.
The second defendant also testified and thereafter closed
his case.
The first and second defendants in the plea admitted that when the
accident occurred the second defendant was acting within
the course
and scope ofhis employment with the first defendant. The first
defendant did not testify nor call any witnesses.
[5] The
plaintiff and his witness, Shadrack Mofokeng (Mr. Mofokeng),
testified that on the day of the accident they were seated on
the
front seat. The plaintiff was sitting next to the door and Mr
Mofokeng in the middle between the plaintiff and the second
defendant.
They said that when the taxi left Lephalale the second
defendant did not stop at a certain stop sign and when they reached a
certain
side road junction the second defendant turned to the right
when it was safe to do so and nearly caused an accident.
[6] As they
were driving on a straight tarred road with two lanes accommodating
vehicles driving to opposite direction, they passed
a herd of cattle
on their left hand side. The weather was clear and it was dusky.
There are photos in bundle ‘A’ showing
the scene of the
accident and the game fence on each side of the road.
[7] The
plaintiff and Mr. Mofokeng further said after passing the herd of
cattle, some about six meters from the herd, a cow from
the left ran
to the centre of tarred road in front of the vehicle driven by the
second defendant. As the cow was crossing from the
left to the right
the second defendant swerved to the right and collided with the cow
in the middle of the tarred road.
[8] The
plaintiff and Mr. Mofokeng further said that the second defendant was
driving at a high speed; Mr. Mofokeng estimated the
speed to be about
130 kilometres per hour. The plaintiff testified that to draw the
second defendant’s attention to the presence
of the cow he said
‘hi man a cow’. Mr. Mofokeng gave a long explanation that
when he saw the cow running to the road
he told the second defendant
that there was a cow on the road, he should reduce his speed, and he
should swerve to the left, the
direction where the cow came from.
However, the second defendant did not respond nor comply accordingly.
Both denied that prior to
the collision there was an oncoming vehicle
from the opposite direction that passed them.
[9] The
defendant denied that when he left Lephalale he drove negligently. He
stated that when the accident happened it was dark,
the lights of the
vehicle were on and the vehicle was in a good condition with its
speedometer functioning properly. Prior to the
accident he was
driving at a speed of 80-100 kilometres per hour.
[10] He also
said he used to travel on the said road regularly and did not expect
cattle to roam on the road. In describing how the
accident happened
he said after an oncoming vehicle passed his vehicle, he suddenly saw
a cow that he collided with. He tried to
apply his brakes but could
not avoid the collision.
[11] He
denied that prior to the collision the plaintiff and Mr. Mofokeng
warned him about the cow that was crossing the road. He
further said
he did not see a herd of cattle prior to the accident.
[12] The main issue to be
decided is whether the second defendant was negligent as alleged by
the plaintiff. In the plea, the defendant
denied that he was
negligent and in the alternative, that his negligence, if any, caused
and/or contributed to the collision.
[13] In
paragraph 6 of the plaintiff’s particulars of claim the
plaintiff made the following allegation:
“6. The
sole cause of the collision was the negligent of the Second
Defendant, who was negligent in one or more or all of the
following
respects:
6.1 He failed to
keep a proper lookout;
6.2 He failed to
apply brakes timeously or at all;
6.3 He failed to
keep the motor vehicle under proper control or lost control
thereof;
6.4 He drove the
motor vehicle without due regard to the interest of the public
more in particular those of the Plaintiff.
6.5 He drove at an
excessive speed under the prevailing circumstances;
6.6 He failed to
avoid the accident and thereby causing the vehicle to collide with
a cow, when by exercise of reasonable and
due care, he could and
should have avoided the accident.”
[14] The
plaintiff’s counsel argued that the second defendant was
negligent; the second defendant’s legal representative
submitted that the second defendant could not have foreseen that a
cow would cross the road more especially because it was dark and
the
second defendant was blinded by the lights of the oncoming vehicle
when it passed his vehicle.
[15] In my
view, the plaintiff was an honest reliable and credible witness. Even
though Mr. Mofokeng’s evidence on certain aspects
cannot be
relied upon, and when he said before the collision he explained to
the second defendant about the speed, the presence of
the cow and
what action was he to take to avoid the accident. I, with respect,
find that to be impractical having regard to the speed
that he
alleged the second defendant was driving and the distance that he
measured when he saw the cow on the road for the first
time.
[16] When I
carefully analyse the defence raised by the second defendant it is a
defence of sudden emergency. There should be sufficient
evidence that
the second defendant faced an unexpected crisis, i.e., he had no
timeous warning and a reasonable opportunity to decide
on an
appropriate action to take.
[17] The second defendant
denied that they first passed a herd of cattle before the accident
occurred. However, during cross examination
he was referred to
exhibit ‘B’ on page 16. He confirmed that he signed the
document after reading it and was satisfied
that the contents were
correct. I need to state that the said statement cannot be regarded
as an affidavit because there is nothing
to show that he signed
before a commissioner of oath. Paragraph 1 and 2 thereof reads as
follows:
“Op
Vrydag 2001-08-03 om ongeveer 19:00 ek was ń bestuurder van
Nissan E20 met reg nr MJV 656GP. Ek het gery op die makken
Ellisras
teer terwyl. Ek besig om te ry ± 1 km vanaf Koedoe winkel het
klomp beeste van links na regs gehardloop op die teerpad.
Ek het die
voertuig se remme getrap ongelukkig dit was te laat toe het ek ‘n
bees gestamp.
Tydens die ongelluk
het ek 80 km per uur gery, na die ongeluk het ek opgemerk dat ‘n
passasier wat voor links geklim het beserings
gekry by sy linker
been. Die is al wat ek kan sê of verklaar.”
[18] When
the second defendant was confronted with the contents of the
statement he tried to justify the statement by stating that
he saw it
after the accident when he was driving to his home. The explanation
he gave does not make sense at all.
[19] The plaintiff in his
statement to the police said that he made about three weeks after the
accident also mentioned that they
had passed a herd of cattle before
the accident occurred see bundle B, paragraph 3 on page 12.
[20] On careful
evaluation and analysis of the evidence I am satisfied that just
before the accident happened the vehicle passed a
herd of cattle.
[21] In my view, the
second defendant’s denial of having seen same is rejected. On
seeing the cattle he should have known that
there are cattle on the
road and should have reasonably foreseen a possibility of other
animal(s) on the road and adjusted his speed
accordingly.
[22] The plaintiff and
his witness testified that they saw the animal before the collision.
I therefore, think that the second defendant
did not keep a proper
look out and/or drive at an excessive speed in the circumstances.
[23] The defence of
sudden emergency raised in his evidence is in my view, a fabrication
and it was not even raised in his plea. The
existence of other
animal(s) or the road should have been reasonably expected.
Furthermore, the plaintiff’s version on how
the accident
happened is more probable.
[24] I therefore, make
the following order:
(i) The
first and second defendants are jointly and severally liable to pay
the plaintiff’s proven damages, less R 25 000
or agreed
damages.
(ii) The first and
second defendants are jointly and severally liable to pay the
plaintiff’s costs.
A. P. LEDWABA
JUDGE OF THE HIGH
COURT