Lupke v Road Accident Fund (3357/2002) [2009] ZAKZPHC 4 (12 March 2009)

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[2009] ZAKZPHC 4
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Lupke v Road Accident Fund (3357/2002) [2009] ZAKZPHC 4 (12 March 2009)

IN THE
HIGH COURT OF SOUTH AFRICA
NATAL
PROVINCIAL DIVISION
CASE NO.
3357/2002
In the
matter between:
FRANS
ALBERTUS LUPKE

PLAINTIFF
and
ROAD
ACCIDENT
FUND

DEFENDANT
J
U D G M E N T
NDLOVU
J
Factual
Background
[1]       In
this matter the plaintiff sued the defendant for a total sum of R905
042, 99 in
respect of damages resulting from injuries which the
plaintiff allegedly sustained in a motor vehicle collision on 12 May
2000
along the Richmond-Ixopo road (R56) between a vehicle driven by
the plaintiff and another vehicle driven by the defendant’s

insured driver.
[2]       The
plaintiff alleged in his pleadings that the sole cause of the
collision was the
negligent driving of the insured driver who was
negligent in one or more of the following respects:
1.
He failed to keep a proper
lookout;
2.
he
drove too fast under the circumstances;
3.
he
failed to avoid a collision when, by the exercise of reasonable care
and consideration, he should and could have done so;
4.
he
failed to apply the brakes of the insured vehicle timeously or at
all;
5.
he
failed to keep the insured vehicle under proper control;
6.
he
drove without the consideration of the other road users, namely the
plaintiff.”
(Paragraph
5 of the plaintiff
’
s
particulars of claim)
[3]
In response, the defendant denied the plaintiff’s allegations
and averred, instead,
that the sole cause of the collision was the
negligent driving of the plaintiff who was negligent in one or more
of the following
respects:
1.
He
failed to keep a proper lookout;
2.
he
failed to keep a safe following distance between his motor vehicle
and the insured driver’s motor vehicle;
3.
he
attempted to overtake the insured driver’s motor vehicle at
inopportune time and place;
4.
he failed to avoid the
collision when by the exercise of reasonable care and consideration
he should and could have done so;
5.
he failed to apply the brakes
of his motor vehicle or at all;
6.
he drove too fast under the
circumstances;
7.
he failed to keep his motor
vehicle under proper control;
8.
he
drove without the consideration of other road users;
9.
he
failed to take heed of the insured driver’s signal indicating
to overtake a truck which was travelling in the same direction;
10.
he
failed to hoot or give adequate warning to the insured river which
may have avoided the collision.”
(Paragraph
5 of the defendant’s plea, as amended)
[4]
By agreement between the parties, the Court separated the issues of
liability and
quantum and the matter proceeded on the issue of
liability only. (Rule 33(4)). In other words, the Court was required
to determine
whether the cause of the collision was the negligent
driving of the insured driver as alleged in paragraph 5 of the
plaintiff’s
particulars of claim (referred to above), or of the
plaintiff as alleged in paragraph 5 of the defendant’s plea, as
amended
(referred to above).
[5]
Throughout the proceedings the plaintiff was represented by Mr
Leppan.  The defendant
was initially represented by Mr
Padayachee who later withdrew and was replaced by Mr Choudree SC.
The plaintiff testified
and called three further witnesses, namely
his wife Jennifer Jane Lupke, Fale Zenzele Dlamini and Bonginkosi
Mandla Mbanjwa.
On the other hand the defendant’s case
was supported by the evidence of the insured driver Eugene Van der
Merwe, Sergeant
Zindela Patrick Madondo and Mrs Wilna Badenhorst, the
vehicle accident reconstruction specialist.
The
Plaintiff’s Case
[6]
The plaintiff told the Court about his relationship with Eugene Van
der Merwe (“Van
der Merwe”) prior to this incident.
He said he had known the Van der Merwe’s for about three years
and had previously
sold a farm to them which, however, he later
bought back.  Van der Merwe had also worked for him as a welder
on the farm but
at the time of this incident he was no longer in his
employ.  According to the plaintiff, he and Van der Merwe were
therefore
in a good relationship and in fact were friends.
[7]
He further told the Court that prior to this incident they had been
at his (the plaintiff’s)
house at Langefontein Farm in
Richmond.  Van der Merwe was selling a boat at the time and on
the day in question (that is,
12 May 2000) the plaintiff had people
who had come from Durban to have a look at the boat.  Van der
Merwe fetched them from
the plaintiff’s house to go and see the
boat and later brought them back.  At about lunch time (after
the Durban visitors
had gone) Van der Merwe left the plaintiff’s
home and the plaintiff followed him, but not very closely.  They
were both
proceeding to Ixopo and would take the Ixopo-Richmond Road
(R56), travelling from a northerly to a southerly direction.
The
plaintiff was travelling in his Isuzu bakkie with registration
number NIX3533 and van der Merwe in his Toyota Corolla with
registration
number NIX634.  The plaintiff pointed out that
Ixopo was only about 13 kilometres from his house.  He further
stated
that when Van der Merwe was in his house he had asked for
mealies from the plaintiff and the plaintiff had given him two bags
of
the mealies (with a mass of about 50kg each) which Van der Merwe
had then placed in the boot of his vehicle.
[8]
The plaintiff testified that when he joined the R56 main road he
noticed Van der Merwe
already proceeding towards Ixopo and following
a truck.  The plaintiff proceeded in the same direction. He also
added that
he was not in a hurry to get to Ixopo. Eventually he
caught up with Van der Merwe and followed him about 2 kilometres
behind.
He said he was travelling at about 50-60 kilometres per
hour when he caught up with Van der Merwe and the truck.  He
estimated
the truck was travelling at about 30 kilometres per hour as
it was then on an uphill.  He had then reduced his speed to
about
30 kilometres per hour as well.  The three vehicles
continued travelling on the uphill until they reached a flat terrain
and
he then saw Van der Merwe indicating his intention to overtake
the truck and at the same time moving slightly towards the right
hand
side to overtake.  However, Van der Merwe quickly came back
again behind the truck.  Thereafter they proceeded for
about
another kilometre until they reached another part of the road where
it was clear in front and permissible to overtake.
According to
the plaintiff, at that stage one was able to see about a kilometre
ahead and there was no obstruction impeding overtaking.
He
referred to the photographs contained in the photograph album
(Exhibit “A”) depicting that the vehicles were travelling

from the direction of Richmond towards Ixopo, which was from north to
south.
[9]
Seeing that it was then clear to overtake the plaintiff signalled his
intention to
overtake both Van der Merwe and the truck in front of
him.  He then overtook the vehicles, but suddenly felt, as he
described
it, a bump on the left front side of his vehicle which was
pushed away and it wavered on the road and went off the road towards

the right hand side.  He had then collided with Van der Merwe’s
vehicle.  The collision took place at the bend
almost opposite
the entrance to Ferryby Farm, as shown in the photographs in Exhibit
“A”.  His vehicle veered
off and collided with the
corner of the railings on the southern side of the entrance mouth.
[10]
The plaintiff further told the Court that the sugar cane plantation
that was seen at the top
right hand corner of photographs 1 and 2 of
Exhibit “A” were not there on the day of the collision
which, according
to him, showed that these photographs were taken
some time later.  He said after the collision he momentarily
passed out but
soon regained consciousness again.  When he came
to he saw Van der Merwe’s car being pushed from the road behind
his
vehicle into the gap that was towards the entrance to Ferryby
Farm.  He said as he was still seated injured in the vehicle
Van
der Merwe came to him and said “I am sorry, I didn’t see
you” and at the same time putting his coat over
the plaintiff.
[11]
As a result of the collision the plaintiff sustained injuries which
included a broken leg.
The ambulance was called and conveyed
him to hospital.  His wife had also arrived before he was taken
away.  He was hospitalised
from 12 May 2000 until 24 May 2000.
[12]
According to the plaintiff shortly before the collision Van der Merwe
had not indicated his intention
to overtake the truck.  The last
time Van der Merwe had made such indication was when he had moved
slightly to the right as
if he was overtaking the truck but had
quickly come back behind the truck.  Thereafter the plaintiff
had followed behind Van
der Merwe for the next ¾ kilometres
prior to the collision. However he could not say whether Van der
Merwe was aware of
his presence behind him.  He said immediately
before he overtook he had flashed his headlights to indicate to both
Van der
Merwe and the truck that he was overtaking.  That was
something he always did when about to overtake a vehicle.  He
did
not see the actual collision but only felt a bump.  He
thought he might have been parallel to Van der Merwe’s motor
vehicle when the collision took place.
[13]
He testified that the road consisted of only two opposite carriage
ways, each lane being approximately
3.4 metres wide.  The truck
was travelling in its lane and was approximately the same size as the
truck seen in photograph
20 of Exhibit “A”.
[14]
The plaintiff further stated that he had been driving extra heavy
duty vehicles for the past
43 years from the day of the collision.
After this collision he was summoned to the Ixopo Magistrate’s
Court to face
a charge of reckless or negligent driving which however
was subsequently withdrawn by the prosecutor.
[15]
Under cross-examination the plaintiff stated that he did not make a
statement shortly after the
accident because he was in hospital.
However when the police came to him for his statement in 2003 he
declined to make it
for the reason that he wanted to first consult
with his lawyer.
[16]
He regarded Van der Merwe’s apology at the scene of the
accident as amounting to an admission
of guilt on the part of Van der
Merwe.  He made his statement through his attorney on 5 December
2001 (filed at page 13 of
the defendant’s bundle of documents –
Exhibit “C”).
[17]
It was put to him that if Van der Merwe indeed apologised at the
scene, as the plaintiff claimed,
then the plaintiff would have told
the police about it when he was charged in connection with this
collision in 2003.  He
said in every case he referred issues
such as these to his attorney.  In any event, the police also
advised him that he was
not compelled to make the statement.
[18]
He said he was not sure whether the truck followed by Van der Merwe
was a timber truck but he
said it was a 12-ton truck and solid
(enclosed) at the back, not like the timber trucks he was used to.
It was put to him
that Van der Merwe would say that there were two
trucks which he drove past, the first was enclosed which he overtook
and then
reached another truck which was a timber truck.  The
plaintiff said he only saw one enclosed truck and that there was
never
a timber truck on the road at the time.
[19]
Discrepancies were pointed out to the plaintiff about paragraphs 2
and 3 of his statement where
he stated, firstly, that he was
travelling from Ixopo to Richmond and, secondly, that Van der Merwe
was travelling behind a timber
truck.  He said these paragraphs
were incorrect.  The correct position was that he was travelling
from the direction
of Richmond to Ixopo and that the truck was
enclosed or “covered in” – the same as his which he
used to carry
timber and cattle in. He further stated that part of
his statement was incorrect because it referred to the oncoming lane
as dual
lane.  As the photograph showed, it was a single lane.
[20]
The plaintiff further said that he could not recall whether he read
his statement before he signed
it.  At this point he stated that
as a result of this accident he had been affected mentally and that
his wife and his doctor
could testify on that aspect.  Even
though the collision occurred some four years prior to him giving
evidence in Court he
still suffered memory loss and “forgot a
lot of things”.  In short, he admitted that the accident
had made his
memory poor in the sense that he could no longer
remember things in the same way as he used to do before.
[21]
He also acknowledged that he was not injured as a result of the
impact directly caused by the
collision but as a result of the impact
when his motor vehicle hit the barrier on its right front.  The
point of impact was
at the corner of the railing (as seen in
photographs 1 and 28 of Exhibit “A”).
[22]
He denied Van der Merwe’s version (which was put to him) that
the photographs in Exhibit
“A” were taken on the day
following the collision.  The plaintiff insisted that the sugar
cane plantation seen
on the top right hand corner in photographs 20
and 21 of Exhibit “A” were not there on the day of the
accident.
He also denied that the shattered/broken pole in
photographs 20 and 20(a) were as a result of the impact with his
motor vehicle.
He disputed further that his motor vehicle
caused skid marks which
Mr
Padayachee
pointed out to
him in photograph 20 and 20(a) leading to the shattered pole.
[23]
When it was further put to him that the two visitors from Durban were
in fact not fetched by
Van der Merwe from the plaintiff’s house
but that the plaintiff had dropped the men at the crossroad from
where Van der Merwe
picked them up, the plaintiff said that it was
possible.  In this regard he conceded that he could have made
the mistake through
his poor memory.  He said he had only
presumed that the men were collected by Van der Merwe from his farm
because their motor
vehicle had remained on the farm.  They had
left his farm prior to Van der Merwe’s departure.  He also
insisted
that he gave Van der Merwe two bags of mealies, not one as
suggested to him by counsel.
[24]
The plaintiff reiterated that he was not in a hurry on this day.
He was proceeding to Ixopo
to buy cattle feed.  He denied having
said to Van der Merwe that he was in a hurry to do licence renewal in
Ixopo and from
there to rush to Pietermaritzburg to attend to other
business commitments.
[25]
He further stated that when he caught up with Van der Merwe on the
uphill he was probably travelling
at about 40, 50 or 60 kilometres
per hour.
[26]
The plaintiff further insisted that Van der Merwe did not overtake
the truck the first time round
when he had pulled back behind the
truck.  This was despite the fact that there was sufficient
space for Van der Merwe to
overtake and there was no oncoming
traffic.  It was put to him that Van der Merwe did not overtake
first time round because
there was an oncoming truck, to which the
plaintiff responded he did not see that oncoming traffic.  He
also did not see Van
der Merwe shortly before the impact because he
was concentrating on the road.
[27]
He said prior to Van der Merwe apologising he had asked him: “what
have you done to me?”
to which Van der Merwe said he was sorry
and that he had not seen the plaintiff.  It was put to him that
he had not stated
in his evidence-in-chief that he had in fact asked
van der Merwe that question and that it was therefore a made-up
story.
He denied the suggestion.  He also refuted a
further proposition that when Van der Merwe came to him he was
unconscious in
the motor vehicle.  He said that it could not be
true because Van der Merwe even spoke to him at the motor vehicle.
[28]
He denied any suggestion that he was not wearing a seat belt at the
time of the collision.
His motor vehicle was a 1990 Isuzu LDV
(bakkie) and it was written off after the accident.  According
to his knowledge Van
der Merwe’s insurance admitted liability
and, through the plaintiff’s attorneys, paid for the motor
vehicle which was
not insured.  Defendant’s counsel
pointed out to the plaintiff that Van der Merwe would deny that his
insurance paid
for the plaintiff’s motor vehicle.
[29]
It was put to the plaintiff that according to Van der Merwe his motor
vehicle’s front wheels
were parallel to the truck’s rear
wheels when the collision occurred as a result of plaintiff trying to
overtake Van der
Merwe at that stage.  The plaintiff’s
motor vehicle had then veered off straight to the barrier.  In
response,
the plaintiff said that would have been impossible.
[30]
Counsel then referred the plaintiff to paragraph 5 of the statement
deposed to on 12 May 2001
by the plaintiff’s own witness Fale
Dlamini (at page 12 of Exhibit “C”).  Dlamini was to
testify as an eye
witness. In his statement to the police Dlamini
said:
“
Motor vehicle B
(ie plaintiff’s motor vehicle) was trying to overtake motor
vehicle A (ie Van der Merwe’s motor vehicle)
and the truck at
the time motor vehicle A was overtaking the truck.”
[31]
The plaintiff emphatically disputed Dlamini’s statement on this
point.  It was pointed
out to him that Dlamini’s statement
was precisely what Van der Merwe would say actually happened.
The plaintiff was
adamant that it did not happen that way and further
expressed that he remembered that aspect very well.  Of course,
this assertion
tended to contradictd his earlier testimony of
suffering from memory loss.
[32]
The plaintiff acknowledged that he instructed his attorneys to lodge
a claim against the defendant
and that as such he would have
instructed his attorneys as to how the accident happened.  In
other words, even the sketch
plan attached to his claim would have
depicted his version of the matter.
[33]
He further said he was travelling at a speed of not more than 40
kilometres per hour.  However,
when it was put to him that Van
der Merwe was travelling at between 60 and 65 kilometres per hour and
that the plaintiff’s
speed was faster than that, his
(plaintiff’s) answer was that he never looked at his speed
(presumably referring to his speedometer).
[34]     He
conceded that it was not possible for the total width of that road to
accommodate three motor
vehicles of their size parallel to each
other.
[35]
As to his previous unrelated hospitalisation, the plaintiff stated
that he was admitted at St
Anne’s Hospital in Pietermaritzburg
in April 2000 to have a hernia operation.  That was just about
one month prior to
this accident.  However, he could not
remember telling Van der Merwe on 28 April 2000 that he was on pain
medication for back
spine.  As far as he knew he was not taking
any pain treatment at that stage.  It was put to him that
according to Van
der Merwe, he (the plaintiff) was driving with
complete negligence which suggested that he was either under the
influence of liquor
or some medication.  He denied both.
It was further put to him that if he was momentarily unconscious
(which the plaintiff
intimated he was) then he could not have known
for how long he was so unconscious.
[36]
The plaintiff further reiterated that the photographs in Exhibit “A”
could not have
been taken on the day following the accident.  He
reckoned that they could possibly have been taken even after three
years
because they did not depict the scene as it was on the day of
the accident.
[37]
The plaintiff also acknowledged that he suffered back injuries from
this accident.  When
he was 19 years old he was involved in a
motor cycle accident when he fell off the cycle and sustained broken
legs.
[38]
He further acknowledged that approximately 2½ years prior to
the accident he fell into
a hold on the farm.  However, in none
of the prior incidents did he sustain any back or spinal injury.
He denied any
suggestion that prior to the accident he had gone to
Johannesburg for spinal treatment or any other treatment, for that
matter.
The only problem he had which was bone-related was
arthritis but he denied that he had any walking problem prior to the
accident.
Such condition started after the accident.
[39]
It was further suggested to the plaintiff that nowhere in his
pleadings was it alleged that Van
der Merwe had driven into his
(plaintiff’s) motor vehicle.  The plaintiff replied that
such was the issue handled by
his attorneys on his behalf and
therefore he could not comment to that.
[40]
When questioned by the Court on the issue of him becoming momentarily
unconscious (in relation
to the time when Van der Merwe came to him
at the vehicle) the plaintiff said that Van der Merwe came to him
before he fell semi-conscious.
It was at that stage that he
asked Van der Merwe about what he (Van der Merwe) had done to him.
[41]
In re-examination, the plaintiff testified that he was never invited
to attend the scene of the
collision when the accident reconstruction
expert Mrs Badenhorst was investigating the matter.  The mass of
the two bags of
mealies he gave to Van der Merwe free of charge on
that day was 100 kg (being 2 x 50 kg).
[42]
The plaintiff’s wife Jennifer Jane Lupke, did not witness the
collision herself but was
only called to the scene by the plaintiff,
so she told the Court. When she arrived at the scene both the
ambulance and the police
had not yet arrived.
[43]
She found the plaintiff slumped on the seat more on the driver’s
side towards his left.
He was complaining of neck pain and some
stabbing feeling on the left side.  She said she then put her
hand underneath the
plaintiff to check what was stabbing him.
She discovered it was the seat belt fastened under his body.
She unhooked
the seat belt.
[44]
She further told the Court that she knew Van der Merwe whom she said
was also at the scene.
Van der Merwe came to her and said “I’m
sorry” but she simply ignored him.  That was all that van
der Merwe
said.  His car was damaged on the right fender.
[45]
Mrs Lupke further stated that prior to this accident, the plaintiff
had never complained of any
back problem.  She was aware that
the plaintiff was paid by Van der Merwe’s insurance a sum of
R15 500,00.  In
April 2000 the plaintiff underwent a surgical
operation.  But he was not placed on any medication upon his
discharge.
On the day in question the plaintiff had not taken
any medication.  He was also never admitted in hospital for
spinal treatment
and never went to Johannesburg for any medical
treatment.
[46]
She knew Margaret Van der Merwe, who was Van der Merwe’s
mother.  She did not know
whether plaintiff ever told Mrs van
der Merwe that he had back pain but she reckoned that the plaintiff
would not have done so
because he did not complain of any pains.
Further, the plaintiff had no reason to discuss such things with Mrs
Van der Merwe.
She further told the Court that from her
observation the width of the road (both lanes) at the scene could not
accommodate the
three vehicles concerned, namely, the Toyota Corolla,
the Isuzu bakkie and the truck.
[47]
Concerning the sugar cane plantation in photographs 20 and 21 of
Exhibit “A” Mrs
Lupke said she did not pay particular
attention as to whether it was there or not on the day of the
accident because as she drove
along the plantation (where it was)
would not have obstructed her view, any way.  She only noticed
that there were people
planting sugar cane on the right hand side of
the entrance to Ferryby Farm.  However, later she conceded that
the sugar cane
appearing in photograph 20 was indeed there on the day
of the accident.  She said if the plaintiff denied the existence
of
the cane it was because he did not notice it as it did not
obstruct his view.
[48]
Under cross-examination Mrs Lupke told the Court that the plaintiff
had been on his way to Ixopo
to pay for the licence renewal when he
was involved in the accident.  When it was put to her that the
plaintiff denied he
had gone to pay for the licence renewal she said
that was what she could remember.
[49]
She further stated that during April 2000 the plaintiff was
hospitalised at St Anne’s Hospital
for pile and hernia
operation.  He spent less than 10 days in hospital.  When
he returned home from the surgical operations
he did not take any
medication.  In April 2005 the plaintiff was only taking
medication for controlling high blood pressure
and uric acid.
[50]
Mrs Lupke was asked again about what Van der Merwe had said when he
tried to speak to her.
This time Mrs Lupke told the Court that
in addition to saying “I’m sorry” he had also said
something like “I
didn’t see him”.  She was
asked why she did not state this in her evidence-in-chief.  She
said she had probably
not carefully listened to
Mr
Leppan’s
question.
Counsel put to her that Van der Merwe would deny that he ever
apologised to her.
[51]
The next witness was Fale Zenzele Dlamini (“Dlamini”).
Both on the day of the
accident and when he gave evidence he was
employed as a driver by one Martin Bam (“Bam”) of Kiaora
Farm, in Richmond.
Dlamini had a Code 10 driver’s licence
obtained in 1996.  He knew both the plaintiff and Van der
Merwe.  He had
a Standard 4 education.  He told the Court
that he witnessed the accident.  He and his two friends and
workmates Bonginkosi
Mbanjwa and Mphikeleli Dlamini were standing and
hitchhiking on the road in the vicinity of the accident.  Of
course, it transpired
later in his evidence that Mphikeleli was in
fact his elder brother and Mvanjwa his distant relative. They were
hitchhiking to
Richmond.  As they were so standing he saw three
motor vehicles approaching from the direction of Richmond towards
Ixopo.
There was a truck in front, followed by a Toyota Corolla
and then an Isuzu bakkie behind.
[52]
Dlamini testified that he then saw the Isuzu trying to overtake the
Corolla and whilst it was
parallel to the Corolla then he saw the
Corolla trying to overtake the truck, hence the collision occurred
between the Corolla
and the Isuzu.  The Corolla got in front of
the Isuzu when the Corolla was trying to overtake the truck.
The Isuzu then
veered from side to side till it struck the railings
on the right hand side - on the other side of the road.
[53]
The Corolla remained stationary on the road and its engine had gone
off.  That was when
he saw Van der Merwe getting out of it.
Whilst controlling the steering wheel he pushed the Corolla towards
the entrance
to Ferryby Farm outside the road.  At this stage
the witness said he was standing on the right hand side of the road
next
to the Ferryby Farm entrance. He then saw Van der Merwe go to
the Isuzu, took off his jacket and placed it over the driver of the

Isuzu who was behind the steering wheel.  The Isuzu driver was
the plaintiff.
[54]
The police arrived at the scene. Whilst he and his companions were
standing there Van der Merwe
asked them to make statements to the
police about what they had seen.  Indeed, Dlamini made his
statement about what he had
seen to Sergeant Ngcobo of the SAPS,
Ixopo.
[55]
Dlamini said it was not true that Van der Merwe was parallel to the
truck when the Isuzu tried
to overtake both the Corolla and the
truck.  He was adamant that what he told the Court was what
happened and was also what
he told the police.  If there was a
discrepancy between what he told the Court and what appeared in his
statement that could
be explained by the fact that the statement was
taken in English which he could neither speak nor read.  The
policeman who
took down his statement was also Zulu-speaking as the
witness.  He did not know in what language the statement was
written
down.  However, the police officer read it back to him
in isiZulu and he confirmed it as correct.
[56]
The truck which was leading the three motor vehicles did not stop but
carried on.  Although
he could not clearly recall the type or
make of the truck he thought it was white in colour and enclosed at
the back.
[57]
The witness was subsequently subpoenaed to attend Ixopo Magistrate’s
Court.  He did
not know who was charged.  He went there
with his two workmates in Bam’s (his employer’s)
vehicle.  At court
he was called by the prosecutor to whom he
explained how the accident occurred.  Both Van der Merwe and the
plaintiff were
also present at court.  He said after the court
appearance Van der Merwe came to them and appeared very angry,
accusing them
of having told lies to the prospector.  He said
Van der Merwe then threatened him, asking him if he knew that he
would die.
As a result, the witness and his companions returned
to the police and reported Van der Merwe’s threats.
Whilst at
the police station Van der Merwe arrived there and the
police talked to him.
[58]
Under cross-examination Dlamini stated that he did not pass Standard
4 at school.  He was
born in 1978.  He also stated that
never worked for the plaintiff prior to 2000 and he did not know
whether or not his employer
Bam and the plaintiff were friends.
He did not know whether they visited each other, although he
acknowledged that their
farms were neighbouring each other.
[59]
He also said he knew both sergeant Madondo and sergeant Ngcobo of
Ixopo police station.
It was sergeant Ngcobo who spoke to him
at the scene of the accident when he made his statement.
[60]
Dlamini further told the Court that prior to attending Ixopo
Magistrate’s Court he and
his two companions did not speak to
the plaintiff.  However, he could not recall whether any one of
them spoke to the plaintiff
after they had spoken to the prosecutor.
He also did not remember when he saw for the first time his statement
that he made
to sergeant Ngcobo.  He recalled that his statement
was read and translated to him and he found that there were aspects
of
it that he disagreed with.  However, he did not recall who
read and explained his statement to him.  He also did not recall

whether he made more than one statement to the police.  When he
was further asked as to when he met with his attorney and
counsel for
the first time he said he could not remember.  He also said he
could not recall all these things because he had
many things he was
thinking about in his life.  Those things were disturbing his
mind. When the Court asked him about the
“things disturbing his
mind” Dlamini stated that it was the fact that his fiancé
with whom he had one 5 year-old
child had passed away the previous
year (that is, 2004).
[61]
He recalled that he did meet with the plaintiff’s attorneys but
could not say when that
was.  He denied that on the previous
week his employer Bam took him to the plaintiff’s attorneys.
He also did
not remember whether or not he came to Pietermaritzburg
on the previous Tuesday (2 days prior to the day he testified in
Court)
to meet with plaintiff’s attorney.
[62]
Again he was asked whether, besides the statement he made to Sergeant
Ngcoco, there was any other
statement he made to anyone else in
connection with this matter.   He said he could not
recall.  He further stated
that he met up with plaintiff’s
attorneys at the scene of the accident some time after the accident
but he could not remember
when that was.
[63]
The witness denied receiving any money from the plaintiff contained
in an envelope.  On
the day they were coming from the
Magistrate’s Court and threatened by Van der Merwe he (Dlamini)
was the driver of the bakkie
(belonging to Bam) in which they were
travelling.  He did not recall whether there was any money in
the vehicle ashtray.
[64]
He reiterated that he saw the Isuzu overtaking both the Corolla and
the truck at the same time.
Then the contents of Mbanjwa’s
statement were put to him which suggested that it was the Corolla
which overtook first and
whilst it was parallel to the truck then the
Isuzu started overtaking both the truck and the Corolla.  He
disputed this version.
[65]
Then Dlamini’s statement which he made to sergeant Ngcobo on
the day of the accident was
read out to him (and translated).
He initially admitted everything in the statement as correct
including the following:
“
When the driver of
Toyota Corolla trying to overtake the truck the driver of Isuzu
bakkie tried to overtake both the truck and the
Toyota Corolla at the
same time.  I saw that Isuzu bakkie knocked the Toyota Corolla
on its right hand side and went out of
the road then hit railing with
its front.”
Later,
however, he disputed the above quoted part of the statement saying
that he had not clearly heard the question.
[66]
When asked whether he had read anything to refresh his memory he said
he could not remember.
When asked how he managed to recall
events about the accident yet he could not recall many simple things
not specifically related
to this case he said it was because there
were death threats made to him in connection with this matter.
He did not recall
the colour of both the Corolla and the Isuzu.
In fact he said he was poor in colours.
[67]
He denied that during lunch break (of the same day he was giving
evidence) he had met with and
spoken to the plaintiff and his wife.
However, after the matter was adjourned for the day the same question
was put to him again
on the following day.  At that stage he
said he could not recall whether he spoke to the plaintiff or not.
However,
he eventually admitted that he did come across the plaintiff
during lunch break on the previous day but he could not remember
whether
they spoke to each other.
[68]
The witness Dlamini also admitted that he had come to Court in the
plaintiff’s motor vehicle.
When asked whether Mbanjwa and
Mphikeleli got a lift in the same motor vehicle, he did not want to
answer that question and said
he was only speaking for himself.
When the Court directed him to answer the question he then admitted
that Mbanjwa and Mphikeleli
were also with him in the plaintiff’s
bakkie coming to Court.
[69]
He further said when he saw the Isuzu overtaking the Corolla he did
not recall whether the truck
was travelling fast or slowly at that
stage.  He also did not recall whether there was a loud bang
when the collision took
place.
[70]
The witness denied that at the scene of the accident the police asked
from the crowd as to who
had witnessed the accident.  He said it
was Van der Merwe who told them to make their statements to the
police.  He had
then made his statement to sergeant Ngcobo.
He confirmed that Ngcobo had warned them to tell the truth.  He
also confirmed
that Ngcobo administered an oath to him before he
signed the statement.
[71]
The next witness Bonginkosi Mzwamandla Mbanjwa (“Mbanjwa”)
confirmed that he and
his companions Dlamini and Mphikeleli were
standing on the road hitchhiking for vehicles proceeding to either
Richmond or Ixopo
when the accident occurred in front of them.
The idea was that any motor vehicle which stopped first and offered
them a lift
they would take.  Hence, Dlamini and Mphikeleli were
standing on the side of the road with railings (and entrance to
Ferryby
Farm) (for vehicles to Richmond) whilst the witness was
standing on the other side of the road opposite Ferryby Farm entrance
(for
vehicles to Ixopo).
[72]
He testified that he saw a truck approaching from the direction of
Richmond heading towards Ixopo.
It was followed by a Toyota
Corolla, behind which was an Isuzu bakkie.  He said when the
Corolla drove past him the Isuzu
was already on the other side in the
process of overtaking the Corolla.  But before the Isuzu
finished overtaking the Corolla
he saw the Corolla swerving to the
right lane where the Isuzu was travelling.  Then the two motor
vehicles collided
behind the truck.  The Corolla had not got
completely onto the other lane when the collision occurred.  The
Isuzu then
lost control, veered off and collided with the barrier
next to Ferryby Farm entrance.  The driver of the Isuzu was the
plaintiff
and the Corolla was driven by Van der Merwe.
[73]
He and his companions made their statements to the police at the
scene explaining how the accident
took place but he did not recall
whether he signed his statement.  Subsequently, the police came
to him in connection with
the matter when he was at work on Bam’s
farm.  The police asked whether he was present when the accident
took place.
He did recall that at one stage he signed the
statement but he did not recall when and where that was.  He
could not say whether
it was at the scene or later when he was
approached by the police at work.  It was brought to his
attention that in fact he
made his statement only on 24 April 2003
(about 3 years later) and at Kiaora Farm where he was working.
[74]
It was further brought to his attention that in the statement he
stated that the collision occurred
when the Isuzu tried to overtake
the Corolla at the time when the Corolla was trying to overtake the
truck.  To this he said
he did understand that what appeared in
his statement differed from what he told the Court.  He stated
that the true version
was what he had told the Court.  He did
not understand English.  As far as he was concerned what he told
the police was
what he told the Court.  At school he went up to
Standard 5.
Mbanjwa
later attended the Ixopo Magistrate’s Court.  There he
explained to the prosecutor about what happened.
He was with
Dlamini and Mphikeleli (Michael).  Thereafter he was told to go
and that the case was finalised.  He denied
that the plaintiff
gave Dlamini R100.  Dlamini was driving Bam’s motor
vehicle in which they were travelled to the Magistrate’s

Court.
[75]
Whilst they were at the shop from the Magistrate’s Court, Van
der Merwe came to them and
asked them why they had told lies to the
prosecutor.  Van der Merwe further asked them if they knew that
they would die.
Mbanjwa said he became scared because of the
threat.  From there they proceeded to the police station to
report the incident.
Whilst they were there Van der Merwe also
arrived and said he had been joking.
[76]
The witness was shown photograph 21 of Exhibit “A” and
asked if the sugar cane appearing
in the photograph was there on the
day of the accident.  He said it was not there.
[77]
He further said that prior to meeting with the prosecutor they had
not met the plaintiff. However,
under cross-examination, Mbanjwa told
the Court that on the day he gave evidence in this Court he had got a
lift from the plaintiff
to come to Court.
[78]
His statement to the police was put to him in which, among other
things, he told a similar story
as that told by Dlamini in his
statement and which tended to support Van der Merwe’s version.
Mbanjwa disputed this
and said that he never made such statement to
the police.  His statement was taken by sergeant Madondo of the
SAPS, Ixopo.
He stated that he gave his statement to Madondo in
isiZulu.  Madondo read it back to him in isZulu and the witness
confirmed
the statement as it was indeed what he had told Madondo.
According to him, that was also what he had told the Court.
He
did not know whether (if there was any discrepancy in his two
statements) it meant Madondo was reading from another paper.
He
also could not remember whether there was some other document which
Madondo asked him to sign.  According to him, it meant
Madondo
recorded what he had not told him.
[79]
That concluded the case for the plaintiff.
The
Defendant’s Case
[80]
In his evidence the insured driver, Eugene Van der Merwe confirmed
that on the day in question
he was the driver of the Toyota Corolla
registration number NX634 which collided with the plaintiff’s
Isuzu bakkie in the
vicinity of Ferryby Farm entrance along the
Richmond-Ixopo road (R56).  He also confirmed that he knew the
plaintiff very
well and that he once worked for the plaintiff on the
plaintiff’s farm.  He and the plaintiff had been good
friends
prior to this incident.
[81]
The accident occurred after he had been to the plaintiff’s
house, returning the two men
from Durban who had been to him to see
the boat he was selling.  He asked the plaintiff for a 50 kg bag
of mealies which the
plaintiff gave him free of charge,
notwithstanding that he had offered to pay.  He placed the bag
in the boot of his car where
there was limited space already due to
four large steel sheets which he was carrying to use in making up a
welding table for himself.
There was also his tool box in the
boat.
[82]
Before he left the plaintiff’s house the plaintiff told him
that he would be rushing to
Ixopo to pay for licence renewal in
respect of one of his bakkies.  Thereafter he (the plaintiff)
would then proceed to Pietermaritzburg
for another commitment.
Van der Merwe then left the plaintiff’s house to drive back
home in Ixopo.
[83]
As he was driving up the hill on the Richmond-Ixopo road he saw from
his rear view mirror the
plaintiff’s Isuzu bakkie following him
approximately 400 metres behind.  He drove past an articulated
truck.  At
that stage he did not see the plaintiff behind him.
He drove up until he completed the uphill and reached the flat
stretch
of the road where he could see approximately 300-350 metres
ahead.  Eventually he came up behind a truck with enclosed bin,

similar to a “refrigerator truck”.  When he thought
it was safe to overtake the truck he indicated his intention
to do so
and started overtaking.  However, when he had just started
executing the overtaking manouvre he noticed an oncoming
motor
vehicle.  He applied brakes and returned behind the truck.
At that stage he noticed the plaintiff was close behind
him.  He
realised plaintiff was travelling faster than him.
[84]
When he reached the safe place to overtake he checked in his rear
view mirror and saw the plaintiff
still behind him approximately 60
metres away.  He then checked on his right side view mirror and
satisfied himself it was
safe.  He then started overtaking the
truck.  He came in line (parallel) with the truck’s rear
wheels.  That
was uphill and reaching a bend towards the right.
As he overtook he noticed that the truck was drifting towards the
right
hand side slightly encroaching on the right hand side lane
where his motor vehicle was.  As a result, Van der Merwe said he

was forced to move slightly further away towards the right.  In
other words, he said, the truck was “sort of like cutting
that
bend”.  All of a sudden he said he heard the rattling
noise from the engine of the plaintiff’s Isuzu.
When he
looked up he saw the plaintiff’s motor vehicle against the
guard railings.
[85]
Van der Merwe confirmed his statement before Court which he made to
the police.  The statement
was made only on 6 May 2003 (almost
three years after the accident).  The statement was also not
attested – neither
sworn to or affirmed.  He told the
Court tat at the scene sergeant Ngcobo wrote down what he told him.
He further
alleged that at his house on the same day of the accident
he was given a form to sign by sergeant Ngcobo.  He said
according
to the form he would be admitting that he was guilty.
Hence, he refused to sign the form.
[86]
It later transpired that Van der Merwe’s statement of 6 May
2003 was in fact taken by his
attorney and not by the police.
At paragraph 4 thereto Van der Merwe was recorded as saying:
“
I indicated my
intention to overtake (the truck) and moved to the right lane.
I was abreast of the rear wheels of the truck
when I saw Lupke (in
his vehicle) on my right.  Lupke collided with the right side of
my vehicle.”
[87]
Van der Merwe then demonstrated on the sketch plan (Exhibit “B1”)
his account of
how the three motor vehicles were positioned shortly
before, during and after the collision.  The demonstration
basically
indicated that the collision occurred when he overtook the
truck and the plaintiff tried to overtake both the Corolla and the
truck.
[88]
After the collision the Corolla remained on the road and had to be
pushed away as it was obstructing
traffic.  Then Van der Merwe
said he went to check on the plaintiff.  He found the plaintiff
behind the steering wheel
lying across the seat towards his left hand
side.  The plaintiff asked him “What have you done
Eugene?  What have
you done!”.  He said he replied
“What have I done, I haven’t done anything”.
He did not observe
any visible injuries on the plaintiff.
However, the plaintiff appeared stunned and shocked and he did not
have his seat belt
on.
[89]
Van der Merwe said his motor vehicle was damaged from the right back
door right up to the right
front fender and bumper and front bonnet.
The right front tyre was also damaged.  He noticed that the
Isuzu was also
damaged on the right hand side and the driver’s
door was even ripped off.
[90]
On 31 March 2003 he met Mrs Badenhorst, the accident reconstruction
expert, at the scene of the
accident.   He told her how the
collision occurred and he showed her certain photographs depicting
the scene (Exhibit
“A” pages 11-16, containing
photographs 20-31).
[91]
Van der Merwe further told the Court that the photographs 20 to 31 in
Exhibit “A”
were taken by his mother Mrs Van der Merwe
who went to the scene with his father (then deceased) two days after
the accident.
Van der Merwe himself was not present at the
scene when these photographs were taken.  The man appearing in
photograph 21
wearing a cap and a blue and white diamond shaped
jersey was his late father.  He said the accident occurred on a
Friday.
Then on the following day (Saturday) he took his
parents to the scene but no photographs were taken on that day.
The parents
then went alone to the scene on Saturday to take
photographs.
[92]
He confirmed that subsequently the plaintiff was charged with
reckless or negligent driving and
appeared at the Ixopo Magistrate’s
Court.  However, when he went there the prosecutor informed him
that the witnesses
had changed their stories.  Hence, the case
against the plaintiff was withdrawn.  He said he was upset with
that outcome
and also with Dlamini and two companions for having
changed their stories to the prosecutor.  He saw them in Bam’s
vehicle
proceeding to a shop.  He confronted them and asked why
they had lied to the prosecutor  He said the third man
Mphikeleli
indicated he was disassociating himself from Dlamini and
Mbanjwa and he even got out of the vehicle saying he had nothing to
do
with what the other two were saying.  Then Dlamini and
Mbanjwa accused him of having threatened them with a firearm, which

he never did.
[93]
Van der Merwe alleged that whilst he was at the motor vehicle driven
by Dlamini he had seen a
wad or roll of bank notes in the ashtray.
He further testified that when sergeant Ngcobo interviewed Dlamini
and Mbanjwa
at  the scene he was closeby.  He heard briefly
what Dlamini said when explaining how the collision occurred.
Dlamini’s
statement in Exhibit “C” (page 18) was
read out to Van der Merwe. He confirmed that indeed Dlamini’s
statement
accorded with his (Van der Merwe’s) own version and
that it also accorded with what he heard Dlamini tell sergeant Ngcobo

at the scene.  Dlamini was speaking to Sergeant Ngcobo in
isiZulu and Van der Merwe claimed that he was also fluent in isiZulu

although “not 100%.”  He was unable to hear clearly
how Mbanjwa described the events when making his statement
to
sergeant Ngcobo at the scene.
[94]
Van der Merwe was then put under cross-examination.  Concerning
the issue of whether or
not his insurance paid for the plaintiff’s
vehicle he said he had no knowledge about those things which were
handled by his
mother for him.  It was put to him that his
insurance paid out the sum of R15 500,00 and that the effect of that
was that
Van der Merwe was admitting liability.  He said his
mother had actually queried the insurance for paying out.
[95]
He conceded that before he overtook the truck he had realised that
the plaintiff wanted to overtake
him and the truck.  It was put
to him that given the fact that his motor vehicle (the Corolla) was
carrying a 50kg bag of
mealies and four metal plates weighing almost
the same mass (approximately 50kg) then the Corolla’s
performance capacity
was compromised and in those circumstances it
was up to Van der Merwe to allow the plaintiff who according to Van
der Merwe was
in a hurry racing to get to Ixopo, to pass the Corolla
and the truck.  Further, that if Van der Merwe had done so the
collision
would not have occurred.  Van der Merwe replied that
he did not deal with “if” situations.
[96]
He also said that when he saw money in the ashtray he suspected that
the plaintiff might have
bribed the witnesses to change their
statements.  However, he did not go and report to the police
about his suspicion because
it was something he could not prove.
In any event, he said he reported to the prosecutor that he had
information that some
person had given something to the witnesses in
order to change their stories.  He also reported to the
prosecutor about the
money he saw in the ashtray.  The
prosecutor said nothing could be done because the money could have
belonged to the witnesses
after all.
[97]
Van der Merwe further stated that the plaintiff’s Isuzu was out
of control even before
the collision.  It was pointed out to him
that this was never put to the plaintiff during his cross-examination
by the defendant’s
counsel.
[98]
Van der Merwe also confirmed that the width of the entire road could
not accommodate all three
vehicles at the same time standing parallel
to one another, that is, the truck, the Corolla and the Isuzu.
It was put to
him that from his own version the truck was drifting
towards the right and had moved approximately half a metre into the
right
lane and that he therefore ought to have withdrawn from
overtaking.
[99]
Inspector Zindela Patrick Madondo (who was a sergeant at the time of
the incident) told the Court
that he received an instruction to take
a statement from Bonginkosi Mbanjwa which he duly did on 24 April
2003, in connection with
this matter. According to his recollection
he took the statement at Mbanjwa’a place of work at Kiaora
Farm. They were only
two at the time and there was nobody else
present. He did not know Mbanjwa prior to that day. Mbanjwa’s
original statement
was shown to him, which he confirmed as being the
statement which Mbanjwa made to him on that day. Mbanjwa was relating
his story
in isiZulu which the witness translated and reduced to
writing in English. Thereafter the statement was read back to Mbanjwa
in
isiZulu and he confirmed it as correct. That was the procedure
applied at the police station whenever a person made a statement
in
isiZulu.
[100]
When he was questioned, in cross-examination, as to why he had taken
some three years to take the statement from
Mbanjwa, Inspector
Madondo said he did not know from the two previous investigating
officers who had been involved in the matter.
He took over
investigation of the case on or about 6 January 2003. Dlamini’s
statement was taken on the day of the accident,
that is, 12 May 2000.
He conceded that it was possible that he would have read Dlamini’s
statement in the docket before taking
Mbanjwa’s statement.
However, the witness said it was not possible that he was influenced
by Dlamini’s statement when
he took Mbanjwa’s statement
because, as he put it, he was not favouring anyone.
[101]
Sergeant Joseph Tatazela Ngcobo confirmed that he attended the
accident scene on 12 May 2000 and, among other
things, he took a
statement from Fale Dlamini at the scene. He knew both the plaintiff
and Van der Merwe in the area prior to the
accident. Dlamini made the
statement to him in isiZulu which the witness translated into English
when he recorded it. He read it
back to Dlamini who confirmed that it
was correctly recorded before he signed it. Thereafter Ngcobo drew a
sketch plan and key
to it and also compiled the accident report.
[102]
Under cross examination Ngcobo excluded any possibility that he might
have misunderstood Dlamini when he took
the statement. He did not
recall Van der Merwe telling him that the plaintiff’s Isuzu
went out of control prior to the accident.
In any event, Van der
Merwe had refused to give him a statement about how the accident
happened.
[103]
Van der Merwe’s mother, Margaret May van der Merwe, told the
Court that on Saturday (13 May 2000) her late
husband and van der
Merwe had gone to the collision scene in order for her husband to
take measurements on the road. Then on Sunday
(the 14th) she
proceeded to the scene in company of her husband to take photographs
of the scene. She confirmed that her husband
was appearing in some of
the photographs, such as photo 21. She took the photographs on the
directions of her husband. Van der
Merwe was not present at the scene
when the photographs were taken.
[104]
Mrs van der Merwe further testified that she was not aware of any
insurance claim by the plaintiff. She did not
instruct her insurance
company to pay the plaintiff’s claim.  At some later
stage, however, she was informed by her
attorneys that the
plaintiff’s insurance claim had been settled and she queried
this.
[105]
It was accepted between the parties that Mrs Wilna Badenhorst
(“Badenhorst”) was indeed a vehicle
accident
reconstruction specialist based in Johannesburg. She told the Court
that in her investigation and determination of accident

reconstruction analysis she depended largely on information such as
(1) the damage state of the vehicles involved, (2) marks on
the road
surface, if any, and (3) position of motor vehicles and debris.
She would then compile her report.
[106]
Badenhorst testified that she was instructed by attorneys
representing the plaintiff to investigate this matter
and compile a
report, which she did. She attended the accident scene on 31 March
2004 where she met the defendant’s attorney,
Van der Merwe and
his mother. Van der Merwe told her how the collision occurred. She
requested van der Merwe to indicate certain
points to her in relation
to the accident. She had also been furnished with the accident report
form completed by sergeant Ngcobo.
[107]
She further told the Court that she was shown black and white copies
of photographs depicting the damage to the
Isuzu bakkie only. In this
regard, her Report read thus:
“
The relative
minimal contact damages to the left hand side of the Isuzu LDV are
concentrated to the left front fender and to the
left front of the
mudguard.
No
photographs depicting the damages to the Toyota Corolla have been
made available to the author. The author was however
informed by the
Insured driver at the time of the site inspection that the right hand
side of his Toyota Corolla sustained contact
damage approximately
from the right rear door onwards (i.e. towards the front).”
(paragraph 5 of the Report)
[108]
She told the Court that it would not be correct for the plaintiff to
have stated that he was travelling at 30
kilometres per hour at the
time of the collision. In her opinion the plaintiff was travelling at
a much higher speed given the
damage both to the Isuzu and the Armco
barrier. She reckoned that much energy would have been required to
effect that damage. The
width of the driveable road area (between
centre line and Armco barrier) was 4.6 metres (that is, 3.4 plus 1.2
metres) which did
not allow enough space for both the Isuzu and the
Corolla to travel side by side.
[109
The witness was shown the faint marks (alleged be skidmarks) on
photos 20 and 20(a) of Exhibit A. She stated
that the skidmarks were
no more there when she visited the scene, hence she could not measure
the distance from the yellow line
to the skidmarks. She said it was
clear on the photograph that the tyre marks lead up to the Armco
barrier. She further stated
that, based on the apparent skidmarks in
the photograph, she would say that they were probably caused by the
Isuzu and that the
driver of the Isuzu (that is, the plaintiff) must
have applied brakes after the impact.  She explained that, based
on the
“typical reaction time of approximately 1.6 seconds”
(presumably a scientific formula), she had then done a calculation

and had come to the conclusion that the plaintiff most probably
applied brakes some 28 metres prior to the start of the skidmarks.
[110]
Badenhorst also concluded that the collision occurred somewhere prior
to the beginning of the entrance to Ferryby
Farm but she could not
say exactly where it took place. She further concluded that the
probable cause of the collision was rather
as described by Van der
Merwe than by the plaintiff.
[111]
Under cross examination, Badenhorst conceded that if the insurance
paid the plaintiff and not Van der Merwe that
would be inconsistent
with her findings. She could not explain why the plaintiff was not
present at the site inspection, save to
say that she was not
responsible for the attendance arrangements.  She conceded that
if the plaintiff was present she would
have received a more balanced
picture of how the accident occurred. She also could not dispute the
suggestion that the skidmarks
that were shown to her could have
related to another matter altogether.  She further stated that
had she got information of
damage to both vehicles she would have
been able to determine the angle at which they collided. In any
event, she told the Court
that the damage sustained to the left front
of the Isuzu and what “was known to (her)” in relation to
damages to the
Corolla was consistent to the versions of both van der
Merwe and the plaintiff.
[112]
This was then the summary of the case for the defendant.
[113]
The following facts were either common cause or not seriously placed
in dispute:
113.1
On 12 May 2000 at about midday
a collision took place along the Richmond-Ixopo road (R56) in the
vicinity of an entrance road leading
to Ferryby Farm between the
vehicle driven by the plaintiff with registration number NIX 3533 and
the vehicle driven by the insured
driver, Eugene van der Merwe, with
registration number NIX 634.
113.2
The vehicles were both
travelling from the northerly towards the southerly direction. (that
is, from Richmond to Ixopo direction).
113.3
The truck which the aforesaid
vehicles had been following immediately prior to the collision did
not stop after the collision.
113.4
The part of the road where the
collision occurred -
113.4.1
was
tarmac and marked with a broken centre line and a side emergency
yellow line;
113.4.2
had
a single carriage way on each opposite side;
113.4.3
had
a shallow uphill curve towards the right ; and
113.4.4
had
the width of approximately 4.6 metres (being about 3.4 metres between
the centre line and yellow line plus 1.2 metres between
the yellow
line and the outside edge.
113.5
After the collision the
plaintiff’s vehicle veered off the road and collided with the
guard rail on the opposite side of the
road, which was on the
southern side of the entrance to Ferryby Farm.
113.6
The plaintiff sustained certain
injuries as a result of the collision.
113.7
The height of the sugar cane
growing in the adjacent fields (as seen in  the top right hand
corner in photographs 20 and 21
of Exhibit A) did not obstruct the
view or vision of either the plaintiff or the insured driver on the
day of the collision.
113.8
The criminal charge of reckless
or negligent driving against the plaintiff was subsequently withdrawn
by the State after the prosecutor
had consulted with the State
witnesses who became the plaintiff’s witnesses, namely, Fale
Dlamini and Bonginkosi Mbanjwa.
[114]
The underlying issue for determination was whether there was
negligent driving on the part of either driver which
was the sole
cause of the collision or, alternatively, whether there was
contributory negligence on the part of each driver which
resulted to
the collision and, if so, to what extent.
The
Law, Analysis and Evaluation of Evidence
[115]
In terms of
section 17(1)
of the
Road Accident Fund Act 56 of 1996
,
the defendant is “obliged to compensate any person (the third
party) for any loss or damage which the third party has suffered
as a
result of any bodily injury to himself or herself … , caused
by or arising from the driving of a motor vehicle by any
person at
any place within the Republic, if the injury … is due to the
negligence or other wrongful act of the driver or
of the owner of the
motor vehicle” concerned.
[116]
The onus was on the plaintiff to show, on a balance of probabilities,
that the driving of the insured driver was
a direct cause of the
plaintiff’s injuries aforesaid, or that such injuries were
causally connected with the driving of the
insured driver at the
relevant time, and that such driving was, therefore, a
sine qua
non
thereof.  (See
Barkett v S.A. National Trust and
Acceptance Co. Ltd
1951 (2) SA 353
(A) at 365;
Wells v Shield
Insurance Co. Ltd
1965 (2) SA 865
(C) at 868-871.)
[117]   With regard to the
alleged negligent driving of the insured driver, the plaintiff had to
prove that:-
117.1
a reasonable person in the position of the insured driver –
117.1.1
would foresee the reasonable possibility of his conduct causing
injury to another person in his or      her
person, such as the plaintiff, and
117.1.2
would take reasonable steps to guard against such
occurrence, and
117.2  the insured driver failed to take such
steps.
(See
Kruger v Coetzee
1966 (2)
SA 428
(A)).
[118]
However, even if the insured driver was negligent in his driving and
caused the collision that would not exonerate
the plaintiff from
contributory blame. For him to be exonerated completely the evidence
must show that, objectively speaking, he
was in such a position that
he could not reasonably have done anything to avoid the collision.
The test to be applied is an objective
one. In other words, the
enquiry is whether a reasonable man in the position of the plaintiff
would have acted differently and
avoided the collision.  In a
dictum
in
Union Government (Minister of Railways and
Harbour) v Buur
1914 (AD) 273 the Court stated:-
“
Men faced in moments of crisis with a choice of
alternatives are not to be judged as if they had had both time and
opportunity to
weigh the pros and cons.  Allowance must be made
for the circumstances of their position.” (at 286)
[119]   Again in
Samson v
Winn
1977 (1) SA 761
(C) where the appellant lost control of his
motor vehicle which then crashed into another motor vehicle, whilst
he was trying to
avoid a blow being delivered to him with a panga by
a man standing in the middle of the road, the Court stated:
“
This is, to my mind, almost a classical case of a
sudden or unexpected emergency; and the conduct of the defendant must
be judged
according to the standards of a reasonable man placed in
similar circumstances.”  (at 766D-E)
[120]
Quite correctly,
Mr Leppan
conceded that the plaintiff’s case contained some
imperfections. However, he submitted that those imperfections related
to detail and not to substance. Indeed, this was one typical case
where the Court hardly found any satisfaction in the majority
of
witnesses who testified. This was a pity. Virtually all the persons
who supposedly testified as eye- witnesses to the collision
were, for
whatever reasons, rendered poor and unsatisfactory – indeed,
sometimes even blatantly untruthful - and, therefore,
unreliable
witnesses.
[121]
The plaintiff was about 64 years old (born 12 July 1938) when he
testified. In the witness stand he appeared physically
weak and
frail, a condition which could probably be attributed to a
combination of factors, including the effects of the accident
under
consideration, his age and confessed pre-existing physical ailments.
[122]
He made his statement to the police on 5 December 2001 - slightly
over 1½ years after the collision. When
it transpired, during
cross-examination, that certain aspects of his evidence in Court were
inconsistent with his statement to
the police (sometimes even
inconsistent with objective facts, such as stating in the statement
that the road was dual-lane when
in fact it was single-lane) he
revealed to the Court that the accident affected him mentally in that
since then he was suffering
from memory loss. When he was further
asked to explain what he meant he categorically stated (and the
following appears on the
record):
“
What do you mean
by the accident has affected your memory positively? … Well
it – I forget a lot of things. I forget
a lot of things.
It has made your memory
poor? … Yes.
COURT
:
Sorry, you said yes, it has made your memory poor ? … Poor,
yes.
MR PADAYACHEE
:
In other words, Mr Lupkhe (
sic
),
you cannot remember as you previously were used to? … That is
correct.”
(Page
68 lines 16 – 23 of the record)
[123]
That being the case and notwithstanding the plaintiff being an honest
witness (as he appeared to be) in the witness
stand, the Court was
duty bound to consider and evaluate his evidence with great
circumspection. In this regard, therefore, the
Court was inclined to
accept as credible and reliable the evidence of the plaintiff only to
the extent that it was supported by
other independent and credible
evidence, objective facts and inherent probabilities.
[124]
It would appear that the plaintiff did not actually see the collision
happening; and, indeed, not even immediately
prior thereto. His
evidence as to what happened appears in the record thus:
“
I then –
because I saw Van der Merwe was following the truck and I could see
well ahead of me, I indicated with my right indicator
that I was
going to pass and I flashed my lights, which is a thing that I
always do when I overtake. … I was going to overtake
both him
and the truck. … I proceeded to overtake … I felt a
bump on my right hand – a bump on my left hand
front of the
truck, which pushed – sorry. … My van, my Isuzu, sorry.
… I actually sort of half lost control,
because it actually
pushed it and it wavered in the road,   you know this bump
wavered the truck. … My truck veered
then I collided with
the corner of the barrier rail on the south side of the entrance.”
(Pages
18-19 of the record)
[125]
There was no indication of what speed the plaintiff was travelling at
the time of the collision. He said he did
not look at the speed
(presumably referring to the speedometer). However, in his evidence
he stated that he was travelling at about
50 to 60 kilometres per
hour when he was following van der Merwe and the truck on the uphill
before the bend but at some point
he reduced his speed to 30
kilometres per hour. (Page 14 of the record). However, this appeared
to be the stage when, according
to the plaintiff, van der Merwe had
not even made the first attempt to overtake the truck but which he
quickly aborted. In his
statement dated 5 December 2001 he only
mentioned the speed of 30 kilometres per hour.
[126]
In any event, it does not appear to me that at the time of the
collision the plaintiff was travelling at an excessive
speed in the
circumstances. Badenhorst testified that the extensive damage
sustained by the Isuzu on its right hand side indicated
that the
plaintiff was probably travelling at a much higher speed. I do not
know what Badenhorst meant by a “much higher
speed”.
However, there was no suggestion that the speed which the plaintiff
was travelling at was not within the legally
permissible speed range
in that part of the road and, in particular, given the fact that the
plaintiff must, and should, have necessarily
increased his speed
beyond that of the Corolla and the truck to enable himself to
successfully overtake those two vehicles in front
of him.
[127]
What was significant was the fact that the damage to the left hand
side of the Isuzu (the side where the collision
impact occurred) was
relatively minor, namely, only a somewhat gliding dent on the rear
bin panel and the front fender (as shown
in the photographs). It
appeared not in dispute that the extensive damage on the right hand
side of the Isuzu (as shown in the
photographs) was caused by the
Isuzu colliding with the guard rail.
[128]
Reliable information as to the angle at which the two vehicles
collided would also have been of paramount importance
in terms of
determining whose version was more probable in relation to the cause
of the collision. An objective determination in
this regard would
require, in the main, the examination of damage to both vehicles.
Regrettably, it would appear that the police
officer who attended the
scene, namely, sergeant Ngcobo, did not arrange for photographs of
the collision scene, including the
position of, and damage to, both
vehicles, to be taken on the same day. No plausible explanation for
this omission was proffered
by Ngcobo when he testified for the
defendant. It was, in my view, a material omission in a matter of
this nature and this could
not be blamed on the plaintiff.
[129]
After all, it was significant that the plaintiff made every effort on
his part to ensure that the damage to his
vehicle was seen by all
when he had photographs taken of his damaged vehicle. In this way he
showed that he had nothing to hide
in this regard. He was apparently
not concerned about any adverse inferences that could possibly be
drawn from the nature of the
damage on his vehicle. Indeed, to my
mind, only a favourable inference should, instead, be drawn.
[130]
On the other hand, no reason whatsoever was advanced as to why it was
not possible to make available photographs,
or other real evidence,
showing the damage caused to Van der Merwe’s vehicle. I will
revert to this aspect later on when
I deal with the defendant’s
case.
[131]
Having considered the matter, I am satisfied, on the probabilities,
that the damage on the left hand side of the
plaintiff’s
vehicle was consistent to have been caused by the collision (between
the two vehicles) as described by the plaintiff.
In other words, it
was more probable that Van der Merwe started overtaking the truck
when the plaintiff’’s  vehicle
was already in the
process of overtaking both Van der Merwe’s Corolla and the
truck. It further appears to me that when the
plaintiff overtook the
Corolla it was permissible and safe for him to do so. Once he
overtook he had obviously landed his vehicle
on the opposite lane and
thus no longer directly behind the Corolla. Therefore, at that stage
the question of whether or not he
left a safe following distance fell
away.
[132]
The evidence of both Dlamini and Mbanjwa calls for rejection
outright. They were not at all truthful witnesses.
To put it plain,
they were, in my view, blatant liars. They both made sworn statements
to the police which directly contradicted
what they told the Court in
their evidence. I do not accept
Mr
Leppan’s
submission that the statements they made to the police were, after
all, ambiguous and equivocal. Granted, the statements
revealed a
degree of poor proficiency in the English language on the part of the
police officers who took the statements. However,
I am not concerned
about that aspect of the matter. The Court was not involved in the
exercise of meticulously marking the police
witnesses for grammatical
errors in the statements they took from Dlamini and Mbanjwa. I was
only interested in the import intended
to be conveyed in the
statements. I am satisfied that the statements substantially
reflected, with a reasonable degree of certainty,
what the witnesses
intended to convey. In both instances these witnesses (in their
statements to the police) clearly implicated
the plaintiff and
completely exonerated Van der Merwe. There can be no doubt in my mind
that they intended to do just that, regardless
how poorly thereafter
the police officers proceeded to record the statements.
[133]
Dlamini made his statement to sergeant Ngcobo at the scene shortly
after the accident. It may be significant to
note that Dlamini (1)
knew both the plaintiff and Van der Merwe prior to the accident; (2)
at the time he made the statement only
Van der Merwe was present at
the scene and the plaintiff had been taken to hospital; and (3) he
(together with the other two companions)
was told by Van der Merwe to
go and make the statement to Sgt Ngcobo. In these circumstances, it
seems to me, a reasonable possibility
could not be excluded that
Dlamini was, directly or indirectly, influenced by Van der Merwe to
state what he did in his statement.
[134]
Similarly, on the other hand, a reasonable possibility could also not
be excluded that when Dlamini changed his
story to the prosecutor at
Ixopo Magistrate’s Court and here in this Court he had,
directly or indirectly, been influenced
by the plaintiff.  In
this regard I made the following observations: (1) After he had made
his statement to the police, Dlamini
had returned to work on Bam’s
farm which was only adjacent to the plaintiff’s farm and as
such there was the strong
possibility, if not a high probability,
that Bam and the plaintiff were friends and this relationship would
have had some impact
on Dlamini. (2) Dlamini and the other two
companions travelled to the Magistrate’s Court in a vehicle
belonging to Bam who
was, as indicated, a probable friend of the
plaintiff. (3) At least on one occasion Dlamini and Mbanjwa travelled
from Richmond
to the Court (in Pietermaritzburg) in a lift on the
plaintiff’s vehicle together with the plaintiff. It was
therefore entirely
difficult for the Court to determine which of
Dlamini’s two diametrically opposed versions was the truthful
one.
[135]
A further reasonable possibility was that Dlamini never actually
witnessed how the collision occurred in the first
place.
Indeed, the mere fact that he was in the immediate vicinity at the
time was not (especially given the serious material
contradiction in
his version) necessarily sufficient to reliably conclude that he
actually saw the collision happening.  In
these circumstances I
am inclined to accept the latter scenario to be the position with
respect to Dlamini and reject his evidence
accordingly. In any event,
I would still have been inclined to question Dlamini’s honesty,
credibility and reliability, given
his demeanour in the witness box
when, during cross examination, he pretended not to recall many
aspects of the matter and conveniently
gave the excuse that his mind
was disturbed by the recent death of his fiancé.
[136]
Like in Dlamini, a similar situation probably obtained in relation to
Mbanjwa. He also did the same when he changed
his story (as appearing
in his statement to the police) to the prosecutor at Ixopo
Magistrate’s Court and when he gave his
evidence in Court. His
statement was taken by Inspector Madondo only on 24 April 2003 –
some three years after the accident.
Madondo conceded that after he
had taken over investigation of the case (the reckless or negligent
driving matter) it was possible
that he had read Dlamini’s
statement (which was in the docket in his possession) before taking
Mbanjwa’s statement.
This factor alone, besides anything else,
could have reasonably possibly influenced Madondo to taking Mbanjwa’s
statement
in a manner that ensured conformity to Dlamini’s.
Hence, I am equally inclined to reject Mbanjwa’s evidence as
well.
[137]
Although she attempted to do so, there was nothing, in my view, which
the plaintiff’s wife (Mrs Lupke) stated
which was of any
material or relevant bearing. I am satisfied that her evidence did
not advance the plaintiff’s case any
further.
[138]
According to Van der Merwe, the insured driver, it was the plaintiff
who tried to overtake both his (Van der Merwe’s)
vehicle and
the truck at the same time when Van der Merwe was already in the
process of overtaking the truck. This was just the
opposite of the
plaintiff’s version. Generally speaking, this was a possible
scenario; but the question was whether it was
probable that it
happened here.  Firstly, as stated earlier, absent any tangible
and reliable evidence as to the nature of
damage caused to Van der
Merwe’s vehicle, it was difficult to have a credible basis on
which to sustain a finding as to the
probable angle at which the two
vehicles were at the time of impact. This position was also confirmed
by the defendant’s
own expert witness, Badenhorst.
[139]
Significantly, there seemed also to be some inconsistency between
what Van der Merwe told the Court and what he
stated in his unsworn
and unaffirmed statement dated 6 May 2003 but which he confirmed in
Court as correct. (Page 140 lines 5-12
of the record). According to
his statement aforesaid the Isuzu first collided with the Corolla and
thereafter collided with the
guard rail; whereas according to his
evidence in Court the Isuzu first went out of control, then struck
the guard rail before coming
back to the road to collide with the
Corolla.
[140]
The aforesaid inconsistency in Van der Merwe’s versions is
demonstrated hereunder.
140.1  In the
statement of 6 May 2003 he stated, in part:
“
I
indicated my intention to overtake and moved to the right lane. I was
abreast of the rear wheels of the truck when I saw Lupke
(in his
vehicle) on my right.
Lupke
collided with the right side of my vehicle
.
I
immediately braked and brought my vehicle to a halt. Lupke’s
vehicle then collided with the guard rail
”
(Underlined for emphasis)
(Paragraphs
4 and 5 of the statement aforesaid)
140.2
In his evidence-in-Chief he described the position immediately prior
to the collision as follows:
“
You
say the truck came towards the right? … It came towards my
left side of the vehicle.
It came
towards its right? … No he (the truck driver) came towards the
right, but that would have been on the left
– my left
side.
Yes? …
At that stage I heard Mr Lupke motor … (intervention)
You
heard Mr Lupke’s what? … The motor of his Isuzu bakkie.
… The engine, ja. …
Yes? …
And then
as I looked to the
right and I saw Mr Lupke right
against the guard rail.
COURT:
You saw him where? … His vehicle was right, almost against the
guard rail and the left wheel was – his left
wheels were on
this side of the   yellow line, across there, so he was
straddling.”   (Underlined for emphasis)
(Page
94 lines 9-22 of the record)
And
later, in further examination-in-Chief:
COURT:
Now at what stage was the Isuzu in that area or at that spot which
you have drawn? …
Well he was against the guard rail at that
stage,
…
Was
it shortly before or after the accident? It was shortly before the
accident.?
(Underlined
for emphasis)
(Page
150 lines 18-23 of the record)
And,
under cross examination:
“
Before
the accident you said he was out of control. … No,
what
I am trying to say is when he was against the guard rail, when he
tried to come back in, that is when he came and hit me
.”
…
(Underlined for
emphasis)
(Page
284 lines 22-24 of the record))
And
further on:
Right,
so his speed caused him to lose control of this vehicle, even before
it struck you. Correct? That’s your evidence.
… He was
running against the guard rail and his speed caused him to lose
control of the vehicle.
Even
before it struck you. … Well I wouldn’t say at that
point, you know. He had no choice, but that was the only way
out.
Answer
the question please. His speed caused him to lose control of
his
vehicle, even before it struck your car. … Well I presume so.
That’s
what you are saying, correct? … That’s correct.
(Page
285 lines 7-14 of the record)
”
[141]
What was significant was the fact that it was never put or suggested
to the plaintiff, in particular, or any of
his witnesses, generally,
that the Isuzu first went out of control and struck the guard rail
before coming back to collide with
the Corolla. In my view, this was
a material contradiction which could never have been an innocent or
inadvertent mistake on the
part of Van der Merwe. It simply added to
proof that he was not a truthful and reliable witness. He also
seemed, very strangely
indeed (on account of being a matured adult
himself), to be so dependent on his elderly mother that on a number
of occasions he
failed to answer questions but, instead, simply
stated that it was his mother  who could answer the question
because she had
handled every thing for him.
[142]
Further, in his evidence Van der Merwe stated, among other things,
that the plaintiff had told him (whilst they
were still at the
plaintiff’s home) that he (the plaintiff) was “rushing”
or “racing” to get to Ixopo
to obtain a vehicle licence
renewal and that from Ixopo he would proceed to Pietermaritzburg for
other commitments. Whilst on the
road all the time he could see the
plaintiff following him. He knew he was being followed by a person
who was in a hurry to get
to Ixopo. For his part, he was not in a
hurry to get home. He was driving a smaller and less powerful car
which was loaded in the
boot with four huge and heavy steel plates
plus at least one 50kg bag of mealies. That being the case, it would
indeed have been
more convenient and safer if he simply allowed the
plaintiff to overtake. I do not comprehend how he failed to see the
plaintiff
overtaking if he had had a proper look out on the road
using both the rear-view and right-side-view mirrors, and given the
fact
that he was aware of the “racing” plaintiff behind
him.
[143]
In any event, given the relative narrow size of the road (consisting
of only two single opposite carriage ways)
it was hard to imagine, in
the circumstances, that the plaintiff would have commenced an
overtaking manoeuvre seeing very well
that Van der Merwe’s
vehicle was already in front of him having started to overtake the
truck, as Van der Merwe claimed was
the case. To my mind, the
probabilities are that when Van der Merwe tried to overtake the truck
the plaintiff’s vehicle was
already on the opposite lane in the
process of overtaking both Van der Merwe and the truck. Hence, at
that stage Van der Merwe
got onto the plaintiff’s way. In other
words, I am satisfied, on the evidence and probabilities, that Van
der Merwe never
used his rear- and/or right side-view mirrors
properly, or at all, immediately before he embarked on his fateful
attempt to overtake
the truck. This amounted to negligent driving on
his part.
[144]
It was common cause that there was no oncoming vehicular traffic on
the road at the time. It was not in dispute
that there were no other
objects obstructing the plaintiff’s view or vision ahead of him
in that vicinity. It was also permissible
on that part of the road to
overtake when safe to do so.
[145]
I am satisfied that sergeant Ngcobo and inspector Madondo told the
truth in relation to the contents of the statements
they respectively
took from Dlamini and Mbanjwa. However, as regards the veracity of
the statement itself in each case that was
indeed another issue. In
the latter regard I have already made a finding that Dlamini and
Mbanjwa were not truthful witnesses and
their evidence was rejected.
[146]
Badenhorst told the Court that there were three main factors on which
a specialist such as herself relied upon
in investigations of this
nature, namely: (1) the nature of damage to both vehicles in order to
determine the angle at which the
vehicles collided; (2) marks or
other debris on the road surface, if any; and (3) the final resting
positions of the vehicles concerned.
It seemed, however, that in the
present instance it could not credibly and reliably be said that she
had any of this information
at her disposal. She attended the scene
to conduct the inspection-
in-loco
on 31 March 2004 – almost four years after the collision. Only
present at the scene were Van der Merwe, his mother and his
attorney.
She asked Van der Merwe to relate to her how the collision occurred
and to do the relevant pointing out, which Van der
Merwe duly did. It
was basically on this information furnished to her by Van der Merwe
that she compiled her report. There was
no reason advanced as to why
the plaintiff was not invited to attend at the scene in order to
indicate his side of the story and
thus enable Badenhorst to make a
balanced and more reliable report. Significantly, Badenhorst conceded
to the reasonable possibility
that, in the circumstances, her report
could possibly be the fruit of a poisoned tree.
[147]
In any event, I found Badenhorst’s evidence interesting when
she said:
“
The damage
sustained to the left of the LDV of Mr Lupkhe (
sic
)
and what is known to me about the damage sustained to the Toyota
Corolla of Mr Van de   Merwe is consistent with both
versions.”
(Page
37 lines 10 – 13 of the record)
However,
this proposition seemed to contradict her own Report in which she
concluded that Van der Merwe
’
s
version was more probable than the plaintiff
’
s
version. (See paragraph 9 of Badenhorst
’
s
Report dated 6 April 2004 contained in Exhibit
“
C
”
)
[148]
In any event, one might understand, in my view, the reason why
Badenhorst would accept the plaintiff’s version
as being
consistent with what happened. This was because the plaintiff did not
only give an account of how the collision occurred
and to what extent
his vehicle was damaged but he went on and produced photographs
showing damage to his vehicle, which Badenhorst
found consistent to
having been caused during the collision in the manner as described by
the plaintiff. On the other hand, however,
if Badenhorst did not
actually see the damage on Van der Merwe’s vehicle (either
physically or in photographs) then what
did she mean when she said:
“… what is known to me about the damage sustained to the
Toyota Corolla ...”? In
my opinion, she was probably only
referring to the mere information as furnished to her by Van der
Merwe and which was not supported
by real evidence as in the case of
the plaintiff.
[149]
Accordingly, I find that the evidence of Badenhorst did not assist
the defendant’s case in any way. As I
have said, her Report was
unbalanced and therefore unreliable on account of being based on the
one-sided version of one of the
drivers, namely, Van der Merwe.
[150]
I am inclined to find that the plaintiff’s version was more
probable than that of the insured driver in
relation to the cause of
the collision. In other words, I am satisfied that Van der Merwe’s
negligent driving was the major
cause of the collision. However, it
seems to me that the plaintiff was not absolutely without blame. He
told the Court that about
three quarters of a kilometre prior to the
collision Van der Merwe had attempted to overtake the truck but
quickly came back behind
the truck. In other words, it was clear, and
the plaintiff was aware, that Van der Merwe also desired and intended
to overtake
the truck. Hence, the plaintiff ought to have been more
cautious and vigilant before overtaking. It did not seem to me he was
absolutely
so. Therefore, in my view, he was himself not on the
proper look out on the road at the relevant time, as he ought to have
been.
[151]
The plaintiff also told the Court that when he indicated to overtake
(using the indicator lights) at the same
time he flashed his
headlights which, as he put it, was what he always did when he was
about to overtake. To my mind, flashing
headlights behind another
vehicle was not the legally sanctioned or prescribed way of
indicating to that other vehicle an intention
to overtake it. In
fact, in my view, this practice was calculated to causing a mixed or
confusing signal to the vehicle in front.
Of course, this point was
not raised in pleadings by the defendant, but the determination of
the presence or absence of negligence
on the part of either driver
was a legal question and the Court, I think, was entitled to consider
both parties’ driving
conduct holistically.
[152]
Accordingly, I find that the plaintiff was, to an extent not
exceeding 30%, also negligent and thus contributed
to the cause of
the collision.
[153]
I am reluctant to award a costs order at this stage. The plaintiff
still has to prove damages which he allegedly
suffered. In other
words, the next phase is not just a formality. Therefore, I am of the
view that the issue of costs should be
reserved pending proof or
agreement on the quantum of damages.
Order
[154]
In the result, I make the following order:
1.
The
collision under consideration was caused by the negligence of both
the insured driver and the plaintiff, who contributed thereto
as
follows: the insured driver was 70% negligent and the plaintiff 30%
negligent.
2.
Based
on the abovementioned apportionment, the plaintiff is entitled to
damages that he may prove or which may be agreed upon.
3.
The costs are reserved pending
proof or agreement on the quantum of  damages.
__________________________
Appearances:
For the
plaintiff:
Mr GJ Leppan
Instructed
by :           Venn
Nemeth & Hart Inc
Pietermaritzburg
For the
Defendant:    Mr R Choudree SC
Instructed
by:
Sangham Inc
Pietermaritzburg
Last
Date of Hearing: 1 September 2008
Date of
Judgment:      12 March 2009