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[2009] ZAKZPHC 15
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Mkhize v Mathapersad and Another (12275/2007) [2009] ZAKZPHC 15 (21 April 2009)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL,
PIETERMARITZBURG
CASE NO:
12275/2007
In the matter between:
NORMAN
NDODENI MKHIZE
Plaintiff
And
VISHAAL
MATHAPERSAD
Defendant
S
MKHIZE
Third Party
JUDGMENT
MSIMANG,
J :
[1] This
is an action for damages arising out of a motor collision that
occurred during the early evening
of 28 April 2007 upon Longmarket
Street, Pietermaritzburg and involving plaintiff’s motor
vehicle, to wit, an Audi A3, bearing
registration letters and number
NP 17677 and another vehicle at the time being driven by the
defendant. The allegations
made in plaintiff’s
Particulars of Claim is that the cause of the collision was the
negligence of the defendant and a number
of respects in which it is
alleged that he was negligent are set out, which include the
allegation that he pulled off a street
controlled by a yield sign
into the path of travel of the plaintiff’s motor vehicle at a
time when it was unsafe and/or inappropriate
for him to have done so.
[2] In
his plea the defendant denies that he was negligent and, in
amplification of that denial,
avers that the sole cause of the
collision was the negligent driving of the driver of plaintiff’s
motor vehicle and sets
out a number of respects in which it is being
alleged that the said driver was negligent.
[3] In
addition, the defendant caused to be issued a notice in terms of Rule
13 of the Uniform
Rules, citing the driver of plaintiff’s motor
vehicle as a third party and alleging that the sole cause of the
collision
was the negligence of the said driver or, alternatively, in
the event of the Court finding that the defendant was negligent and
that such negligence contributed to the collision, and only in that
event, that the said collision was caused partly by the
negligence of the defendant and partly by the negligence of the said
driver. In that notice the defendant accordingly
avers
that he and the said driver were joint-wrongdoers in respect of the
damages that may be suffered by the plaintiff and, in
terms of
Section 2(8)(a)(ii) of Act 34 of 1956, seeks a separate judgment in
favour of the plaintiff and against defendant and
the said driver
respectively, or alternatively, judgment against the defendant in
favour of the plaintiff for the full amount of
damages suffered by
the plaintiff, an order in terms of Section 2(6)(a) of that Act
determining the amount of the contribution
the defendant may recover
from the said driver and an order authorizing defendant to recover
such contribution from the said driver
immediately upon payment of
the judgment debt by the defendant to the plaintiff.
[4] The
aforegoing constitutes a synopsis of the pleadings with which the
parties came to trial
in this matter.
[5] At
the commencement of the trial and as a result of an earlier agreement
concluded between
the parties, Counsel requested me to make an order
in terms of Rule 33(4) of the Uniform Rules that the issues of
liability and
quantum be separated and that the trial proceed only on
the issue of liability. Having considered the matter I
concluded
that it would be convenient to deal with the issues in
terms of that request and accordingly granted an appropriate order.
[6] The
plaintiff’s driver was the only witness who testified in
support of plaintiff’s
claim whilst, in addition to his own
evidence, the defendant adduced evidence of two eye-witnesses.
[7] From
the evidence of the witnesses, the following facts emerged as being
common cause between
the parties:-
7.1 At
the date of the collision Longmarket Street would carry traffic
proceeding in one direction,
that is, running from West to East;
7.2 In the vicinity
where the collision occurred the road comprised of two lanes which
were separated by
a white broken line;
7.3 At a certain
point and on the southern side of Longmarket Street the road was
joined by a side road
called George Street, forming a T-junction with
Longmarket Street;
7.4 The
entry of traffic into the intersection from George Street was
controlled by a yield sign which would control
traffic entering the
intersection from the southern side of Longmarket Street and
intending to turn East into Longmarket Street;
7.5 Shortly before the collision
plaintiff’s motor vehicle had been
travelling along
Longmarket Street proceeding in the easterly
direction. The parties are, however, not in
agreement as to the
lane upon which the said vehicle had been
travelling;
7.6
Shortly before the collision the defendant’s motor vehicle
had been approaching the intersection
from George
Street, intending to turn East into Longmarket Street;
7.7 Though the parties are not
agreed as to the exact location of the point of impact, it is common
cause that the impact
occurred upon Longmarket Street on the Eastern
side of the intersection, a short distance from the same;
[8] The
plaintiff’s driver’s account of the collision is briefly
that on 28 April
2007 at about 19h00 – 19h30 he was driving an
Audi A3 motor vehicle belonging to the plaintiff from West to East,
along Longmarket
Street. He was travelling on the
southern lane to which he referred as a right-hand side lane.
Though it was already dark there was light emanating from the
surrounding street lights. The road was wet as
it
had been raining. He had his headlights on.
He was driving at approximately between 60 and 70
kilometers per
hour.
[9] When
he was approximately thirty metres from the intersection between
George and Longmarket
Streets, he noticed defendant’s motor
vehicle travelling on George Street and approaching Longmarket
Street.
He was under an impression that, at the
intersection, the defendant’s motor vehicle would yield a right
of way to the plaintiff’s
vehicle. However, when
plaintiff’s vehicle was approximately between 15 to 20 metres
from the intersection, defendant’s
motor vehicle suddenly
entered Longmarket Street, did not turn into the right lane of that
street but straddled both lanes of Longmarket
Street, seemingly
intending to drive through the right lane into the left lane.
The driver’s initial
reaction was to apply his brakes and to
swerve to the left in an effort to avoid the collision.
At the time the vehicles
were approximately 10 metres from each other
and his attempts to avoid the collision proved to be in vain as the
collision took
place on the broken line at the centre of Longmarket
Street on the eastern side of the intersection, a short distance from
the
same. The front centre of his motor vehicle collided
with the left rear side of defendant’s motor vehicle and
the
impact caused defendant’s motor vehicle to be hurled into the
left lane and to spin around, landing on the left lane,
facing the
westerly direction. After the impact the
plaintiff’s motor vehicle remained in the middle of
Longmarket
Street, facing an easterly direction.
[10] Three
copies of colour photographs depicting the damage caused to
defendant’s motor vehicle
as a result of the collision were
included in the plaintiff’s bundle of documents entered in
evidence and marked Exhibit
“A”. The
plaintiff’s driver confirmed that the prints depicted the said
damage.
The damage extends from the left hand side
rear fender to the boot of the vehicle. The damage is
most serious on the
fender which obviously was the point of initial
direct impact. The metal making up the fender is so
twisted and damaged
that the mudguard is not recognizable.
The left rear wheel appears to have dislodged from the axle.
The rear left lamp appears to have been knocked off its socket and
the socket itself is completely covered by twisted metal from
the
surrounding areas. The boot was not spared the damage.
The lock of the boot lid appears to have
been forced out, leaving a
gaping hole, while the lid itself also appears to have been damaged,
with the rubber trimming having
been dislodged. The
substantial portion of the rear bumper was also detached from the
body of the vehicle and was left
dangling and unattached to the
vehicle.
[11] During
cross-examination it was put to the driver that, in view of the
seriousness of the damage
caused to defendant’s motor vehicle,
he could not have been travelling at the slow speed suggested in his
evidence-in-chief.
Though he initially resisted any
suggestion that he had been travelling at a speed in excess of
between 60 and 70 kilometres per
hour, he later realized that he was
fighting a losing battle, grudgingly caved in to that suggestion and
conceded that he had not
looked at the speedometer at the time.
[12] When
it was put to him that he had initially been observed by the
defendant, whose vehicle, at
the time, was stationary at the
intersection, travelling on the left hand side lane of Longmarket
Street while approximately 70
metres away, that he was approaching
the intersection at a very high speed and that, upon his closer
approach to the intersection
and after the defendant’s vehicle
had entered the right hand side lane of Longmarket Street and was
proceeding along the
same in the easterly direction, he had suddenly
and inexplicably changed lanes from the left to the right hand side
and therefore
collided into the defendant’s vehicle, the driver
of plaintiff’s motor vehicle denied all this.
[13] When
the defendant and his two witnesses were called upon to give their
version of the collision they,
in the main, confirmed the version
which had been put to the driver of plaintiff
’
s
vehicle during cross-examination.
[14] At
the completion of the evidence it was evident that the parties
presented divergent and mutually
destructive versions as to the
events leading to the occurrence of the collision. During
argument both Counsel
were agreed that a preference by the Court of a
particular version would provide a resolution to the issue between
the parties.
It therefore became the common
position of both parties that, should the Court prefer the version
given by the plaintiff’s
driver, that would inevitably mean
that the defendant was negligent and that his negligence was the
sole cause of the collision.
The converse
conclusion would have to be reached should the Court find credence in
the version given by the defendant and his witnesses,
which would
inevitably lead to the conclusion that the negligent driving of the
driver of the plaintiff’s vehicle would be
the sole cause of
the collision.
[15] It
must be stated, right at the outset, that the driver of plaintiff’s
motor vehicle, the
defendant and witness Akbar Moosa did not impress
as witnesses. They would often refrain from giving direct
and concise
answers to the questions put to them and, besides, their
respective testimonies would be punctuated by bouts of silence.
Witness Moosa was particularly guilty of these practices and, in
addition, in response to the questions put to him, he would be
unnecessarily loquacious and argumentative to such an extent that the
Court had to reprimand him and he had to apologise for this
conduct a
number of times. After having listened to these witnesses
the Court was left with a sense of doubt as to
exactly what had
transpired on the occasion of the collision.
[16] Fortunately,
however, the same criticism cannot validly be leveled at the evidence
of the defendant’s
second eye-witness, to wit, Ms. Saria
Johannah Smith. It was evident that this elderly and
unassuming lady had come
to tell the truth as to what she had
observed during the evening in question. Though
unsophisticated and obviously
not versed in matters judicial, she
responded to the questions put to her in a direct, concise and
convincing manner.
She certainly made a good impression
to the Court.
[17] In
assessing the evidence the trier of fact should, however, be mindful
of the fact that demeanour,
without anything more, is not sufficient
as a basis for the rejection of such evidence. As
Nugent
JA
remarked in a recent Supreme Court of Appeal decision :-
“
[14]
It has been said by this Court before, but it bears repeating, that
an assessment of evidence on the basis of demeanour
– the
application of what has been referred to disparagingly as the
‘Pinocchio theory’ – without regard
for the wider
probabilities, constitutes a misdirection. Without a
careful evaluation of the evidence that was given
(as opposed to the
manner in which it was delivered) against the underlining
probabilities, which was absent in this case, little
weight can be
attached to the credibility findings of the Court
a
quo. “
[1]
[18] A
convenient point of departure regarding those probabilities in the
context of the facts of the
present case are the events leading up to
the giving of evidence by the two eye witnesses. Witness
Moosa is a son-in-law
of Ms. Smith. At the time both were
resident in a block of flats situate alongside and on the southern
side of Longmarket
Street and approximately 100 metres from the
intersection between George and Longmarket Streets.
Neither of them is
related to or had had any contact with any of the
parties to the proceedings. They testified (and it was
not disputed)
that they had come to testify under a subpoena.
Weighing the probabilities based on these facts, I have been driven
to the conclusion that these witnesses were unlikely to deliberately
falsify the evidence of what occurred that evening.
[19] Both
eye-witnesses testified that the plaintiff’s motor vehicle had
been travelling at a
high speed. This evidence amounts to
an observation made by these witnesses and, as it was stated in
Rex
v van der Westhuizen
[2]
:-
“
In
a sense, observation nearly always involves a certain amount of
inference. If I were to state that a certain person was
angry
from my own observation, it is an inference I have drawn from such
facts as his expression, his tone of voice, and perhaps
other
circumstances. If I give evidence that a person is drunk,
I naturally do not experience the feelings in the head
that he has,
but I draw the inference from his speech, his walk, and other
circumstances ……”
[20] The
circumstances from which Ms. Smith inferred her observation were
clearly and concisely set
out in her testimony. As she
was resident in a block of flats situate alongside the road she would
often sit on the
balcony and observe the vehicles driving past.
She therefore got to learn to distinguish vehicles travelling fast
from
those travelling slowly. She could also tell that a
vehicle was travelling fast by the loud sound of its engine.
On the occasion she had observed the approaching Audi A3 (plaintiff’s
motor vehicle), and on the basis of her experience
in observing the
vehicles travelling down the road, she could tell that the vehicle
was travelling fast. Her
observation to that effect
was reinforced by the sound of the engine of the vehicle which was
very loud.
[21] It
is true that Ms. Smith is not an expert relating to the estimation of
speed of motor vehicles.
As a matter of fact she
testified that she had never before driven a motor vehicle.
However, as already indicated,
Ms. Smith’s evidence on this
issue constitutes her own observation based on the circumstances from
which she had inferred
that observation. It does
not amount to a scientific opinion based on a hypothesis or set of
facts deposed to
by a witness and which have not been observed by an
expert. That a lay person is entitled to give
evidence of
such an observation is now trite. For instance, in
S
v Maseko
[3]
Milne JP
remarked
as follows :-
“
The
evidence of Ms. Schofield was to the effect that the appellant was
going very fast. It is true that she only
had a
brief opportunity to see him – she did not make scientific
observation, but really the time has come when one must
surely
recognize the ability of the average motorist to say, in ordinary
circumstances and certainly when testifying to events
witnessed by
him in broad daylight, whether a car is going too fast or fast or
slowly or at a medium speed.”
[22] Besides,
the objective evidence discovered after the collision is confirmative
of the evidence
witness’ estimate of the speed travelled by the
motor vehicle, by way of example, the nature and extent of the damage
caused
to defendant’s motor vehicle, the trajectory in which
(as well as the distance to which) it was hurled immediately after
the collision and the fact that, due to the damage caused to
plaintiff’s vehicle, it was considered to be uneconomical to
repair the same. All these features can reasonably be
expected to eventuate from the collision involving, at least,
one
fast moving motor vehicle.
[4]
[23] Having
therefore compared the evidence on the issue adduced during the trial
with the underlying
probabilities of this case, I have found that the
evidence of witness Smith accords with those probabilities and
that it
must be preferred. I accordingly find
that, on the occasion, the driver of plaintiff’s vehicle was
travelling at a speed which, in the circumstances, was excessive.
[24] Defendant’s
and Moosa’s evidence that the plaintiff’s motor vehicle
had initially
been travelling on the left lane of Longmarket Street,
and Moosa’s evidence that, upon its closer approach to the
intersection,
it had suddenly switched lanes, and crossed over onto
the right lane and that, at the time, defendant’s motor vehicle
had
already entered Longmarket Street and was travelling on the right
lane, is corroborated by the evidence of Ms. Smith which I have
found
to be credible. On the other hand I have found the
evidence given by the driver of plaintiff’s vehicle
not to
accord with the probabilities of the case and therefore to be
unreliable. I therefore find to have been proven,
on a
preponderance of probability, that, on the occasion, plaintiff’s
motor vehicle had initially been driven on the left
hand side of
Longmarket Street and that, upon its closer approach to the
intersection, and at the time when defendant’s vehicle
had
already entered the right lane, it had moved from the left lane and
entered the right lane upon which lane it was being driven
at the
time when the collision occurred.
[25] The
test for negligence was propounded in the landmark decision of
Kruger
v Coetzee
[5]
where
Holmes
JA
formulated
the test as follows :-
“
For the
purposes of liability
culpa
arises
if –
(a)
a
diligens
paterfamilias
in
the position of the defendant –
(i)
would foresee the reasonable possibility of his conduct injuring
another in
his person or property and causing him patrimonial loss;
and
(ii)
would take reasonable steps to guard against such occurrence;
and
(b)
the
defendant failed to take such steps.”
[6]
[26] That
a reasonable person in the position of the defendant would have
foreseen a reasonable possibility
that his conduct in entering a main
road from a side road was likely to cause an injury and that such a
person would have taken
reasonable steps to guard against the
occurrence of such an injury, cannot be gainsaid.
The issue which is then
left for determination is whether the
defendant did take reasonable steps to guard against such occurrence.
[27] In
the National Road Traffic Regulations, 2000 it is stated that a
yield sign :-
“
Indicates
to the driver of a vehicle approaching such sign that he or she shall
yield right-of-way to all :-
(a)
traffic on the roadway which is joined by the roadway on which he or
she is travelling;
…….”
[28] In
Marfuggi
v Queensland Insurance and another
[7]
reasonable steps to
be taken by a driver in similar circumstances were formulated as
follows :-
“
The
duty of a driver approaching the through street is to give precedence
to all traffic in that street. If there is
no traffic in
the through street or if there is traffic with which he will not
interfere, he is under no duty to stop or slow down.”
[8]
[29] The
facts which the Court have found proven in this matter is that, at
the time when the defendant
entered the right lane of Longmarket
Street from George Street, plaintiff’s motor vehicle was
travelling on the left lane
of Longmarket Street. As
there was no traffic on the right lane upon which he had intended to
travel (and upon which
he indeed travelled) after entering Longmarket
Street and as there was no traffic which was so close as to
constitute a danger,
the defendant was under no duty to stop or even
to slow down.
[30] For
the aforegoing reasons, I have been driven to the conclusion that the
plaintiff has failed
to establish negligence on the part of the
defendant.
Plaintiff’s
action is accordingly dismissed with costs. The costs
relating to the Rule 13 Notice should also be
borne by the
plaintiff.
For the
Plaintiff: Mr. B Nicholson
(instructed by Tomlinson Mnguni James)
For the
Defendant: Adv. A Pillay (instructed by Chetty, Asmal &
Maharaj)
Matter heard:
23
and 24 March 2009
Judgment delivered:
21 April 2009
[1]
Medscheme Holdings (Pty) Ltd and another v
Bhamjee 2005(5) SA 339 (SCA) at 345 A-B;
[2]
1929 CPD 484
at 486;
[3]
1983(4) SA 882 (N) at 883; see also Cooper
– Delictual Liability in Motor Law (1996) at 468; van
der Westhuizen
(supra) at 486;
[4]
Rex v Freeman
1931 NPD 460
at 468;
[5]
1966(2) SA 428 (A);
[6]
Ibid. at 430 E-G;
[7]
1959(3) SA 888 (SA);
[8]
Ibid at 890 H; See also Cooper
(supra) at 189;