Ranthama v Road Accident Fund (1913/2006) [2007] ZAFSHC 88 (30 August 2007)

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[2007] ZAFSHC 88
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Ranthama v Road Accident Fund (1913/2006) [2007] ZAFSHC 88 (30 August 2007)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Case No.: 1813/2006
In
the case between:-
MAMPEONAE
ANNAH RANTHAMA
Plaintiff
and
ROAD
ADDIDENT FUND
Defendant
_____________________________________________________
HEARD
ON:
21
& 22 AUGUST 2007
_____________________________________________________
JUDGMENT
BY:
KRUGER
J
_____________________________________________________
DELIVERED
ON:
30
AUGUST 2007
_____________________________________________________
[1] Plaintiff
caused summons to be issued against defendant in respect of a
collision on 28 July 2001 at 11 am between the Jetta motorvehicle
driven by her husband
(who
died on the same day) in which plaintiff and her two sisters were
passengers, and a Mazda bakkie driven by the insured driver
(who had
no passengers) on the Congo Main Road, Phuthaditjhaba. This being a
dependant’s claim, there is no counterclaim. At
the outset of the
proceedings the parties by agreement requested an order under Rule
33(4) that issues be separated so that only
the merits, as contained
in paragraphs 3 and 4 of the particulars of claim and paragraph 3 of
the plea be adjudicated. The allegations
in the pleadings are of a
general nature and no specific acts of negligence are alleged.
[2] Plaintiff’s
case is that the Jetta was travelling very slowly, about or in fact
stationary, behind a stationary vehicle, relatively
close to the
robot at the intersection in front. The bakkie came from the front
and for no apparent reason came onto plaintiff’s
side of the road
and the two right front sides collided.
[3] Defendant’s
case is that the collision occurred about 200 metres from the
intersection. The Jetta straddled the barrier line
and overtook a
vehicle next to the bakkie. The insured driver attempted to brake
and swerve to the left, but could not avoid a collision
because the
Jetta emerged suddenly from behind the vehicle in front of it coming
onto the insured driver’s side of the road.
[4] Plaintiff’s first
witness was her sister, Matshidiso Nketle, who sat in the back left
of the Jetta. She testified that they
were busy coming to a
standstill at the robot. She did not know whether the Jetta’s
indicator was on. She did not know how many
lanes the road has
there. She said the collision occurred on the Jetta’s correct side
of the road. They were going to turn right
at the robot. The final
answer of her evidence in chief was that she does not know how the
two vehicles collided.
[5] In cross-examination
she said the collision occurred near the robot. She could not
estimate any distances. She does not understand
metres although she
made grade 11 at school. She said the Jetta was stationary at the
time of the collision. The vehicle in front
of theirs was also
stationary. As they approached, the vehicles were already
stationary. When the Jetta approached the vehicles
were standing
still. She denied that the Jetta tried to overtake another vehicle.
Mr. Mogagabe, for the defendant, wanted to put
a statement she had
made to the police to her. Initially I stopped him, but later, with
no objection from Mr. Pohl, for the plaintiff,
the witness was
re-called and her statement was handed in. She said she signed the
statement and it was correct. In the statement
she says that the
Jetta was stationary: “He as waiting for an oncoming car as the
vehicle in front of his car was stationary on
the road and he wanted
to overtake it.” In her evidence the witness said the statement is
incorrect. She did not understand what
overtake means. After
further questioning, she said she now understands what overtaking
means. When it was put to her that earlier
she had said she did not
know how the collision occurred, she responded that she did not see
how the collision happened, she only
heard the impact.
[6] I found Matshidiso a
particularly poor witness. It was clear to me that she did not pay
attention and was simply trying to say
that the collision occurred on
the Jetta’s correct side of the road. She tried to avoid reference
to overtaking, although her
statement made in April 2002 mentioned
that the driver of the Jetta wanted to overtake the vehicle in front.
Very little, if any,
value can be attached to her evidence.
[7] The plaintiff was
sitting in the passenger’s seat. They had passed the Congo bridge
on their way to the robot. The insured
vehicle, the bakkie, came
from the front at high speed and came over to their side of the road.
They were busy slowing down on their
way to the robot, where they
were going to go straight through.
[8] In
cross-examination plaintiff was asked to point out the distance they
were from the intersection at the time of the collision.
The
distance she pointed out measured 13,1 metres. This differs
considerably from the defendant’s version that the collision
occurred 200 metres from the intersection. She did however say that
they were not near the robot yet.
[9] Plaintiff’s
statement in which she said that the Jetta was stationary at the time
of the collision was put to her. She denied
it. They were moving at
a slow pace, the vehicle ahead of them was at a standstill. Asked
what caused the bakkie to leave its lane
and come over to their side
of the road she said she did not take notice of that. The car ahead
of them was 5,1 metres ahead of
the Jetta. Now she said the vehicle
in front of them was moving slowly. In paragraph 2 of plaintiff’s
police statement made on
the 29
th
July 2001, the day after the collision she says in paragraph 2:
“
There was a car that we were
following, our driver tried to overtake it but it was late for him as
there was a car that was coming
to the opposite direction and it was
where the two vehicles collided.”
In her
statement made in 2004 plaintiff said that her police statement is
not correct.
“
5. Die polisie
het ook ‘n verklaring by my afgeneem maar die inhoud van daardie
verklaring is nie korrek nie. Die verklaring is
geskryf soos die
poliesman wat dit afgeneem het gedink het gebeur het. Dit was ook
kort na die ongeluk (ek was nog deurmekaar en
in die hospitaal) toe
ek nog baie seer was en hartseer oor die dood van my man.”
Plaintiff
now said she never told the policeman what happened in the accident.
This “comes out of the mind of the policeman”
she said. No-one
came to the hospital where she was after the collision, and
introduced himself as a policeman. No statement was
read back to her
in hospital. Plaintiff said she did not agree with the statement
where it is stated that they were overtaking.
She suggested that the
signature on the police statement was not hers. A plan which was
apparently drawn during plaintiff’s consultation
with her attorneys
was put to her and handed in as exhibit “A”. That plan depicts
the bakkie coming over onto the Jetta’s
side, and hitting the Jetta
virtually at the intersection. She said the collision occurred
further from the intersection than depicted
on “A”. It was put
to her that no objection was ever raised and she was asked why she
did not point out to her attorneys that
their plan was incorrect. It
forms part of documents discovered by plaintiff.
[10] Plaintiff, although
a better witness than her sister, was not a good witness. Material
discrepancies in her evidence relate
to the question whether the
Jetta was stationary or not at the time of impact; and whether she
told the police that they intended
to overtake the car in front of
them. It is significant that the overtaking is also mentioned by
Matshidiso in her statement made
in 2002 (a year after the
collision). In court both deny any question of overtaking. The most
unsatisfactory part of plaintiff’s
evidence is that on her version
there was no reason for the bakkie to come to their side of the road
and collide with a stationary,
or semi-stationary vehicle which
caused him no problem.
[11] The
insured driver, who drove the bakkie, Maseko, got his drivers licence
in 1999, two years before the collision. On the day
in question he
was delivering goods. He had passed the road earlier the same day,
and there was a road block some distance from
the intersection. He
was travelling slowly, about 50 – 60 km per hour. He turned right
at the intersection. About 200 metres
from the intersection when he
was in line with a vehicle travelling in the opposite direction, a
Toyota Venture, the Jetta came out
behind it and overtook the Venture
and their right front sides collided. Maseko tried to swerve, but it
was too close. At that
point there is a barrier line prohibiting the
Jetta to overtake. He was travelling in the middle of his lane. He
said the Jetta
was wholly in his lane, but in cross-examination it
was pointed out to him that the left part of the Jetta was probably
still on
its correct side. Nothing turns on this. The Jetta was
travelling at high speed.
In cross-examination it
was put to Maseko that there is an emergency lane of 2,1 metres, and
next to that about 2 metres of gravel
to which he could swerve. He
confirmed that there were no stationary or moving cars in either of
those, there no obstruction for
him. He simply had no time to
swerve. It was put to him that he moved onto the incorrect side of
the road and hit the Jetta (no
reason was advanced as to why he
should have done so). He denied it. He stressed that he had no time
to get out of the Jetta’s
way.
[12] It so happened that
the vehicle immediately behind Maseko was a police vehicle. It was a
single cab bakkie with a canopy, a
marked police van. Inspector
Moloi, the driver, has since passed away. Next to Moloi was
Inspector Stemmer, and on the left hand
side, Inspector Mphanya.
Both testified.
[13] Mphanya testified
that they stopped at the robot and turned left in the direction of
Makwane on the Congo main road. The traffic
was not very busy.
There was a Mazda delivery van (the vehicle driven by Maseko) right
in front of them. About 200 metres from
the robot, when they were
not at speed yet – as he put it they were probably still changing
gears from third to fourth or in that
vicinity, all of a sudden a
Jetta appeared from the front, overtaking a vehicle and it struck the
bakkie in front of them. Mphanya
described it as the type of
manoeuvre used in Johannesburg, overtaking quickly. At the time of
the collision the bakkie was about
4,6 metres away from them. The
bakkie was driving in the middle of its lane, neither to the left,
nor to the right. The Jetta was
obscured from Mphanya’s view. As
it appeared it was so close that it was impossible for the Jetta to
overtake, and it was impossible
for the bakkie to move off to the
left. When the Jetta tried to overtake the distance between the
Jetta and the bakkie was such
that the Jetta could not execute its
overtaking manoeuvre, and the bakkie could not get out of the way.
The Jetta was travelling
at a high speed and executed the manoeuvre
in a sudden manner. The Jetta could not overtake. The Jetta was
about 4,5 metres from
the front part of the bakkie when it started to
overtake. The accident happened in the wink of an eye (the
interpreter used the
word “blitsvinnig” which he said rendered an
accurate description of what the witness was saying in Sesotho).
Mphanya does not
know the plaintiff. He met the insured driver,
Maseko, on that day for the first time. Mphanya was together with
the deceased in
the police college and they were colleagues. Mphanya
was very upset when he went to speak to the driver of the Jetta and
noticed
that it was the deceased, a person known to him.
[14] In
cross-examination Mphanya said that on the particular day he was not
wearing a uniform because his uniform was too small for
him. Stemmer
and Moloi were both in uniform. Mphanya held the highest rank among
the three. The accident did not occur in the
area of their police
station but in that of Phuthaditjhaba. He does not know who was
appointed investigating officer and did not
follow further events in
relation to the accident. According to Mphanya the Jetta after the
collision stayed on its correct side
of the road and just turned
around so that it was facing to the direction that it was coming
from. This evidence differs from the
evidence of the plaintiff and
Matsidiso. Maseko did not go to the Jetta after the collision and he
was busy uncoupling the battery
of his car. Stemmer, the other
police officer, also said that the Jetta after the accident went to
the wrong side of the road.
On photograph 71.1 the Jetta is on its
incorrect side of the road. To this Mphanya said that the fire
brigade possibly moved the
Jetta. On the probabilities Mphanya’s
evidence that the Jetta remained on its side of the road is
incorrect. It is probable
and I find that the Jetta did in fact
veer onto its incorrect side of the road.
[15] In Mphanya’s
police statement, which he made on the day of the accident, he does
not mention anything about an overtaking manoeuvre
of the Jetta. The
statement simply states that the Jetta was driving towards them and
the Mazda was on its way to the industrial
area. The Jetta was
damaged on the right hand side, rescue services were called and
applied first aid to Ranthana, the driver of
the Jetta, but declared
him dead. The three ladies who were in the Jetta were taken to
hospital. Maseko, the driver of the bakkie
was injured on his right
leg. That is what the statement says. Asked why no mention is made
of overtaking, Mphanya explained that
the investigating officer tends
to re-take statements. His view was that at that stage the police
should not say what the cause
of the collision was, because the case
will still go to court. His statement was not, he said, in a form
ready for investigation.
Further investigation must follow. A
further factor influencing the contents of his statement was that the
driver of the Jetta
was known to him. It was a former colleague of
his. When one comes across such situation, you require counselling,
he said. He
agreed that the point impact indicated by him on
photograph 78.4 is about one and a half pace from the centre white
line of the road.
Asked whether in that case the left wheels of the
Jetta were on or over the white line, Mphanya said when one vehicle
overtakes
another, the overtaking vehicle can be wholly or partially
on the other side of the road. As to debris indicating the point of
collision,
he said that he thought that the debris was at the place
he was standing on photograph 78.4 as the point of impact, although
he was
not cock-sure. He insisted that the glass was on the bakkie’s
side of the road. When it was put to him that the fact that he
did
not refer to overtaking in his police statement indicated that he did
not see the accident, he responded that he saw the accident
with both
eyes.
Asked
whether the bakkie swerved, Mphanya said he did not swerve, he did
not have an opportunity to do so. The Jetta’s speed appeared
to be
quite high, it could be 70, 80 or 100km per hour. The last time the
Jetta would have to stop coming from the direction it
did, was quite
far away thus the Jetta would have had time to build up speed. Asked
again whether he was sure about the distance
between the bakkie and
the Jetta before the impact, Mphanya said the distance was such that
it was impossible for the Jetta to overtake.
[16] Mphanya was a
loquacious witness. He gave long answers which often did not address
the question. He was wrong about the final
position after the
collision of the Jetta, but that cannot detract from his evidence.
The events occurred in 2001, six years ago.
There was criticism
against him for not mentioning overtaking in his police statement.
To my mind he explained that omission satisfactory:
The case was still to be
investigated; it is undesirable for police officials to apportion
blame in their statements.
The driver of the Jetta,
who had been very seriously injured and died on the scene, to whom
he spoke on the scene, was a person
with whom he had been in the
police college and a former colleague of his. Mphanya needed
counselling, it was a disconcerting
experience.
In these circumstances it
was natural that Mphanya did not want to say that the Jetta was the
cause of the collision. On the positive
side, he is a police
official with 18 years’ experience. He has a drivers licence. He
is impartial. He knew the driver of the
Jetta. If anything, one
could expect him to be biased in favour of the plaintiff who is the
widow of his former colleague. He had
a ringside view of the
collision. He was adamant that the Jetta appeared suddenly; it could
not execute the overtaking manoeuvre;
there was nothing the bakkie
could do.
[17] The other police
official, Inspector Stemmer was seated in the middle of the police
vehicle next to the driver. He saw two vehicles
approaching. Then
the Jetta attempted to overtake a vehicle approaching and collided
with the van in front of them. They avoided
hitting the bakkie or
the Jetta by moving off the road to the left. Before the collision
their vehicle was 6,7 metres from the bakkie.
When the Jetta tried
to overtake, it was a car length from the bakkie. Both the bakkie
and the police van were travelling at a
slow speed; the Jetta at a
high speed. Stemmer did not have a driver’s licence at the time,
he only got one in 2004.
Asked whether in his
view it was possible for the driver of the bakkie to avoid the
collision, his response was that he could do
nothing about the
accident. Both the bakkie and the Jetta ended up on their incorrect
sides of the road. The impact was on the
bakkie’s side of the
road. Stemmer regulated the traffic after the collision, he did not
look for debris on the road and did not
speak to anyone.
[18] In cross-examination
he said he could not remember how far from the centre line the
collision occurred. He differed from Mphanya
as to the area of the
collision. Whereas both Mphanya and Maseko said the collision
occurred 200 metres from the intersection, he
felt it could be 500
metres. In this respect Stemmer is clearly mistaken. It appeared
from the evidence that the points indicated
by Mphanya and Maseko
were about 200 metres from the intersection. Stemmer testified that
the Jetta left its lane and went to the
side of the road where the
accident happened. The bakkie never left its side of the road.
Stemmer said that on photograph 78.4
Mphanye was pointing to where
the collision occurred (i.e. further away from the intersection). In
re-examination it became clear
that he was not present when photo
78.4 was taken, and did not know where Mphanya was pointing.
[19] Stemmer was a good
witness. The only criticism against him is that he put the area of
the collision 500 metres from the intersection,
not 200. Nothing
turns on this. Another factor is that he did not have a drivers
licence at the time of the collision. Again,
on the positive side he
is a policeman, impartial, had a bird’s eye view of the collision
happening right in front of him. He
made it clear that the Jetta was
a car length from the bakkie when it attempted to overtake. There
was nothing the driver of the
bakkie could do.
[20] In
arguement Mr. Pohl, for the plaintiff, submitted that this is a type
of accident which happened near the centre of the road
and in such
case both drivers are normally considered negligent. At a collision
between vehicles travelling in opposite directions
very near to the
centre of the road and both failed to realise the danger of the
situation that is in all likelihood due to the failure
of both to
keep a proper lookout (
CANTAMESSA
v REINFORCING STEEL COMPANY LIMITED
1940 AD 1
at 6 – 7;
VAN
ECK v SANTAM INSURANCE CO LTD
1996 (4) SA 1226
(C) at 1230 B – D). If a driver on his correct
side sees the other travelling on his incorrect side, or was about to
cross over
to his incorrect side, it would be negligence on his part
if he failed to take all reasonable steps to avoid a collision
(
JADEZWENI
v SANTAM INSURANCE CO LTD AND ANOTHER
1980 (4) SA 310
(C) at 311H).
[21] Mr. Mogagabe, for
defendant, submitted that the cases referred to by Mr. Pohl are not
in point. This is not a case where the
principles relating to
collisions in the centre of the road will determine the situation.
It is an overtaking case, and the reasonable
man test applies: was
the driver of the insured vehicle able to do anything to avoid the
collision. He pointed out that there is
a barrier line which
prohibits drivers in the position of the Jetta to overtake because of
the incline.
[22] The first point to
be decided is whose version to accept. The plaintiff and her sister
tried to put the accident close to the
intersection, so as the put
the Jetta at a virtual or absolute standstill. Photograph 71.1 shows
where the Jetta was after the collision
that is not in the proximity
of the intersection. Furthermore there are two serious criticisms
against the plaintiff and her sister:
(i) In their police
statements both say that their driver wanted to overtake the vehicle
in front of them. In court both denied that
there was attempt to
overtake. Plaintiff implied that her signature had been forged.
Matsediso’s explanation was that the statement
was not correct, and
at the time she did not know what “overtake” means.
(ii) On
plaintiff’s version no reason at all is given for the bakkie to
move over to its incorrect side of the road.
A
further criticism against plaintiff’s case is that the version
advanced for the defendant, that of the insured driver, Maseko,
is
supported by two independent police witnesses. I have no hesitation
in rejecting the plaintiff’s version.
[23] The
next question is whether, on the defendant’s version Maseko was
negligent. This being a dependant’s claim, the plaintiff
only
needs to prove the theoretical 1% of negligence on Maseko’s part.
[24] This
is an overtaking situation, not one, as Mr. Pohl would have it,
dealing with a collision close to the centre of the road.
In what
Mr. Pohl called the
locus
classicus
on such cases,
CANTEMESSA
(above)
the centre of the road was not marked by means of white lines (page 3
of the report: the accident occurred in 1937). Overtaking
is a
potentially dangerous manoeuvre (
KRUGER
v VAN DER MERWE AND ANOTHER
1966 (2) SA 266
(A) at 273 C – E). The question is whether there
was a failure to keep a proper lookout and whether that failure was
causally
connected to the collision (
GUARDIAN
NATIONAL INSURANCE CO LTD v SAAL
1993 (2) SA 161
(C) at 163 B – D). The plaintiff has to prove that
had Maseko reacted when the reasonable man would have reacted, the
collision
would probably not have occurred (
DIALE
v COMMERCIAL UNION ASSURANCE CO OF SA LTD
1975 (4) SA 572
(A) at 578 F). The question is whether Maseko ought
reasonably to have become aware at a stage when avoiding action could
still
be taken, that the Jetta was coming into his line of travel
(
BAY
PASSENGER TRANSPORT LTD v FRANZEN
1975 (1) SA 269
(A) at 277 B – C). The first question is whether
Maseko was keeping a proper lookout (
GUARDIAN
NATIONAL INSURANCE
above at 163 B – D). Having found a failure to keep a proper
look-out, the court still needs to make a finding that such failure
was causally connected to the collision (
loc
cit)
.
Overtaking is an inherently dangerous manoeuvre. The photographs
depict a slope in the road; the Jetta was coming up-hill towards
the
intersection. One cannot fault a person in Maseko’s position for
not being able to swerve and avoid the collision. The driver
of the
Jetta created a dangerous situation by straddling the barrier line.
The following evidence is important:
1. The Jetta was on all
accounts travelling at high speed. This was the evidence of Maseko
as well as the two police witnesses.
2. On
the evidence of Maseko as well as of the two police witnesses the
Jetta appeared suddenly from behind the vehicle it was overtaking.

The evidence seems to indicate that the Jetta simply launched into
the overtaking manoeuvre without looking at all.
3. Both
police witnesses were adamant from their very favourable vantage
point that there was nothing which Maseko could do to avoid
the
collision.
[25] Mr.
Pohl says that Maseko had an unobstructed emergency lane of 2,1
metres, with next to it a gravel shoulder of about 2 metres
to veer
to; out of the way of the Jetta. Maseko conceded that the emergency
lane was open; he says he simply had no time. He attempted
to swerve
to the left but there was no time. Mr. Pohl therefore says that
Mphanya failed to keep a proper lookout because if he
had he would
have seen the Jetta and have taken avoiding action by veering to the
left. Both Mphanya and Stemmer confirm that Maseko
had no time to
veer to the left. Once Maseko had no time to react, it is irrelevant
how much space he had to his left.
[26] On the facts as they
appear from the evidence the plaintiff has failed to establish any
negligence on the part of the insured
driver.
[27] The plaintiff’s
claim is dismissed with costs.
____________
KRUGER, J
On
behalf of applicant: Adv.
Instructed
by:
BLOEMFONTEIN
On
behalf of the respondent: Adv.
Instructed
by:
BLOEMFONTEIN
/em