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[2006] ZANCHC 38
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DJ Bosman Transport (Pty) Ltd v Natro Freight (Pty) Ltd and Another (1442/2004) [2006] ZANCHC 38 (30 June 2006)
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IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape Division)
Case
Nr: 1442/2004
Case
Heard: 12&13/06/2006
Date
delivered: 30/06/2006
In
the matter:
D J BOSMAN TRANSPORT (PTY)
LTD PLAINTIFF
versus
NATRO FREIGHT (PTY) LTD 1
ST
RESPONDENT
THE PREMIER OF THE NORTHERN
CAPE 2
ND
RESPONDENT
Coram:
Olivier J
JUDGMENT
OLIVIER
J:
[1]
The
plaintiff, D J Bosman Transport (Pty) Ltd, issued summons against the
first defendant, Natro Freight (Pty) Ltd, and the second
defendant,
The Premier of the Northern Cape. The plaintiffâs claim is based
on damages to a vehicle (
âthe
Bosman vehicleâ
) after
a collision between the Bosman vehicle and the load on the first
defendantâs vehicle (
âthe
Natro vehicleâ
), which
were escorted by two traffic officers who were employees of the
second defendant.
[2]
The
first defendant denied liability on the part of its employee (driver)
and pleaded that the collision had been caused by the negligence
of
the driver of the Bosman vehicle. In the alternative the first
defendant pleaded that the negligence of the plaintiffâs driver
and
of the second defendantâs employees contributed to the accident and
prayed for an apportionment in terms of the provisions
of the
Apportionment of Damages Act, 34 of 1956. The first defendant also
instituted a counterclaim against the plaintiff for the
damaged
suffered by it.
[3]
As
far as the merits are concerned the second defendant similarly denied
any form of negligence on the part of its employees. In
the
alternative it pleaded that the collision had been caused by the
negligence of the plaintiff and/or the first defendant.
[4]
The
second defendant initially also filed a special plea on the basis
that the plaintiff had failed to comply with the provisions
of the
Institution of Legal Proceedings against certain Organs of the State
Act, 40 of 2002. The plaintiff then applied for condonation
and at
the commencement of the trial such condonation was granted by
agreement between the parties concerned.
[5]
It
was at that stage also ordered, by agreement between all three
parties, that the issues in this matter be separated on the basis
that the only issue to be decided at this stage is whether the
collision was caused by the negligence of one or more of the parties
and, if so, the degree of negligence on the part of such party.
[6]
The
following facts were common cause for the purposes of this issue:
6.1 The
collision occurred on the 28
th
of May 2003 on the N12 national road between Britstown and
Strydenburg, an area within the jurisdiction of this Court. Although
there was some dispute about the exact time of the collision it was
common cause that it had occurred during daytime, with good
visibility,
and on a tarred road.
6.2 The Bosman vehicle
was driven by mr Wayne Erasmus, who died as a result of injuries
sustained in the accident. It had approached
the area from a
southerly direction, in other words from Britstown in the direction
of Strydenburg.
6.3 The
Bosman vehicle approached the area and the scene of the accident
behind a vehicle driven by mr Samuel Terry Fortune, an employee
of a
firm called Liebentrans (
âthe
Liebentrans vehicleâ
),
which vehicle had also been travelling in the direction of
Strydenburg.
6.4 Both the Bosman and
Liebentrans vehicles were trucks or heavy vehicles, comprised of
so-called horses and trailers.
6.5 The Natro vehicle
was driven by mr Maxwell Kasiyamhuru and was approaching the area
from a northerly direction, in other words
from Strydenburg in the
direction of Britstown.
6.6 Although
the Natro vehicle also consisted of a horse and a trailer it carried
an abnormal load, consisting of a steel structure
which weighed 8
tons and which, more importantly, was 6,4 metres wide, causing it to
protrude from each side of the Natro vehicleâs
trailer by 1,9
metres.
6.7 The road consisted
of one lane for traffic in each direction. In the area where the
collision occurred the width of the lane
(in other words between the
double barrier line separating the two lanes and the yellow line) in
which the Liebentrans and Bosman
vehicles were traveling was
approximately 3.160 metres, that of the so-called emergency lane on
that side of the road (in other words
the area between the yellow
line and the so-called shoulder of the road) 0,89 metres and that of
the gravel shoulder area (in other
words between the shoulder on that
side of the road and the embankment) approximately 0,7 metres. The
total distance between the
yellow line and the embankment on that
side of the road was therefore approximately 1,6 metres.
6.8 The point of impact
was within the lane for traffic from Britstown to Strydenburg, in
other words the lane in which the Liebentrans
en Bosman vehicles had
been traveling.
6.9 The
collision occurred, for vehicles approaching from Britstown, after
having moved up a slight uphill or incline and shortly
after a bend
to the left in the road (around a small hill which obstructs the view
for traffic from both directions). The bend around
the hill (âthe
first bendâ) is actually a more pronounced part of a long curve to
the left and is then followed by another more
pronounced bend (âthe
second bendâ) to the left. The collision occurred between these
two pronounced bends. It was never disputed
that this area is
correctly reflected on a sketch plan (handed in by the first
defendant as exhibit âBâ and also included in
the bundle of
documents, exhibit âAâ, at page 107) and on the photographs which
was also submitted by the first defendant and
also formed part of the
bundle of documents.
6.10 The
first defendant had been in possession of a valid exemption permit
(
âthe permitâ
)
authorising it to transport the load. The Natro vehicle was, as
already mentioned, escorted by two traffic officers.
INSPECTION IN
LOCO
[7]
At
the commencement of the trial mr den Hagen, on behalf of the
plaintiff, applied for an inspection
in
loco
at the scene of the
accident, which is apparently some two hours drive from here.
[8]
This
application was brought against the background of the fact that I
had, earlier during the same day and in the presence of all
the
parties, viewed video footage of the area and of the scene where the
collision had occurred. A description of this footage was
formulated
by agreement between the parties and handed in as exhibit âCâ and
reads as follows:
â
Observation
iro video
The
video 1stly depicts a vehicle traveling in the direction of a small
hill to the right of vehicle.
The
gradient is slightly upwards
The
vehicle goes through a bend, after which the road straightens
somewhat.
It
then goes through another bend (which leads around the hill) and at
the start of this bend the two lanes are divided by a solid
line.
The
video depicts the embankment on the left side of the road and shows
it sloping down to veldt.
The
video depicts a motor vehicle approaching the small hill from the
opposite side (ie with the hill to its left).
The
gradient is slightly upwards.
As
the vehicle goes round the bend, the gradient and curve flattens
out.â
(Paragraphs
1 to 5 are based on the view as the area is approached from a
northerly direction, in other words from the direction of
Strydenburg.)
[9]
Furthermore
the first defendant had filed a notice in terms of Rule 36(10) in
respect of,
inter alia
,
the photographs and the sketch plan already referred to, to which
neither the plaintiff nor the second defendant ever objected.
[10]
In
motivation of his application mr den Hagen stated, in somewhat vague
terms, that the incline and decline in the road and the bends
do not
appear properly from the video footage, that the
âdistance
is out of focusâ
and
that what lies beyond and before the first bend and the point of
impact do not appear from the footage. It was not at that stage
explained what the plaintiffâs case would be as far as these
aspects were concerned or whether there would be any dispute in this
regard.
[11]
Mr
den Hagen furthermore relied on a submission by the author of
Delictual Liability in
Motor Law
(at page 478)
to the effect that the refusal to hold an inspection would amount to
a refusal to admit real evidence and would constitute
an irregularity
in the proceedings. It would appear as thought the authorâs
attitude is that a Court should not have a discretion
in this regard.
[12]
As
interesting as this proposition might be, it is not the position in
our law, which is to the effect that the purpose of such an
inspection is to enable a Court to follow and apply the evidence and
that a Court does indeed have a discretion as to whether to
hold such
an inspection or not (see
R
v Roberson
1958 (1) SA
676
(AD) at 679E-G and
S
v Solani en Andere
1987
(4) SA 203
(NC)).
[13]
The
application for the inspection
in
loco
was refused and it
was pointed out to mr den Hagen that the need for such an excursion
could be reconsidered at a later stage; if
need be as soon as
immediately after the evidence-in-chief of the first and only witness
on behalf of the plaintiff, mr Fortune.
Mr den Hagen, however, never
raised the issue again, to my mind quite understandably. None of the
witnesses experienced any difficulty
whatsoever in describing the
scene and the events with the aid of the photographs and the sketch
plan. The characteristics of the
general area and of the scene of
the collision were in fact never in dispute.
PLAINTIFFâS
CASE
[14]
The
crux of Fortuneâs evidence was that he had been travelling from
Cradock. When he joined the N12 road at Britstown in the direction
of Strydenburg he saw the Bosman vehicle approaching from the south.
As he drove towards Strydenburg the Liebentrans vehicle kept
behind
his vehicle by more or less a truck length (approximately 22 metres)
and never attempted to overtake his vehicle.
[15]
When
he drove around the first bend he noticed the Natro vehicle and its
abnormal load, and only then the vehicle of the traffic officer
(ms E
H Welkom) in front of it. According to him Welkomâs vehicle was
no more than 20 to 30 metres in front of the Natro vehicle.
He
noticed that the load of the Natro vehicle was overhanging its
trailer on both sides.
[16]
When
he realised that Erasmus would not be able to see the Natro vehicle
and its overhanging load he decided to warn him and turned
his
vehicleâs hazard lights on and off twice and then turned them on
again and left them on. According to him there is an understanding
among drivers of heavy vehicles that they will warn one another if
the need arises.
[17]
At
the same time Fortune slowed down and proceeded to move to the left
and out of his lane, and the Bosman vehicle followed suit.
Fortuneâs
evidence was that he moved to the left until the right front wheel of
the horse of the Liebentrans vehicle was on the
yellow line, with the
wheels on the other side of the vehicle on the far side of the
shoulder. Although he had not planned on actually
stopping, he was
eventually forced to do so by the presence of a storm water drain on
the left-hand side of the road.
[18]
According
to Fortune the Bosman vehicle came to a complete standstill
approximately one to two metres behind the Liebentrans vehicleâs
trailer (which was a refrigerator and would, according to Fortune,
have obscured Erasmusâs view of the abnormal load on the Natro
vehicle). Although the Bosman vehicle had also moved to the left
when Fortune proceeded to do so, Fortune noticed (in his rear-view
mirror) that the Bosman vehicle had not moved as far left as the
Liebentrans vehicle. It was Fortuneâs estimation that, when the
Bosman vehicle was eventually stationary, the right-hand side of its
horse was about half a metre two one metre further into their
lane
than the right-hand side of the horse (cabin) Fortune was sitting in.
[19]
When
the Natro vehicle and its abnormal load passed him where he was
sitting on the right-hand side of his vehicle, the red flag attached
to the load on the side nearest to him were so close to Fortuneâs
window that he thought the load was going to hit his trailer.
As he
anxiously watched in his rear-view mirror he saw the load missing his
trailer but hitting the horse (cabin) of the Bosman
vehicle.
[20]
Fortuneâs
evidence was furthermore that the impact of the collision between the
load and the Bosman vehicle caused the horse of
the Bosman vehicle to
swivel, with the result that its left front side impacted with the
right rear side of the Liebentrans vehicleâs
trailer. The Bosman
vehicle was dragged towards the middle of the road by the load after
Kasiyamhuru had, supposedly in reaction
to the impact, swerved to his
left. In the process the Liebentrans vehicle was bumped forward by
more or less between half a metre
and one metre.
[21]
According
to Fortune he then went to Erasmus, where he was still sitting in the
Bosman vehicle, but noticed that Erasmusâs one leg
had been
completely severed and that nothing could be done to help him.
[22]
Fortune
then proceeded to where the traffic vehicle driven by mrs Hofsta (and
which had been following the Natro vehicle) had stopped
and asked
Hofsta how the Natro vehicle could have been allowed to travel at
such a high speed. Fortuneâs evidence was that she
then replied
that they had not been speeding and that the Natro vehicle had been
travelling at approximately 50 km per hour.
[23]
In
Fortuneâs estimation the Natro vehicle had been travelling at a
speed of no less than 50 km per hour, and probably in excess
thereof.
It was clear from Fortuneâs evidence that he blamed the collision
on the fact that the Natro vehicle had been travelling
too fast in
the prevailing circumstances and that it had failed to stop, and also
on the fact that Welkom had not preceded the Natro
vehicle by much
more than a mere 20 to 30 metres, so that she could give sufficient
warning of the oncoming abnormal vehicle.
[24]
Fortune
made a very good impression as a witness. He appeared
self-confident, but at the same time never hesitated to concede
particulars
he could not remember. This does not mean that his
evidence is free from criticism. It is so that he appeared to
contradict himself
on the time of the collision, but in view of the
fact that it was common cause that the collision had occurred during
daytime and
in good visibility this was immaterial.
[25]
His
evidence that he had been travelling at a speed of between 77 and 80
km per hour was inconsistent with the plaintiffâs further
particulars, according to which he had been travelling at a speed of
between of 80 and 90 km per hour. He was, however, never afforded
the opportunity in cross-examination to comment on this. In any
event, in view of the fact that it was never seriously disputed
that
he had eventually pulled over and stopped in time, the speed at which
he had been travelling before then was not really that
important.
[26]
Fortune
appeared to be uncertain of whether Welkomâs vehicle had displayed
warning signs like flashing lights, but it should be
kept in mind
that more than three years had elapsed since the events.
[27]
Miss
de Kok, who appeared on behalf of the first defendant, also
criticised Fotruneâs evidence on the basis of it being improbable
that, on his version, the Bosman vehicle would have impacted with the
Liebentrans vehicleâs trailer. On the available evidence
it is,
however, impossible to come to this conclusion. On Fortuneâs
estimation, formed while he was sitting and observing the
events
(which had probably unfolded quite quickly) in his rear-view mirror,
this distance between the two stationary vehicles could
have been as
little as one metre. The load hit only the right front side of the
horse of the Bosman vehicle, behind which there
had been a trailer
loaded with apples.
[28]
Furthermore
Fortuneâs evidence was that the load, which had hooked onto the
Bosman vehicle after the collision between them, had
broken loose and
eventually fell off and it is unknown what effect (if any) it might
have had on then movement of the Bosman vehicle
after the initial
impact. In my view it would be unfair, under these circumstances, to
speculate that the momentum of the impact
would rather have moved the
whole of the Bosman vehicle (including its loaded trailer) backwards
and on this basis to reject Fortuneâs
version of improbable.
[29]
Fortuneâs
evidence that, after the collision between the load and the Bosman
vehicle and when he moved to the back of his trailer,
the Bosman
vehicle was still only about one metre from the rear of his trailer,
was left unchallenged and would on the face of it
also be
inconsistent with the theory that it would (on the first defendantâs
version) have been moved backwards by the momentum
of the impact.
[30]
Although
Fortune was a single witness he was in a sense an independent witness
who had nothing to loose or to gain from the findings
of this Court.
FIRST
DEFENDANTâS CASE
[31]
This
first defendant also depended upon the evidence of a single witness,
viz
mr Kasiyamhuru. His version, very briefly, was that he rounded the
second bend on his way in the direction of Britstown and then
saw the
Liebentrans and Bosman vehicles approaching from the opposite
direction and after they had already rounded the first bend.
He was
driving on the extreme left-hand side of the road and made use of the
emergency lane. He slowed down. He saw the Liebentrans
vehicle
slowing down and moving to its left. The Bosman vehicle, however,
did not move to its left, but rather appeared to move
to its right
and further into its lane (and in the direction of the lane of the
Natro vehicle). His load collided with the Bosman
vehicle and he
then stopped. According to his evidence-in-chief there was nothing
else he could have done to avoid the collision.
[32]
The
quality of Kasiyamhuruâs evidence, and the impression he made as a
witness, was in stark contrast to that of Fortune. Kasiyamhuru
appeared hesitant and uncertain, at times spoke inaudibly and on
occasion needed long periods to consider what should have been simple
answers. There are also several material inconsistencies and
improbabilities in his version, even when measured against the rest
of the evidence tendered by the first defendant itself.
[33]
In
his evidence-in-chief Kasiyamhuru said that he did not drive faster
than 50 km per hour. He said that he had been
au
fait
with the provisions
of the permit and that it required him to travel at a speed of
between 60 and 70 km per hour. It is, however,
quite clear that the
permit required him to limit his speed to 40 km per hour in areas
where his
âsight
distanceâ
was less than
300 metres (and otherwise to a maximum speed of 60 km per hour).
[34]
On
the first defendantâs own version, and more particularly according
to its sketch plan, Kasiyamhuruâs
âsight
distanceâ
(to the first
bend) must have been less than 300 metres well before he reached the
point of impact. During cross-examination Kasiyamhuruâs
evidence
was that he had been travelling at between 40 and 45 km per hour
before he started slowing down. On this version he could
not have
exceeded 45 km per hour, which would mean that he in effect adjusted
his evidence regarding his maximum speed when confronted
with the
provisions of the permit.
[35]
The
matter of the speed at which Kasiyamhuru had been travelling is
relevant, not only as regards his credibility but also as regards
the
cause of the collision. It could explain why he had not stopped
timeously, and it could be the basis for a finding that he had,
in
failing to slow down adequately, failed to take reasonable steps to
avoid the collision when he could have done so. These are
allegations which the plaintiff indeed made in the particulars of
claim.
[36]
Kasiyamhuruâs
evidence-in-chief was that he slowed down to negotiate the first
bend. This was, in the first place, never put to
Fortune. The
question would also arise why it would have been necessary for him to
slow down for the first bend, because he had
just come through the
second bend.
[37]
During
cross-examination Kasiyamhuru at first said that the reason for his
slowing down was the approaching Liebentrans en Bosman
vehicles, but
when reminded of his evidence-in-chief he reverted to his earlier
version.
[38]
His
evidence was furthermore that Welkom had been travelling between 100
and 120 metres ahead of him and that, at the stage when he
noticed
the Liebentrans and Bosman vehicles coming around the first bend, her
vehicle had already disappeared around it in the opposite
direction.
However, when regard is had to the first defendantâs sketch plan
(and the measurements thereon) it is quite clear that,
if Welkom had
been driving even as far as a 120 metres ahead of the Natro vehicle,
she could even at the time of the collision not
have been around the
first bend or out of Kasiyamhuruâs view.
[39]
Kasiyamhuruâs
evidence was that he did not bring his vehicle to a complete
standstill before the collision because he had been under
the
impression that the Bosman vehicle was going to stop. Such an
expectation would, however, have been inconsistent with his earlier
evidence to the effect that the Bosman vehicle never slowed down or
moved to its left. How could he, under those circumstances,
have
formed the impression that it was going to stop?
[40]
According
to Kasiyamhuru his vehicle was approximately 10 metres from the
Bosman vehicle when it veered to its right and he only then
realised
that it was not going to stop. The first problem that I have with
this version is that it would not fit in with his earlier
evidence
that the Bosman vehicle had never slowed down or moved to its left.
If that had been the case the realisation that the
Bosman vehicle was
not going to stop would have come to Kasiyamhuru at a much earlier
stage (than only when it veered in his direction),
when he noticed
that the Bosman vehicle was not slowing down or moving to its left.
[41]
A
second problem with this aspect is that it was Kasiyamhuruâs own
evidence that, although he had on his version slowed down before
the
collision, it was only after the collision that he had actually
âsteppedâ
on the brakes to stop. Why would he not have done so when he
realised that the Bosman vehicle was not going to stop and before the
collision?
[42]
Kasiyamhuru
could not remember noticing the Bosman vehicle collide with the
Liebentrans vehicle. Why would he not have seen this
(and most
certainly remembered it) if it had indeed happened? It was his own
evidence that he had no problem in observing both the
Liebentrans and
Bosman vehicles from the moment they came around the first bend.
[43]
It
is so that his version was that the Bosman vehicle had been
travelling very close behind the Liebentrans vehicle. This would
not,
however, have prevented him from observing such an impact once
the Bosman vehicle moved out from behind the Liebentrans vehicle;
especially if it had been the left front side of the Bosman vehicle
that collided with the right rear of the Liebentrans vehicleâs
trailer.
[44]
In
any event, I find it inherently improbable, on the evidence as a
whole, that the Bosman vehicle would have been travelling so closely
behind the Liebentrans vehicle at a high speed.
[45]
Fortuneâs
evidence was that the Bosman vehicle had been following him from
Britstown (and I see no reason for doubting Fortuneâs
evidence in
this regard). This would mean that the Bosman vehicle would have
would have been travelling at more or less the same
speed as the
Liebentrans vehicle; and it was never suggested that Fortune had been
speeding.
SECOND
DEFENDANTâS CASE
[46]
Mr
Mphaga, who appeared on behalf of the second defendant, presented the
evidence of the two traffic officers who had been escorting
the Natro
vehicle, miss Welkom (who had been travelling ahead of the Natro
vehicle) and mrs Hofsta (who followed behind it).
[47]
Hofstaâs
evidence was that, as she was following the Natro vehicle and as they
were approaching the first bend, she saw the Liebentrans
vehicle
approaching from the opposite direction, after having negotiated the
first bend. The Liebentrans vehicle appeared to slow
down and to
move to its left. The Bosman vehicle, which had been following
closely behind the Liebentrans vehicle and at a high
speed, then
moved out from behind the Liebentrans vehicleâs trailer and then
collided with the load on the Natro vehicle.
[48]
If
Kasiyamhuru was an unsatisfactory witness, I am afraid that Hofsta
was even worse. Apart from material inconsistencies and
improbabilities
in her version she also made an extremely poor
impression as a witness. She was hesitant to answer simple, but
important, questions
and openly attempted to avoid answering others.
[49]
Whereas
her evidence had initially been that the Bosman vehicle was struck as
it moved out from behind the Liebentrans vehicleâs
trailer, she
later quite clearly adjusted her version in this regard and testified
that what had actually transpired was that the
Bosman vehicle had
moved out from behind the Liebentrans vehicleâs trailer, and in the
process collided with it, and that it was
only when the Bosman
vehicle was actually attempting to move back to its left that it was
struck by the load.
[50]
This
version was never put to any of the other witnesses in
cross-examination. In elaboration of this new version Hofsta also
stated
that the Bosman vehicleâs machine had
âceasedâ
as it was attempting to move back to its left. She was, however,
unable to explain how she would have known this and this statement
was also inconsistent with her later evidence that the Bosman
vehicleâs machine had still been idling even after the collision
had occurred.
[51]
Hofstaâs
evidence was that, at the moment of the impact, the Liebentrans
vehicleâs left wheels were on the yellow line on its
side of the
road, but that the rest of its structure was therefore within its
lane.
[52]
I
have several problems with this evidence. In the first place it was
never put to Fortune, when he quite clearly stated that his
vehicleâs
left wheels had at that stage not only been off the road, but in fact
almost onto the embankment on that side of the
road.
[53]
Secondly
it would mean that the point of impact would have been much nearer to
the middle of the road, or even possibly within the
Natro vehicleâs
lane. This would follow from the fact that the horse of the
Liebentrans vehicle was approximately three metres
wide (and its
trailer even wider), while the particular lane was only 3.160 metres
wide. If the Bosman vehicle had then moved out
from behind the
Liebentrans vehicle to such an extent that its left front side
impacted with the right rear side of the Liebentrans
vehicleâs
trailer, its right front would have been well into the Natro
vehicleâs lane.
[54]
Not
only was there never any evidence to this effect, but it was in fact
not in dispute that, although there was no agreement as to
the exact
position of the point of impact, it had been well within the lane in
which the Liebentrans and Bosman vehicles had been
travelling. It
was the first defendantâs version as illustrated on its sketch
plan, and it was also Fortuneâs version.
[55]
Hofstaâs
version, at least initially, was that she had been travelling
approximately 50 metres behind the Natro vehicle and that
she had
positioned her vehicle in the middle of the road so that she could
see past the Natro vehicle and could observe oncoming
traffic and
that this is how she saw the collision. She was not, however,
prepared to commit herself on more or less where the point
of impact
might have been. Why would she not have been able to at least
express an opinion in this regard? At a later stage she
was
nevertheless prepared to concede that the Bosman vehicleâs right
front wheel had been within its own lane at the moment of
impact.
[56]
In
cross-examination Hofsta adjusted her initial version of the position
of the Liebentrans vehicle and conceded that it had moved
further to
its left than she had indicated earlier, but according to her only
after having passed a storm water drain. Fortuneâs
evidence that
he had brought his vehicle to a complete standstill before reaching
the drain was never challenged by Mr Mphaga.
[57]
Hofsta
said that she could not say whether the Liebentrans vehicle had
stopped before the collision. Why would she not have been
able to
see that, while the Liebentrans vehicle was in front of the Bosman
vehicle and, on her version, in clear view?
[58]
Whereas
she at first denied that the Bosman vehicle had made any attempt to
pull over to its left, she later admitted that it did,
but was unable
to explain why it would have moved to its left, as if to pull off the
road like the Liebentrans vehicle, if it had
indeed wished to
overtake the Liebentrans vehicle.
[59]
In
her evidence-in-chief she stated that she had seen the Bosman vehicle
for the first time when it moved out from behind the Liebentrans
vehicle (as it had been travelling so close to the Liebentrans
vehicle that it was obscured from her view until then). In
cross-examination
on behalf of the plaintiff she contradicted herself
by stating that she saw both vehicles simultaneously and she then
denied having
testified differently earlier.
[60]
Towards
the end of her cross-examination Hofsta conceded that the Natro
vehicle had impaired her vision. This was in contrast with
her
earlier evidence that she had been travelling in the middle of the
road to enable her to see past the Natro vehicle and would
in itself
mean that her evidence could not serve as corroboration for that of
Kasiyamhuru.
[61]
Hofstaâs
evidence was that the Natro vehicle had been travelling at 40 km per
hour. I have already dealt with the evidence of the
driver of that
vehicle in this regard. Furthermore Hofsta made no mention of any
reduction in the speed of the Natro vehicle prior
to the collision,
as alleged by Kasiyamhuru.
[62]
Her
evidence about the distance between the Natro vehicle and Welkomâs
vehicle (which was for all practical purposes similar to
Kasiyamhuruâs version in this regard) was also inconsistent with
the distances on the sketch plan and I was informed at the outset
of
the trial that there was no dispute regarding the measurements. It
is in any event difficult to conceive how Hofsta would have
been able
to estimate this distance from where she had been travelling behind
the Natro vehicle.
[63]
Hofstaâs
evidence that Welkom had informed her by radio that she was going to
drive ahead and past the first bend to warn oncoming
traffic was
strange. Although it was consistent with Welkomâs evidence in this
regard, the question would arise why it would have
been necessary for
Welkom to inform her of this.
[64]
I
also find it difficult to accept Hofstaâs denial of having spoken
to Fortune after the collision. It is almost impossible to
conceive
of any reason why Fortune would have fabricated such a discussion
between the two of them.
[65]
This
brings me to Welkomâs evidence. According to her she had been
travelling approximately 100 to 150 metres ahead of the Natro
vehicle
when she decided to move further ahead and around the first bend in
the direction of Britstown, to warn oncoming traffic.
She saw the
Liebentrans and Bosman vehicles on the Britstown side of the bend
(and of the hill) and by means of her vehicleâs
flashing blue light
and headlights, and also by means of hand signals, cautioned them to
slow down. When she noticed these vehicles
for the first time, she
could still see the Natro vehicle in her rear-view mirror.
[66]
Welkomâs
evidence was that the Liebentrans vehicle then slowed down and moved
to its left, but not the Bosman vehicle, which had
been travelling at
a high speed and only approximately one to two metres behind the
Liebentrans vehicle.
[67]
Although
Welkom did not, on the face of it, make such a bad impression as a
witness, there are quite a number of inconsistencies and
improbabilities in her version.
[68]
The
first problem one again revolves around how far ahead Welkomâs
vehicle was ahead of the Natro vehicle when her vehicle came
into
Fortuneâs view. In cross-examination on behalf of the second
defendant this distance was stated as having been between 100
and 150
metres. Although Welkom also alluded to this distance I understood
her to refer to it as having been the distance between
her vehicle
and the Natro vehicle before she decided to accelerate and to move
further ahead and around the bend; which would mean
that she would
then actually have moved much further ahead of the Natro vehicle by
the time her vehicle came within Fortuneâs view.
[69]
However,
even if Welkomâs vehicle had been 150 metres ahead of the Natro
vehicle when it had come into Fortuneâs view it could,
on Welkomâs
own version and according to the sketch plan and the measurements
thereon, not have been around the first bend in the
direction of
Britstown at that stage.
[70]
Welkomâs
evidence was that, at the stage when the Liebentrans and Bosman
vehicles came into her view, she could still see the Natro
vehicle in
her rear-view mirror. This would of course have been in accordance
with Fortuneâs version, but completely inconsistent
with her own
version, as well as that of Kasiyamhuru.
[71]
On
her own version she would already have been around the bend at that
stage and it, and more importantly the hill, would have been
between
her and the Natro vehicle. It was common cause that, for traffic
approaching from the direction of Britstown, the hill obstructed
the
view around the bend to the north. If she had already been on the
Britstown side of the first bend when first noticing the Liebentrans
and Bosman vehicles, and the Natro vehicle was at that stage still on
the Strydenburg side of the first bend, it would not have been
possible for Welkom to see the Natro vehicle in her rear-view mirror.
[72]
Furthermore
Kasiyamhuruâs version was that Welkomâs vehicle had already moved
out of his view when he noticed the approaching
Liebentrans and
Bosman vehicles and on his version it would therefore have been
impossible for Welkom to see him in her rear-view
mirror at that
stage.
[73]
Welkomâs
version of the speed at which the Bosman vehicle had been travelling
and the distance between it and the Liebentrans vehicle,
and more
importantly about the Bosman vehicle not having slowed down or moved
to its left, is also in my view improbable. If the
distance between
the Liebentrans and Bosman vehicles had been only one to two metres
before the Liebentrans vehicle started to slow
down, but the Bosman
vehicle continued at the same high speed it had been travelling at
before then, it would in all probability
have collided with the rear
of the Liebentrans vehicleâs trailer (especially because, as
already mentioned, there was no suggestion
that the Liebentrans
vehicle had been speeding).
[74]
At
the very least the Bosman vehicle would, in the circumstances, have
gained on the Liebentrans vehicle very quickly and it is difficult
to
conceive how, when they eventually came into Kasiyamhuruâs view,
the Bosman vehicle could then still have been behind the Liebentrans
vehicle.
[75]
Welkomâs
evidence-in-chief was that she had also warned the Liebentrans and
Bosman vehicles by waiving her arm and hand inside her
vehicle. At a
later stage she alleged that her arm had been outside the vehicle.
In her written statement she made no mention at
all of any such
warning sign.
[76]
It
is in my view in any event completely unlikely that Erasmus would not
have heeded Welkomâs warnings, especially when he would
clearly
have seen Fortune do so.
EVALUATION
[77]
As
already indicated I regard Fortuneâs evidence as credible and I
have no hesitation in rejecting Kasiyamhuruâs evidence where
inconsistent therewith. Although it is (for reasons that will become
clear in due course) not necessary to do so, I would have had
no
hesitation in following the same approach as regards the evidence of
Hofsta en Welkom. I will therefore consider the question
of
negligence on the basis of both the Liebentrans and Bosman vehicles
having come to a complete standstill between the first and
the second
bend prior to the collision.
[78]
Mr
den Hagen placed great emphasis upon the conditions of the permit,
and especially clause 6 thereof, in terms of which the driver
of a
vehicle such as the Natro vehicle had to give preference to other
road users and should, where necessary, pull off to let other
traffic
pass. I think that this would be the wrong approach to follow when
measuring Kasiyamhuruâs actions against that of the
reasonable
person (see
Kruger v
Coetzee
1966 (2) SA 428
(A) at 430E-G).
[79]
The
mere fact that such a condition might not have been complied with
would not
per se
constitute negligence (compare
De
Jong v Industrial Merchandising Company Co (Pvt) Ltd
1972 (4) SA 441
(R) and
Malherbe
v Eskom
2002 (4) SA 497
(O) at 505I).
[80]
It
would in any event in my view be unreasonable, and indeed
impractical, to regard the conditions in clause 6 of the permit as an
absolute requirement and a rule to be followed by the driver of an
abnormal vehicle under any circumstances whatsoever, and in this
regard I respectfully agree with the remarks made in
Mapalala
v Marine & Trade Insurance Co Ltd
1979
(4) SA 735
(N) at 742E-G. In my view the question is simply whether,
on Fortuneâs version, the reasonable person in the position of
Kasiyamhuru
âwould
foresee the reasonable possibility of his conduct ⦠causing â¦
patrimonial loss ⦠and would take reasonable steps to
guard against
such occurrenceâ
and,
if so, whether Kasiyamhuru failed to take such steps.
[81]
It
is clear that Kasiyamhuru did not take any steps at all to avoid the
collision between the overhanging load and the Bosman vehicle.
On
his own version he did not attempt to move the Natro vehicle further
to his left and kept on driving on what was according to
him the
extreme left side of the road, but still upon the road surface.
[82]
Although
Kasiyamhuru testified that he had slowed down prior to the collision,
this version was not put to Fortune; despite the fact
that Fortune
was cross-examined at length about the speed at which the Natro
vehicle had been travelling. Hofsta made no mention
of any such
reduction in speed.
[83]
Even
on his own evidence Kasiyamhuru would in any event have been slowing
down to negotiate the first bend, and not to avoid a collision
with
any of the Liebentrans or Bosman vehicles, which would at that stage
have been much closer to him than the first bend. Although
his
evidence was not satisfactory in this regard, as already pointed out,
he eventually persisted in this version and could therefore,
on his
own evidence, not have made any attempt to slow down
to
avoid the collision
. To
put it differently, even on Kasiyamhuruâs own version he never
considered the possibility of slowing down before reaching
the
Liebentrans and Bosman vehicles and in an attempt to avoid any
possible collision.
[84]
On
his own evidence he never attempted to bring the Natro vehicle to a
complete standstill prior to the collision. Even if he had
been
reducing speed in order to negotiate the first bend, his own evidence
was to the effect that he only
âsteppedâ
on his brakes, as he put it, after the collision.
[85]
I
am of the view that the reasonable man in the position of Kasiyamhuru
would have foreseen the possibility of the load colliding
with the
Bosman vehicle. On Fortuneâs version he saw, from where he was
sitting in the driving seat of the Liebentrans vehicle
and in his
rear-view mirror, that the Bosman vehicle was overhanging into
âtheirâ
lane about a
metre further than the front of his vehicle, and if he was able to
observe this I can see no reason why Kasiyamhuru,
who had been
approaching from the opposite direction and in the opposite lane,
should not also have observed it.
[86]
It
was very clear from Fortuneâs evidence that he had brought his
vehicle to a gradual stop and not abruptly. His evidence in this
regard was never challenged. On Fortuneâs version the same would
have applied to the Bosman vehicle and Kasiyamhuru would in all
probability therefore have had enough time to take steps to attempt
avoiding a collision.
[87]
Fortuneâs
evidence was that the right-hand side of the loaded steel structure
narrowly missed the trailer of his vehicle; to such
and extent that
he had obviously been quite anxious about it colliding with the
trailer of the Liebentrans vehicle.
[88]
When
regard is had to the measurements on the sketch plan it appears that
the width of the Natro vehicle and of the emergency lane
on that side
of the road was respectively 3,170 and ,950 metres (in total 4,12
metres), while the total width of the load on the
Natro vehicleâs
trailer was 6,4 metres. In my view it would be the duty of a
reasonable driver in the position of Kasiyamhuru
to ensure that he
had a good idea of how far the load on his vehicle was overhanging
into the lane of oncoming traffic and to be
aware that the effect
thereof might even worsen when negotiating a bend (see
Bawa
v Santam Insurance Co Ltd
1976 (2) SA 167
(N) at 169G-H). Insofar as the contrary might have
been held in the
Mapalala
case at 742 -743 I must respectfully disagree.
[89]
I
cannot see how it could be reasonable for such a driver, who conveys
a load which he/she knows constitutes an obstruction in the
way of
oncoming traffic, to simply adopt the attitude that it is for other
road users to establish what part of the road surface
is going to
remain available to them and that he/she is under no obligation in
this regard. In fact, in my view the driver of a
vehicle conveying
an abnormal load such as this would surely bear a heavier burden in
this regard than other road users.
[90]
Kasiyamhuru
should therefore have realised that, even with the Liebentrans
vehicle having almost moved out of its lane completely,
the load was
going to move very close past it and he should, with this in mind,
have decelerated not merely to such an extent as
to be able to
negotiate the first bend (beyond the Liebentrans vehicle), but indeed
to be able to pass the Liebentrans vehicle much
slower than he
actually did. In the
Mapalala
case a speed to 15 to 20 km per hour was regarded as reasonable for
such a vehicle and in that case the area where the fatal accident
occurred was
âa fairly
open portion of road with no noticeable undulations or sharp bendsâ
.
[91]
At
the very best for Kasiyamhuru he had been travelling at 40 to 45 km
per hour in an area where there were bends. It is highly unlikely
that he would, by merely gradually reducing his speed, not even
applying the vehicleâs normal brakes and only with a view to reduce
his speed in time for the first bend (beyond the Liebentrans and
Bosman vehicles), have been able to reduce his speed to as low as
15
to 20 km an hour by the time he reached those vehicles. Had he been
travelling at such a low speed when suddenly confronted with
the
Bosman vehicle veering to its right about 10 metres in front of him
(on Kasiyamhuruâs version), he would have been able to
âstepâ
on his brakes before the collision.
[92]
Even
if Kasiyamhuru had reduced speed as alleged he would therefore still
have moved passed the Liebentrans vehicle much too fast
and very
close to it. The fact that it was only after the collision that he
âstepped
â
on the brakes and swerved to his left, in my view clearly indicates
that Kasiyamhuru had not realised that his load was passing
so close
to the Liebentrans vehicle and that it might impact with the Bosman
vehicle.
[93]
Had
he travelled at a lower speed and kept a proper lookout to his right,
he would have realised the danger. He would also probably
then have
been able to take avoiding action by moving further left, even if it
had entailed also moving onto the gravel shoulder
on his side of the
road, or to stop completely if need be.
[94]
On
Kasiyamhuruâs own version the safest option would have been for
Welkom to see to it that all oncoming traffic completely pulled
off
before reaching the particular section of the road, where there were
bends and where the emergency lanes were considerably narrower.
He
conceded that there would then not have been a collision.
Kasiyamhuru must therefore have been aware of the fact that the area
between the two bends was a dangerous area within which to pass
oncoming traffic â and all the more so heavier vehicles â and
it
was against this background that he failed to slow down timeously or
adequately or to stop before the collision.
[95]
I
am therefore of the view that Kasiyamhuru was negligent by failing to
stop timeously, by not keeping a proper lookout and by failing
to
take reasonable steps to avoid the collision.
[96]
Although
similar to a certain extent, there are important differences between
the facts in the
Mapalala
matter and those in this matter. I have already referred to the
terrain where that collision occurred and to the speed at which
that
abnormal load had been conveyed.
[97]
In
the
Mapalala
case it was held that the driver of the abnormal vehicle could not
have foreseen the possibility of
âsuicidal
conductâ
on the part of
the deceased, who had also stopped on the extreme edge of the tar
(but with all the wheels of his vehicle still on
the tar), and whose
head was hit by the overhanging load when the deceased for some
inexplicable reason stuck it out of the window
of his vehicle.
[98]
In
the present case there was no such conduct on the part of Erasmus.
He did not all of a sudden do something to obstruct the Natro
vehicle, but simply stopped and remained stationary. It is a matter
of common sense that, although he might have noticed the horse
of the
Natro vehicle at an earlier stage, the Liebentrans vehicleâs
trailer would have prevented him from noticing the overhanging
load
until a very late stage; especially when regard is had to the fact
that the Liebentrans and the Bosman vehicles were moving
through a
gradual curve to the left.
[99]
Ms
de Kok also referred me to the
Bawa
case. Although that
matter also concerned a collision between an overhanging load and an
oncoming vehicle, there is once again a
clear distinction between the
two cases. The vehicle of the plaintiff in the
Bawa
matter was moving past the vehicle conveying the abnormal load when
the collision occurred and was therefore not stationary. Having
rejected the plaintiffâs version that the abnormal vehicle in that
matter had unexpectedly veered in his direction the Court found
that,
had the plaintiff been alert and had he kept a proper lookout, he
would have had sufficient time and opportunity to notice
the extent
to which the load was overhanging and obstructing his lane and to
take the reasonable and possible steps to avoid the
collision.
[100]
This
brings me to the second defendant. The grounds on which the
plaintiff relied against the second defendant in its particulars
of
claim were as follows:
â
8.1 They
failed to keep a proper lookout;
8.2 They failed to
give timeous and/or adequate warning of the presence and/or
approaching presence of an abnormal load on the public
road to other
road-users;
8.3 They
failed to display adequate warning devices and boards as is required
for the transport of an abnormal load as provided for
in Chapter 5 of
the guidelines or otherwise;
8.4 They
failed to stop the First Defendantâs vehicle timeously so as not to
create a hazard for oncoming traffic, alternatively
failed to stop
the Plaintiffâs vehicle in order to allow the First Defendantâs
vehicle to pass as they ought to have done;
8.5 They
failed to take reasonable steps to avoid a collision between the
First Defendantâs vehicle and the Plaintiffâs vehicle
in
circumstances where they could and should have done so;
8.6 They
failed to comply with the escort requirements as provided for in
Chapter 5 of the guidelines or otherwise;
8.7 They
failed to comply with the conditions of the permit issued to the
First defendant, if any, for conveyance of the abnormal
load.â
[101]
There
was no evidence to substantiate the allegations in paragraphs 8.3,
8.6 and 8.7. As regards the remaining grounds, the plaintiffâs
argument against the second defendant was based upon two premises,
viz
:
that
Welkom had been travelling only 20 to 30 metres ahead of the Natro
vehicle and too close to it to have given timeous warning
of its
approach; and
that
the collision could in any even have been avoided if Welkom had
stopped the Liebentrans and Bosman vehicles on the Britstown
side of
the first bend, where the emergency lanes were much wider.
[102]
It
might be argued that both the Liebentrans and the Bosman vehicles in
any event eventually had sufficient time within which to pull
over
and to stop and that it is immaterial how far ahead of the Natro
vehicle Welkom had been when she warned them. There is no
evidence
to the effect that, had Welkomâs vehicle been further ahead of the
Natro vehicle when
âwarning
of the presence and/or approaching presence of an abnormal loadâ
,
the Liebentrans and Bosman vehicles would have
stopped
at an earlier stage or further to their left.
[103]
The
position might, however, have been considerably different if Welkom
had indeed stopped those vehicles at an earlier stage, instead
of
merely warning them to slow down.
[104]
In
this regard it must be kept in mind that it was not Welkomâs
evidence that she had attempted to stop these vehicles. On her
own
evidence she had merely warned them to slow down. Erasmus and
Fortune not only were therefore not informed in express terms
that it
would be necessary for them to make way for a load overhanging into
their lane, but even less were they warned in any way
whatsoever that
it would be safer to pull off and stop at that point, rather than
only when observing what it was that they were
being warned against.
In fact, the warning to slow down would in itself have implied that
it would be safe enough merely to slow
down without stopping
immediately.
[105]
This
brings me to the plaintiffâs second contention. It was conceded by
Welkom and by Kasiyamhuru that, had the Liebentrans and
Bosman
vehicles been stopped on the Britstown side of the first bend, where
the emergency lanes were much wider and where there was
therefore
more space for them to pull over, the collision would not have
occurred (even if Welkom had been as far ahead of the Natro
vehicle
as testified by her, she did not at any stage attempt to stop those
vehicles).
[106]
The
question remains, however, whether a reasonable person in Welkomâs
position would have foreseen that, if she did not actually
stop the
vehicles where there were more space within they could pull off and
stop, a collision could occur on the stretch of road
between the two
bends, and would have stopped them at that stage.
[107]
It
was not disputed that the emergency lanes on both the Strydenburg and
the Britstown side of the two bends were more than double
the width
of those in the area between the two bends. This was conceded by
Welkom. In my view it could in any event be expected
from a
reasonable person in her position to have observed the fact that the
emergency lane were narrower in that area, and that there
were bends
to negotiate (rendering it, to say the least, an unsuitable area for
vehicles like these to meet), and to act accordingly;
either by
stopping at the very least heavy vehicles outside that area (if she
had indeed been as far ahead of the Natro vehicle
as alleged) or by
scouting ahead for a suitable area within which to stop such vehicles
and to ensure that they were out of the way
of the load.
[108]
Welkom
knew that she was escorting an abnormal load with a significant
overhang into the lane of the oncoming traffic. The reasonable
person in her position would have realised that vehicles â and
especially vehicles the size of the Liebentrans and Bosman vehicles
â
would for all practical purposes have to evacuate their lane and that
with an emergency lane approximately two metres wide it
would be much
easier and safer to do so than with an emergency lane of only
approximately 0.9 metres wide.
[109]
As
it is the Liebentrans vehicle, which had stopped with the right front
wheel of its horse on the yellow line and with its left wheels
so far
to the left and on the shoulder that it was beginning to slant to the
left, was obviously only just missed by the overhanging
load.
[110]
It
is clear that it would have been much safer for Welkom to have not
only warned the Liebentrans and Bosman vehicles of danger at
the
stage when they were in the area where the emergency lanes were much
wider (and long before the area where the bends were situated),
but
indeed to have taken steps to see to it that they stopped there and
that they were completely out of the way of the overhanging
load.
[111]
At
an earlier stage of the journey of the Natro vehicle this was done
when it had to cross a bridge and, although there might have
been
slightly more space to pull over in the area of this collision than
on the bridge, I think the same action should have been
taken when
the Natro vehicle had to pass through the area of this collision,
where there were bends in the road (which would limit
the view of
road users and would worsen the overhanging effect of the load),
where a hill obstructed the view of road users and where
there was
obviously very limited space for especially heavy vehicles to pull
over and to avoid a collision with the overhanging load.
[112]
Even
if it were to be assumed that, if the Liebentrans and Bosman vehicles
had been stopped where the emergency lanes were wider,
Erasmus would
still not have pulled over as far to his left as the Liebentrans
vehicle, the probabilities are in any event that he
would eventually
have stopped further out of the way of the load than he eventually
did. There would also have been more space for
the Natro vehicle to
move to its left and if it had been driven on the far left side of
the tar there, it would have been more than
a metre further to its
left than was the case between the two bends.
[113]
What
remains to consider is whether Erasmus had also been negligent. In
my view this question can be dispensed of quite easily.
It is clear
that Erasmus did not pull over as far to his left as the Liebentrans
vehicle and that the right side of the Bosman vehicle
was protruding
into the road and into the lane of travel at least a metre further
than that of the Liebentrans vehicleâs horse.
[114]
Fortune
knew of nothing that would have prevented Erasmus from pulling over
to his left further and was constrained to concede that,
had he done
so, the collision would not have occurred. There was, in other
words, sufficient time and space for Erasmus to have
avoided the
accident.
[115]
Fortune
was of the opinion that the reason for Erasmusâs failure to move
further to his left might have been curiosity and the wish
to see
what was happening ahead. Fortune was of the view that this would
have been any reasonable personâs reaction. With this
view I do
not agree. A reasonable person in Erasmusâs position would have
realised, from the passing vehicle of Welkom with its
warning lights
and from Fortuneâs actions, that something had caused the
Liebentrans vehicle to completely leave its lane and to
stop.
[116]
It
is so that the Liebentrans vehicleâs trailer would have obstructed
Erasmusâs view as regards the overhanging load (and possibly
the
horse of the Natro vehicle up to a stage). Erasmus should at that
stage have foreseen the possibility that the danger he was
being
warned about might be an approaching overhanging load, because it was
Fortuneâs evidence that in his years of experience
as a driver of
heavy vehicles he had come across abnormal loads of this nature
often. It is therefore not by any means an unusual
occurrence and
the reasonable person in Erasmusâs position would indeed have
foreseen it as a possibility.
[117]
I
emphasise, however, that the mere fact that the vehicle in front of
him had deemed it necessary to pull over and to completely leave
its
lane should, in the circumstances where Erasmus could probably not at
that stage himself see what it was that was causing the
Liebentrans
vehicle to do so, have warned Erasmus to follow suit and not to drive
any further into their lane than the Liebentrans
vehicle.
[118]
Erasmusâs
failure to pull over further to his left in my opinion constituted a
failure to take reasonable steps to avoid a collision,
when he could
have done so; a ground of negligence pleaded by both defendants. It
could possibly be argued that the first defendant
made this
allegation in its plea as a part of its case that the Bosman vehicle
had attempted to overtake the Liebentrans vehicle
when the collision
occurred. This would not, in my view, however prevent the first
defendant from also relying upon this allegation
on the basis of the
Bosman vehicle not having attempted to overtake, but merely not
having pulled over far enough; an aspect which
had been extensively
dealt with in evidence as well as in argument (compare
John
Williams Motors Ltd v Minister of Defence
1966 (3) SA 27
(A)).
APPORTIONMENT
OF NEGLIGENCE
[119]
Having
found negligence on the part of all three parties it now remains to
be considered to what extent the actions or omissions of
each of them
(or their employees)
âdeviated
from the norm of the
bonus
paterfamilias
â
(see
South British
Insurance Co Ltd v Smit
1962
(3) SA 826
(A) at 835H-836E and
Jones,
NO v Santam Bpk
1965 (2)
SA 542
(A) at 555B-H).
[120]
In
my view the degree in which Erasmusâs driving deviated from the
norm of the reasonable person was significantly less than that
of
Kasiyamhuru and the traffic officers (and more specifically Welkom),
whose acts/omissions in my view deviated from that norm in
more or
less in equal degrees.
[121]
In
my opinion the damages to be proved by the plaintiff should be
reduced by 10 % and, although the plaintiff is holding the two
defendants
liable both jointly and severally, I would regard their
respective shares in the remaining negligence as 45 % each.
COSTS
[122]
Although
it might sometimes be prudent to follow the same apportionment when
awarding costs (see
Stolp
v Du Plessis
1960 (2) SA
661
(T) and
Wright v
Santam Versekeringsmaatskappy Bpk
1971
(4) SA 105
(NC) at 107Fâ108A), I am of the view that the plaintiff
in this matter was substantially successful to such a degree that it
should
be entitled to all its costs from the defendants jointly and
severally.
[123]
In
view of the equal apportionment of negligence between the first and
second defendants I am furthermore of the view that each of
them
should pay its own costs and no order will therefore be made
regarding their liability for one anotherâs costs.
[124]
Whatever
the amount of damages might be which the plaintiff eventually proves,
I regard this matter as of sufficient complexity to
merit costs on
the scale of this Court and it is accordingly on this basis that the
award regarding costs is made.
ORDERS
The following orders
are therefore made:
The
plaintiffâs negligence is apportioned at 10 %, and that of the
first and second defendants at 45 % each.
The
first and second defendants are ordered to pay the plaintiffâs
costs jointly and severally, the one to pay the other to be
absolved
pro tanto.
________________________
C
J OLIVIER
JUDGE
NORTHERN
CAPE DIVISION
For
the Plaintiff: Adv den Hagen
Instructed
by: Harvey Nossel & Turnbull c/o Elliot Marais Wilmans &
Hay
For
the 1
st
Respondent: Adv de Kok
Instructed
by: Fluxmans Inc Kallmeyer & Strime c/o Fletchers
For
the 2
nd
Respondent: Adv Mphaga
Instructed
by: Mjila & Partners