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[2024] ZAFSHC 228
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Ndlovu v MEC for Police, Roads and Transport Free State Province and Others (A150/2021) [2024] ZAFSHC 228 (19 July 2024)
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable: YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
Case
no: A150/2021
In
the matter between:
MATUTUZELA
JOHANNES
NDLOVU
Appellant
And
MEC
FOR POLICE, ROADS AND
TRANSPORT
FREE STATE PROVINCE
First
Respondent
BARNIES
KONSTRUKSIE CC
Second
Respondent
MATJHABENG
LOCAL MUNICIPALITY
Third
Respondent
CORAM:
C REINDERS
Jet
MB NEMAVHIDI
AJ
et
TL MANYE
AJ
HEARD
ON:
26 APRIL 2024
DELIVERED
ON:
19 JULY
2024
JUDGMENT
BY:
C REINDERS
J
et
MB
NEMAVHIDI
AJ
Introduction
[1]
This is an
appeal against an order of absolution from the instance with costs
granted by Majosi AJ on 26 May 2021. The appeal
came
before us with
leave from Mathbula
J. The
appellant prays that the order of the court a
quo
be set
aside and replaced with the following:
"The
application for absolution from the instance is dismissed with
costs."
[2]
The
appellant
(as the
plaintiff in the court
a
quo)
is
Matutuzela
Johannes
Ndlovu, a
major mechanic engineer at Tshepong Mine, Welkom, Free State. The
first respondent (first defendant) is the Member of
Executive Council
for Police, Roads and
Transport
(MEC)
for the Free
State in his official capacity
in terms
of
Section 2
of the
State Liability Act 20 of 1957
. The second respondent
(second
defendant) is Barnies
Konstruksie
CC,
duly
registered
and
incorporated
in terms
of Statutes of
RSA with a registered business in Welkom, Free State. The third
respondent (third defendant) is Matjhabeng Municipality
who did not
oppose the third party notice served upon it by the first respondent
and are for
purposes of this appeal noJ considered to be a party hereto.
The
parties shall be referred to interchangeably as cited in the court a
quo
or in this appeal, as may be appropriate in the context of
this judgment.
2.1
The plaintiff
sued both defendants
for damages he
had allegedly
suffered as a
result of a motor vehicle accident which occurred on the R34 national
road between Riebeeckstad
and Tshepong
Mine in the Free State.
2.2
In his
particulars of claim plaintiff alleged that the first defendant had a
legal duty to ensure that the road is maintained and
free of hazards
and that its failure to do so entailed
that it was
liable for all negligent acts or omissions by its members or
employees of the department. Included herein was its failure
to
implement a system to detect any hazards or dangerous condition on
the road and, if roadworks
is undertaken,
to ensure that
steps are taken to give sufficient warning to members of the public
in the form of road signs, warning lights or
flagmen. It was pleaded
by plaintiff that such legal duty extended
to second
defendant
and
its employees
as they were
appointed by the first defendant
to undertake
roadworks
on
the said road.
2.3
It was the
case for the plaintiff that the accident occurred due to the sole
negligence of the defendants, as the first defendant
or alternatively
the second defendant would have dug a trench across both lanes Qf the
road, left
it
uncovered
and
thereby
created
a
danger
to
road
users
without
any
warning
in the form of road signs, warning lights or employees to warn road
users and members of the public of the hazard and thus
failing in
their legal duty to maintain the road.
2.4
At the close
of the plaintiffs case, both defendants
applied
successfully
for absolution
from the instance.
[3]
On 25 November
2021 the plaintiff filed his notice of appeal. The grounds will not
be repeated verbatim herein. It forms part of
the record considered
by us together with the submissions
of all counsel
appearing on behalf of the parties. It suffices to say that the
upshot thereof is that the trial judge had erred
in several ways,
more specifically in her application of the test for absolution from
the instance
by making
a negative
finding
on the
credibility
of
the witnesses for
the plaintiff
in
the
instance
where
credibility
ought
not have
played
a
role at that
stage.
The
test to be applied in applications for absolution from the instance
[4]
Absolution
from the instance may be granted at the end of the plaintiff's
case, if the
plaintiff has failed to adduce sufficient evidence upon which a
reasonable court could or might grant judgment in favour
of such
plaintiff, or the plaintiff has not produced sufficient evidence to
establish a
prima
facie
case,
in other words a case
of which all
the elements
of the claim
have been proven.
4.1
The
test for absolution to be applied at the end of a plaintiff's case is
set out in
Gordon
Lloyd Page and Associates v Rivera and Another
[1]
as
formulated in
Claude
Neon Lights ( A) Ltd v Daniel:
'When
absolution for the instance is sought at the close of the plaintiffs
case, the test to be applied is not whether the evidence
led by the
plaintiff established what would finally be required to be
established
but
whether there is evidence upon which a court, applying its mind
reasonably to such evidence, could or might (not should, nor
ought
to) find for the plaintiff.'
[2]
4.2
This
test
requires
of
the presiding
officer
to
consider
the
proven
facts
and
to determine if it amounts to a
prima
facie
case
absolution
from the instance will ordinarily be granted sparingly and the court
will refuse the application unless it is satisfied
that no reasonable
court could draw the inference for which the plaintiff contends.
As
a general rule the credibility of the plaintiff's witnesses at the
stage of absolution does not play a role, but the plaintiff's
evidence can be rejected if it is clearly contradictory and
untruthful.
[3]
It is a time
honoured
principle
that
a court
of
appeal will be slow
to
interfere
with
a credibility
finding
by the court
a
quo
.
[4]
The
evidence tendered in the trial court:
[5]
The record
reveals the following:
5.1
The plaintiff
testified that he left his home at Riebeeckstad at about 05:00 on 6
August 2014 driving his Toyota Fortuner to his
workplace at Tshepong
Mine near Odendaalsrus.
It was dark
that morning and there were no streetlights illuminating that road.
He was driving on the R34 road between Riebeeckstad
and Tshepong Mine
at a speed of 80km/h, when he saw a heap of sand in the middle of the
road with a blue and white sign with a
right-pointing arrow on it. He
then swerved to the right avoiding
the
sand
heap
and
trench
which
was
dug
across
both lanes of
the single
carriage
of the road.
He lost control
of his vehicle
which left the
road
surface
and
stopped
50 meters away
facing
the direction
of the road. The sand heap was between 1 and 1.5 meters high and
stretched diagonally across the whole road. There
were no warning
signs indicating that the road was under construction or advising
motorists to reduce their driving speed.
5.2
He managed to
extricate himself from the vehicle and stumbled about two meters
after which he collapsed and lost consciousness.
Two
police
officers arrived
at the scene
and
found
him lying
on the ground
next to his
vehicle. They discussed the accident details with him once he had
regained consciousness whereafter an ambulance and
a towing vehicle
were called by the police. He was admitted at Medi-Clinic where he
was treated for injuries and was discharged
three days later.
5.3
During
cross-examination
by
the
defendant's
counsel,
he
stated
that he saw
the heap of sand as well as the blue and white sign when he was about
40 meters away. He was uncertain if he applied
brakes at that stage,
although he thought he did. He could, however, not confirm whether he
reduced his travelling speed. He could
also not explain why, in his
affidavit in support of a condonation application,
he failed to
refer to a sand heap, as he only referred to the trench. The accident
report (AR) was compiled by Constable Mtuzi who
found him on the
scene. According to the AR, clearly visible road signs were present.
The trench was indeed in the middle of the
road, but no mention is
made in the report of any sand heap or the blue and white sign.
However, the appellant distanced himself
from the contents of the AR
report. It is not clear as to why he could not stop after observing
the sand heap and what would have
caused his vehicle driving at
80km/h to stop about 50 meters from the trench
5.4
On the
previous afternoon he noticed the road works without road workers
adjacent to the road but on the following morning he did
not deem it
fit to reduce his speed as there were no signs regulating the speed
limit. Appellant testified that he did not see
any yellow plants
equipment
(excavation
bulldozers,
backhoes
loaders
etc.)
that could be
identified as belonging to the first and second defendants to confirm
that they were involved in digging the trench
which presented a
dangerous situation as alleged in his particulars of claim.
5.5
Constable
Mtuzi, stationed at Odendaalsrus SAPS, testified that he reported for
duty at 05h30. He received a call from Constable
Dlamini asking him
to pick her up from Riebeeckstad, as she had no transport. After
booking a vehicle, he left the station at 05:40
to fetch her. On his
return he drove at a speed of 80km/h on the R34. After passing
Kutlwanong Location, he noticed a white motor
vehicle adjacent to the
road. He then
saw a trench with a sand heap in the middle of the road. He slowed
down, left the tarred road and proceeded in the
direction of the
white motor vehicle. He concluded that the vehicle had rolled as he
observed damages on that vehicle.
5.6
Once observing
the vehicle up-close, he noticed that one of the airbags had
deployed. He also noticed the appellant, who was lying
on the ground
next to his vehicle. Once the appellant regained consciousness,
Constable Mtunzi discussed the event with him in
order to obtain
details of the accident. He reported the accident to his Police
Station and an ambulance
was summoned.
Constable
Dlamini, in turn, was tasked with directing traffic on the scene
while the paramedics rendered medical assistance to the
appellant
before transporting him to the hospital. Once the recovery vehicle
towed the appellant's away, he completed the Accident
Report Form,
detailing his observation at the scene including the information he
received from the appellant.
5.7
During cross
examination
the following
became evident:
(a)
The trench which
appellant saw across the road was depicted as being in the middle of
the road.
(b)
The trench was
illustrated without a sand heap or a blue and white sign on top of
it.
(c)
There were no
skid or brake marks
on the road
surface.
(d)
There
were
no
damages
indicated
on
the
vehicle.
5.8
The witness'
pocket book did not indicate that he attended to an accident scene on
6 August 2014.
It only made
reference
to
the fact that he reported
for duty free
of injuries
and attended
the parade
held by Officer Khatholo at 05h45, after which he booked out a fire
arm with magazines at 06h00. He also booked
out a state
vehicle registered BSD[…] at 06h10 on the date. Furthermore,
he could not
explain as to how he could have been at the scene before 06h10 when
he booked the vehicle at 06h10 and neither could
he explain how he
could have attended a parade at the time he was supposedly
fetching his
colleague as well as attending
to an accident
scene on the R34 road.
5.9
Constable
Dlamini testified that she never requested to be fetched from her
home as the practice is that her shift crew driver has
to pick her
up. While Constable Mtuzi was driving along the R34, she observed a
sand heap causing an obstruction on the road. She
also noticed a
vehicle which was on the gravel side of the road. Mtuzi then reduced
her speed, left the tarmac drove to the appellant's
car. She noticed
the appellant lying on his back behind the vehicle. As Mtuzi spoke to
him, she left them and went to direct traffic.
After a while, the
appellant's wife arrived at the scene. While directing the traffic,
Dlamini noticed a meter deep and a meter-wide
trench on the whole
surface of the road protruding slightly into the gravel shoulder of
the road. However, despite her observations,
she could not explain
the following:
(a)
She was marked
present at the 06h00 parade at her police station.
(b)
She could not
explain as to how Mtuzi booked a firearm, magazine
and
a
state
vehicle
immediately
after
the
parade
attended
by
both
of
them
ended,
while
at
the
very
same
time they were
attending
to
an accident scene on the R34.
(c)
She completed
the Accident Register Book by referring to the accident
report
form
completed
by
Constable
Mtuzi.
Her
evidence
concluded the appellant's case. The second respondent, the company
performing maintenance tasks on the road in question
as appointed by
the local authority, admitted in their pleas that they
did work on
the R34 on that day, but work
only commenced
after 07h00 on that morning. They argued that, at the time of the
accident, none of the workers were observed
by the
plaintiff or the two constables.
The
judgment by the trial court
[6]
In paragraphs
[10] to [29] the trial court dealt with the above evidence tendered
by the three witnesses for the plaintiff. Having
quoted (correctly
so) the applicable law in respect of the test in an application for
absolution from the instance, she dealt with
the respective
submissions made by counsel for th
parties.
Hereupon she evaluated same in light of the evidence and the
pleadings.
[7]
We deem it
apposite to quote verbatim the trial court's summary of the
submissions made by counsel for the respective parties (who
were also
the legal representatives for the parties in this appeal) as such
submissions were repeated (and expanded upon) before
us:
"[33]
Counsel for
the first defendant contended that the plaintiffs case for negligence
relies heavily on its legal duty to members of
the public to maintain
the road and prevent hazardous or dangerous conditions in the
road
or
road
surface.
More
specifically,
that
the
department
(first
defendant) dug a
trench in the road which created a danger to road users and in as
such and failed to ensure that its contractor
(second defendant)
covered it and failed to warn members of the public of the dangerous
road surface via warning lights or signs
and flagmen.
[34]
It was
contended that the evidence lead by the plaintiff did not identify
the first defendant or any of its employees as the persons
responsible for digging the offending trench
.
The plaintiff
during his testimony also did not dispute as pleaded that this legal
duty was assumed by Matjhabeng Municipality as
per their unopposed
third party notice and that this local authority appointed the second
defendant to do the actual work.
[35]
It was
asserted that they had no case to answer as the plaintiff appeared to
be the sole cause of the accident as he:
a.
was
evasive
as
to
whether
he reduced his speed
and kept a proper look out;
b.
was not sure
if he applied his breaks but thinks he did and could not say if it
was applied hard or soft;
c.
if
he
applied brakes
hard
he
could
have
stopped
as
his
vehicle was road
worthy and he could have avoided the accident;
d.
the evidence
of Mtuzi and Dlamini demonstrated that if the plaintiff had applied
his brakes and slowed down, he could have avoided
the alleged
obstruction
and moved
safely to the side of the road.
e.
the accident
report made mention that all road signs were visible and that no
skid/brake marks were observed on the road surface
which was contrary
to the evidence presented. Furthermore, that the evidence of the
plaintiff did not once substantiate the allegations
in the
particulars of claim that the first defendant dug the trench.
[36]
Counsel for
the second defendant argued that evidence presented by the plaintiff
was of such a nature that no reasonable court could
find for the
plaintiff should the second defendant not adduce evidence. They
submitted firstly that the plaintiff could not even
indicate where
the said trench, if it existed, was dug and by whom and it cannot be
inferred that the second defendant was responsible
for same as the
incident occurred before 06h00 as they specifically pleaded that they
only commenced work after 07h00.
[37]
Secondly, none
of the witnesses testified how they concluded that that the dangerous
situation would have been caused by the second
defendant (digging the
trench) as they did not lead any evidence that workers or machinery
belong to the second defendant caused
the alleged accident. The
evidence of the two constables were at odds with the official
documents of Odendaalsrus SAPS denoting
their presence at the said
police station and not the R 34 road.
[38]
Thirdly, they
were also in support of the first defendant's argument that the
plaintiff via its witnesses did not prove negligence
as alleged in
its particulars of claim on the part of the second defendant or first
defendant for that matter due to the concessions
made as indicated in
paragraph 34 herein identifying him as the sole cause of the
accident. Moreover, the AR report completed by
Mtuzi specifically
depicted road signs being clearly visible with no sand heap insight
or brake marks.
[39]
Counsel for
the plaintiff contended that the said application ought to be
dismissed with costs as the credibility of witnesses do
not play a
role at this stage and that the court can at this stage draw the
inference from the pleadings that the legal duty had
passed to the
second defendant as they would have admitted in their plea that they
did work on the R 34 that day albeit after 7am.
Furthermore, that
this roadworks was not just observed by the plaintiff, but also by
Mtuzi and Dlamini.
[40]
I
was
referred
to Marine
&
Trade
Insurance
Co
Ltd
v
Van
Der
Schyff 1972(1)
SA 26 (A) more specifically the dicta on page 38 paragraphs C - E
which reiterated the principles laid down in Gordon
Lloyd Page &
Associates v Rivera and Another supra mentioned herein. It was
asserted that there is sufficient evidence for
the court to infer
that the defendants undertook roadworks on the R 34 and due to their
negligence in not erecting warning signs/
lights or flagmen, caused
the motor vehicle accident of the plaintiff
.
"
[8]
Having
considered
the
aforementioned submissions by counsel, the trial judge evaluated the
same in light of the tendered evidence and held as follow:
"[41]
The plaintiff when he testified could not give a clear indication
regarding the exact location of the accident save to
say that it
occurred on the R 34 road enroute to his workplace, near Tshepong
mine. Mtuzi and Dlamini evidence did not shed any
light on this
location either. I therefore cannot conclude it is the same location
where the second defendant later that day, installed
the said pipe.
[42]
The plaintiff mentioned that on the day of the incident, he did not
observe any workers or heavy machinery on the scene
that could be
identified as belonging to the first or second defendants to confirm
that defendants were indeed involved in digging
the trench which
presented a dangerous situation as alleged in his particulars of
claim. This was despite him being referred to
the relevant portions
of the particulars of claim and
Rule 37
minutes during cross
--examination alleging same.
[43]
The plaintiff wants this court to infer that as the second
defendant's appointment to install a water pipe came about due to
the
first defendant's legal duty to maintain and upkeep the R 34, that
the first defendant, alternatively the second defendant,
could have
been the only ones who dug the trench. This cannot be correct as the
first defendant in their plea denied this allegation
and served a
third party notice on Matjhabeng Local Municipality, who was in fact,
the local authority who appointed the second
defendant.
[44]
If one looks
at the pleadings, more specifically that of the second defendant,
they indicated that they were appointed by the local
authority and
only commenced work with its workers on the R34 after 7h00 road and
denied they undertook roadworks at the time of
the accident hence
none
of their
workers were observed by the plaintiff or the two constables.
[45]….
[46]
The evidence
presented
by
the plaintiff in totality could not dispute
this assertion
as they had
already
left
the scene before the stipulated
time. Even if
I am wrong in this view, the evidence of the plaintiff and the two
constables was not convincing in any shape or form.
The plaintiff
himself was highly evasive regarding him applying brakes or reducing
his speed
·
or why the
accident report indicated visible road signs or the absence of a sand
heap.
[47]
The evidence
of the police officers could not account for the discrepancy of their
whereabouts as contradicted by official SAPS
documents. Although they
insisted that they were at the scene of the accident, they could not
provide an explanation for this material
contradiction. This left
serious doubts in my mind that they were in fact on the accident
scene or if they were in fact at the
Odendaalsrus Police Station,
attending a parade being held by their Commanding Officer and Mtuzi
thereafter, booking out his firearm
and state vehicle.
[48]
The plaintiff
was very specific pertaining to the time of the accident would have
occurred any time from 05h45 and 06h00 and he
would have only left
the scene when it was just before 07h00. In my view, I cannot infer
that the said hazard on the R34 was caused
by the defendants or that
there is a causal link between the accident and alleged failure by
the defendants to comply with their
legal duty
.
[49]
In the absence
of such evidence, I cannot conclude that the plaintiff presented any
evidence which established on a
prima
facie
basis,
on which I
may
find
in
its
favour
or
in
the
event
the
defendants
do
not
adduce
evidence."
The
trial judge concluded that the defendants' application for absolution
from the instance must therefore succeed.
Submissions
by
counsel on
appeal
[9]
Before us
counsel for the appellant stressed that the trial court had erred in
her findings, more specifically with regards to the
issue of the
credibility of the witnesses for the plaintiff. He pressed on us to
find that that the evidence of the plaintiff satisfies
the absolution
test, namely that evidence was tendered upon which a court, applying
its mind reasonably to such evidence, could
or might (not should, nor
ought to) find for the plaintiff. rendering this matter not to be a
deserving case where the credibility
of all the witnesses ought to be
adjudicated at the absolution stage.
9.1
Counsel
submitted
that
the
court's
finding
in
paragraph
[41]
of
the
judgment did not take
into consideration the plaintiffs evidence that the accident occurred
near the scene where he, the day before
the accident, observed
construction work in the field next to the road. It also disregards
the evidence of Mtusi and Dlamini that
the accident occurred near
Kutlwanong, read with the second defendant's plea, that it was
executing roadworks near Kutlwanong nor
that no other roadworks was
executed on the R34 en route to Odendaalsrus The only reasonable
inference is, so the argument
went, that the accident occurred where
the second defendant was executing its contractual obligation towards
the Mangaung Municipality
by installing water pipes across the R34
road.
9.2
It was
submitted that the court erred in paragraph [44] of the judgment in
relying on second defendant's pleaded version with regards
to the
time, on the morning of 6 August 2014, when it allegedly started
working on the road. Counsel argued that no evidence in
this regard
is before court and the court's reliance on the pleaded version was
misplaced. Moreover, so it was submitted, the court
a
quo
rejected
the plaintiff's version in totality on the basis that the plaintiff
was
"highly
evasive",
with
reference to him applying breaks or reducing his speed and that this
was only relevant in as far as it might have a bearing
on the
ultimate adjudication on contributory negligence.
9.3
It was also
submitted by counsel that the evidence tendered by Constable Mtusi
and
Dlamini in
respect of certain documents
have not been
proven by the relevant authors thereof.
[10]
On behalf of the first respondent counsel submitted that the trial
court was correct in granting absolution
from instance in respect of
the first defendant and that the appeal stands to be dismissed with
costs.
10.1
It was argued
that in regards to proving negligence the plaintiff did not dispute
that:
10.1.1
No employees
of the first defendant carried out any works on the R34 road between
the 5th and 6th August 2014. According to the
plaintiff there were
people who were doing work of excavation but
he could not
say who those workers worked for.
10.1.2
At the time of
the accident permission was given to the third defendant to install a
water pipeline across the road, who appointed
the second defendant to
carry out such works.
10.2
It was
submitted that plaintiff
sought
the court to
find that the presence
of the heap of
soil on the road amounted to a
prima
facie
case
against the first defendant and that the first defendant failed to
maintain the road. It was stressed that the alleged heap
of soil on
the road had nothing to do with the maintenance of the road by the
first defendant. The reason therefore is, so the
argument went, that
on the version of the plaintiff, the roadwork was undertaken by the
second defendant and not the first defendant.
This roadwork related
to the installation of the water pipeline.
10.3
It was finally
submitted that in casu clearly the court a
quo
could not
rely on the evidence of the plaintiff and his witnesses based on
their credibility and that the court a
quo
correctly
exercised its discretion in having regard to the credibility of the
witnesses of the plaintiff.
[11]
Counsel
on behalf
of
second
respondent
likewise
submitted
that
it
is clear
from
the
court
a
quo's
judgment
that it properly and carefully considered the evidence adduced
by the
plaintiff.
The
Court properly exercised
its discretion
in its finding. By virtue of this test, it is clear that there is no
evidence upon which a Court, applying its mind
reasonably to evidence
adduced, could or might find for the appellant.
11.1
As was done in
the trial court, our attention was drawn to the plaintiffs cause of
action as pleaded in the particulars of claim
and the plea filed by
the second defendant. The second plaintiff specifically pleaded that:
"7.2.1
Construction work involving the surface of the road by the digging of
a trench only commenced after 07:00 on 6 August
2014;
7
.
2.2
No
trench
was
dug
or
existed
in
the
road
surface
on
6
August 2014 between 05:45 and 06:00 as alleged."
11.2
Counsel
ultimately submitted that there is no evidence before court that the
second respondent was responsible for the presence
of an alleged heap
of soil on the R34 on the date in question, as the appellant's
evidence contradicts his pleadings and other
documents in which he
recorded the alleged incident. It was submitted that, according to
the plaintiff's own evidence the presence
of a trench was not the
cause of the incident but rather the presence of an alleged heap of
soil; construction work was undertaken
on 5 August 2014 in the
vicinity where the incident occurred but not on the road surface; he
does not know who undertook such alleged
construction work; the
incident
occurred about
3 km before his workplace (Tshepong Mine), which he estimated the
distance from Riebeeckstad to Tshepong Mine as
about 16 km and
plaintiff could not deny that that the second
defendant
did work
on the R34 on
6 August
2014
at a later
time only
after the accident had occurred.
Evaluation
[12]
Having
considered the aforementioned, we find ourselves in agreement with
the submissions made by counsel for the first and second
respondents
as alluded to in paragraph 7 above and expanded upon in paragraphs 10
and 11 respectively above in opposition to the
appellant's grounds of
appeal. These submissions resulted in the findings of the trial
court.
[13]
In our view
the
court a
quo
was
correct in finding that it cannot simply infer that the appellant's
hazard on the R34 was caused by the respondents and its
consequential
finding
that
there
was
no
causal
link
between
the
accident
and
the alleged
failure by the
respondents to comply
with their
legal duty
.
The
submissions made on behalf of the appellant as referred
to herein
above,
more
specifically
that the
presiding judge
misdirected
herself
in evaluating
the evidence
for
the
appellant
concluding the
same not to be credible, do not find favour with us. In particular,
the submission that the court a
quo
rejected
the plaintiff's version 'in totality on the basis that the plaintiff
was
"highly
evasive",'
cannot,
with respect, be correct on a reading of the judgment
as a whole.
The trial court, in considering
the totality
of the evidence placed before it in adjudicating whether the
appellant had made out a
prima
facie
case
against
the
respondents,
did so from
paragraphs
[41] to [48]
of the
judgment as quoted above. This included the appellant's inability to
give the exact location of the averred accident and
his concession of
not having observed any workers or machinery belonging to the
respondents.
We have not
been convinced that the trial court misdirected itself in any way. We
hold the view that the judge carefully considered
the evidence and
pleadings and properly exercised her discretion in granting an order
of absolution from the instance.
There was no
evidence upon which the presiding judge, in applying her mind
reasonably
to
such evidence,
could or might
have ultimately found for the appellant against the respondents. Put
differently, there was no
prima
facie
evidence
of negligence tendered before the trail court against either of the
respondents. Under these circumstances
and in
applying the case law as set out herein above, the appellant's appeal
against the order of absolution from the instance with
costs, stands
to be dismissed.
[14]
Counsel were
ad idem that, in awarding a cost order, the appropriate scale to be
applied
as
envisaged in Uniform
Rule 67A
should be that of Scale
C. We do not
have any reason for a deviation from the usual order that cost should
follow the event,
and
accordingly
it
shall be so
reflected
in
the order below.
[15]
For the
reasons as set out herein above, we make the following order:
The
appeal is dismissed with costs on scale C as envisaged in Uniform
Rule 67A.
C
REINDERS J
MB
NEMAVHIDI AJ
I
concur
.
TL
MANYE AJ
Appearances
For
the Appellant:
Adv
PJ Zietsman
Instructed
by
:
SC
Honey Attorneys
Bloemfontein
For
the 1st Respondent:
Adv
BS Mene SC
Instructed
by
:
State
Attorneys
Bloemfontein
For
the 2nd Respondent:
Adv
J Cilliers SC
Instructed
by
:
Niemann
Van Rooyen Attorneys Welkom
c/o
Phatsoane Henney Attorneys
Bloemfontein
[1]
Gordon
Lloyd Page and Associates v Rivera and Another
2001 (1) SCA at 92E-93A.
[2]
Claude
Neon Lights
(SA)
Ltd
v Daniel
1976(4)
SA 403A at 409G-H.
[3]
See:
Hartzer
v Da Sousa and Others
(46158/09) [2013] ZAGPPHC 495 (
[4]
See:
AM
and Another v MEC for Health
.
Western
Cape
2021
(3) SA 337
(SCA) at par [8] and [159];