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[1999] ZASCA 13
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Multilateral Motor Vehicle Accidents Fund and Others v Nkosi and Others (188/97) [1999] ZASCA 13 (23 March 1999)
THE SUPREME COURT OF
APPEAL
OF SOUTH AFRICA
CASE NUMBER 188/97
In the matter between:
Multilateral
Motor Vehicle Accidents Fund
First Appellant
Multilateral Motor Vehicle
Accidents Fund
(Substituted
for Santam Limited)
Second
Appellant
and
Daniël
Makhingila Nkosi
First Respondent
Tryphinah
Ntombi Lekhuleni
Second
Respondent
CORAM:
Smalberger,
Marais, Olivier JJA et
Melunsky,
Madlanga AJJA
Date
of Hearing: Thursday 25 February 1999
Date of Judgment: Tuesday 23 March 1999
________________________________________________________________
JUDGMENT
________________________________________________________________
MADLANGA
AJA
:
[1]
At about 18h00 on 16 April 1992, which was the beginning of the
Easter weekend, a collision involving three motor vehicles
occurred
on the N4 between Johannesburg and Nelspruit in the vicinity of the
Arnot off-ramp. It is common cause that this collision
was the
result of the negligent driving of the driver of a certain Golf
motor vehicle (“the Golf”), that the Golf
never came
into contact with any of the three motor vehicles involved in the
collision, that it did not stop and that neither
it nor its driver
or owner were subsequently identified.
[2]
The first and second respondents (“Nkosi” and
“Lekhuleni” respectively) instituted actions in the
Transvaal Provincial Division of the High Court. Nkosi’s
action was for damages arising from bodily injuries sustained
during
the collision. He had been a passenger in one of the three motor
vehicles involved in the collision (“the Toyota
minibus”).
Lekhuleni’s action was for loss of support. Her husband
(“the deceased”) who died as a result
of the collision
had been the driver of the Toyota minibus. Lekhuleni acted on her
own behalf and on behalf of her six minor
children of whom the
deceased was the father.
[3] Nkosi and Lekhuleni each cited
the then Multilateral Motor Vehicle Accidents Fund (“the
Fund”) and Santam Limited
(“Santam”) as first and
second defendants respectively. The Fund was cited because “an
unidentified motor
vehicle” (the Golf) caused the collision
(article 40 read with article 3(b) of the Schedule (“the
Agreement”)
to the
Multilateral
Motor Vehicle Accidents Fund Act
93 of 1989 (“the Act”)). Santam was cited on the basis
that the drivers of the three motor vehicles involved in
the
collision were also negligent (article 40 read with article 13(b) of
the Agreement). It is rather strange that Lekhuleni
also based the
loss of support claim on the negligence of the deceased, her
husband, but for present purposes nothing turns on
this.
[4] In both actions the Fund raised special pleas
contending that in terms of regulation 3(1)(a)(v) (promulgated in
terms of
sec 6 of the Act) no liability attaches to it if the
“unidentified motor vehicle” never came into physical
contact
with Nkosi and the deceased or with the motor vehicles in
which they were. This legal contention was preceded by a denial of
the respondents’ allegation that there was in fact physical
contact.
[5] Both respondents replicated to
the special pleas and averred that the content of regulation
3(1)(a)(v) is
ultra
vires
the
empowering legislation (the Act) and that, therefore, it cannot
affect their claims.
[6] The two actions were
consolidated and heard by Spoelstra J. A ruling was made in terms
of rule 33(4) of the Uniform Rules
that the issue of liability be
considered first and that the determination of
quantum
be stayed for later hearing, if necessary. Spoelstra J held that
regulation 3(1)(a)(v) is
ultra
vires
the
provisions of sec 6 of the Act, this being the section empowering
the Minister to make regulations “to give effect
to any
provision of the Agreement”. He also found the collision to
have been the result of the negligence of the drivers
of both the
Golf and one of the three motor vehicles involved in the collision
(“the Ford”). The Fund and Santam
were thus held to be
jointly liable to the respondents.
[7] Spoelstra J granted the Fund
and Santam leave to appeal to this Court. The Fund appeals against
the
ultra vires
finding. Santam appealed against the finding that the driver of the
Ford (“ Perumal”) was negligent.
[8] This appeal was argued together
with the appeal in
Road
Accident Fund (formerly the Multilateral Motor Vehicle Accidents
Fund) v Barend Phillipus Prinsloo
(Case No. 299/98) which also involved the question of the validity
of regulation 3(1)(a)(v). In that appeal it was held that
regulation 3(1)(a)(v) is
ultra
vires
the
provisions of sec 6 of the Act and is, therefore, invalid. As the
Fund, in its capacity as the first appellant, is appealing
only
against the
ultra
vires
finding, its
appeal on this point must fail. I next deal with the question of
the negligence of Perumal.
[9] Although the respondents called
three witnesses, the Court
a
quo
decided the
matter on the basis of the evidence of only one of them, Alberts.
The Fund and Santam closed their cases without
calling any evidence.
With the exception of his suggestion that Perumal was negligent,
all the parties accepted the evidence
of Alberts. His evidence was
to the following effect. On the day in question there had been a
thunderstorm accompanied by heavy
rain. At the time of the
collision the thunderstorm had stopped but it was still raining.
The tarred surface of the road was
wet. As is usually the case on
South Africa’s major routes at the beginning of the Easter
weekend, the volume of vehicular
traffic was “
natuurlik
baie geweldig besig gewees”,
especially from West to East, the direction in which Alberts was
driving. Alberts even referred to the traffic as a
“
queue
”
and
a “
verkeerstroom
”.
Because of the weather conditions, it was beginning to get dark.
About visibility Alberts said,
“Dit
was nog redelik, maar nie goed, ek sal nie sê goed nie, maar
dit was nog redelik gewees. Daar was geen probleem
dat jy nie ‘n
ding kan sien nie.
”
[10]
Alberts was driving a Mitsubishi minibus. In front of it was the
Toyota minibus. In front of the Toyota was the Ford.
Alberts’s
evidence which was not necessarily reliable on this point was that
the motor vehicles were travelling more or
less five to six car
lengths behind each other. All three motor vehicles were driving in
the middle of their lane. Because
it was raining all the motor
vehicles had slowed down and were travelling between 80 and 90
kilometres per hour. At the point
where the collision took place
there was a single lane on Alberts’s side of the road. There
were two lanes on the side
of oncoming traffic. The Golf came from
behind the Mitsubishi, moved onto one of the two lanes on its
incorrect side (the lane
nearest to its correct side) and began to
overtake Alberts’s motor vehicle and the other two in front of
it. As it was
in the process of overtaking, a truck was approaching
from the opposite direction and driving on the outer lane. There
was a
motor vehicle, also approaching from the opposite direction,
which was driving on the inner lane and in the process of overtaking
the truck. At this stage the driver of this motor vehicle flashed
his lights. The Golf then cut in in front of the Ford, so
closely
that Alberts thought that the two motor vehicles had made contact.
Alberts saw the brake lights of the Ford come on.
The Ford
violently swung to the left and began to spin. As it was spinning,
the Toyota minibus collided with it. Both motor
vehicles swung
around and collided a second time. Alberts, on advice from a
passenger, realised that because of the wet surface
and the laden
trailer pulled by his minibus he could not bring the minibus to a
standstill before reaching the two motor vehicles
in front of him.
He steered to his incorrect side of the road in order to avoid them.
By then the truck and the motor vehicle
overtaking it had gone
past. The Toyota minibus suddenly shot across the road in Alberts’
s path of travel and collided
with his minibus. The two minibuses
came to a standstill on their incorrect side of the road. The Ford
which was on the left
of the road caught fire. Perumal and, as
already indicated, the driver of the Toyota minibus died as a result
of these events.
[11] In his evidence Alberts said
that Perumal “
oorgereageer
het”
and
that his reaction was a “
swaar
reaksie
”.
However, save for mentioning the coming on of the brake lights and
the violent swerve to the left, Alberts did not proffer
any factual
basis for the conclusion that Perumal overreacted. The following is
all that the Court
a
quo
said in
finding Perumal to have been negligent:
“
Ek
is van oordeel dat die noodwendige afleiding is dat die bestuurder
van die Ford ook nalatig was. Hy het klaarblyklik oorgereageer
toe
die Volkswagen Golf voor hom ingeswaai het. Hy moes opgemerk het
dat die voertuig van voor sy ligte flikker. Dit was ‘n
aanduiding dat daar ‘n gevaartoestand aan sy kant van die pad
bestaan. Dit moes die bestuurder van die Ford op sy hoede
geplaas
het. Selfs al het hy nie so ‘n waarskuwing gehad nie, het hy
klaarblyklik nie sy voertuig behoorlik onder beheer
gehou nie. ‘n
Redelike man sou onder dieselfde omstandighede nie beheer oor sy
voertuig verloor het nie.”
[12] Before one can adjudge Perumal
to have been negligent, one should be satisfied that his conduct
fell short of what would
be expected of a reasonable driver in
similar circumstances. Save for the sweeping statement by Alberts
that Perumal overreacted,
there is no evidence which suggests what
action Perumal could have taken to avoid colliding with the Golf
and, at the same time,
to keep his motor vehicle under control and
avoid colliding with motor vehicles following him. It would appear
that the Ford
started spinning as a result of the violent swerve to
the left and the application of brakes. It was suggested by Mr
Geach
who, together with Mr
Jacobs
,
appeared for Nkosi and Lekhuleni that had Perumal been keeping a
proper lookout, he would have seen the Golf in his rearview
mirror.
The suggestion was that on seeing it he would have realised the
danger of an imminent collision between it and the motor
vehicle
that was overtaking the truck or the possibility of the Golf cutting
in dangerously in front of the Ford. On realising
this he would
have been able to move timeously to the extreme left and drive on
the shoulder of the road which is demarcated
with a yellow line. Mr
Geach
further contended that the volume of vehicular traffic travelling
from West to East made it necessary for a driver to look in
the
rearview mirror constantly. Put differently, the respondents’case
is that a reasonable driver would have foreseen
the possibility of
negligent drivers overtaking in the manner in which the Golf did and
would, therefore, have been on the
lookout for them so as to be able
to timeously take avoiding action.
[13]
It is certainly not unknown for drivers to negligently or recklessly
attempt to overtake a string of vehicles in the manner
in which the
driver of the Golf did, thus exposing the drivers and occupants of
other vehicles to grave danger. Whether the
mere existence of that
possibility sufficed to cast upon Perumal a duty or obligation to
monitor the behaviour of following traffic
more frequently than
might ordinarily be called for is debatable. However, even if it be
assumed that it did, in the circumstances
which prevailed in this
case there is no evidence to show that he failed to do so. He was
obviously not required to drive with
his eyes glued to his rearview
mirror. Appropriate intermittent surveillance of following traffic
is the most that could be
expected of him. There is nothing to show
that he did not from time to time look in his rearview mirror. Nor
is there any evidence
to show that at the particular moments when he
might have done so he would or should have seen any untoward
behaviour by the
driver of the Golf. Any failure to see the Golf
cannot, in the circumstances, be attributed to negligence on his
part.
[14]
It was argued that the Golf’s lights as it approached from
behind should have alerted Perumal to the fact that it was
overtaking the vehicles behind him. Even if it be assumed that the
driver of the Golf did have his lights switched on, it was
not shown
that that would have alerted a reasonable driver to danger. There
were other vehicles immediately behind Perumal and
their lights were
also switched on. There were vehicles ahead of him and approaching
him and their lights too were switched
on. It was not yet dark and
there is no evidence to show that in such circumstances the lights
of the Golf would have been so
conspicuous as to register in the
mind of a reasonable driver in Perumal’s position.
[15] The next question is whether
Perumal can be said to have been negligent in dealing with the
situation that arose when the
Golf cut in in front of him. From
Alberts’s evidence, it is clear that the Golf was dangerously
close to the Ford, hence
his belief that the two motor vehicles had
made contact. That the Golf must have cut in when very close to the
Ford is further
confirmed by Alberts’s suggestion that had it
not cut in when it did, it might have collided with the oncoming
motor vehicle.
It seems to me, therefore, that Perumal was not left
with much room for the luxury of avoiding the hard application of
brakes
when driving on a wet surface. The option of not applying
his brakes exposed him to the
real
danger of a collision with the Golf and, had that happened, one is
not in a position to exclude the possibility of a multiple
collision
with equally, or more, disastrous consequences. Equally, one cannot
discount the real possibility that the swerve
to the left must have
been necessitated by the closeness of the Golf. I am thus not
convinced that a sufficient factual basis
exists for concluding that
Perumal “
oorgereageer
het
” and
that he failed to avoid the collision when, with the exercise of
reasonable care and the necessary skill, he could
and should have
done so (see (a)(ii) of the test for negligence enunciated by Holmes
JA in
Kruger v
Coetzee
1966(2) SA
428 (A) at 430E. This part of the test implicitly entails an
ability to take the reasonable steps mentioned). It
should be borne
in mind that having to respond to a sudden emergency may impact
negatively on such ability. In
SAR
v Symington
1935 AD 37
at 45 Wessels CJ said:
“
One man may react very
quickly to what he sees and takes in, whilst another man may be
slower. We must consider what an ordinary
reasonable man would
have done.
Culpa
is not to be imputed to a man merely because another person would
have realized more promptly and acted more quickly. Where
many have
to make up their minds how to act in a second or in a fraction of a
second, one may think this course the better whilst
another may
prefer that. It is undoubtedly the duty of every person to avoid an
accident, but if he acts reasonably, even if
by a justifiable error
of judgment he does not choose the very best course to avoid the
accident as events afterwards show, then
he is not on that account
to be held liable for
culpa
.
”
[16] The finding of Spoelstra J (see
the quotation from his judgment in paragraph [11] above) that
Perumal should have realised
that the driver of the oncoming motor
vehicle which flashed its lights was warning him of the danger on
his side of the road,
that this should have put him on guard and
that, therefore, he should not have overreacted is, with respect,
unjustified. Why
must a driver assume that the driver of an
oncoming motor vehicle which has flashing lights is warning him/her
of danger on his/her
side? As was submitted by Mr
Burman
who, together with Mr
Wessels
,
appeared for the appellants, there are any number of possibilities
why the driver of the oncoming motor vehicle could have been
flashing his lights. For example:
(i) he could have been giving a warning about danger
that he had just left behind;
(ii) as often happens on our roads, it could have been
a warning about the presence of traffic police behind him; and
(iii) it could have been an indication to the driver
of a motor vehicle behind the Ford that its lights were on bright
and blinding
the driver of the oncoming motor vehicle.
[17] There is also no factual basis
for the conclusions contained in the last two sentences of the
quotation from the Court
a
quo’s
judgment. In
Caswell
v Powell Duffryn Associated Collieries Ltd
1940 AC 152
at 169-70 Lord Wright said:
“
My Lords, the precise manner in which the
accident occurred cannot be ascertained as the unfortunate young man
was alone when
he was killed. The Court therefore is left to
inference or circumstantial evidence. Inference must be carefully
distinguished
from conjecture or speculation. There can be no
inference unless there are objective facts from which to infer the
other facts
which it is sought to establish. In some cases the
other facts can be inferred with as much practical certainty as if
they had
been actually observed. In other cases the inference does
not go beyond reasonable probability. But if there are no positive
proved facts from which the inference can be made, the method of
inference fails and what is left is mere speculation or conjecture.”
In the circumstances, I am of the
view that Perumal was not proved to have been negligent and that,
therefore, the Court
a
quo
ought not to
have found Santam liable to the respondents.
[18] I need to say a few words to
clarify the proposed costs order. The gravamen of the Fund’s
resistance to the two claims
was the law point (the
ultra
vires
point) which
was contained in two special pleas with the same content. The only
factual dimension in the special pleas was the
averment that the
Golf did not make physical contact with any of the motor vehicles
involved in the collision. No pleas-over
were filed on behalf of
the Fund. The negligence of the driver of the Golf was not put in
issue. That, in my view, meant that
the only factual dispute
between the Fund and the respondents was the question of physical
contact. But for this, the dispute
between these parties would have
been determined without the hearing of any evidence. It was only in
November 1996 (apparently
on the 19
th
,
the date the trial commenced) that the respondents, in response to a
request by the Fund for clarification whether the respondents
still
maintained that the Golf made physical contact with the other motor
vehicles, admitted for the first time that there was
no physical
contact whatsoever. That, therefore, meant that the dispute between
these parties did not require evidence. Evidence
was thus necessary
solely for purposes of establishing Santam’s liability.
[19] I must add that on 29 April
1997, some three months after the handing down of the Court
a
quo’s
judgment, the Fund was substituted as the second appellant in place
of Santam. The practical importance of the apparent fiction
in the
Fund’s appearance as two parties was in the fact that the
bases of the statutory liability of the Fund and Santam
(whose
obligations the Fund was taking over) were different. From the
notice of substitution it would appear that the authority
of Santam
to act as an appointed agent had been terminated, and such
termination had been promulgated, some eight months previously.
I
do not find it necessary to consider the technical question whether,
from the date of termination of its authority to the
date of its
substitution by the Fund, Santam continued being a party to these
proceedings. I am of the view that an appropriate
costs order is
the one appearing below.
[20]
In determining what an appropriate order would be as to the costs of
appeal regard must be had to the following considerations:
a) The Fund’s dual role in the appeal;
b) The fact that the Fund in both its capacities was
represented by the same attorney and counsel; the respondents were
likewise
jointly represented by one set of attorneys and counsel;
c) The Fund will have been unsuccessful as the first
appellant but successful as the second appellant;
d) In the result the Fund remains liable to the
respondents for the damages sustained by them;
e) The main issue on appeal related to the
question whether regulation 3(1)(a)(v) was
ultra
vires
, on which issue the respondents
succeeded.
[21] Having regard to the
substantial measure of success enjoyed by the respondents it would
be just and equitable to require
the first appellant to pay their
costs. The involvement of the
ultra
vires
point in the
matter justified the engagement of two counsel and the costs of two
counsel will be allowed.
[22] As far as the trial costs are
concerned, it has also to be borne in mind that the circumstances of
the collisions and the
case were such that the respondents’
decision to join the Fund and Santam as co-defendants was reasonable
and not ill-advised.
Had the Fund acknowledged its liability at the
outset, the respondents would not have found it necessary to join
Santam. It
seems appropriate therefore that the Fund should
reimburse the respondents for any trial costs they may be ordered to
pay Santam.
Cf
Parity
Insurance Co Ltd v Van den Bergh
1966 (4) SA 463
(A) at 480H - 482B;
Ngubetole
v Administrator, Cape and Another
1975 (3) SA 1(A)
at 14H - 15E.
[23]
The following order is made:
1. The first appellant’s appeal is dismissed.
2. The second appellant’s appeal succeeds.
3. The order of the court
a
quo
is altered to read:
“a) Die eerste verweerder is aanspreeklik vir
die eisers se skade veroorsaak deur die nalatigheid van die
bestuurder van
die ongeïdentifiseerde Volkswagen Golf voertuig,
waarvoor die Multilaterale Motorvoertuigongelukkefonds aanspreeklik
was,
ondanks daar geen fisiese kontak soos bedoel by regulasie
3(1)(a)(v) van die toepaslike regulasies was nie;
b) Daar is geen aanspreeklikheid aan die kant van die
tweede verweerder vir die eisers se skade nie;
c) Die eerste verweerder betaal die koste van die
eisers verbonde aan dié deel van die verhoor, behalwe vir
enige koste
aangegaan in verband met of as gevolg van die lei van
getuienis;
d) Die eisers betaal die koste van die tweede
verweerder (Santam) gesamentlik en afsonderlik tot op die datum
waarop Santam as
tweede verweerder deur die Multilaterale
Motorvoertuigongelukkefonds vervang is;
e) Die eerste verweerder betaal aan die eisers ‘n
bedrag gelykstaande aan die bedrag wat aan die tweede verweerder
(Santam)
deur eisers betaalbaar word ingevolge bevel d).”
4. The first appellant is ordered to pay the
respondents’ costs of appeal such costs to include the costs
of two counsel.
M R MADLANGA JA
SMALBERGER JA )
MARAIS JA )
OLIVIER JA )CONCUR
MELUNSKY AJA )