SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in
compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION, MAHIKENG
Not Reportable
Case No: RAF765/2023
In the matter between:
MARNUS WILHELM LINDE PLAINTIFF
and
ROAD ACCIDENT FUND DEFENDANT
Coram: Masike AJ
Date Heard: 29 July 2025, 30 July 2025, 30 September 2025, 1 October 2025,
27 October 2025, and 3 November 2025
Judgment is handed down electronically by distribution to the parties’ legal
representatives by e-mail, and released to SAFLII. The date that the judgment is
deemed to be handed down is 3 JUNE 2026 at 11h00.
Summary: Civil Trial – Motor vehicle collision - Two irreconcilable versions
before the court – technique to be employed by the court in resolving factual
disputes – duty of a driver of a motor vehicle towards other motorists – duty of
driver of a motor vehicle to keep a proper lookout when driving over a n incline
– duty to avoid a collision by exercising reasonable care.
JUDGMENT
MASIKE AJ
Introduction
[1] On 23 October 2021, between the early hours of 2 :00 am and 3:00 am, on
the R34 road between Vryburg and Schweizer -Reneke, a motor vehicle
collision occurred between a motor vehicle bearing registration letters and
numbers H[...] there and then driven by Marinus Wilhelm Linde (‘the plaintiff’)
and a motor vehicle bearing registration letters and numbers C[...], there and
then driven by Mr Bongani Bhuqa (‘the insured driver’).
[2] In the particulars of claim of the plaintiff, i t is alleged that the collision
occurred as a result of the sole negligence of the insured driver, who was
negligent in one or more of the following respects: the insured driver failed to
give adequate warning of his intention to reduce speed, turn or stop, he failed
and/or neglected to stop the vehicle off of a public road, he failed and/or
neglected to stop the vehicle on a public road where it would not or would not
likely constitute a danger/ hazard or an obstruction to other traffic, he failed
and/or neglected to stop the vehicle in a safe place, he failed and/or neglected to
keep a proper lookout, he failed to avoid the collision when by the reasonable
care, skill, and the taking of reasonable precautions, he could and should have
done so, he failed to properly control the vehicle and he failed to drive the
motor vehicle with the necessary skill expected of a reasonable driver in the
circumstances.
[3] It is alleged in the particulars of claim of the plaintiff that as a result of
the collision, the plaintiff sustained injuries in the form of open wounds to his
face, cheek and forehead , a nasal fracture and wound to the scalp, and occiput.
As a result of the collision, the plaintiff has instituted an action against the Road
Accident Fund (‘the defendant’). The action against the defendant is instituted
due to the provisions of s 17(1)(a) of the Road Accident Fund Act, Act No 56 of
1996, as amended (‘the Act’)1. The defendant had defended the action.
[4] The defendant raised two special pleas to the particulars of the plaintiff's
claim. The defendant rel ies on regulation 3 of the 2008 Regulations under the
Act. The defendant alleges that this Court does not enjoy the jurisdiction to
make a finding as to whether the plaintiff’s injury is a serious injury and does
not have jurisdiction to make a finding regarding whether the plaintiff is entitled
to claim non–pecuniary loss against the defendant.
117 Liability of Fund and agents
(1) The Fund or an agent shall-
(a) subject to this Act, in the case of a claim for compensation under this section arising from the driving of a
motor vehicle where the identity of the owner or the driver thereof has been established;
be obliged to compensate any person (the third party) for any loss or damage which the third party has suffered
as a result of any bodily injury to himself or herself or the death of or any bodily injury to any other person,
caused by or arising from the driving of a motor vehicle by any person at any place within the Republic, if the
injury or death is due to the negligence or other wrongful act of the driver or of the owner of the motor vehicle
or of his or her employee in the performance of the employee's duties as employee: Provided that the obligation
of the Fund to compensate a third party for non-pecuniary loss shall be limited to compensation for a serious
injury as contemplated in subsection (1A) and shall be paid by way of a lump sum.
[5] It is alleged in the plea of the defendant that the plaintiff has failed to
submit himself to an assessment by a medical practitioner in accordance with
the Regulations2, and in terms of the Regulations he was obliged to obtain from
the medical practitioner concerned a Serious Injury Assessment Report,
completed in accordance with the Regulations of the Act , and in which form,
the findings of the medical practitioner were to be recorded.3 It is alleged in the
plea that the defendant is only obliged to compensate third parties for non –
pecuniary loss provided in the Act , if the claim is supported by a Serious Injury
Assessment Report submitted in terms of the Act and Regulations, and the
defendant is satisfied that the injury has been correctly assessed as being a
serious injury in terms of the method provided in the Regulations.
[6] The second special plea is also based on regulation 3 of the Regulations
of the Act . It is alleged that the defendant has failed to submit a Serious Injury
Report; the defendant has pleaded that it directs the plaintiff to undergo an
assessment to determine whether his injuries are serious under the Regulations.
It is alleged that the defendant is not obliged to compensate the plaintiff for non-
pecuniary loss as averred until his alleged sustained injuries are determined to
be serious in nature.
[7] In addition to the special pleas, the defendant has pleaded over to the
particulars of the plaintiff's claim. The defendant denies any liability towards
the plaintiff. The defendant denied that the collision occurred as a result of any
negligence on the part of the insured driver, as alleged by the plaintiff.
2 Regulation 3(1)(a) of the Act
3 Regulation 3(1)(b) (i), (ii), (iii), (aa), (bb), (cc), (dd), (iv), and (v) of the Act
[8] The defendant has pleaded in the alternative that, if this Court finds that
the insured driver was negligent as alleged by the plaintiff, the alleged
negligence did not cause and/or contribute to the collision. The defendant
further pleaded that the plaintiff contributed to the negligence by failing to have
due regard for the road signs and rules of the road. He drove his motor vehicle
at an excessive speed in a build -up area. He failed to have due regard for other
road users . He failed to apply the bra kes of his motor vehicle in a dangerous
place under the circumstances. He failed to keep his motor vehicle under proper
control and care. He failed to avoid the collision.
[9] The defendant further pleaded in the alternative that if this Court finds
that the insured driver was negligent, and the said negligence caused and/or
contributed to the collision , then in that event the defendant plead ed that the
plaintiff was negligent and the negligence of the plaintiff should be taken into
account in terms of the provisions of the Apportionment of Damages Act 34 of
1956. The defendant denies that the plaintiff sustained injuries as a result of the
collision.
[10] Before the plaintiff's evidence was led, this Court was told that the
defendant would not be pursuing the two special pleas and that the defendant
had conceded that the plaintiff had complied with the Act and the Regulations.
The parties in a pre -trial minute dated 23 February 2024 agreed that the merits
would be separated from the quantum in accordance with Rule 33(4) of the
Uniform Rules of Court. The matter is accordingly before this Court for the
determination of the question of liability only.
The evidence of the plaintiff
[11] The plaintiff led the evidence of two witnesses in support of his case. The
plaintiff himself and Mr Reinhardt Du Plessis (‘Mr du Plessis’). The plaintiff
testified that on 23 October 2021, at about 2:00 am, he was driving a motor
vehicle bearing registration letters and numbers H[...]. He was driving on the
R34 road from Schweizer-Reneke to Vryburg. There was an incline on the road.
Just after he came over the incline, the plaintiff's motor vehicle collided with the
trailer of a stationary truck heading in the direction from Schweizer -Reneke to
Vryburg.
[12] The plaintiff testified that he swerved to the right and applied the brakes
to his motor vehicle to avoid the truck's trailer, but collided with it. The plaintiff
described the road on which he was travelling as a double lane in both
directions. A double lane heading in the direction towards Vryburg from
Schweizer-Reneke, and a double lane heading in the direction towards
Schweizer-Reneke from Vryburg. The plaintiff testified that it was dark,
visibility was limited , and the road surface was dry. The plaintiff testified that
he had no visibility while going over the incline. The plaintiff said there were
no streetlights where the collision occurred. The streetlights are on as you are
near the town of Vryburg. The plaintiff testified that the speed limit at the
collision site was 80 km/h.
[13] The plaintiff was asked by his counsel if there were many other cars
travelling on the road whilst he was driving. The plaintiff replied by saying that
yes, it is quite a busy road, there was a s far as the plaintiff knew when the
collision occurred, there was a lot of traffic that had already piled up because of
the accident that happened beforehand, that is why the traffic was piling up
because of the accident
[14] The plaintiff testified that he noticed the truck's trailer when he was about
10 meters from it. There were no lights, no reflector triangle indicating a vehicle
on the road. The truck and its trailer were in the right lane of the double -lane
highway heading into Vryburg from Schweizer -Renke. There were no vehicles
coming from the opposite direction. The left wheel of the motor vehicle driven
by the plaintiff struck the right corner of the trailer of the truck. After the
collision, the plaintiff did no t speak with the police at the scene. The plaintiff
testified that as a result of the collision, he suffered injuries to his face, back and
head. Plaintiff testified that he could not see what was happening in the left lane
and took a chance to take the right lane to try to avoid the trailer of the truck.
[15] The plaintiff was shown photographs of the Schweizer – Reneke and
Vryburg Road (‘the road’) on which the collision occurred. He confirmed that it
was indeed the road on which the collision occurred and testified that it
happened just after passing the incline. The plaintiff testified that the motor
vehicle he was driving on the morning of 23 October 2021 was a Toyota Land
Cruiser single cab (‘the Land Cruiser’). The plaintiff testified that if there had
been some indication of the stationary truck and trailer, he would have avoided
the collision. The plaintiff testified that the lights of his Land Cruiser were on
and working.
[16] Under cross -examination, the plaintiff accepted that at the time of the
collision, the police had closed both directions of the road because of the earlier
motor vehicle accident. The plaintiff testified that there were other vehicles in
front of the truck and trailer, which had been stopped by the police. There were
emergency vehicles on the scene . He s aid he s aw these vehicles after the
collision. He said he was not certain whether the emergency vehicles' lights
collision. He said he was not certain whether the emergency vehicles' lights
were on. The plaintiff insisted that i f the trailer's lights or hazards were on, he
would have seen it. It was put to the plaintiff that the trailer of the truck that he
collided with had reflective tape (‘the chevron ’) at the back . The plaintiff, in
reply, said he could not confirm having seen the chevron.
[17] Under cross-examination, the plaintiff testified that , at the incline on top
of the hill, as it descends, the road starts to level off about 100 meters down. He
told the Court that about 100 meters from where the road started to level , he
collided with the truck and trailer. It was put to the plaintiff that he drove his
motor vehicle at an excessive speed in a built -up area. The plaintiff denied this
and insisted that , at the time of the collision, the speed limit was 80km/h and
that he was driving at 70km/h. It was further put to the plaintiff that he failed to
have regard for other road users, and that he failed to apply the brakes of his
motor vehicle at a dangerous place and to avoid a collision, which he was
required to do. He denied this. When challenged with the accident report and
informed that the officer who filled in the accident report would testify that the
accident was a ‘side swipe’, the plaintiff insisted that it was a ‘ rear-end
collision’.
[18] Upon re -examination, the plaintiff was referred to the photographs at
pages 39 and 40 of Index Bundle 1 – Rule 35(9). The photographs show a
single-cab Land Cruiser with damage to the bull bar, bonnet, and roof. The
plaintiff confirmed that the photographs are of the Land Cruiser he was driving
on 23 October 2021. On the examination of the accident report, this Court
observed that the officer who filled in the accident report on the section dealing
with ‘Vehicle Damage’ marked the section reading ‘multiple’ as it relates to the
Land Cruiser.
[19] The plaintiff then called Mr du Plessis. The evidence of Mr du Plessis is
that on 23 October 2021, he was called to the scene of a motor vehicle accident
between a panel van and a motorcycle on the road (‘the motor vehicle
accident’). Mr du Plessis was called by his brother. He was involved in a motor
vehicle accident. Whilst assisting his brother, he heard a big crash. When he
heard the big crash, the police and emergency services were still busy clearing
the scene of the motor vehicle accident. Both directions of the road were closed.
When he heard the big crash, he was with one of the police officer s at the scene
of the motor vehicle accident. The police officer told him to take his brother
home. About 30 cars were lined up due to the road closure. The queue was
about 400 meters long. Mr du Plessis spent about 10 to 15 minutes at the scene
of the motor vehicle accident before he was told that he could take his brother
home.
[20] Mr du Plessis testified that there are street lights at the scene of the motor
vehicle accident, but there are no lights at the scene of the collision. Mr du
Plessis returned to the scene of the motor vehicle accident. On his way back, he
saw the plaintiff's Land Cruiser , he was worried because the plaintiff is his
friend. He was told by a police officer , whose name and further particulars he
did not know, that the plaintiff had been taken to the hospital. Mr du Plessis
testified that it was very dark. Mr d u Plessis also testified that the collision
occurred near the incline, just after passing the incline, heading in the direction
of Vryburg from the direction of Schweizer -Reneke. Mr du Plessis testified that
the distance from the motor vehicle accident site to the collision site could be
about 800 meters. He testified that it could take about 10 minutes to walk
between the two sites.
[21] Under cross-examination, Mr Du Plessis informed the Court that he and
the plaintiff are friends, and they grew up together. No one indicated that there
was an accident at the scene of the motor vehicle accident . The emergency
vehicles' lights were on. The collision occurred about 400 meters from the
60km/h board. It was put to Mr du Plessis that the defendant's witnesses will
testify that the collision occurred much closer to Vryburg and further away from
the incline. Mr du Plessis denied this. This was the plaintiff’s case.
The evidence of the defendant
[22] The defendant led the evidence of 4 witnesses. Constable Dorah Abueng,
Mr Thamani Raphalalani, Sergeant Samuel Brooks, and the insured driver. The
insured driver testified that he is employed as a driver. On 23 October 2021, he
was the driver of the truck which was involved in the collision. He was alone in
the truck. The collision occurred at around 3:00 am. He testified that, a fter he
drove over the incline, or in the words that he used, ‘when he came to the edge
of the skid’, he managed to see that there is an accident on that ‘skid hill’, he
reduced the speed of the truck, he was able to slow down the truck and bring it
to a standstill behind the other motor vehicles, which had been stopped by the
police because of the motor vehicle accident. As he waited in the queue with the
engine of the truck running, he heard a loud crash from the back of his truck. He
looked in the truck's right mirror and saw the plaintiff's Land Cruiser . He then
realised that the Land Cruiser had collided with the trailer. After the collision,
he alighted from the truck and went to look at the damage to the trailer. He saw
that the damage was on the right side of the trailer, that the landing legs were
damaged on the right, and that the back of the truck was damaged on the right.
[23] He saw that the plaintiff was still in his Land Cruiser. The plaintiff was
alone. While he was looking at the plaintiff, he saw the police approaching the
collision scene. He could not estimate the distance from the motor vehicle
accident s cene to the collision scene, but maintained that it was not far. The
police took his information, and the plaintiff's, and the plaintiff was assisted by
emergency personnel and taken to the hospital by ambulance . The ‘breakdown’
assisted with the plaintiff's Land Cruiser . The insured driver requested the
‘breakdown’ to assist him in pulling the truck's wheels out. The insured driver
confirmed that it was dark at the time of the collision. He testified that there
were about 5 other motor vehicles ahead of the truck, and that their lights were
on; some had their hazards on.
[24] The insured driver testified that the truck and trailer lights were on, the
hazards were on, and that the trailer had a chevron that reflected light when
illuminated. The insured driver testified that the police and emergency vehicles'
lights were on, including their emergency lights. He coul d see the emergency
lights of the emergency vehicles and the police vehicles from where he had
stopped the truck and trailer. The insured driver testified that the speed limit at
the collision scene was 60km/h. The insured driver was shown photographs of
the road on which the collision occurred. He denied that the collision occurred
closer to the incline, as the plaintiff testified.
[25] Under cross-examination, the insured driver testified that he was driving
from Johannesburg to Kuruman and had rested at Delareyville for about 30
minutes. He was asked how long it takes him to drive from Johannesburg to
Kuruman. He t old the court it would take about 5 hours, depending on traffic
and stop-and-go, but if there are no challenges, it would take him 5 hours. He
testified that he could not estimate the distance in meters from the collision
scene to the motor vehicle accident scene . He insisted that the two scenes were
not far apart from each other.
[26] The insured driver was referred to the statement of Constable Dorah
Abueng (‘Constable Abueng’), in which she states that she was informed by the
crew that another accident had occurred and that they went to the scene of the
second accident. The insured driver testified that he was not with Constable
Abueng when discussing the collision with the crew. He testified he did not
know who told Constable Abueng about the collision. The insured driver was
then referred to his own statement. He was asked why t he statement was headed
‘Statement by Suspect’. The insured driver replied that, under the law, you are
regarded as a suspect; the officer who took the statement is the only person who
can explain why the statement is headed ‘ Statement by Suspect’. The insured
driver was asked if he had been investigated for reckless and inconsiderate
driving. He told the Court that a white person called him about the collision.
Another person in a white vehicle asked how the collision occurred and was
asked to come to cour t to give evidence; that is why he is in court on 30 July
2025.
[27] The insured driver testified that he waited about 10 minutes in the queue
before the collision. He informed his employer of the motor vehicle accident
and that delivery of his load to Kuruman would be delayed . After he reported
the delay, he heard the loud crash at the back of the t ruck. He was referred to
the accident report, which was filled in by Officer Samuel Brooks (‘Sergeant
Brooks’). It read that the collision was a ‘side swipe’. The insured driver
testified that Sergeant Brooks had made a mistake in the accident report; he said
that the plaintiff's motor vehicle collided with the right rear of the trailer. The
insured driver was asked when he switched on the truck's and the trailer's
hazards. He said he switched them on after the incline , after he saw the motor
vehicle accident, to warn vehicles approaching from the rear that one was ahead
and that a motor vehicle accident was ahead.
[28] It was put to the insured driver that the plaintiff testified that the truck and
trailer's lights and hazards were off. The insured driver was adamant that the
truck and trailer's lights and hazards were on and in working order when he left
Johannesburg. He further checked that the truck and trailer's lights and hazards
were working in Delareyville. The distance between Delareyville and Vryburg
was estimated by the insured driver to be about 90km. The truck was clean
when it left Johannesburg , and the insured driver said he doubted that a little
dust would affect the chevron's reflective material. He insisted that the truck and
trailers' lights and hazards were on at the time of the collision.
[29] It was put to the insured driver that the scene of the collision site was
closer to the incline, and not at the site that he had identified , which is closer to
the city of Vryburg. It was put to the insured driver that the collision occurred
some 400 meters from the incline. The insured driver denied this. When asked
why he was so certain about the collision site, the insured driver told this Court
that it was not far from the motor vehicle accident site, which is why he was
certain of the collision si te. He also said there was a concrete sewer cover next
to the road, near the collision site. That is why he was certain of the site of the
collision. The insured driver pointed out the concrete sewer cover shown in the
first photograph on page 281 of Index Bundle 4 – Rule 35(9) documents as the
one next to the collision site. The insured driver was asked how certain he was
that there were no other concrete sewer covers on the road. He answered that he
does not know any others besides the one he mentioned.
[30] The second witness for the defendant was Mr Thomani Silas Raphalalani
(‘Mr Raphalalani’). Mr Raphalalani is employed by the defendant as a claims
investigator. At the time he investigated the matter, he had been employed by
the defendant for 4 years. He described his duties as visiting police stations to
obtain documents, consulting with witnesses who observed motor vehicle
accidents, and engaging other stakeholders.
[31] Mr Raphalalani told the court that the docket of the collision was opened
at Vryburg Police Station. He received the docket, which included the A1
statement, the accident report, and the insured driver's statement . He noted that
the warning statement of the plaintiff was not in the docket. He considered the
documents and wanted to do an inspection in loco. He also wanted to consult
the police officers who were on the scene on the date of the collision . He went
to the road where the collision occurred, as pointed out to him by Constable
Abueng, and Sergeant Brooks. With the assistance of Constable Abueng and
Sergeant Brooks, they pointed out where the collision occurred, where the
plaintiff's Land Cruiser stopped after the collision, and where the insured
driver's truck and trailer were positioned thereafter. Mr Raphalalan i placed
cones of various colours on the road to reconstruct the positions of the truck and
trailer, and of the Land Cruiser after the collision. He took photographs of the
pointing out, using his cell phone.
[32] He told the court that , when he considered the plaintiff's affidavit
alongside the docket entries , he identified several discrepancies. He told the
court that after his investigations, he found that the collision occurred in a
60km/h zone, not an 80km/h zone as alleged by the plaintiff. He calculated the
distance from the top of the incline to the collision site. He informed the court
that, based on his investigations, the plaintiff collided with the insured driver's
truck and trailer approximately 800 meters after the plaintiff drove over the
incline. He told the court that at the top of the incline, you are at the highest
point of the road, and the rest of the road proceeding into the city of Vryburg is
at a lower level. When you are at the top of the incline , you have a clear view of
everything that is at the bottom without any obstructions . Mr Rap halalani told
the court that , in his opinion, the plaintiff would have seen the emergency
vehicles' lights from the top of the incline.
[33] Mr Raphalalane told the court that when he consulted with Sergeant
Brooks and Constable Abueng, they told him that on the morning of the
collision, there were three emergency vehicles at the scene of the motor vehicle
accident, with their lights on. A South African Police Services motor vehicle
with its blue lights on, the ambulance with its red lights on , and the third
emergency vehicle, the fire brigade, with its red lights on. Mr Raphalalalani told
the court that, in his opinion, the plaintiff would have seen the emergency lights
of the police, ambulance and fire brigade at the top of the incline because they
were at a lower level. He said that, given the time of the collision, the reduced
light made the emergency lights more visible than during the day. Mr
Raphalalani went on to tell the court that, in his opinion, the plaintiff had room
to slow down and bring his vehicle to a stop without colliding with the truck
and trailer , which was about 200 meters from the scene of the motor vehicle
accident.
[34] Mr Raphalalani further told the court that Constable Abueng had told him
that, after the collision, she saw the truck's lights were on and that the trailer had
a chevron at the back. He concluded that the merits of the collision were not in
favour of the plaintiff. He prepared a report for the defendant and recommended
that the plaintiff's claim be repudiated.
[35] Under cross -examination, Mr Raphalalani told the court that the
inspection in loco was held on 10 October 2023. It was pointed out to Mr
Raphalalani that Constable Abueng deposed to her statement regarding the
collision on 10 October 2023. He was asked if he told Constable Abueng what
to include in her statement. He replied that he did not instruct Constable Abueng
on what to include in her statement, but he did indicate to her that she should
include that the truck and trailer lights were on and that the trailer had a
chevron. Mr Raphalalani was asked if he had ever considered that the
information received from Constable Abueng and Sergeant Brooks could be
mistaken. The site of the collision to the motor vehicle accident was provided
by Constable Abueng and Sergeant Brooks. He replied that he relied on the
information of Constable Abueng and Sergeant Brooks because they had no
reason to mislead him.
[36] It was put to Mr Raphalalani that the plaintiff testified that he did not see
the truck and the trailer because its lights were off, and that he only saw it when
he was 10 meters away from the trailer. Mr Raphalalani replied that if the
plaintiff's Land Cruiser lights were on, he would have seen the chevron at the
back of the trailer and would have slowed down and avoided the trailer. Mr
Raphalalani conceded that he is not an accident reconstruction expert. It was put
to Mr Raphalalani that his conclus ions on where the collision occurred, the
point of impact between the Land Cruiser and the trailer of the truck, are his
own opinions. He agreed but stated that his opinion is based on facts received
from witnesses. It was put to Mr Raphalalani that the plaintiff and Mr du Plessis
testified that the collision occurred near the incline. He denied the correctness of
the plaintiff's and Mr du Plessis's version of where the collision occurred. Mr
Raphalalani told the court that it would not make sense for the p olice in the
sketch plan of the accident to include Factory Way; if the collision occurred far
from that road, they would have used the nearest point of reference.
[37] Under re -examination, Mr Raphalalani told the court that the phrase
‘multiple refers’ in the accident report means the motor vehicle is totalled and
that damage is everywhere. Mr Raphalalani conceded that there could be
mistakes on the accident report.
[38] The defendant then called Sergeant Brooks. His evidence was that he is
employed by the South African Police Services, and he holds the rank of
Sergeant. He is currently stationed at Vryburg detective services. On 23 October
2021, he was on patrol with Constable Abueng . They received a call from
Constables P hele and Mogokotleng for assistance regarding a motor vehicle
accident on the road. The accident occurred on the Schweizer –Reneke road at
the corner Victoria Avenue or Factory Way . Emergency services , including an
ambulance and the fire brigade, were at the scene of the motor vehicle accident .
Whilst he was at the scene of the motor vehicle accident, a person approached
him and said that a bakkie and a truck had collided. The site of the collision was
not very far from the site of the motor vehicle accident. He walked to the
collision scene; it took him about a minute . At the scene of the collision, he
found a Land Cruiser, the truck and the trailer. He observed that the Land
Cruiser on the left had side had collided with the right rear side of the trailer. He
was with Constable Abueng at the time. He was informed by a Fire and
Emergency employee about the collision.
[39] At the scene of the collision, he found the plaintiff in the Land Cruiser,
bleeding from his forehead. The plaintiff was alone in the Land Cruiser. The
truck driver was not injured. He returned to the motor vehicle accident scene
and asked the ambulance crew to assist the plaintiff. The ambulance service
crew arrived at the collision scene and transported the plaintiff to the hospital.
Sergeant Brooks identified the road on which the collision occurred in the same
way that the plaintiff did. It is a double road leading into the city of Vryburg
from Schweizer-Reneke, and a double road leading out of the city of Vryburg to
Schweizer–Reneke. He confirmed that he works on that road a lot . He is
familiar with the road because his office s are situated at the corner of Victoria
Avenue.
[40] The truck and trailer that the plaintiff collided with were among the
vehicles stopped by the police following the motor vehicle accident. He
confirmed that the speed limit at the site where the collision occurred is 60km/h.
In addition, he confirmed that there are no street lights at the collision site. He
confirmed that a docket had been opened, as is standard procedure when a
person is injured in a motor vehicle collision. He completed the accident report.
When faced with what Mr du Plessis told the court, that it would take 10
minutes to walk from the site of the motor vehicle accident to the site of the
collision site, he said he did not agree with Mr du Plessis. When told that the
plaintiff told the court the speed limit at the collision site is 80km/h, he insisted
it is 60km/h. Sergeant Brooks was shown the photographs that were taken by
Mr Raphalalani. He confirmed that he was present when they were taken and
that he was with Constable Abueng and assisted with the reconstruction of the
collision scene, using cones, which was conducted on the road on 10 October
2023 by Mr Raphalalani.
[41] Sergeant Brooks confirmed that there is an incline on the road, but that it
is a few hundred meters from the site of the motor vehicle accident. He
confirmed that from the incline, one can have a clear view of the motor vehicle
accident site . Sergeant Brooks confirmed that the lights of the truck were on
when he arrived at the scene of the collision. The insured driver showed him the
damage to the truck and trailer . The truck struggled to move due to damage to
the tyre. Sergeant Brooks confirmed that when he filled the accident report, he
indicated that it was a ‘side swipe’ and the damage to the Land Cruiser was
multiple damages. Sergeant Brooks denied that the collision occurred closer to
the incline and insisted that it occurre d near the site of the motor vehicle
accident.
[42] Under cross–examination, Sergeant Brooks said that it is standard
practice to make a statement when a person is injured as a result of a motor
vehicle collision. He made a statement on 23 October 2021. He testified that he
questioned the insured driver to obtain the insured driver's account of how the
collision occurred. He could not take the statement of the plaintiff because he
was bleeding profusely at the scene of the collision. At the hospital, he was told
that he could not see the plaintiff . He confirmed that Constable Abueng made a
statement for the investigator of the defendant, Mr Raphalalani.
[43] Sergeant Brooks testified that he marked the collision as a ‘side swipe’
because the damage to the truck and trailer was to the right side, the truck was
stationary, and the Land Cruiser was overtaking. When confronted with the
version of the plaintiff and that of the insured driver that it was not a ‘side
swipe’ collision but rather a ‘ rear-end collision’, he said that he did not have a
comment. Seargent Brooks confirmed that he did not measure the distance from
the site of the collision to the site o f the motor vehicle accident. He estimated
the distance to be between 100 and 150 meters. He confirmed that he heard the
collision but did not immediately go to the collision scene because he and his
colleagues were still assisting at the motor vehicle accident scene. He said he
was told about the collision after 2 minutes of hearing the sound. He said it took
about a minute to walk to the collision site. He confirmed that the truck's front
lights were on, but could not recall whether the trailer's lights were on or
whether the trailer had a chevron.
[44] Sergeant Brooks was shown photos of the scene reconstruction from
Index Bundle 4 – Rule 35(9), page 279. He confirmed that that is where the
collision occurred. He confirmed that the cones are placed 100 meters from
Victoria Avenue. He confirmed that on the date of the reconstruction, Mr
Raphalalani measured the distance between the collision site and the motor
vehicle accident site . When asked why he was certain that the site identified to
Mr Raphalalani was the site where the collision occurred, he s aid he had lived
his entire life in Vryburg and was familiar with the area where the collision and
the motor vehicle accident occurred. It was put to Sergeant Brooks that the
plaintiff and Mr du Plessis testified that the collision occurred closer to the
further tree depicted on page 279 of Index Bundle 4 – Rule 35(9). Sergeant
Brooks told the court that the tree is closer to the incline and that is not where
the collision occurred.
[45] Sergeant Brooks was referred to his statement he made on 23 October
2021. It was pointed out that in paragraph 6 of the statement, he stated that he
did not give anyone permission to drive recklessly or negligently. He requests a
further police investigation into the matter. He was asked whether he had any
input on the further investigation and replied that he did not. He said because an
injury resulted from the collision, both drivers are considered suspects.
[46] The defendant then called Constable Abueng. Constable Abueng told the
court that she is a member of the South African Police Service. On 23 October
2021, she was with Sergeant Brooks. They were assisting on the road with a
motor vehicle accident when Sergeant Brooks told her of the collision. Sergeant
Brooks told her that he had been told about the collision by another person. She
walked to the site of the collision with Sergeant Brooks. On arrival , she found
the truck with its lights and hazards on. The Land Cruiser was on the side of
oncoming traffic. The truck driver told her the Land Cruiser had crashed into
the truck and trailer. The truck was sta tionary at the time of the collision. She
observed that the plaintiff was alone in the Land Cruiser. The truck driver
showed her the damage to the truck and trailer. Constable Abueng told the court
she observed a chevron at the back of the trailer. She said she would describe
the collision as a ‘side swipe’.
[47] Constable Abueng told the court that she was not in a position to state the
distance between the motor vehicle accident site and the collision site, but that it
is within walking distance. She estimated it to be within 1 minute of each other.
Constable Abueng told the court that this was not the first time she had been on
that road; she was very familiar with it. She confirmed that a police vehicle and
an ambulance were at the scene of the motor vehicle accident. She confirmed
that you could see the em ergency lights of the police vehicle and ambulance
from far off. She confirmed that a docket was opened for the collision. Sergeant
Brooks made a statement regarding the collision. She did not make a statement.
She made a statement after being asked by Mr Raphalalani. Constable Abueng
confirmed that she and Sergeant Brooks assisted Mr Raphalalani in recreating
the collision scene.
[48] Constable Abueng was shown the photos taken by Mr Raphalalani of the
recreation of the collision scene at page 7 of the defendant's Index – Merits. She
confirmed that the collision occurred at that location . On the second picture on
page 7 of the defendant’s Index – Merits, she confirmed that the two people in
the picture are herself and Sergeant Brooks. Constable Abueng was informed
that the plaintiff testified that the collision occurred near the incline. She denied
this and insisted that it occurred near the site of the motor vehicle accident,
which is far from the incline.
[49] Under cross -examination. It was put to Constable Abueng that she was
influenced to depose to the statement she made on 10 October 2023. She denied
this and insisted that Mr Raphalalani had requested that she make a statement
regarding her observation on 23 October 2021. She denied having been told
what to include in her statement. Constable Abueng was asked , given that a
period of over two years had elapsed since the collision and since she wrote her
statement, could she have forgotten some of the facts reg arding the collision .
She replied that she had been asked to make a short statement and had not
forgotten. She confirmed that the front and the rear lights of the truck and trailer
were on, including the right back lights.
[50] It was put to Constable Abueng that the point of impact with the trailer
was the right back. Constable Abueng maintained that the point of impact was
the corner of the right rear of the trailer, and the Land Cruiser then bumped the
right side of the trailer and the truck. She was asked whether the truck's back
lights were on the corners or sides of the truck. She replied by saying she could
not recall. Constable Abueng was asked about the photographs at Index Bundle
4 – Rule 35(9). She pointed out the site of the collision in the photographs.
Constable Abueng insisted that she was sure about the site because of the site of
the motor vehicle accident and the buildings in the photographs. Constable
Abueng was asked about the tree that the plaintiff and Mr du Plessis had
indicated that the collision occurred near it. She denied this, including what was
put to her that the collision occurred before the 60km/h sign. The defendant
then closed its case.
Legal Principles
[51] It is trite that the onus rests on the plaintiff to prove the defendant’s
negligence, which caused the damages suffered, on a balance of probabilities. It
is further trite that every driver bears a duty of care towards other motorists to
keep a proper lookout and to take reasonable steps to avoid a collision. In
Kruger v Coetzee 4 Holmes JA , writing for the court, said that the issue of
negligence involves a twofold inquiry. The first question is whether the harm
was reasonably foreseeable. The second question is whether a diligens
paterfamilias would take reasonable steps to guard against such an occurrence,
and whether the defendant failed to do so. The second inquiry is often referred
to as ‘duty’.
[52] On the issue of duty, i t is a further trite principle that a driver of a motor
vehicle has a duty to remain alert, to continuously scan the road ahead for
obstructions or potential obstructions. In Nogude v Union and South -West
Africa Insurance Co Ltd 5(Nogude), Jansen JA writing for the court said the
following:
‘A proper look -out entails a continuous scanning of the road ahead, from side to side, for
obstructions or potential obstructions (sometimes called "a general look -out": cf. Rondalia
Assurance Corporation of SA Ltd . v Page and Others , 1975 (1) SA 708 (AD) at pp. 718H -
719B). It means -
4 1966 (2) SA 428 (A) at 430E – F
5 1975(3) SA 685 (A)
"more than looking straight ahead - it includes an awareness of what is happening in
one's immediate vicinity. He (the driver) should have a view of the whole road from
side to side and in the case of a road passing through a built-up area, of the pavements
on the side of the road as well".’6
[53] Equally on the issue of duty, in Road Accident Fund v Grobler 7 Hancke
AJA writing for the majority said that w hen a person is confronted with a
sudden emergency not of his own doing, it is, wrong to examine meticulously
the options taken by him to avoid the accident, in the light of after -acquired
knowledge, and to hold that because he took the wrong option, he was
negligent. The test is whether the conduct of the respondent fell short of what a
reasonable person would have done in the same circumstances.
[54] In Manderson v Century Insurance Co Ltd8 (Manderson) Van den Heever
JA, writing for the court, said the following:
‘To my mind a man who travels in the dark at a speed which, because of the condition of the
road or for some other reason, does not enable him to pull up within the range of his vision, is
prima facie guilty of negligence. In doing so he accepts risks of injury to others which he is
not entitled to take, for he is prepared to drive a potentially dangerous thing over a part of the
road which he has not surveyed with his eyes - in other words blindly.’
[55] In Mthethwa v Shield Insurance.9 The court held that the question of
whether a driver of a motor vehicle who collides with an unlit, slow -moving, or
stationary object in the dark is, in fact, negligent is closely related to whether
the driver could have seen the object in time. If the object was not timeously
visible, and the driver of the vehicle who collides with the object exercised all
6 Nogude at page 688A
7 (96/06) [2007] ZASCA 78; [2007] SCA 78 (RSA) ; 2007 (6) SA 230 (SCA) (31 May 2007) para 12
8 1951 (1) SA 533 (A)
9 1980 (2) SA 954 (A)
reasonable steps, i.e., had the lights of his vehicle on, and the driver of the
motor vehicle had no reason to anticipate the presence of an unlit, slow-moving,
or stationary object on the road at that time, the driver will not be negligent.
[56] Where there are two irreconcilable versions before the court, the test to be
applied in resolving factual disputes has been set out in Stellenbosch Farmers'
Winery Group Ltd. and Another v Martell & Cie SA and Others 10 at paragraph 5
as follows.
‘The technique generally employed by courts in resolving factual disputes ………may
conveniently be summarised as follows. To come to a conclusion on the disputed issues a
court must make findings on (a) the credibility of the various factual witnesses; (b) their
reliability; and (c) the probabilities. As to (a), the court’s finding on the credibility of a
particular witness will depend on its impression about the veracity of the witness. That in turn
will depend on a variety of subsidiary factors, not necessarily in order of importance, such as
(i) the witness’s candour and demeanour in the witness -box, (ii) his bias, latent and blatant,
(iii) internal contradictions in his evidence, (iv) external contradictions with what was
pleaded or put on his behalf, or with established fact or with his own extracurial statements or
actions, (v) the probability or improbability of particular aspects of his version, (vi) the
calibre and cogency of his performance compared to that of other witnesses testifying about
the same incident or events. As to (b), a witness’s reliability will depend, apart from the
factors mentioned under (a)(ii), (iv) and (v) above, on (i) the opportunities he had to
experience or observe the event in question and (ii) the quality, integrity and independence of
his recall thereof. As to (c), this necessitates an analysis and evaluation of the probability or
improbability of each party’s version on each of the disputed issues. In the light of its
improbability of each party’s version on each of the disputed issues. In the light of its
assessment of (a), (b) and (c) the court will then, as a final step, determine whether the party
burdened with the onus of proof has succeeded in discharging it. The hard case, which will
doubtless be the rare one, occurs when a court’s credibility findings compel it in one direction
and its evaluation of the general probabilities in another. The more convincing the former, the
less convincing will be the latter. But when all factors are equipoised probabilities prevail.’
10 (427/01) [2002] ZASCA 98; 2003 (1) SA 11 (SCA) (6 September 2002)
Analysis
[57] It is submitted in the plaintiff’s written submissions that the defendant did
not plead that the plaintiff failed to keep a proper lookout and, as a result,
contributed to or caused the collision. It was further submitted in the written
submissions of the plaintiff that, notwithstanding this omission, the case of the
defendant implicitly relies on this very allegation. The defendant relies on the
insured vehicle’s lights and hazards being on , suggesting that the plaintiff failed
to maintain a proper lo okout. It is submitted that the defendant cannot rely on
unpleaded allegations to advance its case and that the defendant should be
confined to the grounds of negligence expressly set out in its plea, and no
reliance can be placed on any argument or evidence outside those pleaded
allegations.
[58] It would be apt to quote the plea of the defendant at paragraphs 5.2, 5.2.1,
5.2.2, 5.2.3, 5.2.4, 5.2.5 and 5.2.6. The plea of the defendant reads as follows:
‘5.2 In the event the above Honourable Court finding that the insured driver was negligent,
which is still denied, then in that event the Defendant denies that the said negligence
caused and/or contributed to the collision aforesaid and the Defendant specifically
avers that the Plaintiff contributed to the negligence in one or more or all of the
following aspects: -
5.2.1 He failed to have due regard to the road sign and rules of the road.
5.2.2 He drove his motor vehicle at an excessive speed in a build-up area.
5.2.3 He failed to have due regard to other road users.
5.2.4 He failed to apply the brakes of his motor vehicle at a dangerous place in the
circumstances.
5.2.5 He failed to keep his motor vehicle under proper control and care.
5.2.6 He failed to avoid the occurrence of the collision.’
[59] I have considered paragraph 5.2.3 of the defendant’s plea in particular.
The word ‘due’, in the Dictionary of Legal Words and Phrases 11, is defined as
that which is owing and has matured. The words ‘have regard to’ in their
ordinary meaning simply mean ‘bear in mind’ or ‘do not overlook’. 12 The words
‘due regard’ simply mean giving appropriate attention, care, or consideration to
something, and taking factors, rules, or people’s rights into account when
making a decision or taking action. As stated above, every driver bears a duty of
care towards other motorists to keep a proper lookout and to take reasonable
steps to avoid a collision. When taking reasonable steps to avoid a collision, the
driver is expected to keep a proper lookout. The defendant may not have
pleaded that the plaintiff failed to keep a proper lookout, but from the reading of
paragraphs 5.2, 5.2.1, 5.2.2, 5.2.3, 5.2.4, 5.2 .5, and 5.2.6, the allegations
pleaded therein, either in part or in total, are synonymous with the words
‘failure to keep a proper look out’.
[60] I am accordingly not persuaded that the case of the defendant should be
confined as submitted in the written submissions of the plaintiff . In my view,
the defendant has pleaded that the plaintiff failed to keep a proper lookout and,
as a result, contributed to or caused the collision.
11 Volume 1 A-D, at page 441
12 Joffin and Another v Commissioner of Child Welfare, Springs, and Another - 1964 (2) SA 506 (T) at page
508F
[61] The location of the collision and whether the truck and trailer's lights and
hazards were on before the collision are hotly disputed issues between the
plaintiff, the plaintiff's witness, t he insured driver, and the defendant's factual
witnesses. The plaintiff and his witness, Mr du Plessis , contend that the
collision occurred near the incline, whereas the insured driver and the factual
witnesses for the defendant contend that the collision occurred further away
from the incline. The plaintiff contends that the lights and the hazards of the
truck and trailer were not on , whereas the insured driver contends that the lights
and hazards of the truck and trailer were on before the collision. Sergeant
Brooks contends that the truck and trailer's lights were on, and Constable
Abueng contends that the truck and trailer's lights and hazards were on; they did
not see the truck and trailer before the collision.
[62] The plaintiff appeared to me to be comfortable in the witness box; he
recollected the events of the morning in question, the best he could. He was, in
my view, honest in conceding what he did and did not see on the dark morning
of the collision . It is in my view obvious that the plaintiff had a bias for this
Court to accept his version and reject the version of the defendant . If this Court
finds that the truck and trailer lights and hazards were off, it would mean the
insured driver was negligent, and that the collision occurred as a result of his
negligence. If this Court finds that the collision occurred near the incline, it
would equally suit the case of the plaintiff as compared to if this Court finding
that the collision occurred away from the incline and near the site of the motor
vehicle accident, because the question would inevitably be of the plaintiff to
explain why he did not see the lights of the emergency vehicles at the site of the
motor vehicle accident and the lights of the motor vehicles which were lined u p
in front of the truck.
[63] The plaintiff testified that , at the top of the hill, he drove for about 100
meters before colliding with the trailer. I understood the plaintiff's evidence to
be that, at the top of the hill, the road descends for about 100 meters before
levelling, and that is where he alleges that he collided with the trailer . The
plaintiff was adamant that, as he was coming over the incline, he did not see the
lights of the emergency vehicles or the lights of the motor vehicles that were
lined up in front of the tru ck. This does not mean the lights of the vehicles in
front of the truck and trailer were not on, or that the emergency vehicles' lights
were not on. Mr du Plessis, the witness for the plaintiff, confirmed that the
lights of the emergency vehicles and the vehicles lined up in front of the truck
were on. This was later confirmed by Sergeant Brooks and Constable Abueng .
The insured driver, who testified that, as he was descending the incline, he saw
the emergency vehicles' lights , confirms that the emergency vehicles' lights
were on at the scene of the motor vehicle accident. Considering the timing of
the motor vehicle accident and the collision, the probabilities lean in favour of
the emergency vehicles' lights being on.
[64] The plaintiff's version is that he was driving with his vehicle's lights on
and, as he was driving up the incline, had no visibility while going over it. In
my view, a reasonable driver, lacking visibility while going over an incline and
unaware of what lay on the other side, would have kept his motor vehicle's high
beam lights on and would not have driven at a high speed. No evidence was led
by the plaintiff given the adverse lighting conditions on the day of the collision,
whether he was driving on a dark road with the Land Cruiser's high beams on or
with the lights dimmed. The insured driver and Constable Abueng testified that
the truck's trailer had a chevron. When asked about the chevron, the plaintiff
the truck's trailer had a chevron. When asked about the chevron, the plaintiff
said he did not see it. A reflective tape chevron reflects light when illuminated.
It is improbable that the plaintiff could not have seen the chevron if he was
driving with the lights of the Land Cruiser on, unless the plaintiff was distracted
or his view was obstructed. The plaintiff did not present evidence that his view
of the road ahead was obstructed, thereby preventing him from seeing the
chevron. From the plaintiff's evidence, it remains a mystery why he did not see
the chevron on the back of the truck's trailer.
[65] In my view, the plaintiff, at the top of the hill in his Land Cruiser
descending the incline, would have had an open, and unobstructed view of the
road ahead, including the lower level where the motor vehicle accident
occurred. The plaintiff should have seen the lights of the emergency vehicles as
he was descending the incline. There was no explanation as to what could have
obstructed the plaintiff's view of the lower level of the road when the plaintiff’s
Land Cruiser was at the top of the hill.
[66] Mr du Plessis appeared to me to be comfortable in the witness box. He
did not see the collision or the truck and trailer before the collision. He gave no
evidence as to the condition of the truck and trailer after the collision. W hen
comparing his evidence with that of the insured driver, Sergeant Brooks and
Constable Abueng, it appears he exaggerated the number of vehicles lined up on
the day of the collision. He was adamant that the collision occurred near the
incline. When his evidence is compared w ith that of Sergeant Brooks and
Constable Abueng regarding the distance between the motor vehicle accident
site and the collision site, it appears he exaggerated the distance when he said it
would take 10 minutes to walk between the two sites . When this Court
considers that when the collision occurred, Mr du Plessis said he heard the big
crash, it is probable that the site of the motor vehicle accident and the site of the
collision were not far from each other. My belief on this issue is fortified by the
evidence of Sergeant Brooks and Constable Abueng , who se evidence is
uncontested in stating that it took them 1 minute to walk from the motor vehicle
accident scene to the collision scene. Mr du Plessis is the plaintiff's childhood
friend, and in my view, there is a risk of bias in favour of the plaintiff's case.
[67] The insured driver appeared to this Court to be comfortable in the witness
box. He did not exaggerate his evidence, withstood a lengthy cross -
examination, and impressed this Court . The insured driver, in my view, had
nothing to gain from misleading the court as to the status of the lights and
hazards of the truck and trailer on the day of the collision. It is not the insured
driver against whom action had been instituted. He maintained throughout that
the truck and trailer lights and hazards were on before and after the collision. He
had a proper opportunity to observe where the collision occurred and even
referred to the concrete sewer cover as a point of reference. His evidence that he
could see the motor vehicle accident s ite and the lights of the emergency
vehicles while descending the incline is probable; the point at which the incline
descends is higher on the road than the point where the motor vehicle accident
occurred. He would have had a clear and unobstructed view of the road ahead
and the site of the motor vehicle accident. His evidence that he switched on his
hazards to warn motorists following the truck and trailer of the accident ahead is
probable.
[68] Sergeant Brooks was comfortable in the witness box. His evidence is
limited to what he observed after the collision . Stripped of the controversies
highlighted by counsel for the plaintiff in his written submissions , Sergeant
Brooks, in his affidavit, did not make any reference to any lights, hazard
indicators, or reflective markings being visible on the insured vehicle . In my
view, Sergeant Brooks would gain nothing from misleading this Court that the
lights of the truck were on when he arrived at the scene of the collision and the
site where the collision occurred.
[69] Constable Abueng was the last factual witness for the defendant. Equally,
her evidence was limited to what she observed after the collision. Constable
Abueng seemed a bit uncomfortable in the witness box, especially under cross-
examination, but she impressed me as a witness. She was honest with th is Court
in admitting that she had discussed the events of the collision with Sergeant
Brooks before she made her statement as to the events of the day of the collision
and that Sergeant Brooks had assisted in refreshing her memory . Constable
Abueng would gain nothing from misleading the court about the status of the
truck and trailer's lights and hazards on the morning of the collision , that the
trailer had a chevron, and the location of the collision site . Her evidence is that
the truck and trailer lights and hazards were on, both in the front and the back,
and that the trailer had a chevron.
[70] Counsel for the plaintiff submitted in his written submissions that the
evidence of Constable Abueng stands in direct contradiction to the evidence of
Mr Raphalalani as Mr Raphalalani had testified that he had informed Constable
Abueng of the information he required to be included in her statement, but she
had insisted that Mr Raphalalani had not dictated what should be contained in
her statement. In my view, counsel for the plaintiff is conflating issues. The
evidence of Mr Raphalalani was that Constable A bueng told him what she
observed on the truck and trailer at the s cene of the collision. I did not
understand Mr Raphalalani's evidence to be that he fabricated information and
told Constable Abueng to say that she had seen the lights, hazards and chevron
on the truck and trailer on the day of the collision. I understood his evidence to
be that he told Constable Abueng to include the information that she had seen
the lights and hazards of the truck and trailer were on when she examined the
front and rear of the truck and trailer . This was information Constable Abueng
gave to Mr Raphalalani and not the other way around.
[71] I have further considered the ‘Warning Statement’ of the insured driver ,
which was made on 23 October 2021, against the statement of Constable
Abueng, which was made on 10 October 2023, 2 years after the collision, and
the statement of Sergeant Brooks, which was made on 23 October 2021, the day
of the collision. I noted that the insured driver and Sergeant Brooks made no
mention of the chevron in their respective statements; it was first mentioned in
Constable Abueng's statement . If, as counsel for th e plaintiff contends, the
statement of Constable Abueng is based on what Mr Raphalalani and Sergeant
Brook told her, and her statement and evidence are not reliable. Where did the
information about the chevron come from? I am accordingly satisfied that the
assistance of Sergeant Brooks in refreshing the memory of Constable Abueng
about the events of the date of the collision did not result in the contents of the
statement of Constable Abueng and her evidence being unreliable . The
contention that her evidence in this Court should be rejected in its entirety , as
sought by counsel for the plaintiff, is without merit, and I decline the invitation
to reject the evidence of Constable Abueng.
[73] Counsel for the plaintiff submitted in his written submissions that
Sergeant Brooks and Constable Abueng did not leave the motor vehicle
accident scene immediately upon hearing the crash; they left after 2 minutes,
and it took them 1 minute to reach the collision site. It is contended that this
period afforded sufficient time for the insured driver to have switched on the
truck's lights after the collision. There is no merit in this submission; it is
speculative at best and not supported by the facts. The plaintiff said nothing
about the truck's lights after the collision. He said he saw the lights of the other
vehicles that they were on and the emergency vehicles. But surprisingly did not
see that the red lights of the ambulance and fire brigade were on and that the
blue lights of the police vehicles were on. It is not for this Court to speculate on
why the plaintiff was not able to see that the emergency lights of the emergency
vehicles were on.
[74] Having considered the version of the plaintiff and his witness, and the
version of the insured driver and the witnesses of the defendant, the
probabilities lean in favour of the insured driver having stopped the truck and
trailer with the lights on, and the hazards of the truck and trailer on. The
plaintiff, by his own words, did not see the chevron on the truck's trailer. The
probabilities are in favour of the plaintiff not having seen the lights and hazards
of the truck and trailer. I have arrived at this conclusion because he not only did
not see the chevron on the back of the trailer, but also did not see the emergency
lights of the emergency vehicles, the lights of the motor vehicles that were lined
up in front of the truck when the Land Cruiser was at the top of the incline and
descending.
[75] The probabilities are in favour of the defendant that the collision occurred
near the site of the motor vehicle accident. This is because it took Sergeant
Brooks and Constable Abueng 1 minute to walk from the motor vehicle
accident site to the collision site. This suggests the two sites were close to each
other. According to Mr Raphalalani's measurements from the incline to the site
of the motor vehicle accident, it is 1 kilometre. This issue was not vigorously
challenged on cross -examination. Mr Raphalala ni estimated the distance from
the site of the motor vehicle accident to the site of the collision to be 200
metres. It is not in dispute that the motor vehicle accident occurred on the
Schweizer-Reneke road at the corner of Victoria Avenue or Factory Way Street.
I have further considered that Mr Raphalalani's calculations are based on the
pointing out by Sergeant Brooks and Constable Abueng. I agree with what Mr
Raphalalani said, that he had no reason to doubt the information from Sergeant
Brooks and Constable Abueng on the site of the motor vehicle accident and the
site of the collision.
[76] Counsel for the plaintiff, in his written submissions, referred this Court to
paragraphs 34, its subparagraphs, and paragraphs 35 to 36 and 73 to 75 of the
unreported decision of Gutta J in Sebate v Road Accident Fund13 (Sebate), and
the decisions referred to therein by the Honourable Judge, as she then was. I am
of the view that the facts of this case are distinguishable from the cases referred
to in Sebate. The decisions refer to unlit obstructions at night. In the case before
this Court, the chevron, the truck's lights and hazards, the lights of the motor
vehicles lined up in front of the truck and the presence of emergency vehicles
with their emergency lights down the incline at the scene of the motor vehicle
accident, would have provided a source of illumination for any driver coming
over the incline. In the circumstances, I can hardly describe the insured driver's
truck and trailer as an inconspicuous obstruction in the dark.
[77] The plaintiff's evidence is that he was driving at 70km/h before the
collision. When the evidence of the insured driver is considered against that of
the plaintiff, as it relates to the damage to the truck and the trailer and the
damage to the Land Cruiser, common sense suggests that the Land Cruiser must
have been travelling at a considerable speed given the damage to the trailer and
the truck was on the right back side of the trailer, the landing legs were
damaged on the right, and that the back of the truck was damaged on the right.
13 Northwest High Court, Mafikeng case no 62/2009 delivered on 8 December 2011
[78] Having considered the facts above, I find that the plaintiff ought to have
reasonably foreseen that in the event of an emergency such as he found himself
in, he would not be able to bring the Land Cruiser to a standstill or manoeuvre
the Land Cruiser into a safe and swift swerve so as to avoid harming other road
users. He ought to have reduced the speed of the Land Cruiser, given that he
had no visibility while going over the incline and did not know what lay on the
other side of the incline. He ought to have reduced his speed , given the warning
signs and the lights of the emergency vehicles I have referred to above. I am
satisfied that the insured driver took the necessary steps that a reasonable driver
ought to have taken in the circumstances. Accordingly, I have concluded that
had the plaintiff kept a proper lookout, he would have seen the trailer and the
truck ahead and avoided the collision. It follows axiomatically that the
plaintiff’s claim must fail.
Costs
[79] It is a trite principle in our jurisprudence that costs follow the cause, and I
have not found any reason to deviate from this principle. The purpose of an
award of costs is to indemnify a successful party who has incurred expenses in
instituting or defending an action .14 In considering the appropriate scale of
costs, I have taken into account that the trial in this matter was lengthy but not
complex. It was of importance to the defendant.
Order
[80] Resultantly, the following order is made.
14Texas Co (SA) Ltd v Cape Town Municipality 1926 AD 467 at 488
1. Plaintiffs' claim is dismissed with costs on a party and party scale,
scale ‘B’.
_______________________
T MASIKE
ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION, MAHIKENG
APPEARANCES
For the applicants: Adv J J Marais
Instructed by: Honey Attorneys
c/o Labuschagne Attorneys
For the first respondents: Mr M D Mohale
Instructed by: The State Attorney
Mahikeng