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Strocam Mining Supplies (Pty) Ltd v Correia (A979/2006) [2007] ZAGPHC 179 (5 September 2007)

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IN THE HIGH COURT OF SOUTH AFRICA /ES

(TRANSVAAL PROVINCIAL DIVISION)

CASE NO: A979/2006

DATE: 5/9/2007

NOT REPORTABLE




IN THE MATTER BETWEEN

STROCAM MINING SUPPLIES (PTY) LTD APPELLANT

AND

A CORREIA RESPONDENT


JUDGMENT

MYNHARDT, J

INTRODUCTION

[1] The appellant was the plaintiff in the court a quo and the respondent was the defendant.


The appellant instituted action against the respondent for payment of an amount of R115 598,02 as and for damages allegedly suffered by it arising from a collision which occurred on 12 September 2002 in which its truck was damaged. The appellant's claim, as set out in its particulars of claim, was that its vehicle, a Mercedes Benz mechanical horse, or truck, was damaged in the aforesaid collision which occurred on the N1 South freeway between Pretoria and Johannesburg. The cause of the accident, so it was alleged, was the negligence of the driver of the respondent's vehicle, or truck. The respects in which that driver was negligent were set out in the particulars of claim.


The respondent denied, in his plea, that the driver of his truck was negligent. In the alternative to that it was pleaded that the driver of the plaintiff's truck was also negligent in the respects set out in the plea.


[2] The respondent also instituted a counter claim for payment of an amount of R25 244,34 as and for damages allegedly suffered by him as a result of the damage done to his truck in the aforesaid collision. The respondent alleged that the sole cause of the collision was the negligence of the driver of appellant's truck who was negligent in the respects set out in the counter claim.


In its plea to the counter claim the appellant denied that the driver of its truck was negligent.


[3] At the commencement of the trial before RANCHOD, AJ the parties requested the court to order that the issues be separated and that the trial proceed only on the so called merits and that the issues relating to the quantum of damages stand over for later adjudication, if necessary.


The trial judge acceded to the request and made such a ruling in terms of rule 33(4) of the Uniform Rules of Court.


The only issue to be adjudicated by the trial judge was, therefore, the issue of negligence of the respective drivers.


[4] At the conclusion of the trial the trial judge found that the probabilities favoured the version of the driver of respondent's truck. He also found that the driver of appellant's vehicle was at fault. An order of absolution from the instance with costs was therefore made in respect of appellant's claim. The respondent's counter claim was upheld with costs.


[5] The appellant's appeal to this court lies with the leave of the trial judge.


0n behalf of the appellant its counsel submitted that the appellant's claim ought to have succeeded with costs and that the counter-claim ought to have been dismissed with costs.


Counsel for the respondent submitted that the judgment and orders of the court a quo were correct and that the appeal ought, therefore, to be dismissed with costs.


THE APPELLANT'S CASE IN THE COURT A QUO

[6] Two witnesses testified on behalf of the appellant. They were, firstly, the driver of the appellant's truck, Mr Anthony Stotter ("Anthony") and, secondly, his brother, Mr Wayne Stotter ("Wayne") who was a passenger in the truck on the day in question. A number of photographs were also introduced through these witnesses. Those photographs depicted the damage that was done to the appellant's truck and to the respondent's truck.


A document described as an "0fficer's Accident Report" was also introduced through the evidence of these two witnesses. This document did not, in fact, play any meaningful role in the case and for purposes of the appeal it can be disregarded. I, in any event, have my doubts about the fact whether it was admissible at the trial. I shall, therefore, disregard the document.


[7] The version put before the trial court by these two witnesses can be broadly summarised as follows.


0n the day in question, during the afternoon, Anthony and Wayne were on their way to Johannesburg on the N1 freeway. For purposes hereof it can be accepted that their truck was driving, roughly speaking, in a southerly direction. Anthony was the driver and Wayne was a passenger in the truck.


The truck as such was a mechanical horse weighing approximately 9 tons. It towed two trailers each of which weighed approximately 5,7 tons. The combined weight of the combination was approximately 20 tons. The trailers were empty, they were not loaded.


In the vicinity of the 0lifantsfontein on ramp, or off ramp, which is to the north of the scene of the collision, Anthony encountered slow moving trucks against the incline going uphill. These vehicles were in the slow lane or the extreme left hand lane of the freeway. The road has three lanes for traffic travelling in a southerly direction. These were the left hand lane, or slow lane, the middle lane and the fast lane, or right hand lane.


Anthony moved over to the middle lane and continued in that lane. He travelled in that lane for approximately two kilometres towards the point where another road joined the freeway from the eastern side and where there is also a bridge across the freeway housing, inter alia, a restaurant. This area is known as New Road and the New Road Bridge.


In the area of New Road the freeway flattens out into a plateau. 0n the southern side of the New Road Bridge there is a decline and the road slopes towards another on  and off ramp which is known as Allandale Road. Some distance further on is a bridge where the freeway crosses a river.


As they approached New Road they saw a green Mercedes Benz truck entering the freeway on the New Road on ramp. It is common cause between the parties that this truck was the respondent's truck. The parties, however, differ on the question whether or not this truck entered the freeway at this point.


The green truck entered the slow lane of the freeway, then went over to the middle lane and from there to the fast lane.


At that point in time there were many vehicles on the freeway and the road was busy.


After they had passed underneath the New Road Bridge and as they came to the beginning of the decline towards Allandale Road, they saw that there was an accident on the freeway in the vicinity of the bridge over the river. They had to reduce their speed because the traffic slowed down and started to build up backwards from where the accident had occurred near the bridge.


Their truck was still travelling in the middle lane at that stage. All of a sudden the green Mercedes truck, which was still travelling in the fast lane, and which was virtually next to their truck, but ahead of them, moved across towards the middle lane and entered the middle lane. Anthony could not swerve to his left because there was a vehicle in the slow lane on his left hand side. He applied the brakes of his truck to avoid a collision with the green truck, the respondent's truck, but did not succeed in doing so. In applying the brakes Anthony also had to consider not to brake too sharply because the combination he was driving might "jackknife" ie the weight and momentum of the trailers might cause the horse to turn around in the direction from which it was coming. That was a very dangerous manoevre and might cause the horse and trailers to roll over which would result in serious injuries being caused to other road users or even death.


The right front part of the mechanical horse came into contact with the left rear corner of the respondent's truck. The latter truck was pushed forward, turned slightly to the right into the fast lane and then veered across the freeway to the left until it came to a standstill in the emergency lane on the left, or eastern, side of the freeway at a point approximately 140 or 160 metres from the point of impact.


The mechanical horse was damaged to such an extent that it could not, by itself, move out of the road. It had to be towed away. It came to a standstill in the middle lane. There were "skid marks" on the road that were made by the truck.


The respondent's truck is smaller than the appellant's truck. It weighs approximately 7 tons. Its load bin is attached to the cab and it is therefore a truck in the true sense of the word. It is also a much older model than that of the appellant's. Its load bin was furthermore enclosed on all sides; it was fitted with what could be described as a canopy, but at the rear it was enclosed with two steel gates which consisted of a steel framework and horizontal steel bars with openings between the bars. The truck was also empty that day; it carried no load. All of this is really common cause between the parties.


THE RESPONDENT'S CASE IN THE COURT A QUO

[8] 0n behalf of the respondent two witnesses testified. They were the respondent himself and the driver of the truck, Mr Albin Tshrinza ("Tshrinza").


The version of the driver can be broadly summarised as follows.


0n the day in question he was travelling on the freeway on his way to Heidelberg to collect a load. He was alone in the truck. In the vicinity of the 0lifantsfontein off ramp there was a stationery truck in the slow lane. He passed that truck in the middle lane. After having travelled in the middle lane going uphill for some distance, he decided to continue in the slow lane. He could not return to the slow lane because vehicles overtook him in that lane and he did not get a chance to return to that lane. He therefore decided to continue his journey in the middle lane.


After he had passed the New Road Bridge and had began to travel downhill towards Allandale Road he saw that the traffic ahead of him was braking and reducing speed. He also reduced speed; he changed down to a lower gear and applied brakes. He would have been able to stop without colliding with any vehicle ahead of him. He was still travelling in the middle lane.


All of a sudden he heard a loud bang from behind him. He did not know what had caused this. He had not seen the appellant's truck behind him.


His truck was pushed forward. He lost control of it for a short while. It moved to the fast lane. He managed to regain control thereof and steered it back to the middle lane and then across the slow lane until he came to a standstill in the emergency lane on the side of the road.


In regard to the evidence that he earlier did "lane hopping" he denied that he did so. According to him it was not possible to have done that on the day in question because of the heavy traffic on the road and the fact that one could not perform quick manoevres with such a big slow vehicle as the truck that he drove on that day. This latter part of his evidence was corroborated by the respondent himself who also testified that the truck was otherwise in good mechanical condition although it was an old truck; a 1986/9 model.


The driver, of course, also denied that he had entered the freeway at New Road.


THE JUDGMENT OF THE COURT A QUO

[9] The trial judge approached the matter on the basis that he was confronted with two mutually destructive versions. That is why, according to him, the probabilities played such an important role.


He was not impressed with the evidence of Anthony and Wayne that immediately before the impact the right front corner of the appellant's truck was alongside the left rear corner of the respondent's truck. The latter truck was not damaged on its left side, the trial judge said. It was damaged at the rear. That, according to the trial judge, contradicts the evidence of the Stotter brothers and it had to be rejected.


The probabilities are also against the Stotter brothers that Tshrinza did "lane hopping" after he had entered the freeway, said the trial judge. The learned acting judge therefore seemingly accepted the latter's evidence that he was travelling on the freeway at least from the 0lifantsfontein area and that he continued travelling in the middle lane for the whole distance up to the point where the collision occurred.


In coming to this conclusion the trial judge found that the distance from where New Road joins the freeway to where the freeway starts to descend to Allandale Road, is less than 500 metres and that fact makes it improbable that Tshrinza would have been able to do "lane hopping" as was testified by the Stotter brothers.


In regard to how the accident occurred the trial judge found that as the appellant's truck had collided with the respondent's truck from the rear, the inference is "that the driver of the vehicle at the rear was at fault". 0n that basis it was found that the appellant had failed to prove its case on a balance of probabilities and, consequently, "its claim must fail". 0n the same basis it was found that the respondent had succeeded in proving his claim.


DISCUSSION AND EVALUATION

[10] At the outset I would like to deal with the following matters:

10.1 The trial judge was of the view, and seemingly found, that it was less than 500 metres from where the New Road on ramp joins the freeway to where the descent starts towards Allandale Road.


There is, however, no evidence to support that view, or finding. 0n the available evidence the trial judge himself could also not have calculated that distance.


In this respect the trial judge therefore erred and made a factual mistake.


10.2 The aforesaid view, or finding, led the trial judge to find that it was improbable that respondent's driver would have been able to do "lane hopping" as the Stotter brothers testified, "within a short distance of much less than 500 metres". In contrast to that, the learned trial judge found, the evidence of the respondent's driver seems "far more probable".


0nce the trial judge had mistakenly found that that critical distance was less than 500 metres, the foundation on which his further findings were based formed no platform for those findings. I cannot, therefore, agree with those findings of the trial judge.


10.3 Much play was made during cross-examination of the Stotter brothers by counsel for the respondent of the fact that the freeway was busy and that the respondent's truck was a slow moving one which could not perform quick manoevres, in order to water down, or destroy, the evidence of the brothers that the respondent's driver had been doing "lane hopping". Eventually that impressed the trial judge.


I am not persuaded that because of the heavy traffic the respondent's driver could not have done "lane hopping". In any event, the Stotter brothers did not suggest that he did so "quickly" or in rapid succession.


The evidence is certainly not that the traffic was so heavy that it could be described as "bumper to bumper traffic". The respondent's driver himself said that he had moved from the slow lane to the middle lane in the vicinity of the 0lifantsfontein on- and off ramps in order to overtake a stationery truck in the slow lane. If that evidence is to be believed, then it was possible for this cumbersome slow moving truck to change lanes. Why would it then be improbable to do what the Stotter brothers said the driver of respondent's vehicle did? Furthermore, according to Tshrinza he could not return to the slow lane again because of the traffic overtaking him in that lane. Yet, according to at least Wayne's evidence, there was a gap ahead of them in the slow lane when the accident occurred although there was a car, according to both of them, on the left hand side when the accident occurred. Wayne also said that it was "touch and go" for Tshrinza when he drove across the road to the emergency lane after the impact; ie he nearly collided with that vehicle.


The point is that it was therefore possible for vehicles to change lanes despite the fact that the road was busy and the traffic heavy.


In my view there is therefore no basis for holding, on the probabilities, that Tshrinza would not have done "lane hopping".


10.4 The trial judge found that Tshrinza was a credible witness and his evidence could not be faulted in any material respects. In contrast to that he found that Anthony's evidence was unsatisfactory in at least one respect and had to be rejected on that particular aspect. That unsatisfactory feature related to the relative positions of the two trucks immediately before the impact. Anthony testified that he was busy passing the rear left hand corner of respondent's truck when Tshrinza moved towards the middle lane. Wayne said that the trucks were level with each other when Tshrinza moved towards the middle lane. The impact was virtually immediately thereafter.


The trial judge had difficulty in accepting this because the respondent's truck was not damaged on its side but at the rear. That fitted in with Tshrinza's evidence the trial judge said. He was further of the view that Anthony was reluctant to admit the obvious namely that his truck had hit the respondent's truck from the rear. That affected Anthony's evidence negatively.


My understanding of Anthony's evidence, and for that matter also that of Wayne on this aspect, is different. The effect of the evidence is, and must be understood to mean, that immediately before the collision the right front corner of appellant's truck and the left rear corner of respondent's truck were alongside each other. That was the time that respondent's truck moved to its left towards the middle lane. Anthony then braked. The respondent's truck continued across his lane and after Anthony had applied the brakes of his truck respondent's truck was in front of him and the two vehicles came into contact with each other. This scenario, in my view, is borne out by the following evidence of Anthony in re examination:

"Wat het op daardie oomblik gebeur? --- 0p daardie oomblik het ek die briek geslaan. Toe kom hy voor my in. Dit is die momentum wat ek die briek gelos het om die treiler (onhoorbaar) om te verhoed van 'n 'jackknife' van die momentum wat ek hom getref het.

Goed, u kan weer sit. Ekskuus, ek wou net daardie aanduiding gehad het. U het gesê u het die rem geslaan. Was dit voor of nadat hy voor u begin inbeweeg het? --- Ek het nog afgery in die pad, met die baanwisseling toe hy oorkom, het ek die lem (sic) geslaan.

Sê net weer stadig. U het afgery in die pad en? --- En met die baanwisseling wat ek verby hom wou gaan toe sien ek hy hom na my kant toe. Toe slaan ek die rem vas.

Wie het 'n baanwisseling gedoen? --- Die groene.

Die groen trok? --- Die A.

Die A vragmotor? --- Ja. Die momentum wat ek die rem geslaan het en die rem gelos het om die treiler control te vat, om die treiler brieke vas te maak dat hy nie die perd so vinnig stoot nie, dat die brieke nie kan 'overheat' nie en 'n 'jackknife' veroorsaak wat 'n baie ernstige ongeluk kon veroorsaak het, het ek die rem weer getrap saam met die treilerbrieke."


Under cross-examination Anthony explained the scenario as follows:

"So u het hom nie van agter getref nie, al sien u foto 8? --- Nee, ek het hom op die hoek gevang.

Glad nie van agter nie? --- Nee, glad nie.

U was reeds by die lig verby? --- 0p die hoek gevang en nie senter nie.

U het hom … nee, nee, u het hom nie presies in die middel getref nie. U het hom duidelik 'n bietjie na die kant toe links getref. Stem u saam met my? --- Linkerkant ja 100%.

Ja maar u was nie verby die ligte nie, want u het hom van agter af getref, maar aan die linker kant? --- Dit is reg.

0, maar dit is dan iets anders as wat u vroeër gesê het. U getuienis was dat u was besig om verby sy agterkant te gaan, u was reeds besig om verby die ligte te gaan. Is dit nie so nie? --- Ek het so gesê, ja.

Hy het van die kantste baan af gekom, van die regterkantste baan af. Toe ek naby hom kom, het ek klaar begin af-'slack' en dit is die momentum wat hy oorgekom het, wat ek hom gevang het."


This evidence should be linked to that of Wayne who testified that the respondent's truck was "coming from the fast lane over, he was still in his momentum coming over as we had tapped him, going across that way" and that that truck was approximately half a metre into the middle lane at the moment of impact.


If this evidence of the Stotter brothers is compared with what is depicted in the photographs about the damage to the respective trucks one sees that it is consistent therewith. It is evident from the photographs that the appellant's truck was damaged on the right front corner and that the respondent's truck was damaged on the rear left hand corner from behind and not on the side.


This evidence of the Stotter brothers and what is depicted in the photographs lead to another important point and that is that the appellant's truck was not damaged in the centre part of its front or on its left hand front side. The respondent's truck was likewise not damaged in the centre of its rear or on its rear right hand side.


The explanation for this as offered by the Stotter brothers was that this was not a classical rear end collision in which case one would expect both vehicles to be damaged across the whole of their front and rear parts. It is in this context that one must consider especially Wayne's evidence that the appellant's truck was travelling in a straight line, that it could not swerve to its left to avoid the collision and that the "skid marks" (brake marks?) were straight and that the truck came to a standstill in a straight line in the middle lane. This evidence was not contradicted or gainsaid by Tshrinza. He could not do so because he had never seen the appellant's truck behind him. I can think of no reason why that evidence should not be accepted.


If that evidence is accepted one is left with the problem that Tshrinza's evidence that he was travelling in the middle lane and that he was hit from behind, cannot be the truth. 0ne would then have to have a scenario, on Tshrinza's evidence, that the two trucks were travelling in a straight line, the one ahead of the other, when they collided. For some inexplicable reason the damage on each of them does not reflect a classical rear end collision! Why would that be so?


The evidence of the Stotter brothers, on the other hand, explains why the damage to the two vehicles does not reflect a classical rear end collision. The objective facts, the damage done to the vehicles, therefore support the evidence of the Stotter brothers and it at the same time refutes that of Tshrinza.


I believe that the trial judge completely overlooked this important aspect and that that contributed to his finding, to which I cannot subscribe, that Tshrinza was a credible witness and that his evidence cannot be faulted in material respects. In my view his evidence was indeed flawed in a material respect and he is certainly not a credible witness in all material respects.


[11] An important issue at the trial was whether or not Tshrinza had entered the freeway at New Road. The trial judge seemingly found that he had not. That means, in effect, that the evidence of the Stotter brothers that Tshrinza had entered the freeway at New Road, was rejected.


Anthony's evidence was that he had travelled in the middle lane from the 0lifantsfontein on- and off ramps for a distance of approximately two kilometres prior to the collision. That evidence was not disputed or contradicted. According to him his speed was between 60 and 70kph. His truck could not go faster than 80kph. That evidence was also not disputed or contradicted.


It is common cause that the accident occurred at a point beyond New Road where the descent in the road began.


The evidence of Tshrinza was that he was travelling at approximately 45kph going up the hill from the 0lifantsfontein on- and off ramp. He remained in the middle lane. At New Road, where the freeway flattened out, his speed increased to approximately 50kph. That was also his approximate speed when he came to the descent in the road going down to Allandale Road where he saw the vehicles that were stopping and slowing down because of the accident ahead of them near the bridge.


There is no suggestion in the evidence of either the Stotter brothers or Tshrinza that he had overtaken the appellant's truck at any stage. It must therefore be accepted that appellant's truck was behind Tshrinza at all relevant times. It must also be accepted, if Tshrinza is to be believed, that he never, at any stage, saw the appellant's truck behind him.


0n this basis it must therefore be accepted that Anthony had succeeded, over a distance of approximately two kilometres, and also travelling uphill, to gain ground to such an extent that he was so close to Tshrinza immediately before the collision that he collided with the respondent's truck when the latter reduced speed in order to stop because of the accident that had occurred near the bridge. That means that at the time that Tshrinza passed the stationery truck, if he is to be believed, Anthony was at least two kilometres behind him, if not further back, bearing in mind that Anthony travelled at a higher speed throughout.


0n the basis then that Anthony had succeeded in catching up with Tshrinza over a distance of approximately two kilometres, I find it strange that Tshrinza did not become aware of Anthony's approaching truck behind him. The truck was a large one and it must have been clearly visible to any driver keeping a look-out on vehicles travelling behind him. This is what Tshrinza did according to his evidence. As he approached New Road, he said, and whilst he was still going uphill as I understand his evidence, he wanted to return to the slow lane but could not do so because vehicles continuously passed him in the slow lane. He must, therefore, have looked in his rear view mirrors, with which the truck was equipped as is evident from photo no 3 of the respondent's photo album, to see whether he cannot find an opportune moment to move across to the slow lane. Yet he did not see Anthony's truck. That, I think, is improbable.


The Stotter brothers, on the other hand, did not see the stationery truck that Tshrinza saw and passed. Anthony said that there were a number of slow moving trucks in the slow lane going uphill towards New Road. That evidence was also not refuted or disputed. It is also probable that such trucks would have travelled in the slow lane so as not to obstruct or block the free flow of traffic. The Stotter brothers did not see Tshrinza's truck ahead of them between 0lifantsfontein and New Road. That truck is also a fairly large one and must have been easily visible to them if it had travelled in the middle lane.


According to the Stotter brothers the respondent's truck was approximately fifteen metres, or six car lengths, ahead of them when it entered the freeway at New Road.


In my view the only meaningful reason why neither of the two drivers saw each other on the stretch of road between 0lifantsfontein and New Road, is because the respondent's truck did not travel there. That is why Wayne, in particular, also did not see a stationery truck near the 0lifantsfontein off ramp. There simply was no such truck there.


Against this background one should now consider the improbability of a driver colliding from behind with a vehicle ahead of him if there is no apparent reason why he/she had collided with it.


According to Anthony he would have stopped in time before he had reached the point where vehicles ahead of him were coming to a standstill because of the accident at the bridge. He needed approximately 150 metres to bring the truck he was driving to a standstill. Wayne testified that the vehicles ahead of them came to a standstill, or backed up, approximately 250 to 300 metres ahead of them. According to this evidence there was no need to take emergency measures to try and stop the truck as quickly as possible. There was ample space and time for Anthony to come to a standstill.


Tshrinza said that he had seen the vehicles ahead of him braking and backing up when he was approximately 500 metres away from them. He too, had no difficulty to stop in time before he would have reached those vehicles.


0n this evidence, taken at face value, there is no explanation for the collision between the two trucks. There is no apparent reason why Anthony would have collided with Tshrinza's truck from behind.


It is in this context that the evidence of the Stotter brothers about the traffic in the middle and fast lanes at the crucial time, ie immediately before the collision, becomes important. According to them, and more in particular Wayne, the traffic in the fast lane had backed up further back than the traffic in the middle lane. The traffic in the fast lane was therefore closer to motorists who were in the fast lane and who had begun their descent towards Allandale Road. Tshrinza, in particular, would have collided with the vehicles ahead of him had he continued in the fast lane, according to Wayne's evidence.


Anthony also ventured an opinion as to why Tshrinza had moved into the middle lane from the fast lane. He too, testified that there were fewer vehicles in the middle lane that had backed up because of the accident at the bridge. His opinion was that Tshrinza would possibly have collided with vehicles ahead of him if he had not moved over to the middle lane because he would possibly not have been able to stop in time.


This evidence of the Stotter brothers presents a meaningful and plausible explanation for the collision between the two trucks. It also offers an explanation for the fact that the right front corner of Anthony's truck came into contact with the left rear corner of Tshrinza's truck and why this collision was not the classical rear end collision which would have resulted in damage being done to each truck across the respective front and rear parts of the trucks.

[12] In the light of the aforegoing it follows, in my view, that the evidence of the Stotter brothers is much more probable and satisfactory than that of Tshrinza. In my view the trial judge erred in coming to a different conclusion. In any event, the trial judge failed to take into consideration, and to evaluate, the different aspects that I have mentioned and considered.

[13] In my view the appeal should therefore succeed. The trial judge ought to have found that the collision was caused by the negligence of Tshrinza in that he had changed his direction at an inopportune moment and moved into the lane in which Anthony was travelling when he ought not to have done so.


The issues relating to fault and quantum were separated in terms of rule 33(4). The correct order would therefore be a declaratory order to the effect that the respondent is liable for the damages suffered by the appellant. The counter claim ought to have been dismissed.


ORDER

1. The appeal is upheld with costs.

2. The orders of the court a quo are set aside and replaced with the following:

"(a) It is declared that the defendant is liable to compensate the plaintiff fully for the agreed or proven damages suffered by it and arising from the collision that occurred on 12 September 2002 on the N1 freeway.

(b) The defendant is ordered to pay the plaintiff's costs of suit of its claim in convention.

(c) The defendant's counter-claim is dismissed with costs."




S J MYNHARDT

JUDGE OF THE HIGH COURT


I agree



R D CLAASSEN

JUDGE OF THE HIGH COURT


I agree



D T PHALANE

ACTING JUDGE OF THE HIGH COURT

A979-2006


HEARD ON: 3 SEPTEMBER 2007

COUNSEL FOR THE APPELLANT: N J HORN

INSTRUCTED BY: THOMSON WILKS INC, ROSEBANK JHB

c/o CHRISTIE DE BEER, PRETORIA

COUNSEL FOR THE RESPONDENT: W J ROOS

INSTRUCTED BY: SMITH INC, ARCADIA PRETORIA