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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

REPUBLIC OF SOUTH AFRICA

 IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

(1)           REPORTABLE:  NO

(2)           OF INTEREST TO OTHER JUDGES: NO

(3)           REVISED

CASE NO: 64558/17

 

In the matter between:

 

AUTO ALPHINA (PTY) LTD                                                            PLAINTIFF

 

and

 

JK DEVELOPMENT CC                                                                   FIRST DEFENDANT

 

S.S. TOLMAN                                                                                      SECOND DEFENDANT

 

JUDGMENT

 

COLLIS J

 

INTRODUCTION

 

1.    The plaintiff in this matter issued summons against the defendants seeking damages arising out of a motor vehicle collision that occurred on 21 August 2015, at Springs Ekurhuleni, Gauteng Province.

 

2.    At the time of the collision the first defendant was the risk bearer of a Nissan truck with registration letters and numbers [….], driven by one Ephraim Mmoke.

 

3.    The first defendant resisted the claim and denied all forms of negligence. In addition and in the alternative, the first defendant pleaded that should the court find that its driver contributed to the collision, that apportionment be applied in accordance with the provisions of the Apportionment of Damages Act No 34 of 1956. It should be mentioned that both motor vehicles were damaged in the collision. The plaintiff withdrew its action as against the second defendant.

 

4.    At the commencement of the proceedings the parties advised that they had agreed on a separation of issues in terms of the provisions of Rules 33(4) of the Rules of Court. The matter accordingly proceeded on the question of liability only and the question of quantum to be postponed sine die for a later adjudication. By further agreement between the parties, the defendant accepted the evidence of the plaintiff’s expert witness on affidavit and such report was marked as Exhibit A.

 

ISSUES FOR DETERMINATION 

 

5.    The crisp issue for determination is where does the negligence lie.

5.1.       Whether the plaintiff was solely negligent;

5.2.       Whether the driver of the truck was solely negligent; and/ or

5.3.       Whether an apportionment of negligence, if any, should be ordered by the court.

 

ONUS

 

6.    Since the pleadings consist of a claim and counterclaim regarding the damage to the respective vehicles, each party bears the onus of proof regarding his own claim, which proof must be discharged on a balance of probability.[1] As for the evidence led before this court, I do not intend to repeat same as it was recorded and all pleadings and exhibits filed on the CaseLines platform. The proceedings were conducted through a virtual hearing.

 

LEGAL PRINCIPLES

 

7.    It is trite that a driver who collides with the rear of a vehicle in front of him is prima facie negligent. In the decision Union and South West Africa Insurance Co Ltd v Bezuidenhout 1982 (3) SA 957 (A), it was held “that the failure of a driver in a rear vehicle to foresee that traffic might, for whatever reason, suddenly slow down and even stop and to conduct himself accordingly, was negligent. Moreover, the doctrine of foreseeability does not require that the person sought to be held liable should have foreseen the general nature of the harm that might, as a result of his conduct befall someone exposed to a risk of harm by such conduct.” [2]

 

8.    Both drivers of the respective vehicles gave mutually destructive versions before the court as to the lanes they occupied and the actions of the two drivers immediately before the point of impact.

 

9.    In dealing with the mutually destructive versions, the approach to be applied was spelt out in the matter of National Employers General Insurance Co Ltd v Jagers 1984 (4) SA 437 (E) at 440E – 441A, where Eksteen AJP said:

 

“It seems to me with respect, that in any civil case, as in any criminal case, the onus can ordinarily be discharged by adducing credible evidence to support the case of the party on whom the onus rests in a civil case the onus is obliviously not as heavy as it is in a criminal case, but nevertheless where the onus rests on the plaintiff as in the present case, and where there are two mutually destructive stories he can only succeed if he satisfies the court on a preponderance of probabilities that his version is true and accurate and therefore acceptable, and that the other version advanced by the defendant is therefore false or mistaken and falls to be rejected. In deciding whether that evidence is true or not the court will weigh up and test the plaintiff’s allegations against the general probabilities. The estimate of credibility of the witness will therefore be inexplicably bound up with a consideration of the probabilities of the case and if the balance of probabilities favours the plaintiff, then the court will accept his version as being probably true. If, however, the probabilities are evenly balanced in the sense that they do not favour the plaintiff’s case anymore than they do the defendant’s, the plaintiff can only succeed if the court nevertheless believes him and is satisfied that his evidence is true and that the defendant’s version is false”.

 

10. The Supreme Court of Appeal has also given guidance as to the technique to be applied in circumstances where a trial court is faced with two irreconcilable versions. In the decision Stellenbosch Farmers’ Winery Group Ltd v Martell et Cie 2003 (1) SA 11 (SCA), where the following is stated at 14J – 15E.

 

“The technique generally employed by courts in resolving factual disputes of this nature may conveniently be summarized 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 a witness. That in turn will depend on a variety of subsidiary factors, not necessary in order of importance, such as (i) the witness 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 extra curial 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’ 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 and analysis and evaluation of the probability or improbability of each party’s version on each of the disputed issues. In light of its assessment of (a), (b) or (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 will 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, the probabilities prevail.”

 

11. In considering the credibility of the two factual witnesses that gave testimony, I cannot, on the evidence before me find that one was more credible than the other. Both witnesses gave good accounts of their respective versions. Unfortunately, the versions as testified by them cannot both be true.

 

12. Both versions however cannot be reconciled. What is helpful however, is the point of impact, as marked and depicted by the defendant’s driver on photograph 3 uploaded on CaseLines as Bundle 13.  This mark, corresponds with the mark made by the plaintiff’s driver, as is evident and depicted on CaseLines Bundle 12.

 

13. The versions of both the driver of the defendant’s vehicle and the plaintiff’s vehicle appear to be reliable. It is only when one observes whether anyone of them had a good and proper opportunity to observe that the scales tilt. In my view the scales tilt in favour of the plaintiff. Significantly, when it was put to the defendant’s driver as to whether he had noticed the BMW vehicle signalling his intention to turn right, he responded that he did not observe the BMW driver indicating.  When put to him as to whether he had adjusted his speed given that he was carrying a heavy load on his truck and found himself driving on a road which was sloping and in a built-up area, he responded that he was driving between 58-60 km/h and thus within the speed limit. On Mr Mmoke’s version he was familiar with the road and thus he should have anticipated that vehicles travelling ahead of him on the same road could execute a right turn as confirmed by the testimony of Mr. Wills, who testified on behalf of the plaintiff. The road in question according to the testimony of Mr Wills had directional arrows, permitting vehicles travelling on it, to either execute a right turn or to proceed straight in the right lane.  Therefore, a driver travelling on this road should have had regard not only to the directional arrows, but also road signs in the vicinity.

 

14. It is the duty of all users of the road at all times to keep a proper lookout so as to avoid colliding with other road users.[3] The duty to keep a proper lookout means more than looking straight ahead. It includes awareness of what is happening in one’s immediate vicinity. A 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, as well as the pavements on the side of the road.[4]

 

15. On the question as to whose drivers’ version is more reliable, I find the version of the plaintiff to be more reliable.

 

16. When considering probabilities, I find the version of the plaintiff more probable. Both drivers were invited to make a marking depicting the point of impact and as discussed in paragraph 12 supra, the point of impact marked by Mr Mmoke, corresponds with the point of impact as made by Mr Wills. In addition to this, the independent experts’ findings, as per Exhibit A, corresponds with the version as testified to by Mr Wills.[5] 

 

17. The defendant in the alternative pleaded apportionment and it was submitted in the alternative that the plaintiff contributed to the collision. The onus of establishing such negligence rests with the defendant. See Solomon and Another v Mussert and Bright Ltd 1926 AD at 435. The defendant should on its part adduce or elicit sufficient evidence to support a finding of negligence on the part of the plaintiff as well as a causal connection to the collision if it is to succeed with establishing contributory negligence.

 

18. The duty of care however applies to all road users, which include the plaintiff. Mr. Wills testified that visibility was clear and the road surface did not present any challenges albeit that it was slightly at a slope. As he intended to turn right he signalled this intention with his indicator and applied his brakes in order to execute his turn. He was in the process of doing so, that he first heard a bang at the rear of his motor vehicle. He testified that he drove in front of Mr Mmoke for almost 100 metres before he first indicated his intention to execute a right turn. He thus kept a proper lookout. Mr Mmoke on the other hand albeit that he testified that he first observed the plaintiff’s driver travelling behind him in the right lane, then changing lanes to the left lane and returning to the right lane, and even observing Mr Wills applying his brakes abruptly, he had failed to observe the plaintiff’s driver having signalled his intention to turn right. This despite, as mentioned, him being familiar with the road and him having been armed with the knowledge that the road permitted drivers to execute a right turn at the approaching thoroughfare road. Mr Mmoke being the rear vehicle should have foreseen that the driver travelling ahead of him, might slow down and execute a right turn.  If he had kept a proper lookout and maintained a safe following distance he would have adjusted his speed accordingly, and he would have been able to avoid the collision. In the present instance, he failed to do so and failed to take reasonable steps to avoid colliding with the plaintiff’s driver.

 

19. In the circumstances, I find that the plaintiff has discharged the onus resting on him to prove on a balance of probabilities, sole negligence on the part of Mr Mmoke. He is found 100% to blame for the collision and I could find no negligence that has been established on the part of Mr. Wills.

 

20. Consequently, the first defendant being the unsuccessful party is also ordered to pay the plaintiff’s costs of the action.

 

 

ORDER

 

21. I therefore make the following order:

21.1.    The first defendant is liable for 100% (percent) of the plaintiff’s proven or agreed damages.

21.2.    The trial on quantum is postponed sine die.

21.3.    The first defendant’s counterclaim is dismissed with costs.

21.4.    The first defendant is ordered to pay the plaintiff’s costs on the merits.

 

 

 

 

                                                          C.J.  COLLIS

                                       JUDGE OF THE HIGH COURT OF

         SOUTH AFRICA

                                                                                                           

 

                                                                                                                                                                   

 

Appearances

Counsel for the Plaintiff:                         Adv. C. Joubert                                             

Attorney for the Plaintiff:                         Roach Attorneys

Counsel for the First Defendant:            Adv. Z. Du Plessis

Attorney for the First Defendant:            VZLR Incorporated

Date of Hearing:                                     21 May 2020 and 02 June 2020

Date of Judgment:                                  4 August 2020

 

Judgment electronically transmitted

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