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IN THE NORTH WEST HIGH COURT

(MAFIKENG)

CASE NO.: 720/11

In the matter between:

TUMISANG MPETE ….........................................................................................PLAINTIFF

and

ROAD ACCIDENT FUND ….............................................................................DEFENDANT

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JUDGMENT

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LANDMAN J:

[1] The plaintiff Tumisang Mpete sues the RAF for damages arising out of a collision between a Polo Motor car driven by the plaintiff and a Toyota bakkie driven by the insured driver to which I shall refer to as the Van. The parties are agreed and I concur that only the question of the merits ie whether the collision was caused by the negligence of the driver of the Van is to be decided at this stage.

[2] The parties have agreed that the accident occurred on 13 July 2012 and that the accident report including the sketch plan be admitted as evidence. The plan is virtually useless as it shows the vehicles travelling in the opposite direction to that which they in fact travelled. Important features reflected in the code to the sketch have been omitted as has the compass direction.

[3] According to the plaintiff he and three friend played snooker and then set off in the south down Nelson Mandela Avenue in the direction of the town. He stopped at the stop street at the crossing and proceeded south. He observed a white Van enter nelson Mandela from a T intersection. It was about 80 to 100 metres ahead of him and posed no danger. He was travelling at 60 km per hour and conversing with his friends. He had consumed one and a half dumpies of castle light. He did not reduce his speed at any time. Nelson Mandela Avenue was in the process of being widen and warning chevrons were on the side of the road. There was one lane in each direction open to traffic.

[4] His vehicle caught up to the white Van and for about the last 10 metres the distance been the polo and the Van was ¾ of the length of the Polo i.e. between 3 and 4 metres. This was approximately at a position halfway between the T junction and the four way stop at Dada Motors which was ahead of the vehicle and to which the vehicles were proceeding.

[5] The plaintiff was unable to see the stop signs. He was travelling too close to the Van. He saw the Van stop suddenly or as he put it abruptly in front of him. He saw the brake lights. He did not brake. He swerved to his right and struck the Van with the left front of his vehicle. A collision occurred. He concedes that had he maintained a longer following distance the collision would not have occurred.

[6] Tshepo who occupied the front passenger’s seat in the Polo testified. He thinks the Polo travelled at 60 KMPH but he does not drive vehicles. He could not estimate the distances between the Polo and the Van. Says the Van stopped suddenly. He could not see the brake lights because the Polo was too close to the Van. Tshepo says the plaintiff served to his right but there was an oncoming vehicle and the plaintiff swerved right striking the Van. He says the oncoming vehicle pas and the plaintiff told him about it after the collision.

[7] That was the case for the plaintiff.

[8] Mr P Smit who appeared for the defendant sought an order of absolution from the instance. Ms D Smit who appeared for the plaintiff opposed it.

[9] The law regarding absolution from the instance is clear and was formulated in Claude Neon Lights (SA) Ltd v Daniel 1976 (4) SA 403 (A) at 409G–H as follows:

“. . .(W)hen absolution from the instance is sought at the close of plaintiff’s case, the test to be applied is not whether the evidence led by plaintiff establishes what would finally be required to be established, but whether there is evidence upon which a Court, applying its mind reasonably to such evidence, could or might (not should, nor ought to) find for the plaintiff, (Gascoyne v Paul and Hunter 1917 TPD 170 at 173; Ruto Flour Mills (Pty) Ltd v Adelson (2) 1958 (4) SA 307 (T).)”

[10] The plaintiff case is that the driver of the Van was negligent in one of the ways averred in the amended particulars of claim. They are:

(a) he failed to keep a proper lookout;

(b) he drove his vehicle without due care and attention to other road users;

(c) he suddenly and without due cause or reason applied the brakes of his vehicle and without due consideration of following vehicles;

(d) he failed to have any consideration for other roads users;

(e) he failed to exercise proper control of his vehicle.

[11] The nearest that the plaintiff comes is the allegation that the driver of the Van stopped suddenly and without warning and for no reason.

[12] It may be that the Van stopped suddenly. But the sudden stopping need not be negligent particularly as it was night time and on a road upon which road works were in progress. Moreover there was a four way stop ahead which was not visible to the plaintiff and there was at least one oncoming vehicle. The plaintiff drove up right behind the Van and kept for 10 metres an inadequate following distance.

[13] The plaintiff must show that the driver of the Van acted negligently. Accepting that the Van stopped suddenly. No evidence has been led to show that the Van stopped when it did. Or that it was negligent in stopping suddenly. Or, that there was no reason to stop.

[14] There is no obligation on a driver travelling in front of another to anticipate that the following vehicle will collide with him or her and to move off the road even if the driver can see that the following vehicle will collide with his or her vehicle. See Moosa v Hessberg 1979 (3) SA 432 (T) at 436 D-G where Kirk-Cohen AJ said:

“It was argued that, if he had seen them, he would have been able to pull of the tarmac surface of the road and so avoid the collision. In my opinion, Fakir’s failure to observe those lights does not amount to negligence. Where a motorist sees or ought to see the lights of an oncoming vehicle from behind in his rearview mirror, I am of the opinion that it was is not expected of that driver to anticipate that the vehicle approaching from the rear will collide with him. He is entitled to assume reasonableness, ie that the driver from the rear will observe the vehicle in front, will regulate his speed accordingly or overtake him on the righthand side at a proper opportunity. The driver of the front vehicle need not anticipate that the driver from rear will collide with him and he is therefore not obliged to drive off the tarmac surface of the road at night and so permit the vehicle from the rear to overtake him.”

[15] The driver travelling behind is not entitled to rely on sudden emergency which he has himself created. In view of the length of the following distance the plaintiff was travelling too fast. He did not allow himself an opportunity to brake and did not brake at all before the collision. There is no doubt that the plaintiff travelled too close to the Van and denied himself an opportunity of stopping within a reasonable distance or otherwise avoiding the collision.

[16] In my opinion it cannot be said that the plaintiff has proven even on a prima facie basis that the driver of the Van was negligent. The defendant is entitled to an order for absolution from the instance with costs.

A A LANDMAN

JUDGE OF THE HIGH COURT

Appearances:

date of hearing : 6 – 7 August 2012

date of judgment : 7 August 2012

date of reasons : 10 August 2012

counsel for plaintiff : adv d smit

counsel for defendant : adv p j smit

attorneys for plaintiff : kgomo mokhetle & tlou

attorneys for defendant : state attorney

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