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South Africa: Supreme Court of Appeal |
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IN THE SUPREME COURT OF SOUTH AFRICA
(APPELLATE DIVISION) In
the matter between:
JOSEPH ROLAND MAUJEAN
Appellant
AND
THE MARINE AND TRADE
INSURANCE
COMPANY LIMITED Respondent
Coram: CILLIé, BOTHA et HEFER, JJ.A. Heard: 10 September 1984. Delivered: 27 September 1984.
JUDGMENT CILLIé, J.A. :
This is an appeal against a judgment
given in the Witwatersrand Local Division by Kirk-Cohen J.
in .... / 2
2
in an action for damages which the appellant (herein referred to as the
Plaintiff) claimed he had sustained in a motor collision.
The collision took
place in Johannesburg on the night of 2 November 1975. The trial was heard seven
years later. The Plaintiff appealed
to this Court and thereafter brought an
application in terms of Rule 4 of the Rules of the Appellate Division of the
Supreme Court
to prosecute his appeal in forma pauperis. The Plaintiff
died on 1 May 1984 and the executor in his estate took all the steps necessary
for prosecuting the application and
the appeal. To avoid a possible duplication
of the argument and the incurring of extra costs this Court called on
counsel
to argue the merits of the petition and of the
appeal .... / 3
3
appeal at the same time.
The facts of the case are short
ly the following: At the time of the
collision the
Plaintiff was driving his own car with his wife,
his son and
his three daughters as passengers. The
other car involved in the collision
was insured by
the Defendant (now the Respondent) in terms of
the
Compulsory Motor Vehicle Insurance Act, no 56 of
1972. On the night in
question it was driven by a
certain Durr whose wife and daughter were
passengers
in the car. At the trial evidence was given by the
Plaintiff,
his wife and son, by Durr and his wife
and by witnesses who testified only to the damages
suffered by the Plaintiff. The trial Judge made an
order.... /4
4
order of absolution from the instance with
costs;
other relief granted is not relevant to this appeal.
The collision occurred in the
intersection of Westwold Way and Northwold
Drive in
Saxonwold. Westwold Way runs from north to south
and makes a wide
bend towards the south-east. At
the northern end of this bend an unnamed
one-way
street turns off to the west. Further into the
bend and almost at
its southern end Westwold Way is
joined by Northwold Drive. This street runs from
east to west and does not
cross Westwold Way, thus
forming a T-junction. At this junction there
are
no stop signs or white lines. The Plaintiff was
travelling in Westwold
Way from the north and intended
driving .... / 5
5
driving through the bend to the south. Durr was travelling in Northwold Drive
from the east; his intention was to cross Westwold Way
and turn to the west in
the one-way street. The collision occurred at about 21h30. The street lights
were burning and the head lights
of both cars were on. There was no other
traffic in the vicinity of the intersection.
There is direct conflict in the
evidence on, inter alia, the following aspects of the case: Firstly, the
position of the two cars immediately before the collision; secondly, whether one
of the two cars was stationary at the time
of the collision, and if so, which
one; thirdly,
the .... / 6
6
the point of impact; and fourthly, the damage to
the two cars.
The evidence of the Plaintiff,
supported by his son, was
that he was driving in
Westwold Way at a slow speed and about two to
three
feet from the left, or eastern, edge of Westwold
Way. He continued
to drive in this manner into
the bend. When he saw Durr's car it was on
the
northern side, that is Durr's wrong side, in North-
wold Drive and was
not stopping. He applied his
brakes but could not avoid being struck by
Durr's
car. Durr's evidence, and that of his wife,
was that they were
travelling with the right-hand
side of their car about in the middle of Northwold
Drive .... / 7
7
Drive. He brought the car to a halt before entering Westwold Way. While
the car was stationary they noticed the Plaintiff's car coming
into the bend,
veer towards its left, and collide with their car.
The Plaintiff and his son
testified that Durr reversed his car about two metres immediately after the
collision. This Durr denied;
his wife could not remember whether he reversed at
that stage. The drivers and some of the passengers got out of the two cars.
There
was an acrimonious argument in which the Plaintiff's son took part. The
Durrs gave evidence that the Plaintiff had admitted that
his brakes may not
have
been .... / 8
8
been in order; the Plaintiff and his son denied
such an admission. However, it was admitted that he, in reply to a question,
intimated
that his car was not insured. Time was wasted at the trial and in this
Court on the dispute about who had asked the question, Durr
or his wife. The
only relevance of the issue was the answer given and not who the questioner was;
Durr said that his wife persuaded
him to leave after a short while because the
Plaintiff was not insured. Time was also unnecessarily spent on statements
supposed
to have been made by the Plaintiff's son and Durr's daughter. The
probative value of these statements is as doubtful
as their admissability.
The discussion at the
damaged .... / 9
9
damaged cars did not last long. The Plaintiff
did
not ask Durr's name and address and Durr did not
ask his. No registration
numbers were written down.
Durr and his wife left first. He reversed his car
two or three meters and then drove around the back
of the Plaintiff's car
into Westwold Way. When
the Plaintiff wanted to leave his car would not
start, but a passing policeman helped him on his
way home.
Because of the contradictions in
the evidence - and there were more than
those set
out herein - the Court a quo could not come to a
final decision without taking into account such
factors as the credibility of the witnesses, their
opportunities .... / 10
10
opportunities of observing what was happening
and
the probabilities of the case. With reference to
the credibility of
the witnesses the Plaintiff said
the following in his petition for leave to
proceed
in forma pauperis:
"The learned Judge preferred the evidence on behalf of the Respondent/ Defendant rather than that given by and on behalf of your Petitioner/ Plaintiff. No adverse finding was given against the credibility of your Petitioner/Plaintiff."
Considered strictly and without reference to the whole judgment the final
sentence of the statement is correct. However, the following
relevant findings
by the Judge a quo were not
quoted or reflected in the petition.
"The.... / 11
11
"The Plaintiff gave much of his evidence concerning the collision through an interpreter. He is obviously a highly volatile person. It is extremely difficult to assess such a witness and in my view the most accurate and fair assessment would be to say that he has made no impression upon me the one way or the other."
The learned Judge said the following about the
Plaintiff's son:
"In regard to his son I have grave reservations. I gain the impression that he was partisan and gave evidence of details which I find it difficult to accept he remembers over a period of seven years; bearing in mind that he was not a driver at the time of the collision and was sixteen years of age it is strange that he mentions distances and facts in such detail."
It is not necessary to consider
the..../ 12
12
the trial Judge's opinion of the Plaintiff's wife as a witness of the collision. She testified mainly about her husband's injuries and said that she did not pay attention to the road ahead of them all the time; just before the collision she was looking at her daughter who was sitting next to her; it would appear as if she did not see the collision itself. During argument by the Plaintiff's counsel the Court was asked to reject her evidence where it was in conflict with that of her son. It was conceded that she was not a reliable witness on some aspects of the case.
Of Durr the Judge a quo said
that in giving evidence he made a good impression
and ... / 13
13
and appeared to be a careful witness who did
not
overstate his version. Mrs Durr also made a good
impression on the
trial Judge. The Court found that
there were no material contradictions
between Durr's
evidence and that of his wife. Finally the learned
Judge
said:
"When weighing up the contradictory evidence of the Plaintiff and his son against that of the Defendant's two witnesses I am not prepared on credibility to disbelieve Durr and his wife and believe the Plaintiff and his son. In fact I regard the former two witnesses as the more credible."
It will be convenient to say at this stage that
after consideration of the evidence placed before
the Court and the hearing of argument I agree with
the..../ 14
14
the learned Judge's conclusion.
With regard to
the positions of the cars before the collision and the opportunities witnesses
had of observing the cars, the following
passages in the Plaintiff's petition
are relevant:
"Visibility of vehicles to each other. It was common cause between the parties that the vehicles were visible to each other when they were at approximately a maximum of five metres away from each other, because of the topography of the area where the collision occurred. The insured driver and his wife deposed to the fact that they could see the lights of your Petitioner's vehicle when it was still forty to fifty yards away. This is an impossibility. On the other hand it is an impossibility for them to have estimated what distance the lights
were .... / 15
15
were away if they could not see along the street for more than four or five metres. This was a deliberate lie on the part of the witnesses for the Defence. Having regard to the nature of the terrain it was impossible for them to estimate how far the lights were away ... The fact that the vehicle (Durr's car) was seen at a very late stage is because the vehicle was hidden, this is again common cause, because of the topography ... As another point in his judgment the learned Judge places reliability on the Respondent's witnesses' statement that they could see the lights thirty to forty metres away. This is a deliberate lie and impossibility because of the topography. Such evidence is not reliable."
It is completely untrue that it
was common cause at the trial that the
drivers of
the two cars approaching the T-junction could not,
because .... / 16
16
because of the topography of the area or for any
other reason, see each
other's cars until they
were a maximum of five metres away from each
other.
It was also not common cause that, because of the
nature of the
terrain or because of any obstruction,
the Plaintiff could not have seen
Durr's car before
the moment at which, on his evidence, he did see
it.
There was no evidence of any natural or artificial
feature which could
have hidden one car from the
view of the other car's driver, or which would
have
made it impossible for Durr and his wife to "see
along the street
(Westwold Way) for more than four
or five metres."
Durr said that he had observed
the .... / 17
17
the Plaintiff's car when it was 40 to 50 metres
away from them. According
to Mrs Durr she saw the
lights of the Plaintiff's car when it was 25 to 30
metres away. The
following questions and answers
taken from her evidence when under
cross-examination
are pertinent:
..."and your vehicle's lights, were those shining across the road as you were standing? - That is correct, my Lord. "So I assume if you could see his lights, he could see your lights as well? - That is correct."
This evidence of the Durrs was never challenged
on the ground that there
were any particular features
which would have obstructed his or her view or
that
of the Plaintiff.
It .... / 18
18 It was not explained to this Court why these misleading
and untrue statements on material issues were made in the Plaintiff's petition.
Mr Beckley, Plaintiff's counsel in this Court, did not appear at the trial and
was briefed only in the week before the hearing in
this Court; he could not
explain these serious defects in the petition.
In deciding whether the
Plaintiff should be granted leave to proceed in forma pauperis,
this Court must bear in mind the following well-known passage in the judgment of
Stratford C.J. in Stellenboom v. Bhyat, 1938 A.D. 317 at p. 320:
"Dealing with the application to appeal
in .... / 19
19
in forma pauperis, there are three considerations to be taken into account, viz. (a) the poverty of the applicant, (b) the prospect of success on appeal, and (c) the amount involved in the dispute between the parties."
(See also Putzier and Another v. Union and South West Africa Insurance Co. Ltd. 1976 (4) S.A. 392 (A) at p. 397 D.- E where it is indicated that the list was not necessarily exhaustive.) In the present inquiry there is no doubt about the poverty of the Plaintiff and the amount involved is substantial; the Plaintiff's claim is for R176 749,72. The question whether the Plaintiff had any reasonable prospect of success on appeal remains to be considered. It
is in connection with this last aspect of the inquiry
that ...../ 20
20
that the highly misleading and untrue statements were made.
In my view these statements are so objectionable that the Court may well have considered showing its disapproval of their inclusion in the petition by dismissing the application. However, it is not clear how much of the responsibility for these misleading statements, if any, rests on the Plaintiff. And, furthermore, the following passage from the judgment of Schreiner J.A. in Macrose v. Robinson 1946 A.D. 1 at p. 7 is apposite, particularly the first part thereof.
"While this Court is always anxious that a person against whom a wrong decision may have been given should
not .... / 21
21
not, through his poverty, be debarred from obtaining redress, consideration must also be given to the position of the other party who has achieved a favourable decision in the lower Court and who is entitled to some protection against the hardship of having to defend his judgment against one who cannot pay costs if he loses."
In the light of these considerations of the trial Court's findings on the credibi-lity of the witnesses and of the full arguments advanced on all aspects of the case, I shall now consider further issues material to decisions on the application and the appeal.
The Plaintiff testified that he
saw Durr's vehicle for the first time when it was
"roughly four to five metres" away from him;
during .... / 22
22
during cross-examination he said that he saw the lights and the car when he was about "three to four metres" away. The Plaintiff's son, who was sitting in the back of the car, testified that when they were at the entrance of the intersection he saw Durr's car. As stated above Durr saw the Plaintiff's car 40 to 50 metres away and Mrs. Durr saw its lights 25 to 30 metres away. The trial Judge made the following observations:
" ... there is no reason why the Plaintiff should not have observed the effect of Durr's lights at a much earlier time and at a greater distance from the junction. Mr. Levy, who appeared for the Defendant, submitted that, in these circumstances, the Plaintiff was not keeping a proper lookout and I agree that this
is .... / 23
23
is so. In my view if the Plaintiff did see Durr's vehicle for the first time so shortly before the collision,
as testified to by him, and in the circumstances set out above, it is also probable that he took fright, was unable accurately to assess the position of Durr's vehicle or, more importantly whether it was stationary or not."
These conclusions are, in my opinion,justified.
With regard to the position of
Durr's car in Northwold Drive immediately
before the
collision and whether it was stationary or not, it
should be
noted that in the further particulars for
purposes of trial the Plaintiff
alleged that Durr
was negligent in that he drove on his incorrect side
of the road, that is of Northwold Drive. This allegation .... / 24
24
gation could only be relevant if the Plaintiff was correct in his evidence that he would have been able to avoid the collision if Durr was driving his car on the southern half of Northwold Drive and did not stop before entering the intersection. Both Durr and his wife testified that their car was travelling with its right wheels about on the middle of Northwold Drive. When it was put to Durr that he had cut the corner, which would have brought him to the northern side of Northwold Drive, he denied it. Mrs Durr agreed, during cross-examination, that a driver in the position in which her husband was, might cut the corner; her reply to the next question put to
her was that her husband did not do so. It was argued
at .... / 25
25
at the trial and on appeal, that the probability
was
that Durr had cut the corner in spite of his and his
wife's denials.
The trial Judge said:
"In my view any inference sought to be drawn by the Plaintiff on this issue must give way to findings of credibility and powers of observation."
On a full consideration he came to the conclusion,
in my view correctly, that Durr did not cut the
corner. This finding is of the greatest importance
on the inquiry as to where the cars collided.
The fact that the trial Court
held no inspection in loco made the determination
of the point of impact difficult. Witnesses were
asked to mark the point of impact, according to their
observations .... / 26
26
observations, on a map and on photographs. These marks, as evidence, were unsatisfactory. On the verbal evidence it can be said that according to the Plaintiff and his witnesses the point of impact was in Westwold Way opposite the northern half of North-wold Drive; according to the Durrs it was at the southern half of Northwold Drive where it enters Westwold Way. The following incident is important in this regard. It appears from all the evidence as indicated before that when Durr left he reversed his car two or three metres and then passed behind the Plaintiff's car into Westwold Way. According to the Plaintiff Durr passed between the back of his car and the pavement, that is the north-eastern pavement on the
junction .... / 27
27
junction of Westwold Way and Northwold Drive. This manoeuvre would have been possible on Durr's estimate that at the time of impact the right-hand side of his vehicle was five to six metres from the northern curb. On the evidence of the Plaintiff and his son the back of their car was so close to the pavement that if Durr passed behind it his car would have mounted the pavement, which it did not do. Finally it should be added that if the cars had collided opposite the northern half of Northway Drive it would be improbable that Durr would have passed behind the Plaintiff's car because the street opposite the southern half of Northway Drive would have been
unobstructed. In my opinion the trial Judge clearly
came .... / 28
28
came to the correct conclusion when he found that the point of impact as
indicated by the Plaintiff and his son was improbable and
wrong whereas that
there was "nothing improbable in the place of collision deposed to by Durr and
his wife."
On the question of whose car was stationary at the moment of
impact the evidence of the Durrs was preferred to that of the Plaintiff
and his
son. Mrs Durr said that their car was stationary when she saw the lights of the
Plaintiff's car some distance away. Durr
said that he had stopped his car when
he saw the other car some 40 metres or more away from them. The Plaintiff and
his son
saw Durr's car at a much later stage, when they were
virtually .... / 29
29
virtually in the intersection. In the
light of the previous findings and inferences it is clear that the version of
the Durrs must
be accepted on this aspect of the case as well.
Finally I should add that the evidence of the damage to the two cars was so conflicting and inadequate that it does not justify a conclusive or reliable inference as to the manner in which the collision occurred, the point of impact or the position of the cars immediately prior to and after the collision. The trial Court, however, did come to the conclusion "that the damage caused to the vehicles was not improbable on the
version given by the Defendant's witnesses."
It.../ 30
30
It is certainly not for the Defendant to offer a reason why the accident occurred. However, the witnesses, Mr and Mrs Durr, said that after they had stopped the Plaintiff's car veered to its left and thus collided with their car. It was suggested that the brakes of the Plaintiff's car were not in order or that he had a fright when he, at a very late stage, saw Durr's car. It must be remembered that the Plaintiff was negotiating a bend to his left. The son said:
"I wasn't driving, but my dad was following the curve of the road."
This could have caused the Durrs to think that the
Plaintiff's car was veering to the left; it could
well ..../ 31
31
well be that the driver, when he suddenly saw the lights of a car at the junction, had misjudged his position and that of the other car.
Finally, I agree with the following statement of the trial Judge:
"In all the circumstances I am of the opinion that it is not improbable, but probable, that the collision occurred at the place and in the circumstances deposed to by Durr and his wife."
The Court, therefore, correctly found that the Plaintiff had failed to discharge the onus of proof resting upon him and that absolution from the instance had to be granted.
The appeal must therefor be dismissed. I am of the opinion that even if the appli-
cation .... / 32
32
cation was decided at the outset of the hearing it would have been
dismissed on the ground that the applicant had no reasonable prospect
of
success. Counsel for the appellant asked that the order for costs of the appeal,
in case it was dismissed, should not include
the costs of two counsel; this
request will be acceded to, particularly because the question of damages was not
an issue in the appeal
as it was at the trial. Therefore:
1. The application for leave to proceed in forma pauperis is dismissed with costs. 2. The appeal is dismissed with costs.
P.M. CILLIé, J.A.
BOTHA, J.A. )
concur
HEFER, J.A. )
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