paces, which he then corrected to 40, which he confirmed at the start of his cross-examination as 41. Later in cross-examination,
when his earlier evidence was put to him he corrected 150 paces to 150 feet, but then again reverted to 150 paces. Then it became
40 metres before the point of collision and 25 thereafter. It is difficult to make anything of this evidence. It is certainly unreliable.
Joubert presented himself as a man with close foreknowledge of the driving proclivities of visitors to his town. His quiet Sunday
afternoon was disturbed by the screech of brakes and the crash of impact. Upon repairing to the scene he found an agitated Braun
accusing Prins of being drunk and having turned in front of him. Not having seen what had happened, Joubert took it upon himself
to accuse Braun of driving like a maniac and having caused the accident. Joubert then paced off the brake marks left by the Toyota
before and after the collision and found them to be 41 m and 25 m respectively. He confronted Braun with these
8 figures but the latter maintained his stand. When he was cross-examined about
Engelbrecht's plan, which showed brake marks of only 25 m before the collision
and none thereafter, Joubert suggested that they may have faded progressively
between the accident and Engelbrecht's observations. He did not know when
Engelbrecht had been on the scene and he denied ever going there with him to
point out the brake marks. Engelbrecht had taken a statement from him in his
office and that was all.
To be contrasted with the fluctuating version of Prins and the confident
assertions of Joubert as to brake marks, is the evidence of Engelbrecht, who was
sent by Budget's attorney to prepare the plan already mentioned. The key to it
gives the length of brake marks before collision as 25 m, but in evidence he said
that it could be 20 m only, which he further reduced in cross-examination to 20
paces. He added that there were also brake marks of about 25 m length after the
point of collision up to where the Toyota was said to have come to a halt, which
9 marks he had not shown on the plan, although he conceded they were important.
Joubert was with him at the scene pointing out the same points as had already been
pointed out by Prins. A direct contradiction of Joubert's evidence thus emerges.
He had gone to Joubert's garage across the road and from there they had gone to
the scene. This was about a week after the accident and the marks were still clear.
The magistrate acknowledged the conflict between Engelbrecht on the one hand
and Prins and Joubert on the other, but dealt with it in the following terms:
"This may seem to be a fatal misstatement on the side of plaintiffs witnesses and that a Court should reject their evidence.
This was however the only piece of essential evidence where plaintiffs witnesses did not corroborate each other and [in the opinion]
of the court rather showed their honesty than otherwise. It showed that they did not try to intentionally make a watertight case
against defendant."
I have difficulty with this passage. Although conflicts between witnesses
on points of detail may be a pointer to honesty and an absence of concertment (see
Mr Justice Nicholas Credibility of Witnesses (1985) 102 SALJ 32 at 42), I fail to
10 see how this is or can be so in this case. Engelbrecht had been sent to the scene
to measure. He did so in the presence of the two witnesses. And he made a
record. There really was no room for mistake. Even if there were, who made the
mistake? And if the conflict indicates honesty, whose honesty? All that need be
said is that on the plaintiffs own case there must be a serious doubt as to the
reliability of the distances of 41 m and 20 m deposed to by Prins and Joubert.
Once that is so the technical edifice erected by Jonker to prove a minimum
speed of 139 kph is without foundation and must collapse. Even if that were not
so, his evidence and the form of test that he used left much to be desired, despite
the fact that he impressed the magistrate favourably. He did not use the same
make of car, nor did he drive on the same surface. Nor did he know what Braun's
load was, as he was unaware of the number of passengers or the weight of baggage
carried. There was also no attempt to compare the state of the tyres of Budget's
Toyota and the Nissan Sentra that he used in his test. Overall Jonker's evidence
11 does not advance Budget's case.
Apart from the witnesses already mentioned the plaintiff also called its
attorney, Van Zyl, and its controlling member, Gibbs, who deposed to a
conversation with Braun at the Fancourt Hotel at George after the accident, in
which Braun was said to have admitted to travelling at 100 kph. There was,
however, an important conflict between the two witnesses. According to Van Zyl
he had charged Braun with travelling at an enormous speed, up to 160 kph. It was
in response to this that Braun said that it was not so much but only about 100 kph.
Gibbs, on the other hand, whilst agreeing that a speed greatly in excess of the
speed limit was mentioned, said that he and Van Zyl were very careful not to state
how fast Braun was supposed to have travelled. Braun entirely denied having
made the admission. When the conflict was put to Van Zyl in cross-examination,
Budget's attorney objected, saying that Gibbs had not said that no speed was
mentioned. Ill-founded as this objection was, the magistrate upheld it and Braun's
12 counsel moved on to other matters. The magistrate did not expressly rely on this
conversation in his reasons for judgment, although he was clearly under a
misapprehension, and I think it would be dangerous now to attach weight to it,
because cross-examination was unfairly halted, with consequences that no-one can
tell.
So much for Budget's case. Braun gave evidence, stating that Prins's car
turned right across his path without any warning or indication. He applied his
brakes, but it was too late and there was nothing he could do to avoid the ensuing
collision. He was emphatic that he was travelling at less than 100 kph. His speed
was roundabout 80 kph until he saw the speed limit sign, when he slackened pace.
He would not commit himself to any speed. As the interpreter put it, speaking in
the third person "He had other things to do than to look at his speedometer, to try
and avoid an accident". Nor did he make any estimate as to the length of his brake
marks.
13 Braun was an evasive and unsatisfactory witness, and had he had to face a
case of substance he may have been in difficulty. I say this making due allowance
for the fact that he was speaking through a French interpreter. But the case against
him is so inconclusive that I do not think that Budget has discharged the onus of
proving that Braun was exceeding the limit, or was driving in other than the
"cautious and prudent manner" required by the agreement.
This conclusion renders it unnecessary to decide highly debatable questions as to whether a contract was concluded at George and if
it was, whether the fine print on the reverse, which contains the terms on which Budget relies, formed part of it.
At the commencement of the hearing in this court two petitions for condonation were moved on behalf of Budget. They related to the
woeful state of the record. The petitions were allowed to be argued together with the appeal. Volume 5 is supposed to contain exhibits
vital to the decision of the contractual
14 questions. By the time of the appeal volume 5 had run into three editions, and a
supplement was promised for filing after the hearing had concluded. It would
have been impossible to adjudicate the appeal on the two editions that had been
filed by the time that the appeal was set down. Much depended particularly upon
the appearance and content of the single sheet that was handed over and signed at
George, but neither appearance nor content could be extricated from the record.
Such small print as was included was illegible, or nearly so. Another document
contained in the record was in French and Flemish without a translation into any
official language. In retrospect it might have been wiser to allow the appeal to
founder in due course. But the court called for an improvement, which led to a
third edition which comes within striking distance of attainment to a proper
volume 5.
Practitioners have been warned repeatedly of the consequences of
presenting inadequate records - see e g Ensign - Bickford (South Africa) (Pty) Ltd
15 and Others v AECI Explosives and Chemical Ltd 1998 ([2) SA 1085 (SCA) at
1091 D - E. A case with a long record which had been set down for two days was
postponed, with the appellants being ordered to pay wasted costs on the attorney
and client scale (at 1087 E). They may have been lucky, as the court indicated that
a similar failure in the future might lead to an appellant being debarred from
proceeding with his appeal (at 1091 E). Philotex (Pty) Ltd and Others v Snyman
and Others 1998 (2) SA 138 (SCA) at 186 J - 187 D was an instance of a long
record without a proper index. A warning was issued that such a record might be
rejected altogether, or should it mistakenly be accepted, that the attorney might be
ordered to pay costs de bonis propriis. In Darries v Sheriff Magistrate's Court,
Wynberg and Another 1998 (3) 34 (SCA) a series of flagrant breaches of the rules
led to condonation being refused, irrespective of the prospects of success. The
appellant's attorney was ordered to pay certain of the costs de bonis. These are
just some of the more recent cases. Progressively this court is being driven to
16
action and not mere warning. A practitioner who does not do his work properly
should realize that, apart from other consequences, he may find himself having to account to a client with a meritorious appeal that
has been thrown away. There is good reason why there should be a limit to this court's patience. Its members attempt to decide appeals
correctly and speedily; only frequently to be frustrated, impeded, delayed or prevented from doing so because of grossly deficient
records. This has the consequence that the appeals of parties who have prepared their records properly are delayed. They also have
rights. Another area of complaint to which attention has again been drawn recently in Caterham Car Sales & Coachworks Ltd v Birkin
Cars (Pty)Ltd and Another 1998 (3) SA 938 (SCA) at 955 B-F, is main heads of argument which are neither "main" nor "heads"
nor "argument". The preparation of heads requires thought and application, not merely the switching on of an electronic
device. A significant percentage of heads are of little or no help, some are actually an impediment, and most are much too
17 long. What I have said about heads is a general observation and is not directed
at the heads in this case.
The absence of prospects of success is reason enough to refuse condonation, but to it should be added the gross non-compliances with
the requirements relating to the filing of proper records.
Both petitions for condonation are refused with costs. The appellant is ordered to pay the costs of appeal.
W P SCHUTZ JUDGE OF APPEAL
CONCUR HEFER JA VIVIER JA HOEXTER JA HOWIE JA
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