---

FILING SHEET FOR SOUTH EASTERN CAPE LOCAL DIVISIONJUDGMENT

PARTIES:  Moegemat Madiudeen Rensburg and Bharat Chibba                                  

            Case Number:              CA 222/08      

            High Court:                   Eastern Cape Division

            DATE HEARD:           23/03/2010

           

DATE DELIVERED:               08/04/2010

JUDGE(S):                   Kroon J; Roberson J

LEGAL REPRESENTATIVES –

Appearances:

            for the Applicant(s):      Adv Niekerk

            for the Respondent(s):   Adv  Kincaid

Instructing attorneys:

             for the Applicant(s):     Borman & Botha

            for the Respondent(s):   Goldberg & de Villiers

CASE INFORMATION –

            Nature of proceedings.

            Topic:

            Key Words:

           

           

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE, GRAHAMSTOWN)

CASE NO. CA222/2008

In the matter between

MOEGEMAT MADIUDEEN RENSBURG APPELLANT

and

BHARAT CHIBBA RESPONDENT

JUDGMENT

ROBERSON J:-

[1] The appellant, plaintiff in the court below, instituted action in the magistrate’s court, Port Elizabeth, against the respondent (defendant), for payment of damages he allegedly suffered as a result of a motor collision between his vehicle, driven by him at the time, and a vehicle driven by the respondent. The appellant alleged that the sole cause of the collision was the negligence of the respondent. The damages claimed were the costs of repairs to his vehicle, towing charges, and loss of income. The respondent counterclaimed, but the counterclaim was withdrawn at the trial. The magistrate found that the appellant had proved the costs of repairs and towing charges, which amounts totalled R26 515.46, but disallowed the claim for loss of income. On the issue of negligence, he found that the appellant and the respondent were both negligent and apportioned negligence at 50% each. It is not clear from the judgment precisely what his costs order was but it seems he did award the appellant the costs of the claim, including the qualifying expenses of the appellant’s expert witness Kriek, and counsel’s tariff fees. He refused to award the appellant the costs of the counterclaim, which costs had not been tendered when the counterclaim was withdrawn. The appellant appeals against the decision finding him contributorily negligent and the refusal to award him the costs of the counterclaim, but does not appeal against the decision disallowing the claim for loss of income.

[2] The collision occurred in Haworthia Drive, Port Elizabeth, opposite Rotar Street, which ends at Haworthia Drive in a T-junction. Haworthia Drive has a tarred surface and has one lane for each direction of travel. The plaintiff testified that he was travelling along Haworthia Drive, towards the T junction (Rotar Street was a side street to his right) and his speed was 60 kph. It was still light and the conditions were dry. It was common cause that there is a long straight stretch of road along which the appellant would have travelled before reaching Rotar Street. The appellant saw the respondent’s vehicle stationary in Haworthia Drive, on the pavement on the left hand side of the lane in which he was travelling, more or less opposite the entrance to Rotar Street. As he got closer to the respondent’s vehicle, the respondent, without indicating, suddenly turned to the right, across the appellant’s path of travel. The appellant braked and swerved a little to the right but could not avoid the collision. He could not swerve to his left because there was no road he could use. (The photographs of the scene show that in the vicinity of the spot where the respondent’s vehicle was parked, there was a grass verge, a driveway and trees.) There was insufficient time to stop because, as the appellant put it, ‘he turned right, I am talking about seconds and he turned in front of me. Seconds, he turned in front of me.’ The front of his vehicle collided with the right rear passenger door of the respondent’s vehicle. The collision occurred in the appellant’s lane of travel and after the collision his vehicle ended up in his lane of travel and the respondent’s vehicle in the opposite lane. The respondent approached him after the collision and said to him that he had not seen him.

[3] The respondent testified that he was indeed parked on the pavement in Haworthia Drive, as the appellant had said, opposite Rotar Street. He intended to turn right into Rotar Street. Prior to turning, he indicated and looked along Haworthia Drive in both directions to see if it was safe to turn. Seeing no traffic coming from either direction in Haworthia Drive, he turned to the right. When he was on the right hand side of Haworthia Drive the appellant’s vehicle collided with his. When asked to explain where the appellant’s vehicle had come from, if he had not seen it, he said he assumed that the appellant had come at an excessive speed around the curve in Haworthia Drive, some 300 to 500 metres from the point of impact. He acknowledged that if he had seen the appellant he would not have turned.

NEGLIGENCE

[4] In the portion of his ex tempore judgment dealing with negligence, the magistrate said the following:

‘Of course the Plaintiff tends to say, although he is not saying it in so many words, that this other driver made a sudden turn or a turn which was not expected. But if it was so therefore I think ………. the collision on the Defendant’s (he must have meant Plaintiff) version would not have been on the backdoor, it would have been in the front of the vehicle because the vehicle had just turned and therefore it means the collision should have been something like a head on if it is what the Plaintiff is saying.

Secondly on the Defendant’s version if the Plaintiff’s vehicle was not there, where did it come from, why did it just surface and collide with him? Therefore it means the vehicle was there and of course the Defendant did not look, the same as also the Plaintiff. Therefore I think ………….. both drivers …………. did not exercise what is expected of a reasonable driver and as such I think on that score we have to apportion damages on a 50/50 basis.’

Presumably, although he did not say so expressly, the magistrate meant that if the appellant had kept a proper lookout he would have seen at an earlier stage that the respondent was turning across his path and would have been able to avoid the collision.

[5] Mr. Kincaid, for the respondent, conceded that the respondent was negligent but supported the finding of contributory negligence on the part of the appellant.

[6] The respondent bore the onus of proving contributory negligence. It was not in dispute that the appellant was travelling along Haworthia Road and had the right of way. It was also not in dispute that the respondent was stationary on the pavement as the appellant approached. In those circumstances, and in the absence of an indication by the respondent that he intended to turn to the right, it was reasonable for the appellant to assume that the respondent would not cross his path of travel, and to proceed accordingly. (See Moore v Minister of Posts and Telegraphs 1949 (1) SA 815 (A) at 825-826.) Although the respondent said that he had indicated, the appellant’s evidence that the respondent had not indicated was not disputed in cross-examination. This was a very important aspect of the respective versions and it may fairly be concluded that the respondent’s evidence that he indicated was an afterthought, and the appellant’s evidence that the respondent did not indicate should be accepted.

[7] The thrust of the argument on behalf of the respondent that the appellant was contributorily negligent was that he did have time to take avoiding action and that the respondent’s right hand turn was not as sudden as the appellant had described it. The respondent could throw no light on the appellant’s conduct because he did not see the appellant’s vehicle. However, Mr. Kincaid relied on the evidence of the appellant himself, as well as the fact that the appellant’s vehicle struck the rear door of the respondent’s vehicle. He submitted that the appellant’s evidence was unreliable and referred to portions of the appellant’s evidence in cross-examination, which, he submitted, showed that the appellant could have taken avoiding action, but did not do so because he believed he had the right of way.

The portions of evidence he referred to were as follows (Mr. Dala appeared for the respondent at the trial):

Appellant: What happened is, I was driving down the road, Mr. Chibba actually turned around, looked at me in my face, looked at me and still drove right in front of me. That is when he stepped out of his vehicle, came up to me and told me “you know what, I did not see you”. I could not understand because he was looking at me.

Mr. Dala: Just stop there. You are saying that Mr. Chibba looked at you.

Appellant: Yes.

Mr. Dala: So he saw you and you saw him.

Appellant: Yes.

Mr. Dala: Now Mr. Chibba sees you, you see him, you see then if we are to accept what you say, the motor vehicle is standing (indistinct).

Appellant: But he does not have the right of way, I am the one who has right of way, I am in the road, he is not in the road.

Mr. Dala: Now I am putting to you sir that you could have moved to the right. There was no oncoming traffic. Is that not so sir, that if you moved further to the right (indistinct). I can see that you are thinking deeply (indistinct).

Appellant: I am not thinking deeply, I am just thinking of the rules of the road.

Mr. Dala: (Indistinct) rules of the road, do not worry. We are not going to worry now about the rules of the road, the accident did happen. Sir just on what you tell us, you (indistinct) moved a little to the right. Now I am putting to you if you moved further to the right you could have passed (indistinct) and that was not impossible to do so. There were no other traffic in the lane, is that not so? If you think back now sir.

Appellant: I could have but it did not happen so.

[8] I am of the view that it cannot be inferred from these exchanges that the appellant had earlier warning of the respondent’s right hand turn and that he had time to take avoiding action, but chose not to do so. There was no concession in these exchanges that the turn was not as sudden and unexpected as he had described, both in evidence in chief and in cross examination. When he said it was possible to have moved to the right around the respondent’s vehicle, it must be remembered that the respondent’s vehicle was moving and that to move to the right would have meant to go around a moving vehicle onto the wrong side of the road. The appellant’s apparent concession here was in my view purely theoretical and bore no relation to the practicalities of the immediate situation with which he was faced.

[9] Mr. Kincaid submitted that other than the appellant’s evidence that there was insufficient reaction time, there was no evidence of the distance between his vehicle and that of the respondent when the respondent commenced his turn. There was also no evidence of the road width, the point of impact on the road surface and no reliable evidence of speed. I do not think that the lack of these details detracts from the reliability of the appellant’s evidence, which was clearly that the respondent’s turn was sudden and unexpected, leaving the appellant insufficient time to avoid the collision. In such circumstances, a driver in the position of the appellant cannot be expected to estimate distances, or the speed of the other vehicle, or make a note of the point of impact. The prominent aspects of the collision would be the suddenness and unexpectedness of the respondent’s turn and the lack of opportunity to avoid the collision. As the appellant said, ‘I am talking about seconds’.

[10] With regard to the fact that the respondent’s vehicle was struck on the rear passenger door, I am of the view that there was no evidential basis for the magistrate to find that on the appellant’s version he would have collided with the front side of the respondent’s vehicle. Once the respondent started to turn, it would not have taken long for the vehicle to cross the appellant’s lane and the fact that the appellant’s vehicle collided with the rear side of the respondent’s vehicle does not detract from the probabilities of the appellant’s version. After all, the difference in distance between the front side and rear side of the respondent’s vehicle was, in the circumstances, minimal.

[11] I am therefore of the view that there was no evidence on which the magistrate could find that the appellant was contributorily negligent. On the appellant’s version, he was not negligent. The respondent suddenly and unexpectedly turned across his path of travel, leaving him insufficient time to avoid the collision. On the other hand, the respondent failed to keep a proper lookout and turned into the path of travel of the appellant when it was dangerous and inopportune to do so. The magistrate should have found that the sole cause of the collision was the negligence of the respondent.

COSTS OF COUNTERCLAIM

[12] In his judgment the magistrate said that the counterclaim was not before him and he could not make an order on the counterclaim. Mr. Kincaid conceded that the appellant should have been awarded the costs of the counterclaim.

ORDER

[13] The following order is made:

[13.1] The appeal is upheld, with costs.

[13.2] The judgment of the magistrate is set aside and substituted as follows:

(a) The defendant is to pay to the plaintiff the sum of R26 515.46

(b) The defendant is to pay interest on the sum of R26 515.46 at the rate of 15,5% per annum from date of service of summons.

(c) The defendant is to pay the plaintiff’s costs of the action, on the party and party scale, such costs to include the qualifying expenses of Kriek, if any, and counsel’s fees on the party and party tariff.

4. The defendant is to pay the plaintiff’s costs of the counterclaim.

________________

J.M. ROBERSON

JUDGE OF THE HIGH COUT

KROON J:

I agree

__________

F. KROON

JUDGE OF THE HIGH COURT

---