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IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPEDIVISION: GRAHAMSTOWN)

                                                                             CASE NO: 3253/2009

                                                                             CA21/2012

 

In the matter between:

ELIZABETH-ANNE FERREIRA                                                                            APPELLANT

And

OCKERT JOHANNES VAN HEERDEN                                                      1^ST RESPONDENT

TREVOR WELLEMSE                                                                                2^ND RESPONDENT

MADIBA LOGISTICS CC                                                                            3^RD RESPONDENT

JUDGMENT

Coram :Pakade ADJP, Van Zyl J and Smith J.

PAKADE ADJP:

[1] The Appellant appeals to the Full Bench of this Court against the judgment of the court a quo in Grahamstown, in which Grogan AJ found the appellant liable for damages suffered by the first and second respondents as a result of a motor vehicle collision between a 45 ton truck with a trailer combination ( the truck ) and a two ton Nissan  delivery van ( the van). The appeal is with the leave of the court a quo.

[2] In this judgment I will keep the citation of the parties as it was in the court a quo, the respondents being the plaintiffs and the appellant the defendant . The first and second plaintiffs are the joint owners of the truck and trailer combination. The defendant is the executor of the estate of the deceased driver of the van. The plaintiffs instituted an action against the defendant claiming damages arising from the collision, amounting to R 305 775.41 and R50 160.23 for repairs to the truck and trailer, respectively.

[3] The plaintiffs claim that the collision was caused solely by the negligent conduct of the driver of the van by cutting the curve in front of the truck and crossed into the lane of travel of the truck before colliding with it. The defendant contended, on the contrary, that the collision was caused by the driver of the truck by traveling at an excessive speed on the bridge resulting in it losing control thereof, and crossing into the lane of travel of the van across the bridge.

[4] The issue is whether the plaintiffs have discharged the onus of proving on a balance of probabilities that the driver of the van was negligent as alleged, and that his negligent conduct was the sole cause of the collision.   The court a quo found that the driver of the van was negligent and that his negligent conduct was the sole cause of the collision. The appeal is directed against this finding.

[5] The central issue is the identification of the  point of collision of the two vehicles .The answer depends:  first, on  whether  or not there is debris evidence found at the scene; second, the spot where the vehicles landed after the accident and third, the topography of the road on which the accident occurred. The witnesses, Mr Van Heerden, Mr Van Der Vyver, Mr Bowles and MrKoklow Lawrence were called by the plaintiffs to give evidence. I will start by analyzing the evidence of Mr Van Heerden with a view to determining if the plaintiffs have discharged the onus of proving the point of impact on a balance of probabilities.

[6] It is common cause that on 19 January 2008, and at or near the bridge across the Keiskammariver on the R72 public road between Port Alfred and East London, a collision occurred between the truck with registration letters and numbers [………..] and the van with registration letters and numbers […….]. The truck was carrying a container filled with 27 tons of rice. It was being driven by a young man aged 20, Mr Van Heerden, who had acquired his driving license six months earlier.  The van was driven by Mr Van Zyl, who together with his wife, was conveying their son to Nelson Mandela Metropolitan University in Port Elizabeth.  Mr and Mrs Van Zyl died in the accident while Mr Van Zyl, junior, miraculously survived the accident.

[7] The truck was traveling from Port Elizabeth to East London, while the van was traveling from East London to Port Elizabeth. Immediately across the bridge towards East London, the road assumes two lanes which curve sharply in a north easterly direction and then begins a long incline to the top curve .The collision occurred immediately after the truck had crossed the bridge. This long stretch of the road comprises two lanes for vehicles traveling in opposite directions, and emergency lanes marked by yellow lines on each side. After the collision the vehicles landed on the correct traveling side of the van which is the incorrect traveling side of the truck.   As a motorist descends towards the bridge up to the spot on which the two vehicles landed after the collision, the road is clearly visible from the first curve on top as it curves to the right.

[8] The synopsis of Van Heerden’s testimony is that he drove a vehicle of the type he was driving on the day of the accident twice before on the R72 road.  On one of the two occasions he was in the company of his uncle because he only had a learner driver’s license at the time and, in the second occasion he was driving alone, and it was then that he was involved in accident which forms the subject matter of this case.

[9] On the day of the accident, he was driving the truck traveling from Port Elizabeth to East London.  He was carrying rice in a six meter container on the trailer.  He was traveling in a convoy with his two brothers who were driving similar trucks. On 18 January 2008, they had put up for the night in Port Alfred because it was late. They left Port Alfred at 3h30 on 19 January 2008 for East London.   His two brothers were traveling ahead and in front of him. As it was still dark they had kept their head lights on.  The weather was fine.  It was not raining and was not misty.  The road was not busy as it was still very early in the morning.

[10] The accident occurred at 5h30. Because he knew from his limited use of the R72 public road that there is a hump on Keiskamma Bridge, he decided to engage the fifth gear as he descended to the bridge, and the speed of the truck accordingly reduced to between 50 and 60 km per hour.  The road curves towards the left (“links draai”) across the bridge to the East London direction.  After crossing the bridge, he started traveling up the road with his left wheels on the yellow lane and right wheels in the middle of the lane.  At that time he was busy negotiating the bend to the left and that is why the left wheels were on the yellow lane and right wheels in the middle of the white lane.  He was traveling at a speed of between 50 and 55 kph at that time. He testified it to be so because once a truck begins to climb an uphill it automatically reduces speed.

[11] As he was traveling in the manner aforesaid, he saw a white motor vehicle at a distance of 30 meters from him traveling towards him on its correct side of the road.  The next time he saw it was on his side of the road and he then tried to swerve to the left.  He then heard a sound and the truck began to swerve to the right and fell on the right side of the road.  He did not pay attention as to whether the white motor vehicle had its head lights on or not.  He only saw that it was a white motor vehicle.  While the truck was resting on its right side he then got out through the left window.

[12] Mr Van Heerden was cross examined and he contradicted himself. The court a quo, in my view, unjustifiably minimized these contradictions. He testified that the first time he saw the white motor vehicle it was 30 meters away from him. He did not observe whether it had its head lights on or not because he was concentrating on the truck.  However, in a statement he made to the policeman he had stated that he saw lights from the front, and moved the truck to the left hand side of the road.  After he had seen the motor vehicle 30 meters away from him, he next saw it when it was close to him - and by that he meant that it was 2 meters from the truck - and he swerved the steering wheel to the left side of the road.  It then felt as though the right front tyre might have burst and he could no longer steer the truck to the left side.  The white van came to his side of the road and collided with the truck. This did not appear in the two statements he had made to the policeman nor did he inform any of the two policemen at the scene, namely, Mr Bowles and Mr Koklow, that the van had come on to his line of travel.

[13] He testified that he could not do anything to avoid the accident as the van was too close to him. “toe eksien toe syweer by my. Hoe lank was dittussen die eerstekeerwatjyhomsien en toe U se’ hy was daar by jou? Was secondes-vier/vyfsecondes”. After hearing the sound of what he thought was a burst right front tyre, the truck overturned to the right side, which is the wrong side of the line of travel of the truck.  Even at the stage of the truck overturning, Van Heerden had still not realized that he had been involved in a collision. It was only after he had been alerted to it by Mr Koklow, who showed him Van Zyl, junior, thinking that Van Zyl was his brother, that Van Heerden then saw the trapped van and the bodies of the deceased persons under the trailer of the truck.

[14] He informed the policeman in his statement that he noticed the vehicle next to him. He did not say it was ahead of him. In another statement he said " toe eksien toe is die wit ding by my ". He still did not say it was ahead of him. In his answer under cross examination, he testified that he saw the white van before going over the bridge. This is in contrast with his earlier version that he saw it when it was close to him, or 30 meters from him, or next to him.

[15] There is a serious contradiction as to the distance he first noticed the van away from him. His evidence is unreliable in that respect. He would estimate that distance to about 600 paces, and next saw it within a distance of two meters from him.  His evidence is a confused conjecture and should have been approached with caution by the court a quo, especially because he was a single witness.  Mr Van Heerden was also not certain of the speed limit allowed for motorists on that part of the road.  He estimated it to be between 80 to 100kms per hour.

[16] The police sketch plan of the scene was drawn by Mr Frank Allen Bowles, a policeman stationed in East London. It shows gouge marks of varying lengths on the correct side of travel of the truck. They are marked D-J. Their lengths are D-13.2m; E-12.6m; F-20.6m; G-21.4m; H-46.5m; I-1.6m; and J-5.8m. The significance of these gouge marks would assist in locating the point of impact if they occurred during the accident. Mr Van Heerden was unable to indicate a point of impact upon being requested by Mr Bowles to do so.  Upon being rescued by MrKlokow out of the truck through the window, Mr Van Heerden made the following meaningful voluntary and spontaneous statement "Oomek is in die kak" . Van Heerden clearly had limited time for observation and for this reason his evidence is fragmentary. Grogan AJ acknowledged this fact but based on his demeanour, he found Van Heerden to be a credible witness. It is trite law that credibility findings of the trial court cannot be disturbed on appeal save in the case of clear misdirection. I will revisit this point later in the judgment.

[17] Mr Bowles marked a spot at the beginning of gouge mark D as the point of impact. He did not say, however, that those gouge marks were still fresh and indicative of having been caused by the accident.  He testified that he estimated the point of impact from the gouge marks he saw on the road as there was no concentration of debris which would assist him to locate it.  He testified that on his arrival at the scene he walked down from the wreckage to the bridge together with Mr Van Heerden looking for the concentration of the debris but in vain. Mr Van Heerden did not testify as to the presence of debris concentrated at a certain point in the scene. It is worth noting at this stage that none of the three witnesses, namely , Mr  Van Heerden , Mr Bowles and Mr Koklow saw any debris, concentration of glass or spilled fluid oil at the scene, which could help determining the point of impact.

[18] It was put to Mr Bowles during cross examination by Counsel for the plaintiffs that the point of impact he had located at the beginning of gouge mark D is in fact the point of impact which had also been located by his expert witness, Mr Van der Vyver. That point of impact is located on the north bound lane but further south down the road towards the bridge.  In contrast to the evidence of Mr Bowles , Mr Koklow and Mr Van Heerden that there was no debris at the scene , Mr Lawrence of the Fire Department of  the Buffalo City Municipality gave evidence  that there was debris at the scene which was removed by him and his team right in the middle of the road .  On this fact , Mr Lawrence ' s testimony in the court a quo is that the debris started at gouge mark H and there was no debris around other gouge marks .  The debris was on the left and right hand side of gouge mark H and nowhere else .He said it is that debris that caused an obstruction on the road which resulted in the diversion of traffic in order to drive past the scene of accident. However, when he was confronted with photograph C50 which depicts gouge mark H, but showing no debris on the left and right sides thereof, he could not justify his evidence that there was debris around gouge H.

[19] He later referred to photo C13 which shows debris on the yellow lane.  That debris could not have obstructed the traffic and could not have served as a pointer to the point of impact.  In my view his credibility as a witness is tarnished by photograph C50.  His evidence that there was debris in gouge mark H in contrast to Mr Bowles' evidence that there was none , cannot be preferred to that of Mr Bowles.  As a matter of fact other witnesses who were at the scene before Mr Lawrence, including Mr Van Heerden, Mr Bowles and Mr Koklow did not see the debris.

[20] Up to this stage of the plaintiffs’ evidence the point of impact had not been proved. Mr Van Heerden was unable to prove it.  There was no debris, or concentration of glass, or spilled oil from which to determine it. 

[21] Two expert witnesses testified in the court a quo, namely Mr Van Der Vyver for the Plaintiffs and Mr Baart for the defendant.  The court a quo relied on the circumstantial evidence of reconstruction of the scene by Mr Van Der Vyver and accepted his estimated point of impact.  This is the point indicated by Mr Bowles, based on a gouge mark. The opinion of these two expert witnesses is contradictory.  I will start with the evidence of Mr Van Der Vyver.  According to the expert summary he was to testify about the accident being supported by the data collected from the scene.  He testified that the truck was on its correct side of the road at the time of the collision and that it was not traveling at a high speed.  He based this finding on the photographs, sketch plan and measurements of certain points at the scene of accident.

[22] He testified that the two motor vehicles were seventy meters apart at two seconds before the collision.  At that distance the van proceeded from the south bound lane traveling at 80 km per hour towards and over the centre line cutting the bend on the side, but slightly cutting the bend on the inside.  That cutting of the bend was assisted by the fact that the road was sloping from the left to the right. Then the van struck the right side of the truck at a very shallow angle causing some force on the rim of the tyre. The result of the impact is that there was a blow out of the front tyre. The notion that the burst front tyre was the cause of the accident was, by agreement, dispensed with.

[23] Mr Van Der Vyver confirmed the point of impact as depicted by Mr Bowles on the police sketch plan.  That point is marked D and is at the top of a gouge mark on the right hand side of the road from Port Alfred, which is marked H.

[24] Three witnesses testified on behalf of the defendant, Van Zyl junior, Mr Martins and Mr Baart. I will consider their evidence in turn.

[25] Van Zyl was traveling with his parents to Nelson Mandela Metropolitan University in Port Elizabeth. They were traveling in a van from East London. They had not fastened their seatbelts.  As it was still early in the morning, he fell asleep. He woke up for few a minutes when they reached the top of Keiskamma cuttings and had a conversation with his father. He again closed his eyes and at that stage he heard a scream from his mother and quickly opened his eyes. He saw some sparks coming from the front right of the van. This was after he had seen the lights of a motor vehicle at a distance of 50 meters from the van.

[26] Professor Baart is an expert witness who also testified on behalf of the defendant.  His evidence is that according to photos no.2 and 3, the truck was traveling at a high speed of 100 km per hour down the hill and across the bridge and that while it was in the process of taking a turn to the left it overturned and crushed the van under its trailer and the load.  He opined that for a vehicle to take a turn to the left, the front tyres are turned to the left.  Sideways force to the left is then exerted on the tyres by the road and if the vehicle is massive and traveling fast, the sideway force can be great enough to push the tyre to the left, thus exposing the rim. This side way force also causes the weight of the vehicle to be thrown to the right.  If the vehicle is traveling at a high speed the sideway force can cause the vehicle to capsize on to its right side, particularly if its centre of gravity is high of the ground.  If the wheel rim touched the surface of the tarred road it can cause sparks. This supports the evidence of Van Zyl that sparks preceeded the collision. He opined that the collision was on the correct traveling side of the van because the latter could never have forced the truck to its right. Prof Baart further opined that the truck was traveling fast downhill in order to gain speed uphill and in the process misjudged the corner, steered the truck on the left and fell on the van on the right.By steering hard to the left he caused gouges in the tarred road, which are moving to the left in an arch. There is merit, in my view, in the opinion of Prof. Baart.

[27] Contrary to this opinion is the opinion of Mr Van Der Vyver that the van hit the right front tyre of the truck at a very shallow angle to the extent that it shifted back.  He attributed this to be the reason for the truck to become unsteerable to the left, and why it veered strongly to the right. He said there is a probability that the sparks were caused by the contact of the rim of the front tyre of the truck with the surface of the tarred road because of centrifugal force which was caused by the turning of the heavily loaded truck. It could be that very contact of the rim with the surface that caused gouges on the road.

[28] Professor Baart agrees with Mr Van Der Vyver that the right wheel of the truck was pushed backwards.  He further observed that if the van had collided with the truck from the right, the force would have been towards its left.  The van could not have forced the truck to go to its right across the middle line. The van would have been steered to the right from its course of travel if it did cross the centre line and this would occur if the steering wheel was damaged.  The question could be why the driver of the van steered towards a huge truck which was approaching in front of him with head lights on.

[29] The court's approach to the evidence of an expert in motor vehicle collisions is authoritatively set out in Motor Vehicle Assurance Fund v Kenny, [1]in which Eksteen J ( the senior)said at p.436/7:

“Direct or credible evidence of what happened in the collision, must, to my mind, generally carry greater weight than the opinion of an expert, however experienced he may be, seeking to reconstruct the events from his experience and scientific training.  Strange things often happen in a collision and, where two vehicles approaching each other from opposite directions collide, it is practically impossible for anyone involved in the collision to give a minute and detailed description of the combined speed of the vehicles at the moment of impact, the angle of contact or of the subsequent lateral or forward movements of the vehicles.  …An expert’s view of what might probably have occurred in a collision must, in my view, give way to the assertions of the direct and credible evidence of an eye witness.  It is only where such direct evidence is so improbable that its very credibility is impugned, that an expert’s opinion as to what may or may not have occurred can persuade the court to his view (cf Mapotav SantamVersekeringsmaatskappyBpk[2] and Madumise v Motor Voertuigassuransiefonds "[3]).

[30] This view has to be considered in the light of the view expressed by Wallis JA in Biddlecombe v Road Accident Fund, unreported judgment of SCA, case no: 797/10 delivered on the 13 November 2011. There the learned Judge of Appeal said at page 8:

“In every case it is necessary for the trial Judge to identify an appropriate point at which to commence the analysis of the evidence.  In some cases that may be the eyewitness evidence, but in others it may be more appropriate to commence with expert evidence.  For example there may be physical evidence, such as skid marks, collision damage to the vehicles, the position of the vehicles after the accident or the location of debris that, when viewed in the light of established scientific data, such as the distance that a motor vehicle will travel at a particular speed, provides a definitive factual background against which to weigh the merits of the eyewitness account of what occurred.  The evidence of the experts may be of great of assistance in understanding and giving appropriate weight to this evidence. In such a case, to start with the eyewitness evidence and reach a provisional conclusion that the expert evidence must then displace burdens the expert testimony with an onus that is not warranted and separates into two discreet enquiries what is a single enquiry".

[31] The learned Judge, however, approved the dictum by Esksteen J above.  Wallis JA continued thus in paragraph [10] of the judgment

“This is not to say that the caution with which our courts have always approached expert witness on the mechanism by which motor accidents occur and their expressed preference for eyewitness testimony is not on occasions justified…The expert tasked with reconstructing what occurred is often dependent for the reconstruction not simply on the application of scientific principle to accurate data but on calculations based on imperfect human observation.  The fact that the reconstruction rests on a potentially imperfect factual foundation is the reason for caution in determining its evidential value.  However, whether that is so in any particular case will depend upon an assessment of the degree to which it rests upon ascertainable and measurable facts and the application of scientific principles to those facts. It is undesirable for a court to adopt an a priori approach to its task of weighing eyewitness and the expert testimony where the two conflict”.

[32] The court a quo found the evidence of Mr Van Heerden  morecredible than that of Mr Van Zyl junior and then sought to find corroboration of his evidence from Mr Van der  Vyver's testimony . I do not agree with the credibility findings of the court a quo in respect of  both Mr Van Heerden and Mr Van der Vyver’s evidence.

[33] The defendant placed much reliance on the evidence of Mr Roy Martin. He was traveling on the same road from East London towards Port Alfred. His vehicle and the van frequently overtook each other interchangeably whilst traveling in the same direction, but before the collision Mr Martin finally overtook the van. When he entered the curve before the bridge, he saw a truck approaching downhill traveling extremely fast. He estimated its speed at 90 to 100 kph. He entertained the fear that the truck would not be able to negotiate the curve before the bridge at such a high speed and he decided to accelerate so that he was out of the curve before the truck reached it. At that stage the van was following his vehicle. He did not look back but drove away. Mr Koklow, who was following the van, informed him later of the collision between the truck and the van.

[34] The clear and credible evidence, in my view, is that of the defendant and the witnesses on which reliance was placed. The same cannot be said of the evidence of the plaintiffs’ witnesses. The evidence of Mr Van Heerden is contradictory and unreliable.  He seems not even to know that he had been involved in an accident. He was unable to indicate the point of impact. There was no debris, spilled oil and pieces of shattered glass from which the point of impact could be determined. The gouges were caused by the truck when it was turning to the left and cannot be a true indicator of a point of impact. Therefore, even the point of impact indicated at point D of the sketch plan is not supported by objective facts at the scene. Reliance on the gouge in the road in this regard is speculative and unreliable as to its cause. The probabilities are in favour of a conclusion that the truck descended the other side of the bridge at an unsafe speed and having underestimated the curve steered the truck hard to the left side thus causing it to overturn onto its right side, or into the approaching van which was traveling in the opposite direction. This conclusion is supported by the probabilities as they appear from the evidence of Van Zyl, Martin and Prof Baart.

[35] The evidence of reconstruction by Mr Van der Vyver is unreliable and cannot in my view assist the plaintiffs.  It gives two versions, first the version supported by the expert summary, and the second version reconstructed by him during the trial which negated the first version.  The reason he gave in his evidence for the damage to the vehicle differs from the expert summary. In his evidence, the damage was caused by the bolt in the rear wheels, whereas in the expert summary it was caused when the vehicle overturned. He then reneged onhis previous opinion by saying he does “not align himself with that opinion anymore".

[36] I agree with the criticism of Mr Van Der Vyver’s evidence by Mr Cole, counsel for the defendant, that his reconstructed evidence on the presence of debris on the road is refuted by direct evidence of Mr Van Heerden , Mr Bowles and MrKoklow as well as of photo no. C50 that there was in fact no debris. He did not readily concede that his report was wrong in this respect but merely said it is "mystifying", while at the same time advancing an excuse that the debris might have been swept away after the collision. Mr Van Der Vyver appears to have adapted his report so that it should accord with the evidence of plaintiffs’ witnesses. For instance, Van Heerden said in a statement he made to the police that the van “got under the motor vehicle”,but in his evidence he denied any knowledge that the van went under the horse. Mr Van Der Vyver’s evidence strongly suggests an adjustment to his opinion so as to effect a change on this aspect as well. Further, Mr Van Der Vyver’s reconstructed evidence suggests that there would have been a violent grinding of metal in a violent impact. The evidence of the driver, Van Heerden, does not support this opinion because he did not even know that there was a collision, which he would certainly have been aware of had there been a violent grinding of metal in a violent impact. Later Mr Van Der Vyver moderated this opinion by saying that the driver should have felt a slight jerk.

[37] Further indications of the unreliability of Mr Van Der Vyver 's opinion evidence is illustrated by the fact that, while the van was under the wheels of the heavy truck and dragged uphill for sixty meters, the passenger Van Zyl was not ejected from the vehicle during the head on collision. He also survived being crushed by the wheels beneath the truck. Van der Vywer’s answer is that the "seatbelt did its duty. It managed to absorb the huge change in velocity ......If he had no seatbelt on, I would have expected him definitely to go through the windscreen". This evidence cannot co-exist with the evidence of Van Zyl that he was not wearing a seatbelt. It is unreliable and should not have been accorded the weight which the court a quo gave thereto.

[38] Further, Mr Van Der Vyver gave evidence on photographs which were not referred to in the expert summary. The opinion in the expert summary and in court that “the two vehicles remained in contact with the truck pushing the van backwards", is inconstistent with the evidence that the van was trampled under the wheels of the trailer.

[39] I am respectfully of the view that the court a quo misdirected itself in relying on the evidence of reconstruction of the scene as corroboration for the evidence of Van Heerden. The court a quo placed undue emphasis on the demeanour of these two witnesses in his finding on credibility. It is dangerous to do so as demeanour is but a “tricky horse to ride”. As Diemont once said in S v Kelly[4]

“There can be little profit in comparing the demeanour only of one witness with that of another in seeking the truth.  In any event , as counsel conceded in a homely metaphor, demeanour is , at best , a tricky horse to ride . There is no doubt that demeanour -' that vague and undefinable factor in estimating a witness's credibility” (per Horwitz AJ in R v Lekaota[5]) can be most misleading. The hallmark of a truthful witness is not always a confident and courteous manner or an appearance of frankness and candour. ^. As was stated by Wessels JA in Estate Kaluza v Braeur[6] more than a century ago in this court:

‘A crafty witness may simulate an honest demeanour and the Judge     had often but little before him to enable him to penetrate the armour of a witness who tells a plausible story’. On the other hand an honest witness may be shy or nervous by nature, and in the witness box show such hesitation and discomfort as to lead the court into concluding, wrongly, that he is not a truthful person.

Nevertheless, while demeanour can never serve as a substitute for evidence, it can, and often does ' reflect on and enhance the credibility of oral testimony'. The experienced trial officer is well aware of this fact; it is a matter of common sense. He observes the witness closely - evasions,hesitations and reactions to awkward questions. He will note, if he is alert, ‘all the incidental elements so difficult to describe which make up the atmosphere of an actual trial'

[40] In SantamBpk v Biddulph[7]Zulman JA at paragraph [16] opined that the importance of demeanour as a factor in the overall assessment of evidence should not be overestimated. He then interfered with the credibility findings of the trial court on the witness's testimony. He relied for this proposition, on President of RSA and Others v South African Rugby Football Union and Others[8] citing the following extract from the judgment:

" The truthfulness or untruthful of a witness can rarely be determined by demeanour alone without regard to other factors including , especially , the probabilities ......a finding based on demeanour involves interpreting the behaviour or conduct of the witness while testifying......A further and closely related danger is the implicit by demeanour alone without regard to other factors including , especially , the probabilities ......a finding based on demeanour involves interpreting the behaviour or conduct of the witness while testifying......A further and closely related danger is the implicit assumption, in deferring to the trier of fact's findings on demeanour, that all triers of fact have the ability to interpret correctly the behaviour of a witness, notwithstanding that the witness may be of a different culture, class, race or gender and someone whose life experience differs fundamentally from that of the trier of fact".

[41] Also in Medscheme Holdings (Pty) Ltd and Another v Bhamjee[9] the court interfered with the credibility findings based on the demeanour of a witness arrived at without regard to the probabilities of the case. Nugent JA said at paragraph [14] of the judgment:

“It has been said by this Court before, but it bears repeating, that an    assessment of evidence on the basis of demeanour - the application of what has been referred to disparagingly as the 'Pinochio theory' without regard for wider probabilities, constitutes a misdirection. Without a careful evaluation of the evidence that was given..........against the underlying probabilities .......little weight can be attached to the credibility findings of the court aquo. Indeed, on many issues, the broad credibility findings, undifferentiated as they were in relation to the various issues, were clearly incorrect when viewed against the probabilities ".

[42] I am, as stated earlier mindful of the fact that the demeanor and credibility findings of a trial court will ordinarily not be lightly disturbed on appeal.  The court a quo, however, misdirected itself in finding that because it is not apparent from the demeanor of the witness Van Heerden that he was lying, it can “therefore be rejected only if his version is itself improbable or if it is inconsistent with the indirect evidence presented by the defendant and with the inferences that can safely be drawn from that evidence.” It is undesirable for a court to first consider the question of the credibility of a witness and then, having concluded that enquiry to consider the probabilities of the case, as though the two aspects are separate enquiries.  “In deciding whether the plaintiff has discharged the onus of proof, the estimate of the credibility of a witness will be inextricably bound up with a consideration of the probabilities of the case” (National Employees’ General Insurance  Co Ltd v Jagers[10]and Stellenbosch Farmers’ Winery Group Ltd and Another v Martell Et Cie and others[11])

[43] The court a quo appear to have failed, having accepted that it was dealing with two mutually destructive versions, to also deal with, or at least adequately address the issue of the reliability of Van Heerden’s evidence.  (See Stellenbosch Farmers Winery Group Ltd and another v Martell Et Cie and others supra at para (5)).  As stated, the evidence of this witness, which the court a quo described as “sketchy” and “fragmentary”, is vague and unsatisfactory.  His evidence must be weighed against such facts as the absence of a debris field, the position of the two vehicles on Van Heerden’s incorrect side of the road after the accident, and the probabilities which are to be determined by having regard to firstly, the accepted evidence that Van Heerden, descending towards the bridge in a fully laden truck, and after crossing the bridge had to execute a relatively sharp curve in the road, and that the momentum of the truck was towards the right.  This required Van Heerden to timeously execute a turn to his right in order to avoid the truck from straying onto its incorrect side of the road. Secondly, the van was travelling down a decline towards the bridge.  The road is such that the view of a vehicle approaching from that direction is unobscured towards the bridge.  For the driver of the van to have strayed onto his incorrect side of the road would have meant the execution of a maneuvre in the face of oncoming traffic. 

[44] The evidence of the plaintiffs’ expert does not provide assistance in determining whether the onus has been discharged.  His attempt to reconstruct the accident is anything but satisfactory.  To accept his evidence simply on the basis that because the defendants’ expert was unable to “advance any tenable explanation for the gouge”, the collision must have occurred as suggested by the plaintiff’s expert, is to lose sight of the fact that the absence of a debris field leaves the proposed scenario of defendant’s expert without factual support.  The absence of a sufficient factual basis presents too much room for speculation, evidenced by the change in position of the defendant’s expert during the course of giving evidence.  This calls for the exercise of caution in assessing the evidential value to be placed in the expert opinion, which “inevitably is based on reconstruction” (Van Eck v Santam Insurance Company Limited[12]) As stated by Eksteen J in Motor Vehicle Assurance Fund v Kenney[13],“Strange things often happen in a collision. ”Faced with an imperfect factual foundation, the temptation to fill in gaps with what amounts to conjecture, is something that should be avoided.

[45] On the evidence as a whole the court a quo, in my view, should have found that the evidence of the plaintiffs' witnesses fell far too short in discharging the onus of proving the negligence of the driver of the van. It should, in my view, have absolved the defendant from the instance.

[46] In the premises, I make the following order:

Order

1. The appeal is allowed with costs;

2. The judgment of the court a quo is altered to:

2.1. Absolution from the instance is granted,

2.2.The plaintiffs are ordered to pay the costs of the action, including the qualifying expenses of Prof Baart and the defendant's photographs,  jointly and severally, the one paying the other to be absolved,.

_______________

LP Pakade

ACTING DEPUTY JUDGE PRESIDENT

_________________

D Van Zyl

JUDGE OF THE HIGH COURT

_______________

J Smith

JUDGE OF THE HIGH COURT

For the Appellant          :         Adv Cole

Instructed by                :         WheeldonRushmere& Cole

                                                    119 High Street

                                                    GRAHAMSTOWN

 

For the Respondent       :         AdvGreig

Instructed by                  :         MessrsNetteltons

                                                     118A High Street

                                                     GRAHAMSTOWN

 

Heard on                        :         03 September 2012

Date delivered                :         20 February 2014

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