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IN THE HIGH COURT OF SOUTH AFRICA

BISHO

CASE NO. 2030/05

In the matter between:

LUMUMBA MAKAULA Plaintiff

and

MEC FOR THE DEPARTMENT OF

SOCIAL DEVELOPMENT Defendant

J U D G M E N T

SANGONI J:

1. The plaintiff, Lumumba Makaula, is a resident of Mvuzi Location, in the district of Mount Frere. In these proceedings the plaintiff is claiming a sum of R227 842.30, representing damages to its motor vehicle, suffered as result of a collision between its vehicle and that of the defendant on 28 April 2004 along the N2 road between Peddie and Grahamstown. It further claims a sum of R4 470.17 as a collective for towage fees, assessor fees and rental fees.

2. The defendant is the Member of the Executive Council for the Eastern Cape Department of Social Development.

3. The cause of action is based on the alleged negligence of the driver of the defendant’s vehicle at the time of the collision.

4. In the pre-trial minute signed on behalf of the parties on 14 March 2007 the defendant denies that the damages to the vehicle amount to R227 842.30 but admits the extant of the incidental expenses, referred to above, in the sum of R4 470.17. Mr Bezuidenhout, an insurance broker, testified on behalf of the plaintiff, with regard to the pre-accident and post-accident value of the plaintiff’s vehicle. In the process he stated how the plaintiff’s vehicle was damaged. According to him the vehicle sustained impact damage to the entire right of the body, windscreen, dash, steering, turret top, sunroof and right rear suspension. As a result the body at the left side was distorted. His evidence was not challenged. That then settles the issue of quantum.

5. The real dispute between the parties is about whether the cause of the collision is attributable to the negligence of the driver of the defendant’s driver, one Victor Pokbas. The plaintiff’s version is that on the day in question, one Tenjiwe Ndiko was driving along N2 on her correct side of the road from the direction of Grahamstown towards Peddie when the vehicle belonging to the defendant came from the opposite direction, overtaking several vehicles and collided with the plaintiff’s vehicle while the latter was on its correct side of the road. The defendant’s version, as borne out by the evidence of its driver, is that the plaintiff’s vehicle came from the opposite direction zigzagging on the road and collided with the defendant’s vehicle on its correct side of the road.

6. The facts of the case are such that a finding as to which side of the road the impact occurred would decisively establish which driver was to blame for the accident.

7. One Cyril Hart gave evidence on behalf of the plaintiff. He is a member of the South African Police Service, employed as a senior superintendent. He is also a minister of religion. On the day of the accident he arrived at the scene shortly after the collision, driving from Grahamstown direction. He observed that both vehicles involved in the collision came to rest outside the road on the right hand side from Grahamstown direction. He got the impression that the point or area of impact was on the left hand side of the road as one drives towards Peddie. He came to that conclusion, so he testified, because much of the debris was scattered on that left lane so much that the traffic, which he helped control, was allowed to pass on the right lane with the left lane closed to passing traffic. He observed the conditions of the road as fair, there was no rain and the surface was dry, and visibility clear. He testified that the damages to the plaintiff’s vehicle were located on the right side in the area of the driver’s door and not in the front.

8. He impressed me as an impartial witness. He was, however, attacked on the basis that he said in his testimony he did not observe where the damage to defendant’s vehicle was located. He testified in his evidence in chief that he called upon the police at the scene to subject the driver of the defendant to an alco test. Under cross-examination he was asked why he did not act evenly in this regard. His reply was that he had done so, he had called on the police to alco test even the plaintiff’s driver but he had omitted to say so in his evidence in chief. He nonetheless made an impression with me as a neutral and honest witness. He did not appear to be drawing from his imagination for facts.

9. The driver of the plaintiff’s vehicle also testified. She stated that she was maintaining her lane on the left side of the road as she approached from Grahamstown direction when she observed the defendant’s vehicle from the opposite direction, overtaking about four vehicles and in the process came straight towards her. She swerved the vehicle to her left side. The defendant’s vehicle was already there and the two vehicles collided. She was not able to explain how the vehicles came to rest on the other side of the road, almost facing Grahamstown. She testified that she was not aware of what happened after the accident. She does not know on which side of the road the vehicles came to rest. She was trapped in the vehicle and was injured. She denied her vehicle was zigzagging on the road. She also stated that beyond the tarmac there was grass and gravel. She was driving at the speed of about 100 km an hour.

10. Two further persons gave evidence on behalf of the plaintiff. They are Nompumelelo Magona, a teacher at Ntabankulu and Nobantu Makaula, wife to the plaintiff. They were both passengers in plaintiff’s vehicle when the accident occurred. Their account of the accident was substantially the same as that of the driver. Tenjiwe Ndiko was seated at the back. She observed the defendant’s vehicle about 20 to 25 metres when it suddenly overtook about five vehicles. While still in the process it collided with plaintiff’s vehicle which was already being swerved to its extreme left side. Makaula was busy with a CD Player sitting next to the driver when she heard a voice behind her exclaiming “what is this vehicle doing?” The vehicle referred to was defendant’s vehicle. When she looked up she saw defendant’s vehicle on its incorrect side of the road. It collided with them.

11. On behalf of the defendant, Victor Pokbas gave evidence. He was driving the defendant’s vehicle at the time of the collision. He concedes that there was not traffic travelling in front of the plaintiff’s vehicle. He was following four vehicles and there were three others behind him. He observed the plaintiff’s vehicle about 15 metres away, approaching in a zigzag fashion. At the time the vehicle ahead in the queue in front of him, was about 11 metres away. As it approached the plaintiff’s vehicle moved towards its right hand side up to the middle of the road and turned to its left, hitting the gravel outside the road and back onto the road, crossed the middle line and collided with the defendant’s vehicle. To prevent the collision Pokbas applied brakes and stopped with all the wheels of his vehicle on the road surface even though the front left was almost at the edge. When the vehicles collided his was already stationary. He disputes that immediately after the collision the traffic was allowed to use the lane on his side because of debris on the other side. He says the opposite was true. What was said by the plaintiff’s witnesses in this regard was in fact not challenged. He denies that he was overtaking vehicles in front of him when the accident occurred. He alleges that when the plaintiff’s vehicle encroached on its incorrect side of the road, the vehicles ahead of him swerved to their extreme left to avoid collision with the plaintiff’s vehicle. He could not do likewise because he then could not see as the said vehicles had lifted dust in front of him.

12. The witness had difficulties to explain how the plaintiff’s vehicle got damaged on its right hand side in the area of the driver’s door, having regard to the manner he alleges the collision took place. According to him the plaintiff’s vehicle crossed the middle line of the road, and had contact with his vehicle by its front part. His was hit between the head lamps. He was also not able to explain how it happened that the two vehicles came to rest on his side of the road almost facing the road, with the plaintiff’s vehicle standing on the Peddie side and the defendant’s vehicle on the Grahamstown side. It is common cause that the plaintiff’s vehicle was damaged on the right hand side, the side farther away from the defendant’s vehicle.

13. That the plaintiff’s driver was speeding was only introduced by the defence in the examination in chief of Pokbas. Likewise the location of the dents on the plaintiff’s vehicle had not been challenged when the plaintiff’s witnesses testified, those including Bezuidenthout and Hart.

14. I prefer the version of the plaintiff to that of the defence. There are a lot of improbabilities in the latter version whereas the plaintiff’s version is clear and straight forward. It is improbable that the plaintiff’s vehicle could have been damaged on its right hand side, given Pokbas’ account as to how the two vehicles collided. Also, improbable that the vehicles ahead of his, on his version, moved to their left and that he could not do the same because of dust which if there was, would have been lifted by each one of them to disadvantage the one behind. Worse still that version was not put to the plaintiff’s witnesses. The suggestion that the plaintiff’s vehicle was zigzagging on the road is not probable, if regard is had to the fact that there was a queue of vehicles ahead of the defendant’s which could have collided with the zigzagging vehicle. The distance of 15 metres is relatively short to allow the zigzagging movement whereas there were vehicles ahead of Pokbas covering an area of 11 metres ahead of him.

15. The witnesses for the plaintiff were credible. They gave straightforward evidence and were not cornered in any manner under cross-examination. I come to the conclusion that the plaintiff has discharged the onus in respect of both liability and quantum.

16. With regard to the question of costs, Mr Wood for the plaintiff, submitted that the order for costs in favour of the plaintiff should include qualifying expenses, if any, for Mr Bezuidenhout costs of inspection in loco by plaintiff’s attorney (without counsel), declaring the witnesses Ndiko, Magona and Makaula necessary witnesses and to stipulate that their travelling by car from Mt Frere to Bisho to constitute reasonable expense. As regards the question of travelling costs and subsidy I raised the question as to whether it is not appropriate to deal with these issues at taxation, so long as they have been declared necessary witnesses. The reason for that being that there is no evidence before me as to what mode of transport they used to come to court and from where. I invited Mr Wood to furnish authority if he felt strongly about his submission. He filed heads of argument and referred me to Squier v Dalmeyer 1978 (1) SA 1167 (CPT) at 1168D-E. All what is stated in the cited extract is that indeed a witness who has been declared a necessary witness is entitled to travelling expenses and subsistence. The query is whether the court should decide the reasonableness or otherwise of travelling expenses without having heard any credible information to enable it to assess. For example not one of the mentioned witnesses testified she travelled from Mt Frere together with others or alone when she came for trial. Even when it comes to attending the scene for the purpose of taking photographs, my view is that it is sufficient to simply refer to costs attendant upon the taking and filing of photographs. How that was achieved to be placed before the taxing master.

17. The prayer for interest to run as from 18 November 2005 has not been pursued in evidence and in argument. There would then be no basis to order it without any factual foundation.

In the result the following order is made:

1. Judgment for the plaintiff in the sum of R232 312.47 as and for damages;

2. plus costs, such costs to include:

   1. the qualifying expenses of Mr Bezuidenhout, if any;

   2. the costs attended upon the taking and filing of photographs of the accident scene;

3. For purposes of taxation Ndikho, Magona and Makaula are declared necessary witnesses.

C T SANGONI

JUDGE OF THE HIGH COURT

Counsel for the Plaintiff : Adv C B Wood

Attorneys for the Plaintiff : Niehaus McMahon & Oosthuizen

Bhisho Business Centre

Bhisho

Counsel for the Defendant : No appearance

Attorneys for the Defendant : State Attorney

3^rd Floor, Permanent Building

42 – 46 Oxford Street

East London

Date heard : 17, 18 and 19 September 2007

Date Judgment delivered : 18 October 2007

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