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FORM A

FILING SHEET FOR EASTERN CAPE JUDGMENT

PARTIES:

ALLAN KLEIN PLAINTIFF

AND

THE ROAD ACCIDENT FUND DEFENDANT

• Case Number: 3050/06

• High Court: SOUTH EASTERN CAPE LOCAL DIVISION

DATE HEARD: 6/11/07

DATE DELIVERED: 9/11/07

JUDGE(S): H.J. LIEBENBERG

LEGAL REPRESENTATIVES -

Appearances:

• for the Plaintiff(s): ADV HUISAMEN

• for the Defendant(s): ADV. A. FROST, ADV. SMITH

Instructing attorneys:

• Plaintiff(s): LE ROUX INC.

• Defendant(s): BOQWANA LOON & CONNELLAN

CASE INFORMATION -

• Nature of proceedings : DAMAGES

IN THE HIGH COURT OF SOUTH AFRICA

(SOUTH EASTERN CAPE LOCAL DIVISION)

CASE NO: 3050/06

DATE DELIVERED:

IN THE MATTER BETWEEN:

ALLAN KLEIN PLAINTIFF

AND

THE ROAD ACCIDENT FUND DEFENDANT

JUDGMENT

LIEBENBERG, J:

[1] The Plaintiff is a 48 year old male. He is a licenced motor cycle rider and has been riding motorcycles as his normal means of transport for the past 30 years.

[2] On the 2^nd of June 2004 the plaintiff was involved in a collision with a minibus on the Uitenhage Port Elizabeth road (the Uitenhage Road). As a result the plaintiff sustained injuries. In this action he claims damages suffered by him as a result of the injuries from the defendant.

[3] At the commencement of the trial I ordered a separation of the trial and the matter continued in respect of the merits. The matter of quantum was ordered to stand down for decision at a later stage.

[4] The following facts are common cause between the parties or not in dispute.

[5] The Uitenhage road in the area where the collision occurred is a double carriage way with two lanes running from north to south in the direction of Port Elizabeth and two lanes from south to north in the direction of Uitenhage. The collision occurred on the south bound carriage way to the south of an intersection with the road leading to the Struandale industrial area (the “intersection”). In the immediate vicinity where the collision occurred there is an enclave on the eastern side of the south bound carriage way for busses to turn off the man carriage way and stop at a bus stop. On the north eastern side of the intersection a third lane is provided for traffic wanting to turn left towards Struandale.

[6] The plaintiff, the witness Mr Mosterd, called by the Plaintiff, and Mr Meyer, who was called by the defendant, were traveling in a southerly direction from the direction of Uitenhage. Mr Meyer and Mr Mosterd were travelling in the right hand lane, one behind the other, and the plaintiff on his motorcycle was travelling in the left hand lane. It is the evidence of both Mosterd and Meyer that they were aware of the plaintiff on his motorcycle for a considerable distance before reaching the intersection. They were all travelling within the speed limit which, according to Mr Meyer, was at times 60 kph and at times 80 kph.

[7] As they were approaching the intersection the plaintiff overtook both Mosterd and Meyer and moved into the right hand lane in front of Meyer.

[8] As to what occurred at the intersection there is a marked difference between the evidence of the plaintiff and Mosterd on the one hand and that of Meyer on the other hand.

[9] All three of these witnesses testified that as they approached the intersection after the plaintiff had moved into the right hand land, the traffic light turned to amber and then to red. The plaintiff and Mosterd testified that the plaintiff stopped at the intersection when the traffic light turned red. When the light turned green the plaintiff pulled away and so did Meyer and Mosterd. Both the Plaintiff and Mosterd testified that whilst they were stationery at the intersection they observed a minibus stationery in the enclave at the bus stop on the eastern side of the road facing in a southerly direction.

[10] The plaintiff testified that when the traffic light turned green he pulled away, and carried on in the right hand lane in a straight line. After he pulled away and had covered some distance he saw the minibus taxi which was stationery at the bus stop commencing to move across both lanes at a 90˚ angle. This, according to plaintiff, was a quick and fast movement by the minibus. Immediately on realising the danger he applied his breaks and attempted to swerve to the right. The motorcycle, being a motorcycle, is not capable of sharp sideways turning. Both his manoeuvres were unsuccessful and he collided with the side of the minibus in front of the right rear wheel. At the time of the collision the front of the minibus had already moved onto the grass area between the two carriage ways.

[11] The version of the plaintiff was corroborated by that of Mosterd in material respects. Mosterd testified that he was driving a 4 x 4 vehicle which was higher than the sedan driven by Meyer. He saw the plaintiff stopping at the intersection when the traffic light changed to red. He also saw the plaintiff when he pulled away after the traffic light changed to green. Thereafter the vehicle of Meyer pulled away and he then also pulled away. After he crossed over the intersection Meyer’s vehicle in front of him stopped. He moved over to the right and stopped on the grass area. He did this to prevent his vehicle from colliding with the vehicle of Meyer. After alighting from his vehicle he saw that the plaintiff’s motorcycle had collided with the minibus. It is common cause that this was the same minibus that had earlier been stationery at the bus stop and is the insured vehicle. Mosterd, however, did not see when the minibus crossed the road nor how the collision occurred.

[12] Both the plaintiff and Mosterd were adamant that the plaintiff stopped at the intersection when the traffic light changed to red.

[13] Meyer testified that when the traffic light turned to amber and thereafter to red he stopped at the intersection. He stated that when the light changed to amber he was already to the intersection and had difficulty stopping his vehicle in time. He further stated that the plaintiff was too near the intersection to stop when the traffic light turned to amber and the plaintiff then accelerated and went through the intersection whilst the light was amber. When he stopped he looked down at his gear lever and when he looked up again he saw a minibus moving directly across the road. At that time it was half way across the broken white line between the two lanes. He also saw the break lights of the motorcycle moving toward the right and then the rear light made strange movements. At that time the robot had changed to green and he moved off. When he had moved a distance he found that a collision had taken place in the road ahead of him between the motorcycle and the minibus.

[14] All three the aforementioned witnesses also testified that at the time of the collision it was after dark and approximately 6 o’clock or after 6 o’clock in the evening. They also testified that the lights of the minibus were not on at the time.

[15] The plaintiff as well as Mosterd and Meyer made a good impression as witnesses. It is, however, clear that the evidence of Meyer cannot be reconciled with that of the plaintiff and Mosterd as to what happened at the intersection. I cannot find that Meyer was being deliberately untruthful, but I prefer the evidence of the plaintiff and Mosterd where it differs from that of Meyer. The reasons for not accepting Meyer’s evidence on these aspects are as follows. It is clear from his evidence that his undivided attention was not directed at what was occurring at the intersection. He said he looked at his gear lever after stopping and when he looked up saw what was happening with the minibus and the motorcycle. At that stage, so he said in his evidence in chief, the traffic light had changed to green and he moved off. This evidence he later changed during re-examination by stating that when this occurred the light was still red. It is also apparent from his evidence that when he consulted with Mr Huisamen, for the plaintiff, he was vague and had to refresh his memory from his police statement. As to the reliance that can be placed on his police statement he also mentioned to Mr Huisamen at the time that the statement was also taken some 4 months after the incident. Also significant is his evidence under cross-examination that, at the time of the consultation, his memory was vague regarding what occurred before he arrived at the actual scene of the collision and attended to the needs of the plaintiff. During questioning by myself he also stated that his memory is better with regard to what occurred after he arrived at the scene of the collision and that made a greater impression on his mind than what had occurred before. In view of these uncertainties the evidence of the plaintiff and Mosterd as to what occurred at the intersection must be preferred to that of Meyer.

[16] Mr Sitole, the insured driver, testified that he was the owner of the minibus. On the day in question he conveyed passengers from Uitenhage to Port Elizabeth. He stopped at the bus stop for a passenger to alight. When he wanted to drive off he found that the accelerator cable of the minibus had broken. He was unable to repair the cable and made arrangements with other taxi drivers to take the rest of the passengers into Port Elizabeth. He also arranged with one Khamiso, who arrived at the bus stop after Sitole, to tow Sitole’s minibus to Uitenhage after he Khamiso had dropped off his passengers in Port Elizabeth. Whilst waiting for Sitole he decided to push his minibus across the two lanes of the south bound carriage way onto the middle isle to make it easier for Khamiso to tow him towards Uitenhage. Before commencing to push his vehicle he checked for oncoming traffic and saw that the vehicles travelling south were stationery at the intersection. He commenced pushing his minibus. The driver’s side door of the minibus was open and he pushed by using his one hand to operate the steering wheel and with the other hand he pushed the vehicle. When his vehicle’s front portion moved onto the grass of the centre isle, he heard a noise, looked towards the intersection and saw a motorcycle sliding on its side towards him. He ran to the rear of his vehicle. The motorcycle and its rider collided with the rear wheel of his vehicle. When he saw the motorcycle sliding towards him the other vehicles were still stationery at the intersection. He does not know where the motor cycle came from.

[17] I have found Sitole to be an unimpressive witness. He was contradictory, evasive, uncertain at times and on occasions blatantly untruthful. In his argument Mr Frost, for the defendant, submitted that he cannot argue that Sitole was a credible witness in all respects, but he added that he is not prepared to admit that Sitole was a poor witness. It seemed that the only reason for this stance by Mr Frost was that the only manner in which he could save some face for this contradictory witness was to be somewhat contradictory himself.

[18] Mr Huisamen, in his address, highlighted some of the aspects of Sitole’s evidence pointing towards his lack of credibility. They were as follows:

18.1 Sitole’s evidence that the collision occurred at 5 pm when it was still bright daylight was never put to any of the plaintiff’s witnesses and is contrary to all the other evidence including that of the defendant’s own witness, Meyer. It was clearly a recent fabrication, possibly to try and explain why his vehicle’s lights were not on.

18.2 His evidence as to how the collision occurred, namely that the motorcycle and its rider were sliding towards his minibus is completely contrary to all other evidence and the photographs of the motorcycle also do not support it. His attempts to show, in the photographs, damage to the motorcycle caused by it sliding on its left side, did not impress.

18.3 His evidence in chief that no one spoke to him at the scene of the collision was contradicted by him when he testified in cross-examination that the policeman, Inspector Barnard obtained his personal particulars from him at the scene where he also told the policeman that he was pushing his vehicle across the road. This evidence he gave only after he was confronted with the reality of the form containing his personal particulars which was completed by the policeman, who testified to that effect.

18.4 The reasons given in his pleadings for moving his vehicle across the carriage way to the middle isle are different to the reasons given in his evidence. In the pleadings it is stated that he moved the vehicle to get it out of harms way and not to obstruct any traffic. This is quite different from the reasons already referred to which were given in evidence.

[19] The aforegoing are not exhaustive of the criticisms that may be levelled at the evidence of Sitole. In my view the evidence of Sitole is to be rejected where it differs from that of the plaintiff, Mosterd and Inspector Barnard, who attended the scene of the collision.

[20] As far as the disputed facts are concerned I accept the following facts. The plaintiff did stop at the intersection and only pulled away when the robot turned green. As he accelerated, the insured vehicle moved away from the bus stop and moved directly across the southern carriage way. This was a sudden and unexpected manoeuvre on the part of the insured vehicle. I further find that the insured driver, Sitole, was driving the vehicle when it moved across the road and that he was not pushing it. As far as the collision itself is concerned I find that the plaintiff was on the motorcycle and that the motorcycle was on its wheels when it struck the minibus in front of the right rear vehicle. I also find that the front wheel of the motorcycle collided with the minibus.

[21] Mr Frost, in his argument, conceded that Sitole was negligent but further submitted that the plaintiff was also contributory negligent. He argued that a 70 – 30 apportionment of the blame in favour of the plaintiff should be made.

[22] It follows from the aforegoing that it is now common cause that the insured driver was negligent. All that in effect remains to be decided is whether the plaintiff himself was negligent and whether his negligence contributed towards the collision. The onus to prove such negligence on the part of the plaintiff is on the defendant.

[23] The grounds of negligence on which Mr Frost relies are that the plaintiff did not keep a proper lookout and that he did not take proper evasive action.

[24] Whether a driver kept a proper lookout or not depends upon the circumstances of each case. It was argued by Mr Frost that in this case the plaintiff should have seen the movement of the insured vehicle at an earlier stage had he kept a proper lookout. Had he done so he would have been able to avoid the collision by taking earlier evasive action. He further argued that it was not disputed in the plaintiff’s case that this minibus was stationery at the time of the collision. He also pointed out that where the insured vehicle was stationery after the collision there was, according to the police plan and key, a 7.8 metres distance between the rear of the vehicle and the eastern side of the road. This, he argued, allowed ample space for the plaintiff to pass behind the vehicle and this he could have done if he kept a proper lookout.

[25] It is the plaintiff’s evidence that he saw the insured vehicle stationery at the bus stop and it was facing south towards Port Elizabeth. It was as he moved closer to the bus stop that the insured vehicle tuned across the road in front of him. At that point he was doing approximately 80 kph. It is common cause that the speed limit in that area is 80 kph. The plaintiff further testified that as there was no road to the west to which the insured vehicle could be moving at that stage, the movement by the insured vehicle was not a normal manoeuvre that one would expect from a vehicle in that vicinity. His evidence is also that he saw when the insured vehicle commenced its turn across the road and that it was a quick movement. He immediately applied his brakes and tried to veer to the right. A motorcycle, according to the plaintiff cannot turn sharply like a motorcar and he also did not want to move onto the grass on the middle isle because he did not know how the surface under the grass was and whether there were holes in the surface. He further stated that motorcycles do not have proper traction on grass because it only has two wheels. His decision to act as he did was an instantaneous decision. It is clear from his evidence that he did not have time to reflect on his decisions. I accept his evidence that he did all he could in the circumstances in an attempt to avoid a collision.

[26] Mr Frost’s argument that it was not in issue that the insured vehicle was stationery at the time of the impact cannot be sustained. The evidence of the plaintiff is that it was a moving scene with the insured vehicle crossing his way from his left side. He stated that he could not veer to the left because he would then have moved towards and into the vehicle. Instead he opted to move away from the vehicle. It further follows that the argument that the plaintiff could have moved to his left and pass behind the insured vehicle cannot be sustained.

[27] In my view the defendant has not been able to discharge the onus on it to show on a balance of probabilities that there was any contributory negligence on the part of the plaintiff.

[28] Based on the aforegoing I find that the insured driver, SITOLE, was solely to blame for the collision.

[29] As far as costs are concerned Mr Huisamen asked that the plaintiff be awarded his costs at this stage. In the summons the plaintiff claimed an amount of R1 972 950-53. Although one cannot now express any opinion on what the actual damages are that plaintiff may prove it is evident that it will in all probability substantially exceed the jurisdiction of the magistrate’s court. Mr Smith, who with Mr Frost appeared for the defendant, informed me that the defendant has no objection to a costs order being made at this stage.

I therefore make the following order:

1. The defendant is declared to be liable to pay to the plaintiff all such damages arising from the collision on the 3^rd June 2004 with the insured vehicle as the plaintiff may be able to prove.

2. The defendant shall pay the costs of the trial on the merits which costs shall include the costs of a pre-trial inspection in loco and the costs of the photographs.

________________________

H.J. LIEBENBERG

JUDGE OF THE HIGH COURT

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