IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
REPUBLIC OF SOUTH AFRICA
Case Number: 61045/2017
DELETE WHICHEVER IS NOT APPLICABLE
(1)	REPORTABLE:	YES/NO
(2)	OF INTEREST TO OTHER JUDGES: 	YES/NO
(3)	REVISED
	DATE:	21 November 2019
	SIGNATURE:	.…………………………………………………	

In the matter between:
MATSOBANE PIET SEBOPELA	Plaintiff	
And		
THE ROAD ACCIDENT FUND 	Defendant	
JUDGMENT
JANSE VAN NIEUWENHUIZEN J

INTRODUCTION
[1]	The plaintiff instituted action against the defendant for damages he has suffered as a result of motor vehicle collision that occurred on 22 April 2016 on the N3 North Highway close to the Marlboro on-ramp, Johannesburg, Gauteng.

[2]	At the inception of the trial the court issued an order in terms of rule 33(4) of the Uniform rules of court for a separation of the merits and quantum of the plaintiff’s claim. Quantum was postponed sine die and the trial only proceeded in respect of the merits of the claim.

[3]	The plaintiff, relying on various grounds of negligence, avers that the sole cause of the collision was the negligent driving of the insured driver, Mr Thomas (‘Thomas”). The defendant denies these averments and pleads that should the court find that Thomas was negligent, the plaintiff was also negligent and an apportionment of damages in terms of the Apportionment of Damages Act, 34 of 1956 should follow.

EVIDENCE
[4]	It is common cause that the plaintiff and Thomas collided on the N3 North Highway close to the Marlboro on-ramp. The collision occurred at approximately 23:40 and the plaintiff was driving an Opel Monza whilst Thomas was driving a Range Rover. The precise point of impact is, however, in dispute.

[5]	The plaintiff testified that he was on his way home from work. The portion of the highway where the collision occurred consisted of three lanes travelling in the same direction. The plaintiff joined the highway and was travelling at approximately 60 km/h in the left hand lane. The plaintiff estimated that he was approximately 300 metres from the on-ramp on the highway when he heard a car behind him. The car collided with the back of his vehicle on the right hand side.

[6]	During cross-examination the plaintiff was referred to a statement he deposed to on 21 September 2017, in which he stated the following:
“On the aforesaid day, I was driving in the left lane of N3 when the motor vehicle bearing registration number and letters 002 SAM GP (the Range Rover) in attempt to overtake us to the right lane swerved the vehicle to the right side lane and collided and/or hit the back of the motor vehicle driven by me and I lost control of the motor vehicle as result.
”
[7]	The plaintiff was also referred to a further statement he deposed to on 21 August 2019. In the latter statement, the plaintiff stated the following:
“On the aforesaid day, I as driving in the left lane of N3 coming from Marlboro onramp when motor vehicle bearing registration number and letters 002 SAM GP from the far right side lane of N3 road overtake into two left lanes consecutively and in an attempt to overtake us to the right lane of the road he swerve the vehicle to the right side lane and collided and/or hit the back of the motor vehicle driven by me near the lamp pole and the motor vehicle spin three times consecutively, overturned and burned immediately.”

[8]	The plaintiff testified that, prior to joining the N3, he did not see any vehicles in front of him. It was put to the plaintiff that Thomas was already driving on the N3 before the plaintiff joined the highway. The plaintiff answered that he never saw any lights behind him. When asked whether there were any motor vehicles on the N3 before he joined the highway, he answered “no” and stated that he entered the N3 correctly.

[9]	The plaintiff was referred to a sketch of the accident scene compiled by the Johannesburg Metro Police Department. The plaintiff agreed that the point of impact was correctly reflected in the left lane some 300 metres from the on-ramp.

[10]	It was put to the plaintiff that Thomas will testify that the plaintiff drove in the yellow/emergency lane. The plaintiff denied this. The plaintiff confirmed that the lights of his motor vehicle were in working condition and switched on.

[11]	It was put to the plaintiff that if the lights of his motor vehicle were on, a vehicle approaching from behind would see him and move to the next lane. The plaintiff answered that he did not know where the motor vehicle that collided with him came from.

[12]	The plaintiff could not explain why the versions in the statements referred to supra did not corroborate his version in his evidence-in-chief. It was lastly put to the plaintiff that the highway was lit, to which he replied that it might have been lit towards the middle of the highway. The plaintiff denied that he was negligent.

[13]	Thomas testified that he was on N3 and moved to the left lane in order to exit onto the Marlboro off-ramp. He noticed a vehicle in the emergency lane that was approximately 150 metres away. The vehicle did not have any lights on. The vehicle started to move into the left lane and Thomas swerved to avoid colliding with the vehicle. Notwithstanding the aforesaid, the front left light of his vehicle collided with the plaintiff’s vehicle.

[14]	Thomas testified that he was driving at 120km/h and added that he braked hard in order to avoid the collision. Thomas testified that the point of impact was 100 – 150 metres from the Marlboro off-ramp. This version of Thomas does not correspond with that of the plaintiff and the point of impact as indicated on the sketch plan. I pause to mention, that the point of impact as indicated by the plaintiff was never put in dispute during his evidence.

[15]	During cross-examination Thomas admitted that he was not sure of the speed he was travelling at prior to the collision. He disputed that he was negligent.

DISCUSSION
[16]	The versions of respectively the plaintiff and Thomas needs to be examined in view of the duties of a motorist in the prevailing circumstances.

[17]	In general drivers who enter a main road/ highway, must ensure that there is sufficient room to safely do so and that his/her intended manoeuvre will not obstruct or endanger other traffic.

[18]	The driver who is already on the main road/highway must equally keep a proper look-out, even more so if the road he/she is travelling on has intersecting roads. [See inter alia: Marine & Trade Insurance Co Ltd v Biyasi 1981 (1) SA 918 A.]

[19]	In R v Haupt 1931 CPD 267, the accused was driving along a main road at about 40 miles per hour and collided with a car emerging onto the main road from a side street. The court held that the accused’s speed was excessive and negligent under the circumstances. Although there is a duty upon the driver of a vehicle from a side street into a busy main road to exercise the utmost care, there is also a corresponding duty upon the users of the main road to exercise care when they pass side streets. The negligence of the accused was that he was unable to stop after seeing the car emerge from the side street as his speed was such that the only course left open to him was to swerve in an unsuccessful attempt to avoid the accident.

[20]	Bearing the aforesaid in mind, I turn to the versions presented by the plaintiff and Thomas. First of all, one should bear in mind that the position of the on-ramp in casu is such that vehicles travelling on the N3 have a better view of the vehicles travelling on the on-ramp. This is a result of the angle with which the on-ramp joins the N3 which is straight.

[21]	The plaintiff’s evidence that he did not observe Thomas until shortly before the accident entails that Thomas was either travelling at an excessive speed or that the plaintiff did not keep a proper look-out for vehicles travelling on the N3. The plaintiff’s various versions of where Thomas was prior to the accident is clearly speculation in an attempt to make sense of how the accident occurred.

[22]	The plaintiff’s version of where the point of impact was, however, firstly not disputed and is secondly confirmed by the sketch plan. The court therefore on a balance of probabilities accepts that the collision occurred shortly after the plaintiff joined the N3 and Thomas’s version in respect of both the point of impact and the position of the plaintiff’s motor vehicle prior to the collision is rejected.

[23]	Thomas in approaching the on-ramp should have kept a proper lookout for vehicles on the on-ramp that is on the verge of joining the N3. Had he done so he would have noticed the plaintiff’s vehicle venturing towards the N3. One should bear in mind that according to Thomas’ version the area is well lit.

[24]	Had Thomas kept a proper lookout, he could immediately have reduced speed or switched lanes to avoid the collision. Similarly had Thomas adhered to the speed limit, he would have had more time to take evasive action.

[25]	The fact that the collision occurred shortly after the plaintiff joined the N3 leads to the inescapable conclusion that Thomas failed to keep a proper lookout and drove at a speed that was excessive in the prevailing circumstances.

[26]	I have no reason to doubt the plaintiff’s version that he entered the N3 in the correct manner. The plaintiff who did have regard to vehicles in front of him, most probably did not see Thomas due the high speed Thomas was travelling at.

ORDER
[27]	In the premises, I make the following order:
1.	The Defendant is liable for the Plaintiff’s proven or agreed damages.
2.	The Defendant is ordered to pay the Plaintiff’s cost of suit.

___________________________________________________
N. JANSE VAN NIEUWENHUIZEN
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA

DATE HEARD					 14 October 2019
JUDGMENT DELIVERED	21 November 2019

APPEARANCES
Counsel for the Plaintiff:	Advocate Z. Rasekgala
Instructed by:	Ledwaba Inc. Attorneys
	(012 323 6660)
	Ref: LLL/MVA/99/Krl

Counsel for the Defendant:	Advocate Mvubu
Instructed by:	Ningiza Horner Incorporated
	(011 326 5439/37)
	Ref: RAF2/3020