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IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION PRETORIA)

Case No: 14552/2013

In the matter of:

Advocate H. Kriel N .O. (curator to the

patient Donovan Peter David De Bruin)                                                                      Plaintiff

And

Local Municipality, Madibeng                                                                                 Defendant

 

JUDGMENT

 

Maumela J.

1. The plaintiff, Advocate H. Kriel, in his capacity as curator ad litem for the patient Donovan Peter David De Bruin, instituted a n action against the defendant, Madibeng Local Municipality. Plaintiff s cause of action arose from bodily injuries which plaintiff sustained in a motor vehicle collision. The collision took place on 20 March 2010 at approximately 18:00 at the corners of Raasblaar and Karel De Wet Road in Brits.

2. The parties placed on record that the court fs requested to only determine the question whether the defendant, (Madibeng Municipality), negligently breached its statutory and/or legal duty, (including any apportionment of liability). That aspect hinges on the question whether or not there was a stop sign in place at the intersection, along Raasblaar Avenue, where the accident took place which is where Raasblaar Avenue crosses Carel de Wet Road.

3. It is not in dispute that the plaintiff; Mr De Bruin, got involved in an accident on the. 20th of March 2010. There is consensus that he sustained injuries in the accident. The parties agreed that the plaintiff was riding a motorbike with registration numbers HFH 026 NW, while the insured driver, Steve Peter Fleetwood drove a motor vehicle with registration numbers HFC 224 NW, ("the insured vehicle"). At a crossroads where Rasblaar street crosses Carel De Wet Road in Brits, the plaintiff's motorbike collided against the insured vehicle, resulting in the plaintiff sustaining serious bodily injuries.

4. Based on this incident and action was successfully instituted by the ward against the Road Accident Fund. In this case the plaintiff sues Madibeng Local Municipality on the basis that a stop sign that should have been in place along Rasblaar Road was not in place on the day and time of the accident. He contends that the failure on the part of the municipality to ensure that there is a stop sign in place became a major cause of the accident. The municipality on the other hand maintains that there was a stop sign in place at the crossroads in issue on the day of the accident.

 

BACKGROUND.

5. The facts of this matter have featured in an action instituted before this court by the patient, Donovan Peter David De Bruin against the Road Accident and Fund, (RAF). The action was based on an accident that happened on the2 0th of March 2010. On that day the patient, (Donovan Peter David De Bruin) rode his motorcycle, herein after referred to as the insured vehicle, along Raasblaar Avenue. At a spot where Raasblaar Avenue crosses Carel de Wet Road, in Elandsrand, Brits, he collided with a vehicle driven by one Steve Peter Fleetwood, (the insured driver). He sustained personal injuries on the basis of which he instituted a claim against the Road Accident Fund.

6. Due to brain injury Mr De Bruin could not testify in the proceedings against the Read Accident Fund . By agreement the court ruled only on the aspect of liability. It was agreed between the parties from the onset that the defendant bears the statutory and/or legal duty to ensure the following:

6.1. That a stop sign be erected on Raasblaar Avenue where it intersects with Carel de Wet Road;

6.2. That this stop sign be adequately displayed and visible in its entirety to timeously alert road users and In particular, Mr. de Bruyn, to stop at this intersection;

6.3. That regular maintenance be carried out to ensure the safety of the Raasblaar Avenue and Carel de Wet Road intersection.[1]

 

THE ISSUES.

7. The issue ln dispute is whether or not there was a stop sign at the intersection where Raasblaar Avenue crosses Carel de Wet Road in Elandsrand, Brits. Plaintiff contends that there was no stop sign in place while the Defendant contends that there was a stop sign in place. Both the Plaintiff and the Defendant presented evidence before court.

 

EVIDENCE OF THE PLAINTIFF.

8. Captain Maine was the first witness to be called by the plaintiff. He holds the rank of Captain within the South African Police Services, SAPS, which position he occupied before the date of the collision. He holds extensive experience in his duty, On the evening of the 20th of March 201O he was on duty. Responding to a complaint about a collision he visited the seen of an accident where he found a motor cycle together with Mr. de Bruyn and his passenger who were lying on the road surface. There was also a vehicle against which the motorcycle collided. The driver of the motor vehicle was also present together with other occupants.

9. He testified that he prepared a sketch plan pertaining to the scene[2], together with a key thereto[3]. In the sketch plan Captain Maine reproduced the scene of the collision. The sketch was not according to scale. In it various points of significance are indicated. They include the location of the motor cycle and the motor vehicle which were marked in the sketch plan as (8) and (A) respectively. The point of impact is indicated as "(Pl)". Maine also indicated the location of a bridge across Carel de Wet Road as well as a fence surrounding the school yard at the corner where the collision occurred . He also indicated a triangular road sign indicating the height of the bridge. He specifically drew the pole and the triangular board of the said road sign on the sketch plan at the approximate position of the road sign.

10. Maine did not have a clear independent recollection of whether on the day of the collision he observed a stop sign at the corner of Raasblaar Avenue and Carel de Wet Road for the direction in which Mr. de Bruyn was travelling. Significantly Captain Maine's drawing did not include the stop sign that ought to have been located at that intersection for purposes of traffic in the same direction Mr. De Bruin was in. When questioned, he indicated that he normally includes stop signs in sketches that he draws. Notably, he noted the letters STOP which are supposed to be on the surface of the road at the point where the collision occurred. According to Maine, one could see the letters STOP on the surface. of the road from about 10 to 20 metres away.

11. Angelo de Bruyn was the second witness for the plaintiff. He told court that he and the plaintiff, Mr. de Bruyn, are brothers. He testified that on the evening of the collision he received a telephone message to the effect that the Plaintiff got involved In a motor vehicle collision. He proceeded to Brits Medi-Clinic where he found Mr. de Bruyn admitted. He learnt that the collision occurred at the intersection of Raasblaar Avenue and Carel de Wet Road. Together with a cousin, Mr. Andrew Curnow, he went to the scene at about 22h00 of the same evening.

12. According to him, at the scene he observed the following:

12.1 That it was dark and the street lights were not working;

12.2 There was no stop sign erected at the intersection directing vehicles travelling in Raasblaar Avenue approaching the intersection;

12.3 Where the stop sign should have been there was only a hole in the ground;

12.4 The letters, 'STOP', painted on the surface of the road, had faded and were no longer clearly visible;

12.5 The grass on the corner was long; approximately a metre high.

13. Under cross examination Angelo de Bruyn testified their vehicle was parked at a distance of about 10 metres away with the lights shining on the scene of the collision and the visibility of the letters on the road surface was very faint. He further testified that on the 20th of March 2-010 there was just a hole in the ground where the stop sign was meant to be. He was adamant that his testimony is not influenced by his consanguinity with the plaintiff.

14. Andrew Curnow was the third witness for the Plaintiff. He testified that Mr. de Bruyn is his cousin. According to him Mr. Angelo de Bruyn telephoned him on the evening of the collision. He proceeded to the Brits Medi-Clinic where he found Mr. de Bruyn, (the Plaintiff), Mr. Angelo de Bruyn and others. From the hospital they proceeded to the accident scene at 22h00. At the scene, they stopped with the lights of his car shining towards the scene. He saw the letters 'STOP' painted on the surface of the road but they were faint. He also saw that there was no stop sign erected directing traffic travelling in the direction the Plaintiff was travelling in. He observed the spot where most of the debris is lay deposited on the surface of the road. Through that he deduced the where the point of impact was located.

15. He testified that there was only a hole in the ground where the pole of the stop sign was supposed to be. He noticed that a new stop sign is about to be erected. Mr. Curnow further testified that a few days or weeks later he returned to the scene to take photographs with a cell phone. On that occasion, he found a new stop sign in place. He saw fresh concrete on the ground, fixating the stop sign to the ground. He also saw splatters of cement lying around. He took photographs of the scene which included the new stop sign but unfortunately these photographs were on the old cell phone which he no longer has. He therefore can no longer retrieve the photos he had taken. Under cross-examination he stuck to his version. The plaintiff closed his case.

 

EVIDENCE OF THE DEFENCE.

16. Mr. Ian Robert Hurter was the First witness for the defence. He testified that he was driving behind the ''insured motor vehicle with which the Plaintiff s motorcycle collided. He noticed what he described as a "blur'' emerging from the left side which impacted or collided with the motor vehicle ahead. At the same time, he saw two objects which appeared to be flung 3 to 3 ½ meters into the air, which landed the tarred road. He later realised that the objects were human beings who had been riding on a motorcycle. He estimated that the motorcycle was "at a speed" of about 70km/h. However, he could not motivate his estimation. He testified that he is familiar with the area. According to him the visibility of the 'STOP' sign on the road surface was faint, but still visible from a distance of about 20 metres. He testified that witnessing the accident left him shell-shocked. As a result, he did not think of looking out for any stop signs that could have been in place at the scene, directing traffic.

17. The second witness for the defence was Mr. James Molewa Mahache. He testified that he is a manager in the Roads and Storm Water Department of the Defendant; the Municipality. He said that he occupied the. same position during 2010. He indicated that he is familiar with the incident that occurred at the Intersection of Raasblaar Avenue and Carel de Wet Road on the 20th of March 2010. He testified that he became aware of the incident when it was reported to him by his team. In his evidence-in-chief, this witness initially indicated that his team reported the incident to him because they had to clean up the debris at the scene of the collision. Initially he also indicated that the Parks Division and Legal Services went out to do an inspection in order to establish whether the accident that happened was caused by any act or omission on the part of their section.

18. He testified that much as they did it on that occasion, it is an exercise that they perform on an annual basis. Mahacne referred to a Pavement Management System which contains a record of the conditions of the road, with photographs from fence to fence. The system uses a Google Platform and software to collect data. He said that the inspection took place on a Monday following the day of the incident. He testified that all necessary road signs were in place at that place. According to him, in Raasblaar Avenue there were stop signs on both sides. He further testified that the pavement management system is updated annually, unless there is a report to the effect that there is a Road Sign which is not in place.

19. Responding to a question by the court, Mahache testified that one could verify the condition of a particular street retrospectively even as far back as the 20th of March 2010. He testified that an update of the Google platform is done after every two and a half years. Mahache was adamant that it could not be that there was no stop sign in place at the scene when inspection was done. He contended that when he inspected the scene the stop sign was in place and photographs thereof were taken in August of 2010. He pointed out that rust was also visible on the stop sign. He indicated that they did not find anything that looked suspicious at the time of his inspection. Mahache further testified that there are dedicated individuals who inspect the road signs in designated areas every five days and if they find a stop sign missing they report it and the stop sign gets replaced. He testified that twenty of each type of roadside is kept in store for replacement purposes. He testified that during 2010, the Municipality lost the licence for the Pavement Management System where after they became reliant on manual records. They moved to a new system called 'RAMS'.

20. Mr. Mahache was adamant that a look at photograph 27, which was taken in 2010 confirms that there was a stop sign in place. He stated that the photograph was published in September 2010 and taken earlier in the same year. He stated that as far as he knew, a change of the stop sign was never noted in his instruction book. It is significant that the Defendant failed altogether to discover or produce this Instruction Book in order to confirm this part of Mr. Mahache's evidence.

21. Mahache also testified that during late 2017, there was a burst pipe at the intersection of Raasblaar Avenue and Carel de Wet Road. He said that the contractor attending to the burst pipe removed the stop sign and failed to replace it He referred to photographs 1 to 13, which were taken on the 22^nd of February 2018. On these photographs, the stop sign is reflected to be missing. Responding to the question why replacement was not done in time, he gave a lame response citing cash flow problems. There is no evidence on when the cash-flow problem abated if it did.

22. Mahache pointed out that the letters and the stop line painted on the surface of the road were visible from 300 metres away. He was not able to tell whether he was on duty on the 20^th of March 2010 or not. He testified that the accident was reported to him in the same week on which it happened but he cannot recall the exact date on which it was. He testified that he gets information every Friday. Initially, Mahache told court that it is his team which cleared up the debris which was deposited on the road surface at the time the accident took place. Later, he changed to state that alt his team did was to clear up small debris and the Police and the Traffic Officers are the ones who cleared up the debris. He stated that his team only comes in if there is an unusual type or amount of debris. According to him, they were only notified of the accident through a report which he received on the following Friday.

23. According to Mahache, the Defendant considers the task of replacing missing stop signs to be a priority because failure to do so could create extremely dangerous situations, much as it can pose a danger to road users. He confirmed that no pre­ warnings on the stop sign at that intersection are in place as one approaches the intersection. He testified that the letters 'STOP' at the stop line get re-painted with reflective paint during or around March to May yearly and that they are visible from a distance of 300 metres. Mahache disputed the version by Captain Maine to the effect that on the date of the collision these letters had faded and were not clearly visible.

24. Mahache told court that the Parks Division is responsible for annually cutting trees that obstruct the view of drivers. He conceded that this was last done just before Autumn. He conceded that he is not an expert in Chemistry regarding rust that forms on the poles hoisting road signs. He testified that over a period of ten years, it has not been necessary to change a road sign. He confirmed that under normal circumstances, rf a stop sign goes missing, it gets replaced on the same day if available In stock. He agreed with the contention that the foliage from the trees interferes with the visibility of stop signs. However, he further stated that it depends on the amount of Illumination in the area. He stated even when he moved away from the stop sign, he could still see it. He said that he was not at the scene of the collision on 20^th March 2010.

25. Under re-examination Mahache indicated that if he travels at a speed of 60 kilometres per hour on his own motor bike, he can bring it to a standstill without screeching its tyres within a distance of 40 metres ff there is an emergency. If there is no emergency, he can stop it over a distance of about 100 metres. He also indicated that there were other signs that could warn a driver that he was approaching an intersection, including motor vehicles in the cross street and the back of the stop sign on the opposite side of the intersection.

 

EVALUATION.

26. In this case, evidence presented by the Plaintiff is mutually exclusive to that of the Defendant. In the case of Stellenbosch Farmers' Winery Group Ltd and Another v Martell et cie and Others[4]_, the versions of the parties were mutually exclusive to one another. The court outlined the approach to be adopted. In that regard the court stated the following: "To come to a conclusion on a disputed issue, a court must make findings on:

(a). The credibility of the-various factual witnesses;

(b).Their reliability; and

(c). The probabilities.

Where it concerns (a), the court's finding on the credibility of a particular witness will depend on its impression about the veracity of the witness. Thai in turn will depend on a variety of subsidiary factors, not necessarily in order of Importance such as:

(I). The witness's candour and demeanour In the witness box;

(ii). His bias, latent or blatant;

(iii). Internal contradictions in his evidence;

(iv). External contradictions with what was pleaded or put on his behalf, or with established facts or with his own extra curial statement or actions;

(v). The probability and/or improbability of particular aspects of his version; and

(vi). The calibre and cogency of his performance compared to that of other witnesses testifying about the same incident or events,

As to (b),a witness' reliability will depend, apart from the factors mentioned under (a)(ii), (iv) and (v), on:

(i).  the opportunities he had to experience and observe the event in question and

(ii). the quality, integrity and independence of his recall thereof.

As to (c), this necessitates an analysis and evaluation of the probability or improbability of each party's version on ec1ch of the disputed issues. In the light of its assessment of (a), (b) and (c) the court will then, as a final step,

determine whether the party burdened with the onus of proof has succeeded in discharging it. The hard case occurs when a court's credibility findings compel it in one direction and its evaluation of the general probabilities in

another. The more convincing the former, the less convincing will be the latter. But when all factors are equipoised, probabilities prevail.

27. The court is to determine whether the plaintiff proved his case against the Defendant on the balance of probabilities. In order to make such a determination, the versions of the parties with regard to whether there was, or was no stop sign in place at the intersection of Raasblaar Avenue and Carel de Wet Road on the day the accident in issue took place, (the 20th of March 2010), become central. Captain Maine who should be a totally objective and completely independent witness testified. In his testimony, he told court that whenever he attends at scenes of accidents, it is in his habit to reflect structures like stop signs in the relevant sketch plans if there are any in place. He views that although he is not definitely sure, the fact that on this particular occasion he did hot, raises a possibility that there could have been none. It is notable that that Captain Maine gave his testimony a long time after the accident had happened.

28. Mr. Angelo de Bruyn, brother to the Appellant and Mr. Curnow, both testified that they attended the scene of the collision on the evening of the collision and at that time, there was no stop sign in place regulating traffic travelling in the direction Mr. de Bruyn was travelling. The above three witnesses testified in a manner simple and straightforward. They cannot be doubted in any way.

29. On the other hand, the Defendant failed to call the individual responsible for surveying the road signs in the area every five days. It failed to call any of the team members of Mr. Mahache who were allegedly at the scene of the collision to clean up some debris and who then reported the incident to Mr. Mahache on the Friday approximately a week after the collision. The Defendant relies on two photographs taken much later during 2010. This was approximately around August. In the photographs it appears that there is indeed a stop sign in place at the intersection. The Defendant failed to make discovery of and to produce in evidence its records and documents which was referred to by Mr. Mahache in his testimony. These records would certainly have lent credibility to the version of the Defendant. The Defendant relies on the evidence of Mr. Mahache, who was not at the scene of the collision on the day of the collision but who only allegedly attended the scene about a week later, who was not a convincing witness and who presented contradictory evidence.

30. The Plaintiff argues that when the court determines whether there was a stop sign in place or not on the afternoon of the accident, the failure by the Defendant to call important witnesses and to present important documentary evidence together with the probabilities, should lead the court to conclude that there was indeed no stop sign present at the time of the collision.

31. In the case of Butise v City of Johannesburg and Others[5] it was held at paragraph [27] at 203D - E, that where a Plaintiff was not in a position to adduce sufficient evidence on a particular aspect, less evidence would suffice to establish a prima facie case of negligence where the facts were peculiarly within the knowledge of a Defendant. In such a situation, there will be an evidentiary burden upon a Defendant to rebut the prima facie inference that the cause of the harm was a result of its negligent act of omission.

32. The Plaintiff contends further that even if there was a stop sign on the clay of the accident, such would have been obscured by tr s lined along Raasblaar Road, which were unkempt and which would have tended to obstruct the view of drivers. In the case of Elgin Fireclays Ltd v Webb[6], Watermeyer CJ stated as follows (on pages 749 and 750): "It is true that if a party fails to place the evidence of a witness, who is available and able to elucidate the facts, before the trial Court, this failure leads naturally to the inference that he fears that such evidence will expose facts unfavourable to him. (See Wigmore ss 285 and 286.) But the inference is only a proper one if the evidence is available and if it would elucidate the facts."

33. In this case, the evidence was available. It would most certainly have elucidated the facts regarding the presence or otherwise of a stop sign at the intersection of Raasblaar Avenue and Carel de Wet Road on the day of the accident In the case of Olifant v Shield Ins Co[7], the failure of the Defendant to call as a witness the driver of a vehicle, served to provide some positive support for the Plaintiff s case. This failure bolstered up the Plaintiff s case to the point where it established a balance of probabilities in his favour. Judgment was accordingly granted in favour of the Plaintiff. Given the totality of the evidence in this case, it is safe to hold that the failure on the part of the Defendant to call important witnesses and to present important documentary evidence together with the probabilities equally bolstered up the Plaintiff s case to the point where it established a balance of probabilities in his favour

34. It is noted that no effort whatsoever was made by the Defendant Municipality to discover evidence in the form of its order books, job cards, stock records and other documents which would have indicate whether or not a stop sign was replaced shortly after the collision on the 20th March 2018 or at any other relevant timing. The failure to present such evidence is telling, much as it leaves the version of the Plaintiff without significant challenge. The witnesses whom the Defendant failed to call or avoided to call are readily available. They are its employees. The documents that it failed to discover would have shed absolute clarity on any activity regarding stop signs in its area, including the scene of the accident in issue in this case.

35. The evidence at hand suggests that even if there was a stop sign in place, its visibility would have been insufficient due to unkempt vegetation and wear and tear. Our law holds that in matters of the sort in issue in this case, there is a duty on the municipality to ensure visibility by way of ensuring that road signs are positioned in such a way that they shall enable easy and timeous visibility.

36. In the case of Minister of Transport NO and Another v Du Toit and Another[8], the Supreme Court of Appeal pointed out at paragraph [17] that the authorities responsible for erecting road signs and other warnings were not entitled to assume that drivers would read, and if necessary react, to every sign regardless of its nature, size and positioning. It was held that it is imperative for warning signs, particularly in unlit areas, to be clear, unambiguous and appropriately positioned, so that if necessary they might be read and comprehended at a glance, and this was all the more so where there was a potentially dangerous situation ahead. Paragraph [19] reads as follows: "The stop sign itself was in a poor condition, with its reflective paint badly faded and, in places, worn off entirely. Criticism was also levelled at the condition of the reflective paint of the 'end of freeway' sign, but this was not readily discernible from the photographs. The more cogent criticism of this sign was its location some 350 m from the tollgate and just short of the point where the off-ramp widens into two lanes. No explanation was given as to why the sign was located at this position and not at the start of the off-ramp.”

37. In this case, even witnesses for the defence agree that the stop sign would not have been clearly visible if there was one in place. However, the Defendant in this case failed to adduce evidence proving that there was a stop sign in place at the intersection where the accident took place. Plaintiffs witnesses on the other hand were unwavering, much as they corroborated one another especially with regards to the lay-out at the scene of the accident and in particular. with regard to whether there was a stop sign in place or not at the time the accident occurred.

38. In the result, the court believes the version of the Plaintiff and rejects that of the Defendant. Consequently, the Plaintiff s claim stands to succeed and the following order is made:

 

ORDER.

(a)  It is declared that the Defendant is liable to make payment to the Plaintiff of 40% of the damages which may be proven (or agreed between the parties), with regard to injuries sustained by the Plaintiff on the 20th of March 2010.

(b)  The Defendant is ordered to pay the Plaintiff s costs.

 

 

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T.A. Maumela.

Judge of the High Court of South Africa.

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