Republic of south africa in the high court of south africa



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REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

CASE NUMBER: 38098/2012



DATE: 8 AUGUST 2014

NOT REPORTABLE

NOT OF INTEREST TO OTHER JUDGES

ANTOINETTE CORNELIA COETZEE....................................................................................PLAINTIFF

V

THE ROAD ACCIDENT FUND...............................................................................................DEFENDANT



JUDGMENT

DOSIO AJ:



INTRODUCTION

[1] This is a claim for loss of support in terms of the Road Accident Fund, Act 56 of 1996, (“RAF Act”) following the death of the Plaintiff’s husband. This death arose due to a collision which occurred between a Honda motor bike (“the Honda”) driven by the Plaintiff’s husband (“the deceased”) and a Mahindra bakkie (“the Mahindra”) driven by the insured driver, Mr Eddie Joseph Lubisi (“Mr Lubisi”). The collision occurred on the 30th of July 2011 at approximately 15h40 on the R40 public road, between Nelspruit and Barberton, in the Mpumalanga Province,

[2] The parties agreed in terms of rule 33 (4) of the Uniform Rules, to separate merits from quantum.

[3] The issue in dispute is who caused the collision. The Plaintiff alleges the accident was due to the negligence of Mr Lubisi. The grounds are;

3.1 He failed to keep a proper look-out;

3.2 He failed to take any, alternatively sufficient cognisance of the presence, the actions and the visibility intended and/or alternative probable further actions of the motor cycle driven by the deceased;

3.3 He failed to avoid the collision when, by taking reasonable and proper care, he could and should have done so;

3.4 He failed to maintain any, alternatively sufficient control over the insured vehicle;

3.5 He failed to apply the brakes of the insured vehicle at all, alternatively timeously and/or sufficiently, alternatively he drove the insured vehicle whilst the braking system and/or one of more of the tyres thereof was/were in a defective and unroadworthy condition, the fact of which he was aware, alternatively could and should, by taking reasonable and proper care, have made himself aware of and have avoided;

3.6 He omitted to drive with due skill, diligence, caution and/or circumspection;

3.7 He failed to take into account the rights of other users of the road, and in particular those of the deceased;

3.8 He failed to adjust his driving sufficiently or at all, to cater for the conditions of the road;

3.9 He attempted to execute an inherently dangerous manoeuvre and did so in a reckless fashion, thereby causing the collision;

3.10 He drove the insured motor vehicle in such a way as to cause an obstruction to the motor cycle driven by the deceased.

[4] The Defendant resists the Plaintiff’s claim that the collision was caused solely by the negligence of Mr Lubisi.

[5] The Plaintiff was born on the [...] 1983. She married the deceased and the marriage still subsisted on the 30th of July 2011. The deceased was lawfully obliged to maintain the Plaintiff. The deceased was born on the […] 1976 and was employed at the time of his death at the Lowveld Spar, DC Centre, Nelspruit.

[6] Mr Cedric Hall (“Mr Hall”) testified on behalf of the Plaintiff and Mr Lubisi on behalf of the Defendant.

Mr Cedric Hall

[7] He testified that on the 30th of July 2011 he was driving a Suzuki motor cycle (“the Suzuki") from Germiston to Nelspruit. Near Barberton he stopped at the Jathira petrol station to fill up with petrol. When he exited he saw two motor vehicles coming from his right hand side which were followed by the Honda. The second car was a normal following distance from the first car and the Honda was four to five car lengths behind. He entered the single carriage road, turned left and followed the vehicles mentioned. He entered the road slowly as he was adjusting his neck warmer. The vehicles were driving at approximately 80 kms per hour. He caught up to the Honda and was travelling at the same speed. He was approximately four to five motor vehicle lengths behind the Honda. At one point the deceased moved his arms out sideways, and immediately thereafter the Honda collided with the Mahindra. The deceased swerved the Honda to the left prior to the collision. After the collision the Honda came towards his direction and collided with his Suzuki. The other two motor vehicles in front of the Honda had already passed the Mahindra at this time. Prior to the collision this witness did not see the Mahindra. Later he states that the Mahindra was diagonally across the road, its back wheels on his side of the barrier lane, whereas the front wheels were on the other side of the barrier lane. It appeared as if the Mahindra wanted to cross to the other side of the road. This witness stated that he could not see if the Mahindra had any indicator lights on as his vision was obstructed by the two motor vehicles in front of the Honda. Mr Hall was still travelling at a speed of 80 kms per hour at the time of the collision. He believes the Honda was driving at the same speed otherwise he would not have been able to catch up to him. The distance from the petrol garage and the point of collision was 500 meters. This witness did not believe the Honda could have done anything to avoid the collision as the two motor vehicles in front of the Honda definitely obstructed his view as well. There was no oncoming traffic. Mr Hall stated that the Mahindra was the cause of the accident.

[8] He testified that he was the driver of the Mahindra and that the cause of the accident was attributable to the negligent driving of the deceased. He was driving from the dumping site in Barberton heading to the mission where he is employed. He was travelling at a speed of 60 kms per hour. He needed to turn right. He activated the indicator light a 100 meters before he was due to turn. He was waiting for oncoming traffic to pass. The Mahindra was facing straight ahead in the direction of Nelspruit. All the other cars that came from behind, passed him on his left-hand side. As he was about to turn right he saw two motor cycles coming from the petrol garage which was 500 meters behind him heading in the direction of Nelspruit. They were travelling at a high speed. When he was about to turn he looked in his rear view mirror and noticed the Honda trying to pass his vehicle on the right-hand side. The Honda then applied brakes and it moved towards his left-hand side. Mr Lubisi moved the Mahindra in the direction where he was turning in order to avoid the collision and that is when the collision occurred. The deceased applied brakes and there were skid marks on the road service. The Honda collided with the back of the Mahindra. Mr Lubisi stated that the deceased must have seen his indicator light to turn right and that is when he braked and moved to the left-hand side.

LEGAL PRINCIPLES

[9] In the case of AA Mutual Insurance Association Ltd v Nomeka 1976 (3) SA 45 (A), the learned Viljoen AJA stated that to turn across the line of oncoming or following traffic there is a stringent duty upon a driver who intends executing such a manoeuvre to satisfy him or herself that it is safe and must then choose an opportune moment to do so.

[10] A driver turning to the right must signal his intention clearly.

[11] In the case of Welf v Christner 1976 (2) SA 170 NPD it was stated that;



It is the duty of a driver who is about to execute a right-hand turn across a busy public road...to take considerable care to ensure that he chooses a safe and opportune moment to cross. No systems of signals, however helpful that system might be, can be a substitute for or replace the fundamental duty of every driver to keep a proper lookout”

[12] In the case of Rondalia Versekeringskorporasie Van SA Bpk v De Beer 1976 (4) SA 707 (A), it was stated that a driver is only called upon to take precautions against reasonable foreseeable contingencies and not the reckless driving of other motorists.

[13] In the case of Arnesen v Protea Assurance Co Ltd 1973 (1) SA 714 (N), the learned Fannin J stated at page 717 that;

When a vehicle slows down almost to a stop in the middle of the road, for no apparent reason, and without any signal being noticeable, it must and certainly should act as a warning to drivers of vehicles behind it that they should proceed with care.

[14] In the case of Orne-Gliemann v General Accident Fire &  Life Assurance Corporation Lief 1981 (1) SA 884 (Z) the learned Beck J at page 888 stated;

There is no dearth of authority for the proposition that, before executing a right-hand turn, a motorist is under a duty to ensure that the turn can be executed without endangering, not only oncoming traffic, but following traffic as well. ”

[15] In the case of JM Grove v The Road Accident Fund 2011 ZASC 55, the learned Judge Tshiqi stated at paragraph [11];

Whether the wrongdoer should be liable for the consequences of his wrongful conduct entails an enquiry into whether the link between the act or omission and the harm is sufficiently close or direct for legal liability to ensue, or whether the harm is, as it is said ‘too remote’.”

[16] In the RAF PractionerGuide1 at page E-14, the learned author H. B. Klopper stated that nce a Plaintiff succeeds to prove a causal link between the accident and his injury on a preponderance of probabilities, the RAF will be fully liable.

[17] Mr Hall has given a few versions in respect to his visibility of the Mahindra prior to the collision. His first version was that prior to the collision he did not see the Mahindra. He only saw the Mahindra after the collision occurred. The second version is that he only saw the Mahindra after the deceased extended his arms outwards. The third version is that he only saw the Mahindra after the Honda swerved to the left. The fourth version is that he states he saw the Mahindra a moment before the impact.

[18] Mr Hall has also given a few versions in respect to whether he saw an indicator light on the Mahindra prior to the collision. Firstly he stated he could not see if the Mahindra had an indicator light on. Later during his evidence in chief he stated that he does not think the Mahindra had indicator lights on otherwise he would have seen it

[19] His version is not trustworthy. He was unable to explain when he actually saw this Mahindra. He had stated that the deceased and himself would not have been able to see the Mahindra due to it being obscured by the two motor vehicles in front of it. In sharp contrast to this inability to observe the Mahindra prior to the collision, Mr Hall recalled with clarity that the distance between the Honda and the car in front of it was four to five motor cycle lengths, and that the distance between himself and the Honda was four to five car lengths.

[20] Mr Hall appeared uncertain about his facts, because when the Defendant’s advocate put it to him that the Mahindra had to first stop to turn right, this witness stated that “it was possible”

[21] There is an inconsistency in the evidence of Mr Hall as compared to his sworn affidavit dated the 13th of October 2011. In his evidence in chief and during cross-examination he stated there was no oncoming motor vehicles, yet in his sworn affidavit he states he cannot remember. During cross-examination he stated that the driver of the Mahindra would not have been able to see the two motor cycles behind him if he had looked in his rear view mirror, due to the diagonal positioning of the Mahindra across the road. He later contradicted himself and stated that he could not tell what the driver of the Mahindra would have been able to see.

[22] There is an inconsistency between the two affidavits that he made. In the warning statement made to the police he states that the Honda failed to go around the Mahindra and bumped it on the left-hand side at the back, yet in his affidavit dated the 13th of October 2011 he stated “Die motorfietsbestuurder het Mahindra op die spaarwiei wat agter op die voertuig gemonteer was, getref. ” This confusion as to exactly where the Honda collided with the Mahindra is increased during cross-examination where he stated that the Honda collided with the Mahindra in the middle of the back of the car.

[23] On the one hand he recalls the safe following distance that the deceased had in respect to the motor vehicles in front of him, yet during cross examination when the Defendant’s advocate asked him if the deceased, who was travelling at the prescribed speed limit, could have avoided the accident, he answered 7 don’t know what type of driver he was”. Mr Hall admitted during cross-examination that he could not with certainty say what speed the deceased was travelling at. This is in sheer contrast to the picture he previously created of a careful driver, following at the correct distances and keeping to the speed limit of 80 kms per hour.

[24] The Defence advocate put it to him that the deceased did not properly observe what was in front of him and was the sole cause of the accident. Mr Hall answered 7 cannot answer”. This is highly suggestive that Mr Hall could not explain how the deceased was driving.

[25] Mr Hall’s warning statement dated the 13th of October 2011 states that he saw the deceased looking into his rear view mirror before the accident happened. This aspect was left out in his evidence in chief. He was also not cross-examined in this regard.

[26] Mr Hall could not have seen any indicator light as he only saw the Mahindra at the time the collision occurred. His inability to state he saw the Mahindra prior to the collision suggests that he too could not see properly what was happening on the road in front of him or in respect to oncoming traffic. Despite the impression of honesty and genuinely held belief in the veracity of his own evidence, this court cannot justifiably find that the collision occurred in the manner that he suggested. This court finds that it is likely that in respect to certain aspects of his evidence he is mistaken and not reliable.

[27] The testimony of Mr Lubisi impressed this court. He was consistent with his version reflected in the two affidavits dated the 30th of July 2011 and the 1st of August 2011 respectively.

[28] There are a few aspects which were not included in these two affidavits which the Plaintiff’s advocate suggested to this court destroyed the probabilities of his version. The aspects not included were;

1. A hundred meters after he passed the gate on his right-hand side he put on his indicator light to turn right.

Mr Lubisi answered this by saying he did not know he would be wrong in mentioning the gate in court.



2. He saw two motor cycles coming from behind him, whereas in his statements he had only mentioned seeing one.

Mr Lubisi answered this by stating that he told the policeman there were two motor cycles.



3. After the collision he saw his back tyre rolling away.

Mr Lubisi answered this by saying that he believed he would be able to explain in more detail when he was in court.



4. He saw brake marks caused by the Honda’s tyres.

Mr Lubisi answered this by stating that he only saw this a few days later when he was travelling on that same road.



5. When he had tried to turn right the Honda tried to pass him in front.

Mr Lubisi answered this by explaining that the person who wrote the statement did not understand. He had explained everything to him.

[29] The warning statement obtained by the police was in respect to the culpable homicide case which was opened and then closed. The purpose of this affidavit was merely for the police to obtain some sense of what happened at the scene of the collision. There is nothing precluding a witness from adding to such evidence when given the opportunity to do so during a trial.

[30] The additional information given by Mr Lubisi in court does not change or contradict the version in his affidavits, it merely augments it.

[31] It is common for lay people to report incidents to the police and for the police not to always write down everything they say. The facts before this court appears to be one of these instances.

[32] Mr Lubisi’s explanation for not mentioning the aspects referred to in paragraph [28] supra is acceptable to this court. This court cannot detect any signs of recent fabrication.

[33] The Plaintiff’s advocate has found fault with Mr Lubisi adding information which was not incorporated in his initial affidavits. The same criticism can be levelled in respect to the affidavits of Mr Hall which also failed to mention that the deceased extended his arms outwards just before the impact.

[34] There are some aspects of Mr Lubisi’s evidence which amount to inconsistencies. In his affidavit dated the 1st of August 2011 he stated 7 saw the motorbike coming from behind but it was far”, whereas during cross-examination he stated when he was trying to manoeuvre a right-hand turn the motor cycle was “dose". This court does not regard this as a material inconsistency, because in his statement dated the 30th of July 2011 he had indicated that he had looked in his review mirror and he "... saw one motorbike coming straight behind” him. This court does not find these inconsistencies so material to conclude that Mr Lubisi was not a credible witness.

[35] Mr Lubisi was very relaxed when he testified. He answered all questions eloquently and didn’t yield under inherent pressure of cross-examination.

[36] In respect to the numerous allegations of negligence of Mr Lubisi as per paragraph [3] supra, this court finds that in respect to 3.1 the evidence does not support the Plaintiffs claim that Mr Lubisi failed to keep a proper look-out. In fact the evidence shows he did keep a proper look-out at all times. In respect to 3.2 Mr Lubisi clearly saw the Honda behind him and he did take into consideration the fact that the deceased wanted to over-take the Mahindra. Mr Lubisi tried to move the Mahindra in such a manner that the collision could be averted, however he was unsuccessful. In respect to 3.3 this court finds Mr Lubisi did take reasonable steps by stopping his car when he saw the deceased battling to over-take him. When the deceased moved to the left-hand side Mr Lubisi tried to move forward to prevent the deceased colliding with the Mahindra. In respect to 3.4 this court finds Mr Lubisi did exercise sufficient control over his vehicle. In respect to 3.5 this was pleaded for good measure but the evidence does not support this contention. In respect to 3.6, 3.7 and 3.8 this court finds that Mr Lubisi did drive with due skill and diligence and did take into account the rights of other users of the road, including the deceased. He also adjusted his driving sufficiently to cater for the conditions that arose. In respect to 3.9 the Plaintiff did not substantiate why the manoeuvre to turn right was inherently dangerous. In fact the evidence of Mr Lubisi is that he waited for oncoming traffic to pass before he could turn right. The barrier line is also discontinued at this specific point in the road, allowing road users to turn into the gate of the St John Mission. Mr Lubisi could only stop at this point to turn right. There was no other place for him to stop. It is important to note that there is a continuous solid barrier line on both sides of the road right up to this point which would have precluded the deceased from overtaking any vehicles in front of it. In respect to 3.10 this court finds that Mr Lubisi did not create an obstruction in the middle of the road. The other motor vehicles in front of the Honda kept a proper look out on the road and passed him with ease on his left-hand side.

[37] It is probable in this courts view that Mr Lubisi was waiting for oncoming traffic to pass before he could safely turn right. There would have been no other reason for him to have stopped if there was no oncoming traffic. The fact that the other two motor vehicles safely passed him on his left-hand side suggests to this court they could clearly see the Mahindra. This collision most probably occurred because the two motor vehicles in front of the Honda obstructed the view for both the deceased and Mr Hall. When the deceased saw the Mahindra it was too late. The deceased misjudged the distance between himself and the Mahindra. Although he applied brakes, he was unable in a timely manner to stop the Honda or to execute a right or left-hand manoeuvre or to by-pass the Mahindra.

[38] Mr Lubisi’s version that he tried his best to avert the accident when he saw the Honda trying to overtake him on his right-hand side is accepted by this court as credible and the probabilities favour his version.

[39] This court cannot find a causal connection that is so real or sufficiently close to enable this court to say that the death or injury of the deceased arose out of the negligent driving of Mr Lubisi. Mr Lubisi took all reasonable steps at his disposal to try to avoid the collision. Accordingly this court does not find Mr Lubisi negligent. There was also no contributory negligence on his part.

[40] In the premises, the Plaintiff’s claim is dismissed with costs.

D DOSIO

ACTING JUDGE OF THE HIGH COURT

Appearances:

On behalf of the Plaintiff: Adv Jordaan

Instructed by: Pieter Net Prokureur

161 Garsfontein Road Ashlea Gardens, Pretoria

On behalf of the Defendant: Adv Chauke

Instructed by: AP Ledwaba Attorneys



867 Church Street Arcadia, Pretoria

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