NORTH WEST HIGH COURT, MAFIKENG

NORTH WEST HIGH COURT, MAFIKENG CASE NO. 2278/2010 In the matter between: MPHO MOSES NTSIMANE PLAINTIFF and GIZANI WILSON MALULEKA 1 ST DEFENDANT SYDWELL MACHVELE 2 ND DEFENDANT CIVIL JUDGMENT GUTTA J. A. INTRODUCTION [1] This is an action for damages arising out of a collision which occurred on 05 May 2010 in Rustenburg, between a Toyota Avensis ( Avensis ) vehicle with Registration No. FZG 690 NW, driven by the plaintiff and a Toyota Quantum ( Quantum ) vehicle with Registration No. FTS 975 NW, driven by the second defendant, an employee of the first defendant.

2 [2] The parties, at the commencement of the proceedings, agreed to separate the issue of quantum and merits, and further agreed that the following facts were common cause: 2.1 the identity of the plaintiff; 2.2 the citation of the first and second defendants; 2.3 jurisdiction; 2.4 that the collision occurred on 05 May 2010; 2.5 that the second defendant was the driver and employee of the first defendant; 2.6 that the duty to begin is on the plaintiff, but in respect of the defendants alternative plea of sudden emergency, the onus of proof is on the defendant. A bundle of documents were handed in by agreement and marked A. [3] The parties agreed that the only two issues in dispute were: 3.1 whether the plaintiff is the owner or lawful possessor of the motor vehicle with Registration No. FZG 690 NW, driven by the plaintiff when the collision occurred; 3.2 negligence. [4] It is the plaintiff s contention that the collision was caused by the sole negligence of the second defendant.

3 [5] The first and second defendants pleaded that the sole cause of the collision was the negligent driving of the plaintiff and in the alternative pleaded that should the Court find that the sole cause of the collision was not the plaintiff s negligent driving, then the defendants plead that the second defendant was placed in a situation of sudden emergency when an unidentified vehicle emerged into the second defendant s path of travel, necessitating the second defendant to take evasive action into the plaintiff s path of travel, thereby causing the collision. B. THE PLAINTIFF S CASE [6] The plaintiff, Mr Mpho Moses Ntsimane ( Mr Ntsimane ) briefly testified that he is 45 years old and employed at the Rustenburg Base Metal Refinery. He testified that he is the owner of the vehicle and was driving the said vehicle on 05 May 2010. [7] He testified that he purchased the vehicle and financed it through Toyota Finance. There is a residual outstanding in the amount of R78 000.00 for which he is paying monthly instalments of R3 200.00 per month. His licence was identified in Bundle A on page 9, which is valid from 20 January 2008 to 19 January 2013. [8] With regards the motor vehicle collision, he testified that: 8.1 on 05 May 2010, he was driving his vehicle from Rustenburg to Bleskop to collect his cousin, who had died, from the mortuary. His

4 wife, Ms Elizabeth Sinah Ntsimane ( Ms Ntsimane ), and his cousin, Ms Maria Mataleng Mphela ( Ms Mphela ), were in the vehicle. He saw a Quantum vehicle approaching from the opposite direction overtaking two vehicles in front of it; 8.2 There was a solid line that restricts vehicles from overtaking in the middle of the road, and on the sides of the road there was a yellow line. 8.3 he swerved to his left to avoid colliding with the second defendant and as there was another vehicle behind him, he gave that person the right of way and then entered the road where the Quantum faced him and he shifted behind the yellow line, off the road. The wheels on the right hand side of his vehicle were on the tarred road and the left wheels were on the gravel road. The Quantum collided with him on the left hand side of his vehicle. [9] Both his wife and his cousin were injured. He testified that after the collision he alighted and went to talk to the driver of the second defendant and asked him how he was driving and the second defendant replied that they bumped into each other and he did not bump against him. The second defendant also told him that he was trying to avoid a motor vehicle that did not stop at the T-junction. [10] The plaintiff admitted that there was a T-junction, but disputed that there was a car that entered the road from the T-junction in front of the second defendant. He testified that the accident was approximately

5 10m from the T-junction. He testified that the speed limit was 70km/h and he was travelling between 70 and 72km/h. He said the second defendant was driving at a speed of 90 100km/h. [11] When asked what steps he took to avoid the collision, he stated that: 11.1 he moved away from the main road so that the second defendant could have space to enter; 11.2 he stopped his vehicle and that is why the second defendant bumped against his vehicle; 11.3 he applied brakes when they collided. [12] Under cross-examination he was asked about the two cars he saw in front of the second defendant and how sure he was that the car did not come from the T-junction, and he replied that he saw the second defendant overtaking the cars and he was not sure if one of the vehicles came from the T-junction. [13] He was cross-examined about the speed limit which appears as 60km/h on the accident report. When asked, on your own version you were speeding. He replied, no comment. Further, he could not comment when questioned about the fact that there is no barrier line marked on the accident report.

6 [14] It was also put to him in cross-examination that had he not suddenly stopped, he could have avoided the collision. He testified that the collision occurred when the car was still in motion. [15] He testified that on the day in question he was on the road from 06h00 until the time of the collision as he was arranging his cousin s funeral. It was put to him that he was tired and emotional and not paying attention. He denied this and said that he was not driving the whole day, that he had breaks. [16] The Court posed the following questions: Question: Was the defendant overtaking two vehicles at the same time? Answer: He was overtaking the first vehicle and the other vehicle was close to me. He was about to overtake the second vehicle and I moved away from the lane. Question: After he overtook the first vehicle, did he go back into his lane and then attempt to overtake the second vehicle? Answer: He did not go back to his lane. The other car moved on. [17] The next witness for the plaintiff was Ms Ntsimane. She is married to the plaintiff and was seated next to the plaintiff on the day of the collision. She testified that they were on their way to the mortuary when she saw a white Quantum overtaking and the plaintiff tried to move to the yellow lane and the Quantum came towards them and whereafter the plaintiff moved to the gravel where the Quantum collided into them. She was unable to give any further details concerning the collision.

7 [18] The third witness for the plaintiff was Ms Mphela, the plaintiff s cousin, who was a passenger seated behind the plaintiff. Her testimony was briefly that there was a Quantum coming towards them and the plaintiff moved to the left to avoid it. The Quantum came in their direction and bumped against the plaintiff s vehicle. She estimated the speed of the Quantum to be ±100km/h, but could not explain how the Quantum came to be on the plaintiff s side of the road. She estimated the plaintiff s speed to be between 50 and 60km/h. [19] The plaintiff closed its case and Mr Sydney Machvele, the second defendant testified. C. THE DEFENDANT S CASE [20] He testified that he was a taxi driver, from 2006 until 2013. That on 05 May 2012, he was from Bleskop to Rustenburg Taxi Rank. He had one passenger in his vehicle. As he was travelling, there was a T-junction to the left and a car emerged from the T-junction without stopping and drove into his lane of travel. He testified that the driver of the unidentified vehicle was travelling at a speed of 40 50km/h. The car was a distance of 5m away from him. He did not know what to do. He could not swerve to the left because there was a furrow with water running through on the left side. He estimated the plaintiff s vehicle to be a distance of 15 20m when he saw the plaintiff for the first time. He decided to swerve to the extreme right. He flickered his lights to warn

8 the plaintiff. He testified that he went out of the road beyond the yellow lines on the right side. [21] After the collision he alighted and checked on his passenger, who had sustained an injury to her foot. From there he walked to the plaintiff s vehicle and the plaintiff asked him why he drove in that manner and he responded that a certain motor vehicle joined the road without stopping at the T-junction. The plaintiff accused him of lying and said he was overtaking. [22] Thereafter, a traffic officer arrived, who took his and the plaintiff s statements. He further testified that he often travels on that road and the speed limit is 60km/h. He also disputed the speed that the plaintiff alleged he was travelling at and said that the plaintiff could have avoided the collision by applying brakes or stopping if he was travelling at that speed. [23] Under cross-examination, he admitted that there was a barrier line that separates the two roads. It was put to him that he had a view of the T- junction. He replied that there are trees lining the road with the T- junction and you can only see the road when you pass the road. [24] It was also put to the second defendant that he could have avoided the collision by either entering in the yellow lines or entering into the T- junction on the left side of the road. He replied that there is a furrow and there is no space and that he had no choice. Further, he testified that

9 he was the first to drive across the road and into the yellow line on the right side of the road. [25] It was put to him that he had time to consider the options, namely, to turn left or turn right. He replied that he considered the options in that time that he crossed over the right side of the road. He denied that he drove at an excessive speed. [26] When questioned why the passenger in his vehicle was not called as a witness, he replied that the passenger was not known to him. That three days after the accident, he went to look for her at the hospital and was informed that she had been discharged. D. CLOSING ARGUMENTS [27] In the plaintiff s closing argument, Mr Scholtz submitted that the onus was on the second defendant to prove sudden emergency, which he did not discharge on a balance of probability. He referred the Court to the case of Moses Moyo v Autopax Passenger Services (Pty) Ltd t/a City to City (12937/2002) [2005] ZAGPHC 219 (20 April 2005), and submitted that the onus rests on the person pleading sudden emergency. [28] He also referred the Court to the case of Soko v Road Accident Fund (A708/06) [2008] ZAGPHC 257 (19 August 2008) and submitted that the res ipsa loquitur is applicable as the second defendant conceded that the accident happened on the plaintiff s side of the road. He referred to the case of Tony s Transport CC v MA Transport & Another (1278/2002)

10 [2006] ZAFSHC 93 (17 August 2006), and submitted that the second defendant had time to apply his brakes. He further submitted that the second defendant s version is improbable and that the accident was caused by the sole negligence of the second defendant. [29] Finally he submitted that the second defendant did not plead contributory negligence, therefore the plaintiff only had to prove a form of negligence. Therefore the Court should find no apportionment of damages. [30] Ms Smit, for the defendants, in her closing argument submitted that the defendant did prove sudden emergency. She also submitted that res ipsa loquitur is rebutted in a case of sudden emergency. E. THE LAW [31] The plaintiff bears the onus to prove that the defendant s driver was negligent on a balance of probabilities. See Ntsala & Others v Mutual & Federal Insurance Co. Ltd 1996 (2) SA 184 (T) at 190E F. [32] Once the plaintiff proves an occurrence giving rise to an inference of negligence on the part of the defendant, the latter must produce evidence to the contrary, he must tell the remainder of the story, or take a risk that judgment be given against him.

11 [33] In casu, the res ipsa loquitur maxim is applicable. The maxim gives rise to an inference of culpa and the defendant s evidence should counter the inference. The inference is displaced when: 33.1 the defendant produces evidence that shows that the accident may have occurred without negligence on his part; 33.2 the explanation must be reasonable; 33.3 the degree of persuasiveness required of the defendant will vary according to the probability or improbability of his explanation. See Rankisson & Son v Springfield Omnibus Services (Pty) Ltd 1964 (1) SA 609 (D) at 616. [34] The res ipsa loquitur is rebutted in the case of sudden emergency. The doctrine of sudden emergency is formulated as follows: A man who, by another s want of care, finds himself in a position of imminent danger, cannot be held guilty of negligence merely because in that emergency he does not act in the best way to avoid the danger. See R v Cawood 1944 GWL 50 at 54. [35] A driver confronted with a sudden emergency is one who has neither the time nor the opportunity to weigh the pros and cons of the situation

12 in which he finds himself. See Goode v SA Mutual Fire & General Insurance Co. Ltd 1979 (4) SA 301 (W) at 306G. [36] The Appellate Division in Thornton v Fisher 1929 AD 398 at 412 held that: In judging the action of the motorist or a pedestrian faced with sudden emergency due allowance must be made for a possible error of judgment. See also Marine & Trade Insurance Co. Ltd v Mariamah & Another 1978 (3) SA 480 (A). [37] The effect of the doctrine is that a driver acting in the best way to avoid danger in a sudden emergency is not negligent. The unexpected swerve of a vehicle is noted to give rise to sudden emergency. See Beswick v Crews 1965 (2) SA 690 (A). [38] The Court must decide whether on all of the evidence and the probabilities and the inferences, the plaintiff has discharged the onus of proof on the pleadings on a preponderance of probability. The Court does not adopt a piecemeal approach of first drawing the inference of negligence from the occurrence itself and regarding this as a prima facie case and then deciding whether it has been rebutted by the defendant s explanation. See Arthur v Bezuidenhout & Mieny 1962 (2) SA 566 (A) at 574 576.

13 ANALYSIS [39] The plaintiff was a credible witness who remained steadfast in his version of events and did not contradict himself. The plaintiff s wife and cousin corroborated the plaintiff s version with regards to the fact that the second defendant drove on the plaintiff s side of the road, causing the plaintiff to move to the far left side of the road, where the vehicles collided. [40] Although the defendant remained steadfast in his version, he did not strike me as being entirely candid and honest as his version that there was a furrow with water on the left side of the road that prevented him from turning left was never put to the plaintiff nor to the plaintiff s witnesses and it was also not mentioned in the statement taken by the police. [41] Further, the second defendant, under cross-examination, when asked why he did not turn left into the road with the T-junction, he only replied that there was a furrow on the left side, and failed to satisfactorily explain why he did not turn left into the T-junction. If the unidentified driver emerged from the T-junction and was a distance of 5m away, then what stopped the second defendant from swerving left into the same road or even applying his brakes sharply, which he could have done if he was driving at a speed of 60km/h as he alleged. It is also not the second defendant s case that there was a vehicle behind him, which prevented him from applying his brakes.

14 [42] Further, on the second defendant s own evidence, he flickered his lights at the plaintiff, who was only a distance of 20m away, which in my view created a further hazard as any reasonable driver who sees an oncoming vehicle flicker its lights will immediately move to its left to avoid the danger. [43] I am of the view that the plaintiff, who saw the vehicle on his side of the road, did what a reasonable driver in that position would have done, namely, to apply his brakes and move to the left side of the road. The plaintiff s account of the accident appears to me to be probable. See Burger v Santam Versekeringsmaatskappy Bpk 1981 (2) SA 703 (A). [44] Even if I were to accept the second defendant s version that an unidentified vehicle entered suddenly from the T-junction into his lane of travel, which was a distance of 5m away from him and which created a state of sudden emergency causing him to drive across the plaintiff s lane of travel to the far right, the question remains whether there was any other satisfactory means available for the second defendant to avoid the collision. [45] In Williams v Nel 1939 WLD 188 at 196, Schreiner J stated: Now, going to the wrong side of the road when another vehicle is approaching on its wrong side is a dangerous course which the circumstances may justify but which nevertheless should not be lightly resorted to. If other satisfactory means are available for avoiding the accident then that course should not be taken, because there is always the risk that the other party may come back to his correct side.

15 Also see President Insurance v Tshabalala 1981 (1) SA 1016 (A). [46] A driver who is faced with a sudden emergency is required to exercise reasonable care and use reasonable skill to avoid the imminent danger. He is required to take such steps as a reasonable, careful man would fairly be expected to take in the circumstances. [47] The applicable test is how the reasonable person would have acted under the same specific conditions prevailing at the time of the accident, as experienced by the driver of the motor vehicle whose conduct is being scrutinized. See The Law of Collision in South Africa, 7 th Ed, HB Klopper. [48] Did the second defendant act as a reasonable, careful man when he swerved to the left to avoid the vehicle that entered the road from the T- junction? I am of the view that the second defendant did not take such steps that a reasonable careful man in those circumstances would for the following reasons: 48.1 he turned to the incorrect side of the road, in the face of an oncoming vehicle. The plaintiff was only a distance of 20m away; 48.2 he flickered his lights to the plaintiff, which caused the plaintiff to move to his left, where the collision occurred.

16 48.3 he failed to stop his vehicle, or to move to the left side of the road and failed to provide any reasonable explanation why he didn t turn into the T-junction. 48.4 I am of the view that a reasonable driver in the same position as the second defendant driver would not have swerved to the far right lane in the face of an oncoming vehicle. The second defendant did not act in the best way to avoid danger in a sudden emergency. 48.5 Further, the second defendant testified that as a taxi driver, he regularly drove along this road. Accordingly, he should have been aware that there was a T-junction ahead that is obscured by trees and should have kept a proper look out. F. CONCLUSION [49] Accordingly, I am of the view that: 49.1 The plaintiff is the lawful owner/possessor of the motor vehicle with Registration No. FZG 690 NW. 49.2 The second defendant was negligent.

17 G. ORDER [50] In the circumstances, I make the following order: a) The accident occurred as a result of the second defendant s negligent driving. b) The defendants are to pay the costs. N. GUTTA JUDGE OF THE HIGH COURT

18 APPEARANCES DATE OF HEARING : 14 MAY 2013 DATE OF JUDGMENT : 30 MAY 2013 COUNSEL FOR PLAINTIFF COUNSEL FOR DEFENDANT : ADV H.J. SCHOLTZ : ADV D. SMIT ATTORNEYS FOR PLAINTIFF ATTORNEYS FOR DEFENDANT : VAN ROOYEN TLHAPI WESSELS ATTORNEYS (Instructed by VAN VELDEN-DUFFEY INC.) : SMIT STANTON INC. (Instructed by DAVID HUGO ATTORNEYS)