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NOT REPORTABLE
IN THE HIGH COURT OF SOUTH AFRICA
(TRANSVAAL PROVINCIAL DIVISION)
Date: 2007-06-05
Case Number: 19826/2005
In the matter between:
N M SOKO
Plaintiff
and
ROAD ACCIDENT FUND
Defendant
JUDGMENT
SOUTHWOOD J
[1] The plaintiff claims damages from the Road Accident Fund for bodily
injuries sustained in a motor vehicle collision on 4 July 2003.
[2] At the pre-trial conference the parties agreed that the issues of liability and
quantum of damages should be decided separately in terms of Rule 33(4)
and at the commencement of the trial an appropriate order was made.
This hearing is therefore concerned only with liability.
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[3] It is common cause that between 17:00 and 18:00 on 4 July 2003 and at
or near the intersection of Tsamaya Drive and Shiloane Street, Mamelodi,
a motorcycle ridden by Kreiter Mmakekana Mampana collided with the
plaintiff who was then a pedestrian. It is also common cause that
immediately prior to the collision the plaintiff was crossing Tsamaya Drive
from south to north and that the motorcycle was travelling in Tsamaya
Drive from east to west. It is further not in dispute that it was dusk but not
dark when the collision occurred. The visibility of the insured driver was
not impaired. The primary factual issue is whether at the time of collision
the plaintiff was walking across the street in the pedestrian crossing
running south-north on the western side of the intersection, as testified by
the plaintiff, or whether she was running across Tsamaya Street from
south to north about 20 metres to the west of the intersection, as testified
by Mampana. The defendant’s counsel argued that these two versions
are not mutually destructive and that they can somehow be ‘married’. I
do not agree. In my view the one version excludes the other and the
dispute must be resolved in accordance with the principles laid down in S
F W Group Ltd & Another v Martell et cie & Others 2003 (1) SA 11
(SCA) para 5; National Employers’ General Insurance Co Ltd v
Jagers 1984 (4) SA 437 (E) at 440D-G; Koster Ko-operatiewe
Landboumaatskappy Bpk v Suid-Afrikaanse Spoorweë en Hawens
1974 (4) SA 420 (W) at 426-7 and African Eagle Life Assurance Co Ltd
v Cainer 1980 (2) SA 234 (W) at 237.
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[4] The plaintiff and John Sebothema testified on behalf of the plaintiff.
Mampana testified on behalf of the defendant. All testified through
interpreters. Except for Sebothema the witnesses did not show much
emotion in the witness box. Sebothema was amused by the proposition
put to him by the defendant’s counsel that the collision occurred to the
west of the intersection and not in the pedestrian crossing. He laughed at
the suggestion and called it propaganda. The plaintiff was born on 25
June 1953 and was 50 years old at the time of the collision. She was
cross-examined at some length on her version and did not deviate from it.
She answered all the questions put to her without difficulty and she
answered directly and without hesitation. She made a good impression in
the witness box and clearly answered as she recalled the events.
Sebothema is 78 years old and never went to school. He was also a
good witness who answered all questions directly and without hesitation.
He did not deviate from his version. As already mentioned he was openly
amused by the suggestion put to him in cross-examination that the
collision took place a distance to the west of the intersection. Mampana
was not a good witness. At times he was uncertain both in his
demeanour and in his evidence. He frequently avoided the point of
questions which had to be repeated. He sometimes answered questions
by embellishing answers already given. He was unable to explain why he
saw the plaintiff for the first time when she was already on the tarmac.
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He was also not able to explain why the plaintiff’s evidence that taxis had
come to a halt on the eastern side of the intersection was not disputed by
the defendant’s counsel. He said he had told counsel that this was not
correct. I have no hesitation in preferring the evidence of the plaintiff’s
witnesses to the evidence of Mampana.
[5] The plaintiff testified that on the day of the collision she travelled back to
Mamelodi on a Putco bus which stopped at the depot in Shiloane Street.
She alighted from the bus and walked from the depot along Shiloane
Street towards the intersection with Tsamaya Drive. She walked on the
western side of Shiloane Street until she arrived at the intersection. It is a
robot controlled intersection. Photographs 1 and 2 in exhibit A show the
position of the robots and the streets to the west and the north of the
intersection. She intended to cross Tsamaya Drive and walk along the
dirt road on the northern side of the intersection – shown in photograph 1
– to her home. She lived in a shack on the property of John Sebothema.
When she arrived at the intersection the light showed red for her and she
stopped. When the light turned green she looked to her right, saw that it
was safe because vehicles travelling from east to west had stopped at the
traffic lights and proceeded to walk across the road. She was in the
middle of the road when she looked to her right again and saw a
motorcycle coming towards her. She did not know how to avoid a
collision, go forward, go back or stand still. The motorcycle collided with
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her and she fell onto the road surface. She marked the place of impact
with a cross on photograph 1. It is in approximately the middle of the
right hand lane for east to west traffic. She estimated the distance from
where she lay to the robot in the middle of Tsamaya Street at
approximately one-and-a-half metres. She used the same route to walk
home every day and there was no reason for her to deviate from this
route.
[6] John Sebothema heard someone shout that there had been an accident
and hurried to the intersection. He found the plaintiff lying or sitting on
the tar surface between the markings for the pedestrian crossing in the
right hand lane for traffic from east to west. Although the photographs do
not show markings he was adamant that there were markings at the time.
Sebothema confirmed that for the plaintiff to reach her home she would
have to cross Tsamaya Drive and walk a short distance along the dirt road
on the northern side of the intersection. She would not be able to
approach her house by walking between the houses on the northern side
of Tsamaya Road. Although this is an informal settlement there are
fences along the southern boundary of the settlement running along
Tsamaya Drive. In addition the shack dwellers discourage people from
walking close to their homes. Sebothema did not deviate from his
evidence under cross-examination.
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[7] Mampana testified that he worked for Khutsong Pharmacy and delivered
medicines on a 125 cc motorcycle with a delivery box mounted on it.
Prior to the collision he had been travelling from east to west in the left
hand lane of Tsamaya Drive. It was not yet dark and visibility was good.
As he approached the T-junction with Shiloane Street the robot was green
for him. He travelled safely through the intersection and had travelled a
distance (he estimates about 20 metres) from the western side of the
intersection when he saw the plaintiff running from his left to his right
across Tsamaya Drive i.e. from south to north. He was travelling in the
left hand lane. He swerved to his right to avoid colliding with the plaintiff
but was unable to do so. The collision took place in the right hand lane of
Tsamaya Drive. The left pedal of his motorcycle struck the plaintiff. The
plaintiff fell to the tarmac and he also fell, a distance past her. He was
travelling at about 70 km/h at the time of the collision. Under
cross-examination Mampana could not explain why the plaintiff’s evidence
that she saw taxis standing stationary at the traffic lights on the eastern
side of the intersection was not disputed in cross-examination. He said
he told the defendant’s counsel that there were no vehicles there or
travelling in front of him. He had difficulty in saying where the plaintiff
was when he first saw her crossing the road. He said she was running
fast. He never had a chance to hoot or stop. All he could do was
swerve. He conceded that if he had proceeded straight she would have
crossed in front of him and there would not have been a collision. He
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also conceded that he did not pay close attention to the people walking on
the southern side of Tsamaya Drive. There were a lot of people walking
home as it was after work.
[8] The overwhelming probability is that the collision occurred as described by
the plaintiff. She used this route every day. To get to her house she had
to cross Tsamaya Drive and walk along the dirt road for a short distance.
The undisputed evidence is that she would approach the intersection
along Shiloane Street from the Putco depot. There was no reason for her
to walk along Tsamaya Street to the west before crossing the road. None
was suggested to her and objectively none was established. It was also
not possible for her to approach her home from a position west of the
intersection. It is highly improbable that the plaintiff, a 50 year old
woman, would attempt to run across the road in front of approaching
traffic. No reason was suggested for this to happen. Her evidence that
she crossed at the pedestrian crossing is confirmed by Sebothema as he
found her sitting between the lines of the pedestrian crossing. It was not
suggested to him that he was misrepresenting the facts to help her
fabricate a case. This was also not suggested during argument.
[9] During argument the defendant’s counsel conceded that on either version
Mampana was negligent. On his own version, a high degree of
negligence was disclosed (it was suggested that an apportionment of
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60:40 in favour of the plaintiff would be appropriate) and on the plaintiff’s
version the defendant had difficulty contending that the plaintiff had been
negligent at all (it was suggested that at best for the defendant an
apportionment of 80:20 in favour of the plaintiff would be appropriate).
[10] If the plaintiff’s version is accepted: i.e. that she was crossing Tsamaya
Drive at the intersection of Shiloane Street when the insured motorcycle
collided with her: then it follows that Mampana entered the intersection
against the red light and collided with the plaintiff. It is not suggested that
if the robot showed green for traffic in Shiloane Street it would also show
green for traffic in Tsamaya Drive. The trial was conducted on the basis
that red and green lights would show alternately in the two streets. After
entering the intersection against the red light the motorcycle had to travel
only about 6 metres before it collided with the plaintiff. Clearly Mampana
failed to keep a proper look-out and/or travelled at an excessive speed in
the circumstances and/or failed to avoid a collision when by the exercise
of reasonable care and skill he could and should have done so. The only
question is whether the plaintiff was negligent. She entered the
intersection after the light turned green in her favour and after looking to
her right and seeing taxis stationary at the entrance to the intersection on
the eastern side. Her undisputed evidence is that she was not able to
see the approaching motorcycle because of the stationary taxis. She
walked briskly across Tsamaya Drive until she looked to her right again
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and saw the motorcycle a few metres away. At that stage there was
nothing she could do to avoid the collision. Once the plaintiff saw the
lights change in her favour and that vehicles travelling from east to west in
Tsamaya Drive had stopped at the eastern entrance to the intersection
she was entitled to walk across Tsamaya Drive on the assumption that
other traffic would obey the traffic signs. She would not foresee that a
motorcycle would pass or thread its way between the stationary vehicles
and enter the intersection against the red light. In short she was entitled
to expect that other road users would drive properly and safely. It cannot
be found that the plaintiff was negligent.
[11] The following order is made –
(1) It is found and declared that the negligence of the driver of the
insured motorcycle, Kreiter Mmakekana Mampana, was the sole
cause of the collision between the plaintiff and the motorcycle on 4
July 2003 and accordingly that the defendant is liable to
compensate the plaintiff for all of the damages that she proves she
suffered as a result of the collision.
(2) The defendant is ordered to pay the costs of the hearing.
_____________________
B.R. SOUTHWOOD
JUDGE OF THE HIGH COURT
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CASE NO: 19826/05
HEARD ON: 2007-05-31 to 2007-06-01
FOR THE PLAINTIFF: ADV. I. LINGENFELDER
INSTRUCTED BY: Mr Mampuru of Molema Mampuru Inc
Attorneys
FOR THE DEFENDANT: ADV. M.C.C. DE KLERK
INSTRUCTED BY: G. S. Garden of Mothle Jooma Sabdia
Incorporated
DATE OF JUDGMENT: 2007-06-05
