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                (APPELLATE DIVISION)

In the matter between:



LTA BUILDING (SWA) LIMITED                      1st Respondent

GODFREY EDWARD THOMAS                           2nd Respondent


HEARD: 27 August 1987


                         J U D G M E N T


      CDM (PROPRIETARY) LIMITED, which was formerly known as

                                           CONSOLIDATED ......

CONSOLIDATED DIAMOND MINES, carries on mining operations near

Oranjemund in South West Africa - Namibia. The ope-

rations include excavation of diamondiferous gravel at the

mine-faces and its conveyance to crushing plants for


     At the end of 1980, LTA BUILDING (SWA) LTD ("LTA") was

engaged in contract work on the mine. In that connec-tion, a team

of its employees arrived at Oranjemund by air on 14 November

1980. They included Godfrey Thomas, the general foreman, Keith

Papier and Henry Williams. The party was accommodated at a mine

hostel at a place called Uubvlei. Their place of work was plant

50 G some distance to the South. CDM provided LTA with a Datsun

Ekonobus for the conveyance of the men between Uubvlei and their

place of

                                              work ...........
                                                        3 work.

Thomas had the responsibility of driving the vehicle.

     The mining area was traversed from North to South by two

roads: the haul road and the East Cliff road.

     The haul road was wide and level. Its surface was described

as being of sand calcrete. As its name indicates, it was used

primarily for the haulage of gravel to the crush-ing plants. .

For this purpose heavy vehicles were used, in-cluding 769 rear

dumpers. These were massive vehicles which were described as

"giant haul trucks". They were nearly 4 metres high, 3.6 metres

wide and 8 metres long. They had a capacity of 700 cubic metres

or 35 tons.

     Access roads from the mine-faces joined the haul road at

various points. There were stop signs at most if not all of the


                                                At ..........

     At some entrance to the haul road, including the entrance at

Uubvlei, there were signs reading "ONLY AUTHO-RISED VEHICLES

PERMITTED ON HAUL ROADS". The use of the road was, however, not

limited to earthmoving vehicles. Many other types of vehicle

(including buses, Ekonobuses, "bakkies" and motorcars) made

regular and daily use of this road.

     The speed limit laid down for the haul road was 90 km per

hour for light vehicles and 70 km per hour for heavy vehicles.

     The East Cliff road had a tarred surface. It lay outside

the area where active mining was being carried on, and was

intended to be used by all vehicles not authorised to use the

haul road.

     For the first few days Thomas used the East Cliff road

                                                when ...... ..
when driving between Uúbvlei and plant 50 G, but after

learning of the haul road he used that road except when

conditions were unsuitable.

     The 1st December 1980 was "a very beautiful morning". Thomas

and his party left Uubvlei in the Ekonobus at 06h40. They travelled

along the haul road at about 60 km per hour. At 06h50 a collision

occurred between the Ekonobus, which was travelling roughly from

North to South, and a heavily laden 769, which had entered the

haul road (which was a

through road) from an access road to the East (which was a stop road), and

was engaged in turning to the South. As a result of the collision,

two of the occupants of the Ekonobus were killed,

and Papier was seriously injured.

                                                      Arising    .....
                                                    6 Arising out of

the collision, Papier instituted an action for damages in the Cape


("PROTEA"), which was the insurer in terms of the Motor Vehicle

Insurance Act, No 56 of 1972, of the 769 and also of the Ekonobus.

Papier alleged. that his injuries had been caused by the negligence

of one A. Stephanus, the driver of the 769, or alternatively by

the negligence of Thomas.

     PROTEA filed a plea denying that either Stephanus or Thomas

had been negligent. On the same date, and acting under Rule 13 of

the Rules of Court, it served on LTA (as First Third Party) and

Thomas (as Second Third Party) a third party notice. In the annexure

to the notice PROTEA alleged

                                             that   ..........

that, in the event of it being found that it was liable to

compensate the plaintiff for any damages by reason of the

negligence of Stephanus, the collision was partly caused by

the negligence of Thomas, acting in the course of his employ-

ment with LTA, and the negligence of LTA itself; that

Stephanus and LTA (the First Third Party) and/or Thomas (the

Second Third Party) would therefore be "joint wrongdoers"

within the meaning of Act No 34 of 1956; and that PROTEA

would in the premises be entitled to claim a contribution

from them. PROTEA accordingly claimed:

                 "(a) An order declaring the degree in which the

                   First Third Party and/or the Second Third
                   Party were at fault in relation to the damage
                   suffered by Plaintiff. (b) An Order declaring
                   the amount which

                                            Defendant   ......

                       Defendant is entitled to claim as a

                       contribution from the First Third Party

                       and the Second Third Party, jointly and
                       severally, upon payment of the judgment
                       debt in full;

                   (c) Alternative relief;

                   (d) Costs of suit."

LTA and Thomas pleaded to the third party notice denying the

several allegations of negligence, and denying that they were

joint wrongdoers or obliged to make a contribution.

     The matter proceeded to trial, which was heard before

LATEGAN J in September 1984. After some days, a settlement was

reached between Papier and PROTEA on terms set out in a deed of

settlement. The deed recited that PROTEA admitted that Stephanus

and Thomas were each partly to blame for the collision. It

recorded that it was agreed that Papier's

                                             overall .........
                                                       9 overall

damages amounted to R225 000.00, and PROTEA acknow-ledged that it

was liable to Papier in an amount of Rl2 000.00, as insurer of the

Ekonobus and an amount of R213 000.00, as the insurer of the 769,

and for costs, and it agreed to pay these amounts to Papier.

        Agreement in regard to the guantum of damages was al-so

reached between PROTEA and the third parties.

     In consequence of these agreements, the sole question

re-maining for determination at the trial was that of the liabil-ity

(if any) of the third parties to contribute towards the amount of

R213 000.00 for which PROTEA was liable as insurer of the 769; and

the liability for the costs.

     PROTEA closed its case without leading any evidence.

                                                LTA ..........

     LTA and Thomas then made applications for absolution from

the instance. These were refused and the trial pro-ceeded.

     On 11 Pebruary 1985 LATEGAN J gave judgment, in which he found

that Thomas and LTA were not at fault in relation to the damages

suffered by Papier, and that consequently PROTEA was not entitled

to claim any contribution from the. third parties. PROTEA was

ordered to pay the costs.

     An application by PROTEA for leave to appeal was refused by

the trial judge, but leave was subsequently granted in terms of

s 21(3) of the Supreme Court Act, No 59 of 1959.

     In the annexure to the third party notice, PROTEA al-leged

that Thomas was negligent in the respects there set

                                                  out   ........

out, and that Thomas and LTA (as Thomas's employer) were liable

on the ground of such negligence. It also alleged

that LTA was itself negligent in that -

                  (1) It failed to inform its employees, more

                  particularly Thomas, of a pro-hibition by
                  CDM against travelling on haul roads; (ii)

                  It failed to take any or adequate

                       steps to ensure that its employees,

                       more particularly Thomas, did not
                       travel on haul roads.

Alleged negligence of Thomas

     Evidence in regard to the circumstances of the collision was

given by Laubscher and Williams, who were called as witnesses on

behalf of Papier, and by Thomas. Stephanus did not give evidence.

     Laubscher was a mine foreman employed by CDM. Early on the

morning of 1 December 1980 he was travelling on the

                                              haul ...........

haul road in a Land Rover between Uubvlei, where he had had

breakfast,and No 3 plant to the South. The sun was starting

to rise. His speed was about 60 km per hour, but it could

have been less. He was overtaken by an Ekonobus. He did

not notice anything untoward in its speed and could not

dispute that it was travelling at about 60 km per hour.

Shortly afterwards he saw the Ekonobus swerve to the right

and overturn. He did not see the collision. He had not

previously noticed a 769 which he then saw for the first time

standing on the haul road. He said that the sun did not

"affect" him or "worry" him, but he did say later in his

evidence -

                  "... the thing that I have realized now (that

                  is, as a result of cross-examination),. the

                  accident could have occurred because

                                             the ...........

                 the sun was to blame at some stage or other and
                 I would just like to say that if a person is

                 driving a vehicle and he is blinded by the sun,

                 he is unfamiliar with the area he is in, wouldn't
                 he then drive slower or be more observant?"

     Williams, a member of the LTA team, was seated in front

of the Ekonobus next to Thomas the driver. The sun was shin-

ing into the vehicle from the left. He held his forearm in

front of his face so that the sun would not shine directly in-

to his eyes. They overtook a vehicle driven by the mine fore-

man. Shortly afterwards he heard one of the men call out

from behind him, and he looked around. As he did so, he

heard Thomas cry out "O God Boeta, kyk hier". He looked to

the front and saw a truck in a turning movement on the haul

road. He had not seen it before. The Ekonobus swerved to

                                                 the ........
                                                         14 the

right. Everything happened very quickly and the col-lision took


     Thomas said that he left Uubvlei at 06h40 on 1 December 1980.

He used the haul road. He recalled overtaking Laubscher at a speed

of 60 km per hour. The sun, which was just above the horizon,

was slightly to his left. He had no problem with his view of the

road ahead of him, but he was blinded when he looked directly

into the sun. He saw a shadow coming onto the haul road from his

left hand side. Thinking that there had to be something to cause

this, he immediately swerved to the right. The next second he

saw "this big 769"just about starting to turn. He said to

Wil-liams, "O God, kyk hierso". There was an impact on the

                                                 side ..........
                                                      15 side

of the Ekonobus, which started rolling. Immediately after the

accident he looked at his watch: the time was 06h50. Apart from

the sun, there was nothing to prevent him seeing the 769. He was

not conscious, after passing Laubscher, that there was an access

road not far ahead.

     In addition to the "eyewitness" accounts, evidence was

given by Sippel, a registered professional engineer, who was in

practice as a consulting civil and structural engi-neer. He

visited the scene of the collision and, having made a survey

and fixed the latitude of the scene, he deter-mined the position

of the sun at the relevant time and date. The survey indicated

that the direction of the haul road was 39° South of East and

that of the access road was 42° South of

                                                  West .......

West. The two vehicles involved in the accident therefore

approached each other at an angle of approximately 99 0, i.e.

almost at right angles to each other. On 1 December 1980

at 06h50 the azimuth of the sun was 2890 30', South being

zero. In lay terms, the direction of the sun was 19,5°

South of East. He said:

                  "A driver travelling Southwards along the
                  Haul Road therefore had the sun in a

                  di-réction of 39° less 19,50 to his left. He
                  would therefore have had fairly good
                  visibility along the Haul Road but his vision
                  to the left would have been con-siderably

                  impaired and it would have been very

                  difficult for him to notice a vehicle
                  approaching the junction along the Access

                  Road from the East.
                    Furthermore the altitude of the sun was 9°

                  15', which means that the sun was only
                  slightly above the horizon. A vehicle of the

                  size of the dump truck would there-

                                                fore ........

                   fore have caused a shadow of approximately 28,7

                   meters long, measured from the left hand side

                   of the truck."

     In support of the argument that Thomas was negligent,

PROTEA relied on the following passage in the judgment of

the trial Court.

                   "Mr Van Schalkwyk, for Defendant, has argued
                   forcibly that even although Stephanus was

                   obviously negligent, the Second Third Party was
                   also negligent and that the real ques-tion to
                   be decided is if and to what ex-tent his

                   negligence contributed to the resultant

                   Mr Van Schalkwyk argues that if Thomas was to
                   be believed he was driving virually "blind"

                   vis-a-vis possible traffic moving from his left
                   into and across his line of travel. He knew

                   there were intersecting roads ahead to his
                   left, he knew mine traffic could enter from his
                   left into his line of travel at points

                   unbeknown to him and he knew some of this
                   traffic could .

                                                      be ......

                  be slow moving, hence he knew that he had to

                  take special care in being alive to the peculiar
                  dangers of this haul road. There-fore, he

                  argues further, Thomas was neg-ligent in that

                  under these circumstances he failed to keep a

                  proper lookout and/or failed to regulate his

                  driving in accordance with the prevailing


                  There is merit in this argument and I find

                  myself in agreement with this view that a driver

                  under these circumstances and at the speed

                  Thomas was driving was taking a chance

                  vis-a-vis traffic reasonably to be ex-pected

                  entering the road he was driving on from the

                  left. In driving thus, Thomas was therefore

                  driving negligently."

The learned judge went on to say, however, that it had not

been proved that Thomas's negligence contributed towards the


     With respect, I do not agree that it was proved that

                                             Thomas   .......

Thomas drove at a speed that was inappropriate in the

pre-vailing circumstances, or that he failed to keep a proper


     His speed was well within the speed limit, which had

presumably been fixed with due regard to the circumstances

generally to be expected on the road, and it was not shown that

there existed any special circumstances on the morning in


     I do not think that Thomas "took a chance" in not re-ducing

his speed in the circumstances. In the ordinary course it was

not reasonably to be expected that traffic would enter the haul

road without observing stop signs.

     In regard to look-out, Thomas was proceeding on a through road

and was, generally, entitled to rely on the protection

                                                of ............

of stop signs controlling entry from access roads. While it is

true that a driver in a through road does not have an absolute

right of precedence and is not relieved from the duty of keeping

a general look-out, he is not under a duty to keep the cross road

under the same careful observation which would be required if it

was not a stop street. It is an overstatement to say that, "if

Thomas is to be believed he was driving virtually blind vis-a-vis

possible traffic mov-ing from his left into and across his line

of travel." He would have been unsighted only when he looked

directly into the sun; and he could see what lay to the left and

to the right of that. And as he proceeded, his point of view, and

hence, what was observable, were constantly changing. In

                                              my .............
                                                       21 my

view, the fact that Thomas did not see the 769 truck was

probably due, not to a failure on his part to keep a proper

look-out, but to a fortuitous conjunction of circumstances at

the critical stage: namely, the course of the 769, the course

of the Ekonobus, and the effect of the sun on Thomas.

     Mr Van Schalkwyk, leading counsel for PROTEA, argued that

Thomas had greatly exaggerated the role played by the sun. He

referred to the fact that neither at the enquiry held under the

Mines Act, nor in his statement to the in-surance company, did

Thomas mention the sun. It was men-tioned for the first time

only at the trial of criminal charges against Stephanus on 12

October 1982, and even then

                                           Thomas   ..........

Thomas said only -

                     "The sun was to the East, but not so bad that
                     I could not see in that direction."

     While the force of this argument may be conceded, the fact

remains that the sun was in the position described by Sippel.

Williams said in his evidence that he was dis-turbed by the sun.

And it is indubitable that if Thomas's vision had not been

impaired by the sun, he must have seen the 769 at some stage,

because it is clear from the photo-graphs which were put in as

exhibits that it would have been impossible in ordinary

circumstances for any driver who had his eyes on the road to have

overlooked it.

     There is another reason why it should not have been held that

Thomas was negligent in failing to keep a proper look-

                                                  out   .........


       Unless he saw or ought to have seen that the driver of the

769 did not intend to stop at the stop sign, he could not be blamed

for proceeding on his course and maintaining a look-out only to

his front. Cf Cramer v SAR & H 1949(2) SA 125 (T) at 128.

       Thomas did not see the 769 until the moment before the

collision. The question then is, what,if anything, ought he to have

seen? To that question the evidence provides no answer. Stephanus

did not testify, and no witness observed the approach of the 769

to the haul road. Nothing is known of the speed of the 769 at any

stage, or of the manner in which it approached the intersection,

or whether it stopped or not.

                                         Consequently   .......

Consequently there is no basis on which it can be said that Thomas

was negligent.

     Mr Van Schalkwyk sought to rely on answers given by Thomas

to a number of hypothetical questions as to what he would have done

if he had seen the 769 as it approached, or if he had been travelling

at a lower speed. I do not think that those answers can be of any

assistance to PROTEA. Alleged negligence óf LTA

     The allegations in the annexure to the third party notice

on which PROTEA based its conclusion that LTA was itself

negligent, were these:

     "4. (a) Defendant alleges that at the time of the said
                    collision the Second Third
                    Party was driving the said motor vehicle

                                                    SC ..........

       SC 3474 within the scope and course of his

       employment as a servant of the First Third

(b)    The road on which the Second Third Party
       was driving is a so-called "haul road"' .

       and, as such, forms an integral part of

       a mining operation conducted by
       Consoli-dated Diamond Mines (CDM).

(c)    At all material times, the First Third
       Party was aware, or ought to have been

       aware, of the following facts:
      (i) That in terms of regulations issued by

      CDM, only authorised vehicles engaged in the
      actual mining operation are permitted to
      travel on haul roads; (ii) That an agreement
      between the First Third Party (as contractor)
      and CDM (as employer) contains the following

      'The Contractor is to ensure that his personnel

      familiarise themselves with the Employer's
      relevant rules and regulations - eg. no
      travelling on haul road, wearing of safety

      belts and hard hats, etc.' (iii) That motor
      vehicle SC 3474 was not an

                                    authorised   ...

                      authorised vehicle within the meaning

                 of the said regulations. (d) In the premises, the

             First Third Party was obliged to inform its
             employees, including the Second Third Party, of the
             aforementioned regulations, more particularly the

             regulation prohibiting travel on haul roads, and
             fore-saw or ought to have foreseen that should it fail

             to do so, its employees, including the Second Third

             Party, might travel in un-authorised vehicles on haul
             roads where vehicles not involved in the mining

             operation could create an unexpected hazard for
             vehicles which are engaged in the mining operation,

             and vice versa."

     In the face of questions by the Court, Mr Van Schalk-

wyk abandoned reliance on the failure by LTA to inform

its employees, including Thomas, of the regulations. He

submitted, however, that LTA was negligent on another ground,

namely that,having knowledge that the haul road was es-

                                           specially ........

specially hazardous, it failed to inform Thomas of the danger and

to prohibit him from using the haul road. I do not think that it

is open to PROTEA to rely on this ground of negligence. It was

neither pleaded, nor argued in the Court below, nor put forward

in PROTEA's heads of argument in the appeal. And it was not fully

canvassed in the trial Court. More specifically there was not a

full investigation of the alleged dangers of the haul road, or

of the knowledge by LTA as a corporate body of such dangers.

     Nor would it avail PROTEA if this ground could be

con-sidered. Mr Van Schalkwyk conceded, in answer to a question

by the Court, that he could not contend that the use of the haul

road was a cause of the collision. He was clearly right

                                                  in .........

in so doing.                   Compare the observation of

DENNING J in Minister of Pensions v Chennel (1947) 1KB 250

at 256:

                  "Persons may be more likely to be involved in

                  an accident in a London street than in a country

                  road, but the cause of an injury in any

                  particular case is not the visit to London but

                  the negligence of someone or other."

Here the cause of Papier's injury was not the use by Thomas

of the haul road, but the admitted negligence of Stephanus.

And if the use of the haul road was not a cause of the injury,

a failure to warn against the dangers of the road, or to

prohibit its use, has no bearing on the case.

     The appeal accordingly fails. It is dismissed with

                                              costs .........

costs, including the costs attendant on two counsel.

                                        HEFER, JA ) Concur
                                     NESTADT, JA )

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