IN THE SUPREME COURT OF SOUTH AFRICA
In the matter between:
PROTEA ASSURANCE COMPANY LIMITED Appellant
LTA BUILDING (SWA) LIMITED 1st Respondent
GODFREY EDWARD THOMAS 2nd Respondent
CORAM: HEFER, NESTADT, JJA et NICHOLAS, AJA
HEARD: 27 August 1987
J U D G M E N T
CDM (PROPRIETARY) LIMITED, which was formerly known as
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
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 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
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.
6 Arising out of
the collision, Papier instituted an action for damages in the Cape
Provincial Division against PROTEA ASSURANCE COMPANY LIMITED
("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, 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 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
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 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, 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 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
"... the thing that I have realized now (that
is, as a result of cross-examination),. the
accident could have occurred because
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
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
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. 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 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 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
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 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 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
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 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
There is another reason why it should not have been held that
Thomas was negligent in failing to keep a proper look-
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 there is no basis on which it can be said that Thomas
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 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 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 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 so doing. Compare the observation of
DENNING J in Minister of Pensions v Chennel (1947) 1KB 250
"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, including the costs attendant on two counsel.
H C NICHOLAS, AJA
HEFER, JA ) Concur
NESTADT, JA )