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                             NOT REPORTABLE

                               FORM A
              FILING SHEET FOR EASTERN CAPE JUDGMENT

                                                       ECJ NO: 002/2005

BIGNALS TRANSPORT (PTY) LTD                            Appellant

vs
CATHOLIC DIOCESE OF PORT ELIZABETH                     Respondent


REFERENCE NUMBERS:
     •   Registrar: CA 322/2004

DATE HEARD:          21 February 2005

DATE DELIVERED: 3 March 2005

JUDGE(S): Pickering, Liebenberg and Sandi JJ

LEGAL REPRESENTATIVES:
Appearances:
   • for the State/Applicant(s)/Appellant(s): CJ Nel
   • for the accused/respondent(s): LA Schubart

Instructing attorneys:
    • Applicant(s)/Appellant(s): Wheeldon Rushmere & Cole
    • Respondent(s):             Dullabh & Co.


CASE INFORMATION:
  • Nature of proceedings:        Action for damages

     •   Topic: MVA claim
                                                                               2


IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION)

                                                 CASE NO: CA 322/2004
In the matter between

BIGNALS TRANSPORT (PTY) LTD                      Appellant

vs

CATHOLIC DIOCESE PORT ELIZABETH                  Respondent


                                  JUDGMENT

PICKERING J:

At approximately 3pm on 26 February 1999 and on the National road between
Paterson and Cookhouse, a collision occurred between an Isuzu truck bearing
registration letters and number DYZ 769 GP and a Volkswagen Polo motor
vehicle bearing registration letters and number BPP 270 EC. At all relevant
times hereto plaintiff was the owner, alternatively the bearer of all risk in
respect of the Isuzu truck DYZ 769 GP (hereinafter referred to as “the
plaintiff’s vehicle”) and the defendant was the owner alternatively the bearer of
all risk in respect of the Polo motor vehicle number BPP 270 EC (hereinafter
referred to as “the defendant’s vehicle”).


At the time the collision occurred plaintiff’s vehicle was being driven by one
Totolo William Tau and defendant’s vehicle by Father Rodney Abdo both of
whom were acting within the course and scope of their employment with
appellant and respondent respectively.       It is also common cause that in
consequence of the collision Father Abdo (hereinafter referred to as “the
deceased”) was killed. Both motor vehicles were damaged in consequence of
the collision.


Plaintiff instituted action in the Eastern Cape Division against defendant for
recovery of such damages as were suffered by it by reason of the damage
sustained by its motor vehicle and defendant in turn instituted a counterclaim
                                                                                    3


for recovery of its damages arising out of the damage sustained by its motor
vehicle.


At the commencement of the trial before Pillay J an order was made by
agreement separating the issues of liability and quantum and the trial
proceeded on the issue of liability only. At the conclusion of the trial Pillay J
made the following order:


       “(a)    In respect of the plaintiff’s claim, absolution from the instance;
       (b)     In respect of defendant’s counter claim, judgment is granted in
               favour of the defendant;
       (c)     The plaintiff is ordered to pay the costs of suit.”


In the light of the earlier order separating the issues of liability and quantum it
would appear that the order made by Pillay J at the conclusion of the trial was
in fact made per incuriam and that the learned Judge did not intend thereby to
award to defendant such damages as were claimed by it in its counterclaim.


Plaintiff thereafter noted an appeal against the whole of the judgment of Pillay
J. Somewhat surprisingly, the order made by Pillay J does not form the basis
of any specific ground of appeal nor was any point made thereof until such
time as we raised the matter with counsel during the course of the hearing of
this appeal.   Be that as it may, the requisite leave to appeal against his
decision was granted by Pillay J. At the hearing of the appeal it was agreed
that the appeal should proceed on the basis that the order made by Pillay J
was intended to be to the effect that plaintiff is liable to defendant for such
damages as defendant may prove it has suffered in consequence of any
damage sustained by defendant’s motor vehicle in the collision which
occurred on 26 February 1999, such collision having been occasioned solely
by the negligence of Totolo William Tau, the driver of plaintiff’s motor vehicle.


For the sake of convenience I shall continue to refer hereunder to appellant
and respondent as plaintiff and defendant respectively.
                                                                               4


It is common cause, as indeed appears also from certain photographs which
were handed into Court as exhibits A and B respectively, that the relevant
stretch of the road between Paterson and Cookhouse upon which the collision
occurred is straight with a blind curve at either end thereof.        For traffic
proceeding from the direction of Paterson towards Cookhouse the straight
stretch of road is preceded by a blind curve to the left as is indeed the case
for traffic proceeding in the opposite direction from Paterson towards
Cookhouse. From the top of each blind curve the straight stretch of road
slopes downwards for approximately 275 – 300 metres, before levelling out
for a short distance and then proceeding uphill again. It was agreed that the
straight stretch of road is approximately 550 – 600 metres in length. In the
vicinity of the level section of the road are what have been referred to as two
“inlets” leading off the national road on either side thereof. It was agreed at
the trial that the distance from the first such inlet “on the left hand side
travelling from Paterson towards Cookhouse is 300 – 325 metres from the
Cookhouse horizon.” There was no agreement as to the similar distance from
the second “inlet” to the Cookhouse horizon nor as to the distance between
the two inlets.


The trafficable surface of the road is divided into two lanes, one each for the
use of traffic proceeding in either direction. These two lanes are separated
from each other for the entire length of the road from blind curve to blind curve
by a double barrier line prohibiting overtaking from either direction. On either
side of each lane is an emergency lane demarcated by a yellow line as
depicted on the photographs. The width of the shoulder of the road thus
created from the yellow line to the edge of the roadway is approximately 0,5
metres. The width of the roadway, measured from the yellow line from one
side to the yellow line on the other side thereof is approximately 6 metres.
The width of the barrier lines in the centre of the road, measured from outside
edge to outside edge, is approximately 55 cm.


On behalf of plaintiff the evidence of three witnesses was led. The first such
witness, Totolo William Tau, was, as I have stated above, the driver of
plaintiff’s vehicle. He testified that he was the holder of a Code 14 licence,
                                                                              5


being a licence to drive a heavy-duty motor vehicle. He stated that on 26
February 1999 he was driving plaintiff’s vehicle from Port Elizabeth with the
intention of proceeding to Johannesburg. It is common cause that plaintiff’s
vehicle was a large truck. The truck is depicted on photographs 8 – 15 and
can certainly be described as a large truck, although there is no evidence as
to what its tonnage might be. It is common cause, however, that the truck is
an Isuzu FTR 800 with an overall length of 8,52m and overall width, taken at
the cab, of 2,4m. On the day in question the load on the truck consisted only
of empty pallets and a net which was rolled up at the back of the truck.


It was approximately 3pm when Tau approached the vicinity of the road on
which the collision occurred. He was driving from the direction of Paterson
towards Cookhouse. The road was dry and the sun was shining. Before
reaching the blind curve immediately preceding the straight stretch of road on
which the collision occurred he came upon a Pickfords truck travelling in the
same direction. It consisted of a horse and two trailers. Its length has been
established as being approximately 33 metres. He travelled behind this truck
towards the blind curve. He stated that when it reached the curve it reduced
its speed so drastically that he thought that it had a mechanical problem. At
that stage Tau was travelling at a speed of between 10 – 20 km/h. As the
Pickfords truck rounded the bend he remained behind it because it was
impossible to see past it. Once the Pickfords truck had completely rounded
the bend and had entered the straight stretch of road the driver of the truck
indicated with his hand to Tau that it was safe for him to overtake it, despite
the presence of the double barrier lines on the roadway.        Tau thereupon
checked to see whether or not there was any oncoming traffic and, when he
saw that there was none, he overtook the Pickfords truck.           When Tau
overtook it both that truck and his truck were travelling downhill towards the
foot of the decline. He managed to complete his overtaking of the Pickfords
truck before the end of the decline and he then moved his truck completely
back onto its correct side of the road in front of the Pickfords truck. He did
this whilst his truck was still travelling downhill. At this stage his truck was
travelling at a speed of between 60 to 70 km/h. Tau was already back on his
correct side of the road when defendant’s vehicle appeared around the blind
                                                                                6


curve ahead of him. It was travelling at a high speed from the direction of
Cookhouse towards Paterson. When Tau first saw it its front right wheel was
across the centre barrier line and was on Tau’s side of the road. He at first
stated that he was unable to say where his vehicle was on the road when he
first saw defendant’s vehicle coming round the bend. He then stated that at
that stage he was in fact between the two inlets, having passed the inlet on
his left hand side. What this distance was from defendant’s vehicle he could
not say. The driver of defendant’s vehicle, the deceased, attempted to cross
back onto his own correct side of the road but, according to Tau, “he made a
zigzag manner because he was travelling at a high speed. At that time I tried
to move to my left.” (My emphasis).


Under cross-examination Tau explained what he meant by “zigzagging”
saying that defendant’s vehicle “was swerving from side to side just like a
person jiving, just like a person who is dancing.” Defendant’s vehicle was
zigzagging during the time that deceased was trying to bring it back onto its
correct side of the road. Tau then stated that it was “not (zigzagging) very
much…maybe two or a little bit more”. He added that he could not say how
many times the vehicle had zigzagged because the zigzagging “took only a
short while.” He stated further that by zigzagging he meant that the vehicle
was “going from side to side but it did not go too far to the sides, just a short
side to side, that is a short distance.” It did not zigzag for long because, once
it had returned to its correct side of the road, deceased applied its brakes and
the vehicle began skidding. He stated that he was sure that it was skidding as
he could see smoke coming out from the wheels indicating that the vehicle’s
brakes had been applied. The vehicle then skidded across the road towards
his vehicle.   According to Tau he tried to move his vehicle away from
defendant’s vehicle and, in so doing, the left hand side of his vehicle scraped
the metal railing on the left side of the road. He was then forced to move back
away from the side of the road because there was a dangerous drop on the
other side of the railing. There was nothing that he could do other than to
take his foot off the accelerator of the truck. The defendant’s vehicle then
collided with the right front corner of plaintiff’s vehicle. At the time of impact
his truck was travelling in the middle of its correct lane. The impact was so
                                                                             7


hard that he was thrown out of the cab of the truck, through the windscreen,
and landed on his back on the road in front of it. It was still moving towards
him but he managed to roll away from it and it then stopped. When he stood
up he saw that it was lying on its side on the road with its wheels facing
towards the centre barrier line. He suffered no injuries.


He stated that he had telephoned his employer, Mr. Bignals, immediately after
the collision, using a borrowed cellphone. He told Mr. Bignals that a person
driving a Polo motor vehicle had lost control of it at high speed and had
collided with him.


Mr. Bignals flew down from Johannesburg and they visited the scene of the
accident together where Mr. Bignals took certain photographs. Asked under
cross-examination why Mr. Bignals had not taken any photograph of the
railing against which his truck had scraped in his efforts to avoid defendant’s
vehicle he stated that he thought he had not told him about the scraping.


Tau confirmed having made a statement to the police in which he had failed to
make mention of the defendant’s vehicle having zigzagged on the road. He
stated that he had not mentioned it because he did not think that that was
important and because the zigzagging had not taken a long time. What was
important to him was that the vehicle had skidded. A further portion of the
statement was put to him wherein he had stated:


       “I noticed that he (the deceased) started skidding into my side of the
       road. And I swerved my truck into the yellow line and then pulled her
       all the way left until I scraped the rail.”


It was put to him that whereas in his evidence he had stated that he had
swerved to the left on seeing defendant’s vehicle zigzagging he had,
according to the statement, only swerved to the left after the defendant’s
vehicle had started skidding. To this he replied:
                                                                              8


       “You must also remember that this all happened suddenly, it did not
       take minutes.”


Pressed on this issue he stated “you must also remember that all the
manoeuvres which were done by the Polo also happened very suddenly, I
cannot say how long this manoeuvre took or what other manoeuvre the time it
took the manoeuvre.” (sic).


Again pressed on this issue he stated:


       “You must remember that when it approached me, it was not entirely
       on its correct side of the road and you must also remember that before
       you take action, you think first. When I saw it moving on that side, I
       tried to avoid it and since I was travelling on a slow speed, I was not
       travelling as fast as that Polo whereas I do not know at what speed
       was it travelling.   It was travelling at a high speed and when it
       approached it was not on its correct side of the road and it also
       corrected itself and skidded and my car was travelling at a lower
       speed, so it took time for me to come back again to my correct lane.
       But now that is how it seems that there is a difference between what
       happened because it did those things and I also did those things but
       we did not travel at the same speed” (sic).


He then stated that he had in fact moved his vehicle to the left at the stage
that defendant’s vehicle was returning to its correct side of the road before it
had started skidding and added that “maybe the scraping of the rails and the
skidding of the vehicle happened simultaneously, that is why I wrote the
statement like this.”


A further portion of the statement was put to him in which he had said:


       “The vehicle kept coming. I was unable to pull the truck more left as
       the barrier prevented me doing so.”
                                                                                9


He agreed that according to the statement he had swerved his truck to the left
after defendant’s vehicle had started skidding and confirmed that he was
unable to move it more to the left at the time because of the dangerous drop
on that side of the road. Finally, he stated that at the time that defendant’s
vehicle was skidding towards him he was not moving towards the barrier but
was in his lane. Because everything happened so fast, he said, it was difficult
to explain.


The driver of the Pickfords truck, Isaac Mbatha, also testified on behalf of
plaintiff. He stated that on the day in question he was travelling from the
direction of Paterson towards Cookhouse on his way to Johannesburg. He
confirmed that he approached the blind curve leading into the straight section
of road where the collision occurred. As he did so he reduced speed to below
60 km/h. When he had just negotiated the curve and was in the straight
section of road he saw plaintiff’s truck in his rear view mirror. He was at that
time travelling at a speed of between 50 – 60 km/h.


When he first saw plaintiff’s vehicle in his mirror it was in the process of
overtaking his own truck. He then stated that he had seen plaintiff’s truck
before it started to overtake. He then reverted to his initial averment that he
had in fact seen it for the first time when it was already overtaking him. It was,
so he said, at that time alongside his vehicle between the two trailers which
were being towed by his horse. He denied that he had indicated to the driver
of plaintiff’s vehicle that it was safe to overtake. He then slowly applied the
brakes of his truck to allow plaintiff’s vehicle to overtake him as quickly as
possible because it was not permitted to overtake on that stretch of the road
and he was concerned as to what could happen should another vehicle
approach from the front.


He stated that having regard to the nature of the road and the blind curve
ahead at the top of the incline the circumstances were not conducive to safe
overtaking.
                                                                                10


He stated that plaintiff’s truck completed the overtaking manoeuvre and
returned completely back onto its correct side of the road at a point
approximately opposite the inlet on the right hand side of the road which inlet,
it is common cause, is situate at the spot where the road levels out before
commencing to go uphill.        After the truck had overtaken him and was
travelling ahead of him he was, as he put it, trying to give power to his own
truck when defendant’s vehicle suddenly appeared at a high speed around
the blind curve ahead of him. He stated that because all the vehicles were
moving he was quite unable to state where plaintiff’s vehicle was on the road
when defendant’s vehicle appeared other than to say that it was driving in
front of his own truck. He himself had not yet started going uphill at the stage
that he began to accelerate. He was also unable to state where defendant’s
vehicle was in relation to his own vehicle. He stated that although plaintiff’s
vehicle was in his vision the entire time he did not see it move to the left of the
road, hit the barriers, and return to its lane as had been stated by Tau.


He then heard the screeching of brakes and saw defendant’s vehicle moving
towards the right. He saw plaintiff’s truck in front of him “falling on the left”.
Defendant’s vehicle approached his own truck. It was already damaged. He
did not, however, see the actual collision between plaintiff’s and defendant’s
vehicles.   He stated that he was unable to see such collision occurring
because plaintiff’s truck was in front of him obscuring his view. Defendant’s
vehicle then spun around and ended up to the right of his truck. He stopped
his truck. He saw dirt consisting of pieces of glass, oil, and an alternator on
the road. He also saw brake marks. He was unable to specify where the
glass and oil was on the road beyond stating that it was spread around at
different places. He then pointed out where the “dirt” was on photograph A6
and circled it on the photograph but conceded that there was no glass or
alternator depicted on that spot. He stated that the debris was lying at the
point of impact although he also conceded that he did not see the actual point
of impact. He stated that the brake marks came from the right hand side of
the road to his side of the road.
                                                                                 11


It was put to him under cross-examination that defendant’s witness would say
that plaintiff’s truck was still in the process of overtaking the Pickford’s vehicle
when it was already proceeding up the incline leading up to the blind curve.
He replied as follows:


       “I can agree, but the road was clear and the white truck was faster than
       mine because it had no load.” (My emphasis)


When this reply was put to him later in his evidence he denied having said as
much and reiterated that plaintiff’s vehicle was in fact already in front of his
own vehicle on its correct side of the road by the time the vehicles began
going uphill.    It was then put to him that he had indeed agreed with the
suggestion that the overtaking        was still in progress whilst his truck was
proceeding up the hill. He stated that he now remembered having said that
and confirmed that his first reply to that effect correctly reflected what had in
fact occurred.


The following question was put to him under cross-examination:


       “Q       I want to put it to you that this truck was in the process of
                overtaking you whilst you were in the incline and that it was in
                the process of coming back to its lane and to its correct side of
                the road at the time the collision occurred.         Isn’t that what
                happened?
       A        I will agree with you because I did not see how the collision
                happened but the truck was in front of me.” (My emphasis.)


He stated that after the collision he went up to plaintiff’s vehicle. The driver
thereof had already exited the vehicle. He said that he had seen the driver
get out through the front windscreen of the vehicle after the accident. He then
said that when the collision took place the driver had in fact fallen out of the
windscreen. He immediately qualified this by saying that he had not seen this
but that the driver had in fact told him of it after the accident.
                                                                              12


Plaintiff’s attorney, Mr. McGregor, testified that he had visited the scene
during May 2000 prior to a criminal trial in which Tau had been charged with
culpable homicide. He had taken certain measurements of certain marks on
the road surface. Of particular relevance are certain tyre marks depicted on
photograph A21. It became common cause at the trial that those tyre marks
were skid marks caused by defendant’s vehicle. It is clear from photograph
A21 that the marks all commenced on the correct side of the road of
deceased’s vehicle as it was travelling in the direction of Paterson. As also
appears from the photograph the skid marks proceed at a slight angle towards
the centre barrier line with the right hand mark thereof eventually crossing
over the entire width of the barrier line at the point where the marks terminate.
At that point are certain gouge marks on the surface of the road as appears
from photograph A6.       The length of the skid marks, as measured by
McGregor, was 40 paces. It is further common cause that from the beginning
of the skid marks to the point at the top of the horizon where the straight
section of road would have been visible to deceased on exiting the blind curve
was a further 88 metres, such latter point thus being 128 metres from the
point of impact. McGregor further testified that the distance from the gouge
marks to the first inlet on the left hand side of the road looking towards the
Cookhouse horizon was 202 metres.


One Frederick von Caues testified on behalf of defendant. He stated that on
the day of the collision he was travelling in his motor vehicle from Somerset-
East towards Port Elizabeth. He had passed Cookhouse and was driving in
the direction of Paterson. When he was approximately 50 kilometres away
from the scene of the collision he was overtaken by defendant’s vehicle. At
that time he himself was driving at a speed of between 110 to 120 km/h. After
the defendant’s vehicle had overtaken him it maintained much the same
speed as that at which he was driving because it remained no more than 400
to 500 metres ahead of him for the next 50 kilometres until it reached the blind
curve leading into the straight section of road where the collision occurred.
When he rounded the curve he came across the collision which, so he said,
must have occurred very shortly before his arrival because diesel was just
starting to run out of the plaintiff’s vehicle’s tank. He stopped his vehicle at
                                                                                 13


the inlet some 20 metres further on and walked back to check on the collision.
As he reached defendant’s vehicle the deceased died.             Von Caues then
testified further as to certain statements made by a man, whom he took to be
the driver of plaintiff’s vehicle, over a cellphone. I do not intend detailing this
evidence in view of the problematic and contradictory nature thereof and the
fact that von Caues was unable to state positively that such man was in fact
the driver of plaintiff’s vehicle. In his judgment Pillay J, correctly in my view,
did not take that evidence concerning the cellphone conversation into
consideration and no more need be said about it.


Defendant also called as a witness one Thozamile Jafta, a sales consultant in
the employ of First National Bank. He stated that on 26 February 1999 he
was travelling from Port Elizabeth to Somerset-East. At approximately 15h25
he was on the road between Paterson and Cookhouse, travelling in the
direction of Cookhouse.       He negotiated the blind curve leading into the
straight section of road where the collision occurred.        As he entered that
section of road he saw ahead of him, travelling in the same direction, the
Pickfords truck followed by plaintiff’s vehicle. On coming upon the two trucks
he reduced the speed of his vehicle to between 70 and 80 km/h. As these
vehicles were proceeding down the hill plaintiff’s vehicle began to overtake
the Pickfords truck. By the time they reached the bottom of the hill they were
travelling slowly, parallel to each other, with the plaintiff’s vehicle on its
incorrect side of the road.     As they started up the incline they were still
travelling “next to each other.” He stated that whilst they were still travelling in
that manner the defendant’s vehicle appeared from the blind curve in front of
them, travelling towards them. At that stage the nose of plaintiff’s vehicle was
slightly ahead of the Pickfords truck but the vehicle was still on its incorrect
side of the road “trying to get to its correct side.” Asked how far up the incline
the two trucks had proceeded when the defendant’s vehicle appeared around
the blind curve he stated:


       “Maybe a distance from this corner of the room up to the white wall
       outside the courtroom, before you reach the wall of the outside of the
       courtroom.”
                                                                                14


This distance was paced off in court as being 22 metres.


He then slowed down and stopped his car. He stated that the place where he
stopped his own vehicle was “the length of the courtroom” from the foot of the
decline, a distance estimated as being approximately 20 metres. He was, in
other words, at that time at a distance of 42 metres from plaintiff’s vehicle. He
stopped his car, so he said, because he was afraid that he might become
involved in a collision. When he had seen plaintiff’s vehicle begin to overtake
the Pickfords truck he had in fact said to himself that the driver of plaintiff’s
vehicle did not know what he was doing. He stated that it took him “less than
half a soccer field” to come to a stop. He marked on photograph B2 the place
where he had stopped, this place, as marked, being some distance before the
inlet on the right hand side of the photograph which inlet, it is common cause,
is approximately 300 – 325 metres from the Cookhouse horizon.


Whilst the plaintiff’s vehicle was attempting to return to its correct side of the
road in front of the Pickford’s truck a collision occurred between plaintiff’s
vehicle and that of defendant. The right front of defendant’s vehicle collided
with the right front wheel of plaintiff’s vehicle. At that time the two left wheels
of plaintiff’s vehicle were already on its correct side of the road and the
plaintiff’s vehicle was at a slight angle across the road.        He stated that
defendant’s vehicle did not pull off the road or swerve in an attempt to avoid
the collision. He was not certain as to whether or not deceased had applied
its brakes. He stated further that although defendant’s vehicle were travelling
faster than the two trucks he could not estimate its speed because of the
difficulty of estimating the speed of oncoming traffic. He stated that he could
see what was happening because his vehicle had already stopped on the
decline.


A statement made by Jafta to the police on 3 March 1999 was put to him and,
in particular, paragraph 4 thereof namely:


       “Both the trucks was travelling slowly. The next moment the white
       truck started overtake the big truck in front of him. I than reduced my
                                                                               15


       speed to 60 kilo’s. When the white truck was busy go back to his lane
       a maroon Polo approached from the front.” (sic).


It was put to Jafta that his evidence in court differed markedly from the
statement inasmuch as he had made no mention in the statement of the fact
that he had stopped his own motor vehicle prior to the collision occurring. He
stated that at the time of making the statement he had not noticed that
omission and that when the policeman who took his statement read it back to
him it had sounded in order. He reiterated that he had slowly reduced speed
and had stopped. The following paragraphs from his statement were then put
to him:


       “5.    I can say the Polo did apply brake but still come on towards the
              truck. They than collided with the truck and spin around a stop
              against the barriers.


       6.     I immediatly stop to go and turn the aengine of and see if theres
              any injuries.   There than arrive a white Chicco golf vehicle.”
              (sic)


It was put to Jafta that according to this statement he had only stopped his
vehicle after the collision. His reply was:


       “Yes, that is how it is written here but I told the policeman that when the
       accident took place, I had stopped my car. I did not tell him that I
       stopped the car after the accident.”


Under further questioning he stated that although the statement had been
read back to him he had not noticed the discrepancies therein.


Pillay J described Tau as “a vague and unimpressive witness” who chose to
be very general in his evidence when specific answers were called for and
who at times feigned an inability to estimate distances despite his being able
to do so when it suited plaintiff’s case. The learned Judge stated that Mbatha
                                                                               16


did not fare much better and found that he was prepared to alter his evidence
when it suited plaintiff.       He found further that Tau and Mbatha had
contradicted themselves on material aspects and in this regard referred in
particular to the fact that Mbatha had denied that he had indicated to Tau that
it was safe to overtake as well as to the fact that Mbatha had not seen
plaintiff’s vehicle scraping the railing on the left hand side of the road.


He found Jafta to be a good and impressive witness who had testified in a
clear manner. He found further that Jafta was an independent witness and
that his evidence as to how the collision occurred was reliable and
acceptable. In the circumstances he found that plaintiff had not discharged
the onus upon it. He found further that the deceased had been placed in a
position of sudden emergency by the negligence of Tau and that deceased
had not in the circumstances himself driven negligently.          Accordingly, the
negligent driving of Tau was found to have been the sole cause of the
collision.


As appears from the summary of the evidence above the respective versions
tendered on behalf of the plaintiff and the defendant as to how the collision
occurred are irreconcilable and mutually destructive.        The approach to be
adopted in such circumstances appears from a number of cases such as
National Employers’ General Insurance Co Ltd v Jagers 1984 (4) SA 437 (E),
(referred to with approval in Baring Eiendomme Bpk v Roux [2001] 1 All SA
399 (SCA)) and Santam Bpk v Biddulph 2004 (5) SA 586 (SCA) where the
following is stated at 589 G:


       “It is equally true that findings of credibility cannot be judged in
       isolation, but require to be considered in the light of the proven facts
       and the probabilities of the matter under consideration.”


In Stellenbosch Farmers’ Winery Group Ltd and Another v Martell Et Cie and
Others 2003 (1) SA 11 (SCA) the Court dealt at some length with this issue,
setting out at 14 J – 15 D the correct approach to factual disputes of this
nature, namely:
                                                                                17


      “To come to a conclusion on the disputed issues a court must make
      findings on (a) the credibility of the various factual witnesses; (b) their
      reliability; and (c) the probabilities. As to (a), the court’s finding on the
      credibility of a particular witness will depend on its impression about
      the veracity of the witness. That in turn will depend on a variety of
      subsidiary factors, not necessarily in order of importance, such as (i)
      the witness’ candour and demeanour in the witness-box, (ii) his bias,
      latent and blatant, (iii) internal contradictions in his evidence, (iv)
      external contradictions with what was pleaded or put on his behalf, or
      with established fact or with his own extracurial statements or actions,
      (v) the probability or improbability of particular aspects of his version,
      (vi) the calibre and cogency of his performance compared to that of
      other witnesses testifying about the same incident or events. As to (b),
      a witness’ reliability will depend, apart from the factors mentioned
      under (a)(ii), (iv) and (v) above, on (i) the opportunities he had to
      experience or observe the event in question and (ii) the quality,
      integrity and independence of his recall thereof.           As to (c), this
      necessitates an analysis and evaluation of the probability or
      improbability of each party’s version on each of the disputed issues. In
      the light of its assessment of (a), (b), and (c) the court will then, as a
      final step, determine whether the party burdened with the onus of proof
      has succeeded in discharging it. The hard case, which will doubtless
      be the rare one, occurs when a court’s credibility findings compel it in
      one direction and its evaluation of the general probabilities in another.
      The more convincing the former, the less convincing will be the latter.
      But when all factors are equipoised probabilities prevail.”


Tau was not an impressive witness and his evidence was, in my view, far from
being clear and consistent. Indeed, his evidence became more contradictory
and confused as his cross-examination progressed. In certain respects his
evidence verged on being incomprehensible as appears from the lengthy
extract therefrom which I have set out above. I have also set out above the
various contradictions in his evidence and I do not intend to repeat them here.
                                                                             18


Not only was his evidence replete with contradictions but it was contradicted
in very material respects by the evidence of Mbatha.


It is clear from Mbatha’s evidence that he was travelling at a speed of
between 50 – 60 km/h on rounding the blind curve and not at the drastically
reduced speed of between 10 and 20 km/h alleged by Tau. He denied also
that he had indicated to Tau that it was safe to overtake. On the contrary he
stated that the nature of the road was such that it was not conducive to safe
overtaking at that place.


Tau’s evidence was premised to a not inconsiderable degree on the averment
that it was easy to overtake the Pickford’s truck because of the extremely slow
speed at which the latter truck was travelling. According to him he then did
proceed to overtake the Pickford’s truck and, in doing so, was travelling at a
speed of between 60 – 70 km/h. If in fact Mbatha was travelling, as he said
he was, at a speed of between 50 – 60 km/h at the time that he was
overtaken, then it is improbable that Tau, travelling only some 10 km/h faster,
would have completed the overtaking manoeuvre before the end of the
decline as testified to by him.


Mbatha was also an unimpressive witness.               Although ostensibly an
independent witness he was indirectly involved in the events leading up
thereto and a reading of his evidence leaves the distinct impression that, for
whatever reason, he wished to favour the plaintiff’s case. Although he initially
agreed in evidence in chief that Tau had indeed completed the overtaking
manoeuvre before the foot of the decline his evidence under cross-
examination was, as set out above, very different. He agreed under cross-
examination that plaintiff’s vehicle was still in the process of overtaking his
truck when it was already proceeding up the incline. His evidence around this
aspect was extremely poor and he contradicted himself before finally agreeing
that the overtaking was only completed when the two trucks were already
proceeding up the incline.
As I have said, Pillay J found Jafta to be a good and impressive witness.
However, Mr. Nel, who appeared for appellant, subjected Jafta’s evidence to
                                                                                19


stringent criticism. He submitted, firstly, that it was contradicted in material
respects by the statement made by Jafta to the police, more particularly in
that according to the statement he had merely slowed down on seeing the
defendant’s vehicle approaching around the curve and had only stopped his
own vehicle after the collision had already occurred.


That there was such a contradiction between the statement and Jafta’s viva
voce evidence cannot be gainsaid. The issue is, however, what weight is to
be attached thereto.      In this regard Mr. Schubart, who appeared for
respondent, submitted that it was notorious that statements taken by police
officials were often inaccurate and failed properly to convey what had been
said by the deponent thereof.


In S v Mafaladiso [2002] 4 All SA 74 (SCA) the following was stated at 83 c - i:


      “Die blote feit dat daar self-weersprekings voor hande is, moet deur ‘n
      hof met omsigtigheid benader word.            Eerstens moet nougeset
      vasgestel word wat die getuie werklik bedoel het om op elke
      geleentheid te sê, ten einde te bepaal of daar ‘n weerspreking voor
      hande is en wat die presiese omvang daarvan is. In hierdie verband
      moet die feite-beoordelaar in ag neem dat ‘n vorige verklaring nie by
      wyse van      kruisverhoor   afgeneem is      nie,   dat   daar   taal-   en
      kultuurverskille tussen die getuie en die opskrifsteller mag wees wat
      die korrektheid van wat presies bedoel is in die weg staan, en dat die
      verklaarder selde of ooit deur ‘n polisie beampte gevra word om in
      detail sy of haar verklaring te verduidelik. Die eerste sin in paragraaf 8
      van die klaagster se verklaring is ‘n duidelike geval waar ‘n meer
      nougesette benaderingswyse aan die kant van die afnemer van die
      verklaring die gewraakte sin sou opgeklaar en verhelder het of anders
      bewoord het (sien oor die gevare van vertaalde getuienis en mi, a
      fortiori, polisieverklarings, R v Gumede 1949 (3) SA 749 (A) op 757 in
      fine).
      Tweedens moet dit steeds voor oë gehou word dat nie elke fout deur ‘n
      getuie en nie elke weerspreking of afwyking die getuie se
                                                                            20


      geloofwaardigheid     aantas    nie…Nie-wesenlike    afwykings   is   nie
      noodwendig relevant nie…
      Derdens moet die weersprekende weergawes steeds oorweeg en
      geêvalueer word op ‘n holistiese basis. Die omstandighede waaronder
      die weergawes gemaak is, die bewese redes vir die weersprekings, die
      werklike effek van die weersprekings ten aansien van die getuie se
      betroubaarheid of geloofwaardigheid, en die vraag of die getuie
      voldoende geleentheid gehad het om die weersprekings te verduidelik
      – en die kwaliteit van die verduidelikings – en die samehang van die
      weersprekings met die res van die getuie se getuienis moet oa in ag
      geneem en opgeweeg word…
      Ten slotte word die eindtaak van die verhoorregter nl om die gewig van
      die vorige verklaring teen diè van die viva voce getuienis op te weeg,
      ook in hierdie soort gevalle tereg soos volg in S v Sauls and others
      1981 (3) SA 172 (A) op 180 F saamgevat:
             ‘The trial Judge will weigh his evidence, will consider its merits
             and demerits and, having done so, will decide whether it is
             trustworthy and whether, despite the fact that there are
             shortcomings or defects or contradictions in the testimony, he is
             satisfied that the truth has been told.’”


In the present matter Jafta stated that he had not noticed the relevant
discrepancies and that when the statement had been read back to him it had
sounded in order. It must be remembered that Jafta, whose home language
was Xhosa, was speaking in English to a police official whose home language
was Afrikaans.      Furthermore, it appears from the almost illiterate,
ungrammatical statement that the police official’s grasp of English was hardly
more than rudimentary. In this regard reference can also be made to the first
paragraph of the statement which reads as follows:


      “On Friday 1999-02-26 at approx 15:25 was were I on my way to
      Somerset East going home.” (sic)
                                                                             21


Jafta may well be criticised for not having noticed and corrected the errors in
his statement but it was not suggested to him that the police official had asked
him to clarify matters in any detail after having read the statement back to
him.


In his judgment Pillay J, with some considerable degree of understatement,
with respect, referred to the fact that the person who recorded the statement
in the English language “was himself or herself not very competent” to do so.
He found accordingly that the discrepancies in the statement did not in any
way derogate from Jafta’s credibility as a witness.      Having regard to the
principles set out in S v Mafaladiso supra as well as to the calibre of Jafta’s
evidence as a whole I have no doubt whatsoever that the conclusion of Pillay
J in this regard is correct and that Jafta’s evidence that the statement was not
a correct reflection of what he told the police official is trustworthy and must
be accepted.


Mr. Nel submitted further that Jafta’s evidence differed considerably from what
had been put to plaintiff’s witnesses under cross-examination by Mr.
Schubart. In my view, however, any discrepancies, such as they are, are
minor and not material and also do not derogate from Jafta’s credibility.


Mr. Nel then submitted that Jafta’s evidence as to how the collision occurred
could not be true in the light of Jafta’s own evidence as to the distances
between the vehicles involved at material stages of the events leading up to
the collision. He referred in this regard to Jafta’s evidence as to where he had
stopped his motor vehicle, namely, on the Paterson side of the inlet, which
inlet was at least 300 metres from the Cookhouse horizon. Before stopping,
Jafta had started slowing down at that stage when he was less than half a
soccer field (ie 50 metres) away from the inlet.       He must therefore, so
submitted Mr. Nel, have been approximately 350 metres from the Cookhouse
horizon when he saw defendant’s vehicle emerge from the blind curve. At
that stage, according to Jafta, plaintiff’s motor vehicle was 42 metres ahead of
his motor vehicle. This being the case, so Mr. Nel submitted, the distance
between defendant’s vehicle and plaintiff’s vehicle at the stage that deceased
                                                                               22


should first have seen plaintiff’s vehicle was at least 300 metres. This, it was
submitted, not only gave the lie to Jafta’s evidence but further and in any
event established that deceased, had he not been travelling at an excessive
speed, would have had ample time and distance within which to take
whatever steps were required to avoid a collision.


In my view, however, the fallacy in Mr. Nel’s submission lies in the exactitude
which he sought to endow upon Jafta’s estimate as to the distance of
plaintiff’s vehicle in front of his own vehicle at the relevant time. In assessing
the reliability of estimates as to distances given by witnesses in collision
cases it is necessary to bear in mind what was said by Ogilvie-Thompson AJ
(as he then was) in Van der Westhuizen and another v SA Liberal Insurance
Co Ltd 1949 (3) SA 160 (C) at 168 namely:


       “The strictly mathematical approach, though undoubtedly very useful
       as a check, can rarely be applied as an absolute test in collision cases,
       since any mathematical calculation so vitally depends on exact
       positions and speeds; where as in truth these latter are merely
       estimates almost invariably made under circumstances wholly
       unfavourable to accuracy.”


This dictum was approved in Diale v Commercial Union Assurance Co of SA
Ltd 1975 (4) SA 572 (AD) at 576 H – 577 A and, in this Division in National
Employers General Insurance Co Ltd v Jagers supra at 442 H – I. I would
refer also to Motor Vehicle Assurance Fund v Kenny 1984 (4) SA 432 (E)
where Eksteen J, with whom Kannemeyer and Mullins JJ concurred, stated as
follows at 436 I:


       “Strange things often happen in a collision and where two vehicles
       approaching each other from opposite directions collide, it is practically
       impossible for any one involved in the collision to give a minute and
       detailed description of the combined speed of the vehicles at the
       moment of impact, the angle of contact or of the subsequent lateral or
       forward movements of the vehicles.”
                                                                              23


In assessing the accuracy and reliability of Jafta’s estimated distance of 42
metres it is necessary to have regard to the manner in which the two
distances of 22 metres and 20 metres respectively, upon which the figure of
42 metres is based, were arrived at. In both instances, such estimates were
made by Jafta, whilst in the witness box, with reference to certain physical
features of the court building. Experience teaches one that the environs of
the court room are not necessarily conducive to the accurate estimation by
witnesses of distances observed by them in the course of a mobile scene
such as the present where, as was stated by all witnesses, everything
happened very fast. In all the circumstances I am satisfied that the distance
of 42 metres estimated by Jafta should be approached with a great deal of
circumspection and should not be regarded as cast in stone.


In all the circumstances I am not persuaded by anything Mr. Nel has urged
upon us that the finding by Pillay J that Jafta was a good and impressive
witness was incorrect.


In my view the probabilities are also overwhelmingly in favour of Jafta’s
version.


In this regard the evidence of Von Caues as to the speed at which
defendant’s vehicle had been travelling for a distance of 50 kilometres prior to
it rounding the blind curve is relevant. His evidence on this aspect was not
seriously contested and it can be accepted that defendant’s vehicle was
travelling at a speed of between 120 – 130 km/h. There was no suggestion in
evidence to the effect that the nature of the blind curve was such that it would
have been necessary for the deceased to have reduced speed in order safely
to negotiate the curve. In these circumstances it is improbable, in my view,
that deceased would have rounded the curve on the wrong side of the road.
At the time that defendant’s vehicle did round the curve plaintiff’s vehicle was,
according to Tau, at least 300 metres distant from it. This being the case, it is
quite improbable, in my view, that deceased, if he was on his incorrect side of
the road would have applied brakes to the extent that he did once he had
succeeded in moving defendant’s vehicle back onto its correct side thereof.
                                                                             24


On Tau’s version there was no reason for deceased to have then applied the
brakes of the defendant’s vehicle. If it is accepted, as indeed was common
cause at the hearing of the appeal, that the skid marks on the road as
depicted in the photographs were caused by the defendant’s vehicle then it is
clear that they commenced entirely on that vehicle’s correct side of the road.
It is not suggested that there was oil or any other substance on the road that
might have caused defendant’s vehicle to skid or that the skid might have
been occasioned by any cause other than the application by deceased of the
brakes of the vehicle.     Jafta’s evidence, on the other hand, provides a
probable explanation for the sudden application of his brakes by deceased. It
emerges therefrom that at the time defendant’s vehicle appeared around the
bend, plaintiff’s vehicle was travelling up the incline and was still in the
process of overtaking the Pickford’s truck. Jafta stated that he foresaw the
likelihood of a collision occurring between plaintiff’s and defendant’s vehicles
and that it was for this very reason that he stopped his own motor vehicle. In
my view the probabilities are overwhelming that he did stop his motor vehicle
because of the dangerous situation created by Tau. If in fact the plaintiff’s
vehicle had already completed the overtaking manoeuvre and was already on
its correct side of the road there would have been no reason whatsoever for
Jafta to have stopped his own vehicle. He would have had no reason to
suppose that defendant’s vehicle would suddenly skid onto its incorrect side
of the road. He was, furthermore, an entirely independent witness with no
reason to favour either party. In my view, having regard to the totality of the
evidence the most probable cause of the skidding is that deceased, on
rounding the blind curve, was confronted by the sight of the two large and
cumbersome trucks approaching towards him with plaintiff’s truck on its
incorrect side of the road in the process of overtaking the Pickford’s truck and
that he accordingly applied his brakes in an attempt to avoid a collision.


In the circumstances the appellant has not satisfied me that the learned Judge
a quo was wrong in accepting the evidence of Jafta in preference to that of
Tau and Mbatha and in finding Jafta’s evidence to be reliable.
                                                                             25


Mr. Nel submitted further, however, that the learned Judge had erred in
finding further that deceased was confronted with a situation of sudden
emergency and that he had acted reasonably in applying the brakes of
defendant’s vehicle as he did.


He submitted that Pillay J had erred in failing to have regard to the fact that
the skid marks caused by defendant’s vehicle only commenced approximately
88 metres after the vehicle had came around the bend.            This fact, he
submitted, was an indication that, despite the presence of the plaintiff’s
vehicle on its incorrect side of the road, deceased had only applied the brakes
of his vehicle at a very late stage and, in the circumstances, there had been a
culpable delay on deceased’s part.        Had deceased reacted when the
reasonable man would have reacted the collision would probably not have
occurred. In developing his argument Mr. Nel submitted, with reference in
particular to AA Onderlinge Assuransie Assosiasie Bpk v Sodoms 1980 (3)
SA 134 (AD), that a reasonable reaction time on the part of the deceased
would have been half a second. At a speed of 130 km/h defendant’s vehicle
would therefore have travelled approximately 18 metres in that half second
and deceased would have had sufficient time and distance to take such steps
as could then reasonably have been expected of him to avoid the collision.


It is correct that in certain cases the Courts have accepted half a second as
being a reasonable reaction time. On the other hand, a reaction time of as
much as one and a half seconds has been accepted by the Courts as being
reasonable. Reference may be had in this regard to, inter alia, cases such as
Pretorius v African Gate & Fenceworks 1939 AD 567 at 575; Hoffman v South
African Railways & Harbours 1955 (4) SA 467 (A); Coetzee v Shield
Insurance Company 1980 (4) SA 621 (C); President Insurance Company v
Tshabalala 1981 (1) SA 1016 (A); Rodrigues v SA Mutual General Insurance
Company 1981 (2) SA 274 (A); Viriri v Wellesley Estate 1982 (4) SA 308 (Z);
Santam Insurance Ltd v Aspeling unreported ECD case no CA325/97.


In South African Railways v Symington 1935 AD 37 the following was stated
at page 45:
                                                                        26


      “One man may react very quickly to what he sees and takes in, whilst
      another man may be slower.     We must consider what an ordinary,
      reasonable man would have done. Culpa is not to be imputed to a
      man merely because another person would have reacted more
      promptly and acted more quickly. Where men have to make up their
      minds how to act in a second or in a fraction of a second, one may
      think this course the better whilst another may prefer that.    It is
      undoubtedly the duty of every person to avoid an accident, but if he
      behaves reasonably, even if by justifiable error of judgment he does
      not choose the very best course to avoid the accident as events
      afterwards show, then he is not on that account to be held liable for
      culpa.”


In Sifhago v Santam Insurance Company Limited 1969 (1) PH J1 (A), Jansen
JA stated:


      “It is common knowledge that when a person is suddenly and
      unexpectedly called upon to make a decision, his reaction time is
      longer than when he is alerted and expecting the emergency. (Cf.
      Mazengarb’s Negligence on the Highway, 4th ed..p. 541)
      In considering what the reasonable driver would have done in the one
      second available to him, allowance must be made for the limitations
      imposed by the inevitable time lag between observation and reaction,
      as affected by the agony of the moment, the element of surprise, the
      likelihood of momentary indecision…”


In the present matter the deceased, on rounding the bend, would, as I have
said, have been confronted by the completely unexpected sight of two large
and cumbersome trucks alongside each other on the road ahead of him. He
would first have had to react to what he saw and it is not unreasonable to
suppose that, in doing so, he would have been affected by the element of
surprise and by consequent momentary indecision. A reaction time of one
and a half seconds would, in my view, not be unreasonable in the
circumstances. At a speed of 130 km/h he would in this time already have
                                                                               27


travelled approximately 54 metres. His decision then to apply the brakes of
his vehicle cannot, in my view, be faulted. In this regard Pillay J referred to
Thornton and another v Fismer 1928 AD 398 where the following was stated
at 412:


       “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 too Marais v Caledonian Insurance Co Ltd 1967 (4) SA 199 (E).


In Ntsala and others v Mutual and Federal Insurance Co Ltd 1996 (2) SA 184
(T) the following was stated at 192 G:


       “Where a driver of a vehicle suddenly finds himself in a situation of
       imminent danger, not of his own doing, and reacts thereto and possibly
       takes the wrong option, it cannot be said that he is negligent unless it
       can be shown that no reasonable man would so have acted. It must be
       remembered that with a sudden confrontation of danger a driver only
       has a split-second or a second to consider the pros and cons before he
       acts and surely cannot be blamed for exercising the option which
       resulted in a collision.”


In my view deceased was clearly placed in a position of sudden emergency
because of the dangerous manoeuvre executed by Tau. In the circumstances
deceased cannot be blamed for having acted as he did.


For the sake of completeness I should mention that Mr. Nel submitted that this
was a case of res ipsa loquitur. In my view that principle is of no application in
the circumstances of this case.


Although in appellant’s Notice of Appeal and Heads of Argument the
submission was made that Pillay J had descended into the arena and had
evinced bias against appellant, Mr. Nel did not, in the event, address any
                                                                             28


argument to the Court on this issue. In the circumstances no more need be
said thereanent save that Mr. Nel’s decision not to pursue the matter was a
correct and wise one as, in my view, it is abundantly clear from the record that
the learned Judge evinced no bias whatsoever in favour of either party.


In all the circumstances the appeal is dismissed with costs.           The order
granted by Pillay J is, however, substituted by the following order:


       “1.    Plaintiff is liable to defendant for such damages as defendant
              may prove it has suffered in consequence of any damage
              sustained by defendant’s motor vehicle in the collision which
              occurred on 26 February 1999, such collision having been
              occasioned solely by the negligence of Totolo William Tau, the
              driver of plaintiff’s motor vehicle.


       2.     Plaintiff is ordered to pay the costs of suit.”




_______________
J.D. PICKERING
JUDGE OF THE HIGH CURT


I agree,



_______________
H.J. LIEBENBERG
JUDGE OF THE HIGH COURT


I agree,



_______________
B. SANDI
JUDGE OF THE HIGH COURT

				
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