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IN THE HIGH COURT OF SOUTH AFRICA

(HELD AT BHISHO)

CASE NO. 5295/2003

In the matter between:

NODIM CYNTHIA RADEBE PLAINTIFF

and

ROAD ACCIDENT FUND DEFENDANT

JUDGMENT

DHLODHLO ADJP:

1. In this case the plaintiff is NODIM CYNTHIA RADEBE, an adult female person. She sues herein in her personal capacity and also in her capacity as mother and guardian of her minor daughter THABISA RADEBE, born on 16 June 1989, hereinafter referred to as THABISA.

2. The defendant is the ROAD ACCIDENT FUND, a juristic person and FUND established in terms of s2(1) of the Road Accident Fund Act¹.

3. It is common cause that at about 15h50 on Sunday 13 October 2002, which was a sunny day which accorded motorists good visibility, two motor vehicles collided on the King Williamstown – Alice road. Motor vehicle with registration number and letters BTY 044 EC, a bantam bakkie driven by on L NDWANYA and one with registration number and letters CA 347152 driven by on SIZWE DENZIL MBAMBO, hereinafter referred to as MBAMBO, collided. Mbambo was driving a 1995 Toyota combi. It was agreed that it is 1.8 metres wide. Mbambo’s passengers included the plaintiff and Thabisa. They had been to a house warming party at Scenery Park in East London.

4. The driver of the bantam bakkie, L Ndwanya sat with a passenger in the cab of the bakkie. Ndwanya died on the scene of the collision near the Mdingi turn-off.

5. As a result of the collision the plaintiff and Thabisa sustained physical injuries as a result of which they are now claiming damages from the defendant. In her personal capacity, the plaintiff claims a total of R1 414 500.00 and R6 213,23 as and for damages. In her capacity as the mother and guardian of Thabisa she claims R120 000.00.

6. In terms of paragraph 1 of the minutes of a pre-trial conference on 27 January 2005 it was agreed by the parties that the question of the merits and quantum would be separated and that the merits would be heard first. At the commencement of the trial the Court ordered that the merits and quantum be separated and that the merits be heard first. Details of injuries sustained by the plaintiff and Thabisa and damages they suffered will therefore not be dealt with at this stage.

7. It was agreed by the parties that a stretch of 500 to 1000 metres of the road where the collision occurred is straight. There is a centre line on the road. On each side of the centre line there is a lane measuring 3.6 metres and a yellow line marks the end of the lane on each side. From the yellow line to the end of the road on each side there is a reserve lane which is two metres wide.

8. Mbambo was driving in the westerly direction from King Williamstown towards Alice and Ndwanya was driving from the Alice direction towards King Williamstown.

9. The plaintiff alleges that the collision was caused solely by the negligence of Ndwanya in that he was negligent in one or more of the following respects:

“4.1.1 He drove at a speed excessive in the circumstances.

4.1.2 He failed to keep a proper lookout.

4.1.3 He failed to apply his brakes either timeously or at all.

4.1.4 He failed to have or to keep his vehicle under proper control.

4.1.5 He drove his vehicle while his faculties were impaired by the consumption of alcohol.

4.1.6 He failed to give vehicle number CA 347152 sufficient lateral berth.

4.1.7 He failed to give any or sufficient warning of his approach.

4.1.8 He encroached onto his incorrect part of the roadway and into the path of travel of vehicle number CA 347152:

4.1.8.1 suddenly and unexpectedly; and / or

4.1.8.2 without satisfying himself that it was safe to do so; and / or

4.1.8.3 at a time and in a manner which was hazardous;

4.1.9 He failed to avoid the said collision when by the exercise of reasonable care and skill he could and should have done so.

Alternatively to paragraph 4.1 above:

4.2 The said collision was occasioned solely by the negligence of the said MBAMBO, he having been negligent in one or more of the following respects:

4.2.1 He drove at a speed excessive in the circumstances.

4.2.2 He failed to keep a proper lookout.

4.2.3 He failed to apply his brakes either timeously or at all.

4.2.4 He failed to have or to keep his vehicle under proper control.

4.2.5 He failed to give vehicle number BTY 044 EC sufficient lateral berth.

4.2.6 He failed to give any or sufficient warning of his approach.

4.2.7 He encroached onto his incorrect part of the roadway and into the path of travel of vehicle number BTY 044 EC:

4.2.7.1 suddenly and unexpectedly; and / or

4.2.7.2 without satisfying himself that it was safe to do so; and / or

4.2.7.2 at a time and in a manner which was hazardous;

4.2.8 He failed to avoid the said collision when by the exercise of reasonable care and skill he could and should have done so.

Alternatively to paragraphs 4.1 and 4.2 above:

4.3 The said collision was occasioned by the joint and simultaneous negligence of the said L NDWANYA, the said MBAMBO, they having been negligent in one or more of the respects set out above, respectively.”

10. The defendant denies that its insured driver was negligent as alleged or at all and puts the plaintiff to the proof thereof. In the alternative the defendant pleads that, in the event of the Court finding that the said NDWANYA was negligent, which is denied, his negligence was not the proximate cause of the collision.

11. The defendant pleads further that the sole cause of the collision was the negligence of MBAMBO (the driver of the Toyota combi and the owner of the said motor vehicle on the following grounds:

“7.2.1 Mbambo drove at a speed excessive in the circumstances;

7.2.2 Mbambo failed to keep a proper lookout;

7.2.3 Mbambo failed to apply his brakes either timeously or at all;

7.2.4 Mbambo failed to have or keep his vehicle under proper control;

7.2.5 Mbambo failed to give vehicle with registration letters and numbers BTY 044 EC sufficient lateral berth;

7.2.6 Mbambo failed to give any or sufficient warning of his approach;

7.2.7 Mbambo suddenly and unexpectedly moved the vehicle driven by him onto his incorrect side of the road into the path of travel of the vehicle with registration letters and numbers BTY 044 EC, without satisfying himself that it was safe to do so, and at a time and in a manner which was dangerous;

7.2.8 Mbambo failed to avoid the said collision when, by the exercise of reasonable care and skill he could and should have done so.

7.2.9 Mbambo failed to keep his vehicle under proper control after the motor vehicle driven by him had a tyre unexpectedly and spontaneously deflate;

7.2.10 Mbambo failed to keep the motor vehicle driven by him in a proper roadworthy condition;

7.2.11 The owner of the vehicle driven by Mbambo failed to take adequate steps to ensure that whilst the said vehicle was in use by Mbambo, it was in a roadworthy condition.”

12. According to Mbambo, the driver of the Toyota combi, the combi had been hired from Image by Buffalo city and was being used by him in his capacity as the city’s Sports Superintendent. Image would service the vehicle. Mbambo said that he had checked tyre pressure before the collision on the day in question and that he was satisfied that “the tyres were full”.

13. Mbambo said that he was driving at 90 kilometres per hour in a 100 kilometre Zone. Before they reached a turn-off to the right, the right rear wheel of his motor vehicle (the Toyota combi) burst. His vehicle pulled towards the middle line. He said that he managed to swerve it to his left towards the yellow line. He said that he managed to reduce the speed of the vehicle and that he was able to control it.

14. He went on and said that he saw the bantam bakkie which was being driven by the insured driver, L Ndwanya, approach from the opposite direction driven from the Alice side towards King Williamstown. When he first saw the bantam bakkie it was between 30 to 50 metres away. He observed that the bakkie was running at high speed towards his (Mbambo’s) side of the road and crossed the white line in the middle of the road.

15. Mbambo said that the two vehicles collided head-on and that the impact was on the right front side of his vehicle. He said that he did not know which side of the bakkie was damaged. When the collision occurred he was driving at between 10 and 20 kilometres per hour and the left wheels of his vehicle were near the yellow line. He said that he was unable to estimate the distance between the left wheels and the yellow line.

16. As a result of the collision Mbambo’s combi swung and faced the direction from which it had come, namely the King Williamstown side but remained within its lane. The bakkie came to rest on grass outside Mbambo’s lane and the reserve lane.

17. Mbambo said that he told a police officer who arrived after the collision how the collision had occurred. He said that it was precisely what he had told the Court. Mbambo denied that he told the police officer that after the tyre burst he lost control of his vehicle and bumped against a bakkie. He said that he did not make a written statement at the scene but made one at Dimbaza police station. He said that at the scene he pointed out the point of impact. He identified the statement he said he made to the police. The statement is marked “Exhibit B”. Nowhere in this statement does Mbambo say that he lost control of his vehicle after the tyre burst. Police Sergeant Mxolisi Mbukushe was the first police officer to arrive at the scene of the accident. In his report which he compiled marked “Exhibit D” he stated that Mbambo lost control of his vehicle after the tyre burst and that his vehicle bumped against the bakkie. Mbambo denied that he made this statement.

18. Mbambo said that when Sergeant Jacobs drew the plan marked “Exhibit C”, he (Mbambo) was not present. According to this sketch plan the point of impact was on the dotted centre line which separates the two lanes. According to the plan Mbambo pointed out the point of impact. Mbambo denied this fact.

19. According to photo album marked “Exhibit A” the stretch of the road where the collision occurred is straight and there is tall grass on each side of the road.

20. Mbambo said that he had attended the house warming party in East London and that he had not consumed liquor. He said that he did to lose control of his vehicle after the tyre burst. According to him the brakes of his vehicle were good. He believes that the driver of the bantam bakkie was travelling at about 120 kilometres per hour.

21. Siphokazi Loveness Pemba is the plaintiff’s daughter. She was a passenger and sat near Mbambo in the Toyota combi in question on the day of the collision. She said that the accident occurred between 15h00 and 16h00.

22. Pemba said that the weather was good on that day. It was not raining and visibility was good.

23. When they were near Mdingi turn off their vehicle had a tyre burst after which it swerved towards the left but did not go beyond the yellow line. Pemba said that Mbambo tried to control the vehicle. A bakkie appeared from the opposite direction, namely the direction of Alice. She said that the bakkie was being driven at high speed. It left its lane and moved towards their lane. According to Pemba the bakkie crossed the white line in the middle of the road and hit their vehicle. As a result of the collision their vehicle (the Toyota combi) swung and faced the direction from which it was being driven but remained within its lane.

24. Pemba said that she sustained an injury to her neck. She said that the collision occurred near the white line and that the combi did not cross the white line in the middle of the road.

25. Under cross-examination, Pemba said that their vehicle was not being driven at high speed and that Mbambo did not struggle to control it. She was unable to explain why she believed that the bakkie was being driven at high speed. She later said: “I could see that it was coming at high speed. I have nothing more to say about this.” Responding to the statement: “Your vehicle was towards the middle of the road”, she answered in the affirmative. Responding to another statement: “The other vehicle was also travelling towards the middle of the road”, Pemba said that the other vehicle came and hit them. She said that the driver of the other vehicle was “Zig-zagging”.

26. In her affidavit she made on 12 November 2004 Pemba said, among others:

“The approaching vehicle appeared to be travelling very fast and at a much faster speed than our car. The driver of that car appeared to have a problem as his car was zig-zagging”. In this affidavit she said that at no stage was their vehicle on the incorrect side of the road before the collision.

27. She agreed that the point of impact was in the middle of the road. Asked how close it was to the middle of the road, Pemba responded:

“in the middle”

She agreed that Mbambo could not keep his vehicle away from the middle of the road. She said that she would say that Mbambo’s vehicle was “zig-zagging” because it pulled to the left and later to the right.

28. By agreement it was placed on record that the plaintiff did not witness the collision because she was asleep and that she sustained some physical injuries.

29. For the defendant two police officers who were referred to earlier in this judgment, testified.

29.1.1 Sergeant Mxolisi Mbukushe who was stationed at Dimbaza police station received a message while he was on duty on the day of the accident. He proceeded to the scene of the accident.

29.1.2 He observed that the bantam bakkie was extensively damaged and was completely outside the road and faced towards Alice. The combi was on its lane towards the yellow line. He saw that the right rear tyre of the combi had burst. He said that he spoke to the driver of the combi to find out what caused the accident.

29.1.3 Mbukushe said that the driver of the combi told him that after the tyre burst he lost control of his vehicle and that it collided with the bakkie. He said that, had the driver of the combi told him anything more than what he told him, he would have recorded it. Mbukushe said that he compiled a report (Exhibit F) “. . . late when I was from the scene”. He did not indicate the point of impact on his sketch plan.

29.1.4 Under cross-examination, Mbukushe said that the incident took place in October 2002 and that it was very difficult for one to have an independent memory.

29.2.1 Sergeant Gerald Lenin Jacobs of the King Williamstown police visited the scene after receiving a radio message.

29.2.2 At the scene he observed the positions of the two motor vehicles. No one told him that the vehicles had been moved after the collision.

29.2.3 Jacobs said that Mbambo pointed out to him the point of impact. Jacobs emphasized that Mbambo did not pinpoint the point of impact but pointed the area of impact near the dotted white line. Jacobs said that Mbambo said that the collision occurred within his lane.

29.2.4 He said that, if he were to draw the sketch plan again he would show the point of impact inside Mbambo’s lane. He said that, had he seen anything at the scene which suggested that the point of impact was elsewhere, he would have recorded it. Contrary to what Sergeant Mbukushe told the Court that there were brakes marks on the lane used by vehicles proceeding from the direction of Alice to King Williamstown, Jacobs said that he did not see skids marks.

30. Mbambo, the driver of the combi denied that the collision occurred on the centre line. His passenger Pemba said more than once that the collision occurred on the centre line. She at times denied that it occurred on the centre line. She was adamant that at no stage after the tyre burst did their vehicle cross the centre line. In this way she corroborated Mbambo.

31. Sergeant Mbukushe who was the first police officer to arrive at the scene stated in his report which he compiled later at the police station that Mbambo said at the scene that, as a result of the tyre burst, he lost control of the vehicle and hit the bakkie. Mbambo denied that he made this statement. He re-iterated that he did not lose control of the vehicle. This fact was confirmed by Pemba. Moreover Mbambo did not say this to Sergeant Jacobs. The Court doubts that Mbambo told Sergeant Mbukushe that the collision resulted from Mbambo’s loss of control of his vehicle.

32. Sergeant Jacobs appeared to be a satisfactory witness. The Court does not doubt that Mbambo pointed out to the area of the point of impact. It appears that this was on the centre line or in the vicinity thereof.

33. It is the duty of every motorist to keep a proper look out when he / she drives a motor vehicle. In Van Staden v Avenant en ‘n Ander² it was held that where two vehicles pass each other the danger areas of the two vehicles must not encroach upon each other to such an extent that a collision occurs and that if the two danger areas do encroach upon each other to such an extent that damage results, there is negligence on the part of one or both of the drivers. It was held further that in the case of the drivers of motor vehicles the middle of the road is the extreme boundary to which the concerned vehicles’ danger areas extend to the inside. If the danger area of one of the vehicles extends over the middle of the road the driver of the other vehicle still has a duty to do anything possible to avoid a collision. See also Cantamessa v Reinforcing Steel company Limited³

In the words of Watermeyer JP:⁴ “I am in agreement with his submission that if either of the vehicles was across the centre line at the time of the collision the inference would be that the driver of that vehicle was negligent. I am also in agreement with his submission that, if one of the drivers was on his correct side and saw that the other was travelling on his incorrect side, or was about to cross over to his incorrect side, it would negligence on his part if he failed to take all reasonable steps to avoid a collision . . .”⁵

34. In the present case it appears on a preponderance of probabilities that the collision occurred on the centre line or in the vicinity thereof.

35.1 The Court concludes that both drivers namely Sizwe D Mbambo and L Ndwanya were spontaneously and equally (50 – 50%) negligent and that the negligence of each of them contributed to the collision which caused the physical injuries sustained by the plaintiff NODIM CYNTHIA RADEBE and her minor child THABISA RADEBE.

35.2 The plaintiff is entitled to her costs against the defendant.

35.3 The plaintiff’s costs are to include costs of photographs and qualifying costs of preparing plans.

35.4 Costs of 05 June 2006 when the matter was postponed are to be costs in the cause.

____________________________

A E B DHLODHLO

JUDGE OF THE HIGH COURT

ACTING DEPUTY JUDGE PRESIDENT

28 FEBRUARY 2007

Judgment handed down on 01 March 2007

Heard and 28 and 29 November 2006

For the Plaintiff : Adv. A G Dugmore

For the Defendant : Mr R R H Smith

Plaintiff’s Attorneys : Hutton & Cook

King Williamstown

Defendant’s Attorneys : Hart & Beyers

East London

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