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IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION, PORT ELIZABETH)

CASE NO.: 733/2007

DATE: 29 JANUARY 2015

In the matter between:

MONWABISI NORMAN KUNENE.....................................Plaintiff

And

ROAD ACCIDENT FUND.................................................Defendant

JUDGMENT

BESHE, J:

[1] Plaintiff is suing defendant for compensation for damages suffered as a result of injuries sustained when the vehicle he was driving collided with a vehicle that was driven by one Frederick Johannes Kotze, the insured driver.

[2] At the commencement of the trial an order separating the issues in terms of Rule 33 (4) was sought. I duly made an order in this regard in the exercise of my discretion and ordered that the issue of liability or merits be proceeded with first, with the issue related to the determination of the quantum of damages postponed sine die.

[3] It appears to be common cause that during the evening of the 19 April 2002, plaintiff and his wife Edith Kunene were travelling from Plettenberg Bay to Port Elizabeth in plaintiff’s car when the collision occurred. Both Mr and Mrs Kunene testified in support of plaintiff’s case.

[4] According to Mrs Kunene, she sat in the back seat in the middle and held a child who was one year and eight months old whilst her three year old child sat next to her. The collision occurred as they were heading towards Humansdorp after having stopped in Storms River, on the N2 National Road. As to how the collision occurred, she testified that at some stage they got to drive behind a truck. As they got nearer to the truck, it moved to the left in order to let them go past it. As her husband was overtaking the truck, halfway through this manoeuvre and whilst still on their lane, the truck drove back to the road. In the process it pushed or forced her husband to the lane of the oncoming traffic. She could see that there was a car approaching from the opposite direction, a distance away. Her husband carried on overtaking the truck and drove on the path of oncoming traffic. Their vehicle collided with the motor vehicle that came from the opposite direction. It is common cause that that vehicle was driven by the insured driver.

[5] She could not recall the speed at which plaintiff drove, or whether he applied brakes prior to the collision, or where the point of impact was. She did not know what part of insured driver’s motor vehicle was damaged. Their vehicle was damaged in the front. According to her the road comprised of single lanes on both sides. She denied that on the part of the road where the collision occurred there was a solid line – said she recalls a broken line. But said she could not dispute that there was a solid white line if the insured driver says so. She could not say whether both wheels of the truck went beyond the yellow line – in other words she could not say whether the truck was completely off the road and inside the yellow line. She could not recall whether there was a vehicle behind theirs. But said that she will not be able to dispute that there was none if the insured driver says so. She denied that the insured driver swerved to the left to avoid colliding with their motor vehicle. She conceded that impact was in front on the right side in both motor vehicles, but added that the whole front of their vehicle was smashed. When it was put to her by Mr Abrahams for the defendant that plaintiff could have prevented the collision by slowing down and going back to his side of the road. She said she could not dispute that. Conceded that the insured vehicle ended off the road to the left after the collision.

[6] Plaintiff could not be of any assistance to the court as he testified that he could not recall what happened probably due to injuries sustained as a result of the collision.

[7] Kotze, the driver of the insured vehicle testified that during the evening in question, he was driving from Port Elizabeth to Mossel Bay. He testified that he used to work as an insurance broker and travelled extensively as a broker. That therefore he knows the road in question very well. As he was driving on the road between Plettenberg Bay and Humansdorp at 22:30, he observed the lights of what appeared to be a big truck approaching from the opposite direction. He described the road markings in that stretch of the road as being a solid white in the middle, with a broken white line on his side, which meant he could overtake but a motor vehicle coming from the opposite direction could not because of the solid white line. He observed that there was a motor vehicle that was in the process of overtaking the truck. To do so the oncoming vehicle drove on his lane. He reduced speed, thinking that the overtaking motor vehicle, which we know now was plaintiff’s motor vehicle, was not going back behind the truck, he swerved to the left but the motor vehicles collided with the impact on the left side (the driver’s side) of his motor vehicle, on his side of the road. As a result of the collision the motor vehicle went off the road and caught fire. Asked by Mr Frost for the plaintiff why he did not move further to the left and apply brakes when he saw that plaintiff’s motor vehicle was coming, he said he could not because everything happened quickly. He could not avoid the accident. He denied that he was negligent and asserted that his actions saved his life and that of people in plaintiff’s motor vehicle. He testified that he did not see the truck move to the left. He denied he was the sole cause of the collision. He also stated that at night it is difficult to judge distances.

[8] Mr Frost submitted that the evidence does not support the imputation of 100% liability on the insured driver. He argued that the evidence calls for the apportionment of liability to both drivers. That it would be fair and equitable to apportion a 50%:50% blame on each of the two drivers, the plaintiff and Kotze. He argued that the fact that there was a solid white line on plaintiff’s side is immaterial because he was forced to drive over the solid white line by the truck that came back to his path. He conceded, rightly so in my view that after the truck had moved back to the road, plaintiff was negligent by not applying brakes and moving back. He also argued that the insured driver was equally negligent by not moving to the left to the yellow line. This in my view loses sight of the insured driver’s evidence in this regard. He testified that he reduced his speed and moved to his left but could not move too far to the left because it would be unsafe to do so as it was at night and he could not see what was next to the road. And things happened very quickly.

[9] Mr Abrahams argued that the fact that the collision occurred on plaintiff’s side of the road, and he had driven over the solid white line shows that he was negligent. In this regard he referred to Coopers publication on the Principles of Liability where it is stated at page 100 that where a motor vehicle drove on the incorrect side of the road and collided with an approaching vehicle it has been held to be res ispa loquitur (the facts speak for themselves) because the only reasonable inference was that the driving of the said vehicle into the incorrect side of the road at an importune moment was due to failure to exercise proper care. He urged the court to accept insured driver’s version, because he is the only driver who testified. His evidence was clear and straightforward. He did everything he could do to avert the collision but cannot be expected to execute dangerous manoeuvres in the process. He argued that it seems rather convenient for the plaintiff not to recall the accident.

[10] It is indeed so that plaintiff’s evidence could have shed more light than that of his wife who was sitting at the back and at that stage, as evidence revealed only had a learner driver’s licence. The collision occurred at night. She could not state the speed at which plaintiff was driving. How far from the road the truck had moved. Whether it had moved far enough for it to be safe to overtake. How much space there was beyond the yellow line? What, if anything plaintiff observed. What steps he took to avoid the collision. Why plaintiff did not apply brakes and fall back behind the truck. I agree with Mr Frost that plaintiff was negligent when he argued for a 50%:50% apportionment.

[11] In what way is it therefore contended that the insured driver was negligent? Negligence in this regard is the failure to exercise the skill and care which would be observed by a reasonable driver. A failure to exercise reasonable care in the driving of a vehicle.

[12] On the evidence before me I am satisfied that the insured driver did all he could do as a reasonable driver to avert the collision in the circumstances. I am unable to find that on a balance of probabilities the insured driver has been shown to have been negligent.

[13] In the result plaintiff’s claim cannot succeed. Plaintiff’s action is dismissed with costs.

NG BESHE

JUDGE OF THE HIGH COURT

APPEARANCES

For the Plaintiff : Adv. A Frost

Instructed by : ROELOFSE MEYER INC.

29 Bird Street

Central

PORT ELIZABETH

Tel. 041 – 585 3270

Ref. LM/SF/K34

For the Defendant : Adv. R Abrahams

Instructed by : GOLDBERG & VICTOR INC.

2nd Floor, FNB Building

582 – 586 Govan Mbeki Avenue

North End

PORT ELIZABETH

Tel. 041 – 484 3346

Ref. Mrs Bloemendal

Date Heard : 19 August 2014

Date Reserved : 19 August 2014

Date Delivered : 29 January 2015

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