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IN THE HIGH COURT OF SOUTH AFRICA /ES

(TRANSVAAL PROVINCIAL DIVISION)

CASE NO: A2115/04

DATE: 7/3/2007

NOT REPORTABLE

IN THE MATTER BETWEEN

ROAD ACCIDENT FUND APPELLANT

AND

MAKI MIRRIAM MOETI RESPONDENT

JUDGMENT

MYNHARDT, J

INTRODUCTION

[1] This is an appeal "against the whole of the judgment and the order" of DE VOS, J of 27 May 2004 in terms of which it was found that "The collision was caused by the negligence of the driver of the insured vehicle" and the appellant was, in addition, ordered to pay the costs of the trial.

The trial judge later refused leave to appeal. The Supreme Court of Appeal, however, granted leave to the appellant to appeal to the Full Court of the Transvaal Provincial Division. That court also granted an order in terms of which the costs of the application for leave to appeal in that court and in the court a quo would be costs in the appeal.

CONDONATION

[2] The appellant's attorneys did not file the required number of copies of the record when application was made for the allocation of a date for the hearing of the appeal. The reason for not filing the copies of the record was that the transcribers of the record could not provide the necessary copies timeously because they experienced difficulties in locating the court file. The record was, after some delay, prepared and filed.

In my view an acceptable explanation for the non compliance of the rules was provided. The application for condonation is, in any event, not opposed. The non compliance of the rules is therefore condoned.

THE PROCEEDINGS IN THE COURT A QUO

[3] The present respondent instituted an action against the present appellant in the court a quo for payment of the amount of R866 841,60, interest thereon and costs of suit. The aforesaid amount was claimed by the respondent as and for damages suffered by her in her personal capacity as well as in her capacity as the mother and guardian of her three minor children, as a result of the death of her husband, and the father of her children, ("the deceased") on 24 January 1993.

[4] It was alleged in the respondent's particulars of claim that the deceased had died as a result of injuries sustained by him in a collision with a motor vehicle ("the insured vehicle") on the day in question on the 0ld Golden Highway in Evaton. The collision was allegedly caused by the sole negligence of the driver of the insured vehicle who was negligent in one or more of the respects set out in paragraph 9 of the particulars of claim.

[5] In its plea the appellant denied all the material allegations set out in the particulars of claim. In regard to the question of negligence of the driver of the insured vehicle ("the insured driver"), the appellant pleaded that the collision was caused by the sole negligence of the deceased who was allegedly negligent in one or more of the respects set out in paragraph 7 of the plea.

It was common cause on the pleadings that the deceased was a pedestrian at the time of the accident.

[6] Approximately twenty months after the appellant's plea was delivered it delivered a conditional counter claim. This claim was conditional on the court finding, inter alia, that the appellant was liable for the damages suffered by the respondent. The basis of the claim was that the deceased was a joint wrongdoer in terms of the provisions of Act 34 of 1956. The court was asked to order the respondent to pay to the appellant such amount as the court might find the appellant to be entitled to.

The respondent's reaction to the counter-claim was that apart from denying all the material allegations contained therein, it was pleaded that the claim had become prescribed.

It is not necessary for purposes hereof to say anything further about the counter-claim.

[7] At the commencement of the proceedings in the court a quo the parties requested the court to make a ruling to the effect that the issues be separated and that the court would only adjudicate upon one issue, namely, "whether the driver of the insured vehicle namely Mr Muzani was in any way negligent". The trial judge acceded to the request and such a ruling was made.

[8] The respondent, the plaintiff in the court a quo, called only one witness to testify on her behalf. He was Mr Isaac Rasemetse. The parties also placed a bundle of documents before the court but these documents were subject to the proof of the contents thereof.

[9] Mr Rasemetse testified, briefly summarised, that he drove from east to west along Eastern Road, Evaton, at approximately 18:00 on 24 January 1993. The visibility was good and the sun had not yet set. At the intersection of Eastern Road and the Golden Highway, which ran from north to south and vice versa, he stopped at the stop street. The Golden Highway was the through road. He noticed a person lying in the road, the Golden Highway, some distance away from the intersection, to the north of the intersection. The man was lying close to the middle of the road on the eastern side thereof. It was, and is, common cause between the parties that that person was the deceased. He drove to the point where the deceased was lying. Bystanders had already gathered at the scene. A motor vehicle which was driving off in a northerly direction along the Golden Highway was pointed out to him. He followed the vehicle. It later stopped. The driver thereof was the insured driver, Mr Mbuzane. He admitted to Mr Rasemetse that he had collided with the deceased. His excuse for driving off was that he was afraid of being assaulted "by people there on the scene". He agreed to accompany Mr Rasemetse to the police station which was apparently not far from the scene of the accident. Mr Rasemetse later handed him to the police.

In her judgment the trial judge also mentioned that the parties had agreed that the concentration of alcohol in the bloodstream of the deceased was 0,35 grams per 100 milliliters of blood. It does not appear from the record that the parties had agreed on this aspect. However, this statement of the trial judge was not attacked on appeal and no mention of it was made in the notice of appeal. I shall therefore accept that the parties had indeed agreed on that aspect.

[10] After the close of the respondent's case the appellant's counsel applied for absolution from the instance. This was refused. Counsel thereafter closed the appellant's case without calling any witnesses.

The trial judge was of the view that the maxim res ipsa loquitur applied to the facts of the case. The question whether the deceased was in the middle of the road when the accident occurred was, according to the trial judge, "really irrelevant". The reasoning of the trial judge proceeded thus:

"If the pedestrian, the deceased, was standing on the side of the road and was for some reason hit by the driver of the insured vehicle, that simply means that that driver must have been negligent, because it is not in his lane of traffic. If he hit the deceased in the wrong side of the road, the inference must follow that he was negligent. If he hit the deceased in his lane, in view of the fact that it was in broad daylight, the inference must be that he was negligent, unless he comes and tells us his side of the story. He did not do so.

The argument that I cannot assume that he was travelling in the direction where Mr Rasemetse saw him travelling before the accident is, to my mind, fanciful and mere speculation. If he was travelling in a different direction, he should have given evidence.

I am of the view that from the facts before me the only reasonable inference that can be drawn is that the driver of the insured vehicle was negligent, …"

THE ARGUMENT ON APPEAL

[11] The appellant's counsel argued that the trial judge had erred in finding for the respondent. Counsel submitted that there was no evidence upon which it could be found that the insured driver was negligent. According to counsel it was pure speculation on the part of the trial judge which led her to draw the inference that the insured driver was negligent. Counsel submitted that this court ought to uphold the appeal and to replace the order of the trial judge with an order dismissing the claim with costs.

[12] Counsel for the respondent argued that the trial judge was correct in applying the maxim res ipsa loquitur. Counsel also argued, and that is trite, that where a vehicle collides with an object or person on the wrong side of the road, negligence is normally inferred. Counsel also pointed out that the appellant did not call the insured driver as a witness to explain to the court what had happened and how the collision occurred.

DISCUSSION

[13] It will be convenient to start the discussion of the appeal with a reference to what HOLMES, JA said about the maxim res ipsa loquitur in Sardi & 0thers v Standard and General Insurance Co Ltd 1977 3 SA 776 (A) at 780D H, namely

"The maxim has no bearing on the incidence of the onus of proof on the pleadings. It is invoked where the only known facts, relating to negligence, consist of the occurrence itself; see Groenewald v Conradie: Groenewald en Andere v Auto Protection Insurance Co Ltd 1965 1 SA 184 (AD) at p187F. The occurrence may be of such a nature as to warrant an inference of negligence. As INNES, CJ pertinently insisted in Van Wyk v Lewis 1924 AD 438 at p445, lines 8 9, 'It is really a question of inference.' It is perhaps better to leave the question in the realm of inference than to become enmeshed in the evolved mystique of the maxim. The person, against whom the inference of negligence is so sought to be drawn, may give or adduce evidence seeking to explain that the occurrence was unrelated to any negligence on his part. The Court will test the explanation by considerations such a probability and credibility; … At the end of the case, the Court has to decide whether, on all the evidence and the probabilities and the inferences, the plaintiff has discharged the onus of proof on the pleadings on a preponderance of probability, just as the Court would do in any other case concerning negligence. In this final analysis, the Court does not adopt the piecemeal approach of (a), first drawing the inference of negligence from the occurrence itself, and regarding this as a prima facie case; and then (b), deciding whether this has been rebutted by the defendant's explanation. …"

In Doris Goodenough NO v Road Accident Fund, an unreported judgment of the Supreme Court of Appeal which was delivered on 15 September 2003 under case no 441/2002, BRAND, JA, in paragraph 11 of the typewritten judgment, referred to the maxim as "the maxim with the somewhat high sounding name of res ipsa loquitur. It means no more than that the proven facts must speak for themselves. The underlying reasoning does not depend on any rule of law. It is merely a method of logical deduction. 0therwise stated, it is simply an exercise of common sense. The question is one of fact – can it be said that in view of all the proven facts, the inference sought to be drawn is as a matter of common sense the most probable one?"

In that case it was assumed by the learned Judge of Appeal that the pedestrian, on whose behalf the action was instituted, was struck from behind by a vehicle whilst he was crossing a street and that the accident occurred in broad daylight.

The court was, however, not prepared to infer that the driver of the vehicle was negligent. The reason therefor was that "there are too many other possible inferences that cannot fairly be eliminated in determining the dictates of human experience".

In regard to the "fact" that the driver of the vehicle did not stop after the accident and drove off, the learned Judge of Appeal discounted that on the basis that "one simply does not know what happened after the collision."

The appeal against the finding of the trial judge that no negligence on the part of the driver of the vehicle was proved by the plaintiff, was therefore dismissed with costs.

[14] In the present case the only "proven facts" were tabulated by DE VOS, J as follows:

"1. That the deceased's body lay in the middle of the road in the southbound lane.

2. That the insured vehicle was travelling after the accident in the opposite direction, namely in the lane from south to north, in other words the northbound lane.

3. The insured driver did not stop at the scene of the accident.

4. The deceased was under the influence of alcohol at the time of the accident.

5. The visibility was good."

[15] In my view the finding of DE VOS, J, that the driver of the insured vehicle was negligent, is clearly wrong. The court does not know, for instance, what damage was done to the insured vehicle, was it damaged on the side or on the front part thereof; and, consequently, whether he could have run into the side of the vehicle as it was passing; nor does the court know where on the road the accident occurred; the fact that the deceased was lying near the middle of the road does not prove that he was hit at that point, he could have been flung there as a result of the impact. The court also does not know whether the deceased tried to cross the street or whether he stepped into the road in front of the approaching insured vehicle. The court does not know whether there were cars parked on the side of the road which probably shielded the deceased from the approaching driver, until he stepped into the road from behind a parked vehicle. The fact that the deceased was highly intoxicated would have caused him to behave irrationally, a matter of common knowledge; and the court does not know whether he did so behave. That could have caused him to step into the road at an inopportune moment when a collision was inevitable.

In regard to the fact that the driver did not stop after the accident, the court knows that he drove off because he was afraid of being assaulted. That is certainly an acceptable explanation and by no means proves that he had a guilty conscience. 0ne cannot, in my view, infer from the fact that the driver did not stop after the accident, that he was negligent in causing the collision.

The present case is therefore a text book example, in my view, of the court being "utterly in the dark as to the actual circumstances under which the collision occurred" as was said by BOTHA, JA in his minority judgment in Motor Vehicle Assurance Fund v Dubuzane 1984 1 SA 700 (A) at 708F. See also Mpofu v Multilateral Motor Vehicle Accident Fund [2000] 2 All SA 238 (Tk).

[16] In my view DE VOS, J erred in concluding that the insured driver was negligent. The reasoning of the learned judge was, in my view, based on speculation and conjecture, something against which BOTHA, JA had warned in Dubuzane at 706B C and something which MAYA, AJ, as she then was, was not prepared to indulge in in Mpofu at 242e f.

In my view the respondent has not succeeded in proving on a balance of probabilities that the collision with the deceased had been caused by the negligence of the insured driver. The trial judge ought to have granted absolution from the instance.

ORDER

1. The appeal is upheld with costs.

2. The order of the court a quo is set aside and replaced with the following:

"Absolution from the instance is granted with costs."

S J MYNHARDT

JUDGE OF THE HIGH COURT

I agree

C P RABIE

JUDGE OF THE HIGH COURT

I agree

B R TOKOTA

ACTING JUDGE OF THE HIGH COURT

A2115-2004

HEARD ON: 5 MARCH 2007

FOR THE APPELLANT: ADV VAN ONSELEN

INSTRUCTED BY: FOURIE, STOCKENSTRŐM & FISMER INC

FOR THE RESPONDENT: ADV ZULU

INSTRUCTED BY: MALULEKE SERITI MAKUME MATLALA INC

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