SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy	

IN THE HIGH COURT OF SOUTH AFRICA
MPUMALANGA DIVISION (MIDDELBURG LOCAL SEAT)

CASE NO:	 3599/20
(1)    REPORTABLE:  NO
(2)    OF INTEREST TO OTHER JUDGES:  NO 
(3)    REVISED: NO	
DATE: 31/01/2024
SIGNATURE

In the matter between:	              
SAREL VAN DER MERWE BOERDERY (PTY) LTD 					      PLAINTIFF 

and 

ALS GROUP T/A ALS GROUP PLANT HIRE (PTY) LTD		        FIRST DEFENDANT 

ADVENT OIL (PTY) LTD 								   SECOND DEFENDANT 
_______________________________________________________________________
JUDGMENT
______________________________________________________________________
LANGA J: 

Introduction and background
[1] 	This is a delictual action for damages in which the Plaintiff seeks to hold the Defendants jointly and severally liable for payment of R1 478 480.74 plus interest and costs, arising from a motor vehicle collision that occurred on 12 July 2019 on the N11 between Middelburg and Hendrina in the Mpumalanga Province. The N11 National Road is a busy two-way roadway used mostly by articulated trucks ferrying coal to many mines spread across the area.  The collision took place between two vehicles, namely, the Plaintiff’s articulated two trailers combination truck with registration numbers J[...] 1[...], J[...] 1[...] and J[...] 1[...] (“truck”) driven by one Mr. Thomas Ngema and the First Defendant’s Toyota Quantum minibus (“Quantum”) with registration number J[...] 6[...] driven by one Mr. Vumane Liphi Msimango. All the nine passengers in the minibus died as a result of this collision after the Quantum caught fire. This action was, however, brought by the Plaintiff in respect of damages arising of if the destruction of the truck as a result of the collision. The Plaintiff seeks to hold both defendants equally liable for the damage caused to the truck. 

[2]	It is common cause that the minibus, which was travelling in the opposite direction of the truck, made a last-minute swerve into the truck’s lane, apparently as a result of the N[...] attempting to overtake the truck. This resulted in the collision between the truck and the minibus. The allegation by the driver of the minibus is that a Nissan NP200 bakkie (“NP200”), with registration number J[...] belonging to the 2nd Defendant driven by one Mr. Zohn Nelson Ewa Ndamse, caused the collision when it overtook the truck and thereby causing the minibus to swerve into the truck’s lane. The driver of the NP200, however, denied that he was involved in the alleged overtaking or attempt to overtake which caused the collision as alleged. He, however, confirmed that he was driving behind the truck before the collision. 

[3]	Before the commencement of the trial an order was granted by agreement separating merits and quantum and the trial proceeded on the merits only. The plaintiff called one witness, Mr Ngema while the First and Second Defendant’s called Mr Msimango and Mr Ndamse respectively. The following constitutes a summary of their evidence. 
 
The Pleadings
[4]	In the particulars of claim the Plaintiff alleged that the collision was caused by the sole negligence of the Defendants in one or more ways. For instance, the Plaintiff alleged that the Defendants inter alia failed to stop, slow down, turn aside or take any other action to avoid the collision when, by exercise of reasonable case and/or skill and/or diligence, they could and should have done so; they drove at excessive speed; they failed to apply brakes; they failed to keep a proper look out and they failed to keep their vehicles under proper control. Further, the Plaintiff in paragraph 9.6 specifically alleged in respect of the Second Defendant that he attempted to overtake the Plaintiff’s vehicle thereby causing a head-on collision between the vehicles of the Plaintiff and the First Defendant.     

The Relevant Evidence
[5]	Mr. Thomas Ngema, the Plaintiff’s driver testified confirmed that he was the driver of the said unloaded/empty articulated truck on 12 July 2019 on the road between Hendrina and Middelburg in the afternoon when the collision took place in his lane near the top of the incline.  He stated that he was travelling at about 70-80 km/h at a steep incline when he noticed from the truck’s rear-view mirrors that there were vehicles following the truck and which wanted to overtake but aborted and moved behind the truck. He was not sure whether there was any vehicle which wanted to overtake when the collision took place. He did not see the NP200 before the collision but only saw it after the collision standing in a mealie field on the opposite side of the road. He further stated he did not see the Quantum before the collision but only thereafter. He stated that the impact with the minibus caused the truck to jack-knife and thereafter it caught fire. 

[6]	Under cross-examination by the First Defendant’s counsel, Mr Ngema confirmed that incident happened in the blink of an eye and that he could not dispute the version of the driver of the Quantum as he personally did not see the Quantum and NP200 before the collision. He further agreed with the statement that the sole reason for the Quantum swerving in front of his truck was because the NP200 came into the former’s lane. He, however, could not dispute the Second Defendant’s version put to him that the NP200 was following the truck and sometimes moved to the shoulder and then went back. However, when it was put to him that the NP200’s driver did not overtake or attempted to do so, the witness did not agree apparently on the basis of what he was told another white man at the scene.

[7]	Although he confirmed that he spoke to the driver of the Quantum, Mr. Ngema however denied that the driver of the NP200 was with him when he was checked at the ambulance and further that he had any conversation with him. He also appeared not to remember that he made a statement to the police regarding the accident even though there was a statement in his name. He was also referred to a statement he made in the Accident Report Form in which he stated that the minibus lost control and he tried swerving to the left but the minibus was already in front of the truck and the collision followed. The statement further said that the minibus left tyres were not on the tarred road. In response Mr Ngema denied that he made this statement and said that he does not know how the accident took place.  In a nutshell, Mr Ngema did not see how the collision took place and could therefore not impute any negligence on the Defendants as alleged in the particulars of claim. 

[8]	Mr. Vumani Liphi Msimango, the driver of the Quantum, confirmed the collision with the truck driven by Mr Ngema on 12 July 2019 on the N11 near Middelburg. He stated that he was transporting passengers from Middelburg in the direction of Hendrina. He was driving on a flat road at 80-90km/h and with no cars in front of his vehicle.  He then saw the truck coming from the opposite direction and thereafter also saw the NP200 that was driving in his lane attempting to overtake the truck when he was about 30-40 metres away from the truck. He flicked his lights when he realised this but does not know what happened until he found himself in front of the truck. In his words he just lost his mind and did not know what to do. He swerved to the right as he thought he would be able to avoid the truck. The Quantum collided with truck killing all his passengers. After the accident he saw the NP200 stuck in a mealie field to his left-hand side. He stated that the NP200 was in the middle of the truck when he swerved to avoid it and everything happened so fast that he could not avoid the collision with the truck. Mr Msimango suggested that the collision was the fault of the driver of the NP200 as it would not have happened had he not attempted to overtake the truck at that time as he did.

[9]	Under cross examination Mr Msimango could not tell how far away from the truck he was when he first noticed it but estimated that it could have been about 20 meters away. He confirmed that when the NP200 unexpectedly started overtaking the truck he simply lost his mind and did not know how to react and that it could have been better if he had swerved to his left, but could not explain why he swerved to the side of the truck. He agreed that the truck was still ahead of the NP200 when he swerved but disagreed that he made a mistake by swerving in front of the truck. He insisted that if the NP200 had not overtaken the truck, the accident would not have happened. His explanation was that the overtaking by the NP200 was sudden and unexpected. He said although it might have been different if he had swerved to the left to avoid a collision with the truck, he however did not think of that as the accident happened in a split second and there was nothing else he could think of.  

[10]	It was subsequently put to him that he did not just have a split second but several seconds in which to react, which he denied. The witness also denied that he made an error of judgment to swerve to his right in front of the truck. Finally, when it was again put to him that a reasonable person in his position would not have made such an error of judgment by swerving in front of the big on-coming truck, he responded by saying that it happened unexpectedly and he was shocked and also lost his mind. When asked whether he applied brakes when he noticed the NP200, Mr Msimango stated that he could not remember.
 
[11]	When asked by the 2nd Defendant’s attorney to give an estimation of distance he was from the truck when the NP200 overtook it, he said it was about 45 meters away which he said was the size of half a soccer field. He again confirmed that when he saw the NP200 overtaking he first flashed his lights and then lost his mind. Although he confirmed the correctness of the sketch of the accident contained in the ALS incident report, he, however, insisted that he does not agree with the description of the accident in the same report.  It was put to him that the version of the driver of the 2nd Defendant’s was that he was not overtaking the truck or attempting to do so. He also alleged that he, Mr Msimango, drove the Quantum at excessive speed and lost control thereof which Mr Msimango disputed. He remained resolute that the driver of the NP200 was not telling the truth and vehemently denied his version. 
 
Mr Zohn Ewa Nelson Ndamse (Second Defendant’s Driver) 
[12]	Mr. Ndamse confirmed that he was the driver of the NP200 at the time and that he was travelling behind the truck with two trailers in the direction of Middelburg on the N11.  
He was waiting behind the truck for an opportunity to overtake. He stated that at some stage he drove on the shoulder to have a clear view of oncoming traffic and noticed a white speeding vehicle coming towards him and moved back behind the truck. He then heard a loud bang and his body swerved to the right and his vehicle ended up in a field. He did not see an oncoming vehicle flashing lights and did not travel in the oncoming lane at all. He denied ever trying to overtake the truck as it was very long and suggested that with his type of vehicle one would have struggled to overtake. Although he did not travel fast, he however could not explain how he ended up in the field. All he could say was that his body automatically swerved to the right. He denied Mr Msimango’s version that he did not respond to his flashing lights and stated that he did not see him flashing lights. He suggested that he is being used as a scapegoat as he never attempted to overtake as alleged by Mr Msimango. 

[13]	Mr Ndamse also testified that Mr Ngema spoke to him when they both were receiving assistance from the paramedics and that Mr Ngema told him that the driver of the Quantum lost control of his vehicle. He appeared surprised when it was put to him that Mr Ngema denied that. He also could not remember the clothes the truck driver wore on the day. He also mentioned that he was not allowed to leave the accident scene after the accident. 

[14]	Under cross-examination he was questioned why he was not allowed to leave the scene if he was not involved in the accident and how he knew who the driver of truck is. He could not explain how he knew that the person who spoke to him was the driver of the truck but insisted he was not involved in the accident even though he could not explain why he was not allowed to leave the scene. He further could not explain why his personal particulars and details were included on the Accident report by the police as a driver involved in the accident if he was not involved as he testified. Under cross examination by counsel for the First Defendant, he was confronted with differences in his version before the court compared to the version put to the other witnesses and the one in the 5th meaningful pre-trial. 

Discussion and analysis 
[15]	The First Defendant correctly contended that the defendants do not bear the onus to prove that they were not negligent. As stated in Ntsala and Others v Mutual & Federal Insurance Co. Ltd 1996 (2) SA 184 (T) the onus rests on the Plaintiff to prove negligence. In order to succeed with the claim, the Plaintiff had to show that both Mr Msimango and Mr Ndamse or one of them was guilty of conduct which was negligent, wrongful and was the cause of the damage to the truck.  In Telematrix (Pty) Ltd v Advertising Standards Authority SA 2006 (1) SA 461 (SCA) para [12] the Supreme Court of Appeal stated the following basic rule.  ‘The first principle of the law of delict, which is so easily forgotten and hardly appears in any local text on the subject is, as the Dutch author Asser points out, that everyone has to bear the loss he or she suffers. The Afrikaans aphorism is that “skade rus waar dit val”. Aquilian liability provides for an exception to the rule and, in order to be liable for the loss of someone else, the act or omission of the defendant must have been wrongful and negligent and have caused the loss. But the fact that an act is negligent does not make it wrongful ...’ 

[16]	The test for negligence is to be found in Kruger v Coetzee 1966 (2) SA 428 (A) at 430E-G.  ‘For the purposes of liability culpa arises if – 

	(a) A diligens paterfamilias in the position of the defendant –

	(i) Would foresee the reasonable possibility of his conduct injuring another in his person or property and causing him patrimonial loss; and 

	(ii) Would take reasonable steps to guard against such occurrence; and 

	(b) The defendant failed to take such steps. 

… Requirement (a)(ii) is sometimes overlooked. Whether a diligens paterfamilias in the position of the person concerned would take any guarding steps at all and, if so, what steps would be reasonable, must always depend upon the particular circumstances of each case…’ 	

[17]	In the light of the evidence referred to above, it is not in dispute that both Mr Msimango and Mr Ndamse were driving the First and Second Defendant’s vehicles, respectively. It is also not in dispute that this was during the course of their employment with the defendants.  It is also common cause that a collision took place between the truck belonging to the Plaintiff and the Quantum belonging to the First Defendant and that the truck was severely damaged as a result of the collision. What is in dispute is the cause of the collision, and in particular, whether it was caused by Mr Msimango or Mr Ndamse or both. The issue for determination is accordingly one of negligence.  

[18]	Ultimately the Plaintiff could not rely on Mr Ngema’s evidence to prove negligence as alleged in the particulars of claim since Mr Ngema could not explain in his testimony how the accident happened. Notwithstanding this, it is nonetheless common cause that the said collision occurred in the truck’s correct lane. Further, neither Mr Msimango nor Mr Ndamse suggested in their respective testimonies that Mr Ngema acted negligently or caused the accident. Instead, Mr Msimango blamed Mr Ndamse for the collision and alleged he caused the collision by overtaking the truck in the face of on-coming traffic and by so doing caused him, Mr Msimango, to swerve into the truck’s lane while attempting to avoid the overtaking NP200. In the light of the above, I am satisfied that it can safely be concluded that Mr Ngema was not negligent even though he could not explain how the accident happened. 

[19]	It is clear that apart from the generic allegations of negligence in the particulars of claim, it was not specifically alleged what the First Defendant did to cause the accident. However, in the case of the Second Defendant it was specifically averred that Mr Ndamse was negligent in that he attempted to overtake the truck when it was not safe to do so. This allegation is repeated by the First Defendant who also imputes the fault on Mr Ndamse. Thus, even though Mr Ngema did not testify that the Second Defendant was negligent in that he attempted to overtake the truck, this allegation in the particulars of claim is supported by the evidence of Mr Msimango who alleged in his testimony that the overtaking by Mr Ndamse was the cause of the collision.

[20]	The Second Defendant’s defence is essentially that its driver, Mr Ndamse, was driving behind the truck at a safe distance and reasonable speed. He only moved slightly to check if it was safe to overtake but never made any overtaking manoeuvre or even attempted to overtake. Mr Ndamse testified that he was travelling behind that truck when he heard a sound and his body instinctively caused the vehicle to swerve to the right and across the road into mealie field. This version is inconsistent with the Accident Report Form according to which he is reported to have stated that he swerved to the right when he saw the truck suddenly hit brakes and he heard a loud bang from the collision. 

[21]	There were therefore inconsistencies regarding what caused Mr Ndamse to swerve to the right from behind the truck. For instance, in the joint practice note dated 24 February 2023 and the meaningful Pre-Trial of 18 March 2023 he said he heard a bang sound from the collision and this caused him to instinctively swerve to the right. However, according to the official Accident Report he is reported to have stated that the truck hit the brakes and the heard a bang and swerved to the right to avoid whatever was happening. He further stated that he heard a loud sound indicating that the truck was in some sort of trouble and swerved right. Although he confirmed that the sketch plan in the ALS report was correct, he however denied that he was overtaking as shown on the sketch plan. In addition, Mr Ndamse could not explain why he did not apply the brakes behind the truck and stop behind it if he was driving at a reasonable speed and distance behind the truck. This is despite having stated that at some point before the collision he went to the shoulder of the truck to check if it was safe to overtake but realized it was not and went back behind the truck. He also did not mention in his testimony that he saw the truck braking as stated in the accident report.  

[22]	Under cross -examination Mr Ndamse did not make a good impression a witness as he was evasive and argumentative in his responses. All he spoke about was how horrific the accident was. In his answers he provided irrelevant information than concentrating on what or who caused the collision. When he was asked why he did not mention that the truck braked as stated in the police report, Mr Ndamse was argumentative and his answer insinuated that this was not important. He told counsel for the First Defendant was picking on insignificant things when he asked him about the brakes. He did not deny that this was his version but could not explain why he did not mention it in his evidence. 

[23]	This part of his evidence is of course important particularly when one considers that it was part of his explanation immediately after the accident. According to this explanation, the braking of the truck and the loud bang is what caused him to swerve to the right and out of the road in order to avoid what was happening in front. However, the explanation he gave in his testimony was that he swerved to the right instinctively because his body flipped when he heard the bang and this caused him to swerve to the right. This explanation is totally different from what is stated in the police report, the joint practice note dated 24 February 2023 and the 5th Meaningful Pre-Trial of 18 May 2023. In the Joint Practice Note and the Pre-Trial Minute the version is that he went outside/off the road because he heard the bang sound of the collision between the truck and the Quantum. No mention is made of the braking of the truck. Although Mr Ndamse suggested that these were insignificant, it is, however, not. He contradicted himself on the important issue of what caused him to swerve out of the road. Indeed, if he saw the braking and he was driving at a reasonable speed as he stated, he could and should have been able to stop behind the truck as he apparently did when he saw that he could not overtake because of on-coming vehicles. 

[24]	Although Mr Ndamse insisted that he never attempted to overtake the truck, his version that his body automatically caused him to swerve to the right after hearing a loud bang is highly improbable, especially since he drove right across the oncoming lane and came to a stop 15-20 metres inside the mealie field. It is evident that attempted to overtake at an inopportune moment and drove on the oncoming lane. He triggered the cain of events which led to the collision. When he decided to abort and swerve to the right and out of the way it was too late as the other driver had already swerved to the right to avoid him.  

[25] 	After considering all the evidence and the conflicting versions given by the First and Second Defendants, I am of the considered view that the version Mr Ndamse’s version is highly improbable and should therefore be rejected. The version by the First Defendant is the most plausible and should be accepted. This version, which was to an extent also accepted by the Plaintiff, is to the effect that the collision was caused by the overtaking vehicle. This version is consistent with what happened. There is in my view no evidence to justify the rejection of Mr Msimango’s version of how the collision came about. The evidence does not support a conclusion that he lost control of the Quantum as the Second Defendant seems to suggest. Mr Msimango made a good impression as a witness. He was frank in his testimony and even admitted that he may have chosen the worst possible option when he faced with the sudden emergency created by the overtaking NP200. He further admitted that he lost his mind and swerved to his right into his incorrect lane directly in the path of the oncoming truck. His evidence was consistent and credible. 

[26]	Consequently, if one accepts, as I do, that Mr Ndamse did attempt to overtake the truck at that crucial moment, one has to ineluctably also accept that this triggered the events that followed. I accept Mr Msimango’s evidence that the Second Defendant’s vehicle was overtaking the truck and that this is what caused him to swerve to the right onto the on-coming lane. Even if it was found to be an incorrect decision, it would nevertheless not make any sense for Mr Msimango to swerve his vehicle carrying him and his passengers in front of the moving truck for no reason. By accepting Mr Msimango’s version I accept that he found himself in a situation of sudden emergency. In that event the next question that should follow is whether his actions thereafter are consonant with those of a reasonable person in his situation. Put differently, was Mr Msimango’s action of swerving to the right across the on-coming lane in order to avoid a collision conduct expected of a reasonable person in the same situation. 

[27]	In Road Accident Fund v Grobler 2007 (6) SA 230 (SCA) it was confirmed that as a general rule, a driver of a motor vehicle who was faced with an oncoming vehicle which had swerved and entered its incorrect lane of travel, thereby avoiding an impending collision, had to avoid swerving to its incorrect lane as his primary course of action. In assessing the First Defendant’s negligence it should be borne in mind that Mr Ndamse, according to accepted evidence, made the overtaking at time when the First Defendant’s Quantum was about 50 meters away from the truck. This was very close in the circumstances where all the vehicles were moving. Mr Msimango in my view had little time to react and no wonder he lost his mind as he put it. He, however, did take evasive action by driving across the oncoming lane with the hope of doing so before the truck reached him. 

[28]	The question is whether this evasive action was could be said to be one that could be expected of a reasonable person in his position. As the Counsel for the First Defendant correctly put it, Mr Msimango was caught between a rock and a hard place. His options were either to swerve to the right and hope to beat the overtaking NP500 or go left and hope to beat the truck. He chose the latter option which did not succeed. It is easy with the benefit of hindsight to conclude that going left would have been less risky than going right. There is however no certainty that it would not have resulted in a disaster as well. One must, however, not forget that the situation was one which required instant reaction in little or no time. Mr Msimango obviously thought the action he took would save the day as he was equally at risk the same way as his passengers. The odds were against him as well and it is just a miracle that he is alive. 

[29]	As stated in Grobler, above, where a motorist is confronted with a sudden emergency not of his own doing and then committed an error of judgment, the question is whether a reasonable person in the circumstances could have done the same. The test is whether the conduct of the defendant fell short of what a reasonable person would have done in the same circumstances. 

[30]	I am of the view that it will be harsh in the circumstances to judge Mr Msimango’s reaction from an armchair position. His reaction should be based on the reaction of a reasonable person in those circumstances. In my view a reasonable person would have focussed on escaping the danger that was there.  Mr Msimango did try to escape but was not successful. There is no evidence to show that the collision would not have happened had he taken the left option. In my view his decision making may not have been the best and perfect one but it was certainly not unreasonable in the circumstances.  

Conclusion
[31]	In conclusion I find that the driver of the First Defendant did not act negligently by swerving to his right into the oncoming lane. I am of the view that a reasonable person would have made such a decision. I therefore conclude that the Plaintiff has failed to prove the negligence of the First Defendant and the action against the First Defendant is dismissed with costs. 

[32]	On the other hand, I find that there is sufficient evidence to conclude that Mr Ndamse was the sole cause of the accident and collision. Mr Ndamse attempted to overtake when it was inopportune to do so and he was therefore negligent. The Second Defendant therefore acted negligently and caused and/or contributed to the damage suffered by the Plaintiff. The Second Defendant should therefore be held solely liable for the agreed or proven damages of suffered by the Plaintiff.  

Costs 
[33]	The general rule is that costs should follow the results. The Plaintiff is therefore entitled to the costs of the suit. However, since it has been found that the Second Defendant was the sole cause of the collision, the First Defendants costs as well must be borne by the Second Defendant. 

MBG LANGA
JUDGE OF THE HIGH COURT

Appearances:
Counsel for Plaintiff: 								Adv. C Joubert 

Counsel for First Defendant:						WA De Beer

Counsel for Second Defendant: 					JH Gwebu

Date of hearing: 							01 November 2023

Date of judgment:							31 January 2024

This judgment was handed down electronically by circulation to the parties’ representatives by email. The date for hand-down is deemed to be the 31 January 2024