---

IRENE SWANEPOEL Appellant

and

CITY COUNCIL OF JOHANNESBURG Respondent

IN THE SUPREME COURT OF SOUTH AFRICA

(APPELLATE DIVISION)

In the matter between

IRENE SWANEPOEL Appellant

and

CITY COUNCIL OF JOHANNESBURG Respondent

Coram: RABIE, CJ, JANSEN, JA et BOSHOFF, AJA

Heard: 21 August 1986

Delivered: 4 September 1986

JUDGMENT BOSHOFF, AJA :
This is an appeal from the judgment of Schabort, J in the Witwatersrand Local Division granting

absolution /2

-2-

absolution from the instance with costs in an action

instituted by the appellant against the respondent as a

self-insurer for damages suffered by her when she as a

pedestrian was run over by a bus of the respondent, the

appellant alleging negligence on the part of its employee,

Frans Moremi, the driver of the bus.

The evidence can be briefly stated. On the

31st December 1980 at about 16h10 the appellant and one.

Venter, with whom she was at that time cohabiting

and whom she subsequently married walked from north

to south along the Hoek Street mall on their way to

the OK Bazaars in the central business area of Johan-

nesburg. That part of Hoek Street where

they /3

-3-

they walked is a mall and on the northern side gives

access for Blacks to the railway station and to a terminus

for buses used by black passengers. It is near the

central business area of Johannesburg and is consequently

an important and busy thoroughfare for Blacks going to or

leaving the railway station and the terminus. Venter

stopped to purchase some fruit from a street vendor

just before they reached de Villiers Street. The mall

was crowded and the appellant decided to cross de Villiers

Street and wait for Venter on the other side.

De Villiers Street runs from east to west

and has a kerbed pavement on both sides even where it

crosses /4

-4-

crosses the mall. There are pedestrian crossings on

both the eastern and western sides of the mall which

cross de Villiers Street and they are controlled by pedestrian

traffic lights. The appellant crossed de Villiers

Street along the western pedestrian crossing and waited

for Venter on the pavement on the southern side of de

Villiers Street approximately 8 feet (2,43m) from the edge

of the pavement. Where she stood a crowd moved up from

behind her and became boisterous causing her some an-

xiety with the result that she moved forward and stood

on the edge of the pavement opposite the western pedestrian

crossing. She could not cross to the northern side of

de Villiers Street where Venter was because the pedestrian

traffic /5

-5-

traffic lights were showing red. She however noticed

Venter on the opposite side waiting for the pedestrian

traffic lights to change in his favour. The appellant

remembered standing there on the edge of the pavement and

waiting for Venter to cross to her side of the street

but had no idea of what happened to her immediately

after that- The next thing she remembered was that

Venter lifted her head where she lay seriously injured

partly under- a stationary bus. She did not remember

seeing the bus before she was injured and she had no idea

how she came to be partly under the bus.

Venter reached the western pedestrian crossing

when the pedestrian lights were red and had to wait for

them /6

-6-

them to change. He did not see anybody crossing or

trying to cross against the pedestrian traffic lights while

he was waiting. Vehicular traffic passed in de Villiers

Street in both directions and he noticed a single-decker

bus a little distance away to the east approaching

that area of the street which crosses the mall and

which for the sake of convenience may be called the inter-

section . He looked in front of him and noticed the

appellant standing near the kerb of the pavement on the

other side of the street. He then looked to his right,

the side from which vehicular traffic could be expected.

when the pedestrian traffic lights changed in his

favour. The single-decker bus entered the intersection,

Venter /7

-7-

Venter heard the sound of something being hit followed

by people screaming and the bus then came to a stop just

outside the intersection with its rear end just past

if not on the western boundary line of the "pedestrian

crossing. He crossed the street and saw the appellant

between the front and rear wheels partly under the bus

between the southern pavement and the bus. Her left

shoulder was against the kerb, her left leg was pulled up

and partly on the pavement and her right leg was on the

street; the left front wheel of the bus had evidently

run over it. Her head was on the street next to the

kerb.

The bus belonged to the respondent, a self-

insurer, /8

—8—

insurer, and was driven by its employee Frans Moremi.

The appellant instituted action against the respondent

and claimed damages for bodily injury. In the action it

was common cause that the appellant was seriously injured

and certain amounts claimed under the different heads

as damages were agreed upon. It was left to the court

to determine inter alia the amounts of the damages claimed

in respect of the wages of a full-time domestic servant,

necessitated by her injury, and her past and future loss

of earnings. The court determined these amounts by

using in the one case the agreed and in the other case

the actuarially calculated figures and in each case making

a percentage deduction as a contingency allowance.

On /9

-9-

On the question of liability the case for the

appellant was conducted and presented on the basis that

Moremi was negligent in one or more of the following

respects: he failed to keep the appellant and the group

of pedestrians who were on the pavement and waiting

for the pedestrian traffic lights to change under proper

observation; he travelled too close to the kerb and he

failed to hoot on approaching the appellant and the group

of pedestrians.

The court held that the appellant failed to

discharge the onus resting upon her to establish the

alleged negligence and granted absolution from the instance

with costs.

The /10

-10-

The appellant is now appealing against this

judgment in effect on the ground that the court a quo

erred in making the percentage deductions, or alternatively,

in making excessive percentage deductions in respect of

the wages of the full-time domestic servant and her

past and future loss of earnings, and also erred in holding

that it was not established that Moremi was negligent.

De Villiers Street is a two-way street with

bus routes in both directions. It carries heavy vehicular

traffic and there are vehicular traffic lights where: it

crosses the mall. Just short of the intersection the

width of de Villiers Street is reduced over a distance

of a little more than the width of the mall by the pavement

on /11

-l1-

on the southern side which extends into the street towards

the north. The reduced width of the street is 9,9 m.

The street is divided into three traffic lanes which

are demarcated with painted lines. The northernmost

and centre traffic lanes are for vehicular traffic travel-

ling from west to east of which the northernmost one is

reserved for buses but is in fact also used by other

vehicular traffic. The southernmost traffic lane is

for vehicular traffic travelling from east to west. The

lines of the traffic lanes stop short of the intersection

with the result that there are no demarcated lanes in

the intersection itself. The two pedestrian crossings

from north to south across de Villiers Street are demarcated

with white lines and are each 2,1m wide. The inner lines

of /12

-12-

of the pedestrian crossings in the intersection are 12m

apart. Judging from the lines outside the intersection

the bus lane is 3,12m and the centre lane 3,06 m

wide. The southernmost lane in which the bus in question

travelled is 3,36 m wide. east of the intersection

and 3,55m wide west of the intersection. It is common

cause that where the bus collided with the appellant the

lane is 3,55m wide. The bus in question is 2,55m wide;

that means that the bus had a leeway of 0,81m at the en-

trance of the intersection and 1m where the collision

took place.

The respondent called Moremi as a witness.

He had been employed by the respondent as a busdriver

since /13

-13-
since 1971 and is the holder of several road safety awards from the National Road Safety Council and the respondent for accident-free driving. He had often driven buses on routes along de Villiers Street through the Hoek Street mall intersection and knew the intersection well. He was aware of its dangerous nature because of the propensity of pedestrians sometimes to disregard the pedestrian traffic lights. On the day in question he drove a special bus on the route between the Parktown hospital and the Breë Street terminus in the city. He entered de Villiers Street at: the Wanderers Street intersection approximately 70 paces east of the Hoek Street mall intersection. According to him he approached

the /14

-14-

the Hoek Street mall intersection at his usual speed

which was approximately 15 km p h - he did not look at

his speedometer - and noticed many people on the pavement

on his lefthand side, that is to say the pavement in the

mall on the southern side "of de Villiers Street, waiting

to cross de Villiers Street. It was during the peak

hour,- the traffic was heavy and there were motor-vehicles

approaching- him from the opposite direction. There

were no jay-walkers in the street and nobody tried to cross

de Villiers Street in the intersection against the pedestrian

traffic lights.. The vehicular traffic lights in the

intersection had changed in his favour when he was still

far away from the intersection, almost opposite the

cathedral /15

-15-

cathedral. When he was pressed to give the distance in

terms of bus lengths — the bus being 10,85 m long - he

said he was about 2 bus lengths away. He entered the

intersection and when he passed the second crossing that

is to say the western pedestrian crossing, he heard people

scream and he stopped the bus without changing its course

to the right or to the left. He was able to stop the bus im-

mediately because he was travelling at a moderate speed and the

bus became stationary just outside the intersection. He got out of

the bus and saw the appellant partly under the bus almost

halfway between the front and the rear wheels. According

to him her back was on the pavement and her legs were

in the street. The bus was about 1 /2 ft (45 cm) from

the kerb. He did not see the bus collide with her and

he /16

-16-

he also did not hear the collision because of the noise

of the engine of the bus.; He noticed a dent on the left

front side of the bus between the front corner and the

door where she could have collided with the bus. He indicated on

a photograph of the bus that the dent was on the left front side

below the number of the bus.

According to Moremi the southernmost lane is

narrow and he usually travelled approximately 2 ft

(60 cm) from the kerb. He was accustomed to driving

the bus along that street and regarded it as a safe

distance. On that day he did not take particular notice

how far from the kerb he was travelling and conceded

that he may have travelled less than 2 ft (60 cm) from

the /17

-17-

the kerb because of the heavy traffic which could have

prevented him from keeping his usual distance from the

kerb. Although the traffic lanes are not demarcated

in the intersection and the width of the southernmost

lane east of the intersection is not the same as it is

west of the intersection he was in cross-examination

pressed to give an estimate of the distance he was travel-

ling from the imaginary northern boundary of the lane

in which he was travelling. He was constrained to give

or to concede to distances which he understandably stated

were merely guesses on his part.

Fred Cranko, who was a traffic officer in the

employ of the respondent at that time arrived at the

scene /18
18
scene when the appellant was already removed to hospital

and found Moremi there. The bus was still where it had

become stationary after the collision. He prepared a

plan which is not of any real assistance. He measured

the distance between the bus and the kerb and found it

to be one pace. His pace was measured in court and is

29 inches (0,72 m). The court a quo accepted his

evidence on this point. It should be mentioned here that

the appellant brought the bus to a stop immediately

after he heard people scream and succeeded in doing

so within a distance of a little more than the length

of the bus which is 10,85 m , because on the evidence

the appellant was standing on the pavement more or less

halfway /19

-19-

halfway between the two lines of the pedestrian crossing

and the bus stopped with its rear near or on the western

line of the crossing. Indeed Cranko put the rear of

the bus in the intersection. There was no evidence or

even a suggestion on behalf of the appellant that Moremi

swerved away from the pavement when he heard the screams

and before he brought the bus to a stop.

Roelof Pottas an assistant area-superintendent

in the employ of the respondent visited the scene in order

to prepare a report on the condition of the bus. Ac-

cording to him the bus was a fair distance away from the

kerb. He checked the left front wheel of the bus for

kerb marks and also checked the kerb for wheelmarks

and /20

-20-

and found none. He found a dent on the left front

corner of the bus about 1 m from the ground. The bus

has a rounded corner and the dent was right on the corner

It is common cause that the bus did not mount

the pavement when it struck the appellant. There was

nothing on the side of the bus which protruded from the

bus that could have overlapped the pavement. There was

also no acceptable evidence that the appellant stepped

of the pavement into the intersection before the collision

The only evidence to that effect was that of Dorah Ramathopa

which was rejected by the court a quo because of a prior

inconsistent statement she had made in this regard and other

valid reasons.

On /21

-21-

On the evidence accepted by the court a quo

a number of pedestrians including the appellant were standing

on the edge of the southern pavement facing north with the intention

of crossing de Villiers Street and waiting for the pedestrian traffic

lights to open in their favour, there was no one at that stage

crossing the street or making any attempt to do so, while

the vehicular traffic lights were green in favour of

traffic in de Villiers Street and Moremi entered the intersection

with the vehicular traffic lights green in his favour. This

appears from the evidence of the appellant, Venter, Moremi

and Nelson Qasha, the driver of a bus which had followed

behind the bus in question and who had seen the bus in

question enter the intersection and stop after the

collision /22

-22-

collision. It was none the less common cause between

the parties that the collision took place in the street

and that the appellant must have entered the street at

some stage before the collision to cause the collision

to occur in the street. It is however not clear how

she came to be in the street and there is consequently

no evidence of when or where the bus was when she

moved into the street.

The question which now falls for consideration

is whether the appellant established negligence on the

part of Moremi.

At the outset it is necessary to note that

according to our legal system accountability based

on /23

-23-

on negligence is generally speaking restricted to harm

which is foreseeable; harm that should reasonably

have been foreseen and prevented. Negligence can there-

fore never be disentangled from the facts. Its existence

is best ascertained by applying to the facts of each

case the standard of conduct which the law requires.

That standard is the degree of care and skill which a

reasonable man would exercise under the circumstances

In the case of Cape Town Municipality v Paine 1923 AD

207 at p 217 Innes C J said:

"The question whether, in any given situation a reasonable man would have foreseen the likelihood of harm and governed his conduct accordingly, is one to be decided in

each /24

-24-

each case upon a consideration of all the circumstances. Once it is clear that the danger would have been foreseen and guarded against by the diligens paterfamilias, the duty to take care is established, and it only remains to ascertain whether it has been discharged."

In the light of what has been said above the

court will have to decide whether a reasonable man

situated in the position of Moremi would in the circum-

stances that prevailed in the intersection have foreseen

the likelihood of harm to the appellant and would

have taken reasonable steps to guard against the occurrence

of such harm.

Mr Israel for the appellant argues that

Moremi /25

-25-
Moremi was negligent in that he failed to keep the. group of pedestrians including the appellant under proper observation, travelled too close to the kerb and failed to hoot, but he is unable on the evidence to relate the harm that the appellant had suffered to this conduct. He is at this disadvantage because there is simply no evidence as to how she came to be in the street. The court a quo in its judgment correctly stated: "It is undeniably so that the plaintiff (appellant) must have entered the street in the slightest split second before the collision if it is to be assumed that she had been standing where she claims to have been ... Mr Israel has quite correctly in my view not

contended /26

-26-

contended that there was an opportunity for Moremi

to avoid the collision once the plaintiff had moved into

the street."

Moremi had been driving buses accident-free

in Johannesburg since 1971. He knew this particular

route through the intersection well and was aware of

the propensity of pedestrians to disregard pedestrian

traffic lights. He travelled at a moderate speed of

15 km per hour and maintained the same distance from

the kerb as he usually did. Although he did not

notice the appellant in particular, he was well aware

of the pedestrians on the pavement waiting for the

vehicular traffic in de Villiers Street to pass and

the /27

-27-

the pedestrian traffic lights to change. There were

no pedestrians in the intersection and he did not then

expect anyone to cross. He was asked in cross-examina-

tion whether he did not watch the pedestrians as he

approached or passed them and he replied that he only

saw them as persons and usually looked for anyone who

might "disturb him ... I am only looking for anyone who

can happen to jump into the road and not others." Al-

though he at one stage said that he did not look at the

pedestrians on the pavement, he explained in re-examination that he

looked in front of him in the road and was nevertheless

aware of the pedestrians on the pavement. If one

of them had made a sudden, move off the pavement when he

was /28

-28-

was in the intersection he would have seen him. Until

the time he went through the intersection he saw nobody

make a move as if he was going to go into the street.

Moremi entered a controlled intersection and

all the indications were that the pedestrians on the pave-

ment were heeding the vehicular traffic in the street and were

observing the law as far as the pedestrian traffic lights were

concerned. According to Venter who was watching the

intersection preparatory to crossing the street, there

was nothing untoward in the manner in which the bus was

travelling and there was no reason for the bus to hoot.

There is consequently nothing in the evidence

to....../29

-29-

to suggest that Moremi could or ought to have foreseen

the likelihood of the appellant moving into the street

when she did or that he could have taken reasonable

precautions to prevent her being harmed by the bus at

the stage when she happened to move into the street

into the bus or the path of the bus. There is no

evidence that the collision occurred because the bus

travelled too close to the kerb. Indeed the court

a quo was perfectly justified in holding "that it had

not been established that howsoever the plaintiff (appel-

lant) got into the street, the collision would have

been avoided had the bus travelled 6, 12, 18 or even

24 inches further to the right," that is to say further

from the kerb.

The /30

-30-

The argument that Moremi should have hooted

is in the circumstances also without merit. The court

a quo correctly held:

"There is also no evidence that she in fact intended to enter the street at the crucial time or that she appeared intent upon doing so. There is further no evidence that the person or persons who pushed, shoved or bumped into the plaintiff (appellant), if that happened, was not aware of the oncoming bus and that any such action by any such person was something that was reasonably foreseeable by Moremi at a time when hooting could still have made a difference. It is not even certain that no such action by any such person would have occurred if Moremi had hooted."

There was clearly no evidence upon which the

court /31

-31-

court a quo could have found that the injuries sustained

by the appellant were caused by the negligence of Moremi

Mr Israel has not persuaded this court that the judgment

of the court a quo was wrong and that an order for ab-

solution from the instance with costs should not have

been granted.

Having arrived at this conclusion it is not

necessary to deal with the arguments relating to the

amount of damage suffered by the appellant.

In the result the appeal is dismissed with costs.

BOSHOFF, A J A

Rabie, C J )
concur JANSEN, J A)

---