De Maayer v Serebro and Another (322/03) [2004] ZASCA 92; [2005] 2 All SA 553 (SCA); 2005 (5) SA 588 (SCA) (29 September 2004)

De Maayer v Serebro and Another (322/03) [2004] ZASCA 92; [2005] 2 All SA 553 (SCA); 2005 (5) SA 588 (SCA) (29 September 2004)

The Supreme Court of Appeal held that the refusal of special leave to appeal is final, rendering the plaintiff's appeal not properly before the court and subject to being struck from the roll. On the merits, the court found that the third party, Dr De Maayer, was exclusively negligent in turning across the path of the insured driver at a time when it was unsafe to do so. The evidence did not support the application of the Galante principle, as there was only one plausible explanation for the collision: the third party failed to keep a proper lookout and attempted the turn when it was dangerous. The expert evidence presented by the plaintiff was discredited, and there was no acceptable...

Citation
[2004] ZASCA 92
Parties
Appellant: T De Maayer; Respondent: T A Serebro; Respondent: Road Accident Fund
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
29 September 2004
Case Number
322/03
Procedural Posture
Civil Appeal / Supreme Court of Appeal Judgment After Two Appeals and Applications for Special Leave
Outcome
Plaintiff's appeal struck from the roll with costs; third party's appeal dismissed with costs.
Judges
Scott, Nugent, Cloete, Comrie, Patel
Legal Topics
Negligence, Road Accident Fund Act, Causation, Special Leave to Appeal
Delict Civil Procedure Negligence Road Accident Fund Act Causation Special Leave to Appeal

Case Brief

Summary, issues, holding and outcome

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Parties

T De Maayer

Appellant

T A Serebro

Respondent

Road Accident Fund

Respondent

Procedural Posture

Civil Appeal / Supreme Court of Appeal Judgment After Two Appeals and Applications for Special Leave

Legal Issues

  1. 1 Whether the plaintiff's appeal is properly before the Supreme Court of Appeal after refusal of special leave.
  2. 2 Whether the third party (Dr De Maayer) was causally negligent in the collision.
  3. 3 Whether the Galante rule applies in the absence of evidence from the insured driver.

Ratio Decidendi

The Supreme Court of Appeal held that the refusal of special leave to appeal is final, rendering the plaintiff's appeal not properly before the court and subject to being struck from the roll. On the merits, the court found that the third party, Dr De Maayer, was exclusively negligent in turning across the path of the insured driver at a time when it was unsafe to do so. The evidence did not support the application of the Galante principle, as there was only one plausible explanation for the collision: the third party failed to keep a proper lookout and attempted the turn when it was dangerous. The expert evidence presented by the plaintiff was discredited, and there was no acceptable...

Court Disposition

Plaintiff's appeal struck from the roll with costs; third party's appeal dismissed with costs.

Orders

  • The plaintiff's appeal is struck from the roll with costs, including costs of preparation of document bundles for applications for leave to appeal.
  • The third party's appeal is dismissed with costs.