Makanyoga General Business Enterprises CC v P and J Swift Transport (88693/16) [2024] ZAGPPHC 1302 (29 November 2024)

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

GAUTENG DIVISION, PRETORIA

CASE NO: 88693/16

(1) REPORTABLE: NO

(2) OF INTEREST TO OTHER JUDGES: NO

(3) REVISED: YES

Date: 29 November 2024

In the matter between:

MAKANYOGA GENERAL

PLAINTIFF

BUSINESS ENTERPRISES CC

and

P AND J SWIFT TRANSPORT

DEFENDANT

JUDGMENT

ALLY AJ

INTRODUCTION

[1] This is a delictual action that arises from a motor vehicle collision on 17 May 2016 on the R35 between Morgenzon and Bethal in Mpumalanga.

[2] Plaintiff has sued for damages arising from such collision. Defendant has also filed a counterclaim for damages arising from the said collision.

[3] It is common cause that the Plaintiff's truck and two trailers with registration numbers H[…], F[…] and F[…]2 collided with the rear of Defendant's vehicle, a truck and two trailers with registration letters and number L[…], D[…] and D[…]2 when the Defendant's vehicle was stationary.

[4] At the outset of the trial the Court was informed that the parties had reached an agreement for the separation of liability and quantum in terms of Rule 33 of the Uniform Rules of Court and the said agreement was made an Order of Court.

[5] The Plaintiff was represented by Adv. C. Joubert and the Defendant by Adv. E. Coleman.

PLAINTIFF'S CASE

[6] Plaintiff called Walter Edwin Clack as an expert witness to testify on its behalf.

[7] Mr Clack testified that he was a former traffic officer from 1965 to 1994. He obtained a diploma from The Institute of Traffic Officers. He studied Collision Investigation and Reconstruction through the Institute of Police Technology and Management in Florida, United States of America. He has been a member of the Institute for Advanced Drivers for approximately 35 years and is also a graduate of this Institute.

[8] He compiled a report relating to the collision and confirmed same. Mr Clack had had sight of video footage of the collision and same would form part of his testimony. Defendant's Counsel objected to the production of the video footage into evidence and after hearing both Counsel, the Court ruled that the Plaintiff is entitled to use the video footage on the basis that no objection had been filed when plaintiff filed its Rule 35(9) notice.

[9] Mr Clack used the video footage to compile his report and confirmed his authorship of the report[1]. This video footage was captured by the plaintiff's truck camera, commonly known as a 'dashcam'.

[10] The upshot of Mr Clack's evidence-in-chief was that there were two heavy­laden trucks traveling in the same direction with one of the trucks, the defendant's truck stopped on the left-hand side of the road.

[11] Mr Clack testified that, from the video footage of the 'dashcam', he could not see any triangle on the road.

[12] The speed of the plaintiff's truck was recorded on the video footage to between 72 and 74 kilometres.

[13] Mr Clack was of the view that the light visible on the video footage looked like an oncoming vehicle, no other lights were visible and that the defendant's truck suffered a breakdown. Mr Clack then ventured to postulate what a driver faced with a breakdown should do, namely:

13.1. pull over to the left side of the road;

13.2. making sure it is safe for other motor vehicles approaching by putting on all available lights.

[14] Mr Clack testified that the driver of the defendant's truck could have pulled over further to the left than he had and he did not notice any parking lights from the 'dashcam' video footage.

[15] Mr Clack then continued testifying about the contents of his report and when asked what the driver of plaintiff's truck could have done, he opined, in relation to braking or swerving, that in the circumstances the driver found himself in, if he braked or swerved, the truck would have jack-knifed; braking or swerving was therefore not a reasonable reaction.

[16] Mr Clack concluded that the driver of the plaintiff’s truck did nothing wrong and the driver of the defendant's truck was the cause of the collision.

[17] Cross-examination of Mr Clack revealed that he had not inspected the scene of the collision nor did he speak to the drivers of the two trucks involved in the collision.

[18] Mr Clack also stated that he had not inspected the lighting of plaintiff’s truck which also meant that he did not inspect the distance of the lighting of the plaintiffs truck.

[19] Mr Clack testified that a large laden truck would be more 10 tons and upwards and a horse with two trailers would be an extra-large vehicle.

[20] When asked during cross-examination about paragraph 4 of his report, he said it could be a typing error. It should be noted that paragraph 4 deals with what the driver of the plaintiff’s truck saw. Mr Clack conceded that he did not know what perception the driver had whilst driving but could provide the perception of a driver during darkness to be 2 to 2.5 seconds.

[21] Mr Clack conceded that it is reasonable to put one light on, that is, at the back of the vehicle. He further repeated that he did not inspect the plaintiff’s truck and could not tell if the light visible in the 'dashcam' video footage was a reverse light or not.

[22] Counsel for the defendant then questioned Mr Clack regarding whether a driver should adapt to the environment, dim, and brighten lights to get attention and his response was that it would be reasonable to flash a driver and it would be reasonable if his lights were on bright to see that there was no oncoming vehicle.

[23] He conceded that he did not mention the driver of the plaintiff's truck driving style, in his report.

[24] Mr Clack was unable to explain the reference to E. Springbok in the report as well as the bullet points in unnumbered paragraph 13 of the report. Mr Clack went further to state that he cannot produce the document relating to E. Springbok.

[25] Mr Clack then repeated that the regulations required a driver of a vehicle that has broken down, to place a triangle 45 metres from his/her vehicle. Mr Clack did, however, indicate that he did not inspect the road.

[26] On questioning from Counsel for the defendant regarding his bias to the plaintiff, Mr Clack responded in the negative.

[27] Mr Clack, when questioned regarding the light that could be seen in the 'dashcam' video footage, stated that he did not know if it was a torch nor was it illegal to place a torch on the back of the truck.

[28] Mr Clack acknowledged that a driver regularly using that road would possibly know that trucks break down on that road. He testified further that the light could be seen from approximately 200 metres. He further conceded that his description of 200 metres from whence the white light could be seen was not in his report. He then stated that he could not see from the video when the white light was shown.

[29] During re-examination, Mr Clack repeated that his formula in determining reaction times of a driver was correct. When shown the 'dashcam' video footage again he stated that he did not see a flashlight.

[30] The next witness to testify on behalf of the plaintiff was Mr Lucas Magagula, the driver of plaintiff's truck.

[31] Mr Magagula confirmed that he was the driver of the plaintiff's truck on the day of the collision. He indicated that he was not carrying a load at the time of the collision.

[32] Mr Magagula was then shown the 'dashcam' video footage. He stated that he notices a light and that at approximately 500 metres away he then switched his headlights to brilliant, at this time he realised there was a truck. He then switched his headlights back to dim because he realised that a vehicle was approaching from the opposite side. At this stage he was nearing approximately 200 metres, the oncoming vehicle had a single headlight on and it was on bright.

[33] Mr Magagula testified that he could not notice whether the vehicle was a motor cycle or a motor vehicle and he started flickering his headlights. He explained further that the reason he was flickering his headlights was to warn the driver of the oncoming vehicle to dim their lights in order to see properly. He stated that his flickering of the headlights did not help because the driver of the oncoming vehicle did not change the brightness of the lights.

[34] At approximately 200 metres, Mr Magagula he noticed a truck in front of him and at this stage he was travelling at approximately 74 kilometres per hour. He was waiting for the oncoming vehicle to pass because there was a double barrier line.

[35] He mentioned that the speed limit for light motor vehicles was 120 kilometres per hour whereas for full trucks it was 80 kilometres per hour.

[36] Mr Magagula explained that when the oncoming vehicle passed him, he noticed that it was a van. Thereafter he saw a light of a stationary truck in the road. He went further on to explain that he did not have long time to look at the stationary truck. When pushed as to the time of the 'dashcam' video being 8 seconds long he stated that it was beyond 8 seconds. In that time, he observed that the truck was inside the road and not outside the road and it was stationary.

[37] When asked what else he observed about the truck, he indicated that there was a light and that the truck was stationary. The light that he observed was at the right rear end of the truck.

[38] Mr Magagula was then asked what he would have done in the circumstances of the driver of defendant's truck, in other words, where there was a failure with the truck. Mr Magagula then answered:

38.1. he would move the truck out of the road seeing that it had lost power;

38.2. alight from the truck and erect a triangles accordingly, meaning one behind the truck and one on the right-hand side;

38.3. switch the hazards on of the truck.

[39] He was then asked whether the driver of the truck did any of the things he would have done and to this he answered and stated he only saw one thing which was flickering of the indicator at the back on the right-hand side and nothing on the left-hand side and he did not see a triangle.

[40] When asked by Counsel for the plaintiff to compare the 'dashcam' video footage in relation to the light flickering, he said the 'dashcam' video showed a solid light whereas on the day in question, he saw a light indicating.

[41] Mr Magagula was then asked when he noticed the light flickering and he stated that this was when he was approximately 500 metres from the truck. His explanation was that after the van had passed, he turned his head to the left and saw and indicator and it was at that moment when he made contact with the truck.

[42] During cross-examination, Mr Magagula confirmed:

42.1. he saw the stationary truck when he was 500 metres away;

42.2. the truck was in the road;

42.3. he saw a light indicating.

[43] Mr Magagula repeated that he was blinded by the bright light of the oncoming van. He further repeated that the van was not in the 'dashcam video footage. He could not explain how the 'dashcam' footage was recorded.

[44] He repeated that the bright light was on from the first time he saw it on top of the road. He explained that he was approaching the truck when he was blinded and this was 200 metres behind the truck. He stated that he reduced speed when the van's light blinded him.

[45] He testified that he was familiar with the road, having driven on the route since 2013 and he knew the route very well.

[46] Mr Magagula testified during cross-examination that he saw the stationary truck when he 500 metres away from it. He added that the front lights of the truck were not on. He conceded that at the time he had noticed that the truck had broken down. Counsel for the defendant put it to him that if he had used the brakes of his truck at that time already, he would have avoided the collision. Mr Magagula responded by stating that he would not have applied the brakes when he was 500 metres from the truck.

[47] He was then asked what he did to avoid the collision and he responded by stating:

47.1. he reduced his speed from 80 kilometres per hour to 74 kilometres per hour;

47.2. at the time he reduced speed he was 200 metres away form the truck;

47.3. at this time the van that was approaching was blinding him;

47.4. he had planned to pass the truck on the right-hand side.

[48] When asked about the purpose of a triangle, Mr Magagula he stated that if a vehicle has experienced a problem when stationary in the road or outside the road, one will place a triangle behind such vehicle. Furthermore, the triangle notifies other users of the road that the vehicle they are approaching has a problem.

[49] When Counsel for the defendant put it to him that he could have reduced his speed further, Mr Magagula explained that he could have but he estimated that the van was would pass quickly and then he could have the opportunity to pass on the truck on the right. He stated further that the van was moving fast and he thought he could pass the truck but unfortunately, he was on the truck.

[50] Mr Magagula testified that the road on which the collision occurred was on an uphill and the van was coming down the hill and he was traveling up the hill. One cannot see far into the road because of the incline. The truck had broken down close to the top of the hill but was unable to give a distance between the truck and the hill.

[51] When put to him that he could have stopped his truck behind the defendant's truck he stated that he was not going to make it and he had no reason to stop because he did not have a breakdown. Finally, during cross-examination, he stated that the driver of the defendant's truck caused the collision through his, the defendant driver's conduct.

[52] Mr Magagula during re-examination stated that the gradient of the hill was approximately 45 degrees.

[53] When asked by plaintiff’s Counsel whether there was any reason why he did not slow down more than he did before the collision he stated that his estimation was that when the van passed, he would still pass the defendant's truck safely.

[54) After plaintiff's Counsel closed the plaintiff's case Counsel for the defendant closed the defendant's case in respect of the Counterclaim.

ANALYSIS AND EVALUATION

[55] There is only one version before the Court and that is the version of the plaintiff. The defendant decided not to call any witnesses.

[56] It is trite that the plaintiff bears the onus to prove that the defendant driver's negligence caused the collision or at least contributed to the cause of the collision to succeed with its claim. Similarly, it is trite that the defendant bears the onus in respect of the counterclaim to prove that the plaintiff driver's negligence caused the collision or at the least contributed to the cause of the collision to succeed with its counterclaim.[2] What is also trite is that the standard of proof in all civil claims, such as this case, is on a preponderance of probabilities.

[57] I align myself with the instructive guideline and principle expressed by Van der Linde J in Bainton v Raf:[3]

"... the driver of a vehicle does not act reasonably when he allows his vehicle to be stationary on a public highway without alerting other road users to the danger of the stationary object right in the way of their travel"

[58] In this case I will replace some of the words of Van der Linde J by stating that a driver does not act reasonably where he allows his vehicle to be stationary and protruding into a public road 'without alerting other road users to the danger of the object right in the way of their travel'. The logical question to be asked is: what could the driver of the defendant's vehicle have done? In my view, the defendant's driver could have placed a triangle in the road as required by the National Traffic Regulations and furthermore could have put his hazard lights on. On all the evidence before this Court, defendant's driver did none of these things.

[59] This, however, is not the end of the matter. Can it be argued that the plaintiff's driver was also negligent which negligence contributed to the collision? Now it must be stated that Mr Magagula was not the best of witnesses but he was forthright, honest, and made concessions where he was asked to. He conceded that he could have started braking 500 metres away from defendant's truck but chose not too because he estimated that after the van had passed, he would be able to pass the defendant's truck. This conduct amounts to negligence on his part. In my view, this does not take away the negligence of the defendant's driver as expressed above.

[60] I need to say something regarding Mr Clack's evidence. This evidence was also not one of the best when it comes to reconstruction evidence. It is not clear why he did not visit the scene of the collision, why he did not at least, speak to the driver of the plaintiff’s truck and why he did not inspect the damages sustained by the two trucks involved in the collision. What can be stated, however, is that he was clear in what is expected of a driver on a public road insofar as the traffic legislation is concerned. The 'dashcam' video footage used by Mr Clack is video footage that the Court itself could follow.

[61] As stated above, the defendant chose not to call any witnesses even though a counterclaim had been filed. No reason was given for this approach and consequently the Court is left with the evidence of the plaintiff, which I have stated above is credible and permits this Court to come to a conclusion as to the negligence of the drivers of the two trucks involved in the collision.

[62] I am of the view that the driver of the defendant's truck cannot be held solely responsible for the cause of the collision but that he was 80% negligent in causing the collision and the plaintiff’s driver is 20% negligent in causing the collision.

CONCLUSION

[63] Accordingly, the defendant is liable for 80% of the plaintiffs proven or agreed damages and the plaintiff is axiomatically, liable for 20% of the defendant's proven or agreed damages.

COSTS

[64] It is trite that a Court has a discretion in awarding costs but this discretion must be exercised judicially. It is also trite that costs follow the result unless a deviation is appropriate in each case. I can see no reason for deviating from the norm that costs follow the result, the plaintiff having been substantially successful.

[65] Accordingly, the following order will issue:

a). the defendant is liable for 80% of plaintiff’s proven or agreed damages;

b). the plaintiff is liable for 20% of the defendant's proven or agreed damages;

c). the defendant shall pay the plaintiff's costs of suit.

G ALLY

ACTING JUDGE OF THE HIGH COURT

GAUTENG DIVISION OF THE HIGH COURT, PRETORIA

Electronically submitted therefore unsigned

Delivered: This judgement was prepared and authored by the Judge whose name is reflected and is handed down electronically by circulation to the Parties/their legal representatives by email and by uploading it to the electronic file of this matter on Caselines. The date for hand-down is deemed to be 29 November 2024.

Date of hearing:

25 and 26 July 2023

Date of Heads of Argument: 10 August 2023

Date of judgment:

29 November 2024

Appearances:

Attorneys for the Plaintiff: ROACH ATTORNEYS

kira@roachattorneys.co.za

Counsel for the Plaintiff: Adv.C.Joubert

Attorneys for the Detendant: ADAM PRINSLOO ATTORNEYS

Ettienne@ngov-attomeys.co.za

Counsel for the Defendant: Adv. E. Coleman

[1] Caselines: Section: 009- 22

[2] Pillay v Krishna 1947 AD 946 at 952-953; South Cape Corporation (Pty) Ltd v Engineering Management Services 1977 (3) SA 534 A at 548 A-B

[3] 2018 GPJHC at para 7