MEC for Roads And Transport Limpopo Provincial Government v Stirk and Another (35189.2010) [2013] ZAGPPHC 346 (27 November 2013)

IN THE NORTH GAUTENG HIGH COURT PRETORIA (REPUBLIC OF SOUTH AFRICA)

CASE N0.35189/2010

DATE: 27 November 2013

NOT REPORTABLE

Not of interest to other Judges

Revised

In the matter between:

THE MEC FOR ROADS AND TRANSPORT

LIMPOPO PROVINCIAL GOVERNMENT..................................................Applicant

and

RONALD CHARLES STIRK …..............................................................1st Respondent

WILLEM ADRIAAN SCHUTTE...........................................................2nd Respondent

CORAM EBERSOHN AJ

APPLICATION HEARD ON 15 NOVEMBER 2013

JUDGMENT HANDED DOWN ON 27 NOVEMBER 2013

JUDGMENT ON APPLICATION FOR LEAVE TO APPEAL

EBERSOHN AJ.

[1] In this application for leave to appeal the parties will be referred to as in convention.

[2] The two plaintiffs sued the defendant for damages for injuries they sustained when the Idv of the first plaintiff left the road and rolled. By agreement between the parties the merits and quantum were separated and this court only had to adjudicate the merits. The court heard evidence and there after gave judgment in favour of the two plaintiffs as it found 100% negligence on the part of the defendant regarding the incident and referred the fact that none of the plaintiffs wore safety belts at the time of the incident to the court which eventually has to adjudicate the quantum.

[3] The defendant applied for leave to appeal. Framed in a rather repetitious manner, one of the aspects it wanted to appeal on being the speed the first plaintiff allegedly drove his Idv and in this regard counsel for the defendant argued that it was 100% the cause of the Idv leaving the road and injuring the two plaintiffs. This was referred to and then rather inelegantly referred to again not less than eight times more as an alleged ground of appeal.

[4] It makes it impractical to deal with the alleged grounds set out in the application for leave to appeal paragraph by paragraph.

[5] The only two aspects needing canvassing in this judgment is the evidence of the speed of the first plaintiff’s Idv and the alleged failure of the first plaintiff to keep a proper lookout.

[6] The court, firstly, deals with the speed the first plaintiff was driving his Idv at. It was the evidence of the first plaintiff that he was aware of the many potholes on the particular road, sometimes in patches but with safe stretches of road between them and that he travelled this road about three times per month, that his speed where there were no potholes was between 100 to 120 kph and that he reduced and adjusted his speed accordingly when there were potholes about.

[7] It was the defendant’s contention that the first plaintiff drove at too high a speed when the left rear wheel of his Idv struck a pothole a violent blow. The defendant persisted in trying to present the evidence of the first plaintiff that when his vehicle struck the pothole it was at a “too high speed.” The defendant called only one witness namely a Mr. van Vuuren who testified about the field he is trained in and that was roads, its design etc. and nothing about vehicles and driving a vehicle.

[8] The version of the first plaintiff about his speed was that just before his Idv reached the pothole, of which he was unawares, he slowed his speed down and was driving a few car lengths behind another vehicle when a big tipper approached from the front and because of a pothole on its side of the road veered over to its right into the lane the first plaintiff and the vehicle in front of it was driving. The first plaintiff was wary of the movements of the tipper which required his attention and when the tipper crossed with his Idv he saw from the corner of his eye a pothole becoming visible as the vehicle in front of his Idv passed over it and as the first plaintiff actually had less than a second he could not take steps to try and evade the pothole. The vehicle in front of him did not reduce its speed when it neared the pothole, did not apply its brakes, and gave no indication that there was danger ahead and managed to steer a path past the pothole. The defendant’s counsel argued, not convincingly, that the first plaintiff on his own evidence was negligent but in exactly which respect he could not say.

[9] It was, secondly, the defendant’s case that the first plaintiff was also negligent in not keeping a proper lookout and its counsel argued, in a rather simplistic manner, that the pothole should have been visible at least from a distance of 100 metres as per the photographs before the court. What the counsel for the defendant would not understand was that there was a vehicle between the first plaintiff’s Idv and the pothole which vehicle obscured the pothole from the view of the first plaintiff.

[10] It was also the case of the defendant that the pothole was not the cause of the rear of the first plaintiff’s vehicle later suddenly sliding out to the left and the right front of the Idv flicking to the right in a gyrational movement, leaving the road, rolling and counsel for the defendant argued that it was the high speed of the first plaintiff which caused this but he failed in his argument to connect the alleged too high speed with the fatal movements the Idv made. There is no merit in his contention. The undisputed fact that the thread of the tyre becoming loose and falling off belies the latter argument in any case.

[11] The first plaintiff called an expert, a Mr. Grobbelaar, who majored in tyre construction and damage to tyres, suspensions of vehicles and other aspects of vehicles relating to accidents and is also a proficient motor rally driver and an accident examiner for about two decades. His evidence was strong, clear and lucid that in all probability the first pothole the Idv drove through damaged the inner carcass of the tyre through the thread, that there after rotational forces consequently caused a weakening of the carcass and gradually worked the thread loose from the outside of the carcass and that the second pothole the Idv drove through finally damaged the carcass and caused the thread to fall off and -the carcass to let go of the compressed air inside the carcass, causing the sudden slipping of the left rear tyre which was reduced by now to a smooth flat casing with no grip on the tar surface, to the left as the wheel lost grip on the surface of the road and the gyrational forces caused the front of the Idv to flick to the right, to drive off the road and roll. He stated that there could on the objective facts be no other explanation. He was not shaken in cross-examination neither did the defendant present in evidence any other possible explanation for the cause of the fatal movements of the Idv.

[12] As stated already the defendant called only one witness, a Mr. van Vuuren, but he was an expert in the design of roads and could not assist the court much with regard to what happened in so far as the Idv of the first plaintiff was concerned. He testified that he, over a period of time, though, lost several tyres due to damage by potholes.

[13] It is not necessary to deal with each argument advanced as an alleged ground of appeal. There is no substance in any of them.

[14] It is clear that there are no prospects of any other reasonable court coming to another decision and conclusion and that the application

for leave to appeal must be refused. Costs must follow the event.

[15] The following order is made:

“The application for leave to appeal of the defendant is dismissed with costs.”

P.Z. EBERSOHN AJ

ACTING JUDGE OF THE HIGH COURT

The applicant’s counsel Adv. M.P. Phaswane

The applicant’s attorney State Attorney

Ref. MR. J J LE ROUX

TEL. 012 309 1566

REF. 4280/2010/Z5

The respondent’s counsel Adv. C.F.J. Brand

The respondent’s attorneys VAN RENSBURG-MOLOTO ATTORNEYS

C/O MARITZ SMITH EEDEN INC

TEL. 012 x 342 000

REF. M2309.08/AS/ES