Ndlovu v MEC for Police Roads and Transport: Free State Province and others (3682/2017) [2021] ZAFSHC 139 (24 May 2021)

IN THE HIGH COURT OF SOUTH AFRICA,

FREE STATE DIVISION, BLOEMFONTEIN

Case number: 3682/2017

In the matter between:

MATUTUZELA JOHANNES NDLOVU Plaintiff

and

MEMBER OF EXECUTIVE COUNCIL FOR POLICE

ROADS AND TRANSPORT: FREE STATE

PROVINCE First Defendant

BARNIES KONSTRUKSIE CC Second Defendant

MATJHABENG MUNICIPALITY Third Party

HEARD ON: 23, 24 & 26 FEBRUARY, 29 & 30 MARCH AND 15 APRIL 2021

JUDGMENT BY: MAJOSI, AJ

DELIVERED ON: 24 MAY 2021

I INTRODUCTION

[1] The plaintiff instituted action proceedings against the defendants for damages arising from a motor vehicle accident on 6 August 2014 on the R 34 road between Riebeeckstad and Tshepong Mine. The particulars of claim alleged that the first defendant had a legal duty to ensure that the road is maintained and free of hazards and their failure to do so entailed that they were liable for all negligent acts or omissions by its members or employees of the department.

[2] This included their failure to implement a system to detect any hazards or dangerous condition on the road and if roadworks is undertaken, to ensure that steps are taken to give sufficient warning to members of the public in the form of road signs, warning lights or flagmen. This legal duty also extended to second defendant and its employees as they were appointed by the first defendant to undertake roadworks on the said road.

[3] The plaintiff alleged that the accident occurred due to the sole negligence of the defendants as the first defendant or alternatively the second defendant, would have dug a trench across both lanes of the road, left it uncovered and thereby created a danger to road users without any warning in the form of road signs, warning lights or employees to warn road users and members of the public of the hazard and thus failing in their legal duty to maintain the road. [1]

[4] In terms of Rule 33(4) of the Uniform Rules of Court it was ordered at the judicial pre-trial conference that the trial will proceed on merits only on the disputes contained in paragraph 1-5 of the particulars of claim (negligence) read with the corresponding pleas and that all other disputes shall stand over for later adjudication.[2]

[5] It was also noted that Matjhabeng Local Municipality did not file any intention to defend the Third Party notice or any plea thereto despite being served by the first defendant. This is the subject matter of this court adjudication which was confirmed by the plaintiff and both defendants before the trial commenced.

II PARTIES

[6] The plaintiff is Matutuzela Johannes Ndlovu, a major male residing in Riebeeckstad and employed as mechanical engineer at Tshepong Mine, Harmony Gold Mine, Welkom, Free State Province.

[7] The first defendant is a Member of the Executive Council for Police, Roads and Transport: Free State Province in his official capacity in terms of Section 2 of the State Liability Act, 20 of 1957, Bloemfontein Free State Province.

[8] The second defendant is Barnies Konstruksie CC, a closed corporation duly registered and incorporated in terms of the Statutes of the Republic of South Africa with a registered address in Welkom and main place of business situated in Riebeeckstad, Free State Province.

III ISSUE

[9] The plaintiff called three witnesses and at the end of his case, counsel for the first and second defendants applied for absolution from the instance as they submitted that there is no evidence before court whereupon a reasonable court could find for the plaintiff should no evidence be adduced by the defendants. This application was opposed by the plaintiff.

IV EVIDENCE

[10] The plaintiff testified that on 6 August 2014, he drove his motor vehicle along the R 34 road between Riebeeckstad and Tshepong Mine between 05h45 and 06h00. It was still dark and he used his vehicle headlights to illuminate the road and drove at a speed of approximately 80 km per hour. Whilst enroute, he saw a heap of sand in the middle of the road with a blue and white sign with an arrow pointing to the right on top of it.

[11] He swerved to the right to avoid the heap of sand and a trench across both lanes of the road. He lost control of his vehicle and his vehicle left the road surface and came to a stop facing the direction of the road. He opened his door to exit the vehicle but after walking a distance of two metres, he fell down and lost consciousness. He was taken to Medi Clinic per ambulance an hour later where he was admitted and treated for his injuries and was discharged after three days.

[12] He estimated that his vehicle came to a standstill 50 metres away from the heap of sand which was between 1 and 1.5 metres high and stretched diagonally across the road surface from the left lane to the right lane. He also stated that there were no warning signs/flagmen/lights showing that the road is under construction or even signs indicating what the speed limit is on the said road.

[13] During cross - examination by the defendants’ it transpired when he observed that the sand heap with the blue and white round sign on top of it he was about 40 metres away. He could not say with certainty if he applied his brakes and stated he thought he did. He could also not say if he reduced his travelling speed. He could not explain why an affidavit in support of an earlier condonation application did not refer to a heap of sand but only a trench.[3]

[14] When he was confronted with the Accident Report (AR) compiled by Constable Mtuzi, he distanced himself from what was contained therein. He disputed the time of the accident, that road signs were present and clearly visible and that the said trench was in the middle of the road. He conceded however that the description of the accident only indicated a trench not a heap of sand and that a blue and white sign was not indicated as present as per his testimony. [4]

[15] He also he did not see any construction workers or signage on the scene bearing any reference to any of the defendants. He also conceded that despite observing roadworks adjacent to the road the

previous day, he did not deem it fit to reduce his speed as there were no signs regulating the speed limit.[5]

[16] Constable Mtuzi, stationed at Odendaalsrus SAPS testified that he reported for duty at 05h30.He received a call from one of his crew members, Constable Dlamini to pick her up from Riebeeckstad as she had no transport. He booked out a state vehicle and left Odendaalsrus at 05h40 to fetch her. Upon their return, he used the R 34 road and travelled at a speed of 80 km per hour. After passing the off ramp for Kutlawanong Location, he noticed a white motor vehicle adjacent to the road.

[17] Whilst approaching the scene he also noted that there was a trench with a sand heap in the middle of the road. He slowed down and left the tarred road surface and proceeded to the direction of the white motor vehicle. He concluded that the vehicle had rolled as he observed damages to the outside of the vehicle and that one airbag had been deployed. He noted the plaintiff lying on the ground not far from the vehicle and conversed with him to obtain details of the accident.

[18] The accident was reported to his police station and a call was also made for an ambulance to render medical assistance on the scene. Constable Dlamini was tasked with directing traffic on the scene. Later, towing services arrived to tow the vehicle away and they left the scene just before 07h00. He completed an Accident Report Form according to his observations at the scene and information received from the plaintiff.

[19] In cross - examination it transpired that the said AR did not reflect that:

a. the trench was across the road surface but instead that it was depicted as being in the middle of the road;

b. the serrated edges of the trench was illustrated without any reference to a heap of sand or a round blue and white sign put on top of it;

c. no skid marks or brake marks were observed on the road surface;

d. there was any damage to the vehicle.

[20] Upon being confronted with the contents of his personal pocket book, the SAPS 176 (Accident Register Book), SAPS 15 (Parade Attendance Register) dated 6 August 2014 and a SAPS 132(b) (Vehicle register) it appeared that these registers contradicted his viva voce evidence that he was at the scene of the accident.

[21] Firstly, his pocket book, did not make reference that he was attending to the accident scene of the 6 August 2014. It only made reference to the fact that he reported for duty free of injuries and he attended the parade held by his Commanding Officer Khatholo at 05h45 and at 06h00, he booked out a firearm with magazines.

[22] Secondly, the attendance register indicated him to be present at a parade that took place at 06h00 on 6 August 2014 at Odendaalsrus Police state under the very same Commanding Officer. Thirdly, the vehicle register revealed that he booked out a state vehicle at 06h10 with registration number BSD 518 B on the said date.

[23] He could not explain why none of the above - mentioned official documents made reference to the accident. The only explanation that he provided is that state vehicles are used to pick up colleagues and that he does not know why he was marked as present at the parade when he was busy attending to the accident scene. He also could not explain why the accident was not noted in his official pocket book where the actual summary of his official duties ought to be recorded as it is provided to him for that actual purpose.

[24] Constable Dlamini also testified that on the said day she was picked up by Mtuzi with a state vehicle. No request was made from her side to be picked up as the practice was that she would be picked up from her place of residence by the driver of crew for her shift. Whilst enroute to their police station on the R34 road, she observed a heap of sand causing an obstruction in the road. A stationary vehicle was also observed on the side of the road which had left the tarred road surface and was located on the gravel shoulder of the road.

[25] According to her, Mtuzi reduced his speed and safely left the tarred road where their vehicle was brought to a stop. Here she observed a male lying on his back behind the vehicle. Mtuzi spoke to him and he who later became known to her as the plaintiff. She left them there and went to direct traffic. She also encountered the wife of the plaintiff on the scene.

[26] At some point she noted that there was a trench behind the heap of sand and it was approximately a metre deep and a metre wide and stretched from one side of the road to the other protruding slightly into the gravely shoulder of the road. Tyre tracks as per Exhibit A was noted. She confirmed that between herself and Mtuzi, their police station was contacted and an ambulance was called as the plaintiff appeared to be injured.

[27] She like Mtuzi, could not explain why they were both marked present at a parade at 06h00 at Odendaalsrus Police Station as per the attendance register or why it was endorsed that Mtuzi had booked out a firearm, magazines and a state vehicle at the very same time that they were attending to the scene of the accident on the R34, kilometres away from their work place.

[28] She also could not explain why she as a police official knowing that the obstruction had caused one accident already, why she left the scene with the possibility of another accident occurring or why they did not deem it fit to stay there and further direct traffic. She also confirmed that no investigation had been done by themselves to ascertain who dug up the road or who was responsible for the trench on the R34. She was also unaware of any further investigations being done regarding the accident.

[29] When she was specifically asked as to why the accident report did not refer to any brake or skid marks on the scene she indicated that Mtuzi completed it without any input from her side. Upon their arrival at the police station, she completed the Accident Register Book with reference to the time of accident provided to her in the form of the AR as 05h15 and the particulars of the plaintiff. She did not peruse the said report beyond those details. Her evidence concluded the plaintiff’s case.

V ABSOLUTION FROM THE INSTANCE

[30] The test for absolution to be applied by a trial court at the end of a plaintiff's case was articulated in Claude Neon Lights (SA) Ltd v Daniel 1976 (4) SA 403 (A) at 409G - H:

“… (W)hen absolution from the instance is sought at the close of plaintiff's case, the test to be applied is not whether the evidence led by plaintiff establishes what would finally be required to be established, but whether there is evidence upon which a Court, applying its mind reasonably to such evidence, could or might (not should, nor ought to) find for the plaintiff. (Gascoyne v Paul and Hunter 1917 TPD 170 at 173; Ruto Flour Mills (Pty) Ltd v Adelson (2) 1958 (4) SA 307 (T).)”

[31] Gordon Lloyd Page & Associates v Rivera and Another 2001 (1) SA 88 (SCA) at paragraph 2 H-J Harms J said the following:

“… This implies that a plaintiff has to make out a prima facie case - in the sense that there is evidence relating to all the elements of the claim - to survive absolution because without such evidence no court could find for the plaintiff (Marine & Trade Insurance Co Ltd v Van der Schyff 1972 (1) SA 26 (A) at 37G - 38A; Schmidt Bewysreg 4th ed at 91 - 2). As far as inferences from the evidence are concerned, the inference relied upon by the plaintiff must be a reasonable one, not the only reasonable one (Schmidt at 93).

The test has from time to time been formulated in different terms, especially it has been said that the court must consider whether there is 'evidence upon which a reasonable man might find for the plaintiff' (Gascoyne (loc cit)) - a test which had its origin in jury trials when the 'reasonable man' was a reasonable member of the jury (Ruto Flour Mills). Such a formulation tends to cloud the issue.

The court ought not to be concerned with what someone else might think; it should rather be concerned with its own judgment and not that of another 'reasonable' person or court. Having said this, absolution at the end of a plaintiff's case, in the ordinary course of events, will nevertheless be granted sparingly but when the occasion arises, a court should order it in the interests of justice.”

[32] In my view, it may be gleaned from these cases the pertinent question to answer when such an application is brought at the end of the plaintiff’s case is, is there any evidence on which a reasonable court may find for the plaintiff and if the defendant immediately closes his case, is there such evidence upon which the court ought to give judgement in favour of the plaintiff?

VI DISCUSSION

Arguments

[33] Counsel for the first defendant contended that the plaintiff’s case for negligence relies heavily on its legal duty to members of the public to maintain the road and prevent hazardous or dangerous conditions in the road or road surface. More specifically, that the department (first defendant) dug a trench in the road which created a danger to road users and in as such and failed to ensure that its contractor (second defendant) covered it and failed to warn members of the public of the dangerous road surface via warning lights or signs and flagmen.

[34] It was contended that the evidence lead by the plaintiff did not identify the first defendant or any of its employees as the persons responsible for digging the offending trench. The plaintiff during his testimony also did not dispute as pleaded that this legal duty was assumed by Matjhabeng Municipality as per their unopposed third party notice and that this local authority appointed the second defendant to do the actual work.

[35] It was asserted that they had no case to answer as the plaintiff appeared to be the sole cause of the accident as he:

a. was evasive as to whether he reduced his speed and kept a proper look out;

b. was not sure if he applied his breaks but thinks he did and could not say if it was applied hard or soft;

c. if he applied brakes hard he could have stopped as his vehicle was road worthy and he could have avoided the accident;

d. the evidence of Mtuzi and Dlamini demonstrated that if the plaintiff had applied his brakes and slowed down, he could have avoided the alleged obstruction and moved safely to the side of the road.

e. the accident report made mention that all road signs were visible and that no skid/brake marks were observed on the road surface which was contrary to the evidence presented.

Furthermore, that the evidence of the plaintiff did not once substantiate the allegations in the particulars of claim that the first defendant dug the trench.

[36] Counsel for the second defendant argued that evidence presented by the plaintiff was of such a nature that no reasonable court could find for the plaintiff should the second defendant not adduce evidence. They submitted firstly that the plaintiff could not even indicate where the said trench, if it existed, was dug and by whom and it cannot be inferred that the second defendant was responsible for same as the incident occurred before 06h00 as they specifically pleaded that they only commenced work after 07h00.

[37] Secondly, none of the witnesses testified how they concluded that that the dangerous situation would have been caused by the second defendant (digging the trench) as they did not lead any evidence that workers or machinery belong to the second defendant caused the alleged accident. The evidence of the two constables were at odds with the official documents of Odendaalsrus SAPS denoting their presence at the said police station and not the R 34 road.

[38] Thirdly, they were also in support of the first defendant’s argument that the plaintiff via its witnesses did not prove negligence as alleged in its particulars of claim on the part of the second defendant or first defendant for that matter due to the concessions made as indicated in paragraph 34 herein identifying him as the sole cause of the accident. Moreover, the AR report completed by Mtuzi specifically depicted road signs being clearly visible with no sand heap insight or brake marks.

[39] Counsel for the plaintiff contended that the said application ought to be dismissed with costs as the credibility of witnesses do not play a role at this stage and that the court can at this stage draw the inference from the pleadings that the legal duty had passed to the second defendant as they would have admitted in their plea that they did work on the R 34 that day albeit after 7am. Furthermore, that this roadworks was not just observed by the plaintiff, but also by Mtuzi and Dlamini.

[40] I was referred to Marine & Trade Insurance Co Ltd v Van Der Schyff 1972(1) SA 26 (A) more specifically the dicta on page 38 paragraphs C – E which reiterated the principles laid down in Gordon Lloyd Page & Associates v Rivera and Another supra mentioned herein. It was asserted that there is sufficient evidence for the court to infer that the defendants undertook roadworks on the R 34 and due to their negligence in not erecting warning signs/ lights or flagmen, caused the motor vehicle accident of the plaintiff.

Evaluation

[41] The plaintiff when he testified could not give a clear indication regarding the exact location of the accident save to say that it occurred on the R 34 road enroute to his workplace, near Tshepong mine. Mtuzi and Dlamini evidence did not shed any light on this location either. I therefore cannot conclude it is the same location where the second defendant later that day, installed the said pipe.

[42] The plaintiff mentioned that on the day of the incident, he did not observe any workers or heavy machinery on the scene that could be identified as belonging to the first or second defendants to confirm that defendants were indeed involved in digging the trench which presented a dangerous situation as alleged in his particulars of claim. This was despite him being referred to the relevant portions of the particulars of claim and Rule 37 minutes during cross –examination alleging same.

[43] The plaintiff wants this court to infer that as the second defendant’s appointment to install a water pipe came about due to the first defendant’s legal duty to maintain and upkeep the R 34, that the first defendant, alternatively the second defendant, could have been the only ones who dug the trench. This cannot be correct as the first defendant in their plea denied this allegation and served a third party notice on Matjhabeng Local Municipality, who was in fact, the local authority who appointed the second defendant.

[44] If one looks at the pleadings, more specifically that of the second defendant, they indicated that they were appointed by the local authority and only commenced work with its workers on the R34 after 7h00 road and denied they undertook roadworks at the time of the accident hence none of their workers were observed by the plaintiff or the two constables.

[45] The plaintiff thus knew before the matter was set down for trial that this aspect will have to be canvassed when evidence is adduced as it was already determined at the adjudication of the trial court would be confined to negligence and that the rest of the adjudication will stand over until such is determined.

[46] The evidence presented by the plaintiff in totality could not dispute this assertion as they had already left the scene before the stipulated time. Even if I am wrong in this view, the evidence of the plaintiff and the two constables was not convincing in any shape or form. The plaintiff himself was highly evasive regarding him applying brakes or reducing his speed or why the accident report indicated visible road signs or the absence of a sand heap.

[47] The evidence of the police officers could not account for the discrepancy of their whereabouts as contradicted by official SAPS documents. Although they insisted that they were at the scene of the accident, they could not provide an explanation for this material contradiction. This left serious doubts in my mind that they were in fact on the accident scene or if they were in fact at the Odendaalsrus Police Station, attending a parade being held by their Commanding Officer and Mtuzi thereafter, booking out his firearm and state vehicle.

[48] The plaintiff was very specific pertaining to the time of the accident would have occurred any time from 05h45 and 06h00 and he would have only left the scene when it was just before 07h00. In my view, I cannot infer that the said hazard on the R34 was caused by the defendants or that there is a causal link between the accident and alleged failure by the defendants to comply with their legal duty.

[49] In the absence of such evidence, I cannot conclude that the plaintiff presented any evidence which established on a prima facie basis, on which I may find in its favour or in the event the defendants do not adduce evidence. The defendants’ application for absolution from the instance must therefore succeed without interfering with the usual cost order which follows the successful party.

VII ORDER

[50] Accordingly, I make the following order:

1. Absolution form the instance is granted with costs.

OR MAJOSI, AJ

On behalf of Plaintiff: Adv. Zietsman

Instructed by: Honey Attorneys

BLOEMFONTEIN

Ref: ADW/mb/I25348

On behalf of First Respondent: Adv.BS Mene

Instructed by: Office of the State Attorney

Bloemfontein

Ref: 610/201700856/P16N

On behalf of Second Respondent Adv. HJ Cilliers

Instructed by: Phatshoane Henney Attorneys

Ref: N1466/0733

[1] Indexed Pleadings, P. 10, Particulars of Claim, paragraph 4.

[2] Judicial Pre- Trial Conference held 26 October 2020, Paragraph 1.

[3] Transcribed Record of Proceedings 23 February 2021, P 81 para 5 – 15.

[4] Indexed Trial Bundle, Accident Report.

[5] Ibid P.101 and 102.