Nel v Minister of Safety of Security and Another (12/2005) [2005] ZANWHC 85 (17 November 2005)

IN THE HIGH COURT OF SOUTH AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION)

Civ App: 12/2005

In the matter between:

J C NEL APPELLANT

and

MINISTER OF SAFETY & SECURITY 1ST RESPONDENT

J P WALLIS 2ND RESPONDENT

JUDGMENT

LANDMAN J:

[1] The appellant sought condonation for his failure to prosecute the appeal timeously. This application was granted but I must record this Court’s disapproval of the manner in which the appellant’s Lichtenburg attorney communicated with the clerk of the court and the prima facie defamatory remarks which he made about the presiding magistrate.

[2] The appellant, Mr J C Nel, issued summons against respondent, the Minister of Safety & Security for the North West Province, on 29 October 2003. He claimed damages suffered as result of a motor vehicle collision which occurred on 27 June 2003 on the Lichtenburg-Biesiesvlei Road, district Lichtenburg.

[3] The respondent pleaded to the summons. On 2 December 2004 the case went on trial.

[4] Trial:

It seems that there was an agreement between the parties that the question of the merits and the quantum be separated from one another in terms of Rule 29(4) of the Magistrates Court Rules and that the question of quantum be postponed sine die. The parties also agreed that the ownership of plaintiff’s vehicle would be determined by the court determining the quantum.

[5] Common cause facts

It was common cause that:

The appellant and the respondent are as cited in the particulars of claim;

A collision occurred between motor vehicle with the registration number DSC977NW and motor vehicle BLG468B driven by Mr J P Wallis;

J P Wallis was under the influence of liquor.

[6] Issues in dispute

The issues in dispute were:

(a) Whether, J P Wallis, while driving motor vehicle BLG468B, was acting within the course and scope of its employment with the respondent. The respondent denies that J P Wallis acted within the course and scope of its employment. It pleads that J P Wallis was driving under the influence of liquor at the particular date and for that reason had lost “State cover” in terms of “treasury regulations”;

(b) Whether the collision was caused by the negligence of Mr J P Wallis.

[7] Judgment

After hearing evidence the Magistrate handed down the following judgment:

“Having gone through the Heads of Argument by both legal representatives the following judgment based also on evidence tendered before court:

There is contributory negligence on the part of the Plaintiff.

No proper look-out was kept before turning by Plaintiff which duty he has.

No evidence adduced or tendered before court to the effect that 2nd Defendant was Drunk, court unable to make such a finding.

The negligence of driver overtaking in failing to observe the turning vehicle does not absolve the driver of the turning vehicle from the consequences of her negligence in turning without paying attention to on coming traffic both from behind and in front.

The degree of negligence will be decided, upon argument relating to apportionment of damages, being discharged.

Matter by agreement postponed sine die.”

[8] Notice of Appeal

The following findings of facts or rulings of law are appealed against:

“1. The Honourable Magistrate erred in not giving judgment in favour of the plaintiff. The Honourable Magistrate should have given judgment in favour of the plaintiff;

The Honourable Magistrate erred in determining that the plaintiff was contributory negligent to the occurrence of the collision. The Honourable Magistrate should have found that the plaintiff was not the driver of vehicle DSC977NW but was the owner thereof. The Magistrate should have found that the driver of the vehicle was Mrs Vidette Nel;

The Honourable Magistrate erred in determining that he was entitled to make a ruling on contributory negligence at all, in the light of the fact that Mrs Vidette Nel was not a party to the proceedings;

The Honourable Magistrate erred in finding that the collision took place as a result of the plaintiff making a turn to the right into a gravel road. The Magistrate should have found that:

Mrs Vidette Nel made a turn into the gravel road and not the plaintiff;

4.2 The turn into the gravel road was not causally linked to the collision;

The Honourable Magistrate erred in finding that the Plaintiff did not exercise a proper lookout before executing the turn to the right. The Honourable Magistrate should have found that:

The right hand turn was executed by Mrs Vidette Nel and not the plaintiff;

Mrs Vidette Nel did keep a proper lookout before making a right hand turn;

The Honourable Magistrate erred in not applying the principles laid down in Allen v Standard General Versekeringsmaatskappy Beperk 1983 (1) SA 628 (W) where the court found that it is not the duty of a driver who has kept a proper lookout and given adequate signals to defer his turn until he has made certain that possible unseen traffic obscured by vehicles behind him who have observed his signals, have also observed his signals. The Honourable Magistrate should have found:

6.1 That Mrs Vidette Nel (and not the plaintiff) did give adequate signals;

6.2 That Mrs Vidette Nel did make sure that her signals were observed by the vehicle directly behind her;

6.3 That there was no duty on Mrs Vidette Nel to ensure that any vehicles, behind the vehicle directly behind Mrs Vidette Nel, did also observe her signal;

The Honourable Magistrate erred in finding that the degree and percentage of negligence by the plaintiff should be determined at the hearing of the quantum. The Honourable Magistrate should have found that:

7.1 the Magistrates Court (he) is not competent to make an order of contributory negligence against the plaintiff;

in principle, the degree and percentage of negligence is a question related to the merits of the case and cannot be determined at the hearing of the quantum of the matter;

The Honourable Magistrate should have given judgment in favour of the plaintiff with costs.”

[9] Evaluation

Mrs Nel, apparently a relative of the plaintiff, was travelling home on 27 June 2003 at 17:00 from Lichtenburg to Sannieshof. The road leading to her home is on the right hand side of the road. She switched on her right indicator as she passed two Katbos trees which are situated 135 metres from the point where she turns right into her road.

[10] Mrs Nel saw her brother-in-law’s vehicle behind her. His vehicle’s indicator was on. This indicated that he too intended to turn to his right.

[11] The tar road does not run straight. There is a blind spot at 65 metres from the turn off. But Mrs Nel said a following vehicle can see her indicator. She turned and a collision took place when the front wheels of her vehicle were off the tar road. Her vehicle came to a halt 250 metres from the point of collision.

[12] The road has no markings. There is a sign that a railway crossing is to be found 500 metres ahead.

[13] Before turning right Mrs Nel looked in her mirror but only saw her brother-in-law’s vehicle behind her.

[14] Mrs Nel’s brother-in-law, Mr K Barnard, an inspector in the Provincial Department of Traffic testified. He also activated his vehicle’s indicator when he came near the Katbos trees to show that he was about to turn right. He was about to “follow her turning” when he saw a vehicle on the right hand lane just behind him busy overtaking him. Mr Barnard swerved left. The overtaking vehicle collided with Mrs Nel’s vehicle while two of her vehicle’s wheels were on the gravel road and two on the tarmac. The vehicle which was overtaking overturned and stood on its side. He had looked in his mirror before he indicated a turn the road was clear for 100/150 metres. The overtaking vehicle was travelling at a high speed. Beer bottles were found in that vehicle after the collision.

[15] Captain Wallis gave evidence. He is a captain in the SAPS. He travelled along the same road in the same direction as Mrs Nel and Mr Barnard. He saw the two vehicles. While he was overtaking the vehicles Mrs Nel’s vehicle swerved in front of him. He was travelling at 100 km/h. There was no speed limit sign demarcated for that area. The railway crossing is 200 m further on. The two vehicles were travelling slowly.

[16] Captain Nel agreed that he ought to have driven at 60 km/h. He says the two vehicles did not reduce speed. He did not use alcohol that day. He knows nothing about the beer bottles and wrappers in his car. He did not see any flickering lights.

[17] The Magistrate’s reasons are cryptic. He accepts that Captain Wallis, whom he refer to as the defendant, was entitled to overtake but finds that he was negligent in overtaking one too many vehicles.

[18] The Magistrate did not make a crucial finding i.e. whether the indicators of Mrs Nel’s vehicle and that of Mr Barnard indicated that they were turning right or when they were activated. The record shows no reason to disbelieve Mrs Nel and Mr Barnard who corroborated each other.

[19] The Magistrate makes no finding about the speed at which Captain Wallis travelled. He admitted driving 100 km/h while 60 km/h was reasonable.

[20] The Magistrate makes no finding on whether the vehicles of Mr Barnard and Mrs Nel were slowing down. Clearly this must have been so. This would have indicated to Captain Wallis that Mr Barnard and Mrs Nel intend to perform a manoeuvre. Coupled with their indicators this showed an intention to turn across the road.

[21] The Magistrate correctly finds that Captain Wallis was negligent. But he also finds that there was contributory negligence by the plaintiff (probably meaning Mrs Nel). This finding should be approached on two lines:

Does the evidence suggest that Mrs Nel was negligent?

If so was it competent to apply the Apportionment of Damages Act 34 of 1950 and make an order?

[22] In my opinion a driver who indicates an intention to turn right 135 metres before she turns; who knows that the following vehicle does like wise and who slows down and turns across the road is not negligent. Mrs Nel was entitled to accept that Captain Wallis would have seen her or at least the indicator of Mr Barnard’s vehicle and have noticed that her vehicle or Mr Barnard’s vehicle slowing down.

[23] Captain Wallis would be alert to the need to slow his speed. He would have been alerted 500 metres before the crossing. He had covered more than half the distance at the time of the collision.

[24] I am of the view that Mrs Nel was not negligent.

[25] I turn to (b): it is strictly speaking unnecessary to deal with this point. But even if Mrs Nel was negligent, it was not competent to make a finding of contributory negligent as Mrs Nel was not found to be the owner of the vehicle she was driving. She had not been served with a notice in terms of s 2 of the Apportionment of Damages Act of 1950.

[26] Finally I should point out that no evidence was produced which would make the plaintiff responsible for any delictual act which may have been committed by Mrs Nel. In the absence of vicarious liability a finding of contributory negligence cannot be made against the plaintiff.

[27] In the result the appeal is upheld with costs.

_____________

A A LANDMAN

JUDGE OF THE HIGH COURT

I agree

______________

V V TLHAPI

ACTING JUDGE OF THE HIGH COURT

APPEARANCES

DATE OF HEARING: 28 OCTOBER

DATE OF JUDGMENT: 17 NOVEMBER 2005

COUNSEL FOR APPELLANT: ADV GJ DIAMOND

ATTORNEY FOR APPELLANT: THEODOR ATTORNEYS

COUNSEL FOR RESPONDENT: ___

ATTORNEY FOR RESPONDENT: STATE ATTORNEY

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