Nsele v National Commissioner of the South African Police Services and Another (33523/2004) [2007] ZAGPHC 94 (31 January 2007)

NOT REPORTABLE

IN THE HIGH COURT OF SOUTH AFRICA

(TRANSVAAL PROVINCIAL DIVISION)

Date: 2007-06-05

Case Number: 19826/2005

In the matter between:

N M SOKO

Plaintiff

and

ROAD ACCIDENT FUND

Defendant

JUDGMENT

SOUTHWOOD J

[1] The plaintiff claims damages from the Road Accident Fund for bodily injuries sustained in a motor vehicle collision on 4 July 2003.

[2] At the pre-trial conference the parties agreed that the issues of liability and quantum of damages should be decided separately in terms of Rule 33(4) and at the commencement of the trial an appropriate order was made. This hearing is therefore concerned only with liability.

[3] It is common cause that between 17:00 and 18:00 on 4 July 2003 and at or near the intersection of Tsamaya Drive and Shiloane Street, Mamelodi, a motorcycle ridden by Kreiter Mmakekana Mampana collided with the plaintiff who was then a pedestrian. It is also common cause that immediately prior to the collision the plaintiff was crossing Tsamaya Drive from south to north and that the motorcycle was travelling in Tsamaya Drive from east to west. It is further not in dispute that it was dusk but not dark when the collision occurred. The visibility of the insured driver was not impaired. The primary factual issue is whether at the time of collision the plaintiff was walking across the street in the pedestrian crossing running south-north on the western side of the intersection, as testified by the plaintiff, or whether she was running across Tsamaya Street from south to north about 20 metres to the west of the intersection, as testified by Mampana. The defendant’s counsel argued that these two versions are not mutually destructive and that they can somehow be ‘married’. I do not agree. In my view the one version excludes the other and the dispute must be resolved in accordance with the principles laid down in S F W Group Ltd & Another v Martell et cie & Others 2003 (1) SA 11 (SCA) para 5; National Employers’ General Insurance Co Ltd v Jagers 1984 (4) SA 437 (E) at 440D-G; Koster Ko-operatiewe Landboumaatskappy Bpk v Suid-Afrikaanse Spoorweë en Hawens 1974 (4) SA 420 (W) at 426-7 and African Eagle Life Assurance Co Ltd v Cainer 1980 (2) SA 234 (W) at 237.

[4] The plaintiff and John Sebothema testified on behalf of the plaintiff. Mampana testified on behalf of the defendant. All testified through interpreters. Except for Sebothema the witnesses did not show much emotion in the witness box. Sebothema was amused by the proposition put to him by the defendant’s counsel that the collision occurred to the west of the intersection and not in the pedestrian crossing. He laughed at the suggestion and called it propaganda. The plaintiff was born on 25 June 1953 and was 50 years old at the time of the collision. She was cross-examined at some length on her version and did not deviate from it. She answered all the questions put to her without difficulty and she answered directly and without hesitation. She made a good impression in the witness box and clearly answered as she recalled the events. Sebothema is 78 years old and never went to school. He was also a good witness who answered all questions directly and without hesitation. He did not deviate from his version. As already mentioned he was openly amused by the suggestion put to him in cross-examination that the collision took place a distance to the west of the intersection. Mampana was not a good witness. At times he was uncertain both in his demeanour and in his evidence. He frequently avoided the point of questions which had to be repeated. He sometimes answered questions by embellishing answers already given. He was unable to explain why he saw the plaintiff for the first time when she was already on the tarmac. He was also not able to explain why the plaintiff’s evidence that taxis had come to a halt on the eastern side of the intersection was not disputed by the defendant’s counsel. He said he had told counsel that this was not correct. I have no hesitation in preferring the evidence of the plaintiff’s witnesses to the evidence of Mampana.

[5] The plaintiff testified that on the day of the collision she travelled back to Mamelodi on a Putco bus which stopped at the depot in Shiloane Street. She alighted from the bus and walked from the depot along Shiloane Street towards the intersection with Tsamaya Drive. She walked on the western side of Shiloane Street until she arrived at the intersection. It is a robot controlled intersection. Photographs 1 and 2 in exhibit A show the position of the robots and the streets to the west and the north of the intersection. She intended to cross Tsamaya Drive and walk along the dirt road on the northern side of the intersection – shown in photograph 1 – to her home. She lived in a shack on the property of John Sebothema. When she arrived at the intersection the light showed red for her and she stopped. When the light turned green she looked to her right, saw that it was safe because vehicles travelling from east to west had stopped at the traffic lights and proceeded to walk across the road. She was in the middle of the road when she looked to her right again and saw a motorcycle coming towards her. She did not know how to avoid a collision, go forward, go back or stand still. The motorcycle collided with her and she fell onto the road surface. She marked the place of impact with a cross on photograph 1. It is in approximately the middle of the right hand lane for east to west traffic. She estimated the distance from where she lay to the robot in the middle of Tsamaya Street at approximately one-and-a-half metres. She used the same route to walk home every day and there was no reason for her to deviate from this route.

[6] John Sebothema heard someone shout that there had been an accident and hurried to the intersection. He found the plaintiff lying or sitting on the tar surface between the markings for the pedestrian crossing in the right hand lane for traffic from east to west. Although the photographs do not show markings he was adamant that there were markings at the time. Sebothema confirmed that for the plaintiff to reach her home she would have to cross Tsamaya Drive and walk a short distance along the dirt road on the northern side of the intersection. She would not be able to approach her house by walking between the houses on the northern side of Tsamaya Road. Although this is an informal settlement there are fences along the southern boundary of the settlement running along Tsamaya Drive. In addition the shack dwellers discourage people from walking close to their homes. Sebothema did not deviate from his evidence under cross-examination.

[7] Mampana testified that he worked for Khutsong Pharmacy and delivered medicines on a 125 cc motorcycle with a delivery box mounted on it. Prior to the collision he had been travelling from east to west in the left hand lane of Tsamaya Drive. It was not yet dark and visibility was good. As he approached the T-junction with Shiloane Street the robot was green for him. He travelled safely through the intersection and had travelled a distance (he estimates about 20 metres) from the western side of the intersection when he saw the plaintiff running from his left to his right across Tsamaya Drive i.e. from south to north. He was travelling in the left hand lane. He swerved to his right to avoid colliding with the plaintiff but was unable to do so. The collision took place in the right hand lane of Tsamaya Drive. The left pedal of his motorcycle struck the plaintiff. The plaintiff fell to the tarmac and he also fell, a distance past her. He was travelling at about 70 km/h at the time of the collision. Under cross-examination Mampana could not explain why the plaintiff’s evidence that she saw taxis standing stationary at the traffic lights on the eastern side of the intersection was not disputed in cross-examination. He said he told the defendant’s counsel that there were no vehicles there or travelling in front of him. He had difficulty in saying where the plaintiff was when he first saw her crossing the road. He said she was running fast. He never had a chance to hoot or stop. All he could do was swerve. He conceded that if he had proceeded straight she would have crossed in front of him and there would not have been a collision. He also conceded that he did not pay close attention to the people walking on the southern side of Tsamaya Drive. There were a lot of people walking home as it was after work.

[8] The overwhelming probability is that the collision occurred as described by the plaintiff. She used this route every day. To get to her house she had to cross Tsamaya Drive and walk along the dirt road for a short distance. The undisputed evidence is that she would approach the intersection along Shiloane Street from the Putco depot. There was no reason for her to walk along Tsamaya Street to the west before crossing the road. None was suggested to her and objectively none was established. It was also not possible for her to approach her home from a position west of the intersection. It is highly improbable that the plaintiff, a 50 year old woman, would attempt to run across the road in front of approaching traffic. No reason was suggested for this to happen. Her evidence that she crossed at the pedestrian crossing is confirmed by Sebothema as he found her sitting between the lines of the pedestrian crossing. It was not suggested to him that he was misrepresenting the facts to help her fabricate a case. This was also not suggested during argument.

[9] During argument the defendant’s counsel conceded that on either version Mampana was negligent. On his own version, a high degree of negligence was disclosed (it was suggested that an apportionment of 60:40 in favour of the plaintiff would be appropriate) and on the plaintiff’s version the defendant had difficulty contending that the plaintiff had been negligent at all (it was suggested that at best for the defendant an apportionment of 80:20 in favour of the plaintiff would be appropriate).

[10] If the plaintiff’s version is accepted: i.e. that she was crossing Tsamaya Drive at the intersection of Shiloane Street when the insured motorcycle collided with her: then it follows that Mampana entered the intersection against the red light and collided with the plaintiff. It is not suggested that if the robot showed green for traffic in Shiloane Street it would also show green for traffic in Tsamaya Drive. The trial was conducted on the basis that red and green lights would show alternately in the two streets. After entering the intersection against the red light the motorcycle had to travel only about 6 metres before it collided with the plaintiff. Clearly Mampana failed to keep a proper look-out and/or travelled at an excessive speed in the circumstances and/or failed to avoid a collision when by the exercise of reasonable care and skill he could and should have done so. The only question is whether the plaintiff was negligent. She entered the intersection after the light turned green in her favour and after looking to her right and seeing taxis stationary at the entrance to the intersection on the eastern side. Her undisputed evidence is that she was not able to see the approaching motorcycle because of the stationary taxis. She walked briskly across Tsamaya Drive until she looked to her right again and saw the motorcycle a few metres away. At that stage there was nothing she could do to avoid the collision. Once the plaintiff saw the lights change in her favour and that vehicles travelling from east to west in Tsamaya Drive had stopped at the eastern entrance to the intersection she was entitled to walk across Tsamaya Drive on the assumption that other traffic would obey the traffic signs. She would not foresee that a motorcycle would pass or thread its way between the stationary vehicles and enter the intersection against the red light. In short she was entitled to expect that other road users would drive properly and safely. It cannot be found that the plaintiff was negligent.

[11] The following order is made –

(1) It is found and declared that the negligence of the driver of the insured motorcycle, Kreiter Mmakekana Mampana, was the sole cause of the collision between the plaintiff and the motorcycle on 4 July 2003 and accordingly that the defendant is liable to compensate the plaintiff for all of the damages that she proves she suffered as a result of the collision.

(2) The defendant is ordered to pay the costs of the hearing.

_____________________

B.R. SOUTHWOOD

JUDGE OF THE HIGH COURT

CASE NO: 19826/05

HEARD ON: 2007-05-31 to 2007-06-01

FOR THE PLAINTIFF: ADV. I. LINGENFELDER

INSTRUCTED BY: Mr Mampuru of Molema Mampuru Inc

Attorneys

FOR THE DEFENDANT: ADV. M.C.C. DE KLERK

INSTRUCTED BY: G. S. Garden of Mothle Jooma Sabdia

Incorporated

DATE OF JUDGMENT: 2007-06-05