Puwani Consulting (Pty) Ltd v Coetzee and Another (CA26/2021) [2021] ZAECGHC 92 (5 October 2021)

NOT REPORTABLE

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION, GRAHAMSTOWN)

Case No: CA26/2021

In the matter between:

PUWANI CONSULTING (PTY) LTD Appellant

and

HANS COETZEE First

Respondent

JUNIOR SMIT TRUCKING SERVICES CC Second

Respondent

Judgment

Govindjee AJ:

Background

[1] A Volvo sedan belonging to the appellant collided with a truck owned by the second respondent and driven by the first respondent on 1 September 2016. The collision occurred near the junction between Grahamstown Road and Metcalf Street, Deal Party, Gqeberha.

[2] It is common cause that both vehicles were driving in the same direction on a straight tar road with two lanes, one each for traffic being drive in each direction. Shortly prior to the collision, Mr Puwani, a director of the appellant and the driver of the appellant’s vehicle, commenced an overtaking manoeuvre, attempting to pass two large trucks. The trucks were travelling at a speed of between 20-30km/h. Prior to the collision, the first respondent intended executing a right turn into a side street. The circumstances surrounding the overtaking manoeuvre, and whether Mr Puwani should have been aware of the first respondent’s intended right turn, are at the centre of the dispute.

[3] The appellant alleged that the collision occurred as a result of the sole negligence of the first respondent, due to the following:

a. He failed to keep a proper lookout;

b. He failed to apply the brakes on his vehicle either timeously or at all;

c. He executed a right turn without indicating his intention to do so, and at a time when this was dangerous, unsafe and inopportune;

d. He failed to keep a sufficiently wide berth between his vehicle and the appellant’s vehicle; and

e. He failed to take precautions to prevent a collision.

[4] The appellant alleged that, as a result, he suffered damages totaling R140 747,00, and claimed this jointly and severally from the respondents, together with interest and costs. The parties agreed before the presiding Magistrate to separate merits and quantum, so that the Magistrate was concerned only with the issue of negligence.

[5] The respondents defended the action and pleaded that the sole cause of the collision was the negligent driving of Mr Puwani.[1] The pleaded negligence relates to the following:

a. He drove too fast under the circumstances;

b. He failed to keep a proper lookout;

c. He failed to apply his brakes timeously, adequately or at all;

d. He failed to avoid a collision by the exercise of reasonable care; and

e. By overtaking the vehicle driven by the first respondent at a time and place when it was not safe and opportune to do so.

Condonation

[6] The respondents took the point that the appellant had failed to adhere to the peremptory provisions of Rule 51(3) of the Magistrates’ Courts Rules and Uniform Rule 50(1), read with 50(4), in that it failed to deliver its notice of appeal and / or prosecute its appeal timeously. This was on the basis that the facts that the Magistrate found to be proved and the reasons for judgment were comprehensively set out in the written judgment handed down on 17 January 2020. As such, the appellant’s insistence on requesting further reasons was unfounded, and the notice of appeal was delivered late.

[7] The appellant responded by filing a ‘conditional application for condonation’, setting out the following chronology of events:

a. The Magistrate’s judgment was delivered on 17 January 2020.

b. The appellant delivered its notice in terms of rule 51(1) of the Magistrate’s Court Rules on 21 January 2020.

c. A follow-up notice in terms of rule 51(1) was delivered on 3 June 2020.

d. The Magistrate indicated that she had nothing further to add to her judgment on 14 July 2020.

e. A notice of appeal was prepared and filed on 11 August 2020.

f. This was followed by a rule 51(8)(a) notice (incorrectly labelled ‘Rule 55(8)(A)’), filed on 11 November 2020. This called upon the magistrate to give further

reasons in light of the notice of appeal.

g. The Magistrate replied on 4 March 2021 and the record was lodged with the registrar on 26 March 2021.

[8] It is not obligatory for an appellant to request the magistrate’s written judgment in terms of Rule 51(1), if he or she is in a position to file a valid notice of appeal without this. It is a preparatory step which a party may or may not take. In this case I have no difficulty in accepting that the appellant decided to afford the Magistrate the opportunity to provide further reasons in terms of the subrule. The Magistrate’s response was only received on 14 July, so that the notice of appeal was timeously filed on 11 August 2020.

[9] Rule 51(8)(a) of the Magistrates’ Courts Rules provides as follows:

‘Upon the delivery of a notice of appeal the relevant judicial officer shall within 15 days thereafter hand to the registrar or clerk of the court a statement in writing showing (so far as may be necessary having regard to any judgment in writing already handed in by him or her) –

i) the facts he or she found to be proved;

ii) the grounds upon which he or she arrived at any finding of fact specified in the notice of appeal as appealed against; and

iii) his or her reasons for any ruling of law or for the admission or rejection of any evidence so specified as appealed against.’

[10] This subrule contains an imperative, and the written explanation forms an integral part of the appeal record, serving to assist the court of appeal in dealing with the appeal in a speedy, efficient and cost-effective manner. It was open to the Magistrate to indicate, as she belatedly did, that the written judgment was adequate so that nothing further was to be added to the reasons advanced for the decision.

[11] It was submitted that the appeal could only be prosecuted once the record was ready to be lodged and that this was not possible prior to receipt of the Magistrate’s reply to the notice of appeal in terms of rule 51(8)(a) of the Magistrates’ Courts Rules. A party noting an appeal must, however, prosecute same within the time prescribed by the

applicable rule of the court of appeal.[2] Rule 50 of the Uniform Rules of Court affords a period of 60 days from the noting of the appeal for this purpose. All this

required was for the appellant to apply, within this period, in writing to the registrar and on notice to all other parties, for a date of hearing in terms of Rule 50(4). It is so that the application for the assignment of a date for the hearing of the appeal must be accompanied by lodgment of two (complete) copies of the record[3] and that these copies must include ‘all documents necessary for the hearing of the appeal’.[4] Had the Magistrate furnished additional reasons in response to the grounds of appeal contained in the notice of appeal, there would have been no difficulty in finding that those additional reasons were ‘necessary for the hearing of the appeal’. The record would certainly have been incomplete without this.

[12] Nevertheless, there appears to be no basis in the Rules for affording the appellant a 60-day period from receipt of the Magistrate’s response to the Magistrates’ Courts rule 51(8)(a) request. The provisions of rule 50(1) of the Uniform Rules, which govern the prosecution of an appeal, are peremptory. Rule 50(1) makes it clear that failure to prosecute the appeal within 60 days results in the appeal being ‘deemed to have lapsed’. Similarly, rule 51(9) of the Magistrates’ Courts Rules provides that:

‘A party noting an appeal or cross-appeal shall prosecute the same within such time as may be prescribed by rule of the court of appeal and, in default of such prosecution, the appeal or cross-appeal shall be deemed to have lapsed, unless the court of appeal shall see fit to make an order to the contrary.’

[13] The appellant was, on this basis, required to seek condonation for the delayed prosecution of the appeal. Section 84 of the Magistrates’ Courts Act, 1944[5] affords the court of appeal an unfettered discretion to grant an extension of time for the noting or prosecution of an appeal. The discretion is not in any way restricted by Uniform Rule of Court 27(1) which empowers the court, upon application and on good cause shown, to make an order extending any time period prescribed by the Uniform Rules of Court.[6] As Van Loggerenberg has noted, the High Court in any event has an inherent jurisdiction to extend the period for noting an appeal, and for prosecuting it.[7] The courts have deliberately refused to attempt to frame any comprehensive definition of what constitutes good or sufficient cause

for the granting of the indulgence of an extension of time.[8] The judicial discretion must naturally be exercised in fairness to all parties and in the light of the circumstances of the case.

[14] In this instance, considering the period of the delay, the reasons and explanation for the delay and absence of prejudice to the respondents, the late prosecution of the appeal must be condoned.

The judgment of the court a quo

[15] The Magistrate delivered a judgment on 17 January 2020, and held, inter alia, as follows:

a. ‘It is clear from (appellant’s) evidence that the only way that he could have seen whether the first defendant’s truck was indicating or not was only when he was about to pass it, not before…’[9]

b. The test was whether it was safe and opportune for the plaintiff to attempt to overtake two heavy duty trucks at the time that the

appellant did so, and would a reasonable driver in the position of the plaintiff at the time and under the same circumstances have

regarded this as safe.

c. There was no explanation why the appellant believed that his vehicle would skid if he had applied brakes.

d. There was no evidence that the first respondent only started indicating at the time when his indicator was observed by the appellant: ‘…in fact the version of the first defendant is that he switched his indicator on sometime before turning to his right. His version that after the collision he approached plaintiff and told him that he did indicate and the response by plaintiff that he thought he would make it in front of him in time is in my view probable considering the actions of the plaintiff on the day of the incident. Plaintiff’s version that he did not respond to first defendant is in my view improbable.’[10]

e. The appellant performed a dangerous manoeuvre by overtaking two heavy duty trucks at the same time, so that he did not act as reasonable

driver…‘especially where he could not see the conduct of the first defendant’s truck.’[11]

f. The appellant’s negligence was the sole cause of the collision, so that the claim was dismissed with costs.’

[16] A quotation inserted by the Magistrate, emanating from Biddlecombe v Road Accident Fund,[12] and the only case cited by the Magistrate, provides further insight into her thinking:

‘The inevitable question that arises from this is why Mr Biddlecombe was unable to stop in the ordinary course, with the application of conventional braking, prior to colliding with the truck. The day was clear and his visibility unimpeded. He was aware of the truck and the fact that it wished to turn right across the face of oncoming southbound traffic in Malibongwe Drive. The only possible source of danger to him was if it started to do so before he had passed it and cleared the intersection. He should therefore have kept it under observation. On his own version as to the speed he was travelling and the time when he observed the truck, he should have been able to stop without any particular problem before a collision occurred. Only two possible reasons exist for his not doing so. The one is that he was travelling at a much greater speed than he said and the other is that he was not keeping the truck under proper observation and only realized that it was moving much later than he said. It is of course possible that it was a combination of both reasons.’

Grounds for appeal

[17] The appellant advanced various grounds for appeal, most notably that the Magistrate erred in the way the evidence was assessed, having regard to the parties’ respective onuses, and by accepting the first respondent’s version over that of the appellant.

[18] It was argued that the Magistrate erred in a number of additional respects, for example, by:

· not considering that the appellant had been confronted with an emergency situation;

· not accepting appellant’s evidence as to the late stage that the first respondent activated his indicator;

· not considering the common-sense fact that the appellant’s lines of sight towards the first respondent’s truck would have changed as he overtook the vehicles;

· finding that the appellant was solely negligent simply because two trucks had been overtaken, and that he had disregarded the first respondent’s indicator.

Legal principles

[19] The appellant bore the onus of proving the first respondent’s negligence, and the respondents carried the onus to prove any contributory negligence on the part of the driver of the appellant’s vehicle, to the extent necessary.

[20] It is trite that an appeal court’s power to interfere with the trial court’s assessment of oral evidence and its findings of fact and credibility is limited. In the absence of a material misdirection on fact the trial court’s conclusion is presumed to be correct. This is because the trial court may be in a better position than an appeal court, in that the presiding officer a quo may be more able to estimate what is probable or improbable in relation to the particular people whom she has observed at the trial. Bearing in mind the advantage which a trial court has of seeing and hearing the witnesses, it is only in exceptional cases that an appeal court is entitled to interfere with the trial court’s evaluation of oral testimony.[13]

[21] There may, however, be a misdirection of fact by the trial court where the reasons are either on their face unsatisfactory or where the record shows them to be such. There may also be such a misdirection where, though the reasons as far as they go are satisfactory, the presiding officer is shown to have overlooked other facts or probabilities. The appellate court is then at large to disregard the presiding officer’s findings on fact, even though based on credibility, in whole or in part according to the nature of the misdirection and the circumstances of the particular case, and to come to its own conclusion on the matter.

[22] It is salutary to remember that an appellate court should not seek anxiously to discover reasons adverse to the conclusions of the presiding officer, and that it does not necessarily follow that just because something has not been mentioned in a judgment implies that it has not been considered.

Analysis

[23] Mindful of the Dhlumayo principles, much of the factual findings upon which the Magistrate based her judgment cannot be gainsaid. It is important that the appellant was travelling behind a truck consisting of a horse and one trailer, which itself was behind the truck driven by the first respondent, consisting of a horse and two trailers and measuring 22 metres in total. Those trucks were travelling slowly, so that the appellant considered it safe to proceed with a ‘double’ overtaking manoeuver. To the extent that the Magistrate’s judgment suggests that double-overtaking manoeuvres are always inherently dangerous and unreasonable, this is erroneous.

[24] Mr Puwani’s testimony regarding when he first saw the activated indicator on the second respondent’s truck was contradictory. Initially, he accepted that he had seen the indicator of the first trailer ‘flicking’ at the moment that he moved to the right-hand lane and commenced acceleration for purposes of overtaking.[14] He then testified that he noticed it when alongside the rear (second) trailer of the second respondent’s truck.[15] His version changed later during his evidence-in-chief, to suggest that he only noticed the indicator after had already passed the rear (second) trailer of the second respondent’s vehicle.[16] The Magistrate accepted the testimony of the first respondent that he had indicated his intention to turn sometime before this was observed by Mr Puwani and sometime before he executed the right-hand turn. This appears to be based on the Magistrate’s credibility findings regarding Mr Puwani and the first respondent, in particular in relation to the former’s probable response to the latter on the day of the collision. There is no basis to interfere with this finding.

[25] Other reasons, however, appear to be unsatisfactory when considered in the light of the record of proceedings and common-sense principles. In particular, the suggestion that Mr Puwani ‘did not act as reasonable driver, especially where he could not see the conduct of the first defendant’s truck’ appears to make little sense when considering that the appellant’s vehicle had moved into the right side of the road in order to execute the overtaking manoeuvre, so that the second respondent’s vehicle would have become increasingly visible as Mr Puwani passed the other truck and trailer. The Magistrate also failed to explain her acceptance of the first respondent’s version that he had stopped for an oncoming car prior to executing the turn, and how the collision could possibly have occurred if the appellant’s vehicle also had to wait for that oncoming vehicle to pass prior to overtaking both trucks.

[26] But these shortcomings do not necessarily operate to the appellant’s advantage. For the appellant to have succeeded in its claim, it was required to discharge the onus that a reasonable person in the position of the first respondent would have foreseen the reasonable possibility of his conduct damaging the appellant or its property and causing patrimonial loss; and would have taken steps to guard against such occurrence; and that the respondent failed to take such steps.[17]

[27] It is, however, difficult to fault the Magistrate’s finding that the appellant failed to prove any of the alleged grounds of negligence on the part of the first respondent.[18] The picture painted by the evidence led at the trial fails to convince me that the first respondent acted negligently in executing

the right turn, for example by failing to keep a proper look out, failing to indicate timeously or executing the turn when it was

unsafe to do so.[19] In fact, and even accepting that Mr Mr Puwani only saw the indicator light of the second respondent’s vehicle when he was alongside that truck’s rear (second) trailer, the collision appears to have been caused by his conduct.

[28] A reasonable person in the position of Mr Puwani, busy overtaking and on the right-hand side of the road with no oncoming traffic, would have kept close eye on the conduct of the two truck drivers. Upon observation of the indicator, a reasonable person would further have immediately considered the surroundings and realised the close proximity of the road into which the first respondent intended to turn.[20] Given that proximity, it may have been expected that Mr Puwani would have, at the very least, immediately flashed his lights or sounded his hooter in the event that he had decided to proceed with the overtaking manoeuvre.[21]

[29] It might also have been expected that he would have applied the brakes until he was certain that the first respondent had observed his presence and would not turn into his path. Mr Puwani’s failure to do so suggests that he was travelling at a speed in excess of the speed limit, so that the forceful application of brakes risked the occurrence of skidding. Had Mr Puwani really been travelling at a speed of close to 60km/h, and closely observing the movements of the second respondent’s truck and trailers, there ought to have been little difficulty in braking to avoid the collision, bearing in

mind the low speed at which that truck was travelling. Instead, Mr Puwani was forced to take evasive action and swerve to the right in seeking to avoid the collision. This, and any suggestion of ‘sudden emergency’, was largely the outcome of his own prior negligent omissions in either warning the first respondent of his presence or applying brakes until he could be certain that the first respondent would not turn into his path, given that he had activated the right-turn indicator.

[30] A driver is under a duty to satisfy himself or herself that it is safe to overtake another vehicle, in order to prevent a motor vehicle accident due to negligence. In discharging this duty, the main concern of the overtaking driver travelling on a single carriage way is, inter alia, traffic ahead proceeding in the same direction. The overtaking driver must also pass to the right of the vehicles being overtaken at a safe distance. While there is no general duty to warn the driver(s) ahead that an overtaking manoeuvre is in the process of being attempted, such a duty may arise depending on the facts.[22]

[31] In this instance the first respondent’s indication that he intended to turn to his right created the duty on the appellant to take additional steps to avoid the collision which occurred. A reasonable person in the position of the appellant would have anticipated the timing of the turn, and taken steps to immediately slow down and warn the first respondent of his close proximity. The appellant’s failure to do so suggests that he was driving too fast under the circumstances, that he failed to keep a proper lookout and did not apply his brakes timeously, as the Magistrate’s judgment suggests.

[32] There is accordingly no basis for this court to interfere with the trial court’s assessment of oral evidence and its findings of fact and credibility. In the absence of a material misdirection on fact, the trial court’s conclusion is presumed to be correct and the appeal must be dismissed with costs.

Order

[33] The following order will issue:

1. Condonation for the late prosecution of the appeal is granted.

2. The appeal is dismissed with costs.

__________________________

A. GOVINDJEE

ACTING JUDGE OF THE HIGH COURT

I agree.

____________________________

F. B. A. DAWOOD

JUDGE OF THE HIGH COURT

Appearances:

Obo the Appellant :

Adv PT Marais

Instructed by : N

N Dullabh & Co

5 Bertram Street

Grahamstown

Obo the Respondent : Adv R van Wyk

Instructed by

: Wheeldon. Rushmere & Cole Inc

119 High Street,Grahamstown

Heard

: 27 August 2021

Delivered:

: 5 October 2021

[1] The appellant’s heads of argument confirm that the parties agreed by way of correspondence that contributory negligence would be alive for determination in the trial as between all parties, even though the driver of the appellant’s vehicle was not joined.

[2] Rule 51(9) of the Magistrates’ Courts Rules.

[3] Rule 50(7)(a) of the Uniform Rules of Court.

[4] Rule 50(7)(c) of the Uniform Rules.

[5] Act 32 of 1944.

[6] Mintz v Bloemhof Village Council 1922 TPD 430.

[7] DE van Loggerenberg Jones and Buckle: Civil Practice of the Magistrates’ Courts in South Africa (vol 1: The Act: 10th Ed) p 600.

[8] The factors typically considered include the degree of non-compliance with the rules, the explanation therefor, the prospects of success on appeal, the importance of the case, the respondent’s interest in the finality of his judgment, the convenience of the court, and the avoidance of unnecessary delay in the administration of justice: United Plant Hire (Pty) Ltd v Hills 1976 (1) SA 717 (A) at 720E-G.

[9] At p 49 of the indexed record (‘the record’).

[10] At p 50, 51 of the record.

[11] P 51 of the record.

[12] [2011] ZASCA 225.

[13] R v Dhlumayo 1948 (2) SA 677 (A).

[14] Record at p 14.

[15] Record at p 15.

[16] Record at p 24.

[17] Kruger v Coetzee 1966 (2) SA 428 (A).

[18] P 51 of the Record.

[19] On the duties of a driver executing a right turn, see Hartley v Road Accident Fund [2016] ZAGPPHC 282 para 11, citing Bata Shoe Company v Moss 1977 (4) SA 16 (W). It must be noted that the facts in Hartley were distinguishable. In that case the insured driver gave no signal that she intended to turn to the right. She was driving slowly and suddenly, and clearly negligently, moved to her right to execute a U-turn. In those circumstances the overtaking driver was entitled to assume that the slower vehicle would hold its line: at paras 13, 20.

[20] See Orne-Gliemann v General Accident Fire and Life Assurance Corporation Ltd 1981 (1) SA 884 (Zim) at 887E-G.

[21] It depends on the circumstances of the case whether a motorist carries the duty to ensure that the car he is overtaking hears the sound of his warning hoot: see Beswick v Crews 1965 (2) SA 690 (A) at 703H.

[22] Hartley supra at para 7.