Intercape Ferreira Mainliner (Pty) Limited v Pro-Haul Transport Africa CC
| Jurisdiction | South Africa |
| Judge | WHG Van der Linde J |
| Judgment Date | 03 June 2016 |
| Citation | 2016 JDR 1098 (GJ) |
| Docket Number | 44350/2012 |
| Court | Gauteng Local Division, Johannesburg |
Van der Linde, J:
Introduction: the issues
The plaintiff sues the two defendants for the material damage caused to its luxury passenger bus when a collision occurred on the N3 highway outside Johannesburg. The collision involved the plaintiff's passenger bus, the first defendant's horse, trailer and pup combination, and the second defendant's water tanker. They were all travelling in the same direction, roughly from south east to north west, at 05h38 in the morning, on a Thursday, 30 September, 2010. The bus was behind the water tanker and the combination was stationary in the left lane of a three-lane highway, facing north west. The tanker, travelling in the left lane, first collided with the rear right of the combination vehicle and one second later the bus, also travelling in the left lane but in the process of moving over to the middle lane, in turn collided with the rear right of the tanker.
The plaintiff bus owner says the collision was caused by the owner of the combination vehicle in having left its vehicle on the road at night without any warning lights on, and without the regulation warning triangles. Alternatively, it says that the tanker driver was to blame for, amongst others, suddenly moving his vehicle into the lane in which the plaintiff's bus was travelling. Alternatively, the plaintiff says both were to blame for a combination of these reasons.
The first defendant, owner of the combination vehicle, says that the driver of the water tanker and the bus driver were to blame. The first defendant blames the tanker driver for the same things the plaintiff blames him; and blames the bus driver for amongst other things failing to keep a safe following distance between the bus and the water tanker.
The second defendant, owner of the water tanker, does not expressly blame anyone, but denies that its driver was to blame for the collision. The plaintiff's allegations of negligence concerning the second defendant's driver are placed in dispute, but there is no joining of issue with the first defendant.
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Van der Linde, J
Negligence was the only issue in dispute in the trial, the plaintiff's damages having been settled at R472 700.41. Since there are no counterclaims, there is no potential of the plaintiff becoming liable to the defendants; but there is the potential of the defendants' liability, if any, to the plaintiff being reduced; and there is the potential of a division between the defendants of liability for the plaintiff's damages. All that is ultimately dependant on how the negligence cake is sliced, if it is sliced.
The evidence
The plaintiff called three witnesses, the first defendant none, and the second defendant one, being its driver. The plaintiff's driver has since deceased and could for that reason not be called. The person responsible for the first defendant's vehicle was not called.
The plaintiff's first witness was an expert, Mr Bezuidenhout, who proved the video recording that was made. That went in as exhibit A, with stills as exhibits B and C. The recorder was mounted in the middle of the front windscreen of the bus, just underneath the rear-view mirror. The camera thus recorded to the front, the view said to be 180% from the position of the camera, and not precisely what the driver would have observed, although close to it. It was also slightly higher than the driver.
The point really about this evidence was that if the video were to show anything sticking out to the left of the water tanker in front of the bus, which might have reflected a part of the combination vehicle of the first defendant, then it did not follow that the bus driver would actually have been able to observe it. The video reflected what the bus driver would have observed looking forward (nothing that was visible to the bus driver in his rear-view mirror was visible on the camera), but from a perspective in the middle of the bus, whereas the driver's perspective was from right of the middle, the bus being right hand drive.
The second witness for the plaintiff was also an expert, Mr Fourie, described as a "collision reconstructionist". He was called to and did give evidence about how in his view the collision
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Van der Linde, J
occurred, having regard to the video that he had been given to observe. This was the same video that Mr Bezuidenhout had proved.
Much of Mr Fourie's evidence went to the very issue that the court had to decide, and was thus inadmissible. [1] The point is, simply put, that no witness can give his or her opinion on the very issue that the court has to decide. In a collision case, such as this, no witness can be called to say that driver A was negligent, and driver B was not; or give evidence to that effect.
Since the matter was set out plainly in his judgment, I make no excuse for quoting liberally on this issue from the judgment of Bekker, J in R v Heroldt and Others (1): [2]
"Mr. Horwitz, on behalf of accused Tesanovic, objected to the question. He, in my view, correctly pointed out that the question whether or not the payment of £15,000 was met from funds created by certain of the deposits referred to was an issue in this case, and an issue which this Court would have to decide upon eventually. Counsel contended that it was not permissible, and, indeed, not proper for this witness to express or to be allowed to express an opinion on a very issue which the Court has to determine. He furthermore intimated that he sought a ruling as he intended objecting to all opinion evidence which the Crown might seek to extract from this witness on an issue which the Court would have to determine. Mr. Harwood, for the Crown, pointed out that Cox, as an expert, could not only be of great assistance in enabling this Court, through his evidence, to return findings on these issues, but said that the involved and complex nature of the accounts and record and the movement of monies required the services and evidence of a skilled accountant to unravel and reveal them in true colour, and that in these circumstances an expert's evidence not only becomes necessary but that he was entitled to express and opinion even though it be on a very issue which I have to determine.
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Van der Linde, J
I have no doubt that Mr. Cox, with his training and his knowledge of the affairs of Hendon and the issues which have to be decided by this Court, could be of assistance. I also entertain the view that his opinion on the issues I have to determine could well be considered with advantage and that Mr. Harwood appears to be correct in his view that without the assistance of an accountant the Court may have considerable difficulty in coming to a conclusion, or a correct conclusion, in the absence of evidence which he seeks to place before the Court through this witness.
In any criminal case, and perhaps more so in the present one, involving innumerable books, entries and records, the movement of funds and corresponding entries and figures in banking and other accounts, I regard it as essential, if not obligatory, on the part of the Crown to direct the attention of the accused, and the Court, to every and any particular book, account, entry or figure therein appearing, on which it will seek to rely for a conviction on any particular charge. This would avoid a situation in which the accused person might be taken by surprise and would serve to acquaint the Court with those items at an early and convenient stage. The prosecutor might, of course, do so himself or he may conceivably do it more conveniently through a witness, such, for example, as Mr. Cox. But can he go further and invite an opinion from the witness on an issue which the Court has to decide?
In support of his contention that such a course would not only be improper but would tend to allow the introduction of inadmissible and irrelevant evidence Mr. Horwitz advanced a number of arguments and referred me to various authorities, from which, I think, it is clear that, as a general rule, it is for the Court to form an opinion or draw inferences from the relevant facts proved, and that it is not permissible for a witness to express an opinion upon any fact as to which the Court itself can form an opinion.
The reason for the rule is clear, and is crisply set out by Wigmore on Evidence (vol. 7 para. 1918, at p. 11). The learned author says:
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Van der Linde, J
'The rule endeavours to save time and avoid confusing testimony by telling the witness, 'The tribunal is on this subject in possession of the same materials of information as yourself. Thus, as you can add nothing to our materials for judgment, your further testimony is unnecessary and merely cumbers the proceedings'. It is this living principle which is, or ought to be, applied in each instance, and nothing more definite is there than the test involved by this principle'.
The fact that in a case such as the present the volume of documents, the accounts and the complexity of the entries may render the task of the Court more onerous and difficult in the absence of expert evidence and opinion does not, in my opinion, sanction any departure from nor constitute an exception to the general rule.
And, it is perhaps for this very reason, that one finds provision made in the Criminal Procedure Act of 1955, sec. 111, (which re-enacts earlier provisions), to the effect that in cases where facts may have to be considered, for the proper understanding of which an expert knowledge, inter alia, of bookkeeping and accounts may be necessary, that the Minister may direct that the trial should take place without a jury, thus enabling a Judge to summon to his assistance as an assessor, and constitute as a member of the Court, a person possessed of such expert knowledge.
Mr. Harwood, however, made reference to a passage appearing in Wigmore (vol. 4,...
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