Kruger v van der Merwe and Another

• Jurisdiction: South Africa
• Judge: Beyers ACJ, van Blerk JA, Botha JA, Williamson JA and Wessels JA
• Judgment Date: 24 February 1966
• Hearing Date: 22 November 1965
• Court: Appellate Division

Williamson, J.A.:

The appellant in this matter was the second defendant in an action instituted in a magistrate's court by the first respondent in which the latter claimed from him R1,000 as being the damage caused C to a motor car belonging to the first respondent. The second respondent was cited as the first defendant in the said action. It was alleged that the damage had been caused by negligent driving on the part of the first defendant, or alternatively by negligence on the part of the second defendant, or further alternatively by the joint negligence of both defendants in the action.

D The magistrate found the damage to have been caused by the joint negligence of both the defendants and gave judgment against them jointly and severally in the sum claimed, with costs. They both appealed to the Cape Provincial Division against this decision, but their appeals were dismissed with costs.

E The first defendant in the aforesaid action did not thereafter appeal to this Court; nor was he originally cited as a party in the present matter. However, at the outset of the hearing of the present appeal, an application by the appellant was granted whereby the first defendant was joined as second respondent in the appeal. Despite due notice, the F second respondent was not represented at such hearing. It will be convenient in dealing with the relevant facts to refer to the parties by their capacities in the original action in the magistrate's court, i.e. as the second defendant, the plaintiff and the first defendant respectively.

The damage caused to the plaintiff's motor car arose out of an accident which occurred at about 3 p.m. on Sunday, July 15, 1962. The scene of G the accident was in the du Toit's Pass on the national road between Paarl and Worcester about four miles from Paarl on the Paarl side of the summit of the Pass. The point of the accident was situate on a straight stretch of road about 550 yards in length. It was common cause that the actual point was about 175 yards from the Paarl end of this straight stretch.

H At the time and place in question the plaintiff was descending the pass and travelling in a south westerly direction towards Paarl. He was driving a Zodiac car. The first defendant was driving a Chevrolet car in the same direction. He was travelling about 45 to 50 yards behind the plaintiff's car just prior to the accident. The second defendant was driving a red Triumph sports car up the pass towards Worcester. When he entered the above mentioned straight section of the road, he was travelling behind a blue Opel car. The road consisted of a tarred

Williamson JA

portion 25 feet in width with a gravel verge or shoulder 2 feet wide on each side thereof.

According to the plaintiff he was driving at a speed of about 45 miles A per hour when he entered the 550 yards straight round the bend at the Worcester end thereof; he had seen in his rear mirror the Chevrolet car travelling behind him. He then noticed a blue car approaching him from the opposite end of the straight. When it was about 70 yards from him he saw a red sports car 'nosing out' from behind the blue car. He thought B this car would fall back behind the blue car, but instead it started to pass the blue car and for that purpose came completely over on to the southern half of the road on which he was driving. In order to avoid a head-on collision he applied his brakes slightly, reduced his speed by about 10 miles per hour and moved over to the southern edge of the road to the extent that the left wheels of his car were eventually C running on the gravel verge and about 18 inches off the tar. The red sports car, still on its incorrect side of the road passed between his car and the blue car, only missing his car by inches. Almost immediately that happened he felt something strike his car from behind, causing it to leave the road and crash into a culvert off the road.

D The version of the first defendant as to what happened was that whilst he was...