Nemutudi v Nembambula

• Jurisdiction: South Africa
• Judge: K Makhafola J
• Judgment Date: 10 October 2014
• Docket Number: 598/2009
• Court: Limpopo Local Division, Thohoyandu
• Hearing Date: 12 September 2014
• Citation: 2014 JDR 2654 (LT)

Makhofola, J

INTRODUCTION

[1]

The plaintiff issued summons against the defendant for the damages he suffered in the amount of R190 646, 90 as a result of a collision between two motor vehicles that

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occurred on 28 September 2008. The motor vehicle with registration letters and numbers BKS 158 L, Toyota Quantam 2.7 was driven by the plaintiff. The defendant was the driver of a motor vehicle with registration numbers and letters WMN 664 GP. The said collision occurred on the Sibasa-Phiphidi public road.

DISPUTE

[2]

The main dispute is: who is liable for the collision or who was negligent?

INSPECTION IN LOCO

[3]

At the alleged scene of the collision both the plaintiff and the defendant were present to make pointing-out together with the police officer who had attended to the collision who is one Captain M B Mutsila.

[4]

The findings at the inspection in loco were read into the record in court. I do not intend to repeat what was read into the record but to point out what is necessarily relevant to the ultimate finding by the court.

[5]

The plaintiff's driver said, at the scene, that he was travelling from West to East and that the point of impact was on his side of his travel. He further said that the defendant turned to his side of travel and collided with his motor vehicle and that the defendant's motor vehicle was travelling from East to West.

[6]

He further said his motor vehicle overturned on its left side from the point of impact eastwards. His motor vehicle became stationary ± 31 metres from the point of impact. He then alighted through the driver's window because it was broken.

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[7]

The defendant said he was travelling from East to West driving in his correct lane. He noticed a taxi coming driving at high speed and he hooted. It drove to his lane of travel and knocked his motor vehicle on the right front side.

[8]

According to the defendant the point of impact was on his side of the road. The distance from the impact-point pointed by the plaintiff and to the chevron making the bridge is± 24½-25 paces. From the point of impact pointed by the defendant on his side of the road to the chevron marking the bridge is 43 paces. The defendant's motor vehicle came to a standstill 6 paces from the point of impact from the front of the vehicle parallel to a foot-path on the left of the public road facing eastwards.

[9]

Captain Mutsila who was at the inspection in loco said he had been telephoned by the police station to attend to the accident at Phindula area. From where he was, he travelled to the scene within ± 2 minutes.

[10]

He said he found the plaintiff's Combi at a spot 5 paces from a sign post marked 60. Captain Mutsila found the Bantam, the defendant's car, at a point 40 paces from the chevron sign. He found the Bantam on the side of the defendant's lane of travel. He found it facing west within the lane of the road.

[11]

He noticed the following damages on the defendant's motor vehicle: on the front side of the motor vehicle, on the side of the driver near the right front head-lamp.

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He noticed that the Combi was extensively damaged on its right hand side. Captain Mutsila said he had called both drivers to point to him the point of impact. The drivers did not agree as to the point of impact.

CASE FOR THE PLAINTIFF

[12]

Mbulungeni Robert Maposa ("Pastor") was a passenger in the taxi who was seated in the front seat. When for the first time he noticed the Bantam approaching as depicted on photo 1 the taxi was travelling in its correct lane. At the time of the impact the taxi was travelling in its correct lane in the direction of Sibasa as he had pointed out during the inspection in loco. The taxi never left its correct lane at any given point.

[13]

He saw that the Ford Bantam was no longer in its correct lane when it made a manoeuvre and swerved to its left. At the time of the collision the Ford Bantam dented the Combi with its right hand lamp and right fender. He did not inspect the damage to the defendant's motor vehicle.

[14]

After the collision he instructed the Combi driver to go and check the condition of the Bantam driver. He, the driver, went to check and on his return he reported that he did not find anybody at the Bantam. He instructed the same driver to return to the Bantam to re-check. He went back and returned to say he did not see any person there. But he, pastor, was also busy instructing the children to sit down whilst he was removing passengers from the Combi.

[15]

According to him point 5 in exhibit "B" paginated page 3 is the finishing position of the Bantam bakkie. Point 7 in exhibit "B" paginated page 11 is the point of impact

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between the two motor vehicles. Point 9 on paginated page 12 of exhibit "B" is the point of impact.

[16]

He testified that the Bantam collided with the Quantam and it was driven at a high speed from East to West direction. It reduced speed and went into an outer lane by making a U-turn. Pastor pointed "X" on photo 12 of exhibit "B" as a point where the Bantam was when it commenced its U-turn.

[17]

He saw the driver of the Quantam (taxi) reducing speed whilst avoiding the accident, by swerving towards the yellow line. The taxi was driven at the speed of 60kph. He never noticed the Bantam driver reducing speed.

[18]

According to him when the taxi finished, it was lying on the yellow line of road "A" across the road facing South-West. The taxi might have become stationary at a distance of about 6 metres from the point of impact. According to Pastor the taxi finished on its wheels. After the accident had occurred, he never saw the police. He boarded an ambulance, after 30 minutes, to hospital. He further corrected his police statement on paginated page 31 paragraph 3 line 7 to replace rear with front. The police statement was written by a police officer Magumbi who spoke to him in Venda. He was satisfied that what he told the police officer was written down and it was read back to him. But when the case was heard in the High Court there were things which were inserted like: rear tyre instead of front tyre, on paginated page 30 on the last two lines of the page.

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MBULUNGENI NEMUTUDI

[19]

He was the driver of the Combi Quantam in September 2008 when the collision occurred at Madamalala, Phiphidi Area. The said Combi had 13 persons including himself. At the time of the collision between the Combi and the Ford Bantam there were no other vehicles on the road.

[20]

The road surface was dry. He could see everything from the front and to the back. He was going to Begwa at Tshaulu village. The time of the collision was between 09:00 and 10:00.

[21]

Shown photographs in exhibit "B" he said that photographs 1-16 were in line with the accident together with the markings. He was driving towards the eastern side. He was driving the Combi at 60kph.

[22]

When he first saw the Ford Bantam, it was at the time he drove over the bridge. And the first time he saw this Ford Bantam, it was on the left hand side of the road, on its correct lane.

[23]

He saw the Ford Bantam driving towards his lane and he tried to drive away from it to avoid being knocked down. Unfortunately, the Ford Bantam collided with his Quantam on its wheel and at that time it was at a distance of 4 paces. He swerved to the extreme left but did not completely pass the yellow line, except the front left tyre of the Combi. The Ford Bantam collided with the Combi with its front right portion. The taxi- Combi was further damaged by hitting the embankment, after it had rolled

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on its side. From there, he never saw what happened. The Combi ended stationary on its wheels.

[24]

When the collision occurred the Combi was in lane "A", that is, the lane he was travelling in. According to him, the collision took place as marked on "F" on photograph 12 of exhibit "B" which is the point of impact. "1" on photograph 2 of exhibit "B" is where the Bantam ended after the collision. The Combi ended facing the centre line of the road, that is "H-J" on photograph 13 of exhibit "B".

[25]

Immediately after the collision he alighted from his motor vehicle. He went to the Ford Bantam to see what had happened to its driver. He checked under the bakkie and in the mealie fields. From there he went back to the Combi where he assisted Pastor Mbulungeni Maposa to remove the children from the Combi.

[26]

One police officer arrived at the scene and asked for his names which he had given except his address. He knew about...