Oosthuizen v Stanley

• Jurisdiction: South Africa
• Court: Appellate Division
• Judge: De Wet JA, Tindall JA and Feetham AJA
• Judgment Date: 05 April 1938
• Citation: 1938 AD 322

Tindall, J.A.:

The applicant, who sued unsuccessfully in the Witwatersrand Local Division for damages sustained owing to the death of his son, aged 21, and his daughter, aged 16, who were killed in a collision between a motor van driven by an employee of the respondent and a motor bicycle of which the said son was the driver, applies for leave to appeal in forma pauperis against the said decision. The declaration stated that the applicant (the plaintiff) was the husband and guardian of his wife, to whom he was married in community of property, and the father and natural guardian of seven minor children, that the two children who were killed, Stephanus and Elsie, were under a duty, in a position to, and did, contribute towards the maintenance and support of the plaintiff and his said family (the son to the extent of £10 per month and the daughter to the extent of £2 5s. 0d.) per month, that the plaintiff is poor and unable to support himself and his said family, that he and his family were dependent on the said support and that he claimed £360 in respect of the patrimonial loss caused by the son's death and £135 in respect of patrimonial loss caused by the death of the daughter. He also alleged that the bicycle was his own property and was completely destroyed by the negligence of the defendant's driver (as detailed in the declaration) and that its value was £50. Lastly he claimed £40 for funeral expenses which he alleged he had to provide for the two children. The plea denied the alleged negligence and the various allegations as to support and damages and alleged that the collision was due to the negligence of the plaintiff's son Stephanus.

The collision took place at about 6.30 a.m. on Sunday 15th March, 1936, at the intersection of Fourth Avenue and Eighth Avenue, Parktown North, Johannesburg. The driver of the van, de Souza, was driving from east to west and Stephanus Oosthuizen was riding from north to south, his sister being seated on the pinion seat. Of

Tindall, J.A.

the plaintiff's witnesses who were near the scene at the time of collision, two (Mr and Mrs. Short), who lived in a house on the north-western corner of the intersection, did not see the collision but hurried to the spot immediately afterwards, having been awakened by the noise of the impact. The third, a native Ben, who happened to have been in Eighth Avenue at the time, stated that he saw the collision, that the van was travelling very fast and that the motor cycle was not going fast and that its hooter was sounded near the intersection.

On behalf of the defendant the driver of the van, de Souza, stated that he approached the corner at 20 miles per hour, that he hooted and slowed down to 15 miles per hour using his footbrake slightly, that he heard no warning from the motor cycle, that just on entering the intersection he first noticed it about five to seven paces away, that it must have been travelling at a terrific speed - anything from 40 to 50 miles per hour - and that he had no time to avoid it. The only other witness as to speed was Booker, who lived in a house on the northeastern corner. Booker, who was at the time clipping a hedge on his neighbour's property just over the northern boundary of his own property, stated that he saw the bicycle travelling up Fourth Avenue to the intersection at a terrific speed and that a couple of seconds later he heard the impact, though he did not see the collision. He proceeded to the scene and in addition to Mr and Mrs. Short (who arrived at about the same time as he, Booker, did) and de Souza, he saw another man at the spot. On the last day of the hearing of the evidence at the trial (the 19th August, 1937, according to the copy of the record filed) after the defendant's case had been closed, Mr van den Bergh, on behalf of the plaintiff, made two applications to the trial Judge for leave to lead further evidence. The learned Judge refused to grant either and it is now contended that such refusal is a valid ground of appeal. The first application is recorded in these terms: Mr van den Bergh: My Lord, I have to apply to call a witness who is desirous to give evidence in this case and who says that he was an eye-witness. I have no statement by this person. He is on the jury in the next Court. Either side could call him. I am prepared to call him, and I think it is necessary that he should be called for the benefit of his evidence. I understand that in point of time he was practically the first person on the scene.

Tindall, J.A.

"SOLOMON, J.: It will mean recalling the other witnesses. Mr. Booker says that when he got there, to the scene of the accident, there were only three people. None of the other witnesses spoke about that, and they will have to be cross-examined.

"Mr. Coaker: I am very loath to re-open the case. My learned friend says that he has not interviewed this person. It is very vague.

"Mr van den Bergh: He lives in Eighth Avenue, diagonally opposite Mr. Short. He can say, I understand, that the motor van passed his door and he can speak as to the speed at which it was going, both he and his wife. It is not a question of not having been diligent. We have done all we could to discover witnesses, but even the police did not discover this witness. I think the evidence is very material especially in view of the fact that my learned friend called Mr. Booker without giving us any idea, of what Mr. Booker was going to say. I am informed that this person read the report of this case in the newspaper for the first time last night.

"Mr. Coaker opposes the application.

"SOLOMON, J.: I am quite sure Mr van den Bergh is not exaggerating, but I am not satisfied that this person is a material witness. I think I will have to refuse the application to re-open the case."

Having refused to grant both this application and the other application to which reference will be made later, the learned judge, after argument on the merits, found that a comparison of Ben's evidence at the trial with his evidence in the magistrate's court at the trial of de Souza on a charge of negligent driving, left him in doubt as to what Ben actually saw of the accident. He accepted Booker's evidence that the bicycle was travelling at an excessive speed and de Souza's evidence that he approached the intersection at 20 miles per hour and hooted and slowed down to 16 miles. He found that the nature of the injuries to the van, the result of the collision and two marks on the road showed that the motor bicycle ran into the van with such force that the blow pushed the front wheels of the van out of their course. Finding that no...