S v Naik

• Jurisdiction: South Africa
• Judge: James J and Miller J
• Judgment Date: 18 February 1969
• Citation: 1969 (2) SA 231 (N)
• Hearing Date: 13 February 1969
• Court: Natal Provincial Division

H Miller, J.:

The appellant was convicted by a magistrate of negligently driving a motor vehicle on a public road, in contravention of sec. 138 (1) of Ord. 21 of 1966 (N). He was sentenced to pay a fine of R40 or to undergo imprisonment for ten days. The grounds of appeal are set out in detail in the notice of appeal but the gist of the appellant's complaint is that the magistrate was not justified on the evidence in concluding that he was guilty of negligence in the driving of his motor car.

Miller J

The facts of the case are unusual. It is common cause that the motor car driven by the appellant collided with the complainant's car which was stationary on the gravel edge of the road. It appears that the A complainant was driving at night along a tarred road from east to west. He had several passengers in the car, one of whom requested him to stop so that she could get out of the car to relieve nature. Instead of pulling up alongside the left-hand edge of the road, the complainant crossed over to the right-hand edge and parked his car on the gravel alongside the tar. Despite the complainant's claim that, while his car B was thus stationary, facing the direction in which it had been travelling, the parking lights only were on, the magistrate found that the head-lights were at all relevant times on bright, as the appellant said they were.

The appellant explained that he was driving on his correct side of that C road from west to east when, at a distance which he roughly estimated to be about 300 yards, he saw the bright head-lights of a vehicle ahead of him. There is no doubt that the lights he saw were those of the stationary car but he believed when he saw them that they were the lights of a car which was approaching him from the opposite direction. D He also believed at that stage that the other car was travelling on its correct side of the road. Between the appellant's car and the stationary car, the roadway curved away to the left of the complainant's car but no evidence was led from which the degree or length of the curve could be determined or estimated. The appellant's head-lights were in the dipped position and, because of his belief that the other car was approaching E on its correct side of the road, he carried on driving, without any sense of impending danger, at a speed of about 35 - 40 m.p.h. When he got closer to the lights he appreciated that they were on the incorrect side of the road, but he was still under the impression that the other car was moving towards him. He then reduced speed to about 20 - 30 F m.p.h. and edged off the tarmac onto the gravel with the object of avoiding a collision. After that, the situation deteriorated rapidly. He became aware of the fact that the car was right ahead of him; he could not see the road properly, being dazzled to an extent by the bright lights. He moved still further to his left in order to avoid a collision and then observed that the car was stationary in his path. He applied G his brakes and swerved but was unable to avoid a collision, the right front...