THE HIGH COURT OF SWAZILAND
AT MBABANE CIV. CASE NO. 860/93
the matter between:
H. HUDSON Defendant
THE PLAINTIFF: PERRY MILLIN - RIBA
THE DEFENDANT: MR. R. B. KEYTER
plaintiff claims E14,000 as damages from the defendant as a result of
the collission that occured on or about 14th May, 1992 and at or near
the intersection of Wolmarans and Wanderers street, Joubert Park,
Johannesburg, R.S.A. a collision occured between plaintiff's car a
1987 1.6 Toyota registration number MDG 433T and motor vehicle
registration number ND 424814, being driven by the defendant at the
time of the collision.
defendant defended the action and in her plea denied liability, She
denied that the collision was caused by her negligence as alleged in
plaintiff's particulars of claim. She further alleged that in the
event of it being found that she was negligent and that her
negligence was the cause of the collision, all of which she still
denied, then in that his negligence contributed to the collision. The
plaintiff's negligence is set in paragraph 8. She prayed
the plaintiff's claim be dismissed with costs.
defendant also counterclaims for her vehicle's damages in the amount
of E47,114.28 based on plaintiff's negligence. The plaintiff pleaded
to her counter-claim. Sole negligence was denied by the plaintiff. In
alternative, the plaintiff prayed that the defendant's counter-claim
be reduced in terms of the apportionment of Damages Act should the
court find that there was contributory negligence by him and that an
appropriate order be made as to costs.
agreement, the parties admitted the following points:-
party's locus standi to sue.
damages in an amount of E14.000 and defendant's damages in an amount
robbots at the intersection of Wanderers working order at the time of
was travelling east to west along Wolmarans street.
defendant was travelling North to South along Wanderers street.
defendant's diagram marked 'A' is accepted as being correct and to be
handed by consent.
defendant's photos marked 'B' are what they purpot to be and are
handed by agreement listing the admitted facts was marked 'C'.
plaintiff and his witness gave evidence. The defendant and her two
witnesses gave evidence.
plaintiff's witness, Paul coetzer stated that he was driving a BMW
travelling to the Western direction of Wolmarans Street. The weather
was clear Wolmarans street is a one way street. It intersects with
Wanderers which is a two way street. There are two robbots at the
intersection. He was travelling on the second lane. There was a car
in front. It was about 10-15 minutes ahead of him. The vehicles had
lights or. The car was a Toyota corrolla i.e. Plaintiff's car. He
moved to overtake on the left side because it was slowing down. He
was about 25-30m from the intersection. He could see the traffic
lights. At that stage they were changing from red to green. When he
pulled to the left, the Toyota was ahead of him. he then noticed a
Kombi. He was 10-15 m from the crossing line. The robbots were still
green. He applied his brakes and stopped. There was a collission
between the Kombi and the Toyota. There was no way the Kombi could
stop the way it was travelling in the circumstances. Wanderers is a
downhill street from North to South. When he saw the Kombi, it was
about one car's length from the stop line. The Toyota ran into the
Kombi and the Kombi rolled. The lights were green when the Toyota
entered the intersection. He went and parked his car at the garage
and came back to check if any body was injured. He gave his business
card to the
He told the Toyota driver that he was prepared to give evidence
because he saw how the
cross-examination he repeated most of his evidence in chief. He said
the Toyota did not obscure his vision. He was able to notice the
Kombi because he was still behind the Toyota when he noticed the
Kombi. The front of his car was almost at the tail light of the
Toyota. The road where the Kombi was coming is higher than Wolmaran
street. He maintained that the Kombi was travelling at the high speed
in the circumstances. It could not stop within 5m at the speed it was
travelling. The Kombi did not stop at the red robbots. The Toyota
entered the intersection because the lights were green. He first
pointed the point of impact which differed from the point of impact
which is on the police report. He then accepted the point of impact
marked by the police. He said he was able to stop quickly because he
was driving a BMW which is not like a Toyota. At the scene, he did
not see an 'AA' car flashing lights. He also did not see an 'AA'
driver. He maintained that the robbots were red and that the
defendant was travelling fast in the circumstances. He went on to say
that the 'AA' official did not see the accident because what was put
to him he would ay did not correspond with the police plan.
next witness was the plaintiff, Clive Bently who stated that on 14th
May, 1992, at 8:00 p.m., he was driving his Toyota along Wolmarans
street in the westerly direction. He was travelling in the second
lane from the right. He
30-40km because it is a 60km zone. When he approached the
intersection of Wolmarans and Wanderers streets the robbots changed
to green. He was about 20-30km travelling at 40km. He noticed a white
BMW behind him. He was in the second gear. The white BMW wanted to
overtake him on the left side. When he arrived at first line of the
pedestrians crossing, the robbot was green. He did not notice where
the BMW was but he was concentrating in front of him. He had a right
of way. He then noticed a vehicle coming down Wanderers street. The
front wheels of his vehicle were on the second line of the crossing.
The vehicle had entered the intersection. He applied brakes and
hooted. He hit the vehicle on the left handside at the rear. The
vehicle rolled on the other side of the intersection of Wolmarans and
Wanderers streets. It landed on its wheels. The point of impact is at
'A' . He marked the point of impact in 'A' just opposite the second
lane from the right in Wolmarans street. He stated that the vehicle
was travelling more than 60kms in a 60km zone. The vehicle did not
stop at the robbot although it was red. After the accident, he put on
hazard lights. He left the car in the intersection and went to check
in the Kombi if people were injured. He did not see any flashing
lights in Wolmarans street. He did not see the 'AA' At the Kombi
there were many by-standers. One of the ladies in the Kombi
complained about her neck. He then went to his car and saw Mr.
Coetzer who gave him his business card and told him he saw the
accident. He then supplied the necessary
to the police. He was present when the police measured the scene. He
told the police that the defendant did not stop at the robbots. This
appears in the police report.
plaintiff was cross-examined. He confirmed that he went to the kombi
to see if there was anyone injured. He made a statement to the
police. He helped the police in pointing out the point of impact.
After he had submittted his claim to the Insurance, he phoned
defendant's husband. He wanted to get the name of their Insurance. He
told him that he had a witness. He did not say the witness was a cafe
owner in the surrounding area of Wolmarans street. He noticed a white
BMW pulling up to overtake him. He could not see traffic lights at
that stage. He could see cars moving up and down the intersection. He
could see traffic coming down Wanderers street when he was 7-8 in
from the crossing line. He kept a proper look out. He saw the vehicle
when he was crossing the second crossing line. He said there were no
cars in front of him. There were no cars which could impede him as it
is a one way street. He was focusing in front of him. If he looked at
the right he could have seen the Kombi in Wanderers street. He
applied his brakes but did not hear brakes from other cars. He said
that the defendants car was travelling at more than 60km. He hit the
Kombi. The Kombi rolled and ended up 25m down Wanderers street. If he
was travelling at a high speed the Kombi could have hit him. He did
not hit the Kombi near the crossing line on the South of
street. He hit the Kombi on the centre of the intersection. It is not
correct that the point of impact was on the third lane from the
North. He was travelling on the second lane when he hit the Kombi.
The lights were green for him and red for the defendant.
first witness for defence was Mrs Hudson the defendant who stated
that on the 14th May,1992 they booked in hotel in Johannesburg. They
went to see a film. On their way to the hotel, they lost direction.
She tried to look for the hotel. She travelled through an
intersection when a car hit his Kombi. When she entered the
intersection the robbots were green. She said she had been driving in
cities since 1968. She was travelling from North to the South at
about 40km. She was travelling slowly because she was lost. She said
she did not see any traffic coming. She locked left and right. She
was then hit by plaintiff's car on the rear. When she was hit on the
front part of her car was opposite the first lane from the left i.e.
fourth lane from the right. The robots in Wolmaran street were not
visible to her. When she was hit the car rolled and landed back on
its wheels. She was helped by a man who brought medicine for her. He
told her not to worry. The man is the witness Cherry who was employed
by 'AA' . The plaintiff came with the police and told her that she
was the driver of the other car involved in the accident. The police
asked for her name. She did not assist the police to point the point
of impact nor did she make a. statement to the police at the
She made her statement after sometime and sent it to the police. In
cross-examination She stated that she did not know the area well
where the hotel was. She was trying to look for landmarks which might
lead her to the hotel. She did not pay full attention to the driving.
She was travelling at a constant speed of 40km. She did not see any
traffic approaching from the left of Wolmarans street. She only heard
when she was hit on the rear. She could not point the point of impact
but she insisted that it could not be at point 'A' because when she
was hit at the rear she was almost at the crossing line. She disputed
the point of impact drawn by the police. She maintained that when she
entered the intersection the robbots were green. The cause of the
accident was the plaintiff who entered when the robbots were red. She
said she told the police that she did not know how the accident
happened. Counsel was asking her about what was recorded in the
police report. She did not hear the plaintiff when he said she
entered when the robbots were red. She did not see the 'AA' car
flashing lights at the scene of the accident. She only spoke to the
man who told her the he worked for the 'AA'. She maintained that she
did not see any cars coming form the east of Wolmarans street when
she entered the intersection. The plaintiff's car appeared from
nowhere. She did not see the 'AA' car moving from the parking area.
She was looking ahead. She did not see the BMW driven by Coetze. She
took no steps to avoid the accident because she did not see the
second witness for the defence was Mrs. Loven who
that she was a passenger in defendant's car. When they went back to
the hotel from a film they lost their way. They travelled down
Wanderers street and entered a robbot controlled intersection in
Wolmarans street. The traffic lights were green for them. She did not
look for landmarks because she did not know Johannesburg. She could
not remember at what speed they were travelling but were travelling
very slowly as the defendant was trying to find the way to the hotel.
She did not see any cars in Wolmaran street. She did not see any
traffic when they entered the intersection. She then looked ahead.
She could not tell how the accident happened as their car was almost
through the intersection. Their vehicle rolled and came to rest on
its wheels. They sat in the car until a man wearing a yellow shirt
came to them. He comforted them and bought sugar water for them from
the chemist. She did not see the policemen coming to their car. She
saw police with police dogs. They were then taken by ambulance to
cross-examination she said she did not remember speaking to the
police but did not dispute what they wrote In their report. She did
not make a statement to the police. She did see Mr, Coetze at the
scene. The plaintiff and Coetze did not come to their vehicle. The
defendant was trying to locate landmarks. Her attention was divided.
She noticed that the robbots were green for them. Their car did not
go through the red robbot. The car was travelling between 30-40 km.
She denied that they travelled at an excessive
She did not look to the left and right and did not see traffic in
Wolmarans street. they had almost crossed the intersection when the
accident occured. She did not see plaintiff's vehicle. The defendant
did not apply brakes. She did not dispute the point of impact marked
by the police.
Cherry stated that on the day of the accident, he was at the
intersection of Wanderers and Wolmarans streets. He was on duty as a
patrol man for 'AA'. It was about 8:00 p.m. He was in 'AA' vehicle in
Wolmarans street ready to pull out of the parking area. The parking
space is 10-15mm to the crossing line. He intended to go up Wanderers
street. There were no cars at the robbots. The robbots were red.
There were two cars in Wolmarans street. They were in the middle of
the block. He put his car in the first lane and started moving
forward. His car was then facing the westerly direction. He then
noticed one of the cars which passed him colliding with another
vehicle at the intersection. The car was travelling in the second
lane. It was a Toyota corolla. The robbots were still red when the
collision happened. He left his car on the first lane from the left.
He was travelling in 'AA' car. He put on the rotating lights. It must
be observed here that all four witnesses who testified did not see
the rotation lights and the 'AA' car though it had distinct colour
and an emblem. The vehicle of the plaintiff stood still. He went to
the vehicle and found two ladies. He told them that he had seen
accident. The vehicle which was travelling in Wolmarans street
entered the intersection against the robbots. The point impact was
towards the end of the second lane from the left i.e. the third lane
from the right. The Kombi ended in the first parking lane of
Wanderers street. The point of impact is in the middle of the second
lane from the left i.e. third lane from the right. He estimated the
speed of the plaintiff's car to be 50km. He did not hear any brakes
and a hooter.
cross-examination, he said the robbots were red when he entered into
his car. He checked if there were cars in Wolmarans street and
noticed two cars coming. He saw their lights. They were travelling in
adjacent lanes. The vehicles were 25-30m from him. The vehicles were
on the second lane from the South. They were not on the second lane
from the North i.e. second lane from the right. The other vehicle did
not stop at the crossing line. They were not travelling in a line. He
was not sure which vehicle was in front. If one vehicle changed lane,
he could see it. The toyota was in the lane close to him, i.e. the
third lane from the right. The toyota was the vehicle involved in the
accident. He maintained that the plaintiff was in the third lane from
the North. He denied that the accident happened in the second lane
from the North. He did not see the Kombi prior to the accident. He
only saw the Kombi when the accident happened. He did not accept the
point of impact marked by the police. He insisted that the point of
further down. According to him the Toyota ended on the second lane
from the South.
police report and the plan were admitted as evidence. 'A' is the
Toyota driven by the plaintiff. The Toyota stopped at the point of
impact. The Kombi driven by the defendant was carried from the point
of impact to 'B' - 24 paces from the point of impact. The police
asked the drivers and the passengers about the accident. The
plaintiff told the police that the defendant disregarded the red
robbot. Both defendant and her passenger told the police that they
did not know what happened. The sketch plan and the report were
compiled by the police in order to establish if there was negligence
which could result in one of the drivers being prosecuted and not for
the purpose of any civil claim.
plaintiff's evidence and his witness is that the defendant
disregarded the red robbots. The defendant and her witness also claim
that the plaintiff disregarded the robbots. The plaintiff and his
witnesses gave evidence as to how they approached the intersection.
They claim that the robbot was green when the plaintiff entered the
intersection. They described the manner they were travelling. The
witness also travelled on the second lane and he tried to overtake
him. The plaintiff who was in front entered the intersection first.
The witness noticed that the way the Kombi was driving it could not
a collision almost opposite the second lane from the North. The point
of impact is supported by the police plan. The two witnesses said the
robbot was red. It is also recorded in the police report that the
plaintiff told the police that the defendant disregarded the robbots.
defendant and her witnesses did not mention any red robbot to the
police. Mr Cherry did not speak to the police. The two ladies said
they did not know what happened. Both the defendant and her witness
admitted that her attention was divided because she was trying to
trace their way back to the hotel. This indicated that she did not
concentrate on her driving and hence she did not keep a proper look
out. It is not unfair to infer that she did not see that the robbots
were red. The defendants and her witnesses's evidence as regards the
point of impact is not convincing. The plaintiff and his witnesses
are supported by the police plan. It can be seen from the plan that
he was travelling on the second lane from the North. Both the
defendant and Mr. Cherry put him to further South. This is not
supported by any independence evidence. The observation of the robbot
by Mr. Cherry is not convincing because if he saw the cars coming
while the robbot was red and waited for them according to his
description, the robbots must have turned green in the interim. His
description of the point of impact and lanes on which the plaintiff
and his witness were travelling differs from that of the plaintiff,
his witness and the police plan. I find that on the balance of
the plaintiff has proved that the robbot was green.
question now to be decided is whether he was negligent by not keeping
a proper look-out and taking such care as can be expected of a person
entering an intersection with the robbot in his favour, knowing that
the cars might jump robbots. The decided cases do not place a heavy
duty on the robbots. The decided cases do not place a heavy duty on
the driver. IN IZAAKS V SCHNEIDER 1991 3 SA 675 the head note reads
a motorist enters a robbot controlled intersection when the robbot in
his favour and the intersection is clear, there was no duty on him to
regulate his driving on the assumption that the driver of another
vehicle approaching the intersection with the robbot against him
might not stop. To expect more of the motorist who entered the
intersection with the robbot in his favour would be to make driving
judge quoted the cases of NETHERLANDS INSURANCE CO. OF SA LTD V
BRUMNER 1978 4 824 A and NATIONAL EMPLOYER GENERAL INSURANCE CO. V
SULLMAN 1988 1 SA 27 (A) with approval.
plaintiff had a right of way in the circumstances. The defendant did
not concentrate on her driving because she was lost. I do not find
that the plaintiff contributed in the
I grant the plaintiff judgment for the sum of E14,000 with costs.
counter claim against the plaintiff is dismissed with costs.