THE HIGH COURT OF SWAZILAND
the matter between:
O R A M : DUNN J.
THE PLAINTIFF : MR C. NTIWANE
THE DEFENDANT : MR H. CURRIE
collision occurred along Gilfillan street in the evening of the 29th
June 1991 between the plaintiff's motor vehicle driven by Njabulo
Zwane and a vehicle driven by the defendant. The costs of the
reasonable and necessary repairs to the plaintiff's motor vehicle
amounted to E9.846.78 and those to the defendant's motor vehicle
amounted to E906.00. The plaintiff alleges that the collision was due
to the negligence of the defendant and has particularised such
negligence as follows –
defendant made a u-turn on the road in the face of on-coming traffic
direction and entered his wrong lane when it was not safe to do so
to apply his brakes timeously or at all and/or
to avoid the accident when by the exercise of reasonable care he
could and should have and/or
to keep a proper look-out and/or
his motor vehicle without due and attention and without regard for
other road users.
plaintiff claims payment of the costs of the repairs to his motor
vehicles with interest and costs.
defendant denies liability and has filed a counter-claim for payment
of the costs of repair of his motor vehicle alleging that Njabulo
Zwane was negligent in one or more of the following respects -
failed to keep a proper look-out
drove at an excessive speed in the circumstances
failed to apply his brakes timeously or at all.
the matter was called before me I was only asked to deal with the
question of liability. The onus rests on a party in a civil case, to
prove his claim on a balance of probabilities. The parties in this
case bear that onus with regard to their respective claims.
version of how the collision occurred is that he was travelling along
Gilfillan Street from the town centre, towards Sandla township. He
was travelling at a speed of between 60 and 70 kph. He came over a
blind rise and saw a motor vehicle which was travelling in the
to Zwane the other vehicle was approximately 20m away when he first
saw it. When the
was 5 to 7 m ahead of him it suddenly swerved onto his lane in the
process of making a u-turn. Zwane told the court that he applied his
brakes but could not avoid the collision.
defendant's version is that he entered Gilfillan street from the
north along Muir Street and turned left towards the town centre. He
travelled a short distance from the Muir street intersection and
decided to make a u-turn as it would have been quicker to get to his
destination, the Mall, by re-entering Muir street and travelling via
Sifundzani Primary School. He told the court that he slowed down and
pulled over to his left. He switched on his indicator showing his
intention to turn to the right; satisfied himself that there was no
traffic approaching from either direction and proceeded to make a
u-turn. As he was about to complete the u-turn, he heard the
screeching of tyres and a motor vehicle hit into the middle of the
left side of the light delivery vehicle he was driving. He told the
court that there was a blind rise approximately 100 m, ahead of him,
from the point where he pulled over to the left. He maintained that
he did not see any vehicle lights in the direction of the blind rise
at the time he started to make the u-turn.
police officer who attended the scene of the collision gave evidence
on behalf of the defendant. The point of impact which is not in
dispute is shown as being close to the left edge of the road as one
faces Sandla township. The police officer confirmed that there was a
blind rise in the direction of the town centre. He did not, however,
measure the distance between the blind rise and the point of impact.
The officer prepared a sketch plan which he handed into court as part
of his evidence. The sketch plan reflects skid marks, caused by the
plaintiff's vehicle, extending a distance of 22 paces from the point
of impact towards the direction of the town centre.
had serious difficulty in reconciling his evidence that the
defendant's motor vehicle suddenly swerved onto his lane, with the
evidence of the length of the skid marks caused by his (Zwane)
vehicle. The length of the skid marks suggests that Zwane saw the
defendant's motor vehicle at a greater distance than the 5 to 7 m he
testified to. This tends to cast some doubt on the truth of his
evidence that he was travelling at between 60 and 70 kph.
driver who intends executing a u-turn is under a duty to exercise the
greatest care when doing so.
should ensure that he proceeds to execute such a turn without
endangering either approaching or following traffic. See Cooper and
Bamford SOUTH AFRICAN MOTOR LAW 532 and 545. The defendant has given
evidence of how he made the u-turn. This evidence has not been
seriously challenged or shaken in any material respect and I can find
no reason for rejecting it. According to this evidence the road was
clear of traffic following the defendant. There was no approaching
traffic for at least 100 m ahead of the plaintiff. Much play was made
on behalf of the plaintiff of an alleged admission by the defendant
to the plaintiff, at the scene, that the collision had been caused by
the defendant's negligence. The alleged admission does not, however,
form part of the pleadings and arose for the first time when the
defendant was cross-examined. The defendant denied making any such
defendant has not been proved to have been negligent and to have
caused the collision as particularised in the summons.
to the counter-claim, the defendant has not led any evidence on which
the court can make a finding on the negligence as particularised. The
court was asked to
that the plaintiff was travelling at an excessive speed. No formal
evidence was, however, led in that regard. The question of the
distance from the blind rise to the point of impact; the force of the
impact and the length of the skid marks should have been properly
canvassed as the basis for the ascertainment of the speed at which
the plaintiff's vehicle was travelling. These are matters on which a
court should be slow to draw conclusions without careful and
preferably expert evidence. See Appendix F in SOUTH AFRICAN MOTOR LAW
supra with regard to the calculation of vehicle stopping distances.
defendant has in my view equally failed to establish negligence, as
particularised, on the part of the plaintiff.
my view this matter would have been better left at the point where
the crown abandoned the prosecution of the defendant (as the accused)
on a charge of negligent driving in the Magistrate's court. (The
record of the proceedings in the Magistrate's court in that case was
exhibited in these proceedings).
was not addressed on the question of costs. I accordingly make no
order as to costs.