THE HIGH COURT OF SWAZILAND
Case No. 1377/92
the matter between:
CONSTRUCTION LIMITED Plaintiff
THE PLAINTIFF Mr. Currie
THE DEFENDANT Mr. Flynn
20th June 1991, the plaintiff's truck and the defendant's
utility-vehicle collided on the road from Manzini to Big Bend.
accident happened on a straight portion of the highway that is about
10 kilometres north of Siphofaneni. This stretch of the road descends
towards that town from a blind crest. It is shown in the photograph
produced as Defence Exhibit 1. The photograph was taken at the scene
of the accident, looking back towards the crest. When it was taken,
the road had been restructured. The photograph shows an intermittent
white centre line. To the left of it (in other words, in
Big Bend - Manzini lane) it also shows a solid white line. That solid
line runs the complete length of the portion of the road shown. It
now includes the whole stretch of road from the crash site to the
crest. When the accident occurred, the solid line was not there. The
highway was divided only by an intermittent centre line.
from these things, I understand the photograph to indicate more or
less accurately the nature of the road as it was on 20th June 1991 -
specifically its alignment, the nature of the incline, the blind
crest, and the distance from that crest to the scene of the
the accident happened, it was already dark. Rain was falling lightly.
Visibility was poor and the highway was wet. The plaintiff's truck
was travelling towards Big Bend and the bakkie towards Manzini. It
was a very serious collision. Several people, including the driver of
the bakkie, were killed. Others were injured. The bakkie was
completely destroyed. The truck was damaged beyond economical repair.
this action, the plaintiff sues the defendant for damages for the
loss of its truck. Liability is denied, but the amount of the
plaintiff's damages is agreed as being E69,700. The defendant has
counterelaimed for the loss of its vehicle. Liability for this loss
is in turn denied, but the amount involved is agreed as being
claims are in delict. Each alleges negligence on the part of the
other's driver, while acting in the course of his employment. The
particulars are set out in detail in the respective pleadings. In the
amended pleadings, in responding to the claim, each party alleges
contributory negligence on the part of the other.
is common ground that the accident occurred when the bakkie, while in
the process of overtaking another truck, collided with the oncoming
truck. The defendant does not deny that, as it was overtaking the
other truck, the bakkie pulled out partly into the opposite lane in
order to do so. It does not deny that it was at least half over the
centre line, so that it straddled it more or less squarely, when the
plaintiff's case is that the bakkie pulled out suddenly from behind
the other truck, which was itself travelling towards Manzini. In
order to overtake that truck, it went completely across the centre
line. The driver of its own truck, which was about to pass the other
truck, had no chance at all of avoiding the bakkie. The collision
occurred entirely in the lane of the plaintiff's truck.
defendant's version is that the third vehicle - the other truck -had
been parked on the side of the highway and parallel to it. Its left
wheels were off the road. Its right side extended about halfway into
the Big Bend - Manzini lane. As the bakkie was in the process of
passing it, by driving astride the centre line, the plaintiff's truck
appeared suddenly at speed, out of the darkness, with its lights off.
Two or three seconds before the collision, the plaintiff's driver
switched them on. In the circumstances, there was nothing that the
bakkie's driver could have done reasonably to avoid the collision.
plaintiff's driver, a Mr. Ndzinisa, survived the crash. He gave
evidence on its behalf. He said that he had been driving its truck to
a site at Lavumisa. It was carrying a tractor. As it came down the
incline, it was travelling at between 70 and 80 kilometres per hour.
He had had his lights on. He was travelling in his own lane. When he
saw the other truck approaching him, he "dimmed" his
headlights. (As I understood him, he was saying that he "dipped"
them, so that they were not directed squarely at oncoming traffic. He
was not saying that he turned them off. Both counsel have agreed with
this interpretation of his evidence.) As he began to pass the other
truck, the bakkie came out into his lane suddenly, from behind it. He
applied his brakes sharply and tried to pull to the left, but the
impact occurred almost immediately. This incident had happened very
quickly. In cross-examination, he agreed that the truck had had a
trailer. He denied that it had been stationary.
Mamba, a member of the Royal Swaziland Police who was stationed at
Siphofaneni, also gave evidence for the plaintiff. He said that he
had gone from the police station to the accident site, arriving
between 5.45 and 6 p.m. There, from his observations and from
measurements taken by him, he prepared the rough sketch plan
has been produced as Plaintiff's Exhibit 5.
the way in which he first gave his evidence, I had an initial
impression that at that time the plaintiff's driver (who had been
injured, but was conscious) had pointed out to him the position on
the plan which the sergeant marked "C" and described on it
as "the point of impact". He did say, however, that he had
himself "proved it" to be the point of impact. In
cross-examination, he said that he had marked that position "C"
on the night of the accident and as a result of his own observations.
What he had done afterwards was to bring the plaintiff's driver back
to the scene, when he had been released from the hospital some time
later, to confirm the point.
the course of the sergeant's evidence, it became apparent that in
describing how the accident had occurred - specifically in relation
to the truck that was said to have been travelling towards Manzini in
front of the bakkie - the officer had been relying on statements made
to the police, and in particular on the statement given by the
plaintiff's own driver. The sergeant himself had not seen the
accident occur, of course.
Sergeant Mamba was saying that he did prepare the sketch plan from
his own observations at the crash site on 20th June. The plan depicts
the plaintiff's truck as lying at an angle off the road, in its own
lane, with the rear right wheels only on the highway. It shows the
bakkie in the Manzini-Big Bend lane, facing directly towards Manzini.
It shows it as being rather closer to the centre line than to the
Manzini-Big Bend edge of the road, and as being parallel with the
direction of the road. In cross-examination, the sergeant did not
agree that the bakkie had come to rest straddling the centre line. He
said that it was wholly in the opposite lane.
point "C", described as "the point of impact", is
shown as being a short distance in front of the right hand, front
side of the bakkie, 2 paces from the Manzini - Big Bend edge of the
road, and 7 paces from the opposite edge. The sergeant said that, on
the night of the accident, he had personally observed glass
particles, mud and oil. He had found nothing on the other side of the
centre line. For the
of this hearing, I will treat his use of the phrase "point of
impact" only as a convenient summary for those observations. I
do not rely on his own inference from them that "C" was the
point of impact.
also said that he observed deep scratch marks in the road in the
Manzini - Big bend lane. He was familiar with the stretch of road.
The marks had not been there before the accident. They remained here
afterward until the road was restructured.
plaintiff also called Mr. N. Dlamini. He testified that he had been a
passenger in its truck. He had been sitting on a bed, or bunk, behind
the driver. He had an unobstructed view of the road ahead. It had not
been very dark. There had been a little light, but it had been
raining and was misty. He said that "almost all" of the
vehicles on the road had their lights on, and later in his evidence
that he never saw one without its lights on. He said that the
plaintiff's truck had been travelling in its proper lane, and that it
had its lights on. It was travelling at normal speed. He had seen the
other truck coming towards them with its lights on. It was moving. He
had first noticed the bakkie's lights as it overtook the other truck.
In doing so, it had come on to the wrong side of the road, straight
into his truck. The plaintiff's driver had braked and tried to avoid
a collision but the accident occurred almost immediately, i.e. as the
bakkie was in the process of overtaking the other truck. He said that
this happened very quickly.
his examination in chief, he said that the bakkie was travelling at a
"very high speed". when questioned about this in
cross-examination, he said first that it was travelling at a "high
speed", and then that he did not notice it until the plaintiff's
truck came on top of it. Then he said that he could not say anything
about the bakkie's speed. He went on to say that he thought that the
bakkie was travelling fast because of the way its lamps were flashing
while it was turning and, further, that he thought this because of
the damage sustained to the plaintiff's truck - namely the loss of
wheels. On this aspect of his cross-examination, he concluded by
saying that even the plaintiff's truck had been travelling at a high
cross-examination, he agreed also that the bakkie had afterwards been
in a position straddling the centre line, in the middle of the road.
at one point in his cross-examination he agreed that there had been
skid marks on the road (no skid marks having been recorded by
Sergeant Mamba), he later spoke of "scratch" marks which he
himself thought were an indication that his truck had braked.
defendant was able to call one witness. He was Mr. Antonio Da Silva,
who had been a passenger in the cabin of the bakkie and who, as I
understood his evidence, was the only survivor (or at least the only
available survivor) in that vehicle.
Da Silva said that he had been sitting on the left hand side. There
was another passenger between him and the driver. Immediately before
the accident, the bakkie had been travelling at a speed of between 70
and 80 kilometres per hour.
a distance of 20 or 30 metres, he had seen a truck parked without its
lights on in the Big Bend - Manzini lane, in the position that I have
already described in outlining the defendant's version of events. He
had seen it because of its reflectors. Later in his evidence, he said
to me that the bakkie pulled out to pass it when it was about 5
metres from the truck. In saying that, he was describing a definite
manoeuvre, by pulling out to go around the truck. However, he was
also saying that the driver had earlier began to pull to the right
gradually, to pass the truck, in a less pronounced manner. His
evidence, as he gave it, was not in my view inherently contradictory
in that respect at that point. What he was then describing was a
course of action in which the driver began to pull towards the right
and went on to make, eventually, a more definite turn towards the
right to go past the truck ahead.
said that in passing the truck, the driver of the bakkie drove
astride the centre line and he also said that, in passing, it was
necessary to give the truck ahead a sufficient margin of clearance.
testified that as the bakkie was overtaking the other vehicle, he
noticed that there were "lamps, light and sound". As the
bakkie was in the middle of the truck it was overtaking, the lights
had approached and there was a collision. He said that he had not
seen the lights before the collision, and that he saw them "on
bright" (as he put it) at the moment of the collision. Then he
went on to say that he saw them about 2 or 3 seconds, by his
reckoning, before the actual collision. Later in his evidence, he
confirmed this last estimate more than once. He also said that he had
not seen oncoming lights before the bakkie had began to overtake the
said, and it was the defendant's case, that the truck in the Big Bend
- Manzini lane had a trailer. He said too that immediately before the
collision, the bakkie's driver had called out "Look, look, look,
his evidence in chief, he had described the oncoming lights as
"emerging", and said that he did not know how they
"emerged". There was an issue of interpretation, in the
process of translation of his testimony from Portuguese through
Siswati into English, as to whether the Siswati translation actually
meant "emerging" or "coming out". It was not
contended, however, that anything that he himself said explicitly, at
that point, could be construed as meaning that he saw the oncoming
lights being switched on suddenly. In answer to a question that was
put to him later, he did say that the oncoming lights were switched
impact of the collision knocked him unconscious, but he came to at
the scene before he had been extricated from the bakkie.
was not able to say whether the driver of the bakkie applied his
brakes before the collision.
the course of his evidence, Mr. Da Silva also said some other things.
One was that the bakkie had moved from behind the truck in front of
it. Another was that he could not say that the parked truck's front
lights were on, because the bakkie had not passed it before the
accident occurred. At one point, he said that as the
had been driving towards Manzini, he had told the driver to watch his
speed because it was raining.
the first instance, the plaintiff has the legal onus of proving its
claim on a preponderance of probabilities. Although that way of
expressing the burden of proof in a civil case is established so
authoritatively as to be beyond any argument, I must say that I do
not care for it. In plain language, the word "probably"
means more likely than not. If there are competing versions, and on a
proper view it cannot be said that one is more likely than the other,
then I do not think that the first version can correctly be described
as the "probable" truth. For that reason, I think that to
say that something is true on a "balance" of probabilities
is really surplusage.
of the witnesses in this case were shown to be dishonest or to be
obviously evasive. I think that the truth of it is that none of them
were. This is a civil dispute arising from a very tragic accident. It
involves the reconstruction of past events. For those witnesses who
were in the accident, it involves their recollection of events in a
sudden ana extreme crisis. They were in moving vehicles, in darkness,
when the collision occurred. It is obvious that their recollections
are likely to consist partly of impressions, and I also think that in
that kind of situation, it is human nature to wish to be able to
explain and even to justify the events afterwards, even if only to
one's own satisfaction.
his closing submissions, Mr. Flynn argued that on the evidence, it
was not possible to say that either version is more probable than the
other. That situation may sometimes arise, although in my own
experience it is very unusual and I do not consider that it is so
dealing with the controversial evidence of the various witnesses I do
think that it is to the point, in this case, to make some general
bakkie, admittedly, was seeking to overtake the truck in front of it.
It is not in dispute that in order to do so, it did cross (at
partly) into the opposite lane. It is common ground that it was a
dark and wet evening, and that visibility was poor. The bakkie did in
fact collide head on with an oncoming truck. It is not disputed that
the collision occurred while the bakkie was still, at least partly,
in the opposing lane. It occurred before the bakkie had passed the
truck that it was seeking to overtake. On the evidence, the
plaintiff's truck was on its own proper side of the road. It was not
driver of the bakkie plainly had a duty, in seeking to overtake, to
see that the road ahead was clear of oncoming traffic, so that he
could pass the truck ahead safely - in other words without
endangering or causing harm to others. That is a well-established
legal principle: I would simply refer to the cases cited at page 446
of my version of Negligence in Delict, by Macintosh and Sooble, which
is the fifth edition. It is also a matter of common sense for any
competent driver, and it is a consideration of sufficient importance
that, in many countries, it is prescribed in the statute law.
deciding to overtake the truck in front of him, the bakkie's driver
therefore bore a very specific duty of care.
the plaintiff has the legal onus of proof in respect of its claim,
those common facts are in my view themselves very strong evidence, in
the absence of some evidence to the contrary, that the bakkie's
driver was negligent. In the absence of other evidence that, despite
this, he was not at fault, the common facts in my view are sufficient
to prove the negligence of the driver of the bakkie.
defendant's case is that nevertheless, in this accident, it was the
plaintiff's driver who was negligent. It is said that he drove down
the incline at excessive speed without his lights, and that in doing
so he created a hazard that the bakkie driver could not reasonably
have seen or anticipated.
accepting for the argument that the truck did come down the hill at
speed, without lights, I have doubts whether that is right. I think
that there is a real question as to why the bakkie driver failed to
see him. In the way in which the plaintiff's witnesses were
I had the impression at first ( and I think the record will bear this
out clearly) that the defendant was contending that the accident
occurred much closer to the blind crest than the plaintiff's
witnesses acknowledged. It also seemed to me then that the defendant
was thereby contending that the plaintiff's truck had come suddenly,
at speed and without lights, over the blind crest. But in his closing
submissions, Mr. Flynn made it clear that the defendant was not
saying that the blind crest had anything to do with the case.
there is in the first place a question as to why the bakkie driver,
if he did take steps to ensure that the way was clear before he began
to overtake, did not in fact see the truck coming towards him down
this stretch of road, even if the truck were unlit. The duty of care
to see that the way ahead is clear is not a theoretical exercise. To
comply with it, a driver must do tangible things. They may vary from
case to case, to an extent. Here, it was dark. The bakkie driver had
his lights on. The defendant's own case relies on an assertion that
he could not see anything, such as a car's lights, coming towards
him. In those circumstances, there is no apparent reason why he
should not have put his lights on full beam, especially in the
prevailing conditions of poor visibility. By doing so, he would have
had a better view of the way ahead. But even if he had kept them
dipped, I think that there is still a question as to why he would not
have seen the oncoming truck, even if it were unlit - if, of course,
he had been watching the road ahead carefully.
feature of the case was not canvassed in any depth at the trial. I
personally think that it is an important one. Where a person has a
specific duty of care, I think that it is necessary to look
critically at any suggestion that he is nevertheless absolved from it
in the circumstances.
far as the two issues that did arise are concerned - the allegations
that the plaintiff's driver was travelling without lights, at high
speed - it is not sufficient either, in the face of the undisputed
facts, for the defendant to rely on a mere theory or possibility.
There must be some evidence to warrant conclusions that those things
were so. If the plaintiff establishes prima facie that the defendant
was negligent, then that other evidence must at least
that it is just as likely that the plaintiff's driver was driving
without lights, at undue speed - although evidence of lesser cogency
might justify a finding that even if the defendant is liable, there
is some contributory negligence on the plaintiff's part.
is evidence, from the driver of the plaintiff's truck himself, that
he was travelling with his lights on, at between 70 and 80 kilometres
per hour. His evidence as to his lights is supported by his
passenger, Mr. Dlamini. It is common ground that their truck's lights
were on just before the moment of the impact. The only direct
evidence in the case that the plaintiff's truck was travelling at
excessive speed is Mr. Dlamini's acknowledgment, near the end of his
cross-examination, that it was travelling fast. The only direct
evidence that its lights were off, and then were switched on by the
driver at the last minute, is an answer in those terms from Mr. Da
Silva, later in his questioning.
other observation that I want to make is in respect of the truck that
was in front of the bakkie, in the Big Bend - Manzini lane, and the
eventual position of the bakkie after the collision. The evidence for
the defendant was that that truck was parked in such a way that it
was partly off the road. That, and the position of the bakkie, are
disputed, although there is the evidence of Mr. Dlamini (i.e. one of
the plaintiff's own witnesses) that the bakkie came to rest astride
the centre line.
I understand it, the relevance of these two allegations is two-fold.
One point, I think, is that if the truck had been parked partly off
the road, there would have been no reason for the bakkie to go wholly
into the opposite lane, so that the existence of a stationary truck
and the position of the bakkie after the accident do tend to support
one another. The other, in my understanding, is that the position of
the bakkie in particular (but also, I think, the eventual position of
the plaintiff's truck, according to Mr. Dlamini) reflect upon the
credibility of the plaintiff's witnesses.
again, on the undisputed facts and assuming for the moment that the
second truck and, eventually, the bakkie were as the defendant
contends, the common facts would still be very strong evidence that
bakkie's driver was negligent. It would still be necessary for the
defendant to show that there is some evidence, which should be
accepted, from which it can be seen directly or inferred that it is
at least as likely as not that the plaintiff's truck was travelling
unlit and at high speed.
the other eye witness, who were passengers, Mr. Ndzinisa was one of
the drivers involved in the accident. In this trial, the way in which
he himself drove on the night has been put in issue. However, I found
him to be a good witness. He did not dispute that it was a dark night
or that it was raining. He insisted that it was raining lightly and
when the other witnesses on both sides who followed him came to
testify, they confirmed his account. As the driver of one of the
vehicles, I think that it is more likely than not that he was more
aware of what was in fact happening than either Mr. Dlamini or Mr. Da
Silva. He had more reason to be.
defendant's case involves the proposition that Mr. Ndzinisa chose to
drive at speed down an incline on a wet, dark evening without his
head lights on, in a large truck that had a tractor on board. Such a
thing could happen of course. I suppose that the experience of most
drivers is that it does in fact sometimes happen, but I believe that
most would regard it as a rather unusual thing. I think that it is
pertinent to ask why he would have done so and why, on the
defendant's version, he would have done so in the face of the
oncoming bakkie. It had its lights on. Mr. Da Silva was not saying
that it had been sitting behind the other truck, waiting for an
opportunity to pass it. On the defence version, it would surely have
been visible to Mr. Ndzinisa, as it came towards the parked truck.
Flynn made the point that the same thing might be said of the
bakkie's driver: in other words, why would he have tried to overtake
a truck in the face of an oncoming vehicle with its headlights on? It
is a point to be considered. Both are broad considerations that have
to be weighed, of course, in the context of the specific evidence in
the case. It does, however, seem to me to be easier to understand - I
put it no higher than that - that a vehicle behind another might pull
out into oncoming traffic than that in the prevailing conditions on
the evening of the accident, a loaded truck would come down an
the way in which the defendant says that the plaintiff's vehicle did
was not suggested that Sergeant Mamba was not an independent witness.
In assessing his evidence, I do think that it is necessary to take
into account the danger that, in the course of his investigations, he
may not have kept a clear distinction in his mind between his own
observations and the results of his subsequent inquiries. His
tendency to intermix them, at least initially, was apparent from the
way in which he gave evidence about the other truck and the bakkie's
attempt to pass it. I indicated that I also had a reservation about
the neatness of the way in which he depicted the position of the
bakkie afterwards. It is not shown in the same position as Mr.
Dlamini said it was. I do not think at all that the sergeant wilfully
put it in the wrong position, but there was a reservation in my mind
as to whether, in putting it there, he may not have been
reconstructing the accident and its aftermath. In the manner in which
he gave his evidence, he also conveyed to me something of an
impression that he was answering questions a little too readily -
though, again, not because he was not being candid. I had the feeling
that he was concerned to be helpful and, for that purpose, to give a
good impression. I think that both counsel will know what I mean in
that respect, but in any event I think that it will be quite apparent
from the tape recording of his evidence.
on careful reflection, and even though I may have commented
critically on the sergeant's evidence, my own conclusion is that he
is a witness who is credible and who supports Mr. Ndzinisa's account
independently. There is a discrepancy between his testimony, and that
of Mr. Dlamini, as to where the bakkie came to rest. But on looking
again at my notes of the sergeant's evidence, I do not think that on
a proper view he was ever saying that he observed the point of
impact, with Mr. Ndzinisa, on the night of the accident. I think that
that was simply an impression that was created, but that he was in
fact saying two quite separate things. One was that he and Mr.
Ndzinisa had inspected the point of impact. He later explained that
they did so afterwards. I see no reason to doubt him. Mr. Ndzinisa's
evidence was that although he was conscious, he had to be taken to
hospital where he remained under treatment for a considerable time.
sergeant did also say unequivocally, and immediately after he first
referred to the fact that he inspected point "C" with Mr.
Ndzinisa, that he himself had - of his own accord - established this
as the "point of impact". In retrospect, I am satisfied
that he was not in this respect confusing his own observations on the
night with his later investigations. I am satisfied that this was
nothing more than an impression that came about because of the
sequence in which he was questioned in court.
Flynn, in closing submissions, pointed out that Plaintiff's Exhibit
6, which is a faired plan which the sergeant admittedly prepared
afterwards from the rough sketch, bears an indication that in marking
point "C", Sergeant Mamba had taken into account his
subsequent return to the accident site with Mr. Ndzinisa. It is not
an unequivocal indication. In the key to that later plan, Sergeant
Marr:ba has described. "C" as the "Point of impact by
Driver A" (i.e. Mr. Ndzinisa) "and the investigator".
I think that it is a valid point, however. No such qualification
appears on Plaintiff's Exhibit 5, and on the later plan, the sergeant
has also reconstructed the supposed line of travel of both vehicles
by the use of arrows.
it was his evidence that he had prepared the rough sketch
(Plaintiff's Exhibit 5) on a clip board on the night of the accident
at the scene. That he did so was not otherwise challenged in any way.
It is clear that Mr. Ndzinisa was not then present. I therefore see
no reason at all to suppose that on Plaintiff's Exhibit 5, point "C"
is anything except a position that Sergeant Mamba marked from his own
was not challenged on his evidence that the front, right side of the
bakkie was by his measurement two paces from the Manzini - Big Bend
edge of the road, and seven paces from the opposite side. He was not
challenged about his evidence that he found mud, fragments and oil at
point "C", and that he found nothing of that sort in the
Mamba did say, explicitly, that on the night of the accident the
bakkie was entirely in the Manzini - Big Bend lane and not across the
centre line. His rough sketch plan does not show the presence of
parked truck. He said that no such truck was present when he arrived
(other, of course, than the plaintiff's truck).
in its entirety, I consider that the sergeant's evidence does support
that of Mr. Ndzinisa.
Dlamini, in cross-examination, did say that the bakkie came to a halt
astride the centre line. Mr. Flynn also elicited from him, at the end
of his cross-examination, a statement that the plaintiff's truck had
itself been travelling fast. In the course of reaching that point,
Mr. Flynn also succeeded in demonstrating that Mr. Dlamini's initial
assertion that the bakkie had been travelling at a very high speed
was of doubtful reliability as a bald statement. In
cross-examination, Mr. Flynn showed that Mr. Dlamini had several
reasons for saying so, and it became apparent that he was not very
clear in his own mind about it.
do not think that the first point is of any real consequence. On
balance, I prefer Sergeant Mamba's evidence to that of Mr. Dlamini.
The police officer examined the scene. He made deliberate
observations, took measurements and prepared a rough plan on the
spot. Mr. Dlamini was a passenger in a vehicle that had just been in
a very serious accident.
second point has more substance, but it is my own assessment of Mr.
Dlamini's evidence that, at the relevant point, he was recounting en
impression of an accident happening suddenly and at speed. He himself
was not shown to be a liar, and I do not consider that his testimony
shows at all that Mr. Ndzinisa, who was driving the truck, was not
being truthful about his speed. Mr. Dlamini's impression is not in my
view inconsistent with a collision at night between two vehicles,
each travelling at between 70 and 80 kilometres per hour. In that
part of his evidence, he was describing an emergency that occurred
suddenly and quickly. The vehicles, about to collide at 70 to 80
kilometres per hour, may very well have seemed to him at that moment
to be travelling at speed. The gap between them would have been
closing at not less then 140 kilometres per hour, and possibly as
much as 160 kilometres per hour - and doing so suddenly.
his demeanour, Mr. Da Silva was not in any way obviously lacking in
credibility either. However, he was a passenger. He was sitting on
the left hand side. In weighing the significance of his testimony, in
respect of both the plaintiff's and the defendant's versions, it is
necessary to bear in mind that he was a passenger. what he saw, of
course, was not necessarily what the driver of the bakkie saw. Thus
for example, when Mr. Da Silva said that he first noticed a parked
truck when it was 20 or 30 metres ahead of the bakkie, that does not
mean of course that the driver had not seen it sooner.
are features of Mr. Da Silva's evidence, however, that I do not find
easy to understand, objectively. It is common ground that the
collision occurred when the bakkie and the plaintiff's truck were
alongside the other truck. On the evidence, it appears to have
occurred when each of them was about half way past that other truck
do not find it very easy to reconcile that with Mr. Da Silva's
testimony that the other truck was stationary; that the bakkie was
travelling at between 70 and 80 kilometres per hour; that it had
already began to overtake the stationary truck before Mr. Da Silva
saw the lights; and that he first saw the oncoming lights two or
three seconds before the impact. At that speed, a vehicle will cover
a considerable distance in 2 seconds. There was no evidence that it
braked. Mr. Da Silva's evidence that the driver exclaimed "Look,
look, look, look" is consistent with his estimate of the time
between the sighting of the oncoming truck and the impact. Even
allowing for the fact that the other truck had a trailer, Mr. Da
Silva's evidence seems to me to be more consistent with a situation
in which the accident occurred while the bakkie was seeking to
overtake a moving truck.
his evidence in chief, Mr. Da Silva did not say that the oncoming
truck's lights were switched on suddenly. What he was saying, then,
was that they emerged just before the collision - or that they came
out. Although he did say explicitly, in answer to a subsequent
question in cross-examination, that they were suddenly switched on,
he did so in answer to a direct, leading question. The fact that a
is leading does not mean that the answer is necessarily true, of
course. In his examination in chief, Mr. Flynn had explored at some
length Mr. Da Silva's evidence that the oncoming lights had "emerged"
or "come out". I do not attach any weight at all to the
answer eventually given in cross-examination. I think that it came
out because of the nature of the legal process. It was a response to
a question, as it was put, and I believe that this will again be
apparent again from a consideration of the tape recording. If Mr. Da
Silva was really saying that the driver of the plaintiff's truck had
suddenly switched his lights on, I have no doubts at all that he
would have made that quite clear, at once, in his examination in
is to my mind very unlikely that Mr. Ndzinisa switched his lights on
just before the collision. why would he have done that (if they had
even been off). The obvious answer would be because he suddenly saw
the bakkie. But why would he have seen it suddenly? It is common
ground that the bakkie had its lights on. In the dark, the lights are
what he would have seen. If the defendant's version of events is
correct, there is no obvious reason why Mr. Ndzinisa would have
delayed, until just before impact, to turn them on.
is no apparent reason why he should not have seen them already; and
by the time the collision was, at most, three seconds away the
switching on of his lights would in my view have been the last of his
priorities. In fact, having regard to human reaction times, the idea
that his first action would have been to switch on his lights seems
to me to be academic. His reflexive actions, surely would have been
to brake or to take avoiding action or possibly both, as he said he
did. Having done so, he would have had no time left in which to then
switch on his lights. I am not saying that definitively, but it
appears to me to be extremely unlikely that he would have turned on
his lights as the defendant alleges.
is even less likely if, as the plaintiff contends, the bakkie pulled
out suddenly from behind the other truck. In the time that remained
before the collision, I do not believe that that would have been Mr.
Ndzinisa's immediate reaction, and I doubt very much that he could
have reacted in time to switch his lights on in that situation.
evidence for the plaintiff was that the bakkie was behind the other
truck just before the collision. Mr. Da Silva's evidence is not
inconsistent with this. He described the bakkie at one point as being
"behind" the other truck. Although he said earlier that it
began to pull to the right, he also described a definite manoeuvre,
just before the bakkie reached the other truck, in which its driver
turned - or at least made a more pronounced move to the right - to
pass the other truck. That is consistent with the plaintiff's
am not able to accept Mr. Flynn's argument that this case involves
closely balanced, competing versions as to how this accident
occurred. On the whole of the evidence, I consider that there is a
very strong probability that the plaintiff's version is true. It
would explain why the accident occurred, i.e. because the driver of
the bakkie -following closely behind a moving truck - pulled out to
overtake it without ensuring that the way ahead was clear, and found
himself confronted abruptly with an oncoming truck. I think that that
is very probably what happened. I do not consider that there is any
satisfactory evidence from which it can be inferred that Mr. Ndzinisa
was driving at an excessive speed; and I do not believe that he was
driving with his lights off, and that he then turned them on
immediately before the accident.
think that, in all probability, the reason why Mr. Da Silva did not
see any oncoming lights until the bakkie had began to overtake the
other truck, and that they then "emerged" (as he put it),
was that he was the left hand passenger in a smaller vehicle that had
been following closely behind a moving truck that was drawing a
trailer; and that what he in fact saw, as it pulled out suddenly to
overtake the truck, were the unanticipated headlights of the
plaintiff's truck, which was itself about to pass the other truck.
those circumstances, I do not consider that the plaintiff in any way
contributed negligently to the collision. I do not consider that has
been shown. Accordingly, I give judgment for the plaintiff on its
against the defendant in the agreed sun of E69,700. The counterclaim
fails. The plaintiff is entitled to costs on both claims, and I so