MAROPENE JOSEPHINE BOTHETELE

IN THE HIGH COURT REPUBLIC OF SOUTH AFRICA

(GAUTENG DIVISION, JOHANNESBURG)

CASE No: 105 /2017

In the matter between:

TOM CRUISE Plaintiff

and

SAM SLOW Defendant

ADVICE ON EVIDENCE

1. INTRODUCTION

1.1. Consultant is Sam Slow, the Defendant, who is sued by Tom Cruise for

damages to his car in the amount of R360 000.00, of which damages were

caused by the collusion that occurred between the Plaintiff’s and the

Defendant’s motor vehicles.

2. DISCUSSION OF THE PLEADINGS

2.1. Pleadings are closed by way of consent between parties and no replication or

further pleadings are required.

3. SUMMARY OF THE ISSUES

3.1. FACTS THAT ARE COMMON CAUSE

 The parties’ personal details and locus standi.

 The collision of occurred between motor vehicle with registration number FFF 007

GP, driven by the plaintiff’s collided with a Ford Cortina, registration number SSS 111

GP belonging and driven by the defendant.

 The location of the collision.

 The plaintiff suffered damages to the motor vehicle which he was bona fide

possessor in the amount of R360 000.00

 The defendant failed to pay the plaintiff the amount of R 360 000.00 claimed for

damages resulting from the accident.

3.2. ISSUE THAT ARE IN DISPUTE

 The collision was caused by the sole negligent of the defendant.

 The Defendant failed to :

- give any indication of his intention to swerve from the far left hand lane in

William Nicol Drive into the lane in which the Plaintiff was travelling;

- pay any or adequate regard for the fact that his vehicle was at the

material time being overtaken by the Plaintiff’s motor vehicle in the lane

next to that in which his vehicle was travelling;

- failed to keep any or a proper lookout; and

- avoid the collision when by the exercise of reasonable care he could and

should have done so.

 The Plaintiff:
 - Overtook or attempted to overtake the Defendant’s motor vehicle when it

was unsafe to do so;

- Drove at an excessive speed;

- Failed to keep a proper lookout;

- Attempted to drive while using a cellular telephone by holding its handset;

and

- Failed to avoid the collision when by the exercise of reasonable care he

could and should have done so.

4. BURDEN OF PROOF AND DUTY TO BEGIN

The plaintiff has a duty to begin since he is dominus litis and he bears onus of proof

which should be discharged on the balance of probabilities.

5. NOTICES

5.1. RULE 21

Kindly draft and deliver to the Plaintiff the request for further particulars to enable the

Defendant prepare for trial and request the following:

(a) The make, model and year of the motor vehicle that the Plaintiff was driving;

(b) The kilometre reading of the motor vehicle at the time of the collussion;

(c) Is the aforesaid motor vehicle insured? ;

(d) Is the Plaintiff the owner of the motor vehicle? ;

(e) If no who is the owner off the motor vehicle? ;

(f) Was the plaintiff authorised to drive the motor vehicle? ;

(g) For what purpose was he authorised to drive the motor vehicle for? ;

(h) Does Plaintiff have a valid driver’s license? ;

(i) What is the date of first issue the Plaintiff’s drivers licence? ; and

(j) Is the Plaintiff trained for advanced driving and/or operating a sports car?
 5.2. RULE 35

(a) Enquire if there is any surveillance camera at the location where the accident in

question occurred. If there is any, serve a Rule 35 (3) notice to the relevant

possessor and discover the footage.

(b)Did the Plaintiff send the motor vehicle for damage assessment with a certified

panel beater and was there any quotation drawn by this panel beater? If yes, kindly

discover the quotation.

5.3. RULE 36

Plaintiff claims that the damage to the motor vehicle is R 360 000.00. If the motor vehicle

is not repaired, issue a Rule 36 (6), find a certified panel beater and conduct the

inspection in order to determine whether the Plaintiff’s claim is inflated or not.

6. EVIDENCE

5.1. ORAL EVIDENCE

(a) Tina turning has already given her statement to the police, she is a compellable

witness. Deliver a subpoena to her.

(b) Set up a consultation for Sam Slow as he is the key witness in order prepare him

for trial.

5.2. DOCUMENTARY EVIDENCE

(a) The following documents from police dockets shall be used as evidence:

 Statement of Tom Cruise;

 Statement of Sam Slow;

 Statement of Tina Turning;

 Photos of scene;

 Accident report; and

  Sketch plan.

7. PRETRIAL CONFERENCE

Arrange pre-trial conference with the attorney and counsel of the Plaintiff twenty-five

days before trial.

8. PROSPECTS OF SUCCESS

The defendant has a fair chance of success if it can be proven on balance probabilities

that the Plaintiff was driving over the permissible maximum speed and that while so

driving he failed to keep a proper lookout.

9. ESTIMATED DURATION OF TRIAL

Trial is expected to last five days unless new evidence or witnesses are introduced.

10. RECOMMENDED STEPS

In a case of non-compliant by the Plaintiff’s lawyers in respect of any notice issued to

them, kindly advise as soon as possible after the expiry of the allowed period allowed for

compliance so as to counter the non-compliance by leave of court.

Dated at Polokwane on this the 09th July 2017.

____________________

Adv. J Bothetele
 IN THE HIGH COURT REPUBLIC OF SOUTH AFRICA

(GAUTENG DIVISION, JOHANNESBURG)

CASE No: /2017

In the matter between:

TOM CRUISE Plaintiff

and

SAM SLOW Defendant

HEADS OF ARGUMENT

1. INTRODUCTION
1.1. The Plaintiff brought a civil claim against the Defendant for damages to his

car in the amount of R360 000.00, of which damages were caused by the

collusion that occurred between the Plaintiff’s and the Defendant’s motor

vehicles.

2. FACTUAL BACKGROUNG

2.1. On or about 31 December 2009 and at 15h30 at the intersection of William

Nicol Drive and Saxon Road, Randburg, a collision occurred when a Ford Cortina

motor vehicle with registration number SSS 111 GP, being driven by the Plaintiff

collided with a motor vehicle with registration number FFF 007 GP being driven by

the Plaintiff.

2.2. The plaintiff’s incurred damage to his motor vehicle in the amount of

R360000.00 which amount he is claiming from the Defendant.

2.3. The Defendant denies liability and claims the accident was caused by the sole

negligence of the Plaintiff.

3. APPLICABLE LAW

THE FOLLOWING ARE THE REGULATIONS EXTRACTED FROM NATIONAL

ROAD TRAFFIC ACT 93 OF 1996 APPLICABLE TO THE ISSUES.

3.1. 292. General speed limits

A general speed limit of –

(b) 120 kilometres per hour shall apply in respect of every freeway.

3.2. 298. Passing of vehicle

(1) Subject to the provisions of subregulation (2) and (4) and regulation 296, the

driver of a vehicle intending to pass any other vehicle proceeding in the same

direction on a public road shall pass to the right thereof at a safe distance and shall

not again drive on the left side of the roadway until safely clear of the vehicle so

passed…

3.3. 299. Crossing or entering public road or traffic lane

(3) The driver of a vehicle on a public road divided into traffic lanes by appropriate

road traffic signs shall not turn from one lane into or across another lane unless he or

she can do so without obstructing or endangering other traffic.

3.4. 308. General duties of driver or passenger of vehicle on public road

(1) No person driving or having a vehicle on a public road shall

(b) Follow another vehicle more closely than is reasonable and prudent having

regard to the speed of such other vehicle and the traffic on and the condition of the

roadway, or more closely than is prescribed in these regulations;

 3.5. 308A. Prohibition on use of communication device while driving

(1) No person shall drive a vehicle on a public road -

(a) While holding a cellular or mobile telephone or any other communication device in

one or both hands or with any other part of the body;

(b) while using or operating a cellular or mobile telephone or other communication

device unless such a cellular or mobile telephone or other communication device is

affixed to the vehicle or is part of the fixture in the vehicle and remains so affixed

while being used or operated, or is specially adapted or designed to be affixed to the

person of the driver as headgear, and is so used, to enable such driver to use or

operate such telephone or communication device without holding it in the manner

contemplated in paragraph (a), and remains so affixed while being used or operated.

3.6. 323. Special provisions relating to freeways

(5) Where the driver of a motor vehicle which is being driven in the right-hand traffic

lane or in the traffic lane furthest to the right on a freeway (hereinafter referred to as

the first vehicle) becomes aware that the driver of another motor vehicle (hereinafter

referred to as the second vehicle) intends to overtake the first vehicle, the driver of

the first vehicle shall steer that vehicle to a lane to the left of the one in which he or

she is driving, without endangering himself or herself or other traffic or property on

the freeway, and shall not accelerate the speed of his or her vehicle until the second

vehicle has passed.

GROUNDS FOR OPPOSING ACTION

4. DRIVING AT AN EXCESSIVE SPEED

4.1. The maximum speed on a high way in South Africa is 120. It is evident from the facts

of the cause of action that the Plaintiff was driving over the allowed maximum speed.
4.2. The plaintiff solely caused the collision due to his negligent driving and failure to

observe the rules of the road.

5. OVERTAKING A MOTOR VEHICLE WHILE IT IS UNSAFE TO DO SO AND

FAILING TO KEEP A PROPER LOOKOUT

5.1. The plaintiff overtook the motor vehicle of the Defendant while it is unsafe to do so

thus causing the accident.

5.2. The Plaintiff failed to keep a proper lookout and to consider other road users.

5.3. In the light of the above, the Plaintiff contravened regulations 298 and 308 of National

Road Traffic Act 93 OF 1996.

5.4. It is trite that every driver has a duty to scan the road ahead of him at all times,

and to avoid a collision happening. In the matter of Road Accident Fund v Grobler

(96/06) ZASCA 78; (2007] SCA 78 (RSA); 2007 (6) SA 230 (SCA) (31 May

2007), the SupremeCourt of Appeal held that:

“In a situation similar as in casu, the proper approach is not to confine the inquiry

into the negligence to the conduct of the driver from the moment they became

embroiled in an emergency. The inquiry must extend to cover what steps a driver

took to avoid the impending emergency. If he/she had an opportunity to take

measures ahead of the emergency to avoid the accident, and heIshe failed to do

what a reasonable person in similar circumstances would have done, then he /or

she would have been negligent.”

6. DRIVING WHILE USING A CELLULAR TELEPHONE BY HOLDING ITS HANDSET

6.1. It is also trite law that the driver of a motor vehicle is not allowed to use a cellular

phone by holding its handset whilst driving. Cellular telephone are very disruptive especially
if the motor vehicle is travelling at high speed. The Plaintiff further drove whilst using a

cellular phone thus contravening regulation 308A of National Road Traffic Act 93 OF 1996.

6.2. The accident might have occurred when the Plaintiff focused on the cellular

telephone which he was holding in his hands while at simultaneously driving.

7. SUDDEN EMERGENCY

7.1. The defendant was faced with sudden emergency as he had to avoid colliding with

the car the just entered the road into his lane. While trying to avoid the collision, the

Defendant served in the lane to his right hand and it was safe to do so.

7.2. In the matter of Road Accident Fund v Grobler (96/06) ZASCA 78; (2007] SCA 78

(RSA); 2007 (6) SA 230 (SCA) the Supreme Court of Appeal held that:

"It is clear from the evidence that the respondent was plunged into a situation of sudden

emergency, that he had no more than a second within which to escape that emergency, and

that he effectively was given a choice between danger, or veering away from it and hoping

that it would not follow him. He did the latter.

7.3. In SAR and H v Symington 1935 AD 37 Wessels CJ stated at paragraph 45, the

court held that:

‘Where men have to make up their minds how to act in a second or in a fraction of a second,

one may think this cause better whilst another may prefer that. It is undoubtedly the duty of

every person to avoid an accident, but if he acts reasonably, even if by a justifiable error of

judgment he does not choose the very best course to avoid the accident as events

afterwards show, then he is not on that account to be held liable for culpa.’

In the premises, it is submitted that the Plaintiff caused the collision solely and he is thus

responsible for the damage to his motor vehicle. It is prayed that the Honourable Court

dismiss the Plaintiff’s Claim with cost against him.

Dated at Polokwane on this the 09th day of JULY 2017

________________________

Adv. MJ Bothetele