THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

No precedential significance

Case No 577/2010

In the matter between

PUTCO (PTY) LTD

APPELLANT

and

WINNIE MINA MOSHOLI

RESPONDENT

Neutral citation: Putco (Pty) Ltd v W M Mosholi (577/2010) [2011] ZASCA 95
(31 May 2011)

Coram:
NAVSA, CLOETE, MALAN, MAJIEDT JJA and MEER AJA

Heard:
12 MAY 2011

Delivered:
31 MAY 2011

Summary:
Damages ─ collision ─ mutually destructive versions ─
probabilities and improbabilities even ─ no grounds for interference with trial
court's credibility findings.

______________________________________________________________

ORDER
______________________________________________________________

On appeal from: North Gauteng High Court (Pretoria) (Van den Heever AJ,
sitting as court of first instance):

The appeal is dismissed with costs.

______________________________________________________________

JUDGMENT
______________________________________________________________

MAJIEDT JA (NAVSA, CLOETE, MALAN JJA and MEER AJA
concurring):

[1] The appellant appeals against the judgment and order of Van den
Heever AJ, sitting as court of first instance in the North Gauteng High Court,
Pretoria, in terms whereof the appellant was held liable for such damages
exceeding the amount of R25 000 as the respondent is able to prove to have
suffered as a consequence of injuries sustained in a motor vehicle collision.
This appeal is with the leave of the court below.

[2] The trial proceeded on the issue of liability only, the issue of the extent
of the respondent's damages having been ordered to stand over for later
determination. The incident giving rise to the claim concerns a collision
between the appellant's bus in which the respondent, Ms Winnie Mosholi, was
a fare paying passenger, and a bakkie. After hearing evidence the trial court
found the probabilities and improbabilities to be evenly balanced and decided
the matter on the credibility of the parties' respective witnesses. It found the
evidence presented by one of the respondent's witnesses, Mr Fernando
Manuel, who was a passenger in the bakkie, to be more credible than that of
the appellant's sole witness, Mr Stephen Seloane, the driver of the bus. As a
consequence, the trial judge held that Seloane's negligent driving was the
sole cause of the collision.

[3] The court below further found that the Road Accident Fund (RAF) is
not a joint wrongdoer for purposes of s 2(10) of the Apportionment of
Damages Act, 34 of 1956 (the Act). The finding was made by the trial judge
on the basis that, even if he was wrong in rejecting Seloane's evidence,
Seloane was in any event on his own version contributorily negligent.

[4] The collision caused the bus to overturn, resulting in a number of
fatalities and injuries to passengers. The RAF settled the respondent's claim
for damages in the magistrate's court for its full amount, namely R25 000,
being the erstwhile statutory limit in respect of a claim of a passenger being
conveyed for reward in terms of the Road Accident Fund Act, 56 of 1996.1
The respondent claimed the balance of her damages from the appellant in the
court below. It was common cause that, at the time of the collision, Seloane
was acting in the course and scope of his employment with the appellant.

[5] Appellant's counsel attacked the trial court's credibility finding in favour
of Manuel on a number of grounds. He alluded to the fact that Manuel is the
only one of a number of the respondent's witnesses who makes mention that
the bus was swerving from side to side prior to it crashing into the bakkie.  But
it is fallacious to reason that, because other witnesses make no mention of
this fact, it did not happen. In my view it is quite possible that the passengers
in the bus were not aware of the bus moving from side to side. Manuel, being
conveyed in the bakkie ahead of the bus, noticed its lights 'zig-zagging' (as he
described it) behind their vehicle. I am not persuaded that this contention has
any merit. Counsel contended further that the trial judge was inconsistent in
rejecting the evidence of one Mr Kuzwayo, one of the respondent's witnesses
who was also a passenger on the bus, for deviating from earlier written
statements, whereas Manuel's evidence was accepted, despite him not
having mentioned the swerving of the bus in his written statement. The
criticism is unfounded. Kuzwayo's evidence was rejected on a number of
bases, including his failure to mention material facts relating to Seloane's

1 The respondent's case falls outside the purview of the judgment in Mvumvu v Minister for
Transport 2011 (2) SA 473 (CC) which declared the statutory limitation provision in the said
Act invalid ─ see para 54 thereof.

driving, in his earlier written statements. The trial judge was careful in his
assessment of Manuel's evidence. He found his evidence as a whole
satisfactory and more credible. It is in that context that the trial judge accepted
Manuel's evidence, despite the omission referred to above. In any event,
Manuel did not deviate from his written statement; he merely added a further
aspect in his testimony.2

[6] The trial judge, correctly in my view, found that the collision occurred
due to Seloane's failure to keep a proper lookout. He justifiably criticized
Seloane's unsatisfactory evidence in the following respects – Seloane was
unable to state whether he had flashed his lights or whether they were on
bright before the collision, whether he had swerved to the right before or only
after the collision, whether he applied brakes to avoid the collision and, if he
did, why his speed was not reduced. He was also unsatisfactory in his
evidence concerning the movement of the bakkie onto the roadway prior to
the accident.  The trial judge correctly found that the manoeuvres that
Seloane claimed to have executed to avoid the collision, are not compatible
with the timeframe of his description how the collision occurred. This is
particularly so in respect of his testimony that the bakkie suddenly and without
warning moved into his path of travel. Seloane's version was rightly rejected
by the court below.

[7] The trial judge cannot be faulted in his finding that Seloane's
negligence was the sole cause of the collision. His approach and findings on
the probabilities and on the witnesses' credibility are in my view unassailable.
He gave a carefully reasoned judgment, furnishing detailed reasons for his
credibility findings in favour of Manuel and against Seloane. The submissions
advanced by counsel to challenge the credibility findings against Seloane do
not bear scrutiny. The record supports the trial judge's comprehensive
motivation for rejecting his evidence. There are no grounds upon which this
court can interfere with the trial judge's credibility findings. Upholding the
finding of the court below that Seloane's negligence was the sole cause of the

2 See S v Mafaladiso & andere 2003 (1) SACRS 83 (SCA) at 593E-594C.

collision has the result that the other issue mentioned in para 3 above does
not arise.

[8] The appeal is dismissed with costs.

___________

S A MAJIEDT

JUDGE OF APPEAL

APPEARANCES

Counsel for Appellant
:
T POTGIETER

Instructed by

:
SAVAGE JOOSTE & ADAMS INC

PRETORIA

NAUDES, BLOEMFONTEIN

Counsel for Respondent
:
F DIEDERICKS

Instructed by

:
WILSENACH VAN WYK GOOSEN &

BEKKER, PRETORIA

HUGO AND BRUWER

BLOEMFONTEIN
THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE
SUPREME COURT OF APPEAL
MEDIA SUMMARY – JUDGMENT DELIVERED IN COURT OF
APPEAL
27 May 2011

STATUS: Immediate

PUTCO (PTY) LTD v WINNIE MINA MOSHOLI (577/2010)

Please note that the media summary is intended for the benefit of the media and
does not form part of the judgment of the Supreme Court of Appeal

The Supreme Court of Appeal (the SCA) today dismissed with costs an appeal
against the judgment and order of Van den Heever AJ in the North Gauteng High
Court, Pretoria, in terms whereof Putco was held liable for such damages exceeding
the amount of R25 000.00 as Ms Winnie Mosholi is able to prove to have suffered as
a consequence of injuries sustained in a motor vehicle collision.

Ms Mosholi was a fare paying passenger in a Putco bus en route to the Kruger
National Park on a social excursion when the bus collided from the rear with a
bakkie on the N4 toll road.  She sustained injuries and received an amount of R25
000.00 from the Road Accident Fund as settlement.  She successfully sued Putco in
the Pretoria High Court for the balance of her damages.

The SCA held that the trial judge correctly found that the probabilities and
improbabilities were evenly balanced and that there are no grounds warranting
interference on appeal with the credibility finding which he made in favour of Mr.

Mosholi’s witness and against Putco’s witness.  The appeal was therefore dismissed
with costs.

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