THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

Not Reportable
Case Number:  422 / 06

In the matter between

THE PIETERMARITZBURG SOCIETY FOR THE PREVENTION
OF CRUELTY TO ANIMALS
APPELLANT

and

JUNAID PEERBHAI
RESPONDENT

Coram :
CAMERON, PONNAN JJA ET SNYDERS AJA

Date of hearing :
18 MAY 2007

Date of delivery : 29 MAY 2007

SUMMARY

Motor vehicle collision  -  two irreconcilable versions  -  onus of proof  -  failure to
discharge.

Neutral citation:  This judgment may be referred to as :
Pietermarizburg SPCA v Peerbhai [2007] SCA 66 (RSA)

___________________________________________________________________

J U D G M E N T

___________________________________________________________________

PONNAN  JA

[1] This appeal is a sequel to a motor collision between a Nissan bakkie and a
Toyota car that occurred at approximately 19:30 on 21 July 2001 in the vicinity of
Woodhouse and Alice Grange Roads in Pietermaritzburg.  In consequence of the
collision the owner of the Nissan bakkie, the Pietermariztburg SPCA ('the appellant')
sued the respondent, Mr Junaid Peerbhai, the driver of the Toyota, in the
Pietermaritzburg Magistrates' Court for payment of R21 330 being damages
allegedly suffered by it.

[2] The claim was dismissed by the trial court with costs, as was an appeal to the
Pietermaritzburg High Court (Baqwa AJ and Hugo J).  The further appeal to this
Court is with the leave of the High Court (Hugo J and Lopes AJ).

[3] The magistrate in essence concluded that on a conspectus of all the evidence
he was not persuaded one way or the other and, in the result, the appellant had not
proved that the respondent was negligent.  Moreover, according to the magistrate
the appellant would in any event have failed on quantum as well.  The conclusion
that I reach on the first aspect renders it unnecessary for me to consider the second.

[4] Each driver alleged that the other motor vehicle had veered onto its incorrect
side of the road.  Each asserted that he had been forced to take avoiding action but
was unable by the exercise of reasonable care and skill to avoid the collision.  Mr
Alec Stewart Wylie, an employee of the appellant who was the driver of the Nissan at
the relevant time, testified that he was returning to the property of the appellant in
Woodhouse Road, where he then resided, when he observed the lights of an
oncoming motor vehicle.  As he negotiated a bend in the road he realised, 'at the last
second', that the lights of the oncoming vehicle were on his side of the road.  The
vehicle was then no more than two-and-a-half to three metres away.  He braked,

hooted and swerved but was unable to avoid the collision with the oncoming motor
vehicle, which according to him was straddling the middle line at the point of impact.

[5] Mr Junaid Peerhbai testified that he was travelling together with two
passengers in his father's Toyota motor vehicle from his home in the suburb of
Allandale to Durban Road.  According to him, whilst travelling on an incline in
Woodhouse Road and just before Alice Grange Road veered to his left off
Woodhouse Road, he observed an oncoming vehicle 'beginning to usurp' his lane.
To avoid what he described as a head-on collision he swerved into Alice Grange
Road but was unable to avoid the collision, which on his version occurred in Alice
Grange Road.

[6] The two versions were mutually destructive in the sense that the acceptance
of the one necessarily had to lead to the rejection of the other.

[7] A third witness, Ms Louise Janse van Vuuren who had apparently also
witnessed the collision in question was called by the plaintiff.  One would have
thought that her evidence would have tipped the scales one way or the other.  The
trial court concluded that it did not.  In that conclusion, in my view, the trial court
cannot be faulted.  According to Ms Janse van Vuuren, that evening she was
awaiting the arrival of a friend who was en route to her home to take her to the
cinema.  When her friend called to inform her that she had lost her way, Ms van
Vuuren set off on foot down Alice Grange Road, where she then lived, in the
expectation that she could meet her friend at the intersection of Alice Grange and
Woodhouse Roads.  As she was approaching that intersection she observed what
she described as a collision between a white bakkie with a canopy and another
motor vehicle.  From her vantage point the white bakkie was travelling in a direction
roughly away from her and the other vehicle towards her.  She was emphatic that it
was the driver of the other motor vehicle (not the bakkie) who was in the wrong as
his vehicle had veered onto its incorrect side of the road.  In other respects her
evidence was not only less than certain but difficult to reconcile with what was either

common cause or undisputed between the drivers.  Thus, for example, according to
her, after the collision an argument ensued between the drivers.  Both of them had
testified, however, that they had exchanged particulars without any rancour or
acrimony.  Her evidence as to where the vehicles came to rest immediately after the
impact was also at odds with the common cause facts.  She did not observe the
distinctive SPCA sign on the door of the bakkie, nor for that matter did she notice
Peerbhai's two passengers.

[8] I accept, as was urged upon us by counsel, that Ms van Vuuren was an
honest and impartial witness.  That, however, in and of itself cannot exonerate her
evidence from careful scrutiny.  The blemishes in her evidence to which I have
already alluded render her observations neither reliable nor credible.  Whilst the poor
lighting and the distance of her vantage point from the collision explain many of the
unsatisfactory features in her evidence, they hardly serve to explain the audible
argument between the drivers that she allegedly overheard.  That seemingly
inconsequential piece of evidence is particularly troubling for it is irreconcilable with
the evidence of both Wylie and Peerhbai and impacts in a direct and substantial way
on her cogency as a witness.  Taken together with the other criticisms that can be
levelled against her, it ultimately impels one to the conclusion that her evidence does
little to assist the appellant in the discharge of the onus that confronted it.

[9] For, in a case such as the present, where there were two mutually destructive
versions, the appellant, upon whom the onus rested, could succeed only if it satisfied
the trial court on a preponderance of probabilities that its version was true and
therefore acceptable, and the other version advanced by the respondent was either
false or mistaken and fell to be rejected.  That, in my view, the appellant did not do.
Peerbhai came across as a mild-mannered, easy-going witness, who obviously
made a good impression on the magistrate.  Nothing in his evidence was inherently
improbable and the version advanced by him was as plausible as that advanced by
the appellant.  In the circumstances the trial court was right to conclude that the onus
resting on the appellant had not been discharged.

[10] One final aspect merits mention.  The amount claimed in this matter was R21
330  —  paltry when compared to the legal costs that have hitherto been incurred in
the courts below and will be incurred in this Court.  The case raised no question of
principle and there were no considerations which called for the attention of this
Court.  In order to avoid the clogging of the roll of this Court with matters that do not
require its attention, it is important that lower courts give careful consideration to the
grant of leave to appeal to this Court.  The inappropriate granting of such leave
results in cases of greater complexity, which are truly deserving of the attention of
this Court, having to compete for a place on the court roll with a case which is not.
(See Monyane and Others v The State [2006] SCA 141 (RSA) para 28.)

[11] In the event the appeal is dismissed with costs

_________________
V M  PONNAN
JUDGE OF APPEAL
CONCUR:
CAMERON  JA
SNYDERS  AJA
THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

FROM

The Registrar, Supreme Court of Appeal

DATE

29 May 2007

STATUS

Immediate

Please note that the media summary is for the benefit of the media and does not form
part of the judgment.

CASE

THE PIETERMARITZBURG SOCIETY FOR THE PREVENTION OF

CRUELTY TO ANIMALS v JUNAID PEERBHAI

(Case No 422 / 06)

Media Statement

Today the Supreme Court of Appeal dismissed an appeal by the Pietermaritzburg SPCA.
The appeal was a sequel to a motor vehicle collision between a Nissan bakkie owned by it
and a Toyota car then driven by the respondent Mr Junaid Peerbhai.  The collision occurred
at approximately 19:30 on 21 July 2001 in the vicinity of Woodhouse and Alice Grange Roads
in Pietermaritzburg.  In consequence of the collision the SPCA sued Mr Peerbhai in the
Pietermaritzburg Magistrates' Court for payment of R21 330 being damages allegedly
suffered by it.  The claim was dismissed in that court and then an appeal which followed to
the Pietermaritzburg High Court was unsuccessful.

The SCA held that there were two mutually destructive versions, the SPCA upon whom the
onus rested could only succeed had it been able to satisfy the trial court that its version was
true and acceptable and the version advanced by Mr Peerbhai was either false or mistaken
and felt to be rejected.  That, according to the SCA the Pietermaritzburg SPCA had failed to
do.  It accordingly concluded the trial court was correct in its conclusion that the SPCA had
not discharged the onus resting upon it.  The SCA re-iterated that law courts should give
careful consideration to the grant of leave to appeal to it.  In this matter given the value of the
claim which was paltry when compared to the legal costs and the absence of any question of
principle the SCA expressed reservations about the appropriateness of the High Court
granting leave to appeal to it.

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