It was hardly surprising to note with concern and alarm that as at Christmas day, Netcare Medical Rescue Services has been called on to attend and assist at no less then 1000 motor accident scenes at which no less then 600 deaths were noted, and many were injured. This is their tally since the beginning of the holiday period. Of course the number of accidents, deaths and injuries will increase steadily until the holiday season is over.

Digesting these figures, alerted my attention to the recent case which went to the Supreme Court of Appeals of Flanders v Trans Zambezi Express (54/08) [2008] ZASCA 152 (27 November 2008)

The facts of this case are very ably stated by Griesel AJA (with whom Scott and Brand JJA concurred) at numbered paragraph 1 of his judgment.

"This appeal arises from a collision between a passenger bus, owned by the first respondent and driven by the second respondent, and a stationary Puma army vehicle belonging to the Zimbabwean Defence Force. The collision occurred during the early hours of 12 April 2001 on the road south of Masvingo in Zimbabwe.

Eight of the passengers on the bus were killed in the accident and many of them were injured, including the two appellants. This gave rise to a consolidated action in the Cape High Court by the appellants (as plaintiffs), claiming damages from the respondents jointly and severally"

The Learned Acting Judge of Appeal continued at numbered paragraph 3-7 by stating:

"The events leading up to the collision are largely common cause. The bus was en route from Lusaka, Zambia to Johannesburg, carrying some40 passengers, including the two appellants. The collision occurred shortly after 02h00, approximately 8,5 km south of Masvingo on the main highway between Harare and the Beit Bridge border between Zimbabwe and South Africa. The driver at that stage was the second respondent, Mr Sibeni, who was acting within the course and scope of his employment with the first respondent.

In the area where the collision occurred, the road has a tarred surface with two single lanes carrying traffic in opposite directions. The two lanes are separated by a broken white line down the centre of the road. Each lane is 3,3 m wide, measured from the inside of the broken white line to the inside of the broken yellow lines demarcating the tarred shoulders of the road on both sides. The tarred shoulders on either side of the road surface are 1,6 m wide, including the width of the yellow line of 0,1 m. The width of the bus was 2,6 m, thus leaving a space of 35 cm on either side between the bus and the yellow and white lines when travelling down the centre of the lane. Approaching the scene of the accident from the north, ,the road was level and straight for approximately 2 km prior to the point of impact. Proceeding beyond that point, the road continues straight for approximately 300 m before it enters a gradual bend to the right. At the time of the collision, it was dark with no artificial lights in the vicinity; the  sky was clear and starry and there may have been the light of a half moon
 The Puma army vehicle had broken down and was left unlighted, unattended and parked at an angle on the side of the road, with its right rear protruding over the broken yellow line into the lane in which the bus was travelling. The angle at which the Puma was parked and the extent to which its rear encroached onto the road was hotly disputed during the trial. Some of the witnesses called on behalf of the respondents put the angle at as much as 45 degrees. The full court found, however, that the evidence was ‘simply too imprecise to enable the court to determine the angle at which the Puma was parked’.

The extent to which the Puma protruded over the yellow line was also uncertain. Some of the witnesses estimated that the Puma obstructed at least half of the left lane of the road. Based on the objective evidence, it was calculated by the respondents’ expert, Prof Hillman, that the protrusion into the lane would have been some 83 cm beyond the yellow lane. The full court found it ‘impossible to determine with any degree of certainty how far the body of the Puma protruded into the left lane of the road’ save to find that the Puma ‘posed a definite obstruction to traffic moving in the left lane and that the bus would not have been able to pass the Puma without the bus moving onto the incorrect side of the road’. In the event, the left front of the bus collided with the protruding right rear corner of the Puma, which caused the whole of the left side of the bus to be sheared open
 Sibeni testified that he was driving in the centre of his lane and within the maximum permissible speed limit of 80 km/h. His further evidence was conveniently summarised by the court a quo as follows:

‘Approaching the point where the collision occurred on a straight section of the road, he noticed the beams of the headlights of an approaching vehicle. It appeared to him to becoming round a bend from the right. He dimmed the lights of the bus in anticipation of the approaching vehicle and when its lights came into line, he flashed the lights of the bus to signal the approaching vehicle to dim its lights, which it did. However, as the
vehicle came closer, its lights were switched to bright again. [Sibeni] geared down to
seventh gear and flashed the lights of the bus to warn the approaching vehicle but at that moment the collision occurred. He did not brake or swerve at all before the collision.

. . . He initially said that he did not see the Puma at all before the collision, but when he resumed his evidence in chief after the lunch adjournment, he said that the did see the Puma at the last moment while he was being dazzled by the lights of the approaching vehicle. In essence, his version is that there was nothing which he could do to avoid the collision. He saw the Puma at the last moment while he was partially blinded by the lights of the oncoming vehicle at a point where he could not take any effective avoiding action. He refrained from braking or swerving to the right because he feared that thebus, which had a luggage trailer in tow, would overturn and in any event, there was the vehicle approaching from the front.’

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