Bey v Van Kruyssen & Willson No. DCCIV-01-1

[2001] SADC 36

[2001] SADC 036

JUDGE SULAN

TUESDAY, 6 MARCH 2001

SARA BEY
V
JANETTE VAN KRUYSSEN
AND
ROBERT JAMES WILLSON                (EXTEMPORE)

HIS HONOUR: 

1.............................. In this appeal the appellant Sara Bey is the third party in an action brought by Janette Van Kruyssen against Robert James Willson. For ease of reference I shall refer to the appellant as Ms Bey, the plaintiff respondent as Ms Van Kruyssen and the defendant respondent as Mr Willson.

1. The facts as found by the learned magistrate were that Ms Van Kruyssen was travelling north along Goodwood Road in the left hand lane. There was traffic in front of her. Ms Bey was travelling in the same direction in the right hand lane. Mr Willson was also in the left hand lane travelling at a reasonable distance behind Ms Van Kruyssen. Ms Bey changed lanes. At the time that she changed lanes the magistrate found that the vehicles in the left lane in front of Ms Van Kruyssen were slowing. He found that Ms Bey’s vehicle clipped the back of Ms Van Kruyssen’s vehicle. He also found that Mr Willson was unable to stop to avoid Ms Bey’s vehicle and his vehicle collided with the rear of Ms Bey’s vehicle. As a consequence, further damage was caused to Ms Van Kruyssen’s vehicle.

2. It is clear from the magistrate’s findings that he concluded that Ms Bey was totally liable for the damage that followed the various collisions. He proceeded to enter judgment against Mr Willson and then ordered that Ms Bey indemnify Mr Willson for the total damage which was assessed at $2925 inclusive of costs. There is no challenge on this appeal in respect of the quantum.

3. In my view the magistrate was in error. His factual findings were that Mr Willson was not negligent and that it was Ms Bey’s negligent driving which caused all the damage to the plaintiff’s vehicle. He should therefore have dismissed the claim against Mr Willson.

4. S.38 sub-s.1(f) of the Magistrates Court Act (“the Act”) requires a magistrate to act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms. The magistrate should have joined Ms Bey as a co-defendant and entered judgment against her for the full amount of the plaintiff’s claim.

5. A similar provision applies to this Court on a review (section 38, subsection 7 of the Act).

6. At the commencement of the appeal I raised this matter with the parties and they agreed that Ms Bey should be joined as a defendant in the action. I therefore make that order by consent. That then regularises the position as the judgment against Mr Willson cannot stand given the findings of the learned magistrate.

7. Mr Reid on behalf of Ms Bey submitted that the magistrate was in error in finding that Ms Bey’s vehicle clipped the back of Ms Van Kruyssen’s vehicle prior to Mr Willson colliding with the rear of the vehicle. He argued that the learned magistrate should have found that Ms Bey completed the manoeuvre of changing lanes safely. He submitted that it was as a result of Mr Willson’s negligence that the collision occurred as Mr Willson failed to keep a proper lookout. The difficulty with Mr Reid’s submissions is that the magistrate accepted Mr Willson’s evidence that he was travelling at a safe speed and was a safe distance back from Ms Van Kruyssen’s vehicle and would have had time to stop in the ordinary course of events. The magistrate did not accept the evidence of Ms Bey that her vehicle’s manoeuvre was safe and it was Mr Willson’s negligence that caused the collision. In my view on the evidence and material before the magistrate it was open to the magistrate to find as he did, that is, that the damage to Ms Van Kruyssen’s vehicle resulted from the negligent driving of Ms Bey in changing lanes and that Mr Willson was in no way liable for that damage. It was open to the magistrate to conclude that it was Ms Bey’s driving which created the danger and she was negligent in changing lanes when it was unsafe to do so.

8. I see no basis upon which I should interfere with the magistrate’s factual findings and conclusion. He heard the evidence, he spoke to the various parties and he made his determination accordingly. There is no basis upon which I should disturb the magistrate’s findings or his conclusion that Ms Bey is totally liable.

9. The formal order of the court is firstly that the appellant, Ms Bey, be joined as a defendant in the action. The order of the magistrate that Mr Willson is liable in the sum of $2925 inclusive of costs is set aside and I substitute judgment in favour of the respondent/plaintiff in the action against the appellant, Ms Bey, in the sum of $2925 inclusive of costs. I reserve the right to edit these reasons.