“I was involved in a motor vehicle accident recently, when the other driver failed to stop at a stop street, I was travelling straight in a through road and the other driver was entering this road through a side street. In the papers the other driver alleges that I was negligent as I did not keep a proper lookout and did nothing to prevent the accident.  Am I negligent?”

To answer this question, it is important to know that it is trite law in our law, that it is not sufficient for a defendant counterclaiming negligence against a claimant to merely allege so.  It is so because it bears the onus of proving negligence on the part of the plaintiff before apportionment of damages can be triggered. 

What this means is that if the other driver who failed to stop at the stop street, makes the allegation that you were negligent he must convince or prove that to the court by producing evidence in which a case will be made out as to how you were negligent.

It goes further that the mere finding by the trial Court that a party had not been keeping a proper lookout at the time of a collision, such finding is not sufficient to ipso facto render such a party liable.  That it is so since the other party had to prove that the former’s failure to keep a proper lookout was causally connected with the collision.

Which means that not only must the other driver firstly prove that you failed to keep a proper lookout, he must also prove that by in so failing to keep a proper lookout, your failure contributed to the accident.

It is so in our law that for the purposes of liability, culpa arises if, and only if: (a) a diligens paterfamilias in the position of the party concerned- (i) would foresee the reasonable possibility of his/her conduct injuring another in his person or property and causing him/her patrimonial loss; and (ii) would take reasonable steps to guard against such occurrence; and (b) the person concerned failed to take such steps.

Turning to the fact that it was the obligation of the other driver to stop at the stop street. It is so that road users are generically entitled to assume that others will act reasonably, observing the codes and conventions which govern the movement of traffic on public roads.  In fact, until the contrary is proved, a driver is entitled to assume that other road users will not conduct themselves with suicidal abandon.  

From this our court have crystallised the matter that whilst driving you can assume that other drivers will obey the rules of the road and if these other road users does not, a court will be slow to find negligence on your behalf. This is however not a guarantee, and the court will still look into the fact relating to the accident. 

In short, thus the answer to your question will be no, however the court will look at the evidence provided to it by the parties during the hearing of the matter to determine negligence and with that liability.

Reference List:

• Guardian National Insurance CO Ltd v Saal1993 (2) SA 161(C).
• Kruger v Coetzee1966 (2) SA 428 (A) at 430
• Santam v Letlojane1982 (3) SA 318 (A) at 329B
• Lotter v BP Southern Africa Pty Ltd 1967 (2) PH 48 (O); see also Cooper v Armstrong1939 OPD 140
• Bomela v Road Accident Fund (1345/22) [2024] ZANCHC 35 (22 March 2024)