IN THE HIGH COURT OF LESOTHO
HELD AT MASERU CRI/T/215/2006
In the matter between:
LESOTHO NATIONAL LIFE ASSURANCE Plaintiff
THE ATTORNEY GENERAL 1st Respondent
PITSO PITSO 2nd Respondent
Delivered by the Honourable Mr. Justice T. E. Monapathi
On the 23rd day of April 2009
This is a matter in which the Lesotho National Life Assurance Company brought an action against the Defendants for negligence which resulted in collision of vehicle driven by the Second Defendant and another (a Volvo registration A 8938) belonging to the Plaintiff. The latter was driven by one Neo Leteba (PW1) an employee of the Plaintiff. The Second Defendant is a soldier of Lesotho Defence Force (LDF). He drove an army vehicle, registration X 9239.
The Plaintiff claims a sum of M36,159.77 for reasonable, fair and necessary costs for the damage of the Volvo arising out of the alleged negligent driving of the Second Defendant.
I have considered the Plaintiff’s claim including the evidence that was brought in support of the Plaintiff. I have noted, in that regard, that no evidence was put forward for the Defendant. Instead the Defendants closed their case. Then, definitely, there was no question of absolution from instance since no such application was made. That is the reason why the case of Matlakeng v Commissioner of Police and Others (CIV/T/507/2004 Teele AJ, 9th June 2004 (unreported) cited by Motsieloa is beside the point. Not only did Counsel address me, they also filed heads of argument for both sides. These were very helpful.
As respectfully submitted, the outcome of this matter turns solely on the question of whether the army vehicle had ventured or veered from the main lane in which it was travelling, to its left in the emergency lane in which the Toyota Venture was travelling at that point in time. If it was found that this is indeed what happened then the result must necessary be that the driver of the army vehicle was negligent and then the Plaintiff’s claim must therefore succeed.
The driver of the Toyota Venture and the police officer who testified both responded that there was, as matter of fact, no narrowing in the emergency lane in the area or spot where the accident occurred, as was put to the driver of the Toyota by defence Counsel. Although the police officer denied in his evidence-in-chief that there was such narrowing, his evidence on this point was tellingly not challenged in cross-examination.
The police officer also testified that broken parts (telltales) were found in the emergency lane which made him believe that the accident occurred in the emergency lane, and that it was therefore the army vehicle veered into the Toyota causing the veered sequel of events that followed thereupon. This evidence was not challenged.
I accept the Plaintiff’s submissions and rejected those of the Defendant. In particular I noted that negligence was proved wholly in the way the un-contradicted evidence of Plaintiff’s witness (PW1) and (PW2) stood. PW2 was a police officer who came after the collision. He made an inspection and made a report which the court believed. Both witnesses testified honestly.
I also noted that all things that stood for reasonable and necessary costs of repair were proved for Plaintiff. In particular the evidence of Mr. Man, the expert, which was not contradicted. It is a matter of great surprise that the following issues are raised in argument for Respondents. That despite Mr. Man’s evidence the Plaintiff has failed to establish the amount of its damages. That the Plaintiff had failed to prove the following: first, the value of the vehicle immediately prior to the accident. Second, the value of the vehicle immediately after the collision in order to assess the difference. Third, that the value of the vehicle itself, when it was bought was not made known to the court nor was it shown whether it was a new car or a second had one. Fourth no receipt had been produced to court. Fifth it was not known whether the parts were old or not. I was in that regard referred to the case of Margaret Khakanyo v ‘Mapitso Kojane 1995-1996 LLR 299. With respect, in the circumstances of the present case, I did not think that those issues which were, in any event, not matter of pleading or challenges to the witness who testified for the Plaintiff as aforesaid, were to be properly worthy of consideration. I accept the evidence of the Mr. Leteba for the Plaintiff on the aspect of the cause of the collision as I have already said.
I did not accept the point taken by the Defendant that the Plaintiff was not represented or did not appear. On the un-contradicted evidence of Mr. Leteba and the admitted allegation of paragraph 1 of the declaration, it is proved that Lesotho National Life Assurance Co. Ltd is the real Plaintiff. There is therefore no substance in the argument presented by the Defendants.
The evidence of Mr. Leteba and the police officer proved overwhelmingly that the Second Defendant was the cause of the accident. I also accepted that in terms of the law the effect of the Defendants’ failure to adduce evidence can only mean that the Plaintiff’s case became undoubtedly proved. That is, that the collision was caused by the army vehicle drive. On the effect of failure to adduce evidence see Thompson v Thompson 1949 (1) SA 445 AL, Keowin v Med-Equity 1984 (1) SA 656 (AD) and President of RSA v SA Rugby Football Union 2000 (1) SA 1 (CC).
This claim succeeds as prayed in the summons with costs.
T. E. Monapathi
For Plaintiff : Adv. Laubscher