Mathuso Kao-Liphoto V Senohe Monokoane (CIV/APN/405/2015) [2024] LSHC 273 (7 August 2024)

 

 

                  

 

 

IN THE HIGH COURT OF LESOTHO

 

HELD AT MASERU                                                CIV/APN/405/2015

 

In the matter between

MATHUSO KAO-LIPHOTO                                         PLAINTIFF

AND                                                   

SENOHE MONOKOANE                                                 DEFENDANT       

 

Neutral Citation: ‘Mathuso Kao-Liphoto v Senohe Monokoane [2024] LSHC 273 CIV (07^th August, 2024)

 

CORAM                :         HLAELE J.

HEARD                 :       15^TH,23^RD SEPT 2022, 21^ST OCT,2022,11^TH NOV

2022,13^TH,14^TH,15^TH,19^THFEB,2024,20^TH,21^ST   APRIL 2024

DELIVERED         :         07^TH AUGUST 2024

 

 

SUMMARY:  The computation of damages of motor-repair after a collision.

 

 

 

ANNOTATIONS:

CITED CASES:

1. Anderson v Hlongwane (11648/2006) [2012] ZAGPJHC 107.

112. Civ (22 May 2023).

2. Commander LDF v Motlatsi Magaga C of A (CIV) No.33/2011.
3. Erasmus v Davis 1969(2) SA 2
4. Hersman v Shapiro 1926 TPD 367 AT 367.
5. Issacs v Compol (CIV/T/293/2014) [2023] LSHC 5 (7 February 2023).
6. Lenono v Tlhapi CIV/T/639/86 [1988] LSCA 189.
7. Mahase v Khoabane (CIV/A/14/15 CC No. 110/07 & amp; CC NO.

56/08) [2002] LSHC 75(22 March 2022).

8. Margaret Khaphwiyo V Mapitso Khojane CIV/A/20/94.
9. National Employers General Insurance v Jagers 1984 (4) SA 437 (E) at

440 D-G.

10. Rethabile Phat’soane v Thabo Rabasothoane and Another [2023] LSHC  

112 CIV (22 May 2023).

11. Sekonyana v Standard Lesotho bank. limited (CIV/T 191 of 2010) [2014] LSHC 63 (1 August 2014).
12. Thabang Molele v Lesotho National Insurance Company

(CIV/T/212/2006 and CIV/T/167/2008.)

 

 

 

 

 

 

 

ARTICLES

1. Martin, Harding & Mazzotti. “The Common Causes and Physics of a

car crash”.

2.  Visser et al Law of Damages 4.
3. Julian de Grahl. 1998.” The assessment of damages for delict in South

          African and German Law, with special regard to loss of use and

          fraudulent misrepresentation inducing a contract.” A dissertation to

          obtain the Degree of Master of Laws (LLM). P10.

 

4. J Neethling · 2008. “The law of delict and punitive damages: notes”.  

Sabinet African Journals.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

JUDGMENT

 

HLAELE J.

[1] INTRODUCTION

1.1 The facts of this case are not complicated at all. According to the record and evidence led, it transpires that it was around 4 AM on a Saturday morning when the plaintiff’s step-son, who was PW1 in the proceedings, was driving to the National University of Lesotho (herein after called NUL) for a graduation ceremony. Whilst he was driving along main South 1 at or near a place commonly known as Matala 1, he saw headlights flashing indicating that there was danger ahead. It was his evidence that sensing danger, he slowed down.  It also came to his attention that there were cars which were involved in an accident. He then put on flash hazards on his car as a precaution.

1.2 According to his uncontroverted testimony, it was while he was in this slow motion that he felt his car being impacted from the front. The next thing he knew he woke up from a ditch and could not get up. It transpired that he had been injured. He was then taken to the hospital.

1.3 It is common cause that the collision that had occurred was between the car driven by the plaintiff’s son (PW1), which belonged to the plaintiff, and the defendant’s own car.

1.4 The bone of contention, which is where the intervention by the parties was sought, is who caused the accident, and by the same token, who is liable for the damages resulting from the accident.

1.5 PW1 was Lebakae Liphoto.  He is the plaintiff’s step-son and was driving the plaintiff’s car on the day of the accident. His evidence was that; on the 27^th November 2014, around 04:00am, he was on the way to Ha-‘Nelese where he was going to drop-off one of his friends. When he approached Ha-Matala at the place commonly known as Maseru 5, he observed that there was an accident ahead of him. A triangle had already been placed in the road to signal the accident. Upon observing this, he immediately lowered the speed and put on his vehicle’s hazards.

1.6 He noticed that a caddy model car had stopped on the side of the oncoming traffic lane. On the very side of the oncoming traffic lane, there was a Toyota Regius car which also seemed to have been involved in an accident.  The witness then saw headlights of a car coming towards his.  This particular car was coming from the direction of Masianokeng. When he observed this, he immediately stopped his car. However, that car came with a high speed and collided with his car head-on.

1.7 His further evidence is that he lost consciousness on collision and when he regained consciousness his car was off the road.  He also sustained some injuries.  He never met the defendant on that day for when he regained consciousness defendant had already been taken to the hospital.

1.8 The scene was attended by Woman Police Constable Mosola. A break-down vehicle was hired to convey the plaintiff’s car home after the accident. PW1 was taken to Queen ‘Mamohato Memorial Hospital whereat he got admitted for four days.

1.9 About a week or two later, the witness and the Defendant were summoned to the accident scene by Woman Police Constable Mosola. The purpose of the meeting was to identify the point where the two cars had collided, to enable the drawing of a map. He and the defendant pointed and agreed on the point where the collision had taken place. The defendant also agreed that his vehicle was driving in the wrong lane which is the witness’s lane. He therefore agreed to repair the witness’s car.

1.10 The defendant’s version that was put to this witness was to the effect that when the witness got where the accident occurred, the defendant’s car was already stationary as it had already been involved in an accident with another car. The impact between the witness’s car and that of the defendant was the second impact or accident on the defendant’s car. As such, the witness’s car is the one which caused that second impact not the defendant’s.  The witness’s response was that on his arrival at the scene of the accident, the defendant’s car was not stationary. When the witness got to the scene he saw the defendant’s car coming towards his with a high-speed from the Masianokeng direction.

1.11 The defendant’s further version was that since that was the morning of the NUL graduation day and one of the passengers in the witness’s car was graduating on that very day, the witness was drinking alcoholic beverages in his car. Due to the drunkeness he failed to notice that there was already an accident at the scene which involved the defendant’s car.  The witness blatantly denied this.

1.12 PW2 was Woman Police Constable Mosola. Her evidence was that on the day of the accident she attended the scene of accident where she found that six cars were involved in three different accidents. She was assigned to deal with the scene involving the plaintiff and defendant’s cars. What she noticed about these cars was that there was a black Volvo which belonged to the defendant and this Volvo was slanting across two lanes; being the lane leading to Masianokeng and the lane leading to Matala. The first thing she did was to inquire about the whereabouts of the driver of Volvo.  She was told the driver had already been ferried to the hospital. Upon inquiries from the drivers of the other cars, the witness found out that the car which was involved in the collision with the black Volvo had fallen into a ditch on the side of the road leading to Masianokeng. According to the people who were at the accident scene, the black Volvo was the one which caused the collision. The witness then met with PW1 and asked where the point of impact between his car and the black Volvo was and he showed her. She drew a rough sketch and took particulars of PW1and his car and those of the black Volvo. The witness later went to Queen ‘Mamohato Memorial Hospital to meet with the defendant.  Upon arrival, she introduced herself to him, sought for an explanation from him about the accident. As the explanation was not satisfactory, she charged him with contravention of section 90(1) of the Road traffic Act which prohibits negligent and reckless driving.

1.13 After the defendant was released from hospital the witness summoned him and PW1 to the accident scene. At the accident scene, the witness sought for an explanation regarding the accident. They both gave the information ascertaining the direction they were from and to, as well as the point of impact.  PW1 explained that he was driving from Matala to ‘Nelese. As he drove down the slope at Maseru 5 he noticed that there was an accident. He then slowed down his car and put on hazards.  He then saw headlights coming towards his car as it was dark and suddenly he felt his car being hit and pushed aside the road.

1.14 The defendant on the other hand explained that he was from ‘Neleso to Matala. He noticed that there was an accident there at Maseru 5. When he got to that place, he suddenly felt his car being hit.

1.15 The main thing after the explanations was to agree on the point of impact. Both PW1 and the defendant were able to agree on the point of impact which the witness noted. The witness then showed them the rough sketch of the accident map which is LMPS 29.  Both cars were badly damaged.  They were both right offs.

1.16 During cross-examination it became evident that the defendant’s car (volvo) was blue and not black. The defendant’s version that was put to this witness was that there was a pile up there at the accident scene.  That all the six cars were involved in one accident. The witness denied this and explained that there were three separate accidents, each involving two different cars.

1.17 PW3 was ‘Mathuso Kao-Liphoto who is the plaintiff in this case.  Her evidence was that she is the stepmother of PW1.  She was the owner of the white Mercedes-Benz. On that day at around 4:00am while she was asleep, she received a call from PW1’s friend reporting that PW1 was involved in an accident at Ha-Matala. He also told her that PW1 was being taken to the hospital as he had sustained some injuries. The car had to be towed home. Upon its arrival at home, the witness observed the following damages on the car; it was badly damaged as the windscreen was shattered as well as the head lamps. The whole of the front part was dented as well as the top of it.  The doors could not open.  The airbags were out. All the four tyres were completely out of alignment and were also damaged. The witness paid M2,000.00 for the towing of the car. The witness eventually sold the car to a scrap yard realizing that the defendant was no longer intending to repair it.

1.18 The plaintiff’s further evidence was that over and above the amount she paid for buying the car as well as VAT, she paid the car’s sound system and new rims amounting to M23,335.98. She therefore confirmed her claim as it appears in her summons.

1.19 On the defendant’s side, the only person who testified was the defendant himself.  His evidence was that on the 27^th September 2014 he was on his way to Ha-Matala where he resides. When approaching Maseru 5, he observed cars on hazards ahead of him. Upon reaching the place, he felt his car being hit and pushed to the lane of the oncoming cars. When he was about to get off to observe what had happened, his car got hit again. His car was stationary when it got hit the second time. When his car was hit the second time, he became unconscious.  He could not tell what happened thereafter. He regained consciousness at the hospital.

1.20 A month later, PW2 summoned him to the scene of accident where he found her with PW1. At the scene, PW2 requested them to show her the point of impact. He indicated to PW2 that he was unable to tell due to the fact that he became unconscious on impact and could not point where the impact took place what happened thereafter. PW2 agreed with PW1 about where the point of impact was. Thereafter PW2 told him that she was charging him of negligent and reckless driving. His evidence was further that he never agreed to repair the plaintiff's car.

 

[2] ISSUES FOR DETERMNATION

2.1 The issues for determination can be gleaned from the prayers articulated in the summons. They read that the plaintiff seeks, (as appears in the amended Declaration)[1]:

1. Payment of M68.504.23 (Sixty- Eight Thousand, Five Hundred and four Maloti and Twenty -Three Lisente.) being damages for Plaintiff’s vehicle that collided with Defendant’s motor vehicle.

2.2 From the prayers sought, it is telling that the court has to determine whether the Plaintiff is entitled to the damages she has sought.

 

[3] THE EVIDENCE

3.1 As is expected, the evidence presented by the plaintiff’s witnesses is at opposite ends with that of the defendant, who was the sole witness. Each of the drivers of the day, put the blame squarely at the foot of the other. Their versions are mutually exclusive. This being the case the court has to resort to legal tools of engaging evidence where the version of both parties who are witnesses is so divergent that there is no meeting point.

3.2 I will follow suit from the precedence that has been followed in this jurisdiction[2] from National Employers General Insurance v Jagers[3] where it was stated that:

Where there are two mutually destructive versions, a party can only succeed if it satisfies the court on a balance of probabilities that its version is true and accurate and thus acceptable, and that the other version advanced by the opposing party is therefore false or mistaken and falls to be rejected.

It is clear that where there are two mutually destructive versions the plaintiff can only succeed if he satisfies the Court on a preponderance of probabilities that his version is true and accurate and therefore acceptable, and that the other version advanced by the defendant is therefore false or mistaken and falls to be rejected.

3.3 In the context of legal proceedings, when there are two mutually destructive versions, it means that both parties present conflicting accounts of events and facts. These versions cannot coexist; they contradict each other. The court then evaluates the evidence and arguments to determine which version is more likely to be true. The party with the more convincing version prevails. This approach ensures that the court reaches a decision based on the balance of probabilities.

3.4 In deciding whether that evidence is true or not, the Court will weigh up and test the plaintiff’s allegations against the general probabilities. The estimate of the credibility of a witness will therefore be inextricably bound up with a consideration of the probabilities of the case.  If the balance of probabilities favours the plaintiff, then the Court will accept his version as being probably true. If, however, the probabilities are evenly balanced in the sense that they do not favour the plaintiff’s case any more than they do the defendant’s, the plaintiff can only succeed if the Court nevertheless believes him and is satisfied that his evidence is true and that the defendant’s version is false”

3.5 In the context of the dictum, I commence to analyze the version or testimony of the plaintiff through the key witnesses including the plaintiff herself. The Plaintiff was not at the scene and therefore could not give direct evidence of what had occurred. It was PW 1 who gave us the version of the events.

3.6 That there was an accident that had occurred before he arrived at the scene is probable in that it is corroborated by not only the police who took the map, but by the defendant himself. It is probable that the car had slowed down. This can be gathered from the totality of the evidence. The fact that the car was pushed off and maintained the lane it was on at all times before and after the incident could possibly point towards the driver having kept the same lane. I however have questions about the speed being minimal. The impact, especially resulting in one car being driven off the road, and damage on both cars, speaks a different story. Either both or one of them was in high speed. I will come back to the issue of the speed.

3.7 The totality of the plaintiff’s case also rests on the evidence that it was the Defendant’s car which had swayed to the lane kept by Plaintiff. The plaintiff’s car was, as is common cause, on his correct lane. It was the defendant who drove over to that lane thus causing the collision.

3.8 That the defendant drove to the plaintiff’s lane was a result of his avoiding being part of the collision that had occurred before their own. He was swaying to a different lane to avoid being part of the pile up of the accident that was already there. What therefore is probable is that he swayed at high speed, towards the lane of the plaintiff’s car in order to avoid the accident. Since he was driving at a high speed, the collision between his car and that of the plaintiff resulted in the car being pushed to the ditch on the side of the road. This is best explained by the publication titled “The Common Causes and Physics of a Car Crash” penned by Martin, Harding & Mazzotti. They give a scientific explanation relying on newton’s law of motion. They state:

Newton’s Second Law of Motion states that acceleration is produced when a force acts upon a mass. The greater the mass of the object, the more force is required to accelerate that object.  As it relates to car crashes, the impact force of a car on another object is equal to its mass multiplied by its acceleration, of which speed is part of the calculation. 

Put another way, the force of an impact is the total force exerted on an object during a collision.  Therefore, the higher the speed, the higher the impact force of the crash. It also means that the impact force of an object with a lot of mass, say a dump truck, will be larger than that of a small car.

Newton’s Third Law of Motion states that for every action, there will be an equal and opposite reaction. For example, if a car traveling at 30 miles per hour strikes an immovable wall, the force created by the collision will be equal in magnitude to the force of the car striking the wall, and that force will move backward through the car from the wall.

This explains why a collision at low speeds is less serious than one at high speeds. Newton’s Third Law also explains why, when cars of unequal mass collide, the vehicle with more mass will force the smaller vehicle backwards and the smaller vehicle will experience more impact force.[4]

3.9 At the risk of diluting the science and scientific analysis, I understand and therefore proffer the explanation to mean the speed of the moving car and the size of the car, can give an indication of how a collision probably occurred.  I borrow from their scientific analysis the words “Therefore, the higher the speed, the higher the impact force of the crash.” This discards the version of both the plaintiff and defendant that the cars were moving slowly. Since it was the Defendant who (i) was moving in an upward and accelerated position, (ii) had to sway instantaneously to avoid the accident, the probability is that he was on high speed. The explanation given above by the analysis on newton’s law states “This explains why a collision at low speeds is less serious than one at high speeds.” This explains the damage on both cars. The issue of damages will be dealt with in due course.

3.10 On a balance of probabilities, the version of the plaintiff is more probable. Inclusive of the evidence of the police officer, and other witnesses, the accident scene and the outcome speak for themselves. However, the evidence of the police officer (PW2) talks to the point of impact which shows that it occurred on the lane which by law, belonged to the plaintiff’s car. It was the defendant who encroached the lane, thus causing the collision and damage to both cars. I have already alluded to the issue of the speed and concluded that either both or one of them was speeding. The most probable likelihood is that it was the defendant who was speeding for he was on upward mobility, he had to sway, (probably at an instant) to avoid the accident.

[4] TEST FOR NEGLIGENCE

4.1 The defendant did not exercise due care expected of a motor vehicle driver. He drove at high-speed considering the circumstances of the place where he was driving. It was in the wee hours of the morning. It was dark. The circumstances demand that a driver in such cicumstances should exercise extra care to be vigilant. According to Police Mahao, there are no street lights at that place. Driving at high speed as he did in these circumstances means that he was negligent.

4.2 Majara J (as she then was) in Thabang Molelu v Lesotho National Insurance Company[5] commented as follows;

It is now well-established that in determining negligence, the applicable test is the objective one i.e. how would a reasonable person have acted under the conditions prevailing at the time of the accident, as experienced by the driver whose conduct is being scrutinised.

4.3 A reasonable man in the circumstances of the defendant would have taken care not to drive at a high speed.

 

[5] THE LAW OF DAMAGES.

5.1 In assessing or quantifying delictual damages or compensation after a damage causing event, the object or aim is to give to the injured or prejudiced plaintiff(s) the fullest possible compensation by placing them in the same financial position they were in prior to the damage-causing event.[6]

5.2 In the case of Erasmus v Davis[7], the defendant's appeal to the Appellate Division was dismissed by the majority of the court. In its judgement, the court explained that the plaintiff is entitled to establish the difference between the pre-accident and post-accident value of his property in order to prove the diminution in value to his property. The majority of the court held that from the fact that present plaintiff had failed to do so, it did not follow that the plaintiff was not entitled to succeed. The majority of the court was rather of the opinion that evidence of the reasonable costs of repairs constitutes prima facie proof of the diminution in value of property, and that it is for the defendant to cast doubt on the validity of this measure of loss.

5.3 Julian de Grahl after the analyses of the case of Erasmus, concludes:

To summarise the South African position, generally damages are assessed according to the diminution in value at the time of damage. The· reasonable cost of repairs may be taken into account in assessing damages where the pre-damage value is established, but where the plaintiff fails to prove the post-damage value. The cost of repairs alone may be an appropriate measure where it is shown that the repairs were necessary, fair and reasonable.[8]

5.4 In the supplementary heads of argument which were filed by counsel for both parties, the parties rely on the same cases to found or defend their case, as the case may be. They differ on the application and interpretation which they assign to cases. I will elaborate on this as I go.

5.5 There is consensus that the court should rely on the case of Commander LDF v Motlatsi Magaga.[9]   Both parties cited paragraph 3 of the judgement which reads:

The law is clear with regard to how damages to a vehicle are to be assessed in a matter such as the present. The normal and appropriate method of doing so would be to calculate the difference between the market value of the vehicle concerned before it was damaged, a n d th e market vale thereafter. Failing agreement, the before and after value of the vehicle would have to be properly established by admissible evidence. Another appropriate method, and one frequently applied, is to take as the measure of da mages the reasonable cost of restoring the vehicle to its original (pre-damaged) condition. However, the cost of repairs as a method to establish damages would not be appropriate if such cost would clearly be in excess of the diminution in value of th e vehicle. By way of illustration, if a vehicle with a value of M50 000.00 is damaged, and th e reasonable cos t of repairs would amount to M100 000.00, the larger amount can clearly not be recovered as damages. (See Erasmus v Davis 1969 (2) SA (AD) 1 a t, inter alia, 9 A-D; 17 F-H; 18 C- E, a case consistently followed in Sou th Africa, and see also Margaret Khaphwiyo v Mapitso Khojane 1995-1996 LLR-LB 299 a t 302.)

5.6 Their reliance on the same case however, does not point the court to come to the same conclusion regarding their claim. According to Advocate Makhera, the plaintiff’s reliance on the case is to direct the court to the method of computation. That is, the plaintiff’s submission is that, in calculating the amount of damages due to the Plaintiff, (where the court has found, as I have, that the Defendant caused the damages), what should happen is;

The normal and appropriate method of doing so would be to calculate the difference between the market value of the vehicle concerned before it wa s damaged, and the market value thereafter.

5.7 Advocate Pheko on the other hand accepts the dictum but relies on the case to postulate the theory that the plaintiff has failed to put before the court evidence regarding the market value of the car immediately before the incident, or its residual value after the incident.

5.8 This submission by advocate Pheko, triggers the court to consider whether there is evidence before it of the pre and post accident value. As stated by Mofolo J in the case of Khaphwiyo v Khojane[10]

The general rule where damages are claimed for the depreciation in value of an article, the basis of assessment is the difference between the value of the article immediately before it was damaged and its value immediately afterwards - see Deyden. v. Orr (1928)28 S.R. N.S.W.216 - AUS. To succeed it has been said that the plaintiff must prove loss, as in this case, the vehicle was a total loss.

5.9 There is also reliance on the case of Erasmus. It was in the case of Erasmus v Devies[11],where Muller, WN. A.R. quoting from Trotman and Another v. Edwick. 1951(1) S.A. 443 (A.D.) at P.449 said: -

A litigant who sues in delict is entitled to recover from the wrongdoer the amount by which his patrimony has been diminished as a result of the conduct of the latter.'

5.10 The Erasmus case has been hailed as the leading case in the computation of damages. It postulated the principle of assessing damages in delict. That a plaintiff must by monetary compensation be placed in as good a position financially as he would have been in if the delict had not been committed. Generally speaking, payment to a plaintiff of a sum representing the diminution in value of his damaged property will place him in such a position. In order to prove such diminution in value a plaintiff would be entitled to establish the difference between the pre-collision and post-collision value of his damaged property.", per Potgieter, J. A. at p.9. If a plaintiff fails to prove either of these values, proof of the costs of repair is prima facie accepted as proof of the diminution of value, unless the defendant can prove that the costs of repair exceed the diminution in value.  In which case the plaintiff will be entitled to the latter amount only. On the other hand, if a plaintiff can prove that the diminution in value exceeds the costs of repair, he will be entitled to the former amount.[12]

5.11 The Court of Appeal in the Magret Khaphwiyo case had this to say about the recoverable damages where the car is written off, which is the case in the case before hand;

What the respondent was entitled to be paid as damages was the loss which she suffered as a result of the accident. Where the vehicle was damaged beyond repair, that loss would be the value of the vehicle at the time of the accident.

5.12 In Khaphwiyo v Khojane, the Court of Appeal lamented the lack of proper tools and evidence placed before the court for it to make a proper computation of the damages. It stated

Moreover, it does not assist at all on the real question i.e. the value of the vehicle at the material time. The only evidence which the respondent gave with regard to the damaged vehicle was that it was a Toyota 4 x4. There was no evidence as to its value, its year of manufacture, or its condition at the time of the collision.... Such evidence should be available and the respondent should be able to bring a claim on the proper basis.

5.13 The question I have to answer therefore is, what happens in the case where there is no evidence of the post accident value of the car? The answer lies in the case of Rethabile Phatsóane v Thabo Rabasothoana and Another[13] where Banyane J after an analysis of various authorities and relying on the case of Lenono V Tlhapi[14] came to the legal conclusion that; where monetary damage is suffered, it behoves the court to do the best it can of the evidence available to it to make an assessment of the quantum to award.  In essence her decision was that courts should not deny a litigant compensation where loss has occurred on account that there is no exact evidence of the pre accident and post accident values. As was said in the case of Hersman V Shapiro,[15] where damage has been suffered “the court has to award damages.” The court in the Hersman case continued to state:

But where the best evidence is available and has been produced, though it is not entirely of a conclusive character and does not permit of a mathematical calculation of the damages suffered, shall, if it is the best evidence available, the court use it and arrive at a conclusion based as it is.

5.14 I am inclined to gravitate towards this reasonable expression of a court. With this legal analysis in mind, I deal with the evidence before court in relation to the quantum.

[6] THE EVIDENCE ON DAMAGES

6.1 The Plaintiff was the main witness who testified on the issue of the damages of the car. I note from the onset that she is not an expert. No expert witness was called to speak to the issue of the damage resulting from the collision. This being the case, the court is in the dark regarding the salvage value. There was however adequate evidence placed before the court to make an informed conclusion.

6.2 According to her evidence, value of the car could be gleaned from the price she bought it with. She handed in a document styled VAT11 to prove the value of the car before the accident.  according to that document the car was bought for M33,480.92 (Thirty- Three thousand Maloti, Four Hundred and Eighty Maloti and Thirty-Three Lisente.) It was purchased on the 29^th April 2010.  It is a 1996 model. A C-Class model (this information is gathered from the post- accident quotation from MDHY Motor Panel Beating, Spray Painting &Motor Mechanics).

6.3 She had enhanced the car by inserting new tyres at the amount of M22,235.98. The tires form the integral part of the car once fitted. Although she alleged that she had put a new music system in the car, there was no evidence to prove that.

6.4 The accident took place in 2014, some four (4) years after purchase. Meaning the car had somewhat depreciated. I also take into consideration that it was a pre-owned car.

6.5 After the accident, she sought a quotation for repairs in terms of Exhibit 2 which was a quotation from a company called MDHY Motor Panel Beating, Spray Painting & Motor Mechanics. The quote for fixing the car was M50, 600.00 (fifty Thousand Maloti, Six Hundred Rand. This is obviously greater than the cost of the car, meaning the car was written off.

 

6.6 On the issue of a car being written-off, similarities can be drawn between the present case and the case of Anderson v Hlongwane[16] where the court said:

“[37] The vehicle was not repaired because it was uneconomical to repair it if the repairs were more than 70% of the value of the vehicle. In regard to the salvage, he sold it to a salvage company for R 65 732.70, which he believed to be a fair and reasonable price”.

6.7 A vehicle receives a salvage title if it sustains a significant amount of damage and is declared a total loss. When the cost of fixing a car comes too close to or exceeds the vehicle's value. It will be recalled that, even in her lay- man’s analysis, viewing with a naked eye, PW2 had noted the damage as “write-off”. I take this to mean that it did not even need an expert to see that the car was badly damaged. Her observation was later confirmed by Exhibit 2, the quotation.

6.8 In the present case, because the repair value of the car exceeded the pre- accident value of the car, the owner sold the salvage motor vehicle. Comment is necessary regarding the salvage value. The Plaintiff in her evidence claimed that she sold what was left of the car as scrap for the amount of M2000.00 (Two Thousand Maloti). There was however no ounce of evidence produced of this sale. Advocate Pheko hammered this point home in her cross examination. Indeed, it is eye-brow raising that a Mercedes-Benz can be sold for such an amount. Gleaned from the quotation (Ex-B), the repairs needed including the parts are tabulated as follows:

• Front Panel
• Roof Panel
• Windscreen
• Radiator
• Chassis
• Handlamp/part lights
• Font bumper
• Bonnet spoilers
• Airbags
• The car also needed spray painting.

6.9 According to Collin’s dictionary a roof-panel of a car is;

“Roof panel in Automotive Engineering- The roof panel is the section of material, usually sheet metal, that forms the roof of a vehicle”.

6.10 The dictionary does not have a description or definition of front panel but it is Quite simply, the front. It usually incorporates the (radiator) grille, it may include a skirt (a lower part, usually solid rubber but formed to look like metal) and it will include the light assembly. The section of metal over the engine is either the bonnet or the hood, depending on where you are. Then there will be panels each side to conceal suspension components, variously called fenders or quarter panels.

6.11 According to Kia Cars Website [17]the definition of a radiator is the key component of the engine’s cooling system. Its main role is to disperse a mix of antifreeze and water throughout its fins, which releases some of the engine’s heat while taking in cool air before continuing to pass the rest of the engine. 

6.12 Referenced from AA, the car chassis is defined as technically the "skeleton" of the car. This skeleton is what the car's body is built on, it bears the weight of the body and car parts. A car chassis is made of steel and includes parts such as tires, car engine, the axle system, car's transmission, steering system, the brakes, and suspension.

6.13 I undertook this exercise so that I could understand and appreciate the damage on the car. It should be noted that there was no objection from the defendants that EX2 is a reflection of the damage of the car. Therefore, the quotation is a reflection of what needed to be fixed from the car, it does seem that it had been badly damaged.

6.14 Does this damage reconcile with the salvage value being M2000.00 (Two Thousand)? Without an expert or any form of evidence I am not in a position to accept that indeed this was the salvage value. It is important to know the post accident value of the car. This will guide the court in formulating the damages.[18] it would be mischievous, as suggested by the plaintiff that the salvage value of the car is M2000.00 (Two Thousand). Meaning I should deduct this from the pre-collision value.

6.15 In the case of Lenono V Tlhapi[19] the court considered the purchase price less 20% depreciation and it entered judgement in favour of the plaintiff using that method of computation. I agree with the method adopted by the court. I find that the tires were fixed to the car and such formed part of the total value of the car.

 

[7] ORDER

7.1 I therefore make the following Order:

1. That the defendant was negligent and was the sole cause of the accident that occurred at Ha Matala Maseru 5.
2. That the Defendant should compensate the Plaintiff in the amount of M33,480.92 (Thirty-three thousand four hundred and eighty ninety-two cents) less 20% which is the value of depreciation.
3. Costs are awarded to the plaintiff.

 

------------------------------

M. G. HLAELE

JUDGE

 

For Applicants:  Adv.  N.E Makhera

For Respondents: Adv. N.B Pheko