CIV/T/502A/96

IN THE
HIGH COURT OF LESOTHO

In the
matter between

PAKISO
TSIKOANE PLAINTIFF

VS

TIKEN
LETSOPHA & 2 OTHERS DEFENDANT

JUDGEMENT

Delivered
by the Honourable Mrs. Justice K.J. GUNI On the 4th Day of June.
2002.

On the
6th June 1996, vehicle A - X1291 a 4x4 landcruiser was travelling in
a westerly direction along the Main North 1 highway. Vehicle A was at
the time being driven by DW1 - TIKEN LETSOPHA who is the 1st
defendant in this matter. He was travelling in the company of his two
colleagues - DW2 and 3. 1st Defendant was at that time a member of
National Security Service (NSS). NSS was then

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part of
the defence forces. The 1st defendant and his travel companions
started their journey from Leribe that evening. They had gone passed
T.Y. and Lekokoaneng on their way to MASERU. It was round about 19.45
to 20.00 hours when vehicle A climbed a slightly steep road and was
about to start negotiate a curve when it met and collided with
vehicle B - D3467 - combi near HA FUSI BUS STOP.

Vehicle B
was travelling in the opposite direction. It was in a convoy of about
five motor vehicles. There were three or four motor vehicles infront
of it. There was one vehicle coming behind vehicle B at the place and
time of the accident. Evidence clearly shows this court that the size
of the traffic on that road at the time was moderate. All the
vehicles were travelling eastward except vehicle A. The place
indicated as the point of impact is almost on the straight road.
Evidence of the occupants of vehicle A is to be effect that vehicle B
had just completed negotiating the curve when it came out of its lane
- and entered the lane of the oncoming traffic where it met and
collided with vehicle A.

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The
driver of vehicle B told the court that the collision between their
motor vehicles occurred on the straight part of the road. The driver
of vehicle A and his passengers testified to the effect that they had
not yet commenced to negotiate a curve when vehicle B came out of the
convoy - overtaking the motor vehicle immediately infront of it. He
was now travelling in the path of the traffic which was travelling in
the opposite direction. Vehicle A was at that time, the only motor
vehicle travelling west in the direction of MASERU. The greater
portion of the traffic which was on that road at that time was
travelling eastward - towards Lekokoaneng.

Plaintiff
is claiming damages from the defendant. Plaintiff claims that he
suffered the alleged damages as a result of that accident which
occurred because of the negligent driving of the 1st defendant whom
he blames to have caused the resultant collision between the two
vehicles - (A+B). The driver of vehicle A is accused of driving
negligently in the following terms:-

1. He
   failed to keep a proper look-out for other motorists.

   
   

2. He
   drove on the wrong side of the road.

   
   

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3. He
   failed to apply his brakes timeously or at all.

   
   

4. He
   failed to stop while he could have avoided the collision by doing
   so.

   
   

5. He
   drove at an excessive speed under the prevailing circumstances.

   
   

In his
plea the 1st defendant denies all allegations of driving negligently.
He denies liability for damages, which the plaintiff incurred as a
result of the collision between the two vehicles. The 1st defendant
testified that the collusion happened between the two vehicles - i.e.
A and B on that side of the road which is the correct lane for the
vehicular traffic travelling in the westerly direction to MASERU.
This claim by the 1st defendant that the collision occurred between
the two vehicles (A and B) on his correct side of the road, finds
support in the evidence of DW2 and 3 together with the photographs
which were taken at the scene of accident next day by DW2.

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Photograph
1 shows the skid marks made by the wheel of the vehicle on its
correct side of the road. Brake marks stretch on that side of the
road where vehicle A was travelling. DW2 also indicated an oil mark
on the ground on that same side of the road. These track marks are a
prima facie evidence that the vehicle which made them was travelling
along that portion of the road where they are found. VEN DER MERWE V
FOURIE 1959 (3) SA 568 E at page 5 70E.

Evidence
led on behalf of the plaintiff places the point of impact on the
correct side of the road for vehicle B. According to the evidence
before the court there are points of impact at two different places.
The two vehicles collided only once - not twice. So only one of those
places indicated as point of impact is really and truly such a point
of impact.

Which one
of the two places indicated as a point of impact does this court
accept as such? In her evidence Sgt. MARITI the police officer who
attended that scene of the accident told the

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court
that she drew the Accident Plan L.M.P. 29 from the indications made
to her at the scene of the accident immediately after it has
occurred. Those indications including the point of impact were made
to this Sgt. MARITI by the driver of the motor vehicle which was
travelling infront of vehicle B at the time of the accident. How did
this driver see what was taking place and how and where it happened
behind him?

These
indications were made in the absence of the drivers of the vehicles
involved in that accident. The next day Sgt. MARITI discussed her
findings and the charge she preferred against the driver of vehicle
A. The driver of vehicle B supports the indications made and the
decision arrived at as the result thereof by Sgt. MARITI. The
communication does not appear to have gone well between Sgt. MARITI
and the occupants of vehicle A.

The
driver of vehicle A claims that he indicated the point of impact on
his correct side of the road. The police officer

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refused
to accept the indication and also refused to put a mark on the sketch
plan LMP 29 indicating that as a point of impact. The police officer
is also alleged to have refused to record any statement from the
driver of vehicle A. The police officer admitted before this court
that she did not record the statement from the driver of vehicle A.
She also admitted that she did not put a mark or a sign on the
Accident plan - LMP29 to indicate a point of impact that was
indicated to her by the driver of vehicle A. This witness conceded
that there is provision on LMP29 form for indications of more than
one points of impact. Despite there being a provision this witness
admitted that she deliberately made that omission, on the grounds
that the accused - the driver of vehicle A pointed out to her that he
will explain everything in court.

The point
of impact as shown on the police plan-drawn by Sgt. MARITI as the
officer who attended that scene of the accident, forms a prima facie
evidence that the place indicated thereon invariably reflects the
point of impact. MOORE V

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MINISTRY
OF POSTS AND TELEGRAPHS 1949 (1) SA 815 at 823. This is so where that
police plan is not challenged. Sgt. MARITI testified that the
indications from which she made the plan were made by eyewitnesses.
These witnesses were not called to testify before this court. What
evidencial value is that plan which was made from such indications?
In addition those so called eyewitnesses by the police officer made
those indications in the absence of both the drivers. That type of
evidence is inadmissible.

The
indication of the point of impact as made before this court by the
defendant's witnesses (DW2 and 3) is on the same grounds as those who
indicated to the police officer. They are eye witnesses. They were
travelling as passengers in the motor vehicle A at the time of the
collision. They had an opportunity to observe what was taking place
right before their own eyes and under their very noses. They were
infact better placed than the driver of the motor vehicle that was
travelling infront of vehicle B.

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They were
injured, and therefore they were taken to the hospital before the
police arrived at the scene. The next day when the police officer was
at the scene the police officer would not accept their version of
events nor their indications. The police officer may not force the
accused to record the statement but if the accused voluntarily makes
the statement it is not proper for the police officer to refuse to
record that statement. The accused cannot give instruction to the
police officer regarding the performance of his or her duties. I do
not accept that the driver of vehicle A - 1st defendant therein, gave
instructions to Sgt. MARTTI not to record his statement or indication
made by him. All the witnesses claim that there were broken pieces of
glass, oil, and other debris at the places they indicated as the
point of impact. On LMP29 no debris is indicated although the police
officer claimed it was present. Her failure to put any mark or sign
rather than X to show broken glasses, soil and oil etc, seems to
suggest the contrary.

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The
burden of proof that the accident was caused by the negligent driving
of the 1st defendant rests upon the plaintiff; — --------- This
burden may be discharged on the balance of probabilities.-------

Factors
such as the damage suffered by the vehicles may go some way in
proving how that accident occurred. Both vehicles suffered damage to
a varying degree of seriousness and extent. The location on the
vehicles of this damage also indicates how they collided. Vehicle A
sustained damage on the right wheel mudguard, right windows, right
and left rear view mirrors, grill, bonnet, headlamp and both front
indicators. (My underlining). Vehicle B sustained damage on the whole
of the right side in front. (My underlining) this is the description
of the damage according to LM.P.29. The drivers of the vehicles
accepted this description or agrees with it.

After the
collision or as a result of that collision vehicle A careered wildly.
It left the road and came to a halt in the

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adjacent
field where it capsised. Vehicle B made a U Turn and stopped one pace
from the point of impact according to L.M.P.29. How it execute such a
turn for such a distance? A combi has fairly long body. It may be
four to five metres long. The damage on the right side of both
vehicles is an indication that they collided right side to right
side. The pressure or force of collision caused or forced the combi
to turn and face back where it came from.

Strangely
enough this turning is alleged to have been executed in its correct
lane where it suddenly stopped. It is difficult to understand how the
four metres long vehicle B could perform half turn at almost the same
spot like a ballerina or ice scatter. It is just improbable that a
vehicle can perform a U turn and stop at a distance only of one pace
from the point of impact while the heavier vehicle A careered wildly
for 56 paces.

The
scenario created by the evidence led on behalf of the plaintiff is
that vehicle B was travelling at a moderately slow

speed
following the motor vehicle immediately infront of it when vehicle A
came into their lane and collided with vehicle B. How did those other
vehicles in the convoy avoid this apparently manacing vehicle which
was not only travelling in the wrong side but was also travelling at
an excessive speed. The answer was easy. The driver of vehicle B did
not see as it was dark at night. He only saw the lights of vehicles
travelling in front. The motor vehicle immediately infront of vehicle
B swerved. It can be presumed then that all the motor vehicles in
that convoy must have suddenly swerved to avoid colliding with it in
the same way as that motor vehicle immediately infront of vehicle B.

Why then
was vehicle B unable to swerved to the left or even right as there is
no evidence of any traffic on its right. Vehicle A was the only
traffic which was travelling or should be travelling in that right
hand lane. If it left its lane as claimed by the driver of vehicle B,
when did it do so? The suggestion seems

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to be to
the effect that it came all along the way on the wrong side of the
road. This is most improbable.

When
vehicle B stopped, it was now facing back where it came from. It
stopped face to face with the motor vehicle which followed it. How
did this vehicle A which was causing the alleged havoc in the convoy
of traffic travelling eastward towards Lekokoaneng manage to hit only
vehicle B in that convoy? The vehicle immediately infront of vehicle
B which swerved to the left exposed it to the danger of the vehicle A
coming to collide with it. That particular vehicle was not involved
in that accident. Strangely enough its driver is the one according to
Sgt.Mariti, who pointed out the point of impact of the two vehicles
(A and B). I do entertain great doubts with regard to this driver's
observations which could not even be put to test under gross
examination because he was not called to testify. That evidence
regarding his indications is hearsay and inadmissible. Plaintiff has
failed on the balance of probabilities

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to
establish his case. The claim fails. It is therefore dismissed with
costs.

K.J. GUNI

JUDGE

For
Plaintiff - T. MATOOANE

For
Defendant - M/S WEBBER NEWDIGATE

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