CIV/T/390/82
IN THE HIGH COURT OF LESOTHO
In the matter of
MOTHETSI MAFEREKA Plaintiff
V
THABO MOOJANE 1st Defendant
MOSHOESHOE KHOMOTSANE 2nd Defendant
RULING - WHETHER A WITNESS CALLED BY THE DEFENCE IN CIV/T/390/82 IS AN EXPERT OR NOT
Delivered by the Hon. Mr. Justice M.P. Mofokeng on the 23rd day of January, 1985
The defence has called a witness, one Mr. Lepolesa Phomane (hereinafter referred to as Mr. Phomane) to give evidence on the experiments he carried out on the rackage of a bus (hereinafter referred to as a vehicle) which had been involved in a collision with a Government
grader.
Mr. Phomane described himself as a mechanic by profession. He received his training as such at Lerotholi Technical Institute in 1960. He had now been promoted to the position of Senior Technical Officer in the Govern-ment Garage where he had been working since 1965. Mr. Snyman has objected to Mr. Phasumane giving evidence as an expert on the basis that no prior notice was given that an expert would be called by the defence about the question of brakes and that no summary of such evidence has been furnished in terms of the provisions of Rule 35(8) and (ii). If, as contended by Mr. Snyman, that Mr. Phomane is an expert witness, then clearly the provisions of the
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above Rule has not been complied with. It is common cause that the Rule has not been complied with. The purpose of the Rule is to avoid the other party being taken by surprise unless the delay in bringing the expert witness was bona fide. (Klue and Another v Provincial Administration, Cape, 1966(2) S.A. 561 at 562) The defence gives as a reason thereof that Mr. Phomane is not an expert but a witness who will give evidence on what he saw like a police officer who attended the scene of accident. Mr. O.K. Mofolo agreed with this point of view because, as he put it, an ordinary medical practitioner is never regarded as an expert. They both submitted that Mr. Phomane would give the rest of his evidence as an ordinary mechanic.
Mr. Phomane's qualifications and experience as a mechanic were given to the Court. He laid a foundation that he was well-versed in the matter he is being called upon to give evidence. It was made quite clear that he was going to give evidence on some aspect of the matter before Court on which this Court could come to no independent conclusion except with his help. That, in my view, was the purpose of calling him. He was simply called by the defence as an expert witness and I accordingly so hold. This case is quite different from the one referred to me by Defence Counsel viz Rex v Ntho, CRI/S/11/83. In the first place, it was a criminal case. Secondly, the question to be decided was whether a magistrate had exceeded his jurisdiction where he entertained a Civil Case where the subject matter in dispute exceeded his jurisdiction in terms of the Subordinate Court Rules, whereas as far
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as a Criminal Trial was concerned he had not exceeded his jurisdiction. It is true, as was stated in that case, that sometimes no university training is necessary at all for one to be an expert. One can be an expert by acquiring a skill during the course of one's profession e.g. a Solicitor becoming an expert in handwriting by the study of handwriting. The question of whether or not the police officer carrying out acid tests to determine the engine in that case was an expert or not did not arise. In the instant case it was manifestly clear that Mr. Phomane was called to give evidence to which the Court could not come to an independent conclusion.
I rule that Mr. Phomane was called as an expert witness and that the provisions of the Rules of this Court have not been complied with. Mr. Phomane cannot, therefore, continue to give evidence on the question of brakes the result of which he obtained by carrying out certain tests on the rackage of the vehicle.
23rd January, 1985
For Plaintiff Mr Snyman
For Defendant Mr. Mguluma
