IN THE HIGH COURT OF LESOTHO In the Matter
'MAHALIEO MONAHENG P1aintiff
LESOTHO NATIONAL INSURANCE
(Proprietary) Ltd Defendant
Delivered by the Hon. Mr. Justice B.K. Molai on
the 17th day of August, 1989.
Plaintiff herein has filed, with the Registrar of the
High Court, summons commencing an action in which she claims against
payment of M40.000, interest thereon at the rate of
23% per annum, costs of suit and/or alternative relief. The defendant
intention to defend the action.
The declaration to the summons alleged, inter alia, that
on 31st August, 1985 a vehicle driven by Plaintiff's husband,
was travelling along Leabua Highway (now referred
to as North 1) public road. When it was next to a place called Salang
on the outskirts of Maseru, the vehicle collided with
another vehicle driven by a certain Thabiso Sekeleoane. Plaintiff's
died in the accident of which Thabiso's negligent driving was
the cause. Consequently Plaintiff suffered damages in the amount of
M40,000, for which the defendant, as the insurer of Thabiso's
vehicle, was in law liable. In
2/ accordance ........
accordance with the provisions of the Motor Vehicle
Insurance Order 1972 she claimed, against the defendant, as
In its plea, the defendant company did not. really
dispute that it had, at the material time, insured the vehicle
with Ramantsa's vehicle resulting in his death. It
denied,however, Plaintiff's allegation that the accident was caused
by the negligent
driving of Thabiso. It could not, therefore, be held
liable to Plaintiff in the amount claimed or at all. In the
claim ought to be dismissed with costs.
In an attempt to curtail the duration of this trial the
parties filed minutes of pre-trial conference in which they agreed,
alia, that the question of quandum of damages should stand over
pending this court's decision as to whether or not there was
on the part of Thabiso Sekeleoane.
In as far as it is relevant the court heard, in this
regard, the evidence of D.W.2, Thabiso Sekeleoane, who testified that
day in question, 31st August, 1985, he was at his place of
work commonly known as Waggon Wheel restaurant in the Industrial
Maseru. A little after 10 p.m. he was driving his combi along
North 1 public road on his way to deliver employees and some
at their various homes. He was travelling at the speed of
about 50 km an hour in the direction from Maseru towards Khubetsoana.
he started negotiating a curve next to Salang restaurant, the
deceased's car appeared from the opposite direction i.e. from the
of Khubetsoana towards Maseru township. As it negotiated
the curve the deceased's car left its correct lane of the road and
into his side of the road. He tried to swerve the combi more
to the left but there was a ditch on the left side of the road. The
deceased's car then
3/ hit the front
hit the front right wheel of the combi which capzised
and rolled to the right side of the road as one travels towards the
of Khubetsoana. He denied, therefore, that the accident
occured as a result of his negligent driving. According to him,
to get out of the combi but realised that he was
injured and bleeding. He sat outside the combi while many people who
at the scene of accident pulled out the passangers. They
were rushed to Queen Elizabeth II hospital where he too was later
The evidence of P.W.2, Tseko Ranneileng, was that he and
P.W.3, Kopano Seotsanyana, lived in the village of Khubetsoana. At
8 p.m. on the day in question they went to drink liquor at
Victorial hotel. They were travelling in P.W.3's vehicle. At the
they shared between themselves altogether 20 tots of whisky
worth about M20. As they were mixing the whisky with Indian Tonic
were not drunk.
The evidence of P.W.3 was, however, slightly different.
According to him they went to Lesotho Sun hotel where only P.W.2
whilst he himself was playing on the gambling machines.
He was in fact a non-drinker. From the Lesotho Sun hotel they called
home of a friend in Maseru location. No liquor was served to
P.W.2 at the location from where they proceeded back to their home at
Khubetsoana. On the way Thabiso's combi which was also going in the
direction towards Khubetsoana, overtook them. P.W.3 denied,
the evidence of P.W.2 that they ever went to Victoria
hotel where he (P.W.3) drank any liquor.
4/ Be that as
Be that as it may, both P.W.2 and P.W.3 agreed that when
they came to a curve next to Salang restaurant they found that the
car with registration numbers A 9005 had collided with
Thabiso's combi. Both vehicles were on the right side lane of the
one travelled in the direction towards Khubetsoana.
According to P.W.2 the combi was lying on its roof in
the road and facing in the direction towards Khubetsoana. The car was
the tarred surface of the road. However, P.W.3 told the court
that although the car was still on its wheels partly on the tarred
surface and partly on the gravel portion of the road and facing more
towards Maseru or Maqalika dam the combi was completely outside
tarmark of the road. He denied, therefore, the evidence of P.W.2 that
the combi was lying on the tarred surface of the road.
As the two
vehicles were found on the right side lane of the road as one
travelled in the direction towards Khubetsoana and the combi
facing towards Khubetsoana whilst the car was facing towards the
Maseru township P.W.2 and P.W.3 concluded that the combi had
travelled into the correct lane of the car and was therefore the
cause of the accident.
After P.W.3 had parked his vehicle on the side of the
road he and P.W.2 went out to find if they could render any
first went to the car and found that the deceased
was already dead behind the steering wheel. They went to the combi
to P.W.2 there was nobody inside. He, however, noticed
two people lying unconscious in the middle of of the road. He and
and rushed the two people to
Queen Elizabeth II hospital in the letter's vehicle.
The evidence of P.W.3 is again slightly different on
this point. He told the court that when they came to the combi there
people screaming inside. They pulled out four people whom
they rushed to the hospital. He denied, therefore, P.W.2's evidence
only two people were taken to the hospital in his vehicle.
In his evidence P.W.2 testified that before they could
leave the hospital Thabiso and another person were brought there in
vehicle. They had both sustained injuries. He heard Thabiso
explaining that he and the other injured person had fallen into a
and could not be seen at the time P.W.2 and P.W.3 conveyed the
other people to the hospital. This is again different from what P.W.3
told the court. According to P.W.3 after he and P.W.2 had conveyed
the four injured persons to the hospital they returned to the
of accident. They found another vehicle which took the body of the
deceased to the hospital. Later on Thabiso was also taken
hospital. He denied, therefore, the evidence of P.W.2 that Thabiso
was brought to the hospital whilst they were still there.
According to him, P.W.3 only learned from some people he
found at the scene of accident on his return from the hospital that
had fallen into a ditch and that explained why he could not
be seen at the time the injured people were taken to the hospital. He
further told the court that on his return to the scene of accident he
was able to trace with the assistance of
6/ a certain
a certain 'Mathabo, the deceased's elder brother who
lived in the village of Khubetsoana.
After the body of the deceased had been taken to the
hospital P.W.3 transported the deceased's elder brother to the
at Lower Thamae where a report was made to Plaintiff
as to what had happened. This is confirmed by the Plaintiff who
she was married to the deceased, Ramantsa Monaheng, by
civil rites. Three children were born of the marriage. They all
at Maseru Day High School and were born in 1970, 1972
and 1974, respectively. At the time of his death her husband was 41
and working as Assistant Accountant at the Lesotho Freight
On the afternoon of Saturday 31st August, 1985 her
husband left home to watch a football game at the National Stadium.
He never return
home alive. Wherefor she claimed against the
defendant for a relief as aforementioned.
In his evidence D.W.1, Sgt. Mathaba, told the court that
he was attached to the Traffic branch of the police force in Maseru.
10:30 p.m. on 31st August, 1985 he received a certain
information following which he proceeded to a place next to Salang
along North 1 public road. He found the two vehicles
described by P.W.2 and P.W.3 involved in a road accident. Many people
there but the drivers of the vehicles had allegedly been
taken to Queen Elizabeth II hospital. He made a rough sketch plan
the position of the vehicles at the scene of accident.
7/ With the
With the assistance of some people he removed from the
road one of the vehicles which was blocking the road. He then went to
but apparantly could not find either of the drivers.
In the morning of the following day he returned to the
scene of accident. He was then accompanied by the driver of the
Sekeledane, who showed him the point of impact which
was on the left lane, next to the white line in the middle of the
road, as one
travelled in the direction from Maseru to Khubetsoana.
He paced the scene of accident and took notes on the basis of which
exhibit "A", the motor vehicle accident report.
It is significant to remember that according to the
evidence of P.W.2 and P.W.3, adduced on behalf of the Plaintiff, the
driving attributed to Thabiso Sekeleoane was that the
latter's combi had crossed into the correct lane of the deceased's
causing the accident. However, both P.W.2 and P.W.3 were
admittedly not present at the time the accident took place. Thabiso
one of the drivers who were involved in the accident,
denied their evidence and told both D.W.1 and this court that it was
car which had caused the accident by crossing into his
correct lane of the road. In my view the evidence of P.W.2 and P.W.3
the combi had crossed into the correct lane of the deceased's
car was obviously a mere assumption based on the position in which
they found the two vehicles at the scene of collision. It is,
however, common knowledge that when
vehicles are involved in a collision a lot of things
happen to them e.g. they can, as in this case, roll over, change
positions. The mere fact that P.W.2 and P.W.3 found
the two vehicles in the position in which they were was, in my
judgment, no convincing.reason
that the driver of the combi had
crossed into the correct lane of the deceased's car and was,
therefore, negligent in his driving.
The onus was on the Plaintiff to prove, on a balance of
probabilities, that the deceased, her husband, had died as a result
negligent driving of Thabiso Sekeleoane, the driver of the
combi which was admittedly insured with the defendant company. On the
evidence before me I am not convinced that Plaintiff has
satisfactorily discharged the onus that rested on her.
I accordingly find that no negligence has been proved on
the part of Thabiso Sekeleoane. Judgment is, therefore, entered in
of the defendant.
17th August, 1989.
For Plaintiff : Mr. Mafisa, For Defendant :
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