CIV/T/256/91 IN THE HIGH COURT OF LESOTHO
In the matter between:
MRS. MARIAN MAKHENE (duly assisted DEFENDANT
Delivered by the Honourable Mr. Justice G.N. Mofolo on
the 16th day of November. 1995.
In this matter the plaintiff issued summons claiming
from the defendant:-
Judgment in the sum of M11,611-32:
Interest thereon at the rate of 18% with effect from
June. 1991 to-date:
Sales tax thereon at 13%:
Costs of suit;
Further and/or alternative relief.
The defendant defended the matter and disclaimed
liability. According to plaintiff's summons the plaintiff was
claiming damages as
a result of defendant's negligence occasioned by
collision between defendant's vehicle and plaintiff's as a result of
motor vehicle had been damaged.
In his evidence Mr. Pheko the plaintiff testified that
on the day of the accident he was driving his car A2211 along the
public road in the direction of Teyateyaneng. As he went
down the road he noticed a vehicle going down the slope behind him.
he reached the junction at Lakeside Hotel he stopped in the
middle lane going eastward. When he stopped there was no vehicle
on his left or right hand. He was then hit from behind while
his vehicle was stationary. His vehicle was hit at the back and on
the right hand side. The impact was so strong that doors on the
right hand side could not open and he had to use the passenger
on the left to go out. The rear bumper was dislodged and the vehicle
could not move unless the bumper was straightened; the
boot was also
damaged and could not open.
When he got out of his damaged vehicle plaintiff,
according to him. spoke to the driver the defendant who had been
driving YBK 2356;
according to plaintiff's summons, the vehicle
defendant had been driving was YBK 4466. Much issue was made of
but I do not consider them serious as evidence
has corrected, in this regard, any inaccuracies in the summons.
The plaintiff then went on to testify that he had known
Mrs. Makhene before though slightly and she had admitted her fault.
decided as the defendant was in any event going to repair
the vehicle it was not necessary to report the matter to
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police though shortly afterwards the traffic police
arrived and took measurements. In the presence of police the
defendant had said
she would pay the damage. He had then driven his
vehicle home slowly. After two days he had towed the vehicle to
repairs. In the meantime defendant's husband had been
to plaintiff offering to pay repair costs. He went on to say after
was repaired he had informed defendant's husband of the
repair costs and he had offered to effect a stop order of M1,000-00
towards the costs. Although it would take a long time to
settle the bill, the plaintiff had accepted the offer as defendant's
was a colleague and plaintiff believed he would honour the
When defendant's husband had not responded plaintiff had
communicated with defendant's husband verbally but when he had not
plaintiff wrote a letter exhibit "A" in these
proceedings. The letter was, of course, a letter of demand.
Plaintiff then said he hired breakdown for M117-50 and
this plus sales tax had amounted in all to M132-48 and that repairs
expenses including costs of towing had amounted to
Mll,611-32. Plaintiff then handed in a cheque representing the
amount paid for
repairs, costs of towing and incidental expenses in
the amount of M11,478-54. The cheque was marked Exhibit "B".
met defendant, asked her to pay but she had renewed her offer
to pay but in the sum of M500-00 per month but she had never paid and
this is why a summons was issued.
When defendant had not paid as promised plaintiff had
pressed a criminal charge against the defendant, had given evidence
not know what the result of the trial had been. The plaintiff
went on to testify that in the criminal charge against the defendant
the defence of sudden emergency had not been raised and he is
surprised it is raised in these proceedings.
In cross-examination the plaintiff said the cheque
exhibit "B" represented the actual costs of repair, an
amount the defendant
had undertaken to pay and that the cheque was
supported by a quotation which, though it showed the total amount of
repairs and the
cost of the rear bumper, it did not show and he can't
say which part cost how much nor could he say how the amount was
save for the fact that this is what he paid for repairs to
Significantly, though plaintiff had a quotation he did
not acquaint the defendant of the contents thereof the reason being,
to the plaintiff, that the defendant merely offered to pay
without asking for a quotation.
After the plaintiff closed his case the defendant gave
evidence mentioning, amongst other things, that the accident was
brake failure and that when she hit plaintiff's vehicle the
latter was stationary. She had endeavoured to avoid
plaintiff's vehicle but in doing so had hit plaintiff's
vehicle on the extreme right side and her vehicle had been stopped by
She testified that when plaintiff got out of his car he
was furious and when she explained her brakes had failed plaintiff
asked why she had not hooted and she repeated her brakes
had failed and that in any event once the vehicle was repaired she
pay but plaintiff said the car was expensive and could not be
repaired locally. She denied the boot was damaged but that the rear
bumper was damaged and had moved inwards. She said the collision was
bumper to bumper though at the time of the accident her vehicle
moved to the right: she denied doors were damaged as on the scene of
the accident plaintiff's doors were intact though the rear
could not open possibly because of the bumper and the position
between this door and the rear balance towards the tail
of the car
was not damaged.
She testified although she undertook to pay it was on
condition she was presented with quotations in which case she would
the cheapest. She went on to say that when the plaintiff's
vehicle was sent for repairs she had no quotations.
Her husband had later provided her with a quotation from
Ladybrand but it had not reflected damaged parts nor was it
a job card. She said she was shown an invoice but
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this was not itemised as was "LP1" forming
part of these proceedings which, save showing repairs to the bumper
show which part of the car cost how much.
She thought the amount shown as repairs to the car was
quite ridiculous and she was not prepared to pay the amount unless
proof. She was not prepared to pay for hire of a taxi and
petrol unless there were supporting receipts. She said even the
exhibit "8" it could not be said ex facie what for
it was drawn.
The defence had called a witness one Nkhasi Matete to
show that defendant's car had defective brakes and that with its
it could not stop if brakes were applied. I was not
satisfied with the evidence of this witness nor did I find his
evidence in any
way assisting the defendant as at the seen of the
accident defendant did not raise the defence of the brake failure.
In argument it was plaintiff's case that the defendant
and her husband having admitted their fault and hence to repair or
they could not go back on their word and accordingly that
no party can be called upon to prove what is admitted and
that damages had been proved.
On the other hand, it was defendant's attorney's
contention that even if defendant had admitted fault and undertaken
these damages being special damages had nevertheless to
As to the collision, I don't see how I can believe the
defendant's story. While she has admitted that plaintiff's rear
damaged by the collision and that the collision was bumper
to bumper, she has denied that the boot was damaged. She also
that in trying to avoid the collision she swerved to the
right side of plaintiff's vehicle and in doing so the rear door but
the rest of the body of the car was damaged. In her evidence,
she did not testify that she surveyed damage to plaintiff's car -:
not without cause for the plaintiff was furious and it is
understandable why he would have been.
Defendant testified she admitted liability on the scene
of the accident. If her brakes had failed I don't see how she could
admitted liability nor am I amused by her admission of liability
and defence in court that the accident was as a result of brake
failure and hence sudden emergency. I am satisfied that she
admitted liability because she knew, at the time, that she was
but became clever after the event.
Accordingly, I reach the conclusion that when defendant
collided with plaintiff's vehicle she was negligent. I also find
did, in fact give plaintiff an undertaking to pay
costs of repair to the damaged vehicle. I am fortified
in this finding by defendant's husband stance by which
though there was evidence that he gave an undertaking to pay
costs he did not give evidence to deny this
On damages, the question is whether the plaintiff
notwithstanding these undertakings, can be said to have proved cost
to his vehicle or put in another way. whether because
defendant gave an undertaking to pay repair costs there was no need
plaintiff to prove costs incurred.
In criminal cases where an accused person has pleaded
guilty to the charge it is incumbent on the crown to prove the
the crime if the accused, notwithstanding his plea,
must be convicted. The standard in criminal cases is proof beyond
I am wondering whether, in civil cases, even where a
party has admitted liability it is not necessary for the liability to
on a balance of probabilities and whether, without such
proof, a plaintiff may not be opening the door for a defendant to be
from the instance.
In HAYES v. VAN RENSBURG, 1964(2) S.A. 64(C.P.D.)
Held: regard being had to Rule 22(4) and (9) of Act 52
of 1944, that the effect of appellant's pleading was not to put the
of damages in issue and that he had admitted the amount of
the damages alleged; so that proof thereof was unnecessary.
Sub rule 4 above reads:
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"The defendant in his plea shall either admit or
deny or confess and avoid all the material facts alleged in the
of the summons and shall clearly and concisely state the
nature of his defence and all the material facts on which it is
"every allegation of fact by the plaintiff which is
inconsistent with the plea shall be presumed to be denied and every
allegation shall be taken to be admitted."
The above rule is substantially the same as our own Rule
22(3) and (4) of the High Court Rules. 1980.
In this matter the defendant in her plea denied
vehemently all allegations as to plaintiff's damages and plaintiff's
case was that
defendant had both at the time of the accident and
after admitted liability. This is what I have also found save for the
the admission does not arise from the defendant's plea.
Even before me. the tenor of the defence and especially
the defendant herself, was that she was prepared to pay if she was
with quotations and an itemised schedule of how plaintiff's
repair costs were arrived at.
In SCROOBY v. ENGELBRECHT, 1940 T.P.D. 100 at p.102
Ramsbottom. J. was reported as follows;
"The wrongdoer is required to pay for the repairs
which are rendered necessary in consequence of the damage, and it
I think, that the plaintiff must prove not only what repairs
are necessary in consequence of the damage, but what the reasonable
cost of effecting them would be: he must snow what amount it would be
necessary to spend in order to give him reparation."
The learned Judge went on to say that the passage from
Pactolus (Sw. 172; 166 E.R. 1079) to which they were referred are in
namely: that what was in dispute was what repairs to a ship
damaged in collision were necessary and what the proper cost was to
the repairs. In the course of quoting the passage it was said Dr.
Lushington had said: the best evidence is that of persons who
actually inspected the vessel after the damage -of persons competent
to say what repairs were necessary in consequence of the damage.
regard to the bills incurred for such expenses and that they must
necessarily, for the purpose of justice, be submitted to examination
and extravagant charges lowered by the opinion of persons conversant
with the trade."
Proof of damage to vehicle cannot be over-emphasised for
otherwise there is always the fear that unproven repairs could entail
defects in plaintiff's car for. as was said in COETZEE
v. JANSEN, 1954(3) 173(T.) cases seem to refer to the necessity of
that not only were the repairs necessary, but that the actual
damage was attributable to the collision and more, that the repairs
were not rendered necessary by preexisting defects in
BOSHOFF v. ERASMUS. 1953(1) S.A. 103 (T.P.D.) was
another case where the plaintiff adduced evidence by production of a
tender on which
the car was repaired. Had handed in his account
showing items of repair and amounts charged. There had been
additional evidence describing damage to the car and 2
tenders had been submitted for large sums from other firms. A
court had granted absolution on the ground that no
evidence was adduced to the effect that the cost of the repairs was
Held: as a reasonable person would find that the
quotations were evidence of reasonableness, that the appeal succeed.
The Court of
Appeal in this matter upheld the appeal because not only
had there been a tender, accounts were also handed in showing items
and accounts charged (I have underlined). There had also
been additional evidence describing the damage and 2 other tenders
been submitted. This is in contradistinction to the present case
where Mr. Pheko the plaintiff has been the only witness to accounts
showing partial items of repair.
The case of VAN DYK v. CORDIER. 1965(3) S.A. 723
(O.P.D.) barring important exceptions is not very different from the
There was evidence by the defendant that after the
accident the plaintiff was very upset, he went out of his car.
surveyed it and
furiously told defendant how expensive his car was
and that it could not be repaired locally. This was the sentiment
CORDIER"S case where after the collision the owner
got out of his car and surveyed the damage. There was also evidence
the plaintiff was upset by the accident because he took
particular care of his car. But in this case
there had been a quotation and an employee of the garage
which repaired the car had given "evidence as to the particulars
the car's damage".
In addition, a perusal of the quotation had shown that
nearly all. if not all the items mentioned therein were in respect of
to the front and back of the car.
Held: prima facie, either directly or by inference, the
evidence established that the repairs which were effected had been
as the result of the
collision with respondent's car.
In the instant case it was claimed by the plaintiff both
in his affidavit of 29 August. 1991 and before me that as a result of
collision there had been extensive damage to the boot and bumper
and that as he was hit towards the rear both doors on the
right handside could not open.
In answer to paragraph 4(a) of defendant's
further particulars reading:
"Precisely how is the sum of M11,611-32 arrived at?
Full particulars thereof are required."
Plaintiff in his further particulars paragraph 4(a) had
"For repairs see Annexure "LP1" attached
hereto plus M132-78 towing fees."
Now. inter alia "LP1" reads:
QUOTATION B.M.W. 3251 Reg. A2211
Repairs to damaged vehicle R9397-911 x Rear
We hope you find this quotation in order. Thanking you.
SGN. C. SOLOMON Parts Manager
Of course this quotation is not in order for while the
cost of the bumper has been identified the quotation has not shown
very huge amount of R9.397-91 was arrived at or rather what
parts of the damaged car were repaired. One would have expected not
only the quotation to say the amount of M9,397-91 comprises damage to
the boot and jammed doors, but for the mechanic in charge of
repairs to have testified as to what parts and at what cost they were
used to repair plaintiff's car.
Thus in AMOS v. BARNETT. 1972(1) S.A. 334 (T.P.D.)
though the respondent had successfully sued in the magistrate's court
of repairs to his vehicle damaged in a collision, in an
appeal against the order that the respondent had failed to prove his
and it appeared that the respondent had stated
in his evidence that he had obtained various quotes and
that the quote which was handed in gave full details of repairs
was fair and reasonable.
Held: as nobody had been called to support the
reasonableness of the charges, or the necessity of the
repairs reflected in the quote, and as the respondent was not
do so, that absolution from the instance should have
While I sympathise with the plaintiff in this matter. I
do not understand why he did not call necessary and available
prove repairs to his car. He could have called C.
Solomon of Greenspan Holdings (Pty) Ltd to show how the amount of
arrived at. He could have called the garage or repair
yard which was responsible for repairing his car instead of relving
admissions which, in my view, did not take this case
any stage further as defendant is not the proper person to support
of the charges or the necessity of the repairs
reflected in the quote to which I have referred.
In not proving repairs, plaintiff could have been
relving on the finding in HERSMAN v. SHAPIRO and Co. 1926 T.P.D. 367
at p.369 where,
amongst other things it was said:
"There are cases where the assessment by the Court
is very little more than an estimate, but even so, if it is certain
damage has been suffered, the Court is bound to award
the same page and in the same breath the Court went further:
"It is not so bound in the case where evidence is
available to the plaintiff which he has not produced: in those
the court is justified in giving, and does give,
absolution from the instance.'
The difficulty, though, is that the plaintiff kept on
saying he wanted defendant to pay the sum of M11,478-54 being what he
paid for repairs while in terms of his summons he wanted
the sum of M11,611-32 paid. Indeed the latter was also contained in
letter of demand.
And while the principle of one lump sum and once and for
al payment was manifest in this action, plaintiff nevertheless lumped
for different transactions into one instead of
them for purposes of the claim.
For reasons already stated defendant is absolved from
the instance. There will be no order as to costs.
JUDGE 16th November, 1995.
For the Plaintiff: Mr. Nathane For the Defendant: Mr.
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