IN THE HIGH COURT OF LESOTHO
In the matters of:
SAMUEL RAMPENA SERUTLA 1st PLAINTIFF
MAMOLETSANE K. MAKAKOLE 2nd PLAINTIFF
LESOTHO NATIONAL INSURANCE COMPANY DEFENDANT
Delivered by the Honourable Chief Justice Mr. Justice
J.L. Kheola on the 30th day of May. 2001
By agreement of the parties CIV/T/233/89 and
CIV/T/234/89 were consolidated because they relate to one and the
same car accident which
occurred on the 20th May, 1989. In
the first case the plaintiff Samuel Rampena Serutla is claiming
damages in the amount of M17, 930-00 calculated as
Medical and hospital expenses - M530-00;
Genera] damages for pain and suffering , loss of the
amenities of life, etcMl 7,400-00.
In the second case the plaintiff, 'Mamoletsane K.
Makakole is claiming damages in the amount of R234,274-49 made up as
Funeral expenses M3,674-49
Loss of support for the plaintiff M168,000-00
Loss of support for Moletsane Makakole M19,200-00
Loss of support for 'Majubile Makakole M19,200-00
Loss of support for Khauhelo Makakole M25,200-00.
On the night of the 20th May, 1989 the plaintiff 1
Samuel R. Serutla was driving his car with Registration number E
1977, along the
Main South 1 Road from Maseru towards the direction
of Mafeteng. The deceased Ketelo Makakole was his passenger.
At the same time one Moorosi Thedi Monyobi was driving a
land cruiser along the same road going in the opposite direction,
to say from Mafeteng direction towards Maseru. The land
cruiser's registration numbers were A 8369. It was insured . by the
The two vehicles collided at Masianokeng just opposite
the premises of Basotho Canners. As a result of that collision the
In his declaration the plaintiff alleges that the
aforesaid collision was caused by the exclusive negligence of the
driver of the
insured vehicle who was negligent in one
3 or more of the following respects:-
(i) the said Moorosi Monyobi was driving on the
wrong side of the road; (ii) he drove too fast under the
circumstances prevailing; (iii) he failed to keep the said
vehicle under proper control; (iv) he failed to keep a proper
(v) he failed to avoid collision when by the
exercise of reasonable care he could and should have done so.
The plaintiff 1 testified that at the relevant time he
was staying at Moshoeshoe I International Airport and worked at
as a building inspector. On the day in question he
arrived at the place of the deceased at about 2.00 p.m. They started
the vehicles of the deceased until late that afternoon at
about 5.00 p.m. After that they watched television until 12 midnight.
he did not have any watch that night he estimated time to have
been 12 midnight from the programmes he saw on television. However,
under cross-examination he conceded that he could be mistaken about
the time. He admitted that the collision between his vehicle
vehicle insured by the defendant must have taken place at 9.30 p.m.
that night. That must have been the time he gave to his
his mind was still fresh about the events of that night.
He says that after passing the gate of the Basotho
Canners premises he saw a vehicle coming towards him travelling at a
speed. It was about seventy metres
4 away when he first saw it. It was in his correct
lane of the road. As there were big stones and ditch on the left side
of the road
he decided to swerve his vehicle to the right in order to
avoid a collision with the oncoming vehicle. However, when he was on
white centre line that other vehicle came to him and hit his
vehicle on the left side. At that time the wheels on the right of his
vehicle had already crossed the centre line. He therefore contends
that the collision occurred on his (plaintiffs) correct lane.
earlier stated that when he first saw the insured vehicle, it was
already being driven on the incorrect lane and was coming straight
towards him in his correct lane.
Plaintiff 1 says that he was driving at the speed of
about fifty kilometres per hour when the accident occurred. He did
not do any
other thing other than swerving to the right to avoid the
collision. He never hooted in order to warn the driver of the
vehicle that he was driving in the wrong lane. At that time
the head lights of the other vehicle were switched on bright. He says
that the last thing he saw was when the two vehicles collided. In
other words he became unconscious as a result of the impact. He
regained his full senses about two hours later when he was already in
Queen E. II Hospital. He heard on the following day that his
passenger had died as a result of that accident.
He spent two weeks at Morija Hospital because he had six
ribs broken. He says that he has not completely recovered because
weather is bad he still feels the pain.
5 Under cross-examination he said that he was born
on the 8th May, 1959. The
accident or collision took place on his correct lane of
the road and that the right front wheel was just touching the white
line. The rear wheel could be about twenty to thirty
centimetres on his side of the white line. The point of impact was
and half metres into his side of the road and the other
vehicle was still on the incorrect side of the road when it hit the
front of his vehicle. He denied that it was his vehicle that was
on the incorrect side of the road. He did not at all cross the white
centre line. The policeman who made a sketch plan of the scene of the
accident is wrong to show the point of impact as being on the
side of the vehicle insured by the defendant. His vehicle was pushed
to the incorrect side of the road by the impact. He
saw the brake
marks on the road on the following day. They were from his correct
side of the orad to the other side and extended
into that incorrect
side for about a metre.
Plaintiff 1 says that the steering wheel of the insured
vehicle was tied with barbed wire and that he inferred that that was
why it was out of control and moving in a zigzag course.
He admitted that he wrote Exhibit "B", however he denies
his vehicle ever crossed the centre line before the collision.
What he wrote in Exhibit "B" does not tally with his
The next witness called by the plaintiff ] is one
Lebajoa Seate. He testified that he worked as a nightwatchman at
On the 20th May. 189 he was on duty. At
about 1.30 a.m. he saw a motor vehicle coming from Mafeteng
direction. It was
6 a land cruiser which was moving at a very high
speed. It was moving on the wrong side
of the road. It was in the wrong lane. The land cruiser
was also moving in a zigzag course. He even asked one of his
that vehicle would cross the bridge. At the same
time he saw another vehicle, a car, travelling from the Maseru
direction and was
on its correct side of the road. The land cruiser
never moved to its correct side of the road until the two vehicles
the correct lane for the car. He did not see that the car
tried to swerve to the right side of the road before the collision
It is surprising that the policeman. Trooper Mahasele
(P.W.5) who attended the scene of accident and drew the sketch plan
of the scene
of the accident, Exhibit "K", makes no
reference to such skidmarks or brake marks which must have been very
at the sketch plan it is clear that from the point of
impact (X) to F (fixed point) is a distance of nineteen paces. That
is more or less the same distance as the Roma road
junction. There was really no such skidmarks because even the driver
of the insured
vehicle (D.W.I) said that he never applied his brakes
before the accident. Lebajoa Seate is either mistaken or not telling
The next witness called by plaintiff 1 is Trooper
Mahasele (P.W.5) who attended the scene of the accident and drew the
of the scene of the accident (Exhibit "K"). He
testified that the two vehicles involved in the accident were a van
a car. The Reg. Nos of the van were A 8369 and E 1977 for the
car. On the sketch plan the van is marked Vehicle "A" and
the car Vehicle "B". The driver of Vehicle "A"
7 Monyobi. Vehicle "B" was driven by Plaintiff
1. According to him the point of impact
was in the left lane when one is travelling from Mazenod
to Maseru. It is marked as "X" on Ex. "K". There
a broken white line on the centre of the road. "X" was
half a pace from the centre line and two paces from the edge of
road (marked "D" on Ex. "K"). It ("X")
was five paces from the edge of the road ("C")
on the right
He said that after the collision Vehicle "B"
was pushed back by the impact for a distance of fourteen paces from
of impact. There were skidmarks caused by Vehicle "B"
as it moved backwards. This indicates that the brakes were applied
very hard in order to cause those skidmarks ("J") which
were in the correct lane for Vehicle "A". After the
Vehicle "A" moved for a distance of sixty-seven
paces before it collided with an electric pole. It capsized.
P.W.5 says that he found six (6) empty tins of beer in
vehicle "A" and there was
beer spilled on the floor of the vehicle. In Vehicle "B"
there were documents that were
scattered on the floor. He also found the dead
body of the deceased. He established
where the point of impact was because that is where he
found water from the radiator,
pieces of glass and soil.
On the sketch P.W.5 shows the directions of both
vehicles just before the collision. Vehicle "A" left its
correct lane when
it was opposite the Roma "T" junction.
Vehicle "B" left its correct lane when it was opposite the
8 marked "K" on the sketch plan. He used
arrows to indicate the directions taken by the
two vehicles before they collided.
After the close of the plaintiffs' case the defendant
called only one witness, the driver of the insured vehicle - Moorosi
(D.W.I). His evidence is to the effect that on the day
in question he was the driver of Vehicle "A". It was a
vehicle because he worked as a driver in the Ministry of
Education. On that day he had been in Mafeteng where he had paid his
a visit. Before he left Mafeteng he picked up one "Malefu
Mohlotsane. They left at about 8.00 p.m. proceeding to Maseru. He
arrived at Masianokeng junction at about 9.30 p.m. When he was at the
curve he saw a vehicle in his correct lane coming towards him.
hooted and flickered the headlights of his vehicle to warn the driver
of the oncoming vehicle. There was no reaction and it continued
come towards him. He was unable to swerve his vehicle to the left
side of the road because there was a crash barrier and a sign
He decided to serve to the right because there was an open space
there. As he was turning the steering wheel the two vehicles
forcing his vehicle to fall on the right side of the road.
After the collision and the capsizing of his vehicle, he
struggled very hard to get out of it. When he got out he saw
the occupants of the other vehicle. He and the
driver of the other vehicle were immediately taken to the hospital. A
used to carry the driver of the other vehicle into the
hospital because he could not walk.
9 D.W.1 says that he sustained minor bruises as a
result of that accident. He says
that he was driving at the speed of sixty kilometres per
hour. He denies that he was driving at a very high speed. He agreed
the point of impact as shown on the police sketch plan (Exhibit
"K"). He says that he never drove on the incorrect lane
until his vehicle collided with that other vehicle in his correct
D.W.1 agreed with the suggestion that his foot was still
on the accelerator pedal when the collision occurred. In other words,
never reduced his speed. He says that when he saw the lights of
the other vehicle he was about seventy paces from them and that he
was not sure that it was a vehicle. He denies that his judgment was
impaired by his drunkenness. He denies that there were any empty
of beer in his vehicle. He never claimed any damages because his
injuries were minor.
The defendant closed its case after calling only one
witness. The onus of proving that Monyobi was negligent and caused
which were sustained by plaintiff 1, is on the
plaintiffs. He also caused the death of the husband of plaintiff 2.
The general rule
is that "he who alleges must prove".
(Ramahata v. Ramahata LAC (1985-1989), 184 at 185).
The main issue in this case is to make a finding about
the exact position of the point of impact. If the point of impact is
correct lane that was being used by the plaintiff 1, then it
will be easy to come to the conclusion that Monyobi who drove the
10 vehicle insured by the defendant was negligent.
However, if the point of impact is in the
correct lane which was used by Monyobi, it will mean
that plaintiff 1 was negligent and caused the collision of the two
The evidence of plaintiff 1, (Serutla) and Lebajoa Seate
(P.W.2) was that Monyobi was driving in the wrong lane and came
towards Serutla who was driving in his correct lane of the
road. According to them Monyobi never changed his direction until the
two vehicles collided. Serutla testified in no uncertain terms that
he never left his correct lane and never crossed the white lane
the centre of the road. For instance at pages 23 - 24 of the record
Question by Defendant's Counsel: "Now 1 want to put it
that it would be defendant's version that this accident, in fact
happened on the correct side of the road for the land cruiser,
other words on your incorrect side of the road, the point of impact,
not talking about where the vehicles were before the accident,
put to you that at the time when the two vehicles collided they were
both on your incorrect side of the road, what do you
say to that?
P.W.1: I say no D.C.: Now did you at any time cross the white line
or did you just stop at your right
wheel on the white line? P.W.1: I had my right wheel on
the centre line. D.C.: Okay, you had told this Sir, now what I
know is, any time prior to the
accident did you cross the white line at all? P.W.1: Not
D.C.: You are sure of that? P.W.1: Yes I am sure of
In his letter to his counsel which is Exhibit "B"
in these proceedings, Serutla (P.W.I) said that he crossed the white
line and went into the correct lane for the vehicle driven by
Monyobi (D.W.1). In other words he admitted that he was driving in
the wrong lane when the collision occurred.
However in his evidence before this Court P.W. 1
categorically denied that he ever crossed the white centre line. His
is that the collision occurred in his correct lane of the
In his evidence at pages 111-116 (inclusive) Lebajoa
Seate (P.W.2) insisted that the collision occurred in the correct
lane for the
vehicle driven by P.W.1.
The evidence of P.W.I and P.W.2 is in direct conflict
with the evidence of Trooper Mahasele (P.W.5). He established the
point of impact
being where he found water from the radiator, pieces
of glass and soil from the mudguard. In other words, P.W.5 used
to establish where the two vehicles collided.
Another very important objective factor is that when the two vehicles
vehicle driven by P.W.I was pushed backwards for a
distance of fourteen paces. It is clear that P.W.I applied his brakes
when the collision occurred and the wheels were locked and
12 skidded as the vehicle was pushed backwards. The
skidmarks start from the point of
impact and cover a distance of fourteen paces. It seems
to me that the evidence of P.W.5 conclusively established the point
That point of impact is in the correct lane for the
vehicle driven by Monyobi. The vehicle driven by P.W.1 obviously left
lane and collided with the other vehicle in its correct
lane. What is disturbing me is that P.W.I and P.W.2 have not been
with the Court by insisting that the collision occurred in the
correct lane for the vehicle driven by P.W.1. What is most damaging
in the evidence of P.W.1 is that in Exhibit "B", which is a
letter which he wrote to his lawyer on the 2nd August,
1990 he admitted having crossed onto to his incorrect side of the
road and that the accident occurred on his incorrect side
road. However in his evidence before this Court he is now denying
that his vehicle crossed onto the incorrect side of the
the collision occurred.
P.W.I is obviously not telling the truth because in
addition to what he said in Exhibit "B", we now have the
of P.W.5, which is independent evidence based on
objective factors, that the collision occurred in the correct side of
the road for
the vehicle driven by Monyobi.
It seems to me that P.W.1 and P.W.2 laid their heads
together in order to come up with an untrue story that the two
on the correct side of the road for P.W.1. They
apparently did not know what P.W.5 was going to say. In his evidence
13 P.W.5 said that P.W.I and D.W.1 agreed with the
point of impact he had established.
At page 208 of the record this is what P.W.I said:
"Mr Mphalane: Did they point at the point of impact
at the same place, I mean where you have located at the sketch plan,
of them did they show it be here
where it is? Yes, My Lord.
Did they differ in any way on the explanations to how
the accident happened?
They were different in the explanation but they were
at one with the point of
It seems to me that P.W.1 and P.W.2 decided to embellish
their evidence that the accident occurred in the correct lane of the
for the vehicle driven by P.W.1 in order to wrongly put the
blame on Monyobi so that the plaintiffs may succeed in their claims
the damages. The truth has been established on a balance of
probabilities that the accident occurred on the correct side of the
for the vehicle driven by Monyobi.
The difficulty which I have with the evidence of P.W.1
and P.W.2 that just before the accident occurred Monyobi was driving
in the wrong side of the road and that he was the sole
cause of the accident, is that they have been proved to have told the
an untrue story on the question of the point of impact. How can
I believe their story that Monyobi was negligent? Monyobi was
honest in his evidence. He admitted that he drove at a
speed of sixty kilometres per hour in a fifty kilometre per
14 hour speed zone.
It is a well established rule that exceeding the speed
limit is not negligence per se.
In Clairwood Motor Transport v Akal and Sons, 1959 S.A.
183 at p.184 it was
"It is true that the speed limit at that time was
15 miles an hour, but the breach of a by-law is not, per se,
negligence, it is merely one of the facts to be
considered in all the circumstances".
I have found on a balance of probabilities that Monyobi
was driving on his correct side of the road just before the accident.
I am aware that on Exhibit "K" P.W.5 indicates
the directions of vehicles "A" and "B" with
before the collision and on the reverse side of Exhibit
"K" he states that vehicle "A" swerved to the
vehicle "B" swerved to the right. It seems to me
that his evidence on this point is hearsay and altogether
because he apparently relied on what he was told by
other people. He did not rely on any wheel marks aor any skidmarks.
In the case
of skidmarks after the collision he clearly states that
there were such skidmarks.
Mr. Mphalane, attorney for the plaintiffs, submitted
that D.W.1 was negligent
15 because he did not apply his brakes in order to avoid
the collision. I disagree with this
submission inasmuch as D.W.1 clearly indicated that his
intention was to swerve to the right side of the road where there was
space. As he was doing that the collision occurred before he
had completed that turn to the right. Failure to apply brakes in the
circumstances of this particular case does amount to negligence. He
was trying to avoid the accident by swerving to the right.
The same applies to P.W.I inasmuch as he never applied
his brakes by swerved to the right in order to avoid the collision.
how he alleges.
D.W.1 is accused of having had empty tins of beer in his
vehicle. The Court is therefore asked to infer that he was drunk and
the accident. It seems to me that drunkenness must be proved
in a more convincing way that the mere presence of empty tins of beer
in one's car. If there had been any suspicion of drunkenness D.W.5
ought to have had a medical examination of D.W.1. His breath ought
have been tested by a breatherliser. In the absence of such
instrument P.W.5 ought to have used the old methods - such as
the breath of D.W.1 or asking him to stand on one lee.
I come to the conclusion that there was no evidence that
D.W.1 was drunk.
P.W.I and P.W.2 did not impress me as being truthful
witnesses, so that their allegation that D.W.1's vehicle was moving
in a zigzag
course before the collision
occurred cannot be taken as correct. They tend to
embellish and exaggerate for their own convenience. They lied on an
which is the point of impact established by very
reliable objective facts proved by P.W.5. No reasonable man can
believe them on
any issue in which D.W.1 gave evidence contradicting
It is trite law that where the versions of the plaintiff
and the defendant are mutually destructive, as in this case, the
must satisfy the Court that his version is true and the
version of the defendant is false.
In National Employers v Gany, 1931 A.D. 187 at 188/189
the Court said:
"In these circumstances the Learned Judge should
not have held that the heavy onus on the Plaintiff was discharged. He
not have accepted as conclusive the evidence of A. Gany,
contradicted as it was by Clark, but should have held that neither
was sufficiently corroborated and have therefore given the
verdict of not proven: In other words, he should have given
from the instance... Where there are two stories mutually
destructive, before the onus is discharged, the Court must be
upon adequate grounds that the story of the litigant upon
whom the onus rests, is true and the other false. It is not enough to
that the story told by Clark is not satisfactory in every
The onus was on the plaintiff to prove that before the
collision occurred the
17 vehicle insured by the defendant was being driven on
the wrong side of the road. That
version was strongly contradicted by the defendant's
evidence that, in fact, it was the plaintiffs' vehicle that was being
on the wrong side of the road. I cannot say that the version
of the plaintiff is true and that the defendant's version is false.
A balance of probabilities seems to favour the
Mr. Mphalane submitted that D.W.1 also conceded that he
was not able to identify whether the lights which were in front of
that of a vehicle or not, but at that time he was seventy
paces away. This can only point out that he was is some way
on the night in question. I do not agree with this
submission because there are other things which could have obscured
the vision of D.w.1; such as improperly working
headlamps when dimmed or dirty headlamps. Before a conclusion can be
the obscure vision was due to intoxication, the other
things I have mentioned ought to have been excluded by evidence.
In any case the D.W.1 did not collide with the other
vehicle because he did not know what it was. He hooted and tried to
the other side of the road but the collision occurred
before he could complete the manoeuver.
D.W.1 said that as he came to a curve at
Masianokeng/Roma junction he saw in front of him and in his correct
lane some lights which
seemed to be of a vehicle coming
18 straight towards him. He hooted and flickered the
lights in an attempt to warn the driver
of the oncoming vehicle to get back to his lane. It is
not right to say that D.W. 1 was not able to identify whether the
were in front of him were those of a vehicle or not. He
said they seemed to be the lights of a vehicle which was coming
towards him. That is the reason why he flickered the lights
and hooted as a warning to the other driver.
I have come to the conclusion that the plaintiffs have
failed to prove on a balance of probabilities that there was any
on the part of Monyobi (D.W.I). I have decided not to
consider the question of quantum of damages.
In the result the plaintiffs' actions are dismissed with
J.L. KHEOLA CHIEF JUSTICE
30th MAY, 2001
For Plaintiffs - Mr Mphalane For Defendant -
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