HIGH COURT OF LESOTHO
NATIONAL GENERAL INSURANCE Plaintiff
NTOA BUSHMAN Defendant
APPLICATION FOR ABSOLUTION FROM THE INSTANCE
by the Hon the Chief Justice ML Lehohla on the 13 May 2005
in delivering the ruling in the above matter is deeply regretted as
the preparation for delivery, was interrupted by a
particularly long criminal trials.
to the summons and its particulars of claim the plaintiff an
insurance company sues the defendant for payment of M34 392-03
other subsidiary amounts arising from a motor accident that occurred
along the Main North One Road whereupon the defendant's
being driven by the defendant, collided with a pedestrian one
'Maphallang Anna Thuhlo a policewoman at the time doing police
following a roadblock mounted by her and her colleagues at the
relevant spot and immediate vicinity of the accident. The policewoman
died as a result of the said collision.
plaintiff's side led evidence of three witnesses namely
PW1 Lance Sgnt Motene
PW2 Trooper Mabote
closely cross-examined by Mr Teele for the defence.
close of the case for the plaintiff on the aspect only of negligence
the defence moved an application for absolution from
This application was strenuously opposed by Mr Grundlingh on behalf
of the plaintiff. He submitted very detailed
heads of arguments
propped up with a thick bundle of authorities relied on for opposing
the application for absolution.
plaintiff's case is based on negligence ascribable to the defendant.
Depending on the result of the application for absolution
the defendant with failure to report the accident within the
stipulated time. The evidence of PW3 on the possible reason
defendants' failure to comply is important because especially under
cross-examination he indicated that the defendant who
to the scene the following day appeared confused and was
incomprehensible in his interaction with PW3. At this
stage it should
be recalled that PW3 had not been among the group of police personnel
who were manning the road block at the time
of the accident. He only
went there the following day armed with a rough sketch which had been
made by the police who had been
at the scene the previous night that
the accident occurred.
importance is that he conceded that he knew that a vehicle had been
parked on the side of the road near where the point of impact
neither was this revealed in his own sketch nor the rough one
prepared by other police despite that this vehicle constituted
possible block to the escape route for someone betaking
himself/herself from possible danger posed by moving traffic nearby.
Of greater significance in PW3's evidence is that he is the only one
who made what seems to have been a patent observation that
defendant was seriously injured.
inkling into what accounted for the defendant's condition is provided
by the cross-examiner's question put to PW3 that immediately
the accident the defendant was struck by something when he went out
of his vehicle from which he remained unable to discern
until about four days later. The question further suggested that the
defendant underwent medical treatment for concussion
incident of being struck. Furthermore during his visits for treatment
angry police kept streaming in and out of
conceded that the defendant was not taken to Court on criminal
charges that month because he was reported ill. Indeed summons
be issued afterwards and that it would not surprise PW3 that the
defendant took three months recovering.
summing up his observation of the defendant in his evidence-in-chief
PW3 said "[The] following day I went with defendant
again to the
scene and with part of police who were there.
arrival at the scene I explained to him what my findings were: on the
previous day he appeared to be not well.
appeared to me there were no quarrels with him as to my findings.
repeated to him what my markings for yesterday were and I said here
was this and here was that and I found we were in agreement.
again] as I said I wouldn't say he agreed with me as he appeared not
well the previous day and was incomprehensible and possibly
be understanding what he was saying"
on the objective facts PW3 places the point of impact almost just a
short distance shy of the middle of the lane near where
vehicle which had been stopped by the police had been standing when
the accident occurred. This would be just less than
three quarter way
deep into the lane calculable from the edge of the tarmac just
outside which the other vehicle had been standing
facing the same
direction as the defendant's vehicle which had approached from behind
it when the accident occurred.
made an attempt to highlight facts which would be crucial in
determining whether or not to grant the application sought,
now to deal with the law regarding absolution from the instance with
a view to
if granting it is warranted by relevant facts and proper
consideration of circumstances pertaining to the instant case.
trite that the procedure for absolution is similar to an application
for a discharge at the end of the state's case in a criminal
to apply for absolution where it is clear that it is warranted, then
even if at the end of the entire trial the defendant
is successful he
forfeits the costs, barring in very rare and exceptional cases. The
general rule is clearly that he should forfeit
the costs. See
Hebstain and van Winsen on Civil Law Practice in the Superior Courts
of South Africa 3rd Ed 483.
authorities are in agreement and the invaluable works of Erasmus et
al are no exception in Superior Court Practice (Service
4/1995) HJ at
B1-292 onwards in reference to Rule 39 of the Uniform Rules of Court
in South Africa concerning application for absolution
"When absolution from the instance is sought at the close of the
plaintiff's case the test is not whether the evidence established
what would finally be required to be established, but whether there
is evidence upon which a court, applying its mind reasonably
evidence, could or might (not should, or ought to) find for the
paragraph 1.2 of Mr Grundlingh's heads of arguments is to be observed
a slight deviation from the classical test mentioned above
in that he
says "it is important to note that the operative word is 'might'
and not 'could or should'". My underlining.
salient points to take into consideration in dealing with the problem
at hand are that:
the place where the accident took place, the road is straight and
has a tarred surface.
speed limit set is 50km per hour.
immediate vicinity is a built-up area and at a bus stop.
vehicle that was parked on the left hand side of the road, just off
the road surface with its lights on had its driver outside
vehicle engaged in conversation with some of the police team manning
the road, block.
police were wearing their uniforms.
for the fact that it was dark, there was nothing else obstructing
the view of approaching traffic.
of the above facts has been placed in issue. However it is important
to note that the defence raised scrupples concerning
warning sign claimed by the plaintiff to have been erected 50 meters
away from the scene of the accident was still
there when the
defendant approached. A possible occurrence being suggested being
that it could have been toppled by the wind.
plaintiff's case is that this warning sign was about 1.2 to 1.5
meters in height and was brightly coloured.
defendant's vehicle was heading for Hlotse from Maputsoe.
"A" LMP Report form handed in by PW3 is based on a carbon
copy prepared by the police who had been to the scene
at the time of
was not a member of that team he only came to the scene the
following day with the defendant and some of the members of
original team to clear up some markings in the map.
above background set out in points 1 to 8 mainly Mr Grundlingh
relying on the distillation of facts elicited from various
authorities in cases of motor accidents neatly submitted that a
duty to drive his motor vehicle so as to avoid causing harm to
others. To this end he is obliged to:
a proper look-out
at a reasonable speed
at a safe distance from vehicles ahead
allowance for lateral movement
proper warning of his presence
appropriate driving signals.
in point are:
Faros & Company 1940 CPD at 477
Rosenthal_l948 (1) SA 51 Nat 55
R vs De
Swart 1949 (1) SA 516N
It is a
matter of common sense and requirement of the law that a prudent
driver driving on a public road should foresee the possibility
encountering obstructions in their infinite and varied forms, and be
prepared to be
with diverse situations which may create actual or potential
therefore necessary that he should regulate his speed according to
his range of vision if a driver's vision is impaired by
any of the
elements such as rain smoke or darkness.
foregoing proposition is well articulated and canvassed in
vs Commercial Union Insurance Company 1969 (3) SA 61 at.64 (c)
Plooy vs SA Onderlinge Brandversekering 1975 (1) SA 791 (0).
what the proposition entails Howes J in Zaymes above sets out in the
headnote as follows:
"It is the duty of the driver of vehicle, before he sets it in
motion, to see that he will not do any damage to others lawfully
the roadway. This duty is not limited to persons or objects in front
of the vehicle; it extends also to those at the sides,
or at all
events at the driver's side.........." 1 agree with the
formulation and purpose of this proposition.
conditions which inflict impairment on a driver's vision he should
proceed slowly and regulate his speed in order to be
able to avoid
any person or object he can reasonably expect to be upon the road. A
corollary of the principle that a driver must
regulate his speed
according to his range of vision is that the driver of a vehicle that
collides with an obstruction is on the
horns of a dilemma in that;
either he was not keeping a proper look-out or, if he was keeping a
proper look-out, he was then travelling
at a speed at which he was
unable to stop his vehicle; meaning he was travelling at an excessive
the exiom of Van der Heever JA in Manderson vs Century Insurance
Company Limited 1951 (1) SA at 537 H is unassailable as
neatly put in
the following text that I am in full agreement with, namely
"..............a man who travels in the dark at a speed which,
because of the
conditions of the road or for some other reason does not enable him
to pull up within the range of his vision, is prima facie guilty
negligence. In doing so he accepts rinks of injury to others which he
is not entitled to take, for he is prepared to drive a
dangerous thing over a part of the road which he has not surveyed
with his eyes - in other words blindly."
considered aspects which a cautious driver has to bear in mind once
he sets his vehicle in motion on a public road the learned
further and cautions that:
"Nevertheless there may be persons, animals or other traffic in
the area which his eye-sight cannot adequately probe. If he
risk and trusting to luck enters it at a speed [at] which he cannot
draw up before hitting some object which is actually
conduct falls short of what is demanded of the average rational
citizen or bonus paterfamilias."
the foregoing caution with further adroitness of expression the
learned Judge rounds off by rightly pointing out that:
"One can have no assurance that there is no broken-down car on
the road, the electrical system of which had failed a few minutes
earlier and the driver of which had as yet not opportunity of pushing
it off the road. When driving in broad daylight a driver
has to consider a number of potential sources of danger on the road
simultenously; why should he assume that at night
they will present
themselves singly and in orderly sequence?"
Grundlingh's submission is accordingly sound therefore that : if a
driver travels along a frequented road upon which he should
the likelihood of there being animals, pedestrians or stationary
vehicles and he takes the risk of travelling through
a section of the
road which he had not probed with his eyes, at a speed which does not
permit of his drawing up before reaching
any object which suddenly
appears within the range of his vision and an accident results, he
cannot escape from the dilemma.
now to deal with the case for the applicant/defendant. But first I
should lay down the groundwork as as a prelude thereto.
mind the requirement that when dealing with applications of this
nature the Court
eschew the inclination or fatal error of embarking on evaluation and
assessment of evidence which could only be proper in
question of finality of the case before it after both sides have
closed their respective cases, I should hasten
to point out that the
Court would only accede to the defendant's request if having
concerned itself with whether there is evidence
upon which it could
or might (not should or ought to) find for the plaintiff there is
confidence that this requirement has not
requirement is met where the evidence led is so contradictory, and/or
palpably and/or obviously false that no reasonable man
reliance on it.
the statement by Erasmus et al that:
"In deciding whether absolution should be granted at the close
of the plaintiff's case, it must be assumed that in the absence
very special considerations, such as the inherent unacceptability of
the evidence adduced, the evidence is true."
Court has strained every atom of its energy to ensure that in
considering the question of absolution there is no breach of
principle espoused at Bl-292 of the works of Erasmus et al that:
"Questions of credibility should not normally be investigated at
this stage of the proceedings, except where the witnesses
palpably broken down and where it is clear that what they stated is
now an opportune moment in which to apply the above principles to the
facts of this case and see if the two factors harmonise
other. To do so it becomes necessary to consider the evidence.
nutshell the application for absolution as moved by Mr Teele seems to
me to be grounded on three factors namely; whether:
the light of crying inadequacy in the case for the plaintiff on the
question of negligence there is any need to put the defendant
view of the fact that the deceased's negligence was solely
responsible for the fate that befell her there is any need to hold
the defendant legally accountable on the basis of what otherwise
amounts to non-existent negligence on his part.
could seriously be contended that there is prima facie evidence
adduced by the plaintiff to necessitate the defendant's answer
the plaintiff's case at this stage.
means of giving strength to its case the plaintiff's evidence created
an impression that there had been erected a police road-block
sign board a good distance away (roughly 50 metres) from the place
where vehicles are subjected to police searches. In
fact PW1 said
Policeman Mabote was the one guarding the relevant sign board holding
a torch flickering it at on-coming traffic
to reduce speed in
preparation to drawing up at the road block proper. But the crux of
the matter is that the witness PW2 Mabote
who is said to have been
doing all this denies under cross examination that he was standing
next to any police stop sign holding
a torch flickering it at on
counters by saying that he was standing where PW1 was standing and
asserting that he couldn't have stood next to the police road
board as this was sufficient notification to on-coming traffic that
they should stop. PW1 herself accepts that it was possible
road sign had fallen before the defendant reached it in reply to the
defence's suggestion that there was no road sign
to have required the
defendant to stop.
validity of these two factors i.e. an erect road sign and the
flickering torch serve as pointers to the culpability of the
defendant's conduct vis-a-vis
subsequent tragic event, the invalidity of their existence should, as
a matter of logic, cut swaths through the fortifications
plaintiff's case. Needless to say I am satisfied that the evidence
that there was some flickering light to warn the defendant
activity ahead of him is unreliable as it is opposed by the person
who is supposed to have been holding it and therefore
there was no such light and further that either the road sign was
absent or, if present, it had fallen thus, in either
event, making it
impossible for the defendant to be aware well in advance of the
activity taking place ahead of him.
while this Court is alive to the fact that witnessing the loss of a
colleague's life in the manner suggested by evidence is
traumatic as to render it understandable if the witnesses somewhat
embellished and even exaggerated what they saw,
I must however draw
the line in regard to where limits in this charade are exceeded. In
this regard it is unacceptable that PW1
should come and falsely
testify that the driver of the vehicle which had remained standing by
the roadside near the yellow line,
on seeing the defendant's vehicle
approach at high speed said in apprehension of what he saw he
wondered "will this vehicle
stop?" See page 14 of Court's
notes. In PWl's report which was prepared while events
still fresh in her mind this vital piece of evidence which is clearly
calculated to give an inkling of an adverse nature as
defendant's conduct is not mentioned. All that is mentioned is that
this man said to PW1 "watch out."
evidence shows that the deceased was engaged in conversation with
women who were inside the parked motor vehicle while
she was outside
it herself standing to its side almost on the yellow line. At this
stage the driver of this vehicle was conversing
with PW1 some
distance away. Then the defendant's vehicle approached. While doing
so it interrupted the deceased's conversation.
Perhaps she heard the
utterance "watch out", then panicked instantly from her
position on the yellow line. From this
position to the point of
impact marked X almost three quarter way into the relevant lane from
the yellow line it is justifiable
to draw an inference that the
deceased reached the point "X" by betaking herself quickly
from the security of her position
on the yellow line to the place of
danger lying ahead of an oncoming vehicle in circumstances where the
deceased's behaviour in
that regard could not have been expected by
ordinary right thinking persons.
feature that laid bare PWTs preparedness to lie with amazing facility
or simply indulge herself in unbridled flights of
itself when she insisted that the sign board referred to had fallen
yet the truth is that she had not been
where it had fallen and
therefore could not have in the circumstances sincerely have sworn to
that fact. When it was patiently
and insistently put to her that she
was not being honest with the Court by claiming to know what she did
not see she then offered
an explanation that the idea must have been
implanted in her mind by what she heard from her colleagues. But then
if it was so
one is kept puzzled by the claim that she made namely
that she went to collect that sign board during the same night and
the view that its falling might have been caused by the
turbulence of vehicles in motion.
Court having noted that PW1 herself barring her tendency to
exaggerate, accepts the real possibility that the road sign
fallen before the defendant could reach it concludes that there was
nothing to have required the defendant to stop.
follows that the jigsaw-puzzle pieces fall in place considering that
there was this factor that someone gave warning to
clear out when it
defendant's vehicle was not going to stop. When this hue and cry was
raised the evidence suggests that the deceased was still
yellow line bordering the left-hand side lane - thus practically
outside the road.
being had to the fact that the plaintiff's case resting on the
evidence of the two witnesses who were present at the scene
as PW3 who drew up the map is that the collision was near the white
line at the centre of the road which is where the deceased
knocked down, I find it compelling to accept Mr Teele's submission
that obviously what happened is that the deceased dashed
road in the face of the defendant's oncoming vehicle.
becomes necessary in applying the test elicited from Mazibuko vs
SANTAM Insurance 1982 (3) SA 125 at 135 and other authorities
context of issues relevant to the instant case to determine whether
the defendant's negligence is the sole cause of death or
by him whether the boot is on the other foot i.e. the deceased's
negligence is the sole cause of the death that occurred.
immediately struck one in the scenario that unfolded as witnesses
were being cross-examined was the nagging feeling that "for
deceased to dash into the road in face of oncoming vehicle she
obviously was negligent. Had she not dashed into the road she
wouldn't have been knocked down"
if the defendant was himself negligent his negligence would not have
caused the deceased's death.
briefly to revisit the phenomenon of the driver's dilemma in an
attempt to bring what follows into perspective.
earlier the meaning of the driver's dilemma is in brief that if the
object struck was foreseeable and the driver collided
with it, the
reason for so colliding with it is either that the driver's speed was
excessive or if it was not so, then the reason
is that he did not
keep a proper look-out.
question of collision immediately becomes prima facie proof of
negligence. The understandable and perhaps irresistible
for the plaintiff in the circumstances would be to put the defendant
on the horns of the dilemma referred to above.
Motor Law Volume II of Principles of Liability at page 69 suggests
that it has to be established even if prima facie only
object with which the driver collided was visible in the sense shown.
I find the principle on which this suggestion turns
indeed sound and
am in respectful agreement with it. I accordingly accept Mr Teele's
submission that this is the test to apply
when determining whether
prima facie plaintiff has shown that the deceased was antecedently
visible and could be seen by one keeping
a proper look-out.
assuming at its barest minimum the correctness of the plaintiff's
case this requirement has not been established.
been established is that the deceased dashed into the road in the
face of oncoming vehicle and thus created a sudden emergency.
what appears prima facie the plaintiff's case.
sense what emerges from the above turn of events is a confirmation of
what was put to the witnesses and in turn what I am
able to deduce to
be the defendant's case.
alive to the fact that the accident occurred when visibility was poor
late in the night with no prior warning signs in place
the existence of a road block.
PW1 despite her denial in evidence that the defendant's vehicle had
been signalling by indicators that it was changing lanes
confronted with her written report conceded that there was this use
of indicators flickering to the right of the defendant's
putting oneself in defendant's position at the time one would not be
wrong in saying that when the defendant saw the vehicle
ahead of him,
and thinking that it was in motion and was in his lane indicated that
he was overtaking it and thereby increased
speed only to
discover later that it constituted no obstruction ahead of him and
thus remained in his lane only to unwittingly
forment an unforeseen
panic that resulted in this regrettable fatality.
this I would imagine that even in an area where the speed limit is
50KM/ph if a driver wants to overtake a vehicle moving
at 46 to
49KM/ph he may have to exceed 50KM/ph or else he may find himself
eternity before being clear of that vehicle given that overtaking is
to be completed within the briefest possible period.
Grundlingh's response in submissions acknowledges that the evidence
by PW1 and PW2 shows the deceased moved. But he does not
she moved. This way he does not accord proper essence to his own
case. This is especially so, when he cites cases on
objects and treats them as if fitting the instant case where the
object moved. His own witnesses said deceased moved
from the yellow
line. In the circumstances she could only be hit because she moved
into the road.
trite that if there are inferences one of which favours the plaintiff
then the application cannot be granted but in the instant
only inference is that the deceased ran or panicked into the road
thereby solely being the cause of her own death.
authorities both in Lesotho and the Republic of South Africa show
that the question of negligence in Civil cases is treated
way as in criminal cases, thus if the deceased's negligence is the
sole cause of death
defendant or accused cannot be held liable. See Maseretse vs Rex
1974-75 LLR 385 and cases cited therein.
regard I recall a homicide case resulting from the swinging of a
chain by a trespassing passenger bus.
occurred at Lekhaloaneng near Maseru. The name and citation of the
case that came before me on appeal escape my memory.
were that roadworks were being effected on the section of a regular
road near Lekhaloaneng. The result was that traffic
going from Maseru
to Mafeteng and back was diverted to go via Lakeside which entailed a
whole 7km diversion or more as opposed
to hardly 20 metres diversion
to be incurred if one were to trespass on a nearly bricklayer's yard.
on opposite ends of the bricklayer's yard was a simple chain hitched
on two firmly erected poles. To open either gate you
the chain from the catch and let it drop to the ground so that
vehicles wheels could roll on it.
while thus lying on the ground was approached by the trespassing bus.
The gate keeper in his rush lifted the chain after
the front wheels
had harmlessly rolled over it. Because it was raised it got snagged
in the rear wheels which speedily churned
it and swinging the
deceased against the hard ground in the process because his hands got
entangled and thus was unable to let
go killed him.
appeal against conviction for culpable homicide in the lower Court on
grounds of negligence succeeded because there was noway
trespassing driver could reasonably have been expected to see an
obstruction that was immediately created after his range of
which is confined to the vicinity immediately in front of the front
wheels of his vehicle had gone passed. In other words
was the sole cause of his death through negligence arising from an
act that the driver could not have forseen or prevented
had to deal with questions of credibility only in regard to aspects
of the case where the evidence was clearly not true.
This is in line
with the authorities which indicate that at this stage investigation
of questions of
should not be embarked on except where witnesses have palpably broken
down and where it is clear that what they have
stated is not true.
it unnecessary to apply the principle in The Law of South Africa
Volume 3 part 1 para 314 by Joubert et al which in fitting
circumstances proves beneficial. It is to the following effect
"The court may also have regard to the possibility that the
plaintiff's case may be strengthened by evidence emerging in the
discarding application of the above principle preference was given to
that espoused by Erasmus et al that;
"............. Another approach is to enquire whether the
plaintiff has made out a
prima facie case. The application is akin to and stands on very much
the same footing as an application for the discharge of an
the end of the state case in a criminal trial."
that no prima facie case regarding the defendant's alleged negligence
has been made out. The plaintiff bears the onus to
or establish a prima facie case against the defendant. This the
do. Accordingly I grant an absolution from the instance on this
aspect of the matter.
Plaintiff : Mr Grundlingh
Defendant : Mr Teele
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