CIV/T/385/2004
IN THE HIGH COURT OF LESOTHO
In the matter between:
PAULINE MAMOJAKI MATSOAKELETSE Plaintiff
and
MASUPHA MOLAPO KLAAS Defendant
Judgment
Delivered by the Hon. Mrs Justice A. M. Hlajoane on 21st May, 2007.
This is the case where absolution from the instance was applied for after the Plaintiff had closed her case.
The facts of this case were that, Plaintiff claimed damages arising from a collision that occurred between her vehicle and that of the Defendant on the 17th February, 2004 along Lower Thamae Road near Thabong. It was the Plaintiffs case that the collision which damaged her vehicle was a result of the sole negligence of the Defendant The amount of M28,188.45 is what Plaintiff has claimed as necessary, fair and reasonable repairs to her vehicle.
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There was no dispute that there was an accident on that day, but what became a dispute was the fact that the Defendant was negligent. Plaintiff had told this Court that she saw Defendant's car coming behind her at a very high speed as she had slowed down for the vehicle in front of her which indicated to the left. Plaintiff said in evidence that she even put on hazards to alert the Defendant. She had noticed the Defendant's car when it was about 100 metres away from her.
Plaintiff had also called in an Assessor as her witness. This witness told the court that it was his occupation to assess damages to motor vehicles. He makes quotations and in casu he produced a document which was later labelled exhibit "c".
It was at that stage that the Defendant applied for absolution from the instance.
According to the Defendant the question that arose after Plaintiff had closed her case was whether there was evidence upon which a reasonable person might decide in favour of the Plaintiff, Lymington Estate ltd v Murphy 1949 (1) S.A 564.
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Defendant's submission was that on the evidence placed before Court Plaintiff has failed to establish her case in that:-
(i) Plaintiff had said Defendant's car came behind her at a very high speed but her witness said according to the damage to the vehicle, Plaintiffs vehicle, Defendant's could have been moving at a speed of between 40 - 50 k.p.h.
(ii) That Plaintiff even conceded under cross-examination that because of the traffic in both directions Defendant would not be in a position to avoid the collision.
(iii) That it was Plaintiff's duty to have called the evidence of the Police Officer who prepared the report rather than handing in the report by consent. So that according to the Defendant the report remained hearsay evidence and therefore not admissible.
(iv) That no receipt was ever produced to show actual cost from the person who repaired the vehicle. What was produced was a quotation
from the assessor.
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Plaintiff on the other hand also agreed with the Defendant on what test to be applied in application of this nature. Plaintiff went further to say that it would not be required to evaluate the different possible inferences but only to decide whether one reasonable inference favours the Plaintiff. Marine and Graig Insurance v Van Der Schyff 1972 (1) S.A 26 (A) at 38 (H).
Though Plaintiffs argument was to the effect that there was a difference in saying the test would be whether there was evidence upon which the reasonable person might find in favour of the Plaintiff and whether there is evidence upon which a Court, applying its mind reasonably to such evidence could might find for the Plaintiff, I find the two to mean the same though put differently. The person to decide is the Court applying its mind reasonably to the evidence.
As correctly argued by the Plaintiff, this was yet not the stage where questions of credibility should be investigated, as both sides have not offered explanations but Plaintiff only. Hoffman and Zeffert, The South African law of Evidence, 4th Edition at 508.
So that Defendant needed not to invite the Court to belief evidence of speed before the collision and whom to believe, and whether or not there was chance to avoid the collision.
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On the point of Defendant saying Plaintiff has shown no proof of actual loss in the form of receipt from person who repaired the vehicle, Plaintiff contended that he was under no obligation to prove that her vehicle was repaired, but what was required was sufficient evidence regarding the damage and the fair and reasonable repairing costs thereof. According to the Plaintiff production of proof of payment would create an absurdity as those who lack financial muscles to repair their vehicles would not be able to bring any legal action.
To that I say, that each case must be treated according to its merits. Where repairs were effected the Court would always be mindful of the fact that proof of payment would be possible, but also where no repairs have been done then the case would be treated differently.
My brother Mofolo J in CIV/T/256/91 Pheko v Makhene (unreported) decided that though the Defendant had admitted liability after the accident, she was still not the proper person to support the reasonableness of the charges or the necessity of the repairs reflected in the quote. The Court there went further to say since the car damaged had been repaired it was necessary for the Plaintiff to have called necessary and available evidence to prove
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repairs to his car. That the garage or repair yard which was responsible for repairing the car could have been called.
In Pheko v Makhene supra the case of Hersman v Shapiro & Co 1926 TPD 367 at 369 was cited. In that case the Court showed that damages would be bound to be awarded where the Court is certain that pecuniary damage has been suffered. But the Court went further to show that it would not be so bound where evidence is available to the Plaintiff which he has not produced. So that in such instances the Court would be justified in giving absolution from the instance.
In Bishoff v Erasmus 1953 (1) S.A 103 also cited in Pheko v Makhene supra, Plaintiff had adduced evidence by production of a tender on which the car was repaired. He had handed in his account showing items of repair and amounts charged. There had also been additional
evidence describing damage of the car and two tenders from other firms. But the magistrate had granted absolution on the ground that no evidence was adduced to the effect that the cost of repairs was reasonable.
The above decision was overturned on appeal as the Court felt that, not only had there been a tender, but also accounts were handed in
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showing items of repair and amounts charged. There had also been additional evidence describing the damage and two other tenders had been submitted.
In casu, Plaintiff has shown in her evidence that her vehicle was insured and that the Insurance Company, Alliance, paid for the repairs after they had obtained two quotations. She has claimed an amount of M28,188.45 in her summons. She has said that she had to pay an excess fee.
According to the evidence given by an Assessor, Mr Taylor he had received an initial quotation from panel Beaters reflecting an amount of M29, 751.18. On assessing the damage he had changed the quotation to M22, 608.15. Plaintiff has therefore not shown in evidence why she is claiming the M28, 188.45 from the Defendant when that amount had been reduced to M22,608.15 by Assessor. She also has not shown what that excess fee is. She has also failed to produce evidence that was available, being evidence from repair yard which was responsible to repair the car. Plaintiff has also failed to show why she is claiming from the Defendant yet the Insurance Company had paid. If it was the Insurance claiming from the Defendant, that would be something but now that it has been the Plaintiff claiming where Insurance has paid the Court
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considers that Defendant was justified in applying for absolution from the instance relying on the authority of Hersman v Shapiro & Co supra.
Defendant is thus absolved from the instance and there is no order as to costs.
M. HLAJOANE
JUDGE
For Plaintiff: Mr C.J. Horn
For Defendant: In Person
