HIGH COURT OF LESOTHO
MAMOJAKI MATSOAKELETSE Plaintiff
MOLAPO KLAAS Defendant
by the Hon. Mrs Justice A. M. Hlajoane on 21st May, 2007.
the case where absolution from the instance was applied for after the
Plaintiff had closed her case.
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.
no dispute that there was an accident on that day, but what became a
dispute was the fact that the Defendant was negligent.
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.
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
to the Defendant the question that arose after Plaintiff had closed
her case was whether there was evidence upon which
person might decide in favour of the Plaintiff, Lymington Estate ltd
v Murphy 1949 (1) S.A 564.
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
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
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
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.
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
favours the Plaintiff. Marine and Graig Insurance v Van Der Schyff
1972 (1) S.A 26 (A) at 38 (H).
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.
correctly argued by the Plaintiff, this was yet not the stage where
questions of credibility should be investigated, as both
not offered explanations but Plaintiff only. Hoffman and Zeffert, The
South African law of Evidence, 4th Edition at
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.
point of Defendant saying Plaintiff has shown no proof of actual loss
in the form of receipt from person who repaired the
Plaintiff contended that he was under no obligation to prove that her
vehicle was repaired, but what was required was
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.
brother Mofolo J in CIV/T/256/91 Pheko v Makhene (unreported) decided
that though the Defendant had admitted liability after
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
to his car. That the garage or repair yard which was responsible for
repairing the car could have been called.
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.
Bishoff v Erasmus 1953 (1) S.A 103 also cited in Pheko v Makhene
supra, Plaintiff had adduced evidence by production of a tender
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
no evidence was adduced to the effect that the cost of repairs was
decision was overturned on appeal as the Court felt that, not only
had there been a tender, but also accounts were handed
items of repair and amounts charged. There had also been additional
evidence describing the damage and two other tenders
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.
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
that Defendant was justified in applying for absolution from the
instance relying on the authority of Hersman v Shapiro
is thus absolved from the instance and there is no order as to costs.
Plaintiff: Mr C.J. Horn
Defendant: In Person
African Law (AfricanLII)
Ghana Law (GhaLII)
Laws of South Africa (Legislation)
Lesotho Law (LesLII)
Liberian Law (LiberLII)
Malawian Law (MalawiLII)
Namibian Law (NamibLII)
Nigerian Law (NigeriaLII)
Sierra Leone Law (SierraLII)
South African Law (SAFLII)
Seychelles Law (SeyLII)
Swaziland Law (SwaziLII)
Tanzania Law (TanzLII)
Ugandan Law (ULII)
Zambian Law (ZamLII)
Zimbabwean Law (ZimLII)
Commonwealth Countries' Law
LII of India
United States Law