THE HIGH COURT OF LESOTHO
AT MASERU CRI/T/215/2006
the matter between:
NATIONAL LIFE ASSURANCE Plaintiff
ATTORNEY GENERAL 1st
by the Honourable Mr. Justice T. E. Monapathi
day of April 2009
is a matter in which the Lesotho National Life Assurance Company
brought an action against the Defendants for negligence
resulted in collision of vehicle driven by the Second Defendant and
another (a Volvo registration A 8938) belonging to
The latter was driven by one Neo Leteba (PW1) an employee of the
Plaintiff. The Second Defendant is a soldier
of Lesotho Defence
Force (LDF). He drove an army vehicle, registration X 9239.
Plaintiff claims a sum of M36,159.77 for reasonable, fair and
necessary costs for the damage of the Volvo arising out of the
alleged negligent driving of the Second Defendant.
have considered the Plaintiff’s claim including the evidence
that was brought in support of the Plaintiff. I have noted,
regard, that no evidence was put forward for the Defendant. Instead
the Defendants closed their case. Then, definitely,
there was no
question of absolution from instance since no such application was
made. That is the reason why the case of Matlakeng
v Commissioner of Police and Others (CIV/T/507/2004
Teele AJ, 9th
June 2004 (unreported) cited by Motsieloa is beside the point. Not
only did Counsel address me, they also filed heads of argument
both sides. These were very helpful.
respectfully submitted, the outcome of this matter turns solely on
the question of whether the army vehicle had ventured or
the main lane in which it was travelling, to its left in the
emergency lane in which the Toyota Venture was travelling
point in time. If it was found that this is indeed what happened
then the result must necessary be that the driver of
vehicle was negligent and then the Plaintiff’s claim must
driver of the Toyota Venture and the police officer who testified
both responded that there was, as matter of fact, no narrowing
the emergency lane in the area or spot where the accident occurred,
as was put to the driver of the Toyota by defence Counsel.
Although the police officer denied in his evidence-in-chief that
there was such narrowing, his evidence on this point was tellingly
not challenged in cross-examination.
police officer also testified that broken parts (telltales) were
found in the emergency lane which made him believe that the
occurred in the emergency lane, and that it was therefore the army
vehicle veered into the Toyota causing the veered
sequel of events
that followed thereupon. This evidence was not challenged.
accept the Plaintiff’s submissions and rejected those of the
Defendant. In particular I noted that negligence was proved
in the way the un-contradicted evidence of Plaintiff’s witness
(PW1) and (PW2) stood. PW2 was a police officer
who came after the
collision. He made an inspection and made a report which the court
believed. Both witnesses testified honestly.
also noted that all things that stood for reasonable and necessary
costs of repair were proved for Plaintiff. In particular
evidence of Mr. Man, the expert, which was not contradicted. It is
a matter of great surprise that the following issues
are raised in
argument for Respondents. That despite Mr. Man’s evidence the
Plaintiff has failed to establish the amount
of its damages. That
the Plaintiff had failed to prove the following: first, the value
of the vehicle immediately prior to
the accident. Second, the value
of the vehicle immediately after the collision in order to assess
the difference. Third, that
the value of the vehicle itself, when
it was bought was not made known to the court nor was it shown
whether it was a new car
or a second had one. Fourth no receipt had
been produced to court. Fifth it was not known whether the parts
were old or not.
I was in that regard referred to the case ofMargaret
Khakanyo v ‘Mapitso Kojane 1995-1996 LLR 299.
With respect, in the circumstances of the present case, I did not
think that those issues which were, in any event, not matter
pleading or challenges to the witness who testified for the
Plaintiff as aforesaid, were to be properly worthy of consideration.
I accept the evidence of the Mr. Leteba for the Plaintiff on the
aspect of the cause of the collision as I have already said.
did not accept the point taken by the Defendant that the Plaintiff
was not represented or did not appear. On the un-contradicted
evidence of Mr. Leteba and the admitted allegation of paragraph 1 of
the declaration, it is proved that Lesotho National Life
Co. Ltd is the real Plaintiff. There is therefore no substance in
the argument presented by the Defendants.
evidence of Mr. Leteba and the police officer proved overwhelmingly
that the Second Defendant was the cause of the accident.
accepted that in terms of the law the effect of the Defendants’
failure to adduce evidence can only mean that the
case became undoubtedly proved. That is, that the collision was
caused by the army vehicle drive. On the
effect of failure to
adduce evidence see Thompson
v Thompson 1949 (1) SA 445 AL, Keowin v Med-Equity 1984 (1) SA 656
President of RSA v SA Rugby Football Union 2000 (1) SA 1 (CC).
claim succeeds as prayed in the summons with costs.
Plaintiff : Adv. Laubscher
Respondents : Adv. Molokoane
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