IN
THE HIGH COURT OF LESOTHO

HELD
AT MASERU CRI/T/215/2006

In
the matter between:

LESOTHO
NATIONAL LIFE ASSURANCE Plaintiff

COMPANY

AND

THE
ATTORNEY GENERAL 1^st
Respondent

PITSO
PITSO 2^nd

Respondent

JUDGEMENT

Delivered
by the Honourable Mr. Justice T. E. Monapathi

On
the 23^rd
day of April 2009

1. 
   This
   is a matter in which the Lesotho National Life Assurance Company
   brought an action against the Defendants for negligence
   which
   resulted in collision of vehicle driven by the Second Defendant and
   another (a Volvo registration A 8938) belonging to
   the Plaintiff.
   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.

   
   

2. 
   The
   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.

   
   

3. 
   I
   have considered the Plaintiff’s claim including the evidence
   that was brought in support of the Plaintiff. I have noted,
   in that
   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, 9^th
   June 2004 (unreported) cited by Motsieloa is beside the point. Not
   only did Counsel address me, they also filed heads of argument
   for
   both sides. These were very helpful.

   
   

4. 
   As
   respectfully submitted, the outcome of this matter turns solely on
   the question of whether the army vehicle had ventured or
   veered from
   the main lane in which it was travelling, to its left in the
   emergency lane in which the Toyota Venture was travelling
   at that
   point in time. If it was found that this is indeed what happened
   then the result must necessary be that the driver of
   the army
   vehicle was negligent and then the Plaintiff’s claim must
   therefore succeed.

   
   

5. 
   The
   driver of the Toyota Venture and the police officer who testified
   both responded that there was, as matter of fact, no narrowing
   in
   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.

   
   

6. 
   The
   police officer also testified that broken parts (telltales) were
   found in the emergency lane which made him believe that the
   accident
   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.

   
   

7. 
   I
   accept the Plaintiff’s submissions and rejected those of the
   Defendant. In particular I noted that negligence was proved
   wholly
   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.

   
   

8. 
   I
   also noted that all things that stood for reasonable and necessary
   costs of repair were proved for Plaintiff. In particular
   the
   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 of
   Margaret
   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
   of
   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.

   
   

9. 
   I
   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
   Assurance
   Co. Ltd is the real Plaintiff. There is therefore no substance in
   the argument presented by the Defendants.

   
   

10. 
    The
    evidence of Mr. Leteba and the police officer proved overwhelmingly
    that the Second Defendant was the cause of the accident.
    I also
    accepted that in terms of the law the effect of the Defendants’
    failure to adduce evidence can only mean that the
    Plaintiff’s
    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
    (AD)
    and
    President of RSA v SA Rugby Football Union 2000 (1) SA 1 (CC).

    
    

This
claim succeeds as prayed in the summons with costs.

-----------------

T.
E. Monapathi

Judge

For
Plaintiff : Adv. Laubscher

For
Respondents : Adv. Molokoane