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CIV/T/269/98

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

DIMO
RAMOTETE PLAINTIFF

and

SESELI
MOSHE FALATA 1ST DEFENDANT

SCORE
FURNITURES 2ND DEFENDANT

For the
Plaintiff : Mr. B. Makotoko

For the
1st Defendant : In person

For the
2nd Defendant : No appearance

JUDGMENT

Delivered
by the Honourable Mr. Justice T. Monapathi on the 20th day of June
2000

In this
matter the Plaintiff issued out summons against Defendants wherein he
claimed:

1. M47,077.00
   for repairs
   

   
   

2. M37,500.00
   loss of business

   
   

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3. Costs
   of suit

   
   

4. Further
   and alternative relief.

   
   

This
followed a collision of two vehicles one driven by the First
Defendant and the other by Plaintiffs driver. It was alleged that the
First Defendant's negligence had caused the collision. The legal
basis was that:

"Where
a vehicle which is damaged through the negligence of another has been
in use for the business of its owner the damages which can be
recovered, apart from the cost of repairs, include the loss of income
to the owner due to loss of use of vehicle." See SHROG v
VALENTINE 1949(3) SA 1228(T) on 1236 and also MOSSELBAY DIVISIONAL
COUNCIL v OOSTHUIZEN 1933 CPD 509.

The first
claim which was for fair, reasonable and necessary repairs of the
vehicle was for damages for compensation of Plaintiff's loss of the
motor vehicle (registration C7980) which he had used as a taxi. The
vehicle has remained in disrepair to date. The next prayer related to
alleged loss of funds of the daily business (takings) when the taxi
used to make an average of M2,500.00 from March 1997 until the 20th
June 1998.

Only the
First Defendant filed papers in his own defence. He had been
represented by T. M. Maieane-Attorneys. The attorneys later withdrew
as attorneys of record. A plea was filed on behalf of the First
Defendant. He ended up appearing in person. The latter Defendant's
failure to file any papers warranted the Plaintiff to proceed against
that defendant as he was entitled in terms of rule 27 (3) which rules
empowers the Court to grant judgment by default in a claim for
damages having heard plaintiffs formal evidence. In this case it was
substantial evidence which was put in by PW 1 (Limo Ramotete -
Plaintiff). PW 2 Mositi Matlali (driver) and PW 3 Policeman (Lesotho
Police Service) No. 8409 Trooper

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Khunong.
The latter had attended at the scene, had taken measurements and
other information which resulted in the Motor Vehicle Accident Report
Form (RLMP 29) which was handed in as Exhibit "C" to this
Court. First Defendant elected not to give in any evidence in his
defence.

The
evidence from the Plaintiff's three witnesses established the
following: The Plaintiffs taxi had had a breakdown resulting from
puncture or more serious removal of one of its wheels which occurred
whilst still in motion. The right parts of its rear body was on the
road but had still left space for other traffic using the same lane
to pass safely without incident. The vehicle was travelling in a
northerly direction (Maputsoe) near Ha Sekete where the vehicle had
rested. It could not move because it had rested on the wheel drum
while the wheel had been displaced. The driver had taken measures to
warn the other traffic by means of a sign (red triangle): The
collision occurred at night and both vehicles were flung over twenty
(20) paces from the point of impact albeit in different directions.
Both vehicles were extensively damaged. There had been no skid marks
by which showing attempts to brake the vehicles to a halt.

The Court
took trouble to explain to the First Defendant what his rights were
including the right to cross examine witnesses and to put in his
defence. These rights the Defendant did use very sparingly. And
indeed it was more as a result of urging than any desire on the part
of the Defendant. He suggested to one of the witnesses that he hit
the stationery vehicle because his sight had been blinded by the
headlights of an on-coming vehicle which was travelling in the
opposite direction. This had not appeared in his plea or in any other
papers. It rested on thin ground and the Court did not therefore
believe the version.

Other
facts which were established from the evidence were that the taxi was

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bought by
the Plaintiff for a sum of Nineteen Thousand Maloti (M19,000.00).
This was to be viewed against the claim for repairs which was to the
tune of Forty Seven Thousand Maloti (M47,000.00) as evidenced by that
single quotation (Exhibit "A") which the Plaintiff had
secured as the only quotation. He had made no attempt to secure
others or the lowest one because he believed that none could be lower
than the one he had already secured. About this estimate later. The
amount claimed in the summons and/declaration as loss of business was
proved by means of a record contained in cheap students' exercise
book whose modesty would normally invite scrutiny From an equipped
cross-examiner.

It was
submitted quite correctly that the evidence tendered before Court
adequately proved the Plaintiffs case. It entitled him to some
damages and costs against both defendants jointly and severally one
paying the other to be absolved. Negligence of a gross kind had been
proved on a balance of probabilities. It was in the excessive speed
of the kind called a maddening one. This spoke more for a suspicion
that the First Defendant had been drunk. This was however not put in
issue. The damages to the vehicles, the resting place of the
vehicles, the absence of skid marks told an eloquent case of
excessive speed which most probably disabled the First Defendant from
avoiding the collision. Excessive speed was the cause of the
collision as I was forced to conclude.

The issue
of damages for repairs was easy to resolve. It was in that: however I
believed of the estimate put forward for reasonable and necessary
repairs I found it difficult and it was against principle that a
plaintiff would recover more than the value of the item (property)
sought to be repaired. In this case the value of the vehicle had been
Nineteen Thousand Maloti (M19,000.00) which was the purchase price of
the vehicle. When I made the award for damages I did not even
consider depreciation of the vehicle. I had agreed however with the
submission by Mr.

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Makotoko
that damages would normally be established, considering the
compensation function of the law of delict, through payment of
damages in that:

"Viewed in this light, damages indicate rather the process
through which an impaired interest is restored to its former
potential through money."

THE LAW
OF DELICT, Neethling, Potgieter and Visser, 1st Edition page 177. Mr.
Makotoko correctly conceded that in this case Plaintiffs vehicle
could be restored by the sum of Nineteen thousand Maloti (Ml9,000.00)
unless improvements could have been demonstrated which had increased
that value.

In the
end I entered judgment which awarded to Plaintiff:

1. A
   sum of M19,000.00 for damages for repairs;

   
   

2. A
   sum of M37,000.00 for loss of business; and
   

   
   

3. Costs
   of suit.

   
   

These
were to be paid by the Defendants jointly and severally one paying
the other to be absolved.

T.
MONAPATHI

JUDGE

Judgement
noted by Mr.L.A. Molete