CIV/T/715/86

IN THE
HIGH COURT OF LESOTHO

In the
Matter between :

'MAHALIEO
MONAHENG Plaintiff

AND

LESOTHO
NATIONAL INSURANCE

COMPANY
(Proprietary) Ltd Defendant

JUDGMENT

Delivered
by the Hon. Mr. Justice B.K. Molai on the 17th day of August, 1989.

Plaintiff
herein has filed, with the Registrar of the High Court, summons
commencing an action in which she claims against the defendant,

payment of M40.000, interest thereon at the rate of 23% per annum,
costs of suit and/or alternative relief. The defendant has intimated

intention to defend the action.

The
declaration to the summons alleged, inter alia, that on 31st August,
1985 a vehicle driven by Plaintiff's husband, Ramantsa
Monaheng, was
travelling along Leabua Highway (now referred to as North 1) public
road. When it was next to a place called Salang
Restaurant on the
outskirts of Maseru, the vehicle collided with another vehicle driven
by a certain Thabiso Sekeleoane. Plaintiff's
husband died in the
accident of which Thabiso's negligent driving was the cause.
Consequently Plaintiff suffered damages in the
amount of M40,000, for
which the defendant, as the insurer of Thabiso's vehicle, was in law
liable. In

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accordance
with the provisions of the Motor Vehicle Insurance Order 1972 she
claimed, against the defendant, as aforementioned.

In its
plea, the defendant company did not. really dis­pute that it had,
at the material time, insured the vehicle which collided
with
Ramantsa's vehicle resulting in his death. It denied,however,
Plaintiff's allegation that the accident was caused by the negligent

driving of Thabiso. It could not, therefore, be held liable to
Plaintiff in the amount claimed or at all. In the circumstances

Plaintiff's claim ought to be dismissed with costs.

In an
attempt to curtail the duration of this trial the parties filed
minutes of pre-trial conference in which they agreed, inter
alia,
that the question of quandum of damages should stand over pending
this court's decision as to whether or not there was negligence
on
the part of Thabiso Sekeleoane.

In as far
as it is relevant the court heard, in this regard, the evidence of
D.W.2, Thabiso Sekeleoane, who testified that on the
day in question,
31st August, 1985, he was at his place of work commonly known as
Waggon Wheel restaurant in the Industrial area,
Maseru. A little
after 10 p.m. he was driving his combi along North 1 public road on
his way to deliver employees and some customers
at their various
homes. He was travelling at the speed of about 50 km an hour in the
direction from Maseru towards Khubetsoana.
When he started
negotiating a curve next to Salang restaurant, the deceased's car
appeared from the opposite direction i.e. from
the direction of
Khubetsoana towards Maseru township. As it negotiated the curve the
deceased's car left its correct lane of the
road and careered into
his side of the road. He tried to swerve the combi more to the left
but there was a ditch on the left side
of the road. The deceased's
car then

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hit the
front right wheel of the combi which capzised and rolled to the right
side of the road as one travels towards the direction
of Khubetsoana.
He denied, therefore, that the accident occured as a result of his
negligent driving. According to him, Thabiso
managed to get out of
the combi but realised that he was injured and bleeding. He sat
outside the combi while many people who had
gathered at the scene of
accident pulled out the passangers. They were rushed to Queen
Elizabeth II hospital where he too was later
taken to.

The
evidence of P.W.2, Tseko Ranneileng, was that he and P.W.3, Kopano
Seotsanyana, lived in the village of Khubetsoana. At about
8 p.m. on
the day in question they went to drink liquor at Victorial hotel.
They were travelling in P.W.3's vehicle. At the hotel
they shared
between themselves altogether 20 tots of whisky worth about M20. As
they were mixing the whisky with Indian Tonic they
were not drunk.

The
evidence of P.W.3 was, however, slightly different. According to him
they went to Lesotho Sun hotel where only P.W.2 drank liquor
whilst
he himself was playing on the gambling machines. He was in fact a
non-drinker. From the Lesotho Sun hotel they called at
the home of a
friend in Maseru location. No liquor was served to P.W.2 at the
location from where they proceeded back to their
home at Khubetsoana.
On the way Thabiso's combi which was also going in the direction
towards Khubetsoana, overtook them. P.W.3
denied, therefore, the
evidence of P.W.2 that they ever went to Victoria hotel where he
(P.W.3) drank any liquor.

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Be that
as it may, both P.W.2 and P.W.3 agreed that when they came to a curve
next to Salang restaurant they found that the deceased's
car with
registration numbers A 9005 had collided with Thabiso's combi. Both
vehicles were on the right side lane of the road as
one travelled in
the direction towards Khubetsoana.

According
to P.W.2 the combi was lying on its roof in the road and facing in
the direction towards Khubetsoana. The car was also
on the tarred
surface of the road. However, P.W.3 told the court that although the
car was still on its wheels partly on the tarred
surface and partly
on the gravel portion of the road and facing more towards Maseru or
Maqalika dam the combi was completely outside
the tarmark of the
road. He denied, therefore, the evidence of P.W.2 that the combi was
lying on the tarred surface of the road.
As the two vehicles were
found on the right side lane of the road as one travelled in the
direction towards Khubetsoana and the
combi was facing towards
Khubetsoana whilst the car was facing towards the Maseru township
P.W.2 and P.W.3 concluded that the combi
had travelled into the
correct lane of the car and was therefore the cause of the accident.

After
P.W.3 had parked his vehicle on the side of the road he and P.W.2
went out to find if they could render any assistance. They
first went
to the car and found that the deceased was already dead behind the
steering wheel. They went to the combi and according
to P.W.2 there
was nobody inside. He, however, noticed two people lying unconscious
in the middle of of the road. He and P.W.3
picked and rushed the two
people to

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Queen
Elizabeth II hospital in the letter's vehicle.

The
evidence of P.W.3 is again slightly different on this point. He told
the court that when they came to the combi there were some
people
screaming inside. They pulled out four people whom they rushed to the
hospital. He denied, therefore, P.W.2's evidence that
only two people
were taken to the hospital in his vehicle.

In his
evidence P.W.2 testified that before they could leave the hospital
Thabiso and another person were brought there in another
vehicle.
They had both sustained injuries. He heard Thabiso explaining that he
and the other injured person had fallen into a ditch
and could not be
seen at the time P.W.2 and P.W.3 conveyed the other people to the
hospital. This is again different from what
P.W.3 told the court.
According to P.W.3 after he and P.W.2 had conveyed the four injured
persons to the hospital they returned
to the scene of accident. They
found another vehicle which took the body of the deceased to the
hospital. Later on Thabiso was
also taken to the hospital. He denied,
therefore, the evidence of P.W.2 that Thabiso was brought to the
hospital whilst they were
still there.

According
to him, P.W.3 only learned from some people he found at the scene of
accident on his return from the hospital that Thabiso
had fallen into
a ditch and that explained why he could not be seen at the time the
injured people were taken to the hospital.
He further told the court
that on his return to the scene of accident he was able to trace with
the assistance of

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a certain
'Mathabo, the deceased's elder brother who lived in the village of
Khubetsoana.

After the
body of the deceased had been taken to the hospital P.W.3 transported
the deceased's elder brother to the deceased's house
at Lower Thamae
where a report was made to Plaintiff as to what had happened. This is
confirmed by the Plaintiff who testified
that she was married to the
deceased, Ramantsa Monaheng, by civil rites. Three children were born
of the marriage. They all attended
school at Maseru Day High School
and were born in 1970, 1972 and 1974, respectively. At the time of
his death her husband was 41
years old and working as Assistant
Accountant at the Lesotho Freight Services.

On the
afternoon of Saturday 31st August, 1985 her husband left home to
watch a football game at the National Stadium. He never
return home
alive. Wherefor she claimed against the defendant for a relief as
aforementioned.

In his
evidence D.W.1, Sgt. Mathaba, told the court that he was attached to
the Traffic branch of the police force in Maseru. At
about 10:30 p.m.
on 31st August, 1985 he received a certain information following
which he proceeded to a place next to Salang
Restaurant, along North
1 public road. He found the two vehicles described by P.W.2 and P.W.3
involved in a road accident. Many
people had gathered there but the
drivers of the vehicles had allegedly been taken to Queen Elizabeth
II hospital. He made a rough
sketch plan showing the position of the
vehicles at the scene of accident.

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With the
assistance of some people he removed from the road one of the
vehicles which was blocking the road. He then went to the
hospital
but apparantly could not find either of the drivers.

In the
morning of the following day he returned to the scene of accident. He
was then accompanied by the driver of the combi, Thabiso
Sekeledane,
who showed him the point of impact which was on the left lane, next
to the white line in the middle of the road, as
one travelled in the
direction from Maseru to Khubetsoana. He paced the scene of accident
and took notes on the basis of which
he prepared exhibit "A",
the motor vehicle accident report.

It is
significant to remember that according to the evidence of P.W.2 and
P.W.3, adduced on behalf of the Plaintiff, the negligent
driving
attributed to Thabiso Sekeleoane was that the latter's combi had
crossed into the correct lane of the deceased's car, thus
causing the
accident. However, both P.W.2 and P.W.3 were admittedly not present
at the time the accident took place. Thabiso Sekeleoane,
one of the
drivers who were involved in the accident, denied their evidence and
told both D.W.1 and this court that it was deceased's
car which had
caused the accident by crossing into his correct lane of the road. In
my view the evidence of P.W.2 and P.W.3 that
the combi had crossed
into the correct lane of the deceased's car was obviously a mere
assumption based on the position in which
they found the two vehicles
at the scene of collision. It is, however, common knowledge that when

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vehicles
are involved in a collision a lot of things happen to them e.g. they
can, as in this case, roll over, change directions
and positions. The
mere fact that P.W.2 and P.W.3 found the two vehicles in the position
in which they were was, in my judgment,
no convincing.reason that the
driver of the combi had crossed into the correct lane of the
deceased's car and was, therefore, negligent
in his driving.

The onus
was on the Plaintiff to prove, on a balance of probabilities, that
the deceased, her husband, had died as a result of the
negligent
driving of Thabiso Sekeleoane, the driver of the combi which was
admittedly insured with the defendant company. On the
evidence before
me I am not convinced that Plaintiff has satisfactorily discharged
the onus that rested on her.

I
accordingly find that no negligence has been proved on the part of
Thabiso Sekeleoane. Judgment is, therefore, entered in favour
of the
defendant.

B.K.
MOLAI

JUDGE

17th
August, 1989.

For
Plaintiff : Mr. Mafisa,

For
Defendant : Mr.Molyneaux