HIGH COURT OF LESOTHO
matter of :
MINISTRY OF WORKS lst Defendant
ATTORNEY-GENERAL 2nd Defendant
the Hon. Mr. Justice M.L. Lehohla on the 6th day of July. 1995
March, 1995 this Court entered judgment in favour of the plaintiff in
the sum of Ml2 000-00 only; plus costs.
following are the reasons for that judgment:
October, 1987 the plaintiff sued out of the office of the Registrar a
summons against the defendants in terms whereof she
of the sum of M12 000-00 being compensation in terms of Section 6(a)
of the Workmen's Compensation Act No.12 of 1977;
of the sum of Ml 640-00 constituting funeral expenses in terms of
Section 6(c) of the Workmen's Compensation Act No.12
of the sum of M2 549-38 being additional compensation in terms of
2 27(1) of the said Act;
payment of the sum of M14 549-38 constituting compensation for loss
of support under Common Law claimed by the
plaintiff on her own
behalf and on behalf of her four minor children with the deceased
Ts'abalira S. Monyamane amounting to Ml
and\or alternative relief.
summons was served on the Attorney-General's office on 11th February,
1988. The action was opposed.
of action arose from the death of the deceased Ts'abalira Monyamane
who died on 4th April, 1987 while under the employment
defendants and during the course of his duty as a driver of a vehicle
which, because of some mechanical defect known beforehand
defendants through . their agents who were the deceased's seniors and
co-workers, went out of control, left the road and
capsised with the
result that the deceased sustained injuries to which he subsequently
unchallenged evidence of PW1 Mahlalele Monyamane was to the effect
that the deceased was her husband. In terms of the marriage
certificate "Exhibit A" theirs was a civil marriage entered
into on 2nd December, 1979.
the deceased had four minor children whose birth certificates were
adopted collectively in this proceeding as "Exhibit
indicated that the deceased died on 4th April 1987; further that as
she is not working nobody finds her and her children in
clothing. She used to look after the children while the deceased was
at work at Roads Improvement Unit (RIU). The deceased
working there since 1984 i.e. for three years.
didn't receive any pension or gratuity accrued if at all on her
husband's death. Thus she has had no means of support since
husband's death. The deceased used to earn M300-00 per month as at
the time of his death. When he died the deceased was actually
Lebohang Phooko testified that he was working at RIU Leribe in April
1987. This is the Unit station for which the deceased worked.
deceased and he had gone to T.Y. to convey the Unit supervisor one
Matseke whose home is in that area. The deceased was actually
the motor vehicle bearing the Registration letter and numbers Y6769
on the day in question i.e. 4-4-87.
way back from TY to Hlotse Leribe, and while the vehicle was cruising
at about 80 Km per hour and heading for a steady curve
at St Monica's
the deceased's vehicle came across two coasters moving in opposite
direction to his. The coaster behind peeped into
the deceased's side
trying to overtake the first coaster. In an attempt to avoid a
collision the deceased
vehicle outside the road by swerving to his left and applying brakes
gently. The coaster which had peeped into the deceased's
back to its lane. But the deceased's vehicle which at the time was
moving at moderate speed swerved from side to side.
outside the road on left hand side.
occupants i.e. the deceased and PW2 sustained injuries and the
deceased died on arrival at the Hlotse Government Hospital.
Mr. Putsoane for the defendants sought to question the propriety of
the deceased conveying his supervisor to the latter's
hours paragraph 7 of the plaintiff's declaration which alleges that
the deceased was required to convey his supervisor
to the latter's
home is not denied.
PW2 testified in his evidence in chief that the deceased had
intimated to him that the vehicle he was driving was faulty
fault had been in existence for some time but had not been repaired.
defence strongly contended that the accident wouldn't have occurred
if the deceased hadn't been negligent by over-speeding.
The Court had
heard that at speeds above 60 Km per hour this vehicle tended to
swerve out of control.
evidence of PW3 HORRIS LINDIE MAQUTU was most
in clearing a number of doubts as to the roadworthiness of this
vehicle and the standard of care maintained by Senior
this particular Unit. Indeed he enjoyed the support of DW1 SIMON
MPHUTHING that maintenance of proper standards of
safety in vehicles
were ignored by the Senior Personnel with the result that negligence
simply thrived at great peril to junior
members of staff whose
business was just to say ditto to the selfish orders from above.
evidence further shows that there was scant attention paid to
provisions in the job card which if adhered to would go a long
towards reducing much of the sloppiness with which mechanics went
about performing their duties.
instance at page 24 of my notes is reflected the following :
"CC: By its design the job card form shows that you should fill
the card when the vehicle comes in.....? You can fill it but
we used to do it I would look at the time and go ahead with the job.
witness was shown the job card again)
By design of this job card you were to fill in everything you did at
the time you did it because you' have provision for work required
be done) which means you fill that before working on the vehicle,
also there is provision for work done which I put to you
fill after doing work together with time and date....? You can do it
when you like but the way we did it we filled it
I put it to you that your practice was being negligent for this form
has slots showing what is to be done at relevant times....?
not say anything for that was the way we used to do it.
Meaning who by "we" in view of the fact that Maqutu showed
he didn't....? We were many for we would go as
far as Khubetsoana without having filled the job card before"
extract of evidence clearly shows that RIU was not consistent in the
upkeep of standards designed to improve performance
maintenance of vehicles assigned to its pool. DW1 consistently showed
that despite the existence of procedures properly
laid down for
purposes of maintaining high standards of performing their duties
mechanics used to do things their own way which
was not in accordance
with that laid down.
was somewhat cagey and not forthright about the unsatisfactory state
of affairs obtaining at RIU Leribe DW2 MOEKETSI MATSEPE
frank and prepared to withhold nothing from the judicial gaze of the
unwholesome practice that existed at RIU.
he was employed as counterpart to an expatriate who was employed as
Civil Supervisor responsible for road construction.
presently working as Civil Engineer in the Roads department - a
promotion he earned on living RIU in September 1990. DW2 had
Roads Department in 1980 and got attached to RIU in 1985.
day of the accident in 1987 he had occasion to instruct the deceased
to convey him home to T.Y. The deceased was DW2's personal
he didn't know what the condition of the Ford Pick Up Y6769 was when
he authorised the trip to T.Y. He knew the deceased
to be a good
driver. He usually felt safe in a vehicle driven by the deceased. He
described the deceased as always cautious when
driving. He further
explained that the deceased was above middle aged and had family and
children and referred to these as things
the deceased would not just
part with through carelessness.
reiterated that the deceased was always open to him and struck him as
a man who looked forward to the future with undoubtful
that because of the way the deceased was conscientious of his duties
and open to him the deceased would have informed
him if there was any
problem with the Pick Up. Thereupon this vehicle would have been
taken by the deceased himself to the Workshop
for purposes of putting
right the fault that there might be,
is a diesel mechanic told the Court that a week or two before the
deceased's death he had occasion to be given a lift by
from one place to the maintenance department of Roads. When they were
about to reach the gate of the yard to that
place the deceased
reduced speed by gently applying brakes. But the vehicle went out of
control taking a wrong direction instead
of the one intended.
the vehicle was moving at very slow speed estimated by him to be
around 50 Km per hour. He ascribed the manner in which
behaved to a fault in it. He asked the deceased to immediately take
that vehicle to the Workshop and not to continue
using it. He is
certain that the deceased complied with this advice to take this
vehicle for repairs. PW3 did not personally attend
to this vehicle.
Nor did he see it being repaired. He had however diagnosed the defect
to have to do with worn out rack and pinion.
His diagnosis was not
physical though. He merely relied on his experience to make this
diagnosis. He even made a requisition for
the supply of the rack and
it to say even on the day of the accident the order for this
essential requisition had not been supplied.
testified that before the deceased died he saw him after a few days
of his advice to him driving this vehicle and asked him
why he was
using it yet PW3 had asked that the storeman should supply rack and
pinion for its repairs first.
when he asked the deceased why he was continuing to use that vehicle
the latter diffidently told him that he feared that
"it would be
said he was reluctant to work due to insubordination".
it upon himself to speak to the supervisor about the deceased's fear.
The supervisor said the vehicle was
regrettable that the question of which Supervisor was the one in
point was never pursued as a result the Court is in the dark
who the actual culprit was in this regard because it was never
suggested that DW2 could have been the culprit either. But
assertion cannot be discarded that he approached the Supervisor
because he had determined that any further use of that vehicle
be dangerous. I have no doubt that he indeed approached a supervisor
but it is regrettable that he did not identify which
testified that after the accident this vehicle was loaded on another
bigger vehicle and transferred from the scene of the accident
Workshop. It was at the Workshop that PW3, on examining what possibly
could have resulted in that accident, discovered that
the bushes for
the rack and pinion were worn out. The rack and pinion had gone
loose. These parts should as a rule remain tightly
attached to the
chassis. But they were not; thus accounting for the fact that the
vehicle went out of control.
elaborated on a number of possibilities accountable for an accident
involving a vehicle with defective rack and pinion. He said
instance if the vehicle steps or rides on a stone it would go out of
control. Also if brakes are applied slightly the same
determined that in respect of this vehicle because the bushes were
worn out and the rack and pinion loose the wheels locked facing
right. He stated that if the above defect exists application of
brakes or rolling of wheels on a big stone would lock the wheel
one side while the wheel on other side is turning at full speed. In
the result the vehicle will either effect a sudden turn
overturn. He stated that this type of phenomenon can be experienced
on tarred roads as well,especially at curves.
witness was adamant that the condition of the vehicle would not have
been the same if some other cause than the defective rack
was responsible for the accident.
indeed puzzled and somewhat disarmed when the deceased told him that
the Workshop supervisor had inspected the vehicle and
told him it was
"O.K." and that the deceased should go in it. What else
then could the humble deceased do but bow and
scrape when orders from
high authority were thus imposed on him, even to his peril!!
buttress this point it is profitable to have regard to the following
regarding PW3's evidence under cross-examination at
page 11 of my
"You didn't know who were regarded as insubordinate....." I
didn't. You tell us what you were told.....? Yes You can't
say if it
is true or not....? I can't.
Did you take the matter further with the Supervisors....? I asked the
What did the Supervisor say after you asked him.....? He said it was
in good condition.
You found it unnecessary to ask him if he had test-driven it.......?
He had seen my job card and noticed what was wrong with it
Ct. What do you mean it was not necessary yet you had known what was
wrong with the vehicle and had prepared a job card in that
regard.....? He is the Supervisor"
his protestations about repairs that he claims were made on this
vehicle at the relevant time DW1 stated that he didn't
know that the
defect relating to rack and pinion as diagnosed by PW3 had not been
repaired. He had claimed that the only defect
he knew about related
to brakes and bearings which had been repaired.
further probed at page 26 of my notes as follows
"Ct: Meaning you can't deny that the rack and pinion were never
repaired.....? I wouldn't deny or confirm that.
Have you ever repaired any vehicle with defective rack and
How often......? Very often for we had four vehicles with rack and
of DW1's evidence corroborates PW3's evidence as to manner of
behaviour exhibited by a vehicle with a defective rack and
"How does a vehicle behave that has rack and pinion
problem.....? Its steering wheel would wobble and if you apply brakes
it would effect an about turn. Moreover you would feel through the
steering wheel that it tends to slide out of control.
Why is that.......? Because rack and pinion control front wheels and
the steering column gets into the rack and pinion.
Meaning that if rack and pinion are defective then that means failure
to do their job of controlling front wheels.....? True. You
even find that you have collided with other people's vehicles.
You said the tendency is that when you apply brakes the vehicle would
undergo an immediate turn.....? Yes.
Why does it make the immediate turn.....? Because one wheel locks
more than the other.
CC: can a vehicle with faulty rack and pinion still be driven and
the answer to the last question encapsulates the defendants' attitude
it would not be wrong to conclude that they seem
to be bent on
pressing their luck too far by undertaking very serious risks in
persisting in using a vehicle in vital need of repairs.
DW2's evidence is instructive and illustrative in this connection.
32 of my notes where DW2 responds to questions under
"You said it was possible for any driver to report fault in a
vehicle direct to the Workshop.....? Yes.
Was it possible that vehicles purportedly having undergone repairs
would still come out with faults....? It was possible for once
vehicle has) broken down Mechanical Supervisor would rush to
Ficksburg or Johannesburg for spare parts but if in his opinion such
a vehicle could be used some weeks or a month it could happen
such vehicle would be used (unrepaired).
PW3 says he informed the deceased that the vehicle was in bad
condition and that he should take it to workshop and he actually
it at workshop. Is it possible this vehicle came out
unrepaired......? Knowing our Workshop this is possible. Knowing
as a cautious and reliable driver do you think he would
knowingly drive that vehicle despite its defect, driving especially
in particular.....? No. I don't think he would.
You said it was possible for a vehicle to come out of the Workshop
not repaired. PW3 says he diagnosed fault with rack and pinion.
says he repaired bearing and fitted new brake pads. Do you think he
omitted repairs on rack and pinion though told of those......?
vehicle goes into Workshop I personally don't know what goes on in
formed a firm opinion based on the evidence of PW3 and DW1 as to the
behaviour of a vehicle with defective rack and pinion
that the Pick
Up driven by the deceased overturned because of the defect in those
parts. The subsequent examination
vehicle by PW3 buttressed this opinion beyond doubt. As I stated
earlier DW2 struck me as an honest witness who was frank
of proper cooperation between various sectional heads at RIU Leribe.
This lack of cooperation was bred by animosity
sections. The animosity resulted from pressure of demands by one
section on the other. For instance on occasions
when DW2 requested a
supply of seven trucks from the workshop he would be supplied with
only two. When he questions why this is
so then ill-feeling would set
in perhaps because his demands would be read as casting doubt on the
competence of the other section.
Lack of cooperation and prevalence
of ill-will among staff members often results with work not being
done or only
performance of work.
possible therefore that the deceased even if he noticed that the
vehicle he had taken for repairs was not repaired, he diffidently
withheld his complaint to DW2 for fear that this might further deepen
ill-feeling between DW2 and the workshop Supervisor who said
vehicle was in good working order therefore the deceased should use
also impressed with PW3's evidence. I am thus able to conclude that
on the day he and the deceased were riding in the ill-fated
the fact that this vehicle lurched to a direction that was not
intended by the driver is clear proof that the wrong wheel
while the other was rolling at unimpeded rate, hence a sudden turn to
the wrong direction i.e. away from the gate. This
DW1' s view that a possibility in circumstances of faulty rack and
pinion is collision with other people's vehicles.
therefore find the defendants vicariously liable to the plaintiff for
their agents' negligence which resulted in the death of
when the vehicle he was driving capsised because of the faulty rack
of compensation granted shall be only Ml2 000-00 plus costs. The
funeral expenses have not been proved. So no award can
be made in
that regard. Claim number 3 too is
Plaintiff : Miss Tau
Defendants: Mr. Putsoane
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