IN
THE HIGH COURT OF LESOTHO

In the matter of :

VRYSTAAT FOKUS (PTY) LTD Plaintiff

V
E. LEOMA Defendant

Delivered by the Hon. Mr. Justice M.L.Lehohla on the 2nd
day of February,1990.

In this trial the plaintif instituted an action against
the defendant wherein the plaintiff claims:-

1. 
   Payment in the sum of M13750.00 in respect
   of
   damages to vehicle OB 101658 as a result
   of a motor collision on
   22nd February 1984
   near Bethlehem in the Republic of
   South
   Africa;

   
   

2. 
   Interest on the abovementioned amount at the
   rate of
   11% per annum reckoned from date of
   judgment to date of payment;

   
   

3. 
   Costs of suit;

   
   

4. 
   Further and/or alternative relief.

   
   

The defendant entered his notice of appearance to defend
these proceedings.

In its declaration the plaintiff set out that the
collision between the motor vehicles 0D 101650 and C 3046
respectively occurred
on 22nd February, 1984 on

/the

2

the Bethlehem - Kestell Road in the Republic of South
Africa.

It further avers that the vehicle bearing regis­tration
letter and numbers C - 3846 was at all rele­vant times driven by
one
S. Macheli acting as a servant of and within the course and scope
of his employment by the defendant in the instant case.

The plaintiff was the Hire Purchaser of the vehicle OB
101658. It is contended by the plaintiff that the collision was
caused solely
by the negligence of Macheli acting in the capacity
referred to above.

Because of the extent of the damage allegedly done to
the vehicle OB 101658 the plaintiff maintains it would not be
economical to
repair this vehicle.

The reduction in market value of this vehicle is
presented by the plaintiff as M11075.89. An additional sum of M75.89
was expended
by the plaintiff as fees incurred in travelling making a
composite sum of M11,151.78 claimed against the defendant. The
M75.89 was
later claimed under an altered head, namely "towing"
instead of "travelling" fees. See para 11 of the further
particulars.

Because of the amendment on page 2 of the plaintiff's
declaration it appears that the original sum of M13750.00 reflected
both in
the summons and the original page 2 of the declaration was
partly abandoned. Indeed the

plaintiff's formal intent to substitute M11075.89 for

M13750.00 was effected in terms of paragraph 11 of
further

particulars furnished by the plaintiff dated 17th
January 1986.

According to the plaintiff's papers the collision
occurred approximately seventeen kilometres from Bethlehem; at
approximately ten
minutes to three o'clock p.m.

/The

— 3 —

The plaintiff refused to supply any particulars as to
the direction the vehicles involved in the collision were travelling
in when
the collision occurred. The reason supplied was that the
defendant was not entitled to any such particulars- I think he was.

The plaintiff refused on papers to furnish particulars
requested by the defendant in connection with the points of impact in
the bodies
of the respective vehicles. The reason supplied was that
the defendant was not entitled to any such particulars. I think he
was.

One F. Sharp was the driver of OB 101658 at the material
time.

In the absence of palpable reasons for refusing to
supply further particulars requested regarding the nature of
Macheli's employment
with the defendant and the duty he was engaged
in on the defendant's behalf at the relevant time, in place of the
stock reply that
the defendant was not entitled to these particulars,
I think that because there were as good reasons for refusing to
furnish them
as for furnishing them, the matter ought to be resolved
in favour of the defendant.

The plaintiff in an effort to prove the defendant's
negligence indicated that Macheli drove without due care. Further
that he drove
on the incorrect side of the road; and too fast in
the circumstances. Macheli's negligence was attributed to failure to
apply his
brakes timeously or at all. He is said to have also failed
to advise F. Sharp of his intention to turn across the latter's line
of travel. Further that he failed to keep the vehicle which he was
driving under proper control and that in any event he failed
to avoid
the collision when by the exercise of reasonable care he could have
done so.

It appears that the plaintiff's vehicle OB 101658 is a
1980 Mercedes Benz 250A model whose odometer read 143537 kilometres
at the
time of the collision. Its pre-collision value as amended is
rendered as M11075.39

/while

— 4 —

while its post-collision value is M2750.00.

The plaintiff in its papers seems not to have addressed
itself to the request to state how the amount claimed as the
pre-collision
value of the vehicle in question was arrived at. It is
said however that to repair the plaintiff's vehicle it would cost a
sum of
money in excess of the amount claimed.

Although it would have been productive to be informed
how the amount claimed was arrived at it appears that in the light of
the plaintiff's
answer that repairs would be more costly than the
amount claimed, the request to furnish the particular couched in the
question why
it would be uneconomical to repair plaintiff's vehicle
was rightly refused.

The court was favoured with annexure A in an effort to
show the details of the damage to the plaintiff's vehicle. There was
also
handed in marked "B" a letter of demand dated 30th
November 1984.

In his plea the defendant denied that Macheli was
negligent in any of the respects that the plaintiff alleged. It
stood to reason
therefore that the plaintiff had to substantiate its
allegations.

The defendant further denied any liability to the
plaintiff and accordingly prayed that the plaintiff's claim be
dismissed with costs.

Because the defendant has since died it was applied to
the court and an order granted substituting Mrs Leoma the heiress to
the deceased's
estate for the defendant in these proceedings.

The court heard the evidence of P.W.1, Van Wyk for the
plaintiff to the effect that he is a sergeant in the South African
Police stationed
at Bethlehem.

On 22nd February 1984 while in his office P.W.1 received
a report concerning an accident whereupon he

/set

- 5 -

set out for the scene at a spot along the road to
Kestell some 17 km outside Bethlehem. This is a tarred road.

P.W.I arrived at the scene at about 3.20 p.m. and
observed that two vehicles were involved in a collision. One bore the
registration
letter and numbers C-3846 and is marked as vehicle "A"
in this witness's sketch handed in the proceedings as annexure E.

The other bore registration letters and numbers OB 101658 and was
identified as vehicle "B" in the sketch annexure "E".

The witness established that "A" had been
driven by Macheli and "B" by Sharp.

P.W.I testified that these drivers gave him an
explanation of how the accident occurred. He then set about taking
measurements spanning
various points on the road and the position
where the two vehicles had come to rest with, "B" still
stuck in the rear side
of "A". Macheli pointed out to him
the point of impact which appears as point "X" in annexure
"E".

P.W.I observed that the vehicles were travelling in the
same direction from Bethlehem to Kestell.

He observed that on the left hand side as one is facing
the direction that these vehicles were taking the road consists of
two lanes.
Only one lane is provided for vehicles moving in the
opposite direction i.e. from Kestell to Bethlehem. He clarified this
position
for the benefit of the court by concluding that at the area
in question the road consists of three lanes - two from Bethlehem to
Kestell and one from Kestell to Bethlehem.

Points C to D and E to F appearing in annexure "E"
span the brake marks left by left and right wheels of vehicle "B"
respectively. It is interesting to observe-that a good portion of
the area covered by these brake marks occupy an area falling
inside
the opposite side of the road i.e. the brake marks occupy the area
falling across the line dividing the lanes carrying traffic
in

/opposite

6

opposite direction.

Needless to say the sketch though admittedly a rough one
makes no reference to the two lanes heading for Kestell. All it
shows is
a dividing line consisting of a broken line lying side by
side with a solid one presumably permitting traffic heading for
Kestell
from Bethlehem to overtake slow moving traffic while
disallowing the other traffic to do so if moving in the opposite
direction.

From point "0" to "P" a distance of
14,5 metres are indicated the skid marks of front wheels of vehicle A
while
J to N measuring 14 metres represents the rear wheel skid marks
of this vehicle. These skid marks begin from inside the edge of
the
opposite lane and end up near point "L" between which and
"K" is the farm road measuring 17,9 metres in width.

The farm road abuts on the Bethlehem - Kestell side of
the road into a farm on the right. Much argument was raised
concerning whether
this farm road abuts against the tarred road at
right angles or at an oblique angle to the right as one heads for
Kestell from Bethlehem.
X do not attach much importance to the angle
at which the farm road abuts on the tarred road. A point of the
first magnitude as
far as I am concerned is that in order to enter
the farm road while travelling on the Bethlehem -Kestell road one has
to turn right
and in the process cut across the path of the on-coming
traffic travelling in the opposite direction. The farm road is a
gravel
road.

Although annexure "E" is a rough sketch and
not drawn to scale annexure "D" consists of exact
measure­ments.
In evidence P.W.1 confirmed the distances he made
on the plan. Hence according to annexure "D" the point of
impact lies
1,1 metres from M-which is the middle of the road - into
the opposite lane.

I have been told that the distance between points C

/and

7

and D measures 30 metres in length. This distance lies
in the general direction of Bethlehem - Kestell road and is inside
that road.
It would seem therefore that before turning into the farm
road lying on the right one has to travel at least 30 metres from the
point indicated as the end of the left hand side solid line on the
immediate right side of which is a continuous dotted line next
to
which a continuous solid line on the right stretches side by side
with the dotted one a considerable distance past the turn-off
to the
right into the farm road. Thus it would seem according to the sketch
a vehicle would be entitled to overtake another at least
30 metres
along the Bethlehem - Kestell road before going past "K"
which is the near side of the entrance into the farm
road. The far
side of this entrance is point "L". These points are 17,9
metres apart.

P.W.1's map describes the paths of vehicles A and B up
to the point of impact. The path of vehicle A seems to have been on
the extreme
left hand lane before curving direct opposite the
entrance into the gravel road on the right. The path of vehicle B
seems to be
on the inside lane parrallel that described by vehicle A.
P.W.1 said he gathered the story relating to the path of Vehicle A
from
its driver.

P.W.1 said he took the statements of both drivers. He
also took the statement of Macheli's passenger Mosothoane, but did
not take
the statements of Van Niekerk and Bookless who came upon the
scene shortly after the accident and helped disentangle Sharp from
the
entrapment and the scene of twisted and jammed parts of metal
that the front half of his car had become. The front doors could not
open. Van Niekerk and Bookless opened the rear doors, shifted the
driver's seat back and thus managed to rescue Sharp from the
entrapment.
Machell told me that he and his passenger tried but
failed to rescue Sharp for they did not have the intelligence or
presence of
mind to shift the driver's seat back. However help was
not long coming.

/Shortly

- 8 -

Shortly afterwards police also came to the scene.

P.W.1 in his evidence-in-chief told me that when he came
to the scene he observed that the front of vehicle B was under the
trailer
of vehicle A. He said vehicle A consisted of a vehicle and a
big trailer.

According to him the road around the scene consisted of
three lanes. The vehicles using lane 3 cannot over­take. But
the ones
in lanes 1 and 2 can overtake at the end of the short
barrier line.

In conclusion he elaborated as follows:-

"Point X was on the right hand side as shown on the
plan. There is a long solid line along a dotted one.

There is towards East a double barrier line with a
dotted line in between. Along the dotted line you can overtake,
with the barrier
one you can't."

Under cross examination P.W.1 said his sketch was not
drawn to scale for it could normally be done if some body had died.
He was
adamant that this was a normal S.A.P. (South African Police)
procedure.

He further said he didn't know why the driver of vehicle
A was not charged. He had intimated in his evidence-in-chief that
prosecution
had been contemplated against Macheli but somehow was not
proceeded with.

He did not inquire why the prosecution was dropped. He
further said he didn't know that Macheli had been told to go by the
S.A.P.
because there was nothing for him to answer.

He conceded that the traffic police might have arrived
on the scene before him. However when he came there Sharp had
already been
rescued and taken to hospital in Bethlehem where P.W.1
later took his statement.

Though he did not deny that he was already a police
sergeant at the time P.W.1 said he did not reflect in

/his

— 9 —

his report that the traffic police were there or what
they did. This conclusion is derived from the following

questions and answers:-

"I can't understand you as a S.A.P. sergeant
compiling a report and not knowing that the traffic police were there
before you
- ?

I can't remember whether they were already there.

It does not appear in your report that they did a b c
etc -?

It is not in my report."

P.W.1 stated that he wrote what he had been told in his
plan when asked how he came to describe in it the relative paths
followed
by A and B prior to the accident.

He was told that Macheli the driver of A would state
that P.W.1's observations of the road were wrong because at that spot
the road
consists of two lanes either direction. His answer was that

"On the day of the accident there were two lanes
on the left and one lane in the direction from Bethlehem. It may
have changed
now."

"Your sketch is not useful. If you found that

two lanes head for Kestell and one for Bethlehem

why didn't you indicate that. For here only one
lane
is shown either way - ?

This is only a rough sketch.

A very rough sketch - ?

No. Just a rough sketch not a very rough sketch.

Did you observe how long the broken line was before the
turn off to the farm on the right -?

I did not observe how long it is.

Since you did not observe how long it was despite you
being a policeman, the driver of A says that only 12 paces constitute
a broken
line between the turn off and the start of a solid line
which continues towards Kestell till falling out of view - ?

It is possible."

/P.W.1

10

P.W.1 admitted that between the turn-off and a point of
clear view from Bethlehem is at least 250 paces in length. He did
not record
this fact despite his interest in recording facts which
are relevant to the case. He did not even measure the distance
between these
two points.

P.W.1 stated that contrary to the impression created by
reading from his map that A and B drew level for some distance before
B could
overtake A,

"the driver of A didn't say the vehicles were
travelling side by side as shown (in the map)."

P.W.1 did not ask B's driver about where the point of
impact was. This is rather strange because the driver of B was
absent when
the driver of A allegedly showed P.W.1 where the point of
impact was. In any case before Court Macheli the driver of A was
adamant
that the point of impact was not in the opposite lane as
shown in the map where it is reflected as lying 1,1 metres deep in
that
lane from the point of impact.

Macheli in his turn showed that the point of impact lay
around a point marked "C" which is inside the
right-handside lane
of the road leading from Bethlehem to Kestell.
The point C is close to the dotted line lying on the middle of the
road marked "M".
It is important to note that even though
Macheli is the type of witness who could be described as dull and at
most times appearing
to be completely mystified by court procedures
he nonetheless tapped the limited resources of his intelligence to
bear on his testimony
that the lanes at this particular spot are four
i.e. two lead from Bethlehem to Kestell while the other two lead from
Kestell to
Bethlehem.

Of significance regarding this controversial aspect of
the scene is P.W.1's failure to indicate on his map that the lanes
leading
to Kestell from Bethlehem as deposed to in his oral testimony
are two instead of one. Reading from his map it looks as if there is
one lane either way.

/P.W.1

11

P.W.1 conceded that for a vehicle as light as B to have
become a wreck on impact against A it must have been moving at a
speed far
in excess of a mere 50 km per hour. He however stated that
he couldn't answer the question that B could have been moving at
between
120 and 140 km per hour. He conceded that the effect of
locking the wheels of B by applying its brakes such that it left 30
metres
of brake marks on the tarmac before reaching the point of
impact reduced the speed of that car considerably.

Another baffling feature with regard to the drawing of
the map is the fact that the skid marks left by the truck A start
some considerable
distance from the end of B's brake marks. This is
a strange feature regard being had to the fact that the car had to be
pulled away
from the back of the truck where it had stuck under it.
One would have expected the skid marks of A to start immediately
after the
point of impact.

Asked whether as a man of standing in the S.A.P. seeing
the point of impact to lie across the divide of the road, and the
collision
occur despite 30 metres of hard braking by B taken along
with the fact that the view ahead of both vehicles was open P.W.1 did
not
get the impression that B's driver was reckless he said he did
not know who was responsible for the accident.

The question was repeated whereupon P.W.1 said

"It seemed A's driver was responsible for he did
not indicate."

Asked by court if A's driver told him that P.W.1 said

"He said his indicator was on when he turned.
Confronted with defence counsel's question that

"You have just said he didn't indicate - ?

P.W.1 was clearly in a cleft stick and consequently was
at a loss for words. This in my view betrayed positive inclination by
P.W.1
to implicate A's driver. It is of some significance though that
the traffic officers did not

/lay

12

lay a charge against A's driver.

The drawing showing the manner in which the two vehicles
were observed after the impact shows that B's front portion went a
considerable
distance at the back as well as under "A"'s
back under carriage leaving pro­jections of "A"'s rear
side on
either side of B's front mudguards.

But despite P.W.1's evidence to this effect in his
evidence-in-chief and the clear indications of the position he found
the vehicles
in per his sketch when questioned under
cross-examination on the issue the following emerged:-

"The back of a vehicle is not the same as the side
of the vehicle - ?

Yes.

A's driver says B got stuck into the back of the
trailor, you mentioned not side - ?

I can't remember if it touched the side.

I put it to you it hit four-square at rear of trailor -
?

On the rear but on right hand side.

Even in the translated statement you made you said it
was on the right rear not on the side of the . trailor. A's driver
says the
car bashed into the rear -?

I said on right of the rear.

According to your sketch and what you claim you were
told by A's driver A and B moved side by side. If it is so, and if
the truck
lurched to the right wouldn't the car have touched or
scraped either the side of the truck or of the trailor before getting
under
either of those -?

That's right.

In other words the movement of the vehicles before point
of impact is wrong according to the sketch - ?

That's right.

For they would not have collided as shown in the sketch.

A's driver will say he never showed you the point of
impact. He will deny that the vehicles were going side by side
before the collision
for he didn't see the car

He showed me."

/Under

13

Under re-examination P.W.1 said it was not necessary
for B to have moved to the other side in order to overtake A for A
was moving
on extreme left handside lane leaving the inner lane on
the right free. He further stated that the speed limit on this open
road
was 120 km. per hour and therefore vehicle B could have
legitimately been moving at 120 km per hour on that road. He said
further
that B was under A, but he couldn't remember if there were
any damages on the trailor.

P.W.1 was asked to look at the skid marks with regard to
the question put to him by counsel for the defence that the accident
could
not have occurred as shown on the sketch and P.W.1 said

"I would have expected it to be from behind.' But
in the same breath he shifted from the above statement and later said

"From side towards the rear".

The sketch shows that B slammed into the full rear of A.
In his evidence P.W.1 seeks to persuade this Court that the sketch
does
not represent the true picture of how the vehicles remained
after the collision. Macheli says the sketch shows the exact
position.
Little is it to be wondered then that the plaintiff failed
to furnish the further particulars which were required of him by the
defendant to indicate the portion in vehicle A which came into
contact with B on collision. The prominence of that request during
pleadings cannot be overlooked especially when the evidence relied on
by the plaintiff envelopes this point in incredible mystery
instead
of clarifying it.

P.W.1's sketch, evidence in chief and credible parts of
his evidence under cross examination negate the new version that he
attests
to in re-examination that the point of contact with A is on
broadside but towards the rear end of that vehicle. It seems to me
to
be an after thought geared at justifying the unsub­stantiated
version that the relative paths of A and B were

/in

14

in lanes 1 and 2 respectively. Significantly P.W.1 is
the only witness who says A was a lorry pulling a trailing All others
say it
is a big truck. P.W.I therefore cannot be credited with
making accurate observations despite his rank in the police force.

P.W.2 Sharp testified that as he was travelling along
the Bethlehem - Kestell road he observed vehicle A ahead of him.

He said that he believed the speed limit was 120 km per
hour. As he approached A from behind it moved into the left lane
just beyond
the dip below. At that point the road becomes a dual
road on the left hand side because it is up hill. The truck moved
over into
the left lane. This according to P.W.2 was a normal
manoeuvre by the slow-moving truck geared at giving him way to pass
on the right
and fast lane.

P.W.2 flipped B's indicator to show that he was going to
overtake on the right lane when there and then and without any
indication
by A it made a turn to the right immediately in front of
B.

P.W.2's car was so close to A when the latter turns
right to get into the farm road that P.W.2 slammed into the right
back corner
of A. P.W.2 tried to avoid the truck by trying to turn
along with the truck describing a more or less parallel path to that
described
by the truck. At the same time P.W.2 was applying his
brakes very hard.

However the accident occurred. The accident started in
the lane where P.W.2 was travelling for as he remembers he slammed
into A
while B was in the process of travelling in the right handside
lane leading for Kestell.

Then the next thing P.W.2 re-called was that the flat
bed truck and his car had come to a stand-still. His seat-belt had
held him
to the back rest of his seal. He was bleeding profusely.

Then a passer-by a man later known as Bookless

/stuck

15

stuck his head through the broken windscreen and asked
P.W.2 if he was still alive.

Then Macheli looked hack where P.W.2 was leaning his
head against the head-rest and scrambled into the truck and switched
on the
indicator of the truck to the right.

P.W.2 maintains he or Bookless must have said something
to the effect that A's driver had only then turned the indicator of
the truck
on,

Then P.W.2 was helped out of the wreckage by Bookless.
An ambulance conveyed him to hospital. P:W. 2 swore that at the speed
he was
travelling there was nothing that A's driver did to make him
think it was not safe to pass. Instead he did the natural thing
namely
moved to the left such that P.W.2 thought he could pass

safely. P.W.2 maintains that if A's driver looked into

his rear-view mirror nothing could have obscured his

vision.

P.W.2 recalls that he made his statement to P.W.1 on the
same day at hospital in Bethlehem. P.W.2 denied P.W.1's version that
the
statement was taken some days later because according to P.W.1
P.W.2 was laid up.

P.W.2 finds P.W.1's version even more strange because
P.W.1 was not in that vicinity any days later.

Though P.W.2 is adamant that he told P.W.1 in his
statement that Macheli went to switch on the indicator of A to the
right nothing
of the sort appeared in that statement. Confronted
with the question why such an important act of dishonesty by Macheli
did not
appear in the statement made to P.W.1, P.W.2 decided not to
accuse P.W.1 of negligence but stated that he remembered telling
Bookless
about the incident. Needless to say in his statement to the
police P.W.2 did not allude to the fact that he effected a manoeuvre
that made his car

move
parallel to A when he suddenly realised that he was

/being

16

being confronted by A's broadside as the latter suddenly
turned right cutting across B's intended path.

P.W.2 says his car hit the right rear end of the truck.
It seems strange to me that the car did not at that stage go into a
spin
but instead got stuck headlong into the back of the truck.

His testimony is in response to the questions asked,
namely:-

"Why didn't you hit A broad on. Why is it that it
seems you folowed it into the farm road --?

I didn't hit it full at the back but I hit at the right
end; further to the end of the truck."

Yet the following question seems to elicit a some what
contrary answer to the one immediately above, namely:-

"But you didn't hit the side - ? No."

The reply to the next question put is amazing

"If you saw the truck on the left lane moving
slowly and your car moving at that speed you couldn't have hit A at
the back -
?

I have no intention of saying I followed the truck into
the farm road.

Also (do you agree) that for that car to have had that
extensive damage the collision must have occurred at high speed - ?

I was travelling at 120 to 130 km per hour. That. is
high speed."

P.W.2 said he was aware of the place in the road where
P.W.1 said the accident took place.

Then the following came to surface in the evidence:-

"According to you you hit the truck on the right
rear corner - ?

Yes.

Seeing that you hit it on wrong side for you and in the
lane for on-coming traffic I would take it that

/the

17

the two lanes on the left were unoccupied - ? Possibly,
Yes.

Then when you saw that the truck turned to the right why
didn't you avoid the accident by taking either of the two vacant
lanes -
?

It was too late. I was moving at 33 metres per second.

I put it to you you didn't see the truck turning you
probably saw it on impact - ?

I maintain I saw it turning."

P.W.2 having earlier said he did not notice that
according to P.W.1's sketch B was represented as having stuck
directly behind A said
he later noticed that in fact B is represented
as stuck headlong behind A.

Then came the following

"You realise he represents it as stuck - ?

It shows it as underneath. I don't see it as stuck.

I put it to you he (P.W.1) testified that he found it
stuck headlong under the truck. Do you want the court to accept this
as represe­ntative
of the position the two vehicles were in - ?

I don't know."

It is clear to me that at this stage P.W.2 was
prevaricating or seeking to engage the court in an idle play on
words.

I cannot sec what difference it makes whether B was
underneath the rear of A or stuck in the rear of A if in either case
B suffered
such extensive damage that the cost of repairing B would
far exceed the M11,000.00 being the pre-accident value of B. See
paragraph
12 of the further particulars supplied by the plaintiff.
Still more surprising that P.W.2 should respond as he did to the
pertinent
questions put to him under cross-examiantion account being
taken of the fact that P.W.1 stated and the

/defence

18

defence accepted that B was stuck so fast into the rear
of A that extra means had to be resorted to of separating them.

P.W.3 Bookless testified that he gave his statement to
Bloemfontein Police 3 to 4 weeks after the accident because he didn't
relish
waiting by the roadside on the day in question for he was
eager to get to Harrismith.

P.W.3 was travelling with Van Niekerk who has since past
away. They came to the scene. They helped P.W.2 out of the car that
was
stuck behind the truck.

P.W.3 then saw. the driver of the truck go back into the
cab of his truck and switch on his indicator to the right. P.W.3
made a
remark to A's driver that it was too late to try to put the
indicator on for it had not been on when P.W.3 and Van Niekerk came
on
the scene. He testified that this was a solid truck without a
trailor. He further said B was more to right of A's back.

Questions were put to P.W.3 as follows regarding the
incident where Macheli is said to have manipulated A's indicator on:-

"P.W.2 said the two of you talked about something
apart from asking how he was - ?

I can't remember talking about or discussing anything
with Mr Sharp.

As you say according to you when you saw A's

driver do this stupid thing of waiting until

witnesses had come and only then go and

switch the indicator on, you challenged

him saying it was too late for him to do that -?

Yes.

But P.W.2 said the question of the indicator was
confined to the discussion between you and him, one drawing the
attention of the
other to what was happening. Macheli was not
challenged. So which of you is telling us the correct thing on the
point -?

I can't remember discussing matter with Mr Sharp.

/Assuming

19

Assuming you saw the indicators being put on, is it your
story that you told the police 3 to 4 weeks later that you saw A's
driver
switch on the indicator. Did you tell police that -?

Yes."

Significantly in his statement to the police P.W.3
had
said

"... while we were waiting for the police to
arrive, I saw that the black man who was the driver of the heavy
vehicle had put
on his indicator which was not on at the time when we
had arrived there."

Yet when questioned on the point the following surfaced

"A story told before you gave evidence is that
before going into the cab the driver had walked away from the

truck. Did he do such a thing -? Not that I can
remember.

But you would have seen him go back to the cab had he
done such a thing. Yet your statement as translated says you didn't
see him
switch the indicator on. It says when you arrived you didn't
see the indicator on; but somewhere along the line you saw it on -?

I saw him switch it on.

Why didn't you tell the policeman that you saw the man
come into the cab and switch on the indicator - ?

I didn't write the statement. It was police who

did.

(The question was repeated) - ? I have no idea.

You don't know why you didn't tell the policeman that -?

No. I don't know.

That's because you didn't see any driver standing next
to the cab and going into the cab to switch the indicator on - ?

Moolman P.W.4 gave evidence which I need not elaborate
on.

/Thereafter

20

Thereafter Macheli gave evidence for the defence. As
stated earlier he was very inarticulate and unispiring in the manner
in which
he gave evidence.

However he said when approaching the farm and making
ready to turn to the right he was already indicating where he was
going to enter.
Then when he was about opposite the gate he felt
something hit his truck so hard that his truck was pushed out of the
road. He
stopped and saw that B had slammed into the rear of A up to
the diff.

D.W.1 showed a white woman what had happened. The
latter effected a U-turn presumably to report to the police or get
some help.
Two white men arrived and tried to help B's driver out of
the wreckage.

A black policeman asked D.W.1 what had happened. Then
D.W.1 was asked to report the following day. But later D.W.1 was
told to drive
home after he had been asked again to explain what had
happened.

D.W.1 said when it got hit at the back his truck

was moving at about 20 km per hour. He maintains it was

B's driver who caused the accident for he was
travelling
at too high a speed.

D.W.1 said under cross-examination that he went as far
as Std. 1 at school. He said he could not read a map; for his eyes
don't
see well due to the effect of paraffin heaters.

It was when he was shown the skid marks J.N. and o.f. on
the map that he focused his attention on the graphic representation
of the
road and objected that the lanes were four in all as against
two only shown in the sketch. It was also then that he pointed out
that
"X" is not correctly placed on the sketch. He pointed
out that it, should have been near where point "C" is
lying
inside the inner lane heading for Kestell.

/He

21

He stated that the accident occurred around 10 am or 11
am. He said he didn't remember the exact time as this happened a
long time
ago.

True to his level of education he proceeded as follows
to questions put: -

"There are two lanes in the road you were following
and two in the opposite direction -?

Yes.

What traffic travels on the left hand lane and what
traffic travels on the right hand lane as you head for Kestell from
Bethlehem
-?

They are vehicles. We use two lanes which are in the
middle of the road. When I had to turn to the direction where I went
I used
the one on the right.

You went over hill and descended towards the right when
you reached the dip -?

Yes

When you descended did you use the left hand side lane
-?

Yes. But the one which is on the right.

You see the arrows A and B - ?

Yes.

These arrows show your vehicle was using the extreme
left hand lane -?

This map is not the same as the road which had four
lanes.

(Question repeated) - ?

I swerved to the inside lane to give way to whatever
traffic would come.

When did you swerve -?

Before swerving I indicated first.

How far were you from the turn-off when you swerve;! to
the inside lane -?

About 40 paces.

Before you indicated that you were going to swerve to

/swerve

22

the right did you look back -? I looked into the mirror.

What did you see -?

When I started swerving to the inside lane there had not
yet been any vehicle emerging from behind me.

Did you at any time see a vehicle coming from behind you
-?

I looked into the mirror first. When I was a little
ahead I looked into the mirror. I saw vehicle emerge at great
speed. When
I thought it was passing on the other side I felt it hit
my vehicle. It hit mine and pushed it outside the road."

The agony I felt while trying to follow D.W.1's
testimony was appreciably relieved when a more expe­rienced
interpreter put across
to him proper translations of English
questions put by Mr Molyneaux into proper Sesotho text.

I formed a clear impression that D.W.1 was not in all
his infectious agony that swung between nervousness and outward form
of uncertainty,attempting
to mislead the court.

In S vs Kelly 1980(3) SA 301 at 302 Diemont J.A.'s
remarks are summarised as follows:-

"There can be little profit in comparing the
demeanour of one witness with that of another in seeking the truth.
There is no
doubt that demeanour —

'that vague and indefinable factor in estimating a
witness's credibility'

.... can be most misleading. The hallmark of a
truthful witness is not always a confident and courteous manner or an
appearance
of frankness and candour. As was stated by Wessels J.A.
in Estate Kaluza vs Bracuer 1926 AD 243 at 266:

'A crafty witness may simulate an honest demeanour and
the Judge had often but little before him to enable him to penetrate
the armour
of a witness who tells a plausible story.'

/On

23

On the other hand an honest witness may be shy or
nervous by nature, and in the witness—box show such hesitation and
discomfort
as to lead the court into concluding, wrongly, that he is
not a truthful witness. Nonetheless, while demeanour can never serve
as
a substitute for evidence, it can, and often does, 'reflect on and
enhance the credibility of oral testimony.' The experinced trial
officer is well aware of this fact ..."

The plaintiff's version of how the accident occurred
begars description. It indeed escapes my perception of physical
reality in moving
vehicles how 13 moving on the extreme lane and
curving suddenly to the right can, instead of hitting A's broadside,
come four square
into A's rear and remain stuck under it.

I. reject the plaintiff's contention that A's driver was
negligent. I find no merit in the argument that A's driver could wait
all
the while before he showed a white lady what had happened and all
the while after she left and only when Bookless and Van Niekerk
arrived did he switch the indicator on. Needless to say this episode
appears nowhere in Sharp's statement to the police. The portion
that
appears in Bookless's statement taken between 3 and 4 weeks after the
incident does not show that he challenged D.W.1 about
the uselessness
of his endeavour to concoct the evidence in his favour. In any case
if P.W.3 challenged D.W.1 P.W.1 could have
heard. But strangely he
said nothing about the challenge in this court. If such a thing could
have happened regard being had to
its enormous evidential value to
plaintiff's case, could it have been left out? I thing not. It is
my considered view that the
collision occured because P.W.2 was
moving too fast and with less caution than was warranted in the
circumstances.

The plaintiff's claim is dismissed with costs.

JUDGE.
2nd February, 1990.

For Plaintiff : Mr Molyneaux
For Defendant : Mr
Seotsanyana.