CIV/A/11/82

IN THE
HIGH COURT OF LESOTHO

In the
Appeal of

THULARE
MORUTHOANE Appellant

and

TEBELO
MAKHAKHE Respondent

JUDGMENT

Delivered
by the Hon. Mr Justice B.K. Molai on the 23rd day of August, 1985.

The
Respondent and the Appellant were respectively Plaintiff and
Defendant before the Resident Magistrate of Maseru in an action
in
which the Respondent sued the Appel­lant for damages in the
amount of M919-06, interest at the rate of 10% per annum a tempora

morae, costs of suit and further or alternative relief. Judgment was
entered in favour of the Respondent and it is against the
judgment
that the Appellant has now appealed to this court on the following
grounds

1

"The learned magistrate erred in finding that the Appellant
drove his vehicle at an excessive speed and thereby was neg­ligent

2

The learned magistrate misdirected himself by not taking into account
the most pertinent enquiry, which was accepted by him and
the
Plaintiff that the road was in bad state of repairs and slippery and
that the Appellant had no knowledge of the aforesaid slipperiness.

3

The learned magistrate erred by holding that the Defendant put
himself in such a position from which he could not extricate himself.

2

4

ALTERNATIVELY the learned magistrate erred in not apportioning the
aforesaid damages."

Briefly the facts disclosed by the evidence were that on the early
afternoon of 30th January, 1981, P.W.1 Thabang Maxhakhe was
driving
Respondent's motor vehicle registration No A 9458 which was used as a
taxi along the Maseru/Mafeteng public road on his
way from Maseru to
Mafeteng When he came to a place called Thota-ea-Moli, P.W.1 found a
vehicle belonging to a friend of his fallen
over a culvert. P.W.1
stopped and parked vehicle A 9458 on the left side of the road so
that he could render assistance

Shortly thereafter, one of the Lesotho National Buses came along from
the direction of Mafeteng As it approached the scene of collision,

the bus left its correct side of the road, swerved to the right and
hit vehicle A 9458 on the right side thus pushing it further
off the
road Vehicle A9458 sustained some damages for the repairs of which it
is common cause that the Respondent was full compensated
by the
Lesotho National Bus Service.

After the
accident between Lesotho National Bus and his vehicle A 9458 P.W.I
placed the warning red triangles on the road behind
and in front of
the latter vehicle He then continued to render assistance to the
vehicle that had overturned on the culvert. It
was at that time that
P W 1 noticed Appellant's truck registration No. A 5780 coming along
from the direction of Mafeteng. It was
travelling at the speed of
between 80 and 90 k.m.h.

According
to the appellant, there were no red warning triangles at the scene of
accident. P W.1's evidence that the red warning
triangles were there
was, however, supported by that of P.W.2, the police officer who came
to the scene soon after the accident.
The trial magistrate before
whom the witnesses appeared and testified accepted as the truth the
evidence of P.W.1 confirmed by
that of P.W 2. I see no good reason to
quarrel with the

3

finding
of the magistrate on this point.

The
appellant also denied that at the time he approached the scene of
accident he was driving at the speed of between 80 and 90
k.m.h and
told the court that his speed was, at the time, about 45 k m.h

It was
not disputed however that as it approached, Appellant's truck also
left its side of the road, swerved to the right and hit
Respondent's
vehicle A 9458 which was stationary. After hitting vehicle A 9458
Appellant's truck swerved back to its correct side
of the road,
travelled for a distance of about 52 paces before it overturned.

The trial
magistrate took into account the long distance travelled by
Appellant's truck from the point where it had collided with

Respondent's vehicle to the point where it overturned and came to the
conclusion that the Appellant's version that at the time
of the
collision he was travelling at the speed of only about 45 k.m.h.
could not be reasonably true. He reasoned that if it were,
indeed,
travelling at the speed of 45 k.m h., the Appellant's truck would
have stopped at a much shorter distance. In all probabilities,

therefore, the long distance travelled by the truck before
overturning indicated that it had been travelling at a relatively
higher
speed I am inclined to agree with that reasoning

It was
common cause that on the day in question, it was raining The portion
of the tarred road where the collision took place was
straight but in
a poor state of repairs and slippery. It cannot, therefore,be said
the magistrate failed to take this into account.

According
to the Appellant as he approached the scene of accident he applied
the brakes to slow down and keep his truck under control.
However,
due to the slip-periness of the road, the truck skidded out of
control and hit the respondent's vehicle Appellant therefore,

attribu­ted the accident to the bad condition of the road rather

4

than any
negligence on his part. For that reason, he denied any liability for
the damages incurred by the Respondent as a result
of the collision.

As
Brester J. put it in R. v Aucamp 1959(2) S A. 755 at 756

"It is true that a skid in itself is not evidence of negligence.
(Wing v London General Omnibus Co. 1909(2) K.B 657) At the
same time
it is not inevitable and it is not an act of God. It may in cer­tain
circumstances be due to negligence, in others
it may not "

I agree.
In the present case, the evidence accepted by the trial magistrate
was that as the appellant's truck approached the scent
of accident
there were warning triangles placed on the road, a number of vehicles
had also stopped and parked on either side of
the road That, in my
view, was adequate warning that there was danger on the road and a
prudent driver in the position of the Appellant
should have
approached the scene of accident with such speed and care that he
could secure control of his truck. Indeed, there
was evidence that
before and after the accident, a number of other vehicles passed on
the same road without insistence It seems
to me, therefore, that the
only reasonable inference to be drawn in the circumstances of this
case was that the Appellant's speed
was relatively high and he failed
to exercise proper care. To that extent he was negligent. The result
was the collision between
his truck and the Respondent's stationery
vehicle

It was
not disputed that the repairs of damage caused by Appellant's truck
on his vehicle cost the Res­pondent some M919-06
being the amount
of damages he claimed against Appellant Bearing in mind that
Respon­dent's vehicle was, at the time of the
collision,
stationary outside the road and the Respondent did or omitted nothing
that could have contributed to that accident,
I find no substance in
the alternative ground of appeal that the trial magistrate should
have apportioned damages.

5

I take
the view that this appeal ought not to succeed and accordingly
dismiss it with costs.

B K MOLAI

JUDGE.

23rd
August, 1985.

For
Appellant Mr Sooknanan,

For
Respondent Mr. M. Mda.