CIV/T/147/2000

IN THE
HIGH COURT OF LESOTHO

In the
Matter between:

SAMUEL
LESEFA PLAINTIFF

AND

TSELISO
INNOCENT MAOPE 1st DEFENDANT

MOHALE
MATSOKU CONTRACTORS 2nd DEFENDANT

JUDGMENT

Delivered
by the Hon. Mr. Justice G. N. Mofolo On the 14th day of June. 2005

This is a
very short case. A collision occurred between plaintiff vehicle and
1st defendant's vehicle as a result of which 1st defendant
paid
compensation in respect of damage to plaintiff's vehicle.

Plaintiff
has issued summons claiming loss of earnings by reason of the fact
that plaintiffs vehicle operated as a taxi. It is not
denied that
plaintiff;s vehicle was a taxi.

Plaintiff
has personally given evidence in support of his case saying his
vehicle bore registration No. C 1854 and operated as a
taxi between
Maputsoe and Bokong and made M407.51 daily as is reflected in Exh.
"A". He says at its peak the taxi made
M450.00 a day and at
its lowest he made M380.00 per day excluding expenses. He has
testified before the accident the vehicle was
in good condition. He
says he had no money to buy another vehicle nor did he have means to
mitigate the loss. He says he has lost
M407.51 per day from the date
of collision to date.

Cross-examined
he agrees in November, 2000 he was paid M28,000.00 for loss of the
vehicle and agrees after he was paid he should
have gone into the
road. He says the vehicle covered 900 k.m. per day being 2 to 3 trips
daily. Plaintiff says at the time of the
collision the vehicle could
have covered 567,821 km. Plaintiff says the model was a 1991 Hi-Ace.
He denies the vehicle was old
and prone to breakdowns. He says there
were times when he was not able to travel because of snow and there
were times when the
vehicle had to be towed because of a radiator
problem. He says Sundays and weekends were better than week days and
before costs
he made M650 per day. Plaintiff says he does not claim
days on which the vehicle underwent repairs. He had tried to hire
another
in 1999/2000 but failed.

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After the
plaintiff closed his case, the 1st defendant also closed his case.

Mr.
Malebanye. the always fair-minded keeping the equilibrium between
what's due and not due, has submitted that undoubtedly the
1st
defendant is owing loss of earnings to the plaintiff, but that such
loss of earning cannot be computed from plaintiff;s evidence
for this
is inadequate, not only inadequate for plaintiffs assessment of his
loss is based on gross and not on net earnings in
that expenses have
not been accounted for. Besides, there were breakages and breakdowns
for which the plaintiff has not accounted
for. Not only this,
plaintiff was compensated for the loss of his vehicle and any loss to
plaintiff was to be computed from the
date of the accident to a date
when plaintiff was compensated for the loss of the vehicle. Mr.
Malebanye has variously suggested
that loss earnings can be at 2/3 or
1%2 of the amount claimed and has asked the Court to apply the law of
averages as it did in
cases that came before this Court. The court
agrees there have been such cases but the court would that not only
were the cases
cited, but that judgements were annexed to Heads of
Argument.

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The law
as to damages is that the plaintiff notwithstanding that he has
suffered damages must mitigate his damages and if plaintiff
fails to
mitigate damages or as it were fails to reduce them these may be
reduced by the Court - see Joubert, Law of South Africa,
Vol 7 page
10. Also, it has been said an award of damages for loss is designed
to put plaintiff in the same position he would have
been but for the
damage (see also Schnellen v Rondalia Assurance Corporation of South
Africa, 1969 (1) SA 517 (WLD). By paying
the sum of M28,000.00, the
defendant placed the plaintiff in the same position the latter would
have been but for the damage to
his vehicle. Mr. Malebanye has
submitted that since the defendant by paying the damaged vehicle
placed the plaintiff in the same
position he would have been but for
the damage, the cut off date for payment of loss of earnings was the
date on which the vehicle
was paid. I couldn't agree more. As for
payment of loss of earnings, it depends whether plaintiff proved
these in the first place.
Plaintiffs proof of earnings appears to be
based on identification 2. But the earnings seem to cover the month
of May. Although
identification 2 does not show the year, plaintiff
in his evidence has testified the year is 1998 and since this is not
disputed,
the court will take it that recordings on identification 2
are for the year 1998. Since plaintiff was compensated in respect of

damage to vehicle on 07/11/00,

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seems to
me as 07/11/00 is the cut off date, damages for loss of earnings are
to run from the date of the accident to when damage
to the vehicle
itself was paid. As I have said above, I have taken a look at
identification 2 above and it does not reflect the
year in which it
was recorded notwithstanding that as I have said above the defendant
does not dispute this. The defendant has,
however, alleged that the
daily takings are gross and not net and the Court in deciding the
daily takings is to reflect on the
fact of takings being gross. Not
only this, but that the vehicle had several breakages, was
interrupted by snow and because of
its mileage was also
un-roadworthy. Defendant has suggested daily takings being reduced to
less than M100.00 per day. There can
be no doubt the daily recordings
are unreliable in that they are not shown as receipts against
payments and what's worse, the taxi
functioned for months, possibly
years and yet daily takings are recorded for a single month giving
the impression that these were
picked to justify plaintiff's case. If
justified, it is this Court's view that daily takings should have
covered the entire period
of the taxi's operation and not a single
month as identification 2 has shown. The result is that these daily
takings are not convincing
and being unconvincing, not covering the
entire period of the taxi's operation and being gross takings, seems
to me the Court is
at large taking all the mishaps into consideration
to award daily takings at its own

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discretion.
It is also this Court's view that if at the time of the accident
plaintiff was making a substantial profit on the taxi's
operation, on
the accident occurring the plaintiff would have bought another
vehicle without much ado. Even failing this at least
plaintiff on
being paid the M28,000.00 should have replaced the damaged taxi but
he failed. He failed because, in this Court's
view, the taxi business
by reason of the un-roadworthy condition of the damaged vehicle was
no longer an attractive proposition.

Taking
into account all the circumstances in the case, this court is of the
view that defendant is liable to plaintiff for loss
of earnings in
the sum of M100.00 per day from the day of the accident to when
plaintiffs vehicle was paid.

To do
justice to this case and by reason of the fact that plaintiff has
partially succeeded there will be no order as to costs.

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G.N.MOFOLO

JUDGE

14/06/05

For the
plaintiff: Mr. S. Phafane

For the
defendant: Mr. S. Malebanye

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