IN THE HIGH COURT OF LESOTHO
HELD AT MASERU CIV/T/444/2006
In the matter between:
‘MASERABELE MAKAKOLE PLAINTIFF
AND
LESOTHONATIONAL GENERAL
INSURANCE CO. LTD DEFENDANT
JUDGEMENT
Delivered by the Honourable Acting Judge Mr. G.N. Mofolo
On the 29th March, 2011
[1] In the instant case Plaintiff has issued summons claiming:
1. Payment of the sum of Five Hundred and Two Thousand and Ninety-Six Maloti and Fifty-Nine Lisente (M502,096.59) damages for compensation;
2. Interest thereon at the rate of 11% per annum from 6th July 2006 to date of payment;
3. Costs of suit;
4. Further and/or alternative relief.
[2] I am to mention Plaintiff (deceased’s wife) was appointed as curator ad bonis and ad litem of dependents of the deceased Thabo Pius Makakole and also as a curator ad bonis and ad litem and in that capacity empowered to exercise all powers and obligations including power to institute proceedings on behalf of dependents of the said deceased Thabo Pius Makakole. The matter was defended. Defendant lodged a special plea contesting Plaintiff was not duly appointed as legal guardian and consequently had no locus standi to institute proceedings. Plaintiff was however appointed as both curator ad bonis and ad litem and the objection fell away.
[3] On 29/11/2010 Pw1 - ‘Maserabele Makakole sworn stated: I work for medical clinic, a parastatal and worked for them since 26/10/2010. I was at some stage married to Thabo Makakole who has since passed on being on 11 November 2004 and she has handed in a marriage certificate and other documents and there are children of the marriage namely Serabele and ‘Mathabo and according to information received her late husband got involved in an accident at Thuathe, Berea at a time they stayed at Hill’sview while her late husband ran a business as a farmer and a builder. At Sehlabeng sa Berea her husband did not die on the spot having died at Queen II Hospital the same day of the accident and she hands in a medical certificate with a bundle of papers including a police sketch map. She says she bore deceased’s burial expenses. The insurance company had asked her by their further particulars to furnish them with expenses incurred and were annexed to her papers. Her husband had hobbies and he was President of Lesotho Football Association (LEFA) Mr. Salemane Phafane having taken over from him. He was also President of Arsenal Football Club. He did not drink or smoke. When he met the accident at Sehlabeng sa Berea reports were that he was driving and it is claimed there was a collision between his vehicle and another vehicle and according to reports deceased was with Kahlolo Phakisi when the accident occurred and it was intended to call him as a witness. She had filed a claim with the Defendant which was not honoured by them in the sum of M502,096.59 and she has handed in the claim marked Exh “A” collectively and other documents marked Exh “B” collectively. As for Serabele, he was 29 years old at the time attending school and his father paying tuition fees there being no sponsorship and at the time of the accident ‘Mathabo was attending school in Switzerland at de la dore and Lesotho Government paid her fees. Plaintiff worked at Lesotho Embassy, Geneva and ‘Mathabo was back home and student of the University of the Free State. Plaintiff left foreign service in 2005 after the death of her husband and ‘Mathabo left de la dore in 2006 and as she had no sponsorship her father would be responsible for paying her fees. As for her mother-in-law, she was supported by her husband. She was claiming loss of support for herself, general expenses, support of her mother-in-law and the children.
[4] Cross-examined, the Plaintiff has testified the amount of M502,096.59 is arrived at per her claim and agrees at the time of the accident her husband earned M15,000.00 per month from construction. Other than earnings from Rainbow Construction (Pty) Ltd, there were earnings from farming operations and she is not sure if the M15,000.00 per month was less tax. She lived in Switzerland from 2001 to 2005 when in May she returned to Lesotho and has remained unemployed to date though she worked for a firm from 2006 to March, 2010. Her earnings in Switzerland were M3,000.00 per month though Exh “A” showed M4,000.00. She was paid in Swiss franks a frank being the equivalent of M5 and her mother in law did not live with her but at a different location.
[5] The witness agrees in her claim M36,000.00 is repeated for it is part of M204,000.00. Of the M88,000.00, she did not know how much came from her pocket in that the money came from family members. As for funeral expenses, she says she paid though she can’t say how much. She says she is claiming M500.00 per children per month for 2 years. University fees M50,000.00 franks per year after husband’s death her son having attended university for 2 years calendar months; she says 2 years 18 months, amounting to M173,100.00 and had actually paid M173,000.00 being a loan from a bank in Johannesburg and she had been advanced M150,000.00 which she used to pay university fees. She says she is claiming M150,000.00 school fees plus M23,000.00 by which she topped up the amount of M150,000.00 school fees. The loan was paid off and has asked she be given time to find documentation supporting payment of M173,000.00 school fees. The witness’s cross-examination is stopped to enable her to find supporting documentation.
[6] Pw2 Kahlolo Phakisi sworn has testified he knew Pw1 whose husband was Thabo Makakole now deceased. He was with him in the vehicle on 11/11/2004 when an accident took place which claimed his life traveling from Maseru at Thuathe in course of deceased driving the vehicle towards Sefikeng on tarred road about 5-6 p.m when a vehicle from Sefikeng appeared going down a sleep slope at high speed and noticed the vehicle veering into their lane and he was so scarred he was not able to warn deceased. He says he does not know what happened for he was scarred and passed out having lost consciousness. The oncoming vehicle was a taxi with passengers; there was no curve the road being straight.
[7] On 14/12/2010, the Court went on an inspection-in-loco and present were Mr. Ntlhoki for Plaintiff and Mr. Loubser for Defendant. Pw2 points out they were driving from Maseru to Sefikeng and the vehicle they collided with he saw 400 metres away and when he saw it there were no vehicles ahead and in the opposite direction and the taxi was traveling on its lane and he said to deceased see what this vehicle is doing? He says by his estimation the taxi changed direction about 164 metres from the monument vehicles having collided 19 metres from the monument. He says he saw the taxi change course having done so about 45 metres from point of impact. He says the taxi changed course going into their lane for they were going up driving on the left side of the road and next to the point of impact is a tree, fence and an electric or telephone pole. From point of impact to the fence is 12 paces and their vehicle had no space to avoid the impact. He says they were 23 paces away from the point of impact when he saw the taxi change course and they had 23 paces to avoid the impact and from the shoulder of the road it was 12 paces. The monument was for the late Thabo Makakole and those who perished in the accident. The court was also shown a sprawling farm with wheat plants and farm implements and irrigation materials said to belong to the late Thabo Makakole.
[8] In court notes on the inspection in loco were read and following corrections were made by Counsel:
When we saw the taxi 400 metres away it was traveling on its correct lane 400 metres away from the point of impact and the taxi-man changed to the wrong side of the road when deceased’s vehicle was 23 metres away from the point of impact. As to whether the deceased could have avoided the accident, it was 12 paces to the tree and telephone pole.
[9] As to whether deceased Thabo could have swerved to the left to avoid impact the terrain was rough and limited making it impossible to swerve at short notice though in this court’s view what the court has to concern itself with as to who between the taxi driver and deceased Thabo was negligent there being some evidence for the deceased Thabo and no evidence whatsoever for the defence by reason of occupants of the taxi having all perished in the accident.
[10] The witness has continued in his evidence after the collision he was unconscious recovering on the way to hospital near the gate that leads to the Lady of Victory and he never saw the deceased who died the same day while the witness was discharged from hospital after two days having sustained injuries. He says deceased Thabo was a great friend and he suffered untold emotional distress and the reason he was not able to bury deceased.
[11] Cross-examined he has testified they were driving a Toyota Condo closer to Toyota Venture carrying 7 people and he does not remember the colour of the vehicle while the taxi was white and he does not know its make. They were only two in Thabo’s vehicle and the eight names on the monument are those who were in the taxi the accident having occurred in the evening between 5-6 p.m in November. It was bright, sky clear with no vehicle before or behind them the taxi being the only vehicle from the opposite direction. He says in saying “bona koloi eane” (see that vehicle) he doesn’t know whether he was speaking to himself or Thabo the deceased being at the time the taxi went into their lane. At the time deceased was driving at approximately 60-70 kilometres per hour and he does not know whether there were speed restrictions on the road though it was open country there with fields and a build up area. He says he does not know what the driver did or on which side their vehicle was hit though when hit they were driving on the left-hand side of the lane. Put to him their vehicle did not veer to avoid the accident he says may be so. He says at the inspection-in-loco he did say when he saw the taxi it was 164 metres away and when the taxi crossed to their side they could not avoid it and though not sure whether the driver saw the taxi crossing its lane and changing into the wrong lane and driven on the wrong lane, switching from the right lane to the wrong lane was sudden and its something that puzzled him. He says he does not know how driver of the taxi died it being said he is the only one who survived the accident. He does not know if there was something wrong with the taxi though it could have been traveling between 80-100 km per hour. He says he doesn’t know when a driver is drunk.
[12] Mr. Ntlhoki says several subpoenas were issued to bring a policeman to testify the reply being that he is unavailable studying in South Africa.
[13] It will be recalled in course of her evidence Pw1 could not lay her hands on some documents and her cross-examination was postponed to enable her to produce the document if found. Recalled Pw1 has testified she has not been able to find the documents in that to her recollection it was her deceased husband who paid the fees in Switzerland.
[14] Mr. Ntlhoki has intervened saying there is no dispute Serabele went to Switzerland to study and as the university was not a charity the fees were paid. Pw1 has continued her son was not on scholarship and his father paid the fees moreover she contacted the university in Switzerland telephonically and the result was that the material was already in the archives and the inquiry could not be pursued. Plaintiff’s case.
[15] Mr. Loubser has submitted nobody in either vehicle except Pw1 survived the accident and he is accordingly closing the defence case.
[16] On 14 December counsel has agreed to submit Heads of Argument and the court received Plaintiff’s submissions on 31/01/2011 while Defendant’s submissions were received on 21/01/2011.
[17] Facts of this case are that on the fateful day in November, 2004 while Plaintiff’s husband was driving from Maseru at Thuathe also referred to as Sehlabeng-sa-Berea, he met an accident his vehicle having collided with a taxi. Except for Pw1, there were no survivors in either vehicle. Pw2 has placed the entire blame on the driver of the taxi in that according to Pw2 when the taxi emerged from the hill it was driving on its correct lane but has along the line suddenly switched from its lane on the left-hand side to a lane on its right side, a lane bringing it into confluence and collision with a vehicle that was being driven uphill on the left-hand side of the road. Pw2 has testified there was no traffic and the sky was clear when the taxi bumped into their vehicle. The witness was not able to testify as on which side of the vehicle the deceased Thabo’s vehicle was hit. Problems like these being solved by police sketch maps but unfortunately it proved impossible to call a traffic police officer who attended the scene of the accident it being claimed he is unavailable studying in South Africa. The court found Pw2’s evidence to be both competent and credible and has believed him and has thus entered judgment for the Plaintiff.
[18] In so far as quantum is concerned, Mr. Ntlhoki has submitted Mr. Loubser’s cross-examination tended to reduce the amount claimed in that amongst other things counsel claimed the funeral expenses were exorbitant; moreover, that Plaintiff was unable to produce documents that deceased paid tuition fees for his son in Switzerland. It will be seen it was not denied that funeral expenses were incurred or that tuition fees were paid for deceased’s son at a Swiss University.
[19] Mr. Ntlhoki has further submitted there was evidence deceased was President of the Lesotho Football Association, President of Arsenal (Lesotho) Football Club, a successful businessman and farmer. It is not so much that there was no counter-evidence against Plaintiff’s claims but that this court was satisfied of the very high status of the deceased in the community. I also agree with Mr. Ntlhoki that since it is not denied deceased paid for his son at a Swiss University a university is not a charitable institution demanding to be paid.
[20] According to Mr. Ntlhoki it is undisputed that the daughter of deceased is in the University of the Free State and needs support and maintenance met by Plaintiff in absence of deceased. Mr. Ntlhoki has further submitted deceased died at 46 years of age and given life expectancy in the country had several years to go on supporting wife and children. Has also been submitted Basotho do not in matters of burial of deceased operate in isolation but being a community of extended families act together their contributions to family funerals being in the form of a loan to be repaid when the need arises a good turn deserving another. In support Mr. Ntlhoki has quoted from Commercial Union Assurance Co. of SA Ltd vs Mirkin and Another NNO 1989 (2) SA 584 (1), Rondalia Assurance Corporation of SA Ltd vs. Brits 1976 (3) SA 243 (T) at 248B and The Law of Damages through cases by P.J. Vissie and J.M. Potgieter, 341 to the effect:
1. ‘Funeral expenses’ is not a legal term or art being a generic description which society at large gives to those costs which are regarded by it as being ordinarily attended upon the laying to rest of one departed.
2. There is no statutory definition of the expression and what it comprehends may well vary from age to age if social mores in regard to the manner which those deceased are laid to rest undergo change.
3. “… I think full recognition (has to be given) to the principle that further items of expenditure may arise as the style of burial changes in accordance with the custom of the day …”.
4. … in my view, making allowance for possible differences in the mores of particular communities in the modern complex of races, religious and beliefs, we are entitled to take judicial cognizance of the general customs, both secular and religious, by which in these times the body of a deceased person is committed to the grave or to cremation. In general the disposal of the earthly remains of a deceased person is a matter for his family, who arrange for the funeral to take place and ordinarily the occasion is marked by religious service and traditional forms of mourning. Expense is commonly incurred, not only in the actual internment or reduction of the body to ashes by fire, but also in providing the religious ceremony, in sanctimonious expressions of respect and honouring, in the provision after the funeral of refreshments for relatives and friends, some of whom may have traveled long distances to attend the funeral.
[21] Mr. Ntlhokihas submitted funeral expenses were not challenged as being luxurious, contrary to public policy, unreasonable or repugnant, and the court was not called upon to decide how much was reasonable to spend in the circumstances.
[22] According to Mr. Ntlhoki, in assessing or computing claims for loss of support the court only takes into account the actual material loss caused to dependants of the deceased by his death, it is not restricted to mere necessaries of life. It includes all material advantages, comforts, conveniences and support which the father would have afforded the claimants but for his death and general damages are a matter the discretion of the court a precise formula not having to be pursued.
[23] In so far as the defence is concerned, Mr. Loubser has confined himself to Quantum of Damages. Mr. Loubser appears to have confined himself (though not exclusively) to the case of Santam Insurance Co. Ltd v CJ Fourie, case No.113/95 (unreported) in which most judges of appeal in the case have set or are still sitting as Judges in the Appeal Court of Lesotho a case, according to Mr. Loubser, in which principles applicable to damages arising from the death of a deceased are fully set out the salient principles applicable being:
The dependent must establish actual patrimonial loss, accrued and prospective, as a consequence of the death of the breadwinner and before coming to computation of any loss, the court must first ascertain whether any loss at all has in fact been suffered and computation of the actual loss … is a pure question of fact and nothing else.
[24] With regard to whether any loss has been suffered, an irrigation scheme was in the offing and machinery was lying idle and fields fallow and his other business unattended. Having seen his outlays and outfits, deceased was a budding entrepreneur nipped in the bud and fact is deceased paid school fees for his children, supported his children and wife including his mother, facts that are not denied. In the absence of actual money paid, having in any event believed Pw1’s testimony that there was support the amounts to be paid will be what’s reasonable in the circumstances.
[25] Quoting from the judgment above Mr. Loubser has further submitted “it further follows that it’s quite possible that the family left behind did not suffer financially through the death of the deceased” for “while it is true that the income of the deceased was lost, it could well be the case that the family saved the cost of the deceased’s maintenance in a specific case. The unpalatable truth is therefore that the family could be better off financially after the death of the deceased.” In the instant case there is no evidence the family saved the cost of deceased’s maintenance for, from the court’s observation, the family appeared worse off and it would be misleading to say minor children, in particular, suffered no patrimonial loss.
[26] Mr. Loubser has also submitted according to the evidence and pleadings the claims are only for the period from the date of deceased’s death to the date of the issue of summons that is, for two years only. Yes, in so far as the 2 children are concerned in that they have since matured and become majors other claims being in the nature of general damages. In so far as the sum of M36,000.00 duplicated and deducted from M200,000.00, this has already been dealt with above.
[27] Mr. Loubser has conceded total payment of M12,000.00 made up of M500.00 per month per two years maintenance of deceased’s mother. In passing, it will be noted the concession is made on the backdrop of Pw1’s evidence alone it being admitted maintenance is a fact requiring no proof (vide para. 5.3 of Heads of Argument).
[28] In paragraph 5.4 of his Heads of Argument, Mr. Loubser argues “there is absolutely no evidence from the Plaintiff that the deceased made any contribution to their maintenance” in that according to Plaintiff’s evidence she worked for Lesotho Embassy in Switzerland from 2001 to May 2005 and during this time the two children were with her in Switzerland and it is to be assumed she maintained them there by herself until May 2005. Reading Mr. Loubser well, it would appear he refers to the period the children were with their mother in Switzerland when they were supported by the Plaintiff and not their father and for this reason are not entitled to maintenance noting Plaintiff has not testified in Switzerland the deceased supported his children. I am, however, of the view that maintenance is duty of both parents and as long as they live together as husband and wife their duties are shared.
[29] At para.5.8 of his Heads of Argument Mr. Loubser has submitted and conceded the daughter would have been entitled to maintenance from her father for the period June 2005 to September 2006 at the rate of M500.00 per month amounting in all to M8,000.00 and since the claim has been conceded this court is of the view claim for the two children and deceased’s mother should be in the amount of M36,000.00.
[30] I have not read Mr. Loubser as having seriously contested that deceased’s son did not study or his school fees paid in Switzerland save complaining that fees as to testified to by the Plaintiff were exorbitant and lacked proof. He has suggested payment of M25,000.00 per annum amounting to M50,000.00 for 2 years and the court having regard to circumstances of the case has allowed university fees for two years in the amount of M100,000.00.
[31] Mr. Loubser has not seriously contested Plaintiff’s maintenance of M1,000.00 per month save limiting the period to fifteen (15) months. I consider M1,000.00 a month most reasonable and would add it appears deceased’s farming operations require an injection of capital and as soon as farming operations have been brought to life Defendant can always approach the court for the reduction or cessation of maintenance order. Otherwise maintenance order in the sum of M1,000.00 per month from the date of Plaintiff’s husband decease for fourteen (14) years is allowed subject to Plaintiff’s improvement of farming operations in which case as already stated this court may be approached for a reduction or cessation of the maintenance order.
[32] In so far as funeral expenses are concerned, it would seem most contributions came from the family though as Mr. Ntlhoki has submitted these are in the form of a loan amounting to a good turn deserves another. I have taken account of cases therein cited by which I was much impressed and because of deceased’s standing in the community notwithstanding that expenditure is not certified I have allowed M85,000.00 for funeral expenses.
[33] Plaintiff has claimed M502,096.59 compensation less = M36,000.00 leaving a balance of M466,096.59 made up of:
(i) M500 x 12 (a year) x 3 (Dependants) x 2 (number of years) = M 36,000.00
(ii) If he maintained his wife at the rate of M1,000.00 per month for 14 years M1,000.00 x 12 x 14 = M168,000.00
Total maintenance = M204,000.00
(iii) Deceased paid for Serabele’s tuition at University in Switzerland at the rate of M15,000.00 Swiss franks
1 x SF = M5,77
15,000 SF = M86,550 x 2 years = M175,000.00
(iv) Funeral expenses = M 88,996.59
Total tuition fees and funeral expenses = M264,096.59
Add total maintenance = M204,000.00
Total Compensation claimed c/d M466,096.59
b/d M466,096.59
This court has allowed maintenance of the two
children and mother of the deceased in the amount of M 36,000.00
Maintenance of the Plaintiff in the sum of M168,000.00
Serabele’s tuition fees in the sum of M100,000.00
Funeral expenses in the amount of M 85,000.00
Total = M389,000.00
and accordingly judgment is entered for the Plaintiff in the sum of M389,000.00 (Three Hundred and Eighty-Nine Thousand Maloti) and costs thereof.
G.N. MOFOLO
PUISNE JUDGE
For the Plaintiff : Mr. Ntlhoki
For the Defendant : Mr. Loubser
