IN THE HIGH COURT OF LESOTHO
HELD AT MASERU CIV/T/26/2006
In the matter between:
CLOETE MDLOKOVANA Plaintiff
And
FEDILITY SERVICES GROUP
LESOTHO (Pty) Ltd 1st Defendant
MR SIMON MOSALA LITSESANE 2nd Defendant
JUDGEMENT
Delivered by the Hon. Mr Justice T. E. Monapathi
On the 4th day of April 2011
1. In this matter, the Plaintiff has issued summons against the Defendants for damages he suffered as result of a collision that occurred between his vehicle (a bus then carrying passengers) registered F2377 and the Second Defendant (the First Defendant’s driver) of vehicle registered AW 708, on the 20th January 2005 along the main South One Road, near Borokhoaneng in the District of Maseru.
2. The Plaintiff claims against the Defendants in this action was for: payment of the amount of M44,994.81, 2 interest on the abovementioned amount at the rate of 18% per annum a temporae morae, 3 costs of suit, 4 further and or alternative relief. The parties agreed at the commencement of trial that the quantum would not be disputed.
3. It is further alleged by the Plaintiff, in the summons, that the collision occurred as a result of the sole negligence of the Second Defendant who was negligent in one or all of the following respects: Firstly, that he had failed to keep a proper lookout. Secondly, that he drove too fast, in the prevailing circumstances. Thirdly, that he failed to apply the breaks of the vehicle that he was driving, timeously, alternatively effectively.
4. In the Defendant’s plea it is said that:-
“The correct position is that the Second Defendant joined the road at a time and moment, and after a proper lookout, when it was opportune and safe for him to Rather the Plaintiff’s vehicle emerged behind the Defendant’s vehicle at a high speed in the circumstances.”
As it was correctly argued that very little was placed in dispute between the parties.
5. As Plaintiff’s Counsel argued the only question that the court had to decide was whether the whether the Second Defendant had crossed the lane of the Plaintiff’s vehicle when it was safe and opportune to do so. Put differently whether it was that driver who had kept a proper lookout.
6. The first witness who testified to the Plaintiff was the Plaintiff himself who confirmed that he was the owner of the bus and his brother’s son Nkosinathe Mdlokovana (PW2) was the driver of the vehicle on that day.
7. PW1 testified that on the day in question he was driving in the Mafeteng direction, along the Main South One Road, at about 60km per hour when he noticed the Defendant’s vehicle which was parked on the left hand side. It was facing the road. As he approached the vehicle, the vehicle suddenly entered into the road and crossed the road in front of him that is from left to right. He said he had to take evasive action by swerving to the right so as to avoid and accident. This explained why he encroached into the right away from his line on the left. He was unable to avoid a collision and he hit the vehicle driven by the Second Defendant. The impact took place just on the other side of the line in the middle of the road. The impact resulted in damage to the Second Defendant’s vehicle which is described as on “the rear right park light and bus also ended up damaged on the front as the police report showed.
8. The third witness (PW3) was one Sergeant Radiile, who said that he attended at the scene of the accident after receiving a report. He observed that Second Defendant had in fact just crossed into the road when the bus was approaching hence the point of impact. According to him, as also shown in his police’s report map, the point of impact was indicated just on the other side of the line in the middle of the road, thereby confirming what the driver said in his evidence. Then the Plaintiff closed his case after cross-examination of the witness.
9. The Second Defendant testified afterwards. He said he had checked on his right before he entered the lane of the bus and had seen that there was no traffic coming. He then, according to him, crossed the first lane to Maseru and he entered the Second lane to Maseru. As there were two cars coming from his left he waited for then to pass and the bus came towards him in high speed. The bus collided with the rear of his vehicle. He confirmed the point of impact, on the other side of the line in the middle of the road. This confirmed the evidence of the bus driver.
10. Mr Laubscher for Plaintiff submitted that the evidence of the Plaintiff’s witness was not shaken in anyway, on the other hand the Second Defendant could not explain how it had happened that he was hit on the other side of the line in the middle of the road if he was not crossing the road. While the bus was approaching him. Eventually, it was the issue of why he failed to see the bus if this was not evidence of absence of proper look-out. A credible version would be that the Second Defendant, due to absence of proper look-out travelled into the road at the wrong time and was extremely negligent. I also accepted that in no way would the bus driver had contributed to the collision. Indeed he explained why he unfortunately ended up hitting the other vehicle where it was. Why? Because he had veered to the right in order to avoid the collision.
11. I agreed that the Plaintiff’s version was the more probable and well supported on the facts, on all probabilities. It is clear that the bus must have swerved to its right in order to avoid the accident with the Second Defendant who was crossing its line of travel at that point in time. The bus was forced to veer to the right which it would not have done if suddenly the Second Defendant’s vehicle had not come into its way. That the bus traveled to the right, which the driver justified is bolstered by the point of impact which is on the other side of the lane in the middle of road, as the policeman’s sketch also shows.
12. Unless the Second Defendant gave a better explanation, better than absence of proper look-out of why the Second Defendant had crossed into the road while there was no traffic coming, there would be no explanation for the fact that the bus had collided with the rear of Second Defendant’s vehicle on the other side of the line in the middle of the road.
13. In no way did I find that by reason of speeding or of consideration that the bus driver was negligent. Indeed he gave a reason why he could not swerve to the left or why he could not instantly apply breaks. On the left it was towards the edge of the road and he was carrying a loadful of passengers. In the circumstances it became clear on the facts that the collision was caused by the sole negligence of the Second Defendant by entering into the road the way he did. In addition no useful explanation was given why he could not see the bus where a clear area or space was to be found in the direction of where the bus came from of about 100 yards or so.
14. As Mr Laubscher submitted in this case of Sierborger v Sarth 1961 (1) SA 498 (A) at 505 A-C it was decided that a driver intending to turn across the line of traffic, must do so at an opportune moment and in a reasonable manner. Most importantly a driver of a vehicle proceeding in this direction does not incur an obligation to stop or show down. Thus:
“certainly he must keep such vehicle rule observation and as soon as it is clear that despite the opportune moment, it intends to cross in front of him, he must take all normal steps that may be necessary to avoid collision with it.”
In the present case it was clear the Plaintiff’s driver had taken all steps to avoid the accident. That is why he swerved to the right in as attempts to avoid the other vehicle, but he could not do so. I accepted his explanation as credible and truthful. I was referred to Southern Insurance v Cogill 1978 (4) SA 128 (1) in that regard.
15. According to the police officer, witness of the Plaintiff, who I believed, a vehicle in the position of the Second Defendant’s vehicle could see approaching vehicle at a far distance. The Second Driver had estimated he looked to the distance of 100 yards and could not see any oncoming driver. Not that I believed this driver, but this was an indication that if he had properly looked-out he could have seen the Plaintiff’s vehicle.
16. It was correctly submitted, in my view, that it was simply impossible for a bus to emerge “out of the blue” at such high speed that the Second Defendant could not see it approaching. In any event, I did not believe that the driver of the bus drove at a high speed. The only reasonable explanation for the explanation in my opinion, is the fact that the Second Defendant simply did not look properly before he pulled away to cross the lane of the bus. This pointed out unambiguously to that the Second Defendant was very negligent.
17. Another issue which arose in argument was the question of what Plaintiff said was only on lane of travel in the direction in which the bus was travelling. Unfortunately this was not put in issue in cross-examination. The allegation only come late when the Second Defendant testified. Even if it was true it was not suggested that it could have changed the Second Defendant’s behavour or driving and if so how.
18. I concluded, quite safely in the circumstances, that the facts proved on a balance probabilities, that the Plaintiff claim not succeeded as in the summons with costs.
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T. E. Monapathi
Judge
For Plaintiff : Mr Laubscher
For Defendants : Adv. Mohapi
