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					IN THE HIGH COURT OF BOTSWANA HELD AT LOBATSE CASE NO. CVHLB-003216-05 In the matter between: BOTSWANA INSURANCE COMPANY LIMITED and BONOLO FAN PELEKEKAE Mr. M.W. Makuyana for the Plaintiff Mr. T.S. Chilume for the Defendant DEFENDANT PLAINTIFF

JUDGMENT TAFA J.
1. On the 21st January, 2005 at or around 20:30 hours, a collision occurred along the Lobatse/Gaborone Road at or near the Mogobane junction. Three motor vehicles were involved in the said collision. These were a Ford Fiesta motor vehicle registration number B435 AHV, (a vehicle insured by the Plaintiff), Neon Chrysler motor vehicle registration number B392 AGN, owned and driven by the defendant and a car described only as a Corolla that collided with the Defendant’s motor vehicle after the initial collision between the Ford Fiesta and the Neon Chrysler.

2.

The Ford Fiesta to which I shall henceforth refer as “the insured vehicle” was, at the material time being driven by one Sepopego Maikano. It was owned by one Opelo Sebolawe. The Neon Chrysler to which I shall refer as the “defendant’s car” was as mentioned above, owned and driven by the defendant.

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3.

The parties gave two differing versions of how the accident occurred. I shall first deal with the Plaintiff’s, which was given by Sepopego Maikano who testified as PW 2. But before that I wish to deal with the evidence of Opelo Sebolawe who testified as PW 1.

4.

PW 1 was the registered owner of the insured vehicle. She lent the vehicle to PW 2 who was her younger brother. He informed her that he was going to Gaborone. The vehicle was involved in an accident and written off. She was paid the sum of P45,451.00 by the plaintiff following her claim for compensation.

5.

Back to PW 2. He remembers that sometime in February 2005, he borrowed his sister’s car. He drove the car from Lobatse on his way to Gaborone. On the way to Gaborone, past Otse, there was another motor vehicle being driven in front of his. This motor vehicle was moving slowly. He overtook the vehicle. After overtaking this slow vehicle he realised that there was yet another vehicle driving in front of the one he had just overtaken. It was also heading for Gaborone. He was now between the two vehicles but because the vehicle in front of him was moving slowly, he was obliged to and did apply his brakes in order for him to position his vehicle properly between the other two vehicles.

6.

He looked in his rear view mirror and noticed another vehicle overtaking the one he had just overtaken. The said vehicle was being driven very fast. Suddenly, the

3 vehicle from behind collided with his vehicle. The point of impact was on the rear right hand side. After the impact, the witness’s vehicle overturned. When he got out of the vehicle, the witness saw the defendant’s vehicle burning. A Corolla was near by. He knew that the burning vehicle had been following behind him and that it was being driven by the defendant. It was between 8:00 p.m. and 9:00 p.m. when the accident occurred. From his observation, the defendant’s vehicle was damaged in front. He applied brakes to avoid colliding with the car that was in front of his after he had overtaken.

7.

It became clear when PW 2 was cross-examined that he had known the defendant since the year 2004. The witness and the defendant had driven together in the latter’s car from Francistown to Lobatse during the day and were in fact driving back to Gaborone together albeit in different cars. The defendant had earlier driven the witness to Lobatse so that he could collect the insured vehicle. PW 2 mentioned for the first time in cross-examination, that as the defendant passed the vehicle that he had earlier overtaken, there was another vehicle coming from the opposite direction. The defendant then swerved to the left towards his vehicle and hit it from behind.

8.

It was put to the witness that the defendant would testify that he (the witness) attempted to overtake a vehicle that was in front of him but aborted his manoeuvre when he realised that another vehicle was approaching from the opposite direction. He then forced his car between the one he had been in the

4 process of overtaking and defendant’s car that had almost occupied the space he had vacated causing the defendant’s car to hit his from the back. His response to the proposition was:

“That is not true. If I had only attempted to overtake and went back to my lane, I could have hit her with my left side.” 9. This answer of course holds true only if it be assumed that it is the witness’s car that hit against the defendant’s car and that the defendant contrary to what she stated in evidence, did not swerve to the right to avoid a collision.

10.

If I were to believe the defendant’s version of what happened, the probabilities are that her car came into contact with the insured vehicle on the right back side because she swerved to the right in an attempt to avoid colliding with it.

11.

When it was put to the witness that the accident occurred because of his failure to keep a proper look out for an oncoming vehicle, his response was:

“I did not fail because I applied brakes.” 12. The conclusion to be drawn from the witness’s answer is that he does not deny that there was an oncoming vehicle. What he is saying is that the oncoming

5 vehicle did not pose any danger to him as he applied brakes and at any rate he had completed his manoeuvre.

13.

PW 3 was Motseothata Phineous Pitso, a loss adjuster by profession. He has twenty years experience in the profession. His duties entail assessing damaged vehicles. He was appointed by the plaintiff to assess damages to the insured vehicle. The vehicle was at the premises of Prestige Panel Beaters (Pty) Ltd. It had been bumped on the right rear. It overturned as a result of the impact.

14.

He prepared a report of his findings. The vehicle was a write off. In other words, it was uneconomical to repair the vehicle as the repairs would cost more than the pre-accident value of the vehicle which was P48,370.37. From that amount he deducted the policy excess of P2,919.00 leaving a balance of P45,457.00 which is the amount paid to PW 1 by the plaintiff.

15.

He charged and was paid by the plaintiff the sum of P440.00 being his fees for services rendered. The witness produced documentation in support of his

testimony. The salvage value of the vehicle would be 25% of the pre-accident value. All in all, the evidence of this witness was not in serious dispute. I accept his evidence and find that the pre-accident value of the insured vehicle was P45,457.00 and that the vehicle was damaged beyond economic repair.

16.

After this witness, the plaintiff closed its case.

6 17. The defendant opened her case by calling one Kutlo Kaketso to give evidence as DW 1. She was a passenger in the defendant’s car on the 21 st January 2005. They were travelling from Lobatse to Gaborone. She had driven to Lobatse to drop off two gentlemen. As they approached Mogobane junction, the insured vehicle which had been travelling in front of theirs signalled an intention by the driver to overtake. The vehicle began to overtake but the driver aborted his manoeuvre and swerved back to the left. The defendant’s vehicle that had

partially taken over the space that had been vacated by the insured vehicle’s driver then collided with the back of the insured vehicle. This move by the driver of the insured vehicle was sudden.

18.

In cross-examination, the witness revealed that she had been sitting in the front passenger seat and could see clearly what was happening in front. When the driver of the insured vehicle started overtaking she saw his vehicle indicator light signalling. She did not at that juncture notice that there was a car coming from the opposite direction. She only became aware of this other car when it collided with theirs.

19.

The defendant’s vehicle hit the back of the insured vehicle and it swung to the right crossing the path of oncoming traffic thus colliding with an oncoming car. The insured vehicle was completely in the left lane when it was hit from behind. The witness was asked if the defendant took any steps to avoid hitting the insured vehicle to which she replied:

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“She braked and hit it from behind.”

20.

She denied a suggestion that the driver of the insured vehicle had safely overtaken a vehicle that had been in front of him when his vehicle was hit from behind. She denied also that it was the defendant who had been overtaking when the accident occurred.

21.

Next to give evidence was the defendant herself. Her evidence corroborates in all respects that of DW 1. She testified that on that fateful day, she had driven to Lobatse in order to drop off PW 2 so that he could collect PW 1’s car (the insured vehicle). From Lobatse, PW 2 was driving behind her. Just past Otse, he

overtook her. A short distance from Otse, at or near Mogobane junction, PW 2 signalled that he was over taking a vehicle in front of him. There and then, there was another car approaching from the opposite direction. PW 2 positioned

himself to overtake and occupied the right lane. Suddenly and without signalling, PW 2 drove back into the left lane forcing her to apply brakes in an attempt to avoid hitting his car from behind. It was too late for her to avoid a collision. Her car rammed into the back of the insured vehicle. She lost consciousness and when she came to, she was being removed from her car which was in flames.

8 22. She testified that she applied brakes to avoid hitting the insured vehicle and at the same time swerved to the right although she could not quite remember what happened after the impact. She had been travelling at about 75 kph immediately prior to the accident. She had been about four to five metres behind the insured vehicle. She saw the on-coming vehicle before the insured vehicle started

indicating and even at the time the insured vehicle’s driver started overtaking the oncoming vehicle was about one kilometre away when PW 2 started indicating that he was overtaking.

23.

The defendant repeated under cross-examination that she applied brakes and swerved to the right to avoid bumping into the insured vehicle. At the end of the defendant’s testimony, the defence closed its case.

24.

The Court is now called upon to decide whether the plaintiff has discharged the onus placed upon it on a balance of probabilities. It has been held that for the plaintiff to succeed the probabilities must be substantially in his favour. If the probabilities do not favour him or are evenly balanced the plaintiff has not discharged the onus of proof and cannot succeed in his claim. See Cooper, Motor Law vol. 2 Juta, 1st edition, 1987 cited with approval by Masuku J. in Boithatelo Moatlhodi CCF-855-03 where he added at page 14:

“In order for the Court to find on a balance of probabilities that the defendants are negligent and therefore liable, the Court must be satisfied as to the

9 following, that is to say, if a deligens paterfamilias in the 2nd defendant’s position – a) would have foreseen the reasonable possibility of his conduct occasioning injury to another’s property and thereby causing him patrimonial loss; and would have taken reasonable step (sic) to guard against the occurrence; but failed to do so. To this end, the evidence adduced must be considered in its totality.” 25. I respectfully associate myself with the remarks of Masuku J. above.

b)

26.

In casu, there are two mutually destructive versions before the Court as to how the accident occurred. These two versions are totally irreconcilable on material issues. How then, does the Court faced with two mutually destructive versions resolve the same? In Eversmeyer v Walker 1963 (3) S.A. 384 (F) at 386 C, again referred to in Boitumelo Moatlhodi above, Wessels J.A. says:

“Where there are two stories mutually destructive, before the onus is discharged, the Court must be satisfied upon adequate grounds that the story of the litigant upon whom the onus rests is true and the other false.” 27. In the present case, the onus is on the plaintiff to prove the alleged negligence of the defendant on a balance of probabilities. Masuku J. again in Boitumelo’s case supra, refers to the case of National Employers General Insurance Co. Ltd. v. Jagers 1984 (4) 432 at 440 D-G where Eksteen AJP with Zietsman J. and van Resburg J. concurring said:

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“It seems to me, with respect, that in any civil case, as in any criminal case, the onus can ordinarily only be discharged by adducing credible evidence to support the case of the party on whom the onus rests. In a civil case the onus is obviously not as heavy as it is in a criminal case, but nevertheless where the onus rests on the plaintiff as in the present case, and where there are two mutually destructive stories, he can only succeed if he satisfies the Court on a preponderance of probabilities that his version is true and accurate and, therefore acceptable, and that the other version advanced by the defendant is therefore false or mistaken and falls to be rejected. In deciding whether that evidence is true or not the Court will weigh up and test the plaintiff’s allegations against the general probabilities. The estimate of the credibility of a witness will therefore be inextricably bound up with a consideration of the probabilities of the case and, if the balance of probabilities favours the plaintiff, then the Court will accept his version as being probably true. If, however, the probabilities are evenly balanced in the sense that they do not favour the plaintiff’s case any more than they do the defendant’s the plaintiff can only succeed if the Court nevertheless believes him and is satisfied that his evidence is true and that the defendant’s version is false.” 28. With these formidable remarks in mind, I now turn to the evaluation of the evidence in the present case. First, I must ask myself whether this Court is satisfied that the plaintiff’s version is true and therefore acceptable and that the defendant’s version is false.

29.

It must be recalled that the plaintiff did not call any other eyewitnesses except PW 2. It is common cause that PW 2 was in the company of a certain Macdonald who was his passenger. This is the evidence of PW2 himself and that of DW 1 and DW 2. Macdonald was not called as a witness. It is not a requirement of our law

11 that a plaintiff, in order to succeed in his case has to call more than one witness. As a matter of fact, the evidence of a single credible witness has been held to be sufficient to discharge the plaintiff’s onus to prove his allegations on a balance of probabilities. Each case has to be considered on its own merits.

30.

Cooper (supra) at page 425 of his book also referred to in Boitumelo’s case supra, has the following to say regarding the evidence of a single witness in civil proceedings:

“In civil proceedings judgment may be given on the evidence of any single competent and credible witness. There is therefore no statutory impediment to a Court’s relying on the evidence of a single witness. Indeed, the evidence of one witness may in a particular case be more convincing than that of a number of witnesses. The author continues citing the case of R v. Mokoena 1956(3) S.A. 81 at 86 (F) `…… it remains true that given the same apparent quality in the witnesses, the more there are the more reason there is to accept their story. It is not a mere rule of thumb, if there are two or more witnesses to the same facts their version may be checked against each other to see if they have given honest and accurate evidence …… Accordingly a Court will treat the evidence of a single witness with more caution than a number of witnesses who corroborate each other.’”

31.

I respectfully align myself with the sentiments expressed above. However, this is not to say I am oblivious to the possibility of collusion. I wish to reiterate also,

12 that in a civil case once it is satisfied on a balance of probabilities that his evidence is trustworthy the Court may rely upon the evidence of a single witness.

31.

In the present case, I am of the view that the evidence of PW 2 has to be treated with caution firstly because it is evidence of a single witness and secondly that he is intimately involved in this matter and as such stands personally to lose or gain by the effect of the evidence led. According to his evidence and that of the defence, PW 2 had a passenger with him in the person of Macdonald. Plaintiff has not called the said Macdonald who no doubt must have seen what happened. The evidence of Macdonald would presumably have corroborated PW2’s evidence. For reasons best known to the plaintiff, Macdonald was not called and no reasons were advanced as to why he was not called when no doubt he was a crucial eye witness especially in view of the fact that the defendant has throughout, denied liability.

32.

The net result of plaintiff’s failure to call Macdonald is that PW2’s evidence could not be checked against that of his own passenger who was an eye witness to the accident. I, accordingly draw an adverse inference against the plaintiff for its failure to call this eye witness.

33.

Furthermore, the plaintiff in its particulars of claim alleges that the defendant was as a result of the accident, charged with the offence of

13 causing death by dangerous driving. Curiously, no evidence whatsoever was led on the outcome of the alleged charge. One would have expected the plaintiff to have called the investigating officer or the officer who allegedly preferred charges against the defendant as a witness to shed light on the circumstances that led him to conclude that the defendant was to blame for the accident. The evidence of the investigating officer would have been helpful in assisting the Court to reach a just decision in this case. This piece of evidence would have served to corroborate PW 2’s evidence. The importance of such evidence stems from the fact that the defendant’s version was, on the circumstances leading up to the accident diametrically – opposed to that of the plaintiff’s witness.

34.

The plaintiff’s Attorney, Mr. Makuyana sought to argue that the damage to the insured vehicle supported the plaintiff’s version of what happened. With respect, no expert evidence was led on this aspect of the case. Frankly I for one would not read much into the fact that the insured vehicle was damaged on the right rear. There could be so many

explanations as to why that had to be, one of which is that given by the defendant namely, that she applied brakes and swung to the right.

35.

All in all, I must say I found PW 2’s evidence lacking in detail. Lastly but not least, it is revealing that in its particulars of claim at 8.2, the plaintiff makes the following allegation:

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“He (sic) failed to stop behind the insured vehicle which was giving way to oncoming vehicles.” (underling mine) 36. This allegation gives credence to the defendant’s version that the driver of the insured vehicle aborted his manoeuvre to overtake when he was confronted with the presence of an oncoming vehicle.

37.

Turning now to the defendant’s evidence, it was corroborated by that of her witness DW 1 on how the accident occurred. They were not shaken in cross-examination. Mr. Makuyana, learned Counsel for the plaintiff has made heavy weather of DW 1’s evidence under cross-examination that as far, as she could recall, the only action taken by the defendant to avoid the accident was to brake. With respect, it is expecting too much to want the witness to remember or even be aware of each and every step or manoeuvre that was executed by the defendant in that moment of confusion, fright and trauma.

38.

At any rate, this is not a case where it is alleged that the defendant was contributorily negligent. The allegation is that it is the wrongful act of the defendant that caused the accident. Taking the plaintiff’s evidence and juxtaposing it with that of the defendant and her witness, I cannot conclude that the defendant’s evidence is false.

15 39. Having thus analysed the evidence for the plaintiff and that of the defendant, my considered view is that the plaintiff’s evidence as given by PW2 cannot be said to be true and that of the defendant false. I hold therefore, that the plaintiff has in the circumstances, failed to discharge the onus upon it on a balance of probabilities. That being the case, then it is not necessary for me to consider the quantum of damages claimed although I would say without hesitation that the plaintiff’s evidence on quantum remained unchallenged.

40.

In the circumstances and for the foregoing reasons, I find and hold that the plaintiff’s claim in its entirety fails and it is dismissed with costs.

DELIVERED IN OPEN COURT AT LOBATSE THIS 3RD DAY OF APRIL, 2008. ________________________ A.B. TAFA JUDGE
MAKUYANA LEGAL PRACTICE FOR THE PALINTIFF NNOI & CHILUME ATTORNEYS FOR THE DEFENDANT


				
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