IN THE SUPREME COURT OF SWAZILAND
CIVIL APPEAL CASE NO.23/2011
HELD AT MBABANE
In the matter between:
NONHLANHLA MDLULI : APPELLANT
AND
MOTOR VEHICLE ACCIDENT FUND : RESPONDENT
CORAM : EBRAHIM, JA
: FARLAM, JA
: MCB MAPHALALA, JA
HEARD : 14 NOVEMBER AND
: 23 NOVEMBER 2011
DELIVERED : 30 NOVEMBER 2011
FOR APPELLANT : IN PERSON
ON 14 NOVEMBER 2011
AND
ON 23 NOVEMBER 2011
FOR RESPONDENT : MR. S.M. MASUKU
ON 23 NOVEMBER 2011
SUMMARY
Civil appeal – allowed – unchallenged evidence of the appellant’s witness accepted – failure to cross-examine witness will generally result in acceptance of that witness’s account.
EBRAHIM, JA
[1] The appellant (plaintiff in the court a quo) claimed damages for loss of support after her husband was killed in a motor accident. It was necessary, for the Fund to be liable, that the appellant proved that the bus driver was negligent. See s10 of the Motor Vehicle Accident Fund Act 1991. The issue was whether the respondent Fund was liable; the quantum would be determined by negotiation in the event that the respondent was found to be liable. The respondent’s attitude was that the sole cause of the accident was the negligence of the deceased himself. Various particulars of negligence were alleged; essentially, the allegation is that the deceased, who was driving a motor car, executed a U-turn in front of a bus, and died in the ensuing collision.
[2] There was one witness for the appellant on the subject of the accident itself. This was Thoko Nkambule, who had been a passenger on the bus when the accident occurred. She did not give a statement on the day in question; in fact she left the scene because, as she put it, she “did not want to see what was happening.”
[3] The bus driver himself is deceased. The conductor, Nkosingiphile Mndzebele, gave evidence for the respondent. He said that the deceased’s car was stationary on the left hand side when it suddenly entered the road in front of the bus and started to make a U-turn. The bus, which was travelling at a speed he estimated as being around 60km/h, hit the car and the deceased was killed instantly. The speed limit in that area, according to the police witness, Constable Vusi Dludlu, is 80km/h. The deceased’s car sustained damage on its right hand side, on the driver’s door and on the front. The damage to the bus was close to the passenger door and the head light.
[4] It was the evidence of Thoko Nkambule that –
“(a) ‘As the bus was driving out of Mahlanya it drove at a high speed and it drove up an incline and when the bus was driving down on the decline another car got into the road taking the opposite direction and when the bus tried to avoid that car, it came to the side of the car it bumped the car and pushed it into a ditch.’
-
Was the bus still maintaining its high speed or it had decreased the speed?
It was still at high speed my Lord.
Is it correct that from Mahlanya and just before where the collision occurred there is an incline, the bus has to actually drive up some sort of a hill?
That is correct. There is an incline then there is a decline after that.”
[5] This witness also testified under cross-examination that -
“My Lord, I first saw the car when it was joining the road and I thought it had already drove in then I heard the collision.’
‘Am I correct to say that this car was going in the opposite direction of the bus when you saw it encroaching into the road.’
‘It is correct my Lord, that when the car joined the road it was going to the opposite direction.’
‘And it is your testimony that you noticed the point of impact where the two collided?’
‘That is correct.’
There are two lanes on the road. One lane is the one that your bus was going to Malkerns from Mahlanya.’
‘Yes my Lord.’
And the other lane is the one from Vickery to Mahlanya.’
Correct, My Lord.
Where exactly would you say the point if impact was from what you have described.
My Lord the point of impact was on the dirt road on the right hand side. After the accident the bus pushed the car into a ditch.
‘My Lord the point of the point of impact was on the spot where there is dirt road and gate on the right.
‘Your bus is travelling on the left hand side of the road and a car traveling from Vickery travels on the right hand side. Can you again describe to the Court where you say the point of impact was?”
[6] She went on to testify:
“So would I be correct to say that the point of impact according to your version was on the right lane of the bus.’
That is correct my Lord because the bus had already encroached into the other lane.
‘According to your version, was this point of impact on the tarmac or off the tarmac?
‘On the tarmac.” (my underlining)
[7] It is patently apparent, from reading the record of evidence, that the appellant’s witness’s evidence (Thoko Nkambule) on the speed the bus was travelling at, remained unchallenged. Her evidence, furthermore, relating to the direction of the appellant’s husband’s vehicle was also not challenged under cross-examination nor was her evidence on the point of impact of the two vehicles.
[8] There is an abundance of authority which establishes the principle that where the evidence of a witness remains unchallenged that witness’s evidence will as a rule be accepted.
See May; SOUTH AFRICAN CASES AND STATUTES ON EVIDENCE, fourth edition at page 297 and 298:
“WHAT SHOULD BE ASKED
OPPORTUNITY TO EXPLAIN
574. A witness should have put to him in cross-examination facts regarding which it is intended to impeach his credit so as to give him an opportunity of explanation, unless his evidence is so incredible or romancing that it is reasonable to let him leave the box without such questions being put.
BROWNE V DUNN (1894) 6 THE REPORTS 67 (H.L.)
This case, the report of which is not freely available in South Africa, is important, and therefore extracts of it are given here. It was an action for libel in which certain witnesses were not cross-examined on a material point. Held that the jury could not be asked to disbelieve them on that point.
LORD HERSCHELL L.C.: ‘It seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that that imputation is intended to be made, and not to…pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do…to argue that he is a witness unworthy of credit…. If you intend to impeach a witness you are bound, while he is in the box, to give him an opportunity of making any explanation which is open to him… that is not only a rule of professional practice… but is essential to fair play and fair dealing with witnesses… A cross-examination of a witness which errs in the direction of excess may be far more fair to him than to leave without cross-examination, and afterwards to suggest that he is not a witness of truth…upon a point on which it is not otherwise perfectly clear that he has had full notice beforehand that there is an intention to impeach [his] credibility…. I do not deny…that there are cases in which that notice has been so distinctly and unmistakably given…[or] is so manifest that it is not necessary to waste time in putting questions…upon it.’
LORD HALSBURY: ‘Nothing would be more absolutely unjust than not to cross-examine witnesses upon evidence which they have given, so as to give them notice, and to give them an opportunity of explanation, and an opportunity very often to defend their own character, and…[then] to ask the jury…to disbelieve what they have said.’
LORD MORRIS: ‘I am clearly of opinion that the witnesses, having given their testimony, and not having been cross-examined, having deposed to a state of facts which is quite reconcilable with the rest of the case, it was impossible for the plaintiff to ask any legal tribunal to say that those witnesses are not to be credited. But I can quite understand a case in which a story told by a witness may have been of so incredible and romancing a character that the most effective cross-examination would be to ask him to leave the box.’
DUTY TO INDICATE DEFENCE
575. ‘A party should put to each of his opponent’s witnesses in turn so much of his case as concerns that particular witness…. If he asks no questions he will…generally be taken to accept the witness’s account….”
[9] See also PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA AND OTHERS V SOUTH AFRICAN RUGBY FOOTBALL UNION AND OTHERS 2000(1) S.A. 1 (CC) at 36H to 38A (paragraphs 60 to 64):
“[60]The implication of this argument was the President had ignored the advice by Professor Katz, had deliberately perjured himself in giving evidence that he accepted and acted on such advice, that the reasons given by him in his letter of 3 October 1997 for his decision to appoint the commission were false, and that he had in fact misled his legal representatives and the court in this regard. That is a grave allegation to make against any witness. It is particularly serious if made against the President of the country.
[61] The institution of cross-examination not only constitutes a right, it also imposes certain obligations. As a general rule it is essential, when it is intended to suggest that a witness is not speaking the truth on a particular point, to direct the witness’s attention to the fact by questions put in cross-examination showing that the imputation is intended to be made and to afford the witness an opportunity, while still in the witness box, of giving any explanation open to the witness and of defending his or her character. If a point in dispute is left unchallenged in cross-examination, the party calling the witness is entitled to assume that the unchallenged witness’s testimony is accepted as correct. This rule was enunciated by the House of Lords in BROWNE V DUNN and has been adopted and consistently followed by our courts.
[62] The rule in BROWNE V DUNN is not merely one of professional practice but ‘is essential to fair play and fair dealing with witnesses.’ It is still current in England and has been adopted and followed in substantially the same form in the Commonwealth jurisdictions.
[63] The precise nature of the imputation should be made clear to the witness so that it can be met and destroyed, particularly where the imputation relies upon inferences to be drawn from other evidence in the proceedings. It should be made clear not only that the evidence is to be challenged but also how it is to be challenged. This is so because the witness must be given an opportunity to deny the challenge, to call corroborative evidence, to qualify the evidence given by the witness or others and to explain contradictions on which reliance is to be placed.
[64] The rule is of course not an inflexible one. Where it is quite clear that prior notice has been given to the witness that his or her honesty is being impeached or such intention is otherwise manifest, it is not necessary to cross-examine on the point, or where ‘a story told by a witness may have been of so incredible and romancing a nature that the most effective cross-examination would be to ask him to leave the box’.”
[10] The respondent’s case placed reliance on the evidence of two witnesses, the police investigating officer and the bus conductor who was on duty on the bus which was involved in the accident.
[11] The evidence of the investigating officer who drew up the plan is of little evidential value. It is not in dispute that he drew up the plan, in the main, on what he was told by the driver of the bus. The driver was clearly not an independent witness and regrettably he was not able to give evidence on this matter since he is deceased. The reason for his demise is not apparent from the record. Whatever he told the investigating officer was bound to exonerate himself. Had the investigating officer enquired from some of the other passengers including Thoko Nkambule it seems likely that he would have got a different picture. Equally the evidence of the bus conductor is of little help to the case of the respondent. He is clearly a witness with an interest to serve and in any event is faced with the unchallenged evidence of the appellant’s witness. It is my view, that this case must be resolved on the unchallenged evidence of the appellant’s witness Thoko Nkambule.
[12] I am satisfied, therefore that this appeal must succeed on the basis of the appellant’s case.
[13] Accordingly, the appeal is allowed with costs. The driver of the bus is found to have been negligent and is held to have been responsible for causing the accident which led to the demise of the deceased in this case.
[14] I direct that this judgment be brought to the attention of the Law Society. This matter was first “called” on the first day of the commencement of the session on Monday 1 November 2011. No counsel for either the appellant or the respondent was present. The appellant, herself, was present. She was advised that the matter would be heard on the 8 November 2011 as reflected on the roll. She attended court on that day and sought a postponement.
[15] By this stage a set of supplementary heads of argument were filed in her name. The skill with which these heads were prepared leaves us in no doubt that these had been prepared by her attorney, Mr. Simelane. I would point out at this stage that the appellant’s attorney had in fact filed heads on behalf of the appellant with the Registrar of this Court in his name on 18 October 2011. What is also of interest is that the respondent’s attorneys Howe Masuku Nsibande had responded by filing their “heads” on 28 October 2011. At the appellant’s request a further postponement was granted to the 14 November 2011.
[16] The appellant duly attended and sought to present her case on her own behalf. She brought to the attention of this Court certain errors contained in the “heads” that had been filed on her behalf and by herself. She relied on these heads in support of her case.
[17] What is of great concern, however, is that she advised us that her attorney was not present to argue her case on her behalf and had been “threatened” not to do so and that this had been communicated to him by “letters”. Subsequently, she corrected, this, by indicating to the registrar that her attorney had been shown certain newspaper cuttings to this effect.
[18] If this, is in fact, the position, I am appalled that an unsuspecting litigant has fallen victim of such machinations. I would be grateful to the Law Society if they would investigate this matter and take whatever appropriate action they consider necessary.
[19] I considered it important that the work of the Court proceeded in the public interest and in the interest of the litigants and should not be hampered without good reason. I felt the deepest sympathy for the appellant in this case for the awkward and embarrassing situation in which she found herself, through no fault of her own. She is a widow and has sought redress for her plight since 29 October 2007 when she sought relief from the courts in this country. Her husband had been killed following a motor accident on 28 April 2006. To the credit of this country The Motor Vehicle Accidents Fund provides for relief for such victims in the High Court. She was unsuccessful in seeking compensation in terms of the provisions of this Fund and brought this matter on appeal and now has been successful. By a stroke of kind providence, she managed to do so even though she could not be represented by her attorney when she most needed him in the Supreme Court.
[20] For this Court to have postponed this matter to the next session which is to be held in May 2012 would have been in my view be unconscionable. We therefore had no hesitation in coming to her assistance in allowing her to argue the appeal herself.
[21] On the 23 November 2011 the matter was “re-enrolled” and the Respondent’s attorney argued his case. I am concerned, however that Mr. Masuku on whose application this matter was “re-enrolled” stated, in his Notice of Motion papers that “by consent of both parties application will be made ……[for]…... (1) Reinstatement of the matter ………………………..”. Since we were informed that the application was being made with the consent of both parties we granted the indulgence sought and the matter was set down for a further hearing on 23 November.
[22] We subsequently received an opposing affidavit filed by the Appellant, personally, in which she states:
“6.1 My attorney did convey my instructions to Mr. Masuku and I repeat that I have not given him (Mr. Mbuso Simelane) any instructions to reinstate or re-argue the matter. Mr. Simelane advised me that he has never given any impression to Mr. Masuku that the matter could be reinstated by consent.
6.2 May I further clarify that it would be wrong to accede to the Applicant’s application of REINSTATEMENT because the matter was not removed or struck off but was argued.”
[23] We are concerned that this Court may have been misled by the contents of Mr. Masuku’s “Notice of Motion” papers. I would therefore ask the Law Society to investigate the veracity of what Mr. Masuku has indicated to this Court in this regard.
[24] Be that as it may we permitted him to put his client’s case before reaching our conclusion in this matter.
_________________________
A.M. EBRAHIM
JUSTICE OF APPEAL
I agree : _________________________
I.G. FARLAM
JUSTICE OF APPEAL
I agree : _________________________
M.C.B. MAPHALALA
JUSTICE OF APPEAL
