IN
THE HIGH COURT OF SWAZILAND
CIV.
CASE No.495/85
In
the matter between:
GETTY
DLAMINI Plaintiff
and
SWAZILAND
ROYAL INSURANCE Defendant
CORAM
: HANNAH,
C.J.
FOR
THE PLAINTIFF : MR.
SHILUBANE
FOR
THE DEFENDANT : MR.
CURRIE
JUDGMENT
(19/5/89)
Hannah,
CJ.
In
this action the plaintiff sues for loss of support for herself and
her seven children following the death of her husband, Jabulane
Dlamini, in a road traffic accident on 31st August, 1983. Quantum has
been agreed at E53,581 and the only-issue is that of liability.
Mr.
Currie, for the defendant, accepts that the only questions which
arise for determination are whether the plaintiff has established
that the driver of the insured vehicle, Jeremiah Dlamini, was
negligent and, if she has, whether the deceased was guilty of
contributory negligence. The evidence on these two matters falls
within a very narrow compass.
On
31st August, 1983 the deceased and Enoch Mndzebele were being driven
home from work in a van and at a certain stage in their journey the
van stopped and they both alighted in order
2
to
buy vegetables in a market at the side of the road. After purchasing
vegetables it was their intention to buy some mealie meal from a shop
on the other side of the road and they asked the van driver to drive
to that shop and wait for them.
Mndzebele
said that on leaving the market he saw a truck which had parked on
the road behind them.
They
walked in front of this truck and then ran across the road. He
reached the other side safely but as he did so he heard a bang and
then discovered that the deceased, who was behind him, had been
struck by a vehicle. Mndzebele said that the road was straight at the
point where they crossed and it was possible to see quite some
distance both ways. He said that before crossing the road they had
looked to see whether it was safe and the road was clear.
The
driver of the vehicle which collided with the deceased was Jeremiah
Dlamini, a corporal in the Prison Department who was driving a
Government van. He was called by the defendant and his account of
events was as follows. At about 6 p.m. on 31st August, 1983 he was
driving along the Bhunya to Manzini road in the direction of Manzini.
It was dark and he had his headlights on but they were dipped because
he was driving behind a lorry. The lorry driver indicated his
intention to pull into his left side and pulled off the road. Dlamini
continued past the lorry as it came to a halt and then, before he had
completely passed it, someone ran out into his path from the front of
the lorry. He was unable to swerve much to his left because of the
lorry and was unable to avoid colliding with the running person. He
said that the right front of his van struck the pedestrian.
Constable
Mkhonta was one of the police officers who attended the scene of the
accident and it was quite apparent from his evidence that apart from
a sketch plan which he drew at the time he had little recollection of
events. This is quite understandable as almost six years have now
elapsed since the accident. The sketch plan gives the road width as
6.4 metres and
3
puts
the point of impact as 60 cms from the centre of the road on what I
shall call the shop side as opposed to the market side. The constable
explained that he determined the point of impact from broken glass
and mud which he found in the road but he readily conceded in
cross-examination that the debris was scattered over quite a wide
area and his evidence of the point of impact must be regarded as an
approximation. The most which can be said is that it was in the
vicinity of the centre of the road.
From
the foregoing summary of the evidence it may be seen that there is
little dispute on the facts.
Mndzebele
did not refer to the truck pulling in to the side of the road
immediately before he and the deceased started to cross but there is
no reason to doubt the evidence of Jeremiah Dlamini that that is what
actually happened. Mndzebele has probably forgotten the precise
interaction of one event with another and his evidence that the road
was clear when they started to cross can only really be explained on
the basis that Jeremiah Dlamini's van must have been obscured from
sight by the lorry which was drawing into the side of the road. I do
not consider that there is any ground for inferring that Dlamini must
have been driving at an excessive speed, as Mr. Shilubane submitted
in his final speech, and, as Mr. Currie pointed out, speed has not
been pleaded as a particular of the alleged negligence.
I
can also find no merit in Mr. Shilubane's submission that Dlamini
must have been overtaking the lorry at a time when it was unsafe to
do so. This also has not been pleaded and in any event the only
evidence is that Dlamini was passing a lorry which had pulled off the
road and in doing so he was driving quite normally.
In
my judgment the evidence of Jeremiah Dlamini dovetails quite neatly
with that of Mndzebele. The two pedestrians saw the lorry coming to a
halt, did not see the van which was travelling behind the lorry,
thought it was safe to
4
cross
and dashed across the road. The unfortunate deceased lagged slightly
behind Mndzebele and ran straight into the path of Dlamini's van.
There was no avoiding action which Dlamini could reasonably have
taken. the fact that he did not see the leading pedestrian is not
altogether surprising in view of the fact that it was dark and he was
driving on dipped headlights and Mndzebele was running.
Of
course one sympathises with the plight of the plaintiff who lost her
husband in this accident but in order for compensation to be awarded
she must establish that his death was as a result of the negligence
of the insured driver. In my judgment the evidence shows no
negligence on his part but, on the contrary, shows that it was the
deceased who was negligent in the manner in which he crossed the
road. He failed to ascertain whether the road was clear before
running out from the front of the lorry.
For
the foregoing reasons the plaintiff's claim is dismissed and judgment
is entered for the defendant with costs.
N.R.
Hannah
CHIEF
JUSTICE
