SWAZILAND
HIGH COURT
NDZABANDZABA
John
Plaintiff
Vs
MOTOR
VEHICLE ACCIDENT FUND
Defendant
Civ.
Case No. 2686/1999
Coram Sapire,
CJ
For
Plaintiff Mr. P.R. Dunseith
For
Defendant Mr. H. Currie
JUDGMENT
(14/10/2002)
This
is an action in which the plaintiff seeks compensation for injuries
suffered when he was run down on the 26th April 1997 at or near
Mahlanya in the Manzini District. A pre-trial conference had been
held at which it was agreed that the matter would proceed to trial at
this stage on issue of liability only.
It
took some 2 years for the matter to come to court. The blame for this
is not unilateral.
The
issue for determination in this case is simply whether or not the
driver of the insured vehicle was negligent giving rise to liability
of the Motor Vehicle Accident Fund for the damages suffered by the
plaintiff. It is the plaintiff's case that
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he
went to Mahlanya to assist the driver of one of his combis which had
broken down and become immobile at a certain point on the right side
of the road. The plaintiff's case is that at about 3 or 4 o'clock in
the morning he drove to this spot and parked his car at the side of
the road facing Mbabane having come from Manzini, well off the tarmac
surface. He alighted from his car in order to cross the road to the
combi that was in a ditch on the other side of the road at the time.
A vehicle proceeding from Mahlanya direction crossed the solid white
line on to the wrong side of the road and knocked down the plaintiff
as he was crossing the road after also colliding with his motor
vehicle. The plaintiff was injured and taken to hospital.
The
defendant's version is that the plaintiff did not park his car on the
left hand side of the road as one faces towards Mahlanya but in fact
parked it on the right-hand side of the tarmac facing Mbabane on his
wrong side of the road. These two contending versions were supported
by evidence on either side.
The
plaintiff called Kenneth Mavimbela who testified that he was the
driver of the kombi a Toyota Hiace registration numbers SD 537 WM. At
1 o'clock in the morning after he had passed Mahlanya he crossed the
river there and was on the uphill. He had a collision with a cow on
the road and although neither the driver nor the animal was injured
to the extent of incapacitation, there was a dent in the motor
vehicle. A further mishap occurred to him in that he apparently
forgot to secure his brake and the vehicle rolled into a ditch on the
side of the road.
From
this predicament he had to be rescued and telephoned the plaintiff,
his employer, to come and assist him. Having telephoned the employer
he returned to the combi and sat there and waited for his employer.
The plaintiff arrived on the scene at 4 a.m. The witness saw a
vehicle approaching from Manzini travelling towards Mbabane and when
he noticed that the vehicle reduced speed he got out of the kombi to
ascertain whether the vehicle belonged to his employer or not. It was
indeed the plaintiff's vehicle. It was a Nissan Skyline gold in
colour which stopped and parked on the left hand side of the road as
one faces Mahlanya direction. The motor vehicle, this witness
attests, was off the tarmac. The plaintiff, he saw emerging from the
vehicle as he wanted to cross the road to the side where the witness,
Kenneth, was standing. The Nissan Skyline had its headlights still
burning.
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Whilst
Ndzabandzaba was still standing on the side of the road intending to
cross the road to where the witness was, two cars approached from the
Mahlanya direction going towards Manzini. The witness described how
at that point of the road there are two lanes going towards Manzini.
There is a solid line and then there is one lane for traffic
travelling towards Mahlanya. The witness then described how these two
cars coming from the Mahlanya direction approached the scene where
the accident took place. Although two cars were initially mentioned,
it is clear that there was a third car. Two of the cars were
occupying the two lanes on the side of the road for traffic
travelling towards Manzini. A third motor vehicle attempted to
overtake the other two vehicles going towards Manzini. The vehicle
was travelling at a high speed. In order to overtake the two vehicles
it had to go on to the incorrect side of the road crossing the solid
white line. The third motor vehicle overtaking the other two motor
vehicles travelling towards Manzini was not able to regain its
correct side of the road and he left the road hitting the plaintiff
and his motor vehicle. According to this witness the vehicle hit the
plaintiff's vehicle first and then pushed the motor vehicle on to the
plaintiff and hit the plaintiff.
At
this point the witness said that the plaintiff was pushed into a
ditch but it does seem that there is an error in this evidence and at
a later stage the witness indicated that the plaintiff was not pushed
into a ditch but came to rest on the tarmac. The witness was quite
clear that the plaintiff was hit when he was standing on the road and
waiting to cross. The on-coming vehicle, which apparently is the
insured vehicle, then came to rest on its left hand side of the road
after it had collided with the plaintiff and his vehicle.
One
of the vehicles that was being overtaken stopped and turned out to be
a taxi based in Manzini. The people in the taxi assisted and took the
plaintiff from the scene of the accident. The plaintiff at this stage
appeared to be comatose. Mavimbela saw the plaintiff taken to the
hospital and then returned to the scene of the accident the same
morning. By the time he reached the place of the accident it was
already after daybreak. When he returned he found the plaintiff motor
vehicle that is the Skyline Nissan on the right hand side of the road
facing Mahlanya. Apparently it had
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been
removed from where it was parked by the plaintiff. There is evidence
that the keys of the car were still in the keyhole.
This
witness was cross-examined and apart from the one contradiction,
assuming it is such, to which I have already referred, his version of
the events remained unshaken. In particular the witness strictly
adhered to the version he had given that the plaintiff had stopped
his vehicle off the road on the left hand side. This is important
having regard to the nature of the evidence later given by the
defendant's witnesses.
The
plaintiff then called the witness Jabulani Dludlu who was the taxi
driver referred to by the first witness. He arrived on the scene
immediately after the accident had taken place and found that a
person had been knocked down by a motor vehicle on the road. He had
been driving from Lobamba towards Manzini using the old road. He had
a passenger with him but apparently this passenger has passed away
and he is no longer available as a witness.
Dludlu
describes that after he had passed Mahlanya and crossed the river
there are two lanes and one lane says "keep left" and the
other "pass right". Apparently there are traffic humps,
over which he drove. In front of him was another vehicle that was
driving slowly on the left hand side. This witness then proceeded to
overtake that vehicle moving into the fast lane. While he was still
in the process of overtaking that motor vehicle and were in the fast
lane another motor vehicle approached from behind intending to
overtake the vehicle driven by this witness. It went onto the far
side of the road travelling towards Manzini and it is clear that the
third motor vehicle then went over the white line and passed onto the
incorrect side of the road. The witness then went on to describe how
after overtaking the motor vehicle on the slow lane he returned to
the slow lane. The other vehicle, however which was overtaking him
continued on the incorrect side of the road for a long time after it
had passed. Then on his arrival at the scene of the accident he found
that a pedestrian, who later turned out to be the plaintiff had been
run down. He was lying on the tarmac. The Skyline motor vehicle was
still standing off the road on the left hand side as one travels from
Manzini to Mbabane. The headlights were still on. This witness also
describes how he took the plaintiff first to his homestead and then
to hospital. The witness denies emphatically that there was any
vehicle on the right
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hand
side of the road driving towards Manzini standing with its lights on.
This of course contradicts with what was later said by defendant
witnesses. This witness too was cross-examined but emerged from
cross-examination largely unscathed.
The
plaintiff himself testified and described the events much as the same
as his witnesses. He, as a result of his injuries, was unconscious
immediately after the accident and remained so for some five days. He
does appear to have retrograde amnesia that makes his evidence as to
the accident somewhat less reliable than that of his witnesses. They
however do support him in contradicting the version given by the
defendant witnesses.
The
defendant called three witnesses in support of its case. None of them
including the constable was impressive. Much attention was given to
placing the plaintiff's motor vehicle on the wrong side of the road.
Having regard to the fact that the plaintiff's vehicle was standing,
according to the plaintiff, on the left hand side of the road with
the ignition keys available, there is no reason why this vehicle
could not have been moved after the plaintiff had been removed from
the scene of the accident.
The
two witnesses David Smith and Themba Dube who were driver and
passenger in the insured vehicle gave a confused story as to how the
accident occurred. They claim that they were travelling towards
Manzini when they came upon a vehicle some distance away apparently
on their side of the road but facing in the wrong direction and with
its lights on. This they claim was the plaintiff's vehicle and they
say that the presence of this vehicle on the road was the basic cause
of the accident. They talk of vehicles approaching from the other
direction that made it impossible for the insured vehicle to pass the
plaintiff's vehicle safely and they had to swerve to the right in
order to avoid a collision. When one bears in mind that the damage to
the plaintiff's vehicle was on the right hand side it is equally
consistent with a collision on the left hand side of the road by the
insured vehicle travelling as described by the witnesses overtaking
two cars. The defendant witnesses, Smith and Dube, had apparently
been spending the night and early hours of the morning drinking at
the Why Not, a well-known watering hole somewhere up the road. I am
left with an impression that both of them had imbibed at least as
much as they told me but probably more. There is a distinct
probability that the driver was to some extent
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intoxicated.
Drivers in that condition may well have attempted the triple overtake
described by the plaintiff's witnesses.
As
was pointed out in argument the accounts given by Smith and Dube
appear to be a fabrication, designed to exculpate the driver from the
consequences of driving after many hours of carousing at the Why Not.
One remarkable feature of "corroboration" is that they both
claim to have been able to identify an oncoming vehicle with its
lights on, from the sign painted on the front of the vehicle. It is
common experience that if two vehicles approach each other like that
in the dark with their headlights on as has been described by the
parties it would be impossible for anyone to identify the vehicle by
a logo on the body in this manner. That both defendant's witnesses
say this, is an unsatisfactory aspect of the evidence, which together
with less striking but equally unsatisfactory aspects gives rise to a
strong impression of fabrication. The witnesses called by the
plaintiff did not see this "oncoming" vehicle. The taxi
driver was an independent observer whose evidence according as it
does with that of Mavimbela is preferable to that of the Defendant's
witnesses especially in regard to the place where the plaintiff
parked his vehicle, and the approach of the three vehicles towards
the scene of the accident. I entertain a strong suspicion that the
Defendant's witnesses moved plaintiff's vehicle, after the plaintiff
was taken from the scene and before the arrival of the police. It is
not necessary to make a finding in this respect.
The
defendant's version in itself and even accepted as truthful, which I
cannot do failed to explain why instead of proceeding with the
obvious danger ahead it did not slow down to enable the driver to
avoid the danger. The driver's explanation of his dilemma is not
impressive or convincing, and reveals, even if it were to be
accepted, negligence on his part, which is the cause of the accident.
On
a fair consideration of the evidence on both sides the probabilities
are heavily weighted against the defendant and in favour of the
plaintiff. The driver of the insured vehicle was solely to blame for
the accident.
SAPIRE,
CJ
