HIGH COURT OF SWAZILAND
Case No. 2005/2002
the Plaintiff MR. P. DUNSEITH
the Defendant MR. H. CURRIE
matter relates to a collision which took place on the 22nd March
2001, at Sikhuleni area between the Plaintiffs bus and a truck
belonging to the Defendant. The court is called upon to find out who
was liable in the circumstances.
Plaintiff, is an adult Swazi married woman of Matsapha, duly assisted
by her husband in so far as need be in these proceedings in his
capacity as a
Defendant is Grinaker L.
Earthworks (Swaziland), a company duly registered with limited
liability according to the laws of Swaziland and having its principal
place of business at Hluti area, district, Swaziland.
plaintiff alleges in her Particulars of Claim that on or about the
22nd March 2001, and at Sikhuleni area, Plaintiff's bus a MAN (1995
model) white and blue in colour bearing registration SD 801 VM was
involved in a road traffic accident, whereby it slipped and
accident aforesaid was caused solely by the negligence of the
whose full and further particulars are to the Plaintiff unknown, who
were at all material times acting during the course and scope of
their employment by the Defendant, more particularly in that:
obstructed the road without giving reasonable warning to road users;
engaged in road works without giving reasonable warning to road
applied water to the road surface rendering such surface slippery,
without giving reasonable warning to road users;
driver of the Defendant's diesel truck moved unto its wrong side of
the road without prior warning, and obstructed the Plaintiff's
vehicle as it was about to overtake;
caused the accident when by the exercise of reasonable care it could
have been avoided.
Plaintiff alleges that at the time of the accident aforesaid, the bus
was making an average income of E1, 000-00 (one thousand emalangeni)
per day and the bus was cut of business from the 22nd March 2001,
until the 25th October 2001.
a result of the accident the Plaintiff suffered damages in the sum of
E244, 000-00 for which she holds the Defendant vicariously liable.
Notwithstanding due demand having been made, the Defendant refused
and or fails to pay to the Plaintiff the said sum of E244, 000-00.
The Plaintiff sues for the said amount with interest at the rate of
9% per annum and costs of suit.
Defendant in its plea to the Plaintiff's amended Particulars of Claim
denies that the accident was caused solely by the negligence of the
Defendant's employees in any of the said respects as alleged by the
Plaintiff or at all. The Defendant denies that the road was
obstructed without giving reasonable warning to road users and states
that adequate warning signs were erected, clearly visible to road
users indicating that the road construction was taking place.
Defendant admits that it applied water to the road surface of the
deviation road but states that this was done on a regular basis to
prevent dust so that visibility would not be adversely affected for
road users and to keep the road surface firm. Such watering on a
regular basis was well known to the driver of the Plaintiff's bus and
that the said driver had been warned on previous occasions not to
travel at an excessive speed on the said deviation. The Defendant
further denies that the surface of the said deviation was rendered
abnormally slippery for road users driving with due care and
attention, and at a reasonable speed having regard to the deviation
in question. The Defendant further alleges that the driver of
Plaintiff's motor vehicle should not have attempted to overtake the
Defendant's diesel truck.
the Defendant contends that if found that there was negligence on the
part of its employees, and that as such negligence was a cause of the
accident in question, the Defendant pleads that the said Joe
Ginindza, acting in the course and scope of his employment as
aforesaid, was also negligent so that the provisions of the
Apportionment of Damages Act would apply.
said Joe Ginindza was negligent in one or more of the following
travelled at a speed which in the circumstances excessive;
failed to pay attention to the damp state of the road at the relevant
failed to heed the condition of the said road at the relevant time
well knowing that it had been watered to harden it and to settle the
dust on it;
failed to keep proper control over his vehicle in negotiating the
attempted to overtake Defendant's diesel truck when he knew, or
should have known, that it was unsafe to do so having regard to the
width and condition of the deviation, and
failed to avoid the accident when by the exercise of due care he
could and should have done so".
the Defendant denies that the Plaintiff had suffered damages in the
said sum of E244, 000-00 or in any sum whatsoever and further denies
that the Defendant is vicariously liable, or liable on any basis
whatsoever, for the payment of any sum of damages to the Plaintiff.
evidence led for and against the action.
the matter commenced Mr. Dunseith informed the court that the parties
have agreed that the matter will proceed to prove liability and the
question of the quotum of damages was left in abeyance.
first witness called for the Plaintiff was 1570 Sergeant
Ndlangamandla who was the head of the Traffic Section at Lavumisa
Police Station at the relevant time. On the 22nd March 2001, he
received a report of an accident which had occurred at an area called
Esikhuleni. He proceeded to the scene of the accident. The officer
described what he observed at the scene in great detail. The offshort
of his; evidence is that when he got to the scene of the accident he
found a bus bearing registration SD 801 VM had overturned. At the
scene the road surface was wet and slippery as the soil in that area
is like clay. On investigating further he established that a truck
was involved in a collision with the bus. When he came to the scene
the truck was parked about 250metres away from the scene of the
accident. He interviewed both the driver of the bus and that of the
Grinaker truck. He recorded a statement from the driver of the bus
and one officer Constable Sikhondze recorded a statement from the
driver of the truck. The witness further described the geography of
the road that where the accident took place it was a deviation road
from the Hluti/Lavumisa road. From the main road to the deviation the
road it is uphill for a little distance and then turns to the left.
There was also a corner from the right and from there the road is
clear. Thereafter the road goes a little bit sloppy going downwards.
There were bus stops
the road. The witness then went further to comment on the pictures of
the scene taken. These pictures ran from exhibits "A" to
witness was cross-examined at some length by Mr. Currie for the
second witness for the Plaintiff was one PW2 Sibusiso Mahlalela. He
was the conductor on the day in question on the bus called
"Kweshamfana Bus Service" the bus which was involved in an
accident with the Grinaker truck. He told the court that the bus
would travel on that road in the morning and in the afternoon. The
bus has been travelling in this deviation road for a week. He also
described the geography of the road in similar terms as the officer
PW1 Ndlangamandla. He said on the day of the accident the bus did not
stop at Esikhuleni bus stop. There were some passengers they picked
up at Themba bus stop. As they approached they saw a yellow Grinaker
truck. The truck was watering the road. The driver of the truck tried
to avoid the bus but it was slippery and the bus was also slipping
from side to side and the driver could not control it. The yellow
truck was in the middle of the road. The witness told the court that
the road surface was wet and as the soil in that area was like clay
it was slippery.
were no warning signs towards where the accident took place. There
were no signs warning that the road was wet. When they first saw the
truck they were about 30 metres away. He could not estimate the speed
of the bus. He told the court that the bus driver applied the brakes
but the bus went on because the road was slippery. The truck tried to
move to the right but it was also slippery. The truck ended up
stopping on the right side of the road. It was not straight on the
road but it almost occupied three quarters of the road. As the bus
driver tried to
the bus it hit the back of the road and then it overturned. This
witness told the court that it is not true that the bus was
travelling at an excessive speed. According to his estimation the bus
was travelling at 30km/h.
witness was also cross-examined at length by counsel for the
third witness called on behalf of the Plaintiff was one PW3 Joseph
Ginindza who was the driver of the bus on the day in question. He
great length the
of events leading to the accident involving his bus and the Grinaker
truck. He told the court that the accident took place at a place
called Ekukhanyeni. From the incline he stopped to wait for a child
who wanted to board the bus. There were some corners in the vicinity.
When he started to travel down the slope he was travelling at 35km/h,
The bus was engaged on gear no.2. It was not true that he was
travelling at an excessive speed. The road conditions did not allow
one to travel fast as it was slippery after being watered. He told
the court that he could not have been travelling fast because he was
carrying about 20+ people on board and had to negotiate two sharp
corners in that area.
he got to the sloppy place the road was wet and the bus began to
slide from one side to the other. In front of him he saw a yellow
truck. He saw it when he was near the truck that it was sprinkling
water on the road surface. He tried to control the bus so that it
does not go to the other side. But the road surface was slippery such
that the wheels of his bus swerved to the right. The truck was moving
and he followed it. He saw that the truck was moving in a zig-zag
fashion across the road. He tried to brake but it was so slippery
that the bus merely slid from one side to the other. Then he saw the
bus being pulled away. The soil at
edge of the road gave way and the bus capsized. At that time the
brakes of his bus had locked. Then the truck came to a stop and had
blocked his way. It was on the right side of the road where it was
blocking his way. This witness told the court that if the road was
not slippery he would have controlled the bus. He further told the
court that there were no warning signs warning road users that the
road was slippery save for one sign which directed road users to take
a certain turn.
the bus driver was cross-examined at great length by counsel for the
the Plaintiff closed her case. Mr. Currie then called DW1 Bruce
Hagemann an employee of Grinaker. Mr. Hagemann at the time of the
accident was a General Earthworking Foreman in charge of the
construction of the road between Hluti and Lavumisa. He told the
court that when the accident took place between the bus and the
Grinaker truck he was about 600 to 800metres from the road. He knew
this bus in that he had seen it three (3) days prior to the day of
the accident. He had occasion to warn the bus driver of the said bus
for speeding in
strip of the road.
told the court that construction workers on site had waved him down
with red flags but the bus driver would on these occasions drive even
faster in a 40km/h zone. On the day in question he witnessed the
accident. He then together with his workers proceeded to the scene to
render assistance to the passengers of the bus which had overturned.
The witness went further to describe to the court the process of
grading the road. This witness also commented on the photographs
exhibited before court.
witness was cross-examined at length by Mr. Dunseith for the
Defendant then called DW2 Thuthukani Canawe. He was also employed by
the Defendant's company. He was the driver of the yellow Grinaker
truck. He was driving the diesel truck which serviced machinery in
the construction of the road by Defendant company. He drove on the
deviation road when he saw ahead of him another truck belonging to
Grinaker and that this truck was watering the road. When he got to
the road it was wet. As he entered the deviation road it was slippery
due to the watering which had occurred earlier on. He was travelling
at about 20 to 30km/h. He applied his brakes but his truck slipped
and he left his brakes. He applied his hand brake but the truck
slipped to the right side of the road. It then stopped.
his truck was stationary he saw the bus coming towards where his
truck was. The bus was travelling at a high speed and he could
estimate its speed to be 80km/h. The bus was also experiencing the
same problems as his truck and was slipping from side to side until
he could not see it anymore. It had capsized. The witness told the
court that it was not true that his truck was in the middle of the
road. There was ample space on the right of the stationary truck. If
the bus was travelling at a normal speed it would have easily passed
on the right side of the truck without any incident. This witness
further told the court that after the bus capsized he heard DW1 Mr.
Hagemann saying to the bus driver that he (Hagemann) had told him
(bus driver) the previous day that he should not drive at such a high
speed in that area. He told the court that they have been using the
deviation road for about three (3) weeks and it was not true what the
bus driver told the court that they have been using it for three (3)
witness was also cross-examined at great length by Mr. Dunseith for
Defendant called its third and last witness DW3 Andrew Eden who was
the Site Engineer at the material time. He told the court that he
went to the scene of the accident after the event and he was in the
company of the Project Manager one Trevor Groebler. He told the court
that the construction of the road had been going on for three months.
There were various signs on the road. There were signs showing that
the speed limit in that stretch of the road was 40km/h, "no
overtaking", sign, "loose gravel" sign, and "tipper
truck" sign. All these signs were on the construction site at
appropriate sections of the deviation road. There was, however no
signs that the road was being watered. The witness also made comments
on the photographs which had been exhibited.
was also cross-examined by Mr. Dunseith. Thereafter the Defendant
closed its case. At that stage Mr. Dunseith applied to lead a further
witness in rebuttal. The purpose of this was to place the bus permit
as part of the Plaintiff's case. Mr. Currie for the Defendant
consented to this evidence. The Plaintiff was called to give
evidence. She told the court that she was the owner of the bus. She
presented the bus permit which was entered as exhibit "F".
testified that the bus left Lavumisa at 7.00am
morning to Manzini. It returned to Lavumisa from Manzini at 1.30pm.
The bus was then kept at Lavumisa Police station overnight and the
police kept the keys for safe keeping.
the close of evidence the court entertained submissions by counsel.
The Plaintiffs submissions.
Dunseith argued at great length in this matter. The first issue he
raised is that the evidence of Mr. Hagemann cannot be the truth that
it was the Plaintiff bus which he had flagged down previously for
speeding. He was mistaken as to which bus because evidence before
court is that Plaintiff bus passed the deviation road at 7.00am from
Lavumisa to Manzini and would come back in the afternoon. Therefore,
the suggestion that Plaintiff bus was travelling at an excessive
speed is suspect in view of the fact that Mr. Hagemann may well have
been referring to another bus. Furthermore, on this point Mr.
Dunseith contended that the versions of Mr.
and the truck driver are materially different as to how the former
administered the reprimand on the bus driver thus making it more
it is contended on behalf of the Plaintiff that she has established
that the road in question was hazardous on the day in question after
being watered by the Defendant's truck. The road surface was
dangerously slippery to the extent that it was a hazard. The
Plaintiffs evidence in this regard is to some extent supported by the
evidence of the Defendant's own witnesses. The evidence of the truck
driver is in point in this regard.
it is contended for the Plaintiff that it is common cause that the
Defendant did not give warning to road users that they have rendered
the road a hazard. Once the Plaintiff has established that the road
had been rendered a hazard and that the Defendant has not warned road
users of the hazard a prima facie case is made out. The burden of
proof then shifts to the Defendant. In casu the, Defendant relies on
the allegation that the bus driver drove at an excessive speed.
this regard Mr. Dunseith argued that the
of the bus driver was not shaken that he was travelling at 30km/h and
had engaged gear no. 2. The evidence of the bus driver is supported
by that of the bus conductor. Further, on this point Mr. Dunseith
argued that the Plaintiff's evidence is supported by the simple
geography of the area. The bus driver told the court and this was
confirmed by Canawe that he stopped at a bus stop to collect some
children. After this bus stop there are two comers before it reached
the deviation incline where the road had been watered. The bus could
not have reached a high speed from the bus stop to the incline a
distance of about 120 metres. This was a heavy bus carrying about 30
passengers pulling away at 1st gear and has to negotiate two corners
and that it was travelling at 80km/h is incredible in the
Dunseith argued that the evidence of the truck driver Canawe was an
afterthought in that: he said the bus was 120metres away but when
'he, stopped the bus was 150metres. It was put to him that he had
gained 30metres and he agreed. This proved that he was travelling
faster than the bus.
the evidence of Mr. Hagennann Mr. Dunseith contended that he was not
asked in-chief about the speed of the bus as to whether the bus was
travelling at an excessive speed. It was only in cross-examination
that he said the bus was travelling at an excessive speed. Mr.
Dunseith argued that the only reasonable inference which could be
drawn from this is that when Mr. Currie consulted Mr. Hagemann the
latter did not talk about the speed the bus was travelling.
Currie for the Defendant also argued at length au contraire. The
first point raised by Mr. Currie is that the evidence presented to
the court showed that there was ample signage that there was a road
hazard in the said deviation road. The evidence of Mr. Hagemann was
to the effect that watering of the road was taking place ahead.
Further, that the police officer who gave evidence on behalf of the
Plaintiff also mention that there were signs in that road
that there was a
overtaking was prohibited. Secondly, it was contended on behalf of
the Defendant that the bus driver was travelling at an excessive
speed in the circumstances in that he failed to stop the bus whilst
on the other hand the truck driver was able to stop the truck
the fact that the road was slippery.
it was argued for the Defendant that the Plaintiff has failed to
prove items 5.1. and 5.2 of the Particulars of Claim that they
engaged in road works without giving reasonable warning to road
users; and they applied water, to the road surface rendering such
surface slippery, without giving reasonable warning to road users,
it was contended for the Defendant that in the event the court were
to find that the Defendant was negligent in not putting signs on the
road nevertheless the bus driver contributed to the negligence so
that the provisions of the Appointment of Damages Act would apply.
court's analysis and conclusion thereon.
evidence before court is that the bus stopped at a bus stop to
collect some children. After this bus stop there were two corners
before it reached the deviation incline where it was watered. In my
view, at that point the bus could not have reached a high speed from
the bus stop to the incline a distance of about 120metres. This was a
heavy bus carrying 30 passengers pulling away at 1st gear and
negotiating two comers. In my mind, the evidence of Canawe is suspect
that the bus was travelling at 80km/h in the circumstances. The
evidence that it was travelling at 30km/h is consistent with the
geography of the road and the condition of the road. Mr. Hagemann's
evidence on the speed of the bus was not convincing. The version by
the bus driver and his conductor is more probable in the
circumstances of this case.
showed that the truck was travelling at 30km/h and the driver could
not control the truck as it was zig-zagging along the road. The
heavier the vehicle the more it will slip. There was no friction on
the road. There was no need for the bus to travel at an excessive
speed because the truck driver has lost: control of his vehicle. The
truck driver did not have the handicap of a vehicle in front. He was
able to zigzag along the road. The truck is designed for these
roads yet the bus had normal wheels. The truck moved to the right and
this compelled the bus driver to move to the left. The truck driver
in terms of the law is supposed to have moved to the extreme left. In
my view, it was not the excessive speed of the bus which caused the
collision but the condition of the road and the fact that the truck
had moved to the wrong side of the road.
to the question of whether there were signs on the road warning road
users that the road was being watered in my respectful view after
assessing the evidence I come to the conclusion that there were no
such signs. The evidence advanced by the Plaintiff on a balance of
probabilities tends to support this view. The bus driver told the
court that there were no such signs. The bus conductor also said the
same thing. The evidence of Mr. Hagemann and Canawe did not carry the
same credence as that of both the bus driver and his conductor. I
agree in toto with the submissions made by Mr. Dunseith in this
regard as to the weight to be attached to the various witnesses.
my view the Plaintiff has established that the road in question was
hazardous on the day in question after being watered by the
Defendant's truck. The road surface was
slippery to the extent that it was a hazard. The Plaintiff's evidence
in this regard is to some extent supported by the evidence of the
Defendant's own witnesses.
the totality of the evidence it would appear to me that the truck was
obstructing the side of the bus. According to Mckerron, Law of Delict
(7th ED) at page 62 a person placed in a situation of imminent peril
in consequence of another's negligence can not be held guilty of
contributory negligence, merely because "in the agony of the
moment" he failed to take the best course to avoid the danger.
The only issue Defendant could rely on is if the court were to find
that the bus was travelling at an excessive speed. The court in casu
has found that the bus could not have been travelling at an excessive
speed in the circumstances of the road and also on the basis of the
the result, the court enters judgment in favour of the Plaintiff with
costs of suit.