HIGH
COURT OF SWAZILAND
CIVIL
CASE NO.362/2000
In
the matter between:
LOLO
XABA PLAINTIFF
VS
THE
ATTORNEY GENERAL N.O. 1st DEFENDANT
JETHRO
SITHOLE 2nd DEFENDANT
CORAMMATSEBULA
J
FOR
PLAINTIFFMR. MASANGO
FOR
1st DEFENDANT MR. V. DLAMINI
JUDGEMENT
24™ AUGUST 2004
By
combined summons issued by the plaintiff on the 16th February 2000,
plaintiff sued first defendant, the Attorney General N.O. and the
second defendant Jethro Sithole for the following relief;
Payment
for a sum of E23 000 00;
Interest
at the rate of 9% per annum tempore morae;
Costs
of suit;
Further
and/or alternative relief.
2
The
matter served before me on the 19th July 2004 and was viciously
opposed and defended by the defendant. Because the action, as I can
see from the papers is based on the second defendant's negligence as
particular rised in the particulars of claim and these are paragraphs
9.1 - 9.5. The afore said collision was caused exclusively by the
negligence of the second defendant who was negligent in one or more
or all respects:
9.1
He failed to keep a proper look out;
9.2
He failed to keep the said motor vehicle under proper or any control;
9.3
He travelled at an excessive speed in the circumstances;
9.4
He failed to apply brakes of the motor vehicle timeously or at all;
9.5
He failed to avoid the accident when by the exercise of reasonable
care he could and should have done so.
Plaintiff
gave evidence himself and he decided not to call any witnesses even
though it subsequently turned out that in his motor vehicle he had a
passenger. Defendant also gave evidence and surprisingly called the
passenger who was in the plaintiff's motor vehicle to give evidence
on his behalf DW2.
The
court has listened to the two counsel addressing me. They seem to be
more concerned about what time the accident happened and of what
relevance that is, is to me difficult to understand because whether
it 7 o'clock or 8 o'clock. That is not a material factor. It does not
seem to me to be material. What is material which subsequently
emerged from the evidence viva voce was that one of these motor
vehicle failed to obey the red robot which was against it and entered
the intersection and hence caused the collision.
The
defendant gave evidence that it was infact the plaintiff who failed
to obey the robot and entered when the robots was against him. This
is supported by DW2, the lady who was a passenger in the plaintiffs
3
motor
vehicle who also came in and said that the plaintiff failed to stop
at the red robot and that was the cause of the accident.
The
court has listened to the arguments and submissions made by the two
counsel and as I said the court is indebted to their assistance and
the court has also gone through decided cases in support of their
submissions and the court has come to a well considered view that the
plaintiff bearing the onus to prove on a balance of probabilities he
has failed to do so. He has failed to discharge the onus and the
court finds that the plaintiff's claim should be dismissed with costs
and it so orders.
There
was a claim in reconvention which was filed by the defendant however,
counsel for the defendant subsequently abandoned the claim of
reconvention and the court will therefore make no order thereon. With
the result, the plaintiff's claim is dismissed with costs.
J.M.
MATSEBULA
14
In
the event, the plaintiff's claim is ordered to be dismissed, with
costs.
JACOBUS
P. ANNANDALE
ACTING
CHIEF JUSTICE
