IN THE HIGH COURT OF SWAZILAND
HELD AT MBABANE CASE NO. 1695/2011
In the matter between:
NKOSINATHI NYAWO PLAINTIFF
JACOB MASHABA t/a MASHABA TRANSPORT 1ST DEFENDANT
SIMANGA MAZIYA 2ND DEFENDANT
Neutral Citation : Nkosinathi Nyawo vs Jacob Mashaba (1695/2011) 
SZHC 198 (29 SEPTEMBER 2017)
Coram : MABUZA – PJ
Heard : 21 MARCH 2017
Delivered : 29 SEPTEMBER 2017
Civil Law – Claim for damages as a result of motor vehicle collision – Defendant collided with back of Plaintiff’s motor vehicle – Proof of negligence on a balance of probabilities – Plaintiff awarded damages, interest and costs.
 The Plaintiff is Nkosinathi Nyawo an adult Swazi male of Mbabane Hhohho
 The 1st Defendant is Jacob Mashaba an adult Swazi male and transport operator trading as Mashaba transport at Lomahasha Lubombo District.
 The 2nd Defendant is Simanga Maziya an adult Swazi male employed by the 1st Defendant as a driver at Lomahasha, Lubombo District.
 The Plaintiff issued summons against the Defendant for payment of the sum of E22,720.00 (Twenty two thousand seven hundred and twenty Emalangeni) being damages suffered by the Plaintiff as a result of damages to his motor vehicle; interest at the rate of 9% calculated from the date of summons to date of payment, costs of suit and further and alternative relief.
 The cause of action is that on or about the 11th day of August 2009 at around 1030 hours along MR 3 public road at Matsetsa area along the Manzini/Lonhlupheko route, a collision occurred between an International truck bearing registration letters and numbers SD 199 VL driven at that time by Simanga Maziya and a Toyota Hilux driven by the Plaintiff bearing registration letters and numbers SD 860 RL.
 At all material times thereto, the Plaintiff was the owner of the motor vehicle, a Toyota Hilux bearing registration letters and numbers SD 860 RL and the 1st Defendant was the owner of the truck bearing registration letters and numbers SD 199 VL. The 2nd Defendant was the driver of SD 199 VL during the course of and within the scope of his employment with the 1st Defendant.
 It is alleged that the collision was caused by the negligent driving of the 2nd Defendant, in that:
(i) He failed to keep a proper look out for road users especially the
(ii) He drove too fast under the circumstances;
(iii) He knocked the Plaintiff’s motor vehicle from behind;
(iv) He failed to prevent a collision when he was, with exercise of
reasonable care, in a position to do so.
 As a consequence of the accident and the alleged negligent driving of the 2nd Defendant the Plaintiff’s vehicle was damaged at the rear and in front and the Plaintiff suffered damages in the amount of E22,720.00 (Twenty two thousand seven hundred and twenty Emalangeni) being the fair and reasonable costs of repair of the Plaintiff’s vehicle.
 Notwithstanding lawful demand, the 1st and 2nd Defendant refuse and/or neglect and/or fail to pay the Plaintiff the sum of E22,720.00 (Twenty two thousand seven hundred and twenty Emalangeni) or part thereof, to which the Plaintiff holds them jointly and severally liable one paying the other to be absolved.
 The matter is defended by the Defendants who deny any negligence imputed to them by the Plaintiff. Instead the 2nd Defendant pleads that the negligence of the Plaintiff was the cause of the accident in one or more of the following respects:
“7.3.1 He failed to keep a proper lookout.
7.3.1 He applied the brakes of his motor vehicle suddenly and made it impossible for 2nd Defendant to avoid the collision.
7.3.3 He failed to prevent the accident when by reasonable skill and care he could and should have done so, thus avoiding the accident.”
 The Defendant’s further deny that any demand was made and that they are liable to pay the amount claimed.
 The parties led oral evidence under oath in support of their respective positions. The Plaintiff led Mr. Nyawo and the Defendant Mr. Maziya.
 Mr. Nyawo testified that on the 11th August 2009 he was traveling on the public road from Matsetsa to Manzini in SD 860 RL when Maziya collided into his motor vehicle. Maziya was driving SD 199 VL.
 He stated that he was travelling at 60 km/h and that he was following a lot of cars and there were cars on the oncoming lane. He felt a bump at the back of his car and realized that a truck had collided into him and as a result he collided with the car in front of him. He says that he tried to avoid the front car by swerving left but hit its left indicator. His own car which was a van was not damaged at the front but at the back on its bakkie opening and right indicator.
 The Plaintiff filed photographs of his damaged car and Exhibit A1 shows the back of the car. Indeed the back of the bakkie as well as the right rear end is damaged and he stated that the second Defendant caused this damage. Photogragh A2 shows the front part of his car and the left indicator is damaged. He stated that when he swerved to avoid the car in front of him there was no damage to his car.
 Mr. Jele invited him to tell the Court how the damage on the left indicator had occurred. His response was that his car was damaged on the right hand side and not the left because he recalled that in trying to avoid the car in front of him he left the road and drove onto the grass at the side of the road. He hit the left indicator of the car in front of him.
 He handed in the bluebook (Exhibit B) as proof of ownership. He also handed in the quotation (Exhibit C) that he based his claim on. Exhibit C reflected the sum of E22, 722.00 (Twenty two thousand seven hundred and twenty two Emalangeni) and was prepared by Auto Mozambicano in Manzini where his car was repaired. Exhibit D is an invoice dated 20/5/2010 and reflects the cash payment of E22,722.00 (Twenty two thousand seven hundred and twenty two Emalangeni).
 He testified that the police did not prefer any traffic charges against him. He denied that he was the cause of the accident and reiterated that it was the 2nd Defendant.
 Cross-examination of the Plaintiff by Mr. Du Pont revealed that the Plaintiff did not know who had taken the photographs. More importantly that one photograph A2 did not reflect the true picture. He further divulged that his car was not damaged on the front bumper, windscreen left front fender and headlamps. That meant that the amounts of E1400.00 (windscreen) E2600.00 (front bumper) E790.00 (left front fender) and E480.00 (2 x headlamps) fall away from the claim by the Plaintiff bringing it down to E17,452.00 (Seventeen thousand four hundred and fifty two Emalangeni)
 The Plaintiff said that he was equally surprised that he paid for repairs that his vehicle did not sustain.
 The 2nd Defendant’s defence was put to him to the effect that the Plaintiff applied his brakes suddenly because the car that he was following made a u-turn in from of him. Hence the collision by the 2nd Defendant. He denied all that. Thereafter he closed his case.
 The 2nd Defendant (DW1) next gave evidence. He testified that at the material date he was employed by the 1st Defendant. He stated that on the 11th August 2009 he was driving an international 34 tonner truck which was loaded with sugar and was travelling along the Matsetsa-Manzini public road. He was following the Plaintiff’s van which was following a sedan. He saw the sedan make a U-turn in front of the van. The Plaintiff applied brakes and stopped.
 Because he was close to the van he hooted and the Plaintiff was alarmed and swerved in order to avoid colliding with the sedan. DW1 says that he collided with the Plaintiff’s van on its right rear corner. DW1 says that he was travelling at 30km/h and that the distance between him and the Plaintiff was 60 metres. He denies that he was negligent nor that he was the cause of the accident. He stated that he could not prevent the accident as he could not drive onto the Manzini lane as there was oncoming traffic.
 He was cross-examined by Mr. Jele. He revealed that he was charged for negligent driving. That he appeared at the Siteki Magistrates Court where he pleaded guilty and was ordered to pay a fine of E700.00 (Seven hundred Emalangeni).
 DW1 under cross-examination stated that the lady in the sedan was coming from the Manzini direction and she did a U-turn on the Manzini road and went into the Siteki lane in front of the Plaintiff thus causing the Plaintiff to brake suddenly, causing a sudden emergency for DW1. His gripe was that the Plaintiff could have put on his hazards to warn him.
 It was put to DW1 that no sedan ever made a U-turn in front of the Plaintiff and that he had made this story up. He denied this. He did not deny that the Plaintiff collided with the car in front of him because DW1 had bumped him from behind.
 He was informed that there was a 4 metre road reserve at the side of the main road and that the Plaintiff swerved his car onto it. He disputed this and said that the Plaintiff’s car was parked in the road after he had bumped it but slightly turned to the right.
 That being the case, he was asked why he did not pass on the left of the Plaintiff’s car by using the 4 metre wide road reserve. His response was that it was not possible to do so because his truck would have overturned as it was heavily laden with sugar bales some of which were not tied up.
 He was asked to comment as to why he had pleaded guilty to the offence and his response was that it was because he had bumped the car in front of him but that he was not the cause of the accident. It was the other car that was in front of the car that had caused the accident. That was the case for the defence.
 Part VII of The Road Traffic Act No. 6 2007 makes provision for Rules of the Road. Section 71 thereof makes provision for general duties of drivers of vehicle as public roads. Section 71 (1) states that a driver driving … a vehicle on a public road shall not
(b) Follow another vehicle more closely than is reasonable and
prudent having regard to the speed of such other vehicle and the traffic on and the condition of the roadway, or more closely than is prescribed.
 The learned authors Cooper and Bamford in their work South African Motor Law, 1965, Juta & Company at page 245 define negligence as follows:
“Negligence is the failure to exercise that care and skill which would be observed by a reasonable man in order to prevent harm to others as a result of his acts or omissions … It must be emphasized that in deciding whether a person has been negligent the fundamental test is: what would the reasonably careful man do? An answer to this question will depend upon facts and the particular circumstances of each case ”
 A reasonably careful man would keep a reasonable distance between him and the Plaintiff to avoid any collision into the back of the Plaintiff’s motor vehicle. The reasonable distance between the cars is to allow a margin of error to prevent accidents such as the one in casu.
 The 2nd Defendant says that the cause of the accident was a sedan driven by a woman which made a U-turn in front of the Plaintiff’s car. There was no evidence led to support the 2nd Defendant’s story. Furthermore the Plaintiff denies the presence of any sedan or that any sedan made a U-turn in front of him. The Plaintiff who was a credible witness says that the 2nd Defendant bumped into the back of his (Plaintiff’s) car. I believe the Plaintiff.
 The 2nd Defendant made certain admissions in Court namely that he was charged for negligent driving, appeared in the Magistrates Court in Siteki where he pleaded guilty and was fined a sum of E700.00 (Seven hundred Emalangeni). Such admissions corroborate the Plaintiff’s evidence that the cause of the accident was the negligence of the 2nd Defendant. Any sudden emergency (if any) was caused by the 2nd Defendant and he cannot avail same as a defence.
 I am satisfied that the Plaintiff has discharged the onus placed on him on a balance of probabilities. I reject the 2nd Defendant’s evidence as being improbable and find for the Plaintiff.
 The Defendants are ordered:
(a) To pay to the Plaintiff the sum of E17,452.00 (Seventeen
thousand four hundred and fifty two Emalangeni) jointly
and severally one paying the other to be absolved; and
(b) Interest at the rate of 9% calculated from service of summons
(amended) on the 23rd August 2011; and
(c) Costs of suit.
For the Plaintiff : Mr. D. Jele
For the Defendant : Mr. I. Du-pont