IN THE HIGH COURT OF SWAZILAND
In the matter between: Case No. 1659/2014
BENSON TSABEDZE Plaintiff
SIPHO KGOLOLO Defendant
Neutral citation: Benson Tsabedze v Sipho Kgololo [1659/2014] SZHC 69
(12th April, 2018)
Coram: M. Dlamini J
Heard: 13th April, 2018
Delivered: 4th May, 2018
Civil law: - Negligent driving - offer to pay was not evidence of negligence - a gesture attracting no obligation in law.
Cost: - Costs at discretion of judicial officer – to exercise such discretion judiciously.
Summary: Plaintiff, alleges that he was compelled to swerve his motor-vehicle away from defendant who was driving negligently on the Manzini-Mbabane Highway. In the process plaintiff’s motor-vehicle landed in a ditch and was damaged. The plaintiff demands E133,703.04 as repair costs. Defendant vehemently denies any negligence. At the close of plaintiff’s case, defendant has applied to be absolved from the instance.
 The plaintiff (Tsabedze) and the defendant (Kgololo) are both adult males. They hail from Matsapha, Manzini and Qobonga, Hhohho respectively.
 Tsabedze asserted in his Particulars of Claim that he lost control of his motor- vehicle while attempting to avoid a collision with Kgololo’s motor-vehicle. Kgololo was negligent in the following manner:
“6.1 He failed to keep a proper lookout;
6.2. He drove his motor-vehicle in both sides of the lanes in a slating motion;
6.3 He failed to steer his motor vehicle to his nearest lane;
6.4 He failed to avoid an accident when a reasonable driver could have done.” 
 Kgololo was then charged with “negligent driving and driving under the influence of intoxicating liquor or drugs.” Tsabedze alleges that his motor-vehicle was damaged and reasonable estimated costs of repairs are E133,703.04. He prays that the court should order defendant to pay the estimated costs of repairs together with interest thereon and costs of suit.
 Kgololo refutes most of Tsabedze’s allegations holding him liable for his damaged motor-vehicle. He admitted that on 28th July 2014, he did drive his motor-vehicle at the relevant road but ferociously denies that he was negligent. He points out that Tsabedze himself was negligent as he failed to keep a proper lookout and drive on the correct side of the road or give way to him as he was on the fast lane. He states that a reasonable driver would have avoided the accident.
 Tsabedze replicated. He reiterated what was stated in his Particulars of Claim. He denied any negligence on his part.
 Tsabedze testified under oath. He met Kgololo on 28th July, 2014 at about 8:45p.m. He was driving a Kia Sportage, silver in colour, registered DSD 353 BH at Mnyamatsini, Manzini-Mbabane highway. He drove in the slow lane. He saw a motor-vehicle driving in a zig-zag manner through his rear right hand mirror. He then drove to the left in an endeavor to run away from it. As he did so, his motor-vehicle veered off into a ditch on his left hand side and overturned. His passenger and himself sustained injuries.
 The motor-vehicle that disturbed him was a volvo registered PSD 554 AH and the driver was Kgololo. He was conveyed to hospital by the emergency ambulance under 977. Police arrived and a statement was recorded from him. After he was discharged from the hospital on the same day, he called the police who advised him to report at the police station the following day. He obliged. He found Tsabedze at the police cell. Tsabedze told him that he was arrested for drunken driving. He followed Tsabedze to the Magistrate Court but left before his matter was called due to work commitment. He had spoken to Tsabedze who advised him that he had an insurance cover. They also exchanged cellular phone numbers. They agreed to meet each other’s families. He was advised by Kgololo to approach Sefika Insurance Brokers (Sefika) for his damaged motor-vehicle and was directed to a specific lady.
 Tsabedze went to Sefika. He met the lady who was by then expecting him following that Kgololo had alerted her about him. The lady advised him to write a letter of demand and attach three quotations from different garages.
 Tsabedze went to source quotations from Auto- Metal, Manzini, Fortunes, Manzini and Mbabane Panel Beaters. The reasonable quotation was from Auto-Metal for the sum of E133,703.04. He submitted the relevant document to Sefika. Sefika commenced on processing the claim. Sefika asked him to produce a police report before payment. He obtained a police report and submitted it. The lady at Sefika read the report and pointed out that she could not pay because the report was to the effect that the matter was still under investigation. Tsabedze went back to the police and requested a final report. He was advised to return after seven days. On 15th August 2014, he went for the police report again. He submitted it to Swaziland Royal Insurance who had called him pointing out that the file was serving before them. Mr. Mahluza, at Swaziland Royal Insurance, upon reading the conclusive police report, advised him that the Insurance could not pay him because the police report indicated that their client (Kgololo) was under the influence of intoxicating liquor at the time of the accident. He called Mr. Kgololo and advised him that Swaziland Royal Insurance was declining payment following that the police report revealed that he was drunk. Kgololo later reprimanded Tsabedze for submitting a report to his insurance reflecting that he was drunk. Thereafter, Kgololo resisted any conversation with him.
 Tsabedze was cross-examined at length as Kgololo’s defence was advanced. The next witness was Japhter Phetfweveni Magwaza. He was self-employed, at Nombewu Investment. His duties entailed motor-vehicle valuation adjustments and loss. He referred to Mr. Tsabedze’s motor-vehicle and testified that on 3rd March 2015, he examined the motor-vehicle and found that it was a write off. He assessed the motor-vehicle by determining its book value. He thereafter looked at the repair costs as reflected in the quotations sourced by Tsabedze. He found that the repair costs exceeded the book value, it is for this reason that he concluded that Tsabedze’s motor-vehicle was a write-off. Nothing much turned on his cross-examination.
 Thokozani Herbert Mahluza gave evidence on behalf of Tsabedze. He confirmed Tsabedze’s evidence that he came to Swaziland Royal Insurance offices. He submitted supporting documents to his claim. Upon perusal of the police report, it reflected that the matter was pending investigation. He advised Tsabedze that he should go and get a conclusive report.
 Tsabedze returned with a police report dated 8th August 2014. This report reflected that the insured was charged for inconsiderate driving a motor-vehicle while under intoxicating liquor or drug. He then advised Tsabedze that he would not process his payment because the insurance policy stated clearly that the corporate would not be liable where the accident happened while its client was under intoxicating liquor or drugs.
 Under cross-examination it was revealed that Kgololo was paid for the accident under a mistaken belief based on the first report by the police which did not include that he was driving under the influence of intoxicating liquor. Mr. Mahluza pointed out that the corporate was processing a claim for reimbursement against Kgololo.
 Mr. Isaiah Philemon Maziya was PW4. He worked at Mbabane Auto Metal Panel Beater & Spray Painters since April 1989. He was in the spray painting department. He testified that his boss who had since passed on, prepared a quotation for Tsabedze. It was in respect of a Kia Sportage registered DSD 353 BH brought on 5th August 2014. He did inspect the motor-vehicle and the quotation prepared by his boss was consistent with his observations.
 Const. 6462 B. S. Maseko was PW5. He is a police officer who attended the scene of the accident. It was 28th July 2014 at about 2100 hrs. He was in the company of Const. 4739 Gule who is deceased. They received a report that there was an accident at Mnyamatsini, MR3 involving two motor-vehicles and injuries sustained by the occupants.
 Both police officers proceeded to the scene and found two motor-vehicles, namely volvo registered PSD 554 AH and Kia Sportage DSD 353 BH. The volvo was in the inner lane facing Mbabane direction. It had two damaged wheels on the right side. The Kia was on the extreme left about one hundred metres away. It had overturned and was facing Mbabane direction. He drew a sketch plan after Const. Gule placed the cones and controlled the traffic. They thereafter removed the motor-vehicles with the help of a break down.
 Const. Maseko then went to Tsabedze and asked him to narrate on what transpired. He recorded a statement. He then proceeded to record Kgololo, the driver of the volvo. He discovered a strange smell as he was talking with him. He cautioned him as per the judges’ rules. He called Const. 6200 Mabila and Const. 5651 Fakudze to subject Kgololo to an alcometre test. They arrived and cautioned Kgololo. They explained how the SD 400 lion alcometre functioned. They then tested him and printed out the results which reflected that his alcohol intake was above the legal limit.
 Const. Maseko then interviewed both drivers and discovered that there was no contact between the two motor-vehicles. Kgololo stated that he was trying to overtake the Kia Sportage while Tsabedze said that he was disturbed by Kgololo who was driving in an oblique manner. Kgololo allege that Tsabedze had occupied both lanes while he was attempting to overtake.
 The police officer concluded that Tsabedze could not have been disturbed by Kgololo who was behind him some one hundred metres away. Tsabedze lost control of his motor-vehicle when he concentrated on Kgololo who was driving in an oblique fashion. He could have charged Tsabedze but decided to be lenient. He charged Kgololo for driving under intoxication and arraigned him before the Magistrate Court. This witness was not cross-examined. The plaintiff closed his case. He then moved an application for absolution from the instance.
Absolution from the instance.
 Harms JA neatly summed:
“ The test for absolution to be applied by a trial court at the end of the plaintiff’s case was formulated in Claude Neon Lights (SA) Ltd v Daniel 1976 (4) SA 403 (A) at 409G-H in these terms: “… (w)hen absolution from the instance is sought at the close of the plaintiff’s case, the test to be applied is not whether the evidence led by plaintiff establishes what would finally be required to be established, but whether there is evidence upon which a Court, applying its mind reasonably to such evidence, could or might (not should, nor ought to) find for the plaintiff. (Gascoyne v Paul and Hunter 1917 TPD 170 at 173; Ruto Flour Mills (Pty) Ltd v Adelson (2) 1958 (4) SA 307 (T)”
 The above observation by the learned Justice of Appeal has been cited in various subsequent judgements. The question is therefore, “Would it be in the interest of justice to call the defendant to answer in light of the evidence adduced?” In his plea, the defendant attributed the cause of the accident to the plaintiff. He pointed out that plaintiff failed to keep a proper look out. He pleaded:
“He failed to exercise proper and adequate control over his motor vehicle.”
 The above allegation by the defendant must be considered with the evidence which was common cause that there was no collision of the two motor-vehicles. The plaintiff veered off the road without coming into contact with the defendant’s motor-vehicle. The police officer who attended to the scene supported this evidence by testifying that when he arrived at the scene, he observed that the plaintiff’s motor-vehicle was off the road and was one hundred metres away from the defendant’s motor-vehicle. As an expert, this distance apart informed him that the defendant might have been driving in an unsteady fashion on both lanes of the road. The plaintiff might have observed defendant driving negligently, thereby concentrated on defendant’s driving. He therefore failed to pay attention to his own driving. This led plaintiff to drive into the ditch and this caused his own accident. This evidence was led in chief on behalf of plaintiff. This evidence lends credence to the defendant’s plea that plaintiff failed to “exercise proper and adequate control over his motor-vehicle” and thereby caused the accident.
 In the final analysis of the above, it would not serve justice to call upon the defendant to answer. It follows that the application on behalf of defendant for absolution from the instance stands to succeed.
 I reached the above conclusion much alive to the evidence adduced by and on behalf of plaintiff that the defendant conceded to the accident as he offered plaintiff a right to claim against his insurer for the accident. I am cautious also that such evidence was not disputed. That as it may, by such action alone, without any evidence corroborating negligence on the part of the defendant or should I say with evidence showing that defendant was not the cause of plaintiff’s motor-vehicle capsizing into the ditch, as per the police officer, the defendant cannot be put to his defence. His offer is not evidence of negligence. It was merely a gesture attracting no obligation in law.
 I bear at the backdrop that costs are at the discretion of the presiding officer. I am very cautions of my duty that as I exercise this discretion, I should do so judiciously as I so do.
 Before me is the evidence that the defendant was in his drunken stupor during the accident. Defendant drove in oblique fashion on the Highway. Plaintiff saw defendant driving in this fashion through his rearview mirror. He sought to avoid a collision by driving away from defendant. Unfortunately, this led his motor-vehicle into a water drainage by the left hand side of the Highway. His motor-vehicle was damaged and was later rated beyond repairs. He is now left with a huge bill to replace his motor-vehicle which was at that time relatively new.
 In granting the application for absolution from the instance, I considered the experts evidence that owing to the distance apart from plaintiff and defendant’s motor-vehicle the plaintiff was over-zealous to avoid a collision with the defendant. He ought to have also concentrated on his driving as well as there was no room for a collision as defendant was a hundred metres away.
 I consider also that the plaintiff was justified in approaching the court for the present claim. He was so supported by the police report. The report reads:
“In the circumstance the driver of motor vehicle PSD 554 AH was charged with the offences of inconsiderate driving and driving a motor vehicle whilst under the influence of intoxicating liquor or drug having a narcotic effect.”
 This report was completed by Inspector 2497 O. J. Dlamini who was reported to have been deceased at the time of trial. The police officer (Const. 6462 B. S. Maseko) who accompanied him to the scene, testified that defendant could not have caused the accident as his observation which was reduced down in a sketch plan was to the effect that the two motor-vehicles were far apart. This evidence was adduced on behalf of plaintiff. It was not difficult to believe the evidence of the police officer because evidence adduced pointed out that defendant was only charged for drunken driving and not for inconsiderate driving as reflected under Inspector 2497 O. J. Dlamini’s report. This inconsistency rendered his report suspicious therefore.
 In the final analysis, I consider that each party should bear his own costs. I therefore enter the following orders:
1. Application for absolution from the instance is hereby granted,
2. Plaintiff’s cause of action is hereby dismissed,
3. Each party to bear his own litigation costs.
M. DLAMINI J.
For the Applicant: Mr. N. E. Ginindza of Attorneys
For the Defendant: Mr. M. Motsa of L. R. Mamba & Associates
 See paragraph 7 page 4 of book of pleadings.
 In Gordon Lloyd Rage & Association v Rivera & Another 2001(1) SA 88 (SCA at GZE-93A)
Jooste v ABSA bank Ltd t/a Trust bank (A 1339/04, A 13339/04 , ZAGPHC 57 (1 June 2006) para 6; Moreba v Road Accident fund (7616/04)  ZAGPHC 61 (10 June 2006) paras 1-2
 Page 20 of para 5(f) of the book of pleading