IN THE HIGH COURT OF ESWATINI
Held at Mbabane Case No.: 549/2013
In the matter between
KOSWA INTERNATIONAL (PTY) LTD Plaintiff
AND
BHEKISISA NXUMALO 1ST Defendant
THE NATIONAL COMMISSIONER OF POLICE 2ND Defendant
THE ATTORNEY GENERAL 3RD Defendant
Neutral Citation: Koswa International (PTY) LTD Vs Bhekisisa Nxumalo and 2 Others (549/2013) [2019] SZHC 249 ( 13thDecember2019)
Coram: Hlophe J.
For the Plaintiff: Miss S. Matsebula
For the Defendants: Mr K. Nxumalo
Date Heard: 13/03/19, 14/03/19, 24/06/19, 25/06/19, 09/10/19, 10/10/19, 21/10/19, 4/11/19
Date Judgement Delivered: 16th November 2019
Summary
Civil Law – Action Proceedings – Motor Vehicle Collision – Defendant’s motor vehicle loses control and hits guardrails which are thrown across the lane of motor vehicles heading towards the opposite direction - Plaintiff’s motor vehicle runs into the guard rails thrown onto its lane with the result that its car is seriously damaged – Whether Defendant liable for the repairs effected on Plaintiff’s car.
JUDGMENT
[1] On the 22nd April 2009, the Plaintiff’s motor vehicle, a Toyota Hilux van, collided with guardrails whose strips had been laid across its lane after they were hit by the Second Defendant’s motor vehicle from their fixed position and thrown across the lane on which the Plaintiff’s motor vehicle was driving at the time.
[2] As a result of the said collision the Plaintiff’s motor vehicle was damaged and had to be fixed at a sum of E85, 366.64. The Plaintiff later sued the defendants for recovery of the repair costs which its insurer had paid.
[3] It is otherwise not in dispute that Plaintiff’s motor vehicle was at the time of the collision, driven by one Simanga Menzi Dlamini who testified as PW1 during trial. On the other hand, the second Defendant’s vehicle, an Inyala Truck, was driven by the First Defendant at the time, who also gave evidence as DW1. Both drivers are said to have been acting within the course and scope of their duties at the time.
[4] The Plaintiff led four witnesses in all. These were PW1 Simanga Menzi Dlamini; PW2 3567 Constable Comfort Mngometulu; PW3 Mathew Soares and Japhta Magwaza. The Plaintiff on the other hand led three witnesses who were DW1 4262 Sergeant Bhekisisa Nxumalo, DW2 3664 Superintendent Emmanuel Lusito Dlamini and DW3 3998 Sergeant Themba Vilakati.
[5] According to PW1, he was driving the Plaintiff’s motor vehicle, SD 386 TL along the Manzini – Mbabane main road on the 22nd April 2009. As, he was about to cross the Mtilane river, below Lozitha Palace he was forced to switch lanes and drive on the right to overtake a truck that was driving towards Mbabane as well. It was whilst overtaking that truck that he saw, ahead of him, and about 30 – 40 metres away, a Police truck, an Inyala, which was driving towards Manzini, pushing the guardrails it had hit on the side of the road onto his lane.
[6] Given that all this happened in a sudden manner, he said he could not avoid colliding with the guardrails deposited across the lane he was driving on. The collision concerned resulted in the car he was driving sustaining serious damage. Its bonnet and windscreen, among other components, were damaged completely. He said he was confused by what had befallen him and after stopping the car, he remained seated in it for some 10 – 15 minutes. He said he only moved out of the car when he noticed some smoke being emitted from somewhere in the front. He claimed to have later discovered that it was coming from the radiator pipes and it had made him believe that the car was about to be burnt. He testified that the foregoing was the only visible damage he could see and that there was the possibility of some further one.
[7] He learnt from the Police Officers who had alighted from the Inyala, and could also observe for himself, that the truck had lost control and hit the guardrails for them to be strewn on his lane of the Manzini-Mbabane road, after one of its tyres had burst. Given that he was knowledgeable on vehicle tyres, which was the primary business of his employer, the Plaintiff, he could tell that generally, the tyres of the truck were no longer fit for use on the road. They were allegedly worne out. His experience working with tyres, he said, enabled him make that determination.
[8] He knew that the car was fixed firstly because he had driven it to Matsapha Garage for fixing after the collision. He had also been called to the offices of the Plaintiff’s Insurers where he was made to sign some claim forms. He was to later see the car being driven on the road in a repaired state after he had left the Plaintiff’s employ. He had done so after about 9 months of the collision.
[9] Under cross examination he clarified that he had applied brakes before colliding with the guardrails. It was in fact agreed that tyre marks confirming that brakes had been applied before the collision were left on the tarmac and were some 15 or so metres in length.
[10] Although he had in his evidence in chief sought to paint a picture of someone who saw all the tyres and could tell from his experience that they were worn out, he stumbled under cross – examination as he started saying he only observed closely the burst one which he said he could tell was worn out. Because he could see this one, he said it was easy for him to construe that the others were also worn as they had all been supplied by the company he worked for, namely the Plaintiff.
[11] It also merits mention that although the Plaintiff’s driver says he remained in the car for some 10-15 minutes after the collision, he gives no reason why this had to be the case. If it did happen a reason had to be given as that would be very abnormal in a setting like the one described. Although he said he left when he saw smoke being emitted from somewhere in the front of the car and had thought it was about to be burnt he does not say what eventually happened to the said smoke. All we hear about the vehicle is that it was later driven, if not to the garage itself, then to the shoulder of the road outside its left lane.
[12] I must say at this point, that I cannot help but conclude that there was some exaggeration on the damage done to the Plaintiff’s motor vehicle, which is why there is the mention of the car having emitted some smoke. I find this to be unreal.
[13] PW2 confirmed the collision and that its root cause had been the Inyala’s having hit the guardrails and caused them to be strewn somewhat across the fast lane of the Mbabane bound route. Although he was part of the team of three traffic officers from Matsapha Police who attended the scene of the accident, he was not the one responsible over it to the extent of having had to take or record statements from those who witnessed or who were involved in the accident; drew the sketch plan, did the measurements and eventually compiled the docket.
[14] He tried to attribute negligence to the Plaintiff’s driver, contending that PW1 should have been able to avoid colliding with the guardrails, which he should have been able to see ahead of him. He suggested that Plaintiff’s said driver was driving at a high speed.
[15] I do not think it can avail PW2 to draw the conclusion he seeks to draw. Firstly, the Plaintiff’s driver who was involved in the incident, painted a picture of a sudden occurrence in an open road where he was driving at a permitted speed. I have not heard PW2 contradict this in his testimony. As a person who was neither involved in the accident nor one who personally witnessed it, I am convinced and it cannot lie with him to conclude in the manner he did. I therefore cannot accept his said conclusion. It could be that his being required to testify against his colleagues had the effect of beclouding his mind.
[16] PW3 introduced himself as an expert on panel beating. He was apparently brought in to justify the costs of the alleged repairs. He however failed to do so in my view. This is because it came out that he was not with the garage that did the panel beating at the time. He therefore could not confirm whether as a matter of fact the work quoted had actually been done or whether same was justified. This means that this aspect of the matter, that is, the work done on the motor vehicle has not been justified.
[17] According to PW4, Japhter Magwaza, he was the Director of the company that did the assessment of the damage done to the Plaintiff’s motor vehicle arising from the collision as well as the repairs done thereon. He did not know whether the motor vehicle had been driven or airlifted to the garage. He sought to justify the quotation particularly with regards what did not ordinarily seem a natural consequence of a collision like that one. This related to such observations as the bent chassis frame, the engine radiator, the radiator cowling, radiator reservoir, radiator reflector, engine timing cover, engine tappet cover, engine tappet cover seal, oil cap and the air filter housing. I shall revert later to these items as they were dealt with extensively in the evidence of Superintendent Lusito Dlamini, DW2, who was, like Mr Magwaza, introduced as an expert.
[18] I note that from the Plantiff’s case, there is no dispute that other than the quotation prepared by the garage that fixed the vehicle at the Plaintiff’s instance, there is no other quotation that has been presented to court which could have given a different dimension on what the damage was particularly where the damage attributable to the incident is in dispute. This triggers the question whether the Plaintiff can avoid an adverse conclusion on those items challenged as not arising from the collision.
[29] The case for the defence on the other hand is that on the fateful day, the police vehicle involved in the accident, the Inyala, was part of an escort that had transported an accused person from the Matsapha Correctional facility to the High Court in Mbabane. It was when driving back to Matsapha and whilst driving along the highway past Lozitha Palace, justbefore reaching the Mtilane river that the Defedant’s aforesaid vehicle, suddenly lost control following one of its tyres bursting and it there and then hit the guardrails meant to secure the periphery and separate the Manzini bound lanes of the high from the Mbabane bound ones. He confirms that these guardrails were thrown somewhat across one of the Mbabane bound lanes, particularly that on the right handside of that road. Those guardrails were at about the same time of their being strewn across the said Mbabane bound lane, hit by the Plantiff’s motor vehicle.
[20] The First Defendant testified that as the police vehicle he was driving hit the guardrails he saw a Mbabane bound motor vehicle, a Toyota hilux van with registration number SD 386 TL, hit the guardrails that had been strewn on its lane by the one he was driving.
[21] He refused to attribute the collision between the Plaintiff’s motor vehicle and the guardrails to any negligence by him. He suggested that it was just an accident from which there should be no liability at least to the Defendants. As far as he was concerned there was no reason for the tyre to burst. He was also driving at an acceptable or normal speed which according to him could not be blamed for the damage suffered by the plaintiff.
[22] I note however that he could not say when last the tyres had been changed or replaced so as to exclude liability on the defendant’s part now that a burst tyre from the Inyala concerned had triggered, if not completely caused, the damage complained of .
[23] I also note that he does not seem to clarify who in law should bear liability arising from a motor vehicle that loses control for whatever reason, hit objects like the guardrails which cause damage to an innocent road user. In fact the legal question from such a setting is whether an owner of a motor vehicle who loses control of his motor vehicle and causes damage to an innocent road user can escape an adverse conclusion that he was driving at a high speed in those circumstances. Ofcourse whether or not the Defendant’s motor vehicle was driving at a high speed is a legal conclusion to be drawn from the circumstances. The law on collisions should have an answer to this.
[24] DW1 sought to attribute the cause of the accident resulting in the damage complained of, to the driver of the plaintiff’s motor vehicle. He says that as the Inyala he was driving started hitting the guardrails, he could see the vehicles driving in the opposite direction on the Mbabane bound route of the road pulling off to the extreme left and turning on their hazards. Although he said he could not tell whether the plaintiff’s motor vehicle had applied brakes, he saw it appear on the scene. It neither stopped nor pulled off the road like those that had appeared at the scene before it. This car went past the inyala which was at the time hitting the guardrails as he tried to control it. After passing the inyala, it collided with the guardrails which had been placed across the lane it was driving on. According to DW1, the car should have stopped and avoided the collision. By its failure to do that, the collision resulting in the damages claimed was caused by the Plaintiff’s Motor Vehicle or should be attributed to the driver of that car. DW1 paints a normal a normal picture without any suddenness.
[25] I have a problem with this aspect of the witness’s testimony. It loses sight of the fact that the driver or the Plaintiff’s motor vehicle was, from the undisputed facts, not the source of the situation they found themselves in. It also ignores the fact that he was entitled to drive on the fast lane at a speed that allowed him to drive faster than a car on the left lane as long as he had not exceeded the regulated speed limit or as long as the situation he found himself in was a matter arising all of a sudden. I have not heard anyone alleging that he was driving beyond the regulated speed nor can I realistically find that the situation they found themselves was not sudden.
[26] Secondly, if as the Defendant’s vehicle was still hitting the guardrails, it went past or met the Plaintiff’s motor vehicle which itself went on to hit the guardrails laid across its lane, then that does not depict a normal situation to me than it does a sudden one. Indeed, answering questions from the Court, DW1 said that he would estimate the time from the bursting of the tyre to that when the Inyala stopped after hitting the guardrails to about a minute or two. He would also estimate the time from when the two vehicles went past each other to the point the Plaintiff’s car hit the guardrails strewn on its lane to about half the time the entire incident had lasted which would be from half a minute to a full minute. Otherwise the distance between where the tyre of the Inyala burst to where it eventually stopped after having hit the guardrails was measured to be about 30 metres. This to me can only mean that the entire episode was sudden which which would not have allowed the Plaintiff’s driver to pull towards his left as DW1 suggested.
[27] I therefore reject as an exaggeration the contention that there were ever any motor vehicles on the Mbabane bound lane that pulled towards the left handside of that road before or as the Plaintiff’s driver hit the guardrails that had been thrown onto his lane by the Defendant’s motor vehicle. I find that just like the bursting tyre of the Inyala and the subsequent loss of its control by DW1 as well as the hitting of the guardrails strewn across its route by PW1, the situation was sudden. There is therefore no way in my view that any liability for the damage that ensued from the accident can be attributed to the Plaintiff or its driver at that time.
[28] DW2, 3664 Superitendent Emmanuel Lusito Dlamini, informed the court that he was a police officer whose job entailed among others, the examination of police vehicles and the public service ones for roadworthiness. His department, was also responsible for the examination of all accidents in the country involving Police vehicles. This they do for purposes of determining whether or not to surcharge an police officer whose car had been involved in an accident. As a motor vehicle examiner, Mr Dlamini told this court that he holds the following qualifications. A certificate in Motor Vehicle Technicians Part III obtained in 1994 from the Swaziland College of Technology (as accredited by City and Guilds), Grade 1 Motor Vehicle Mechanic obtained in 2002, Vocational Instructor’s Diploma with a Curm Laude in examination of vehicles from the Limpopo Traffic College obtained in December 2003. In 2004 September, he was appointed and Gazetted as a motor vehicle Examiner and Inspector of Public Licences of vehicles in the Kingdom of Eswatini.
[29] Armed with these qualifications and experience he said that sometime in April 2009 he examined a police armoured vehicle, an Inyala, SG500PO, which had been involved in an accident at or near Mtilane River, below Lozitha Palace. This he did at Matsapha Repair Centre where the vehicle was parked after the accident in question. He was able to determine that the cause of the accident was the bursting of the right front tyre of the vehicle. This resulted in the weight of the vehicle pulling it on to its right handside, hence its having had to hit the guardrails in the manner it did so as to result in them being strewn across the fast lane of the Mbabane bound route.
[30] Although there were many possibilities for a tyre to burst he found the cause of this one to burst to have been due to loss of pressure on the said tyre. He however could not say what the cause of the loss of pressure in this tyre was. All he noted is that there no foreign objects which could have pierced it to result in the said loss of pressure.
[31] Whereas it makes sense to say that the cause of the tyre to burst was an obvious loss of pressure, it does not make sense to say that loss is not attributable to anything. If indeed it was not due to an object that had pierced it, the only cause would be that the pressure had consistently dropped over time which would mean it was not balanced that day before the trip. Although this would be against DW 1’s assertion that he did a pre - trip inspection, he appears to have done that by merely looking at or feeling the tyres by hand if he ever did. He has said nothing about having used a tyre pressure to assess whether such pressure needed to be increased or not.
[32] Although this need may not arise as an issue in instances where no tyre burst has occurred resulting in an innocent road user incurring some damage to his car, it cannot be the case where the burst has occurred. Where this was not done and a tyre burst occured resulting in a road user suffering a loss, it would be difficult for the owner or person in control of the vehicle not to be held responsible. It may well be that if the burst of the tyre is not attributable to loss of pressure over time, it could be attributed old age, the socalled wear and tear. I did not hear it being said when last the tyres were changed.
[33] I will therefore find that the tyre loss was occasioned by either of these and that therefore the Second Defendant cannot escape liability. I find that by the Second Defendant and indeed the evidence deliberately excluding the First Defendant from any liability, I have not been shown anything that would cause the liability to be attributed to the First Defendant. He testified, without being challenged that he did a pre - inspection trip but would not find anything amiss. I have not heard that ascertaining the tyre pressure before embarking on a trip was still part of his duties nor have I been shown that such an equipment had been supplied by the Second Defendant or by extension the Government as the owner of the Vehicle for such use and as the employer of the First Defendant. I am saying all this to put the question of the First Defendant not being liable as an individual beyond any doubt. In other words, if anyone has to be liable it cannot be the Plaintiff nor can it be the First Defendant.
[34] DW3, 3998 Sergeant Themba Nhlanhla Vilakati was called. He testified more on him having attended the accident in the company of his colleagues as referred to above in the testimony of PW2, 3567 Constable Comfort Mngometulu. The highlight of his testimony with regards the circumstances of this matter is in two areas. The sketch plan he prepared of the scene and the nature or extent of the damage on the Plaintiff’s Motor Vehicle.
[35] With regards the sketch plan he drew he says that the brake marks left by the Inyala before it eventually stopped after hitting the guardrails, was about 89 paces. Those left by the Plaintiff’s motor vehicle were about 60 paces before it came to a halt. Otherwise the distance between the parked inyala and the parked Plaintiff’s car was 89 paces. These circumstances seem to reveal that the Defendant’s vehicle, the inyala was driving at a high speed in the circumstances of the matter. Whereas this speed may not have been above the regulated one, I say it was high only in so far as the Defendant’s car could not stop in good time to avoid the accident after it lost control.
[36] Whilst it could be argued that the Plaintiff’s driver should also have driven at a speed that would have allowed him to stop and avoid the accident, I am convinced a distinction has to be drawn between the two. The latter did not go out of his way to cause an accident nor did he do anything unlawful to cause, or result in, the accident. He was driving on a legitimate fast lane in circumstances where it cannot be shown he was beyond the regulated speed limit and in circumstances which depict a sudden condition.
[37] As regards the nature of the damage on the Plaintiff’s motor vehicle, officer Themba Vilakati’s testimony becomes crucial when he reveals the nature or extent of the damage from what he could see. What was visibly damaged, and extensively so in his testimony, was the windscreen, the bonnet, the right head lamp and part of the front right part, which I understand to be the right fender. There was otherwise no spillage there or on the tarmac, be it of water (as would have spilt or leaked from the radiator and related accessories or parts of the vehicle) or oil as would have leaked from the engine or related seals. To cap this, officer Vilakati testified that he then asked PW1, the driver of Plaintiff’s vehicle to drive it to the left shoulder of the Mbabane bound route before eventually having it driven from the scene of the accident to the insurance depo’s premisses where such cars were kept awaiting repairs.
[38] Whereas Vilakati saw the car being driven without hiccups from the middle of the road where it had stopped after the collision to the left handside shoulder of the road, he concludes it was driven away from the scene of the accident because they were never asked to arrange for a breakdown as the norm would dictate. He further so concludes because there was nothing to stop it from being driven away after it had been driven from the centre of the road to the left shoulder of the road. I did not understand there to be a serious contention on this aspect of the matter.
[39] This then speaks to the question of the proof of the damages which is to say can it be said to have been proved? Whereas the quotation as made by or on behalf of the Plaintiff by a single service provider, who went on to get the job without contesting his quoted work and prices; PW4 Japhter Magwaza, sought to justify it in circumstances that indicated if they had been damaged there would have been spillages off either water or oil on the tarmac. This lack of contesting or competing quotations from at least two independent garages, could go on to bolster the case as made by Superitendent Lusito Dlamini, who like Mr Magwaza was an expert as well as that made by DW1 Bhekisisa Nxumalo and DW3 Sergeant Themba Vilakati in so far as these latter two indicated the vehicle was serviceable in so far as it drove of its own accord, which would not have happened if the said items had problems.
[40] According DW2, Superitendent Lusito Dlamini the following items were not consistent with the damage that ensued from the collision. He prayed those be excluded from that payable to the Plaintiff. These are the items whose monetary value he prayed should be excluded:- an engine fan blade, the visco fan, the water pump, the engine front timing cover, antifreeze, engine tappet cover, engine tappet cover seal, as well as for the work done which includes, seting the vehicle on a chassis straightener as well as to straightening and aligning the front chassis frame. These items add up to a sum of E15 313.03, and the court was asked to exclude their value from any amounts as may be paid to the Plaintiff.
[41] I am therefore convinced that the items identified above should be taxed off from the quotation for the Plaintiff to be paid the balance.
[42] The position of the law on collisions is that liability in such instances is founded on negligence by the offending party. Negligence has been defined as a failure to exercise that degree of care which the law requires having regard to the circumstances of each case. See in this regard Isaacs and Leveson’s The Law of collisions in South Africa, Fifth Edition, Butterworths 1974 at page 1. In the present matter, I have already indicated that in my view the negligence was in the failure to ensure that the tyres of the Inyala were gauged to determine the level of the pressure required in the burst tyre. It shall be remembered that from the facts of the matter the expert found that the most probable cause of the collision with the guardrails by the driver of the Inyala was the low pressure in the tyre which could not be attributed to any item that had pierced the tyre concerned. This is covered in the cross examination and the answers thereto of Superitendent Lusito Dlamini as asked by the Court.
[43] As concerns the role of speed and how excessive speed is measured on the roads, particularly in collisions, the court put the position as follows in Thornton V Fismer 1928 AD 398 per Solomon, CJ as captured in Isaacson and Laveson’s The Law of Collisions in South Africa (Supra) at page 20. The following quote from the said book, with which I agree, asserts the position :-
“He (defendant)would be convicted of driving at an excessive speed, by which I mean, not that he was driving at a great rate, but at a speed which in the circumstances was excessive, in as much as it prevented him from pulling up, when he saw persons standing in his way, in time to avoid running them down. For the question of when speed is excessive is one which is relative to the special circumstances of the case.”
What this excerpt means in the circumstances of the matter is that in so far as the defendants car could not be stopped so as to avoid colliding with the guardrails after it lost control, then he was for purposes of the law driving at an excessive speed, the actual speed he was driving at not mattering.
[44] I agree that it is a question of fact whether by the exercise of reasonable care, the driver of a vehicle could have stopped in time to avoid colliding with an obstacle which he suddenly sees or should have seen. See Heneke V Royal Insurance Co. Ltd 1954 (4) SA 606 (A). In the present matter, the facts revealed that after the tyre burst, the driver of the Inyala could only come to a halt or stop after some 89 paces. I am of the view that was indicative of an excessive speed in the circumstances. If he was driving at a speed that would have allowed him to stop as soon as there was the burst of the tyre and possibly a collision with a few guardrails, he would have been able to stop soon thereafter and thus would have avoided the pushing of the guardrails into the fast lane of the cars heading towards the opposite direction.
[45] As concerns the Plaintiff’s driver’s duty to stop or act reasonable when a collision seems imminent, I agree that the broad or general principle of the law is that;
“The driver of any vehicle should stop altogether if he sees or has an opportunity of seeing that a collision is likely to result unless he does so. (Adams V Clarke 13 CTR 407). If stopping is not the best method of avoiding the collision, he must act as a reasonable man would under the circumstances of the case to avoid the accident. (Solomon V Musset and Bright 1928 AD 138).
[46] I however do not believe that the circumstances gave him such a choice. I am convinced it was a case of a sudden condition which he could not help when considering the all the circumstances as referred to above.
[47] Consequently, I have come to the conclusion that Plaintiff’s claim succeeds to the extent referred to above, which is to say it succeeds less the sum of E15 313.03, which I have found was not proved to be a loss germaine to the collision concerned in the circumstances.
[48] I accordingly make the following order-
1. The Plaintiff’s claim succeeds to the extent referred to herein below.
2. The Second Defendant, (and not the First Defendant who was merely in the course of duty and has not been shown to have been negligent as a person and litigant qua) is to pay the Plaintiff the sum of E85, 366.64 less the sum of E15, 313.03, which is the sum of E70, 053.61.
3. The Second Defendant is to pay interest on the said sum of E70, 053.61 at 9% per annum from the date of summons to that of Judgement.
4. The Second Defendant be and is hereby ordered to pay Plaintiff the costs of suit at the ordinary scale.
______________________
N. J. HLOPHE
JUDGE – HIGH COURT
