IN THE HIGH COURT OF ESWATINI
Case No. 1050/2018
In the matter between:
MABANDLA MANYATSI Appellant
MHLUPHEKI MALINGA Respondent
Neutral citation: Mabandla Manyatsi v Mhlupheki Malinga (1050/2018)  SZHC 13 (18 February 2020)
Coram : T. L. Dlamini J
Heard : 26 March 2019
Delivered : 18 February 2020
Summary: Civil Law – Law of Delict – Claim for damages arising from an accident where the plaintiff’s motor vehicle knocked down the defendant’s cow – Plaintiff then instituted action proceedings for damages against the defendant – Damages sought in respect of repair costs necessary to restore the plaintiff’s damaged motor vehicle to its pre-accident condition.
The action proceedings were heard by a magistrate’s court which dismissed the claim – The plaintiff then noted an appeal against the judgment of the magistrate.
Held: That there is no misdirection which the trial court committed – And that the findings made by the magistrate are consistent with the evidence tendered before the court a quo – Appeal dismissed – Each party ordered to bear its own costs.
 The plaintiff is an adult male Liswati who resides in Manzini in the Manzini region. The Defendant is an adult male Liswati residing at a place known as ka-Water in Lonhlupheko, under the Lubombo region.
 Before this court is an appeal against the judgment of a Magistrate’s court (the court a quo) based in Siteki, Lubombo Region.
 On the 21 September 2015 the plaintiff (Appellant in casu) sued out a combined summons against the defendant claiming payment of E11, 983.80 (eleven thousand nine hundred and eighty three emalangeni and eighty cents). The claim was premised on damages occasioned by the plaintiff after his motor vehicle knocked a cow belonging to the defendant and got damaged as a result.
 It was on the 29 March 2015 when the plaintiff’s motor vehicle knocked a cow belonging to the defendant whilst driving on the Lonhlupheko/Simunye MR 3 public road. According to the particulars of claim, the car was extensively damaged on its front part, windscreen, fender, as well as the air conditioning system. The claim is for repair costs that were necessary to restore the motor vehicle to its pre-accident condition.
 Plaintiff pleaded that the collision of his motor vehicle with the defendant’s cow was solely caused by the defendant’s negligence in one or more of the following respects:
i) Defendant negligently allowed his cow to be on a public road and thus caused an accident to motorists.
ii) Defendant failed to keep a proper look out for his cow.
iii) Defendant failed in his legal duty to put in place measures to ensure that his cow does not stray into a public road.
CONSIDERATION OF APPEAL GROUNDS
It is the view of this court therefore that the plaintiff was driving at a higher speed than the 80 km/hr he claimed to have been driving on the evening in question. Perhaps even more than the 120 km/hr stipulated by the road sign on that stretch of the road.
 Explaining how it made the finding, the court a quo states at page 6 of its judgment found at page 144 of the record that it considered the evidence of the Appellant who stated that he was driving at 80 km/hr and had his headlamps on dim as he was following another vehicle at a distance of plus or minus 50 – 100 metres. The Appellant’s plea on the papers, supported by his evidence before court, is that “He suddenly saw this other vehicle veer off the road not knowing why as it had not even indicated it was turning off the road.”
 The court noted however, that the Appellant did not state either in his papers or in-chief that the vehicle he was following veered off the road because it had collided with the same cow on the road. This evidence was only revealed by the two traffic police officers who attended the accident scene. Both vehicles were damaged at the front, according to the traffic police officers.
 The judgment is clearly instructive on why the court made the finding now being sought to be impugned. At page 7 of its judgment, found at page 145 of the record, the following is stated:
“… The view of the court is that these two vehicles were driving at high speed and as a result both drivers failed to control their vehicles to avoid a collision with the beast. It may well be that the speed limit on that stretch of the road is 120 km/hr but if the one motor vehicle in front of the other knocks down the cow, the following vehicle in the view of the court, ought to have avoided the collision. This is taking into account that the plaintiff had testified that he was following it at a distance of 50 – 100 metres… Whether he had dimmed his lights or not, there is sufficient room at that distance to have avoided the collision…”
 I find no misdirection by the lower court in finding that given the distance and speed that the Appellant testified about, the Appellant ought to have avoided knocking the cow as the vehicle in front had already knocked the same cow, hence it veered off the road. The only logical conclusion, in my view as well, is that the Appellant could not avoid knocking the cow because he was driving at an excessive speed than that which would have enabled him to avoid the sudden emergence of an obstacle on the road. This ground of appeal fails and is therefore dismissed.
 The third ground of appeal is that the lower court erred when dismissing the claim on the basis that the plaintiff did not keep a proper lookout and proper following distance to the vehicle in front. The Appellant submits that this finding by the lower court was inconsiderate of the evidence of the Appellant that he was following the vehicle in front at a distance of 50-100 metres. The Appellant further submits that the finding did not take into consideration the fact that the cow was black in colour and could not therefore be readily seen, especially at the time of the accident.
 I must point out at the outset that it is clear from the judgment of the lower court that it took into consideration the evidence tendered by the plaintiff that he was following the vehicle in front at a distance of 50-100 metres. The lower court gave reasons, whose substance is convincing in my view, why it arrived at the conclusion and finding that the plaintiff did not keep a proper look out and proper following distance to the vehicle in front. Below is an extract of the judgment of the lower court found at page 145 of the record:
“… It may well be that the speed limit on that stretch of the road is 120 km/hr but if the one motor vehicle in front of the other knocks down the cow, the following vehicle in the view of the court, ought to have avoided the collision. This is taking into account that the plaintiff had testified that he was following it at a distance of 50 – 100 metres. On average it could be said he was following it at 75 metres. Whether he had dimmed his lights or not, there is sufficient room at that distance to have avoided the collision. There is enough room or space or distance at 75 metres to have taken a proper lookout as to what was taking place in front of him.” (own emphasis)
 At page 146 of the record, the lower court states what is quoted below:
“The view of the court is therefore that the plaintiff had not kept the proper or reasonable following distance to the vehicle in front of his. Every driver is under a duty to travel at a safe distance from a vehicle ahead of him. The following driver is under a duty to regulate his speed and the distance from the vehicle ahead of him so as to be able to avoid colliding with it should the vehicle ahead make a sudden stop (SEE COOPER AND BAMFORD, South African Motor Law page 468, and the authorities there cited).
 The lower court further explained, how in its finding, the plaintiff failed to take a proper look out of what was taking place on the road. The court states what is quoted below: (see page 146 of record)
“… The view of the court is therefore that the plaintiff in this matter did not follow the ‘2 seconds rule’. He drove his vehicle too close to that of the Mr. Malinga who was in front of him.
As a result the plaintiff failed to take a proper look-out of what was taking place on the road. The view of the court is that he had enough room firstly at 50+ metres to have maneuvered his vehicle and avoided the object on the road; and secondly had he followed the ‘2 seconds rule’ of the thumb, he still would have avoided colliding with the beast on the road.” (own emphasis)
 During trial, Mr. Michael Soko who is a driver examiner from the Road Safety Council under the Ministry of Public Works and Transport was called as a witness. He is the witness who testified about the ‘2 seconds rule’ following distance. According to his evidence on the record, a driver should ideally stay at least “two seconds” behind any vehicle that is in front of the one the particular driver is driving. He testified that a driver is able to control and maneuver his vehicle within ¾ of a second and bring it to stop. If the driver is unable to do so, it means that he was following the vehicle in front too close.
 In as much as it is correct that the cow was black in colour, it is incorrect and misleading not to point out that the cow had white colours as well. The cow had white patches on the shoulders and below its abdomen. The Respondent described his cow in paragraph 3 of its counter-claim as follows:
On or about the 3rd March, 2015, Defendant’s cow to wit: black in colour with white patches on the shoulders and below its abdomen, at an advanced pregna
ncy stage, with horns, and exhibiting an ear tag marked number 233/908 went missing. (own emphasis)
 In its plea to the counter-claim, the Appellant (who was the plaintiff then) answered the above quoted paragraph as follows:
2. AD PARAGRAPH 3
Plaintiff has got no knowledge of these allegation and therefore can
neither admit nor deny same.
 On the pleadings made by the parties in the above paragraphs, the white colours on the cow are not denied and are neither disputed either. This is notwithstanding the fact that the cow was also described by the ear tag number 233/908. This ear tag number was, at the time of drafting the pleadings, known to be for the Respondent’s cow. The description of the cow by its colour became relevant and important because the Respondent disputed that it was his cow that was knocked by the Appellant’s motor vehicle. When giving evidence in court, the Respondent testified as quoted below:
“… The colour of the cow, its description was questionable. I was not satisfied it was my beast. The beast in the summons was described as a black cow, that is all. My cow instead was black with white patches on the armpits and on the bladder. …” (see page 93 of record)
 In his evidence, traffic police officer constable Nkosinathi Mlangeni (PW3) described the cow by stating that “It was a big cow with a white spot underneath its belly.” (see page 70 of the record).
 The colour of the cow does not therefore advance the Appellant’s case in my view because the cow also had white patches on the shoulders and below its abdomen. It was not completely black.
 On the issue of the time of the accident, evidence on the record is that it occurred on 29 March 2015 at around 19:00 hours. This is reflected on the first page of the judgment of the court a quo at page 139 of the record. The plaintiff testified that it occurred between 19:30 hours and 20:00 hours. This evidence is at page 45 of the record, and is confirmed on cross-examination at page 50 of the record. According to the Appellant’s witness PW2, who was also present and is a wife of the Appellant, the accident occurred around 19:30 hours. This evidence is at page 59 of the record.
 Sunset on 29 March 2015 was at 18:00 hours (sourced from Google). The darkness around this time of the year is mild during those hours and not too strong. Over and above what I state in this paragraph, I have confidence in the finding of the trial court as it had the benefit of hearing evidence of the witnesses, and observed their demeanor as well. The court also benefitted from an inspection in loco that was conducted during the trial.
 Having considered the third ground of appeal, I find no misdirection by the court a quo and this ground of appeal is accordingly dismissed.
 The fourth ground of appeal is that the lower court erred when dismissing the claim on the basis that the hazard on the road was placed by the first vehicle driven by Mr. Sipho Malinga. The Appellant submitted that this finding cannot be sustained in law since no evidence was adduced to the effect that the cow was dragged and or placed into the road by the said Mr. Sipho Malinga.
 I wish to first place it on record that the surname of the driver of the motor vehicle that was at the front is Malima and not Malinga. This surname is recorded in the Police Traffic Accident Report. (see page 37 of record) It reflects the driver as Malima Sipho, S.M.A. 33 years. Police officers gather this information from the Driver’s License of the person who was the driver when an accident occurred. I am therefore of the opinion that the transcriber of the record, acting out of mistake, recorded the driver as Sipho Malinga instead of Sipho Malima.
 Coming back to the ground of appeal, is my opinion and finding that what the lower court stated has been understood out of context by the Appellant. Common sense interpretation of the position taken by the lower court is that the plaintiff’s vehicle knocked the cow after the car driven by Mr. Sipho Malima had already knocked and incapacitated it from moving away from the road. The submission made on behalf of the Appellant that no evidence was adduced that the cow was dragged and or placed on the road by the said Mr. Sipho Malima has the effect of trivializing the real issues which the court needs to determine and base its findings on. I have no hesitation in my mind that the lower court made that finding in order to stress its observation and displeasure that the plaintiff concealed the fact that the cow he knocked had just also been knocked, and therefore became incapacitated from moving out of the road, by the vehicle driven by Mr. Sipho Malima. From reading the lower court’s judgment, one can grasp that the court was concerned about the plaintiff’s concealment of that important evidence. Below is what the court states:
“The Plaintiff … stated in evidence that he had his headlamps in dim while following this other motor vehicle which was registered XSD 936 AH and driven by one Sipho Malinga.
The plaintiff states that this vehicle suddenly veered off the road to the left without indicating and in that moment he crashed his into the beast that was lying on the road in his lane. He then parked on the side as well.
In his evidence, the Plaintiff does not say or mention though that the other vehicle had also collided with the same beast on the road. Nor is it mentioned anywhere in the pleadings. That this was the case only emerges from the evidence of the two traffic police officers from Siteki Police Station who responded to the incident. They revealed that both vehicles had actually collided with the same beast and were both damaged in front.
The other driver of the vehicle in front of that of the Plaintiff who crashed first with the beast, did not come to testify, nor was he called by either party…”. (see page 140 of record)
 It was on the premise of the above observation that the court mentioned in its judgment the finding which the Appellant has now based his fourth ground of appeal upon. Below I reproduce what the lower court states in the judgment:
“The hazard on the road was placed by the first vehicle driven by Mr Malinga. And the plaintiff due to his own failures crashed against it. He is therefore the creator of his own misfortune as it were. The court finds that the plaintiff drove at high speed; failed to keep a proper or reasonable following distance and failed to keep a look-out. He was therefore negligent in the circumstances. …”
 It is my finding that the expression used by the lower court, viz., “The hazard on the road was placed by the first vehicle driven by Mr Malinga” is being misinterpreted and understood out of context by the Appellant.
 I also take notice of the fact that even the wife (PW2) of the Appellant followed in the footsteps of her husband. She did not disclose when giving evidence, that the car they were following was the first to knock the cow. Her evidence is quoted below:
“… My husband was driving our motor vehicle that night. And we were following another motor vehicle from a distance. Our lights were on dim. We saw this vehicle making a turn and it was at that point that we hit a cow on the road. The cow had an ear tag with the numbers 233/908. My husband after the accident called the police. The police arrived at the scene and they recorded statements from us.” (see page 60 of record)
 The failure to disclose the information that the cow was first knocked by the vehicle in front of that driven by the Appellant constitutes, in my view, a concealment of relevant and important evidence. This evidence would require the Appellant to explain how he also knocked a cow that had already been knocked by a vehicle driven ahead of his. This would be so because a driver is required by the road traffic rules to drive at a speed that would enable him to avoid a sudden emergence of an obstacle on the road.
 For the reasons stated in the paragraphs above, the fourth ground of appeal stands to be dismissed, and I so order.
 The fifth ground of appeal is that the lower court erred in dismissing the Appellant’s claim much against the evidence tendered at the trial that the cow belonging to the Respondent was hit by both vehicles whilst it was in the middle of the left lane of a public road without it being driven by any person.
 I must state at the outset that even though the cow was hit by two cars, only the Appellant, who drove the car that was following the one which was driven ahead, instituted proceedings claiming compensation. His claim was dismissed because the trial court found him to have driven negligently by failing to keep a proper following distance and driving at high speed, hence he failed to avoid the accident when he ought to have done so.
 There was no misdirection by the lower court in dismissing the claim because the Appellant sought to be paid damages caused by his own negligent driving. He cannot benefit from his own wrong. This ground of appeal stands to be dismissed at the outset and I so order.
 I now proceed to deal with the first ground of appeal which I proposed, in paragraph  above, to determine at the end of the judgment. The ground of appeal is that the lower court erred in dismissing the Appellant’s claim, much against the provisions of s.77 (7) of the Road Traffic Act of 2007 which places a strict liability against an owner (Respondent in casu) of an animal that causes an accident on a public road. The section provides as quoted below:
(1) A person shall not leave or allow an animal to be on a section of a public road and / or leave such animal in a place from where it may stray onto a public road.
(2) – (6) …
(7) In the event an accident had occurred because of the stray animal, the owner of that animal(s) shall be held liable for causing the accident.
 The Appellant’s argument is that the use of the term shall in subsection (7) places strict liability on the Respondent to ensure that his cattle do not stray into the road, and that in the event they do, he is to be held liable for the accident.
 It was submitted on behalf of the Appellant that s.77 is a new provision that was promulgated in 2007 in order to deal with the mischief of having people killed on the road by straying cattle. It was further submitted that prior to 2007, this provision was non-existent.
 I find it apposite however, to mention that s.77 did not do away with the duty of a driver to obey rules of the road and traffic signs. Evidence on the record shows that there is a traffic sign that cautions drivers and alert them to be aware of the presence of cattle on that road. If liability is strictly and solely for the owner of livestock that stray onto the road, as argued on behalf of the Appellant, then there would be no need for the cattle sign to have been placed on that stretch of road.
 As much as it is true that the term ‘shall” which is used in subsection (7) is mandatory, it does not, however, exonerate the Appellant from his duty to comply with road signs and traffic rules when driving on the road.
 On the evidence before court, the lower court correctly found, in my view, that the Appellant drove at high speed in the circumstances of this case, failed to keep a proper following distance, and consequently was unable to keep a proper look-out of the road and other obstacles that may cause an accident. He therefore drove negligently, the lower court correctly held.
 Driving negligently is an offence in terms of s.89 of the Road Traffic Act of 2007. No driver is permitted to drive negligently and the same mandatory word shall is used to prohibit negligent driving. The section provides as quoted below:
Reckless or negligent driving
89. (1) A person shall not drive a vehicle on a public road recklessly or negligently.
(3) In considering whether an offence has been committed under subsection (1), the court shall have regard to all the circumstances of the case including, but without prejudice to the generality of the foregoing provisions in this section, the nature, condition and use of the public road upon which the offence is alleged to have been committed, the amount of traffic which existed at the time, or which could reasonably have been expected to be, on that road and the speed and manner in which the vehicle was driven. (own emphasis)
 I have already stated in paragraph  above that the court a quo correctly found the Appellant to have driven negligently. The finding is upheld by this court. The Appellant committed an offence, as well, in terms of section 89 of the Road Traffic Act of 2007. This provision is mandatory, just as section 77 of the Act is. The Appellant is therefore not in any better position than the Respondent, hence it is my finding that justice supports the judgment of the Learned Magistrate.
 For the foregoing, the appeal is dismissed and each party is ordered to bear its own costs.
JUDGE – HIGH COURT
For Appellant : Mr L. Manyatsi
For Respondent : Ms L.G. Shongwe