Bhembe v Swaziland Royal Insurance Corporation (NULL) [1994] SZHC 31 (27 May 1994);

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IN THE HIGH COURT OF SWAZILAND


HELD AT MBABANE


CIV. CASE NO. 182/91


In the matter between:


PIET BHEMBE Plaintiff


And


SWAZILAND ROYAL INSURANCE CORPORATION Defendant


CORAM : DUNN J.


FOR THE PLAINTIFF : MR NTIWANE


FOR THE DEFENDANT : MR CURRIE


JUDGMENT 27 MAY 1994


In this action, the plaintiff claims damages in the sum of E54.552.00 in respect of personal injuries suffered by him in a road accident involving a motor vehicle he was driving and a motor vehicle driven by one Gideon Kunene. The defendant was the duly authorised insurer of the motor vehicle driven by Kunene, in terms of the Compulsory Motor Vehicle Insurance Order, 1973 as amended.


When the matter was called, the parties indicated that the question of the quantum of damages had been agreed upon and that I was only called upon to decide on the question of the defendant's liability.


The circumstances under which the accident occurred as given by the plaintiff are brief. The plaintiff was driving a Datsun light delivery motor vehicle from Malkerns to Mahlanya between 12.00 and 1.00 pm on the 6th February 1989.


2


The plaintiff had a passenger, France Tembe, in the cab. It was raining heavily and mist had formed immediately above the surface of the tarred road. There was a bend to the left, ahead of the plaintiff. As the plaintiff approached this bend he noticed a light delivery truck travelling in his direction ahead of him. As he was approaching this vehicle, it suddenly applied brakes and stopped forcing the him to do the same. The plaintiff's vehicle went into a skid and eventually stalled behind the other vehicle. According to the plaintiff his vehicle skidded straight ahead within his correct lane before stalling. The plaintiff told the court that when his vehicle stopped, he wound down his window and saw a motor vehicle approaching at a high speed from the opposite direction. The plaintiff stated that his vehicle was stationery in the bend and that the oncoming vehicle cut into the bend and collided with his motor vehicle. It was his evidence that the other vehicle hit into the right headlamp of his motor vehicle. According to the plaintiff, the point of impact was on his correct lane i.e. The left lane as one faces the Mahlanya direction.


The defendant's case which was put to the plaintiff under cross-examination was that the plaintiff had applied his brakes, collided with the rear of the vehicle ahead of him and skidded to his incorrect lane and collided with the oncoming vehicle driven by Kunene. The plaintiff denied having skidded to the right and maintained that his motor vehicle was stationery at the time of the collision.


France Tembe gave evidence similar to that of the plaintiff with regard to the sudden stop by the vehicle ahead.


4


The vehicle was travelling in the opposite direction. The vehicle appeared quite suddenly and Kunene was not able to swerve off the road to his left. He was able to swerve slightly to the left and the other vehicle hit into the right hand side of his vehicle. Kunene maintained under cross examination that the collision occurred on his side of the road.


The police officer 2432 constable Nxumalo who attended the scene of the accident was called by the defendant. Nxumalo prepared a sketch plan of the scene. According to Nxumalo the point of impact, which he determined by the presence of mud and broken pieces of glass, was on the left lane as one faces Malkerns. Nxumalo found the plaintiff's vehicle on the road. Kunene's vehicle was off the road on the left hand side as one faces Malkerns. Nxumalo told the court that the collision occurred away from the bend, on a straight section of the road. The bend is not reflected in the sketch plan. With the exception of the question of determining the point of impact, Nxumalo's evidence was largely unchallenged.


Absalom Mavuso was the driver of the white light delivery vehicle that was ahead of the plaintiff. The vehicle was a Government vehicle. Mavuso had a passenger, Tfobhi Dlamini in the vehicle. Mavuso told the court that whilst driving on his lane a vehicle which was following him suddenly hit into the back of his motor vehicle. His motor vehicle was forced forward and to the left, off the road. At that moment he heard another bang and realised immediatetly thereafter that the vehicle that had hit into his car had been involved in a collision with a motor vehicle travelling in the Malkerns direction. Mavuso found the vehicle that was travelling towards Malkerns lying off the road, on the left hand side.


5


The light delivery vehicle was stationery across the road. Mavuso's passenger, confirmed this evidence. These two witnesses did not mention that the collision took place in the bend. They denied the suggestion that the two vehicles came to rest in contact with each other on the road, after the collision. They maintained that the plaintiff's vehicle remained on the road as reflected in the sketch plan. Tfobhi confirmed that the plaintiff's motor vehicle had in fact collided with Mavuso's vehicle.


The evidence given in support of the plaintiff's case does not hold together at all. There can be no doubt that the plaintiff was either not keeping a proper look out, or that he was driving at an excessive speed as he approached Mavuso's vehicle. If in deed Mavuso did apply his brakes and the plaintiff was forced to do like wise with the result that his vehicle skidded it goes without saying that the plaintiff failed to keep at a reasonable distance behind Mavuso to enable him to avoid precisely the situation that arose. I have no reason to doubt the evidence of Mavuso and his passenger that the plaintiff's vehicle collided with that of Mavuso. The plaintiff's witness, Tembe, made it quite clear that the plaintiff's vehicle skidded to the right when according to Tembe the plaintiff attempted to avoid colliding with Mavuso's vehicle. He was careful, however, to point out that the plaintiff's vehicle did not skid onto its incorrect lane. This explanation is in my view an attempt to try and cover up what actually happened. It was raining and there was mist. The situation in which the plaintiff found himself happened very quickly. He suddenly saw Mavuso's vehicle ahead of him. He applied his brakes, skidded and almost instantly collided with the oncoming vehicle. There could have been no time in the circumstances for careful observation by Tembe that the plaintiff's vehicle had not skidded over the centre line on the road.


6


Tembe was in the passenger's seat and could not have been expected to be keeping a watch on the position of the centre line on the road.


I accept the evidence that the collision occurred on a straight section of the road. That is reflected in the sketch plan and is confirmed by Mavuso and his passenger. There could in the circumstances have been no question of Kunene having "cut into" the bend that was referred to.


Kusa Dlamini's evidence is puzzling. Unfortunately, I did not have the benefit of the evidence of any person/s who were in the USDF landrover which Dlamini states also stopped at the scene. Dlamini told the court that the two motor vehicles were moved off the road before the police arrived to prepare the sketch plan. The evidence of the police officer indicates otherwise. There is the clear possibility that Dlamini does not recall precisely what transpired.

Dealing with the case on a balance of probabilities it appears to me that what happened is that the plaintiff was driving along in the rain and mist. He suddenly came up behind Mavuso's motor vehicle. Whether or not Mavuso's vehicle was stationery is not of importance. The plaintiff was forced to apply his brakes and his vehicle skidded to the right. It is likely that the plaintiff himself also swerved his vehicle to the right to avoid a full collision with Mavuso's vehicle. The swerve to the right would no doubt have been the more preferable, compared to swerving off the road onto the left. At that point the plaintiff's vehicle encroached onto Kunene' s lane and the collision occurred.


7


It is quite clear that it is the plaintiff who failed to keep a proper lookout. Given the weather conditions, he was under a duty to drive at such a speed and manner that he would be able to bring his vehicle under control in the event of coming across a vehicle such as that of Mavuso. He should not have placed himself in the position where his vehicle had to go into the type of skid it did.


The plaintiff has failed to prove negligence on the part of Kunene and has in the circumstances failed to prove the liability of the defendant.


B. DUNN


JUDGE