THE HIGH COURT OF SWAZILAND
Case No. 620/93
the matter between:
SHILUBANE & ASSOCIATES Plaintiff
ATTORNEY GENERAL 1st Defendant
MNDZEBELE 2nd Defendant
PLAINTIFF Mr. Mamba
FIRST & SECOND DEFENDANTS Mr. Magagula
7th April 1992, at a point on the Mbabane/Manzini road near the SEDCO
offices, a collision took place between two vehicles one of which was
owned by the plaintiff which a firm of attorneys. The other was a
police vehicle owned by the Swaziland Government.
vehicle was driven at the time by a servant of the owner acting in
the scope of his authority and in the course of his employment by the
collision took place at approximately 9.00 a.m. The weather and road
conditions were clear and dry.
Ntiwane who was the driver of the vehicle belonging to the plaintiff
gave his account of how the collision took place. He informed the
court that he was driving in the direction from Mbabane
Manzini and he had stopped at the second traffic light which is at
the crossing where the road leads off to Mhlambanyatsi. When he had
already stopped at the traffic lights, he noticed the police vehicle
stationery on the left hand side of the road apparently allowing a
passenger to get on to the vehicle. When the lights turned green for
him, he proceeded towards Manzini on the inside or fast lane. The
police vehicle also moved off initially driving on the left hand side
of the lane and then suddenly according to him, crossing lanes to the
inside lane directly in front of the vehicle driven by him and
stopping at the point where the traffic island comes to an end.
traffic island divides the road into a double carriage highway for a
short distance. On each side there is room for two lanes of traffic.
Ntiwane testified that the police vehicle changed lanes, and
decelerated or stopped in front of him so suddenly that he was unable
to avoid hitting the vehicle despite violent application of his
brakes. The police vehicle was, as shown on the plan which was later
produced as part of the defendant's case, propelled both forwards and
sideways so that it came to rest facing Mbabane on the wrong side of
the traffic island. It had apparently been pushed around the end of
the island through 180 degrees.
plaintiff's motor vehicle had come into violent collision with the
left rear of the defendant's vehicle and after hitting the
defendant's vehicle came to rest some 34m from the point of impact as
demonstrated on the plan. This was common cause and on the plan there
are marks 34m in length on the road leading from the point of impact
to where the plaintiff's vehicle came to rest of the left hand side
of the road.
plaintiff adduced evidence of an independent witness who largely
confirmed what was said by Ntiwane.
is a difficulty with Ntiwane's evidence. He claims that the police
vehicle then slowed down or stopped in preparation to executing a U
turn. The point of impact however is shown on the plan had such a
position where such a manoeuvre could not have been commenced. It
seems that the plaintiff has infered that a U turn was intended to
been executed from the fact that the police vehicle came to rest
facing Mbabane. It is strange that Ntiwane and his witness should
both have drawn this inference. The far more probable explanation for
this is that the vehicle was sleud around in the heavy impact.
driver of the police vehicle in giving evidence for the defendant
denied that he had been about to execute such a manoeuvre.
evidence is that he had stopped on the side of the road, picked up a
passenger and was to proceed towards Manzini and was intending to go
to some houses on the other side of the road. For this purpose he
crossed from the left hand lane in which he had been travelling and
took up a position in the right hand lane. In cross examination he
admitted that he executed this manoeuvre, moving from the left hand
lane to the right hand lane without properly satisfying himself that
it was safe to do so, without giving any signal, and without as I
said ensuring that there was no traffic approaching from the rear
which would have been impeded by this manoeuvre.
executing this potentially dangerous manoeuvre incautiously the
driver of the police vehicle was negligent, such negligence was
clearly a cause of the collision and the defendants are liable
jointly and severally for the damages claimed by the plaintiff.
negligent driving was however a contributory factor. The marks on the
road so indicate and his own evidence confirms that he came to a halt
with a violent screech of brakes. His evidence is that he was
travelling at an ordinary speed. If one's speed is such that one is
unable to bring one's vehicle to a halt in a sudden emergency,
especially in traffic conditions where defensive driving is to be
expected, one is driving at too high a speed whatever that speed may
be. It is the driver approaching from behind who has the duty to
avoid colliding with a car in front of him. The evidence strongly
sugests that Ntiwane accelerated too sharply and did not have proper
regard to the traffic conditions ahead of him when he moved off from
the traffic light at high speed. The track left by the tyres of his
vehicle strongly support an inference of an inordinate speed and
inattention to the traffic conditions.
is fault attributable to the plaintiff which was the major cause of
received no submissions from either counsel as to how apportionment
should be effected. I have concluded that as the preponderance of
fault lies with the plaintiff that it would be fair to reduce the
amount of the agreed damages to which the plaintiff would otherwise
be entitled by 60% The damages were agreed in an amount of E11,000
and accordingly there will be judgment for the plaintiff against both
defendants jointly and severally the one paying the other to be pro
tanto release in the amount of E4,400. The defendants will also pay
the costs of this suit jointly and severally.