Tumelo Machachamise V Sechaba Sello & 2 Others (CIV/T/605/2020) [2023] LSHC 203 (25 August 2023)

# Tumelo Machachamise V Sechaba Sello & 2 Others (CIV/T/605/2020) [2023] LSHC 203 (25 August 2023) [ __](https://api.whatsapp.com/send?text=https://lesotholii.org/akn/ls/judgment/lshc/2023/203/eng@2023-08-25) [ __](https://twitter.com/intent/tweet?text=https://lesotholii.org/akn/ls/judgment/lshc/2023/203/eng@2023-08-25) [ __](https://www.facebook.com/sharer/sharer.php?u=https://lesotholii.org/akn/ls/judgment/lshc/2023/203/eng@2023-08-25) [ __](https://www.linkedin.com/sharing/share-offsite/?url=https://lesotholii.org/akn/ls/judgment/lshc/2023/203/eng@2023-08-25) [ __](mailto:?subject=Take a look at this document from LesLII: Tumelo Machachamise V Sechaba Sello & 2 …&body=https://lesotholii.org/akn/ls/judgment/lshc/2023/203/eng@2023-08-25) [ Download PDF (161.3 KB) ](/akn/ls/judgment/lshc/2023/203/eng@2023-08-25/source) Report a problem __ * Share * [ Download PDF (161.3 KB) ](/akn/ls/judgment/lshc/2023/203/eng@2023-08-25/source) * * * * * Report a problem __ ##### Tumelo Machachamise V Sechaba Sello & 2 Others (CIV/T/605/2020) [2023] LSHC 203 (25 August 2023) Copy citation * __Document detail * __Related documents Citation Tumelo Machachamise V Sechaba Sello & 2 Others (CIV/T/605/2020) [2023] LSHC 203 (25 August 2023) Copy Media Neutral Citation [2023] LSHC 203 Copy Hearing date 24 March 2023 Court [High Court](/judgments/LSHC/) Case number CIV/T/605/2020 Judges [Banyane J](/judgments/all/?judges=Banyane%20J) Judgment date 25 August 2023 Language English ##### __Collections * [Case indexes](/taxonomy/case-indexes) * [Commercial](/taxonomy/case-indexes/case-indexes-commercial) * [Civil Procedure](/taxonomy/case-indexes/case-indexes-commercial-civil-procedure) Summary Read full summary * * * Skip to document content **_IN THE HIGH COURT OF LESOTHO_** **HELD AT MASERU** **** **CIV/T/605/2020** In the matter between **TUMELO MACHACHAMISE APPLICANT** AND **SECHABA SELLO** **1 ST DEFENDANT** **SCALO HOLDINGS (PTY) LTD** **2 ND DEFENDANT** **MOSA SEMANO** **3 RD DEFENDANT** _Neutral Citation_ : Tumelo Machachamise v Sechaba Sello and 2 Others [2023] LSHC 203 Civ (25th August 2023) **CORAM : BANYANE J** **HEARD : 24/03/23** **DELIVERED : 25/08/23** **Summary** Practice and procedure - absolution from the instance at the close of the plaintiff’s case - applicable test reiterated - application dismissed. **_ANNOTATIONS_** **_Cases cited:_** **_Lesotho_** 1. Lenono v Tlhapi CIV/T/639/80 [[1988] LSCA 189](/akn/ls/judgment/lsca/1988/189) 2. Mokrafs (Pty) Ltd v Hanyane C of A (CIV) 6/08 3. Thibeli v Mazenod Printing Works (Pty Ltd and others CIV/T/691/2005 4. Tsiu v Nthane Brothers (Pty) Ltd CIV/T/310/20 **_South Africa_** 5. Claude Neon Lights SA Ltd v Daniels 1976 (4) SA 403 6. Duplessis v Nel 1961 (2) SA 97 7. Mkwanazi v Van der Merwe 1970 (1) SA 629 **_RULING ON ABSOLUTION_** **BANYANE J** **Introduction** 1. This is a claim for damages arising out of an irreparable damage to a motor vehicle. The damage resulted from a multi-crash accident that occurred near traffic lights at Ha-Motsoeneng sometime in 2020. The defendants refute liability for the plaintiff's claim. It is appropriate to examine the basis for the plaintiff’s claim as contained in his summons as well as evidence led by the plaintiff and his witnesses at trial. **The summons and declaration** 2. In his summons the plaintiff avers that on 14 January 2020, his vehicle registered KD 477 was involved in a multi-crash accident at or near Ha Motsoeneng traffic lights. He attributes negligence and the cause of the accident to a driver of a certain Tipper Truck registered M 5554 who was at the material time an employee of either the 1st or 2nd defendant. According to plaintiff’s description of the accident, the driver lost control of the truck and thereby caused the collision. He consequently claims an amount of M53, 509.39, made up as follows. 1. M45, 855.99 being the cost of replacement of the vehicle. 2. M6,874.40 for VAT 3. M500 for vehicle clearance costs 4. M80 for vehicle registration costs 5. M60 for number plates costs 6. M135.00 for vehicle licence disc costs **The plaintiff’s testimony** 3. The plaintiff, a Mosotho man aged 39 years and member of the Lesotho Defence Force testified that on 14 January 2020 around 3:30pm, he was driving his vehicle from Ha Leqele direction towards the traffic lights at Motsoeneng. There were vehicles in front and behind him. As they were approaching, the traffic lights turned red, thereby halting traffic from his direction. While waiting for the lights to turn green, he heard a crash sound. He checked his side mirror and he saw the truck hit the vehicle behind him. The impact from this collision pushed the vehicle behind to collide against his. The impact of the collision pushed his vehicle off its lane. In a short space of time, the truck drove over his vehicle, spilling sand on him as it did. Consequently, his vehicle was buried in sand. He was rescued from the sand by the bystanders. When he emerged from the sand, his car roof was no more. He saw the truck in a road side ditch. He told the Court that the truck driver worked for the 2nd defendant company. This company operates a brick manufacturing business and sand supply. While at the scene he talked to some people who were reportedly send on behalf of the company. 4. He told the Court that at the time of the accident, he had been driving his vehicle for only four months. He had bought it for M52.000.00 excluding registration fees. The vehicle had been damaged beyond repair consequent upon the accident. This is based on the quotations which revealed that it would be uneconomical to repair it because the amounts quoted for repairs exceeded the purchase price itself. As part of his evidence, he handed in a sale invoice, the amount expended on its registration, a registration certificate, a clearance certificate, as well as quotations from Brother Auto Clinic and Tip Top Panel Beaters and Spray Painting. He further handed in the pictures of the vehicle after collision. 5. A police officer who attended the scene of accident testified as PW2. It was Police Constable Mokake, who according to his evidence, many people involved in this accident were injured, including the plaintiff whom they rushed to Makoanyane Hospital. 6. According to his evidence about twelve (12) vehicles were involved in this accident. Having studied the scene, he concluded that the truck driver was negligent. He confirms that the truck was loaded with sand which buried the plaintiff’s vehicle as it (truck) drove into the ditch on the left side of the road. 7. The truck had on its side door a big sticker imprinted ‘Scalo’. While on the scene he met one man who described himself as the 3rd defendant’s boss. He again met this person at his workstation at Ha Thamae. He thereafter brought the 3rd defendant to Court. He admitted guilt to the prosecutor. His bosses asked for quotations for the damage to the vehicles involved. They parted ways thereafter. **The parties’ submissions** 8. At the close of the plaintiff’s case, counsel for defendants Mr. Molapo applied for an order of absolution from the instance. His argument rested on two pillars, namely liability and quantum. On liability, he advanced a two-pronged argument addressing the alleged vicarious liability of the company on the one hand and liability of the driver on other. With respect to the first leg, he is of the view that the plaintiff failed to establish the alleged relationship between the driver of the tipper truck and either the first or second defendant, failed to establish that when the accident occurred, the driver was acting within the scope of his employment. According to him, the sticker on the truck is not conclusive proof that the truck belonged to the 2nd defendant. According to him, the plaintiff ought to have adduced evidence from the registering authority to show that the vehicle is registered in the names of 2nd defendant. Furthermore, the mere presence of the 2nd defendant’s representative on the scene of accident is inconclusive of the second defendant’s liability. **[9]** He cited the case of **Mokrafs (Pty) Ltd v Hanyane** C of A (CIV) 6/08 to submit that the Court cannot, on the evidence adduced, make a conjecture that the 3rd defendant was in the employment of the 1st or 2nd defendant. He submitted therefore that the plaintiff failed to make a case for vicarious liability. **[10]** The second prong of his argument relates to liability of the truck driver. According to him, the evidence adduced does not establish negligence on the part of the driver. Absent the testimony of any eyewitness who observed how the accident occurred from inception, the plaintiff failed to make out a _prima facie_ case on the 3rd defendant’s negligence. **[11]** His third and last leg relates to quantum of damages. He acknowledges that on the evidence presented, it was not economical to repair the vehicle. He however, submits that the plaintiff ought to have adduced evidence of the scrap value and the pre-collision value, which according to him, he did not do. He is of the view that the plaintiff cannot rely on the purchase price without accounting for depreciation. He concludes that the Court cannot, therefore, be expected to establish an amount of damages for the plaintiff. **[12]** Mrs. Lephatsa for the plaintiff also cited the case of **Hanyane v Mokrafs (supra)** , whose facts she says are comparable to the facts of the present matter. She submitted based on this decision that a defendant who might be afraid to go into the witness box should not be permitted to shield behind the procedure of absolution from the instance. **[13]** She also relied on **Thibeli v Mazenod Printing Works (Pty Ltd and others** CIV/T/691/2005 to submit that at this stage of the proceedings the question of credibility should not be investigated except where the witnesses have palpably broken down and where it is clear that what they had stated is not true. The Court is not yet required to weigh up possible inferences but to merely determine whether one of the reasonable inferences is in favour of the plaintiff. The applicable test at this stage is simply whether there is evidence upon which a court applying its mind reasonably to the evidence, could or might find for the plaintiff. **[14]** According to her analysis of the evidence, the plaintiff linked the truck driver to 2nd defendant, a company operating a business of sand supply. Again during plaintiff’s encounter with the truck driver, the latter told him that he worked for this company. Furthermore, representatives of the company had some dialogue with the plaintiff at the Magistrates’ Court to negotiate settlement. According to her, this evidence establishes a relationship between the truck driver and either the 1st or 2nd defendant. **[15]** Regarding the damage on plaintiff’s vehicle, she contended that proof of the purchase price coupled with the fact that the collision occurred only four months after its purchase as well as the fact that the panel beaters certified it to be uneconomical to repair, are sufficient. **[16]** In relation to negligence of the 3rd defendant (the truck driver), she directs the attention of the Court to the defence advanced during cross-examination which in her view clearly reveals that there is a case to answer. This defence is that he (3rd defendant) blames a certain taxi driver for allegedly driving in an irresponsible manner. He further contends that due to this driver’s irresponsible driving, he found himself in a predicament. There were children in transit approaching from the opposite direction in a school bus, so if he proceeded in their lane of travel, he could have endangered their lives. He was in the circumstances forced to squeeze the truck in between vehicles on the plaintiff’s lane of travel. According to him, the collision was unavoidable in such circumstances. Moreover, he explained that the truck was loaded with sand. This load combined with the gradient of the road, rendered it impossible for the truck to easily come to a halt. Mrs Lephatsa concludes that the defendants must, in the circumstances, take the witness stand. **Analysis** **[17]** A proper approach in an application for absolution from the instance at the close of the plaintiff’s case has been stated as follows: “When 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 the 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 or ought to) find for the plaintiff.” See **Claude Neon Lights SA Ltd v Daniels** 1976 (4) SA 403,**Tsiu v Nthane Brothers (Pty) Ltd** CIV/T/310/20. **[18]** Applying the test to the facts of the present matter, the plaintiff narrated how the accident occurred and sought to establish the nexus between the company and the 1st, and 3rd defendants. In his attempt to establish liability, he testified that he saw the truck hit the vehicle behind him and how the impact pushed his vehicle off the road. He also testified how the truck drove over his vehicle spilling sand and submerging it before the truck fell into the ditch by the roadside. This in my view calls for an explanation which the truck driver sought to give during cross-examination as to the cause of the accident. This defence given in cross-examination must in my view be tested under cross-examination. The 3rd defendant must therefore take the witness stand and testify about these matters. **[19]** For purposes of the inquiry at this stage of trial, the fact that the truck smashed the plaintiff’s vehicle is sufficient evidence upon which a Court applying its mind reasonably might find for the plaintiff on the aspect of negligence. **[20]** With regard to liability of either the 1st or 2nd defendant, the plaintiff as well as the police officer who attended the scene of accident testified that the truck had a sticker on its doors imprinted “Scalo Holdings” (2nd defendant) which admittedly operates a business of brick manufacturing and sand supply. Evidence also revealed that the truck was loaded with sand on the day in question. The plaintiff also told the Court that he had a discussion with the truck driver who said he worked for this company. This evidence, in my view, establishes a nexus between the 3rd defendant (truck driver) and 2nd defendant. The question whether the 3rd defendant was acting on the mandate of either the 1st or 2nd defendant, would be appropriately advanced as their defence when giving their testimony. Again, on the plaintiff’s evidence on this aspect, the Court might find for him. **[21]** Regarding proof of the amount claimed, it was held in **Duplessis v Nel** 1961 (2) SA 97 that where a plaintiff claims damages sustained to his vehicle in a collision caused by the negligence of the defendant, he can prove his damages in three different ways according to the circumstances. The first is to prove the difference in value of the vehicle immediately before and after the damage to it. This method will be used if the vehicle is irreparably damaged. **[22]** It is undisputed that the plaintiff did not cause valuation of the vehicle either before or after the accident and that he has only handed in documents from the Revenue Services Lesotho reflecting the purchase price of the vehicle. He also told the Court that the accident occurred only four months after acquisition of the vehicle. Authorities show that although an aggrieved party must adduce all evidence available to enable the court to determine compensation due to him, the claim should not be dismissed simply because it is difficult to quantify the sum due from the material placed before court. If it has been proved that the aggrieved party has indeed suffered damages, the court must endeavour as it best can, to determine the amount due based on the evidence available. **Mkwanazi v Van der Merwe** 1970 (1) SA 629 at 6331-2. See also **Lenono v Tlhapi** CIV/T/639/80 [[1988] LSCA 189](/akn/ls/judgment/lsca/1988/189) (2 December 1988) where the Court considered factors such as the purchase price of the vehicle, the purpose of use as well as the period for which the vehicle had been used in order to determine the amount of compensation due to the plaintiff. **[23]** I highlight these guidelines to illustrate the point that the defendants are not entitled to an order of absolution because there is material evidence upon which the Court may determine the amount of compensation due although no valuation reports have been submitted. **Conclusion** **[24]** All things considered and applying the proper test at this stage of the proceedings, the application for absolution from the instance must fail. **Order** **[25]** In the result, the application for absolution from the instance is dismissed with costs. **___________________** 16. **BANYANE** **JUDGE** For the Plaintiff : Mrs. Lephatsa For the Respondents : Adv. L.D. Molapo #### __Related documents ▲ To the top >