Judgment No.  HB  81/2004

                                                                                    Case No. HC 1637/03

JONATHAN BALOYI

Versus

THEMBINKOSI SIBANDA

And

REGINA MAJAHA t/a NKOMENI TOURS

IN THE HIGH COURT OF ZIMBABWE

CHEDA J

BULAWAYO  24 JUNE 2004

C Dubefor the plaintiff

T Harafor the defendents

Judgment

            CHEDA J:     Plaintiff issued out a summons for $4 630 340,17 against 1^st and 2^nd defendants on 8 August 2003.  First defendant although described on the summons as t/a Nkomeni Tours was in fact a driver while 2^nd defendant is properly cited as such. 

            The brief facts of the matter are that on 29 July 2003 plaintiff was driving a Mazda Cronos registration number 661-037 S  along L Takawira Ave, Bulawayo due west.  First defendant was driving a Toyota Haice registration number 748-388P also along L Takawira Ave, when he collided with plaintiff  opposite Mac’s Garage between S Parirenyatwa Ave and J Moyo St, Bulawayo.  First defendant was within his scope and course of his employment when this accident occurred.

            Plaintiff averred that the accident was solely caused by defendant’s negligence in that:-

1. He failed to keep a proper look out
2. He travelled at a speed which was excessive in the circumstances

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1. He failed to give precedence to the plaintiff’s vehicle; and
2. He entered at a time when it was not safe to do so.

It is common cause that as a result of the accident plaintiff’s motor vehicle was damaged and more particularly in that:

1. the left rear door outer skin;
2. left front door outer skin;
3. left front marker lamp;
4. left front fender moulding
5. left front door moulding
6. left front centre arm
7. other items, were damaged and have since been repaired.

Both defendants denied liability. Plaintiff gave evidence and his evidence was that on the day in question he went through the robots at S Parirenyatwa Ave and L Takawira St as they were in his favour.  He was driving at about 60 kilometres an hour and was on the inner lane.  He observed 1^st respondent who was driving slowly on the outer lane and he observed him suddenly turning right in front of him.  Plaintiff tried to avoid him but could not do so which resulted in 1^st defendant hitting his car on the left side.  It was also his evidence that the police attended to the accident and that at the time 1^st  defendant told the police in his presence that plaintiff had hit him from behind.  Plaintiff vehemently denied having been driving fast and swinging left into 1^st defendant’s motor vehicle.  Plaintiff also called Assistant Inspector  Ndlovu.  He is a police officer of 15 years experience and he has been with Traffic Section for 5 years.  At the time of the accident he was Officer-In-Charge Crime.  He did not attend to the accident on the day in question but visited the scene of the accident later.  His

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reason for a re-visit was aroused by the inconsistent information on the Traffic Accident Book which he found to contradict the damages on the

vehicles.  What struck him most was that it was not possible for 1^st defendant to have been hit on the back yet the damage to his vehicle where on the right front and those of plaintiff were on the left front.  It is for this reason that he re-visited the scene.  First defendant was then charged with driving without due care and attention and he paid a fine.  Plaintiff then closed its case.

            First defendant gave evidence, his evidence is that he was employed by 2^nd defendant as a driver and on the day in question he was also driving along L. Takawira Ave.  After the robot at S Parirenyatwa St. he was using the centre lane.  In fact what he referred to as a lane is a short road narrower than the ordinary lane on the right hand side.  In essence there are two lanes along this road.  He was travelling slowly as he wanted to go into Macs Garage.  He stated that plaintiff thought that he could quickly overtake him and proceed with his journey.  He said that the accident was attended to by a police detail who recorded a statement from him and a sketch plan was recorded, but however both the initial statement and diagram according to him were not before the court.  It is also his evidence that he then went to the police station later, where, Sergeant Chibasa invited him to pay an admission of guilt fine.

            Under cross-examination he denied that he was hit from behind but that he heard noise from behind.  He also stated that while he was at the scene a Mr Nkomeni who is a brother to 2^nd respondent arrived at the scene and also accompanied him together with the attending police detail, supposedly to proceed to the Vehicle Inspection Department.  However, when they reached Tredgold Building he was instructed by

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Nkomeni not to proceed to the Vehicle Inspection Department but to drop the police officer at Tredgold.  This he did and they proceeded with their journey.  Although the  three of them were sitting in front, it is his evidence that he did not hear what Nkomeni and the police officer were discussing.  It is further his evidence that although he paid an admission of guilt deposit fine, it was through the coercion of Sergeant Chibasa.

            Regina Majaha is the owner of the motor vehicle, which was being driven by 1^st respondent.  Her evidence was that she was invited to the Drill Hall by police officers.  Upon  her attendance at the Drill Hall she was asked to deliver her motor vehicle at the Vehicle Inspection Department for examination/inspection.  However, she did not do so.  She, however, ended up paying $45 000 to Sergeant Chibasa under the circumstances, which are not clear.  But, it seems, it was as a result of this payment that resulted in her car not being taken to the Vehicle Inspection Department.  In fact she was not keen to do so as her motor vehicle was not fully insured to an extent of covering damages to other people’s cars.

            Plaintiff gave his evidence very well.  He was a straightforward witness who did not seek to exaggerate or conceal facts in this matter.  He withstood the cross- examination by Mr Hara.  His evidence in my view reflects the events of the day in question.  I find him to have been a truthful witness.

            On the other hand 1^st respondent was a very evasive witness.  On more than one occasion he avoided answering straight forward questions.  I find that he was driving on the outer lane when this accident occurred and that he swung his motor vehicle to the right hence encroaching onto plaintiff’s lane.  This is evidenced by the damages to the right front of his car.  It is not true that he was hit from behind as he

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had initially stated.  On realising the mistake he had made regarding the impact he changed his story and stated that by referring to “behind” he meant that he had heard noise from behind not that he was hit from behind.  I find that he further lied

when he said he did not hear what was being discussed between the attending detail and Mr Nkomeni when the three of them were travelling in the same car and all of them sitting in front.  He was also not convincing when he stated that he was coerced to pay a deposit fine.  Surely if he was cajoled or persuaded he would have advised his lawyer who naturally would have challenged it.

            I also find that Regina Majaha was untruthful when she stated that she was not aware that the payment of $45 000 made to Sergeant Chibasa from whom no receipt was obtained was not a bribe.  I find it to be a contradiction because she knew that if she did not pay the vehicle was going to be taken to the Vehicle Inspection Department wherein, a lot of faults where going to be discovered in her motor vehicle.

            The issue which falls for determination is whether or not 1^st defendant was negligent in the circumstances.  Negligence is the failure to exercise the degree of care and skill a reasonable man would have exercised in the circumstances.  A court should not judge the driver’s conduct with the benefit of hindsight, see Minister of Defence v African Guarantee and Indemnity Co 1943 AD 141 at 150.  First defendant alleged that plaintiff caused the  accident and that he heard noise emanating from plaintiff’s motor vehicle.  This noise, I presume would have been caused by emergency breaking which naturally would have resulted in skid marks on the road.  Assistant Inspector Ndlovu who attended the scene the following day did not observe any.  It is therefore unlikely that plaintiff applied his brakes in that fashion before the accident.  I am therefore persuaded to reject 1^st defendant’s version of events.

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            It is plaintiff who alleges negligence and in my view he has proved on a balance of probabilities that 1^st defendant decided to turn right thus encroaching into his lane and this is borne out by the damages sustained by both vehicles.

            Plaintiff was travelling at a reasonable speed in the circumstances and had observed 1^st defendant driving on the outer lane.  Every driver is required by law to be cautious at all times and should take avoiding action when an accident seems imminent.  I find that plaintiff did so but could not avoid the accident.  He was overtaking 1^st defendant who was on the outer lance and is entitled to assume that 1^st defendant was going to continue in that speed, see Mabaso v Marine and Trade Ins 1963(3) SA 439 at 440G-H; Magua v SAR & H 1969(3) SA 455 (T) at 458G.

            It will be unfair and unjust to expect that a driver who is driving on his correct lane though aware of the other driver on his side should assume that the other driver will conduct himself with suicide abandon.

            First respondent should have foreseen the reasonable possibility of his conduct injuring plaintiff or his motor vehicle.  In view of this he should have taken reasonable steps to guard against that occurrence but failed to do so.  That failure therefore culminates to his negligence.  He was therefore negligent in the circumstances as proved by plaintiff.

            It is unavoidable for me to remark that the conduct of both 1^st and 2^nd respondents  and the attending police detail together with Mr Nkomeni after the accident leaves one with the irresistible conclusion that they are corrupt and hence 2^nd respondent’s motor vehicle was not taken to the Vehicle Inspection Department.  The intervention of Assistant Inspection Ndlovu is indeed commendable.  The Commissioner of Police is accordingly directed

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to investigate the above in order to establish what actually took place in this case as it also touches on members of the police force.

            In conclusion I find that 1^st respondent was the sole cause of this accident and therefore liable.  Second respondent as the employer of 1^st respondent who at the time of the accident was driving the motor vehicle within the scope and course of his employment is therefore vicariously liable for this accident.  Plaintiff therefore succeeds in his claim as prayed for in the summons.

Paradza, Dube & Associates, plaintiff’s legal practitioners

Messrs Moyo-Hara & Partners,defendants’ legal practitionrs