Ramotete v Fatala and Another (CIV/T 269 of 98) [2000] LSCA 72 (20 June 2000)

1 C I V / T / 2 6 9 / 98 IN T HE H I GH C O U RT OF L E S O T HO In the matter b e t w e e n: D I MO R A M O T E TE P L A I N T I FF and S E S E LI M O S HE F A L A TA S C O RE F U R N I T U R ES 1ST 2ND D E F E N D A NT D E F E N D A NT For the Plaintiff : M r. B. M a k o t o ko For the 1st Defendant : In person For the 2nd Defendant : No appearance J U D G M E NT Delivered by the Honourable M r. Justice T. Monapathi on t he 20th d ay of J u ne 2 0 00 In this matter the Plaintiff issued out s u m m o ns against D e f e n d a n ts w h e r e in he claimed: " 1. M 4 7 , 0 7 7 . 00 for repairs 2. M 3 7 , 5 0 0 . 00 loss of business 3. Costs of suit 4. Further a nd alternative relief. This followed a collision of t wo vehicles o ne driven by the First Defendant a nd the other by Plaintiffs driver. It w as alleged that the First Defendant's negligence h ad caused the collision. T he legal basis w as that: " W h e re a vehicle w h i ch is d a m a g ed through the negligence of another has been in use for the business of its o w n er the d a m a g es which c an be recovered, apart from the cost of repairs, include the loss of i n c o me to the o w n er due to loss of use of vehicle." See S H R OG v V A L E N T I NE 1949(3) SA 1228(T) on 1236 a nd also M O S S E L B AY D I V I S I O N AL C O U N C IL v O O S T H U I Z EN 1 9 33 C PD 509. T he first claim w h i ch w as for fair, reasonable a nd necessary repairs of the vehicle w as for d a m a g es for compensation of Plaintiff's loss of the m o t or vehicle (registration C 7 9 8 0) which he h ad used as a taxi. T he vehicle has remained in disrepair to date. T he next prayer related to alleged loss of funds of the daily business (takings) w h en the taxi used to m a ke an average of M 2 , 5 0 0 . 00 from M a r ch 1997 until the 20th J u ne 1998. O n ly the First Defendant filed papers in his o wn defence. He h ad b e en represented by T. M. Maieane-Attorneys. T he attorneys later withdrew as attorneys of record. A plea w as filed on behalf of the First Defendant. He e n d ed up appearing in person. T he latter Defendant's failure to file a ny papers warranted the Plaintiff to proceed against that defendant as he w as entitled in terms of rule 27 (3) w h i ch rules e m p o w e rs the Court to grant j u d g m e nt by default in a claim for d a m a g es having heard plaintiffs formal evidence. In this case it w as substantial evidence w h i ch w as put in by PW 1 (Limo R a m o t e te - Plaintiff). PW 2 Mositi Matlali (driver) a nd PW 3 Policeman (Lesotho Police Service) N o. 8 4 09 T r o o p er K h u n o n g. T he latter h ad attended at the scene, h ad taken m e a s u r e m e n ts a nd other information w h i ch resulted in the M o t or V e h i c le A c c i d e nt R e p o rt F o rm ( R L MP 2 9) w h i ch w as h a n d ed in as Exhibit " C" to this C o u r t. First D e f e n d a nt elected n ot to give in a ny evidence in his defence. T he evidence f r om the Plaintiff's three witnesses established the following: T he Plaintiffs taxi h ad h ad a b r e a k d o wn resulting f r om p u n c t u re or m o re serious r e m o v al of o ne of its w h e e ls w h i ch occurred whilst still in m o t i o n. T he right parts of its rear b o dy w as on the r o ad b ut h ad still left s p a ce for other traffic using the s a me lane to pass safely without incident. T he vehicle w as travelling in a northerly direction ( M a p u t s o e) n e ar Ha S e k e te w h e re the vehicle h ad rested. It could n ot m o ve b e c a u se it h ad rested on the w h e el d r um while the w h e el h ad b e en displaced. T he driver h ad taken m e a s u r es to w a rn the other traffic by m e a ns of a sign (red triangle): T he collision occurred at night a nd b o th vehicles w e re flung o v er t w e n ty (20) p a c es f r om the point of i m p a ct albeit in different directions. B o th vehicles w e re extensively d a m a g e d. T h e re h ad b e en no skid m a r ks by w h i ch s h o w i ng attempts to b r a ke the vehicles to a halt. T he C o u rt t o ok trouble to explain to the First D e f e n d a nt w h at his rights w e re including the right to cross e x a m i ne witnesses a nd to p ut in his defence. T h e se rights the D e f e n d a nt did use very sparingly. A nd i n d e ed it w as m o re as a result of urging t h an a ny desire on the part of the D e f e n d a n t. He suggested to o ne of the witnesses that he hit the stationery vehicle because his sight h ad b e en blinded by the headlights of an o n - c o m i ng vehicle w h i ch w as travelling in the opposite direction. T h is h ad n ot a p p e a r ed in his plea or in a ny other papers. It rested on thin g r o u nd a nd the C o u rt did n ot therefore believe the version. O t h er facts w h i ch w e re established f r om the evidence w e re that the taxi w as b o u g ht by the Plaintiff for a s um of N i n e t e en T h o u s a nd M a l o ti ( M 1 9 , 0 0 0 . 0 0 ). T h is w as to be v i e w ed against the claim for repairs w h i ch w as to the t u ne of Forty S e v en T h o u s a nd Maloti ( M 4 7 , 0 0 0 . 0 0) as e v i d e n c ed by that single quotation (Exhibit " A ") w h i ch the Plaintiff h ad secured as the only quotation. He h ad m a de no a t t e m pt to secure others or the lowest o ne because he believed that n o ne c o u ld be l o w er t h an the o ne he h ad already secured. A b o ut this estimate later. T he a m o u nt c l a i m ed in the s u m m o ns and/declaration as loss of business w as p r o v ed by m e a ns of a record contained in c h e ap students' exercise b o ok w h o se m o d e s ty w o u ld n o r m a l ly invite scrutiny F r om an e q u i p p ed cross-examiner. It w as submitted quite correctly that the evidence t e n d e r ed before C o u rt adequately p r o v ed the Plaintiffs case. It entitled h im to s o me d a m a g es a nd costs against b o th defendants jointly a nd severally o ne p a y i ng the other to be absolved. Negligence of a gross kind h ad b e en p r o v ed on a balance of probabilities. It w as in the excessive speed of the kind called a m a d d e n i ng o n e. T h is s p o ke m o re for a suspicion that the First D e f e n d a nt h ad b e en d r u n k. T h is w as h o w e v er n ot put in issue. T he d a m a g es to the vehicles, the resting place of the vehicles, the a b s e n ce of skid m a r ks told an eloquent case of excessive speed w h i ch m o st p r o b a b ly disabled the First D e f e n d a nt f r om avoiding the collision. Excessive s p e ed w as the cause of the collision as I w as forced to conclude. T he issue of d a m a g es for repairs w as easy to resolve. It w as in that: h o w e v er I believed of the estimate p ut forward for reasonable a nd necessary repairs I f o u nd it difficult a nd it w as against principle that a plaintiff w o u ld recover m o re t h an the value of the item (property) sought to be repaired. In this case the value of the vehicle h ad b e en N i n e t e en T h o u s a nd Maloti ( M 1 9 , 0 0 0 . 0 0) w h i ch w as the p u r c h a se price of the vehicle. W h en I m a de the a w a rd for d a m a g es I did not e v en consider depreciation of the vehicle. I h ad agreed h o w e v er with the submission by M r. M a k o t o ko that d a m a g es w o u ld n o r m a l ly be established, considering the c o m p e n s a t i on function of the law of delict, t h r o u gh p a y m e nt of d a m a g es in that: " V i e w ed in this light, d a m a g es indicate rather the process t h r o u gh w h i ch an impaired interest is restored to its f o r m er potential t h r o u gh m o n e y ." T HE L AW OF D E L I C T, Neethling, Potgieter a nd Visser, 1st Edition p a ge 1 7 7. M r. M a k o t o ko correctly c o n c e d ed that in this case Plaintiffs vehicle could be restored by the s um of N i n e t e en t h o u s a nd Maloti ( M l 9 , 0 0 0 . 0 0) unless i m p r o v e m e n ts could h a ve b e en d e m o n s t r a t ed w h i ch h ad increased that value. In the e nd I entered j u d g m e nt w h i ch a w a r d ed to Plaintiff: (a) A s um of M 1 9 , 0 0 0 . 00 for d a m a g es for repairs; (b) A s um of M 3 7 , 0 0 0 . 00 for loss of business; a nd (c) C o s ts of suit. T h e se w e re to be paid by the D e f e n d a n ts jointly a nd severally o ne p a y i ng the o t h er to be absolved. T. M O N A P A T HI J U D GE J u d g e m e nt noted by M r . L . A. Molete