Mokhitli v Mphofu and Another (CIV/T 182 of 87) [1991] LSCA 93 (31 July 1991)

CIV/T/182/87 IN THE HIGH COURT OF LESOTHO In the matter between:- MOTUMI MOKHITLI Plaintiff and THABO MPHOFU THABISO MPHOFU 1st Defendant 2nd Defendant J U D G M E NT Delivered by the Honourable M r. Justice J. L. Kheola on the 31st d ay of July, 1991 T he plaintiff is claiming d a m a g es in the sum of M18,100-00 from both d e f e n d a n ts jointly and severally one paying the otehr to be absolved. As a result of a collission between the plaintiff's vehicle Reg. N o. Aai82 and the first d e f e n d a n t 's vehicle Reg. N o. A 1842, the plaintiff's vehicle became a write-off. The plaintiff a l l e g es that the collision occurred as a result of the negligence of t he second d e f e n d a nt who w as driving the first respondent's vehicle along M o h a l e 's Hoek - Quthing road acting within the scope and during the course of h is employment with the first d e f e n d a n t. He a l l e g es that the second defendant w as negligent in the following respects: he d r o ve the same vehicle at an excessive speed; he failed to keep a proper look-out f or other traffic on the road and m o re particularly f or plaintiff's vehicle; he d r o ve on h is incorrect side of the road; he failed to stop when by d o i ng so he could have avoided the collision. -2- The f i r st d e f e n d a nt filed a Notice of Intention to defend the action but the second d e f e n d a nt did not. In h is plea the first d e f e n d a nt raises two d e f e n c e s, namely that the second d e f e n d a nt did not d r i ve the said vehicle d u r i ng the c o u r se and within the scope of h is employment with the first d e f e n d a n t. He d r o ve the said vehicle w h i le on a frolic of h is own and w i t h o ut authorization or approval whatsoever from first d e f e n d a n t. Secondly, that the d r i v er of the plaintiff's vehicle d r o ve at an excessive speed; he d r o ve on the incorrect side of the road; he faield to take all appropriate m e a s u r es which he should have taken to avoid the collision. At the trial the plaintiff called as a w i t n e ss one Heinz Fieb$g w ho is the managing director of a company called Bedco Auto Clinic which specializes in panelbeating. He testified that he k n o ws panelbeating and that the plaintiff brought h is vehicle to him f or panelbeating. The registration number of that vehicle w as AA 182. He m a de a quotation for him. The d a m a ge w as so extensive that he decided that the vehicle w as a w r i te o f f. T he book value of the vehicle w as M19.600 and the scrap w as valued at Ml 5 0 0. He m a de the quotation Exhibit A. He said that the vehicle he saw w as a 1985 m o d e l. Although he had not written any examinations he had practical experience in panelbeating and m o t or vehicles repair in g e n e r a l. The plaintiff testified that on the d ay in question he w as a passenger in h is own taxi d r i v en by one Sampo Ralebitso w ho is late. It w as after 8.00 p.m. and the headlights of h is vehicle w e re already switched o n. -3- After passing Masitlse he saw a tipper truck travelling in the opposite direction coming towards them. It w as moving on the incorrect side of the road and the headlights w e re not d i m m e d. It w as moving at a high speed. The lights of h is own vehicle were d i m m e d. The truck come straight towards them and collided with h is vehicle causing extensive d a m a ge to the right side of h is vehicle. H is d r i v er w as killed in that accident. Thereafter the second d e f e n d a nt came to him and plaintiff asked him to help him carry the people w ho were injured to the hospital. T he second d e f e n d a nt refused and said that h is own people were also injured. The second d e f e n d a nt d r o ve away even before the police c a m e. The accident occurred after h is vehicle had passed a culvert. The second d e f e n d a nt w as criminally charged and he pleaded guilty to the charge. He w as convicted and committed f or sentence by the High C o u r t, In cross-examination the plaintiff denied that it is an afterthought that the t r u c k 's lights were not d i m m e d. H is d r i v er w as driving at a speed of between 45 and 50 kilometres per hour. He says that he actually looked at the speedometer because he sat on the front seat so that he could warn the d r i v er when he d r o ve at a high speed. He and h is d r i v er w e re not drunk that night. The road at the culvert w as narrow and allowed only one vehicle to p a ss at a time. He denied that the truck got to the culvert before h is vehicle. When it w as put to him that h is vehicle w as bought f or M2,0000-00 from one Thinyane Kobeli he said he did not know that but he had given h is brother about M19,000-00 to buy the vehicle f or him. /....4 -4- The plaintiff says that he knew that the truck of the first defendant was hired by L. C. U. but he d o es not know that according to the contract it was supposed to work during weekdays and not during the weekend. He does not know that the second defendnat drove the truck on a frolic of his own on the day of the accident. However, he says that owner of the vehicle had to keep the truck in a safe place during weekends so that the second defendant could not use it. He had no personal knowledge that the truck was hired by L. C. U. The first defendnat called Mr. Molapo Mothuntsane who is the Deputy Traffic Commissioner. He testified that his duties include registration of motor vehicles and the keeping of records concerning vehicles registe ed in this country. He produced a copy of a registration certificate for motor vehicle Reg. No. AA 182 which was a Toyota Combi, model 1977 and the owner was M. A. Mokhitli. The registration certificate was marked Exhibit B. The vehicle was transferred from one Thinyane Kobeli. The change of ownership forms are Exhibit C. In that document the vehicle is described as aToyota Hiace, 1977 model. Another document handed in by Mr. Mothuntsane is a declaration in respect of a sale of registrable goods for purposes of sales tax Exhibit D. In that document the vehicle is shown as a Toyota 1977 model and the value at which it was sold was M2,500-00 for which an amount of M300-00 was paid as sales tax. -5- The first defendant testified that in February, 1987 he owned a truck with registration number A 1842 which he had bought he from one Samuel Matekane. The vehicle w as hired by L. C. U. and w as ' used in Quthing. The agreement between himself and L. C. U. was that the vehicle would be used from Monday to Friday only. During the weekends it was to be parked at the Roads Camp in Quthing and w as not to be used at all. The second respondent w as his driver and had been instructed not to use the vehicle during weekends. He says that on the Sunday in question when the collision occurred the second defendant was driving the vehicle on a frolic of his own and whatever delicts he committed cannot he said to have been committed during the course and within the scope of his employment. The second defendant was travelling with his girl friend and was not on any errand of L. C. U. He further alleged that the second defendant was not negligent. When it was put to him that in the application for rescission of the default judgment granted against him he deposed that the vehicle which collided with plaintiff's vehicle did not belong to him but instead to one Samuel Matekane, he said that he never said so but said that he bought the vehicle from Samuel Matekane, however the registration documents were still in the name of Samuel Matekane. The first issue that I wish to dispose of is that concerning the value of the vehicle of the plaintiff at the time of collision. On the 11th November, 1986 when ownership was changed from Thinyane Kabeli to the plaintiff it w as declared that the vehicle w as a Toyota Hiace and that it was a 1977 model. At the Sales Tax Department it /...6 -6- w as declared that the value at which- the vehicle had been sold was M2,500-00. In other words the plaintiff has in his possession or in the possession of his late brother's estate a registration certificate which clearly shows that his vehicle is a 1977 model but in 1987 when the same vehicle is involved in a collision we are now told that it was in fact a 1985 model and that the value of M2.500 w as merely intended to cheat the sales tax department, the true value of the vehicle is M19.600. I cannot allow the plaintiff to get away with fraud for the second time. The ownership documents prove beyond doubt that the plaintiff's vehicle is a 1977 model valued at M2500. The quotation by Bedco Auto Clinic (Exhibit. A) has very little probative value because it d o es not show the chassis number and the engine number of the vehicle that was brought to them for a quotation. All they recorded was the registration number. I think that was not enough because the plaintiff and his brother may have placed the plate numbers on a scrap they had found to replace the vehicle that w as actually involved in the accident. I am making this allegation because the plaintiff said that the value of the vehicle was drastically brought down in order to cheat the sales tax department. They are dishonest and very untrustworthy people who are capable of distorting the facts for their own convenience. I am of the view that P. W.1 was wrong to use the 1987 book- value because he had not seen the vehicle before the c o l l i s i o n. Book-value is used when a vehicle is traded in because the buyer /..7 - 7- can check the condition of the vehicle and then resort to the book-value. In the present case what P. W.1 had to assess was the cost of repairing the damage and then to decide that the repair of the damage exceeded the value of the vehicle* He did not do that but simply concluded that the vehicle was a write-off and resorted to a book showing the value of the 1985 model Toyota Hiace. Such a book is unhelpful in court when damages suffered by the plaintiff are concerned because the value of the vehicle before the accident must be established. The term "course of employment" has been defined in a number of cases in the Republic of South Africa.. In The Law of Delict , 7th edition, R. G. Mckerron summarizes the authorities in the following words at p. 95: "But the master's liability is not confined to acts done by the servant within the master's instructions or reasonably incidental thereto.. It is now settled law, both in South Africa and in England, that the master's liability extends to all acts falling within the general scope of the servant's employment. (Estate Van der Byl v. Swaneppoel, 1927 A. D. 141, 147). Whether the act was within the scope of the servant's employment or not is a question of fact, depending upon the circumstances of the particular case. The test usually applied by our courts is: Did the servant do the act while about the business of his master, or did he do it while on the business of his master, or did he do it while on his own business and for his own purpose? (Mkize v. Martens, 1914 A. D. 382, 390)." In the inatsnt case it is common cause that the vehicle of the first defendant was hired by L. C. U. to carry quarry and was to be used from Monday to Friday. During the weekend it was to be parked at the Road's Camp. The first defendant testified that the second defendant had been specifically instructed to park the /...8 -8- vehicle during the weekend and not to use it. Evidence h as been given that on that fateful night the second d e f e n d a nt w as having a joyride with h is girlfriend when he negligently collided with the p l a i n t i f f 's vehicle. The second d e f e n d a nt gave a good impression to the Court and appeared to be an honest and credible w i t n e s s. He explained that the affidavit in the rescission application w as prepared by h is attorney in a language he d o es not understand. H is instructions w e re that he bought the vehicle from Samuel Matekane but the transfer of ownership d o c u m e n ts had not been completed and the vehicle w as still registered in the name of Samuel M a t e k a n e. I entirely accept h is explanation because It m ay be that legally speaking h is attorney found that the vehicle w as still the property of Samuel Matekane. It is true that he w as taken before a Commissioner of O a t hs and that he acknowledged that he knew and understood the c o n t e n ts of the affidavit. It d o es not m e an that the Commissioner of O a t hs actually read back and explained to the d e f e n d a nt the c o n t e n ts of the affidavit. I am of the opinion that once the lawyer h as misunderstood the instructions and the affidavits is prepared, that is the end of the m a t t e r. The misunderstanding between the client and h is attorney can rarely be discovered by the Commissioner of O a t h s. I am of the opinion that the second d e f e n d a nt w as d r i v i ng the plaintiff's vehicle on a frolic of h is own and that he alone is liable f or the d a m a g es proved by the f i r st d e f e n d a nt through the evidence of the Deputy Commissioner of Traffic, M r. Molapo Mothuntsane. /...9 -9- T he evidence of the plaintiff that t he second d e f e n d a nt d r o ve negligently by driving at a high speed on t he incorrect side of the road and that he failed to stop when by d o i ng so he could have avoided the accident, h as not been rebutted. It" is common c a u se that t he second d e f e n d a nt w as convicted on h is own plea of guilty. In t he result judgment is entered f or plaintiff in the sum of M2.500 with c o s ts against the second d e f e n d a n t. T he claim against the f i r st d e f e n d a nt is dismissed with c o s t s. J. L. KHEOLA JUDGE 31st July 1991. For Plaintiff - M r. Mohau For D e f e n d a n ts -. M r. Nathane.