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Ntlatseng v The Attorney General (Civil Appeal No. 1 of 1994) [1994] BWCA 25 (14 July 1994)

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IN THE COURT OF APPEAL OF BOTSWANA
COURT OF APPEAL CIVIL APPEAL NO. 1 OF 1994
In the matter of:
MOSIMANEGAPE NTLATSENG   APPELLANT
AND
THE ATTORNEY GENERAL     RESPONDENT
MR. ATTORNEY T. JOINA FOR THE APPELLANT MR. ATTORNEY MOENG FOR THE RESPONDENT
JUDGMENT
CORAM:   T.A. AGUDA, J.A.
LORD N. WYLIE, J.A. J.H. STEYN, J.A.
STEYN J.A.
Appellant was the Plaintiff in the Court below in an action for damages arising out of a motor vehicle accident which took place on the 11th of January 1991 on the old Lobatse Road, Gaborone. The collision occurred between a Combi driven by-Appellant (referred to as Plaintiff) and a Cressida motor-car driven by one GABRIEL MATOME.
The only question before us is to determine whether the Court a quo was right in dismissing Plaintiff's claim on the ground that it failed to establish that the cause of the collision was the negligence of the said MATOME or that his negligence had contributed therto in one or more of the respects alleged in the pleadings as elucidated in evidence.
The facts before the Court a quo are summarised by Barrington-Jones J who presided at the hearing in the following terms:

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"The plaintiff [PW1] in effect claimed that the Cressida had side-swiped his Combi in attempting to overtake him; and said although he had witnessed such
[attempted] overtaking, he does not remember what happened thereafter. But in cross-examination denied that he had attempted to make a xu' turn on the road before the accident. The witness also denied that before the accident he had dropped off two passengers who had then boarded another Combi. But later on in his evidence remembered having stopped earlier at the kerbside where he had dropped off two passengers who had then boarded another Taxi Combi there, and said that this took between 3 0 seconds or two minutes; and had then pulled out into the road looking into his rear-view mirror as he did so, and observing a Combi
[recognising its driver as being PW4 George Sebogodi] as well as a blue vehicle and also the Cressida all behind him at a distance of 5 - 7 kilometres; but then noticed that the Cressida was approaching at speed, and that after overtaking the Combi and the blue vehicle, it had then collided with his own vehicle in what the witness believed was an attempt by the Cressida driver to overtake his vehicle.
Whilst PW2 Poloka Mphokodi [who was the conductor in Taxi Combi BD 8977] said his vehicle was the third one behind plaintiff's Combi, and that the Cressida had approached at high speed from behind his vehicle, overtaking another vehicle; and in trying to overtake the plaintiff's Combi [when the witness states that there was another vehicle approaching in the opposite direction] had collided with the plaintiff's Combi. He also said that at the material time there were three Combi's in a line, and that the plaintiff's vehicle was travelling straight when the collision took place. In cross-examination he said that immediately before the collision there was another Combi BD3112 between his vehicle and the Cressida. But although the witness said they had been following the plaintiff's vehicle for some time admitted that he had not earlier seen the plaintiff's vehicle stop whilst his vehicle had been following it at a moderate speed, as contrasted to the fast speed of the Cressida . . . "overtaking three vehicles in quick succession" . Finally, as a non-driver he estimated the speed of the Cressida to be between 160 - 200 kph.
PW3 Lucas Kenosi [ a pedestrian bystander] said that at the material time he had observed a number of Combi's [including the plaintiff's Combi] proceeding in the direction of the Station; and had then observed the Cressida trying to overtake the plaintiff's Combi but at that time had noticed a vehicle approaching from the opposite direction, and so the Cressida "went back" and in so doing collided with the plaintiff's Combi. This witness also admitted that he used to

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have eye problems but said that he could now [and at the time of the accident] see well; but admitted that he only saw the Cressida as it was attempting to overtake the plaintiff's Combi.
PW4 George Sebogodi [Driver of Taxi Combi BD 3112] confirmed the testimony of the plaintiff given in cross-examination in so far as he says that earlier the plaintiff had stopped and requested him to take on his two passengers, and after doing so, the plaintiff had driven off; and further averred that whilst still stationary the Cressida had passed him at speed before he [the witness] had driven back on to the road, and had followed the plaintiff's vehicle and the Cressida, and had then observed the Cressida overtaking the plaintiff's vehicle which was travelling straight when he then saw the latter vehicle overturn; adding that before the Combi overturned, he had noticed the Cressida slide on loose sand on the road; and so thought its high speed and subsequent braking, taken with loose sand on the road, as well as the fact that a vehicle was approaching from the opposite direction, had caused the Cressida to collide with the Combi; emphasising that the plaintiff's vehicle was in its own, lane but the Cressida was in the right hand lane overtaking at the time of the collision.
DWl Bethel Molapisi [Driver of a Vespa Scooter at the scene] said that he had first seen the plaintiff's vehicle [along with a second Combi] at the side of the road dropping off some passengers when the plaintiff had driven back on to the road, and had then executed a xu' turn in order to proceed in the opposite direction ... "right in the middle of the road"; adding that at that point in time the Cressida was too close to avoid the plaintiff's vehicle and hence the two vehicles had collided in the middle of the road and had continued over to the right hand side of the road. During this period the witness said he was about 40-50 metres from the scene of the accident. He further said that the speed of the Cressida at the material time was what he described as "medium"; and pointed out that if the speed of the Cressida had been any faster the resultant impact between the two vehicles would have been much more severe. It was then put to the witness that the plaintiff had not made a *u' turn before the accident. To which he replied ..." I saw him making a xu' turn in the middle of the road"; adding that the plaintiff could not safely effect a xu' turn simply because the Cressida was too close to his vehicle at that time; and so it was his opinion that the Cressida driver was unable to avoid the collision since he could not swerve either to the left or to the right before the collision.
DW2 Gabriel Matome [Driver of Cressida BD 8011C] confirmed that he had seen two Combi's parked by the

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side of the road, the plaintiff's vehicle being parked off the road, and the other Combi on the road parallel to each other, and that when he was about 2 0 metres away, the plaintiff's vehicle pulled into the verge, and then when he was about 13 metres away, the plaintiff's vehicle suddenly made a xu' turn, which made him realise that they would collide,- and so had swerved into the right lane, but at the same time the Combi had also turned in the same direction causing the witness's vehicle to collide with the plaintiff's Combi, hitting the front lower part of the driver's door. The witness estimating that his approximate speed at the time of the collision was between 40 - 55 kph, and certainly less than 60 kph. The witness further averred that the collision took place in the right hand lane of the road, causing the plaintiff's vehicle to overturn. The witness explaining in cross-examination that he could not at that time have swerved to the left as there was a ditch and storm drain on the left; adding that he had braked two or three times, first at 20 metres from the Combi, and then at 13 metres. The witness also stated that he did not recall having overtaken any other vehicles before colliding with the Combi; and said that if other witnesses had said he had done so, they would not be telling the truth. He also denied that he had attempted to overtake the Combi, and contended that he was never parallel to the Combi. But he did confirm that before the collision there was another vehicle approaching in the right hand lane [the same lane as himself]; and that the only thing he could then do in the circumstances was to swerve to the right; reiterating that in view of obstacles to his left, his only alternative was to swerve to the right. And he pointed out that from his position it appeared to him that the Combi in turning in the same direction as himself was an attempt by the plaintiff to complete the execution of a 'u' turn which he had commenced in order to enable him to drive off in the opposite direction; and that whilst engaged in that manoeuvre he had collided with the Combi in the right hand lane.
DW3 Jacob Motsokuno [Police Investigation Officer] tendered a sketch plan he had made at the scene and which had been countersigned by DW2 Matome, and which [looking north] depicts both vehicles after the accident, the Cressida completely off the road to the right, 3.8 metres away from the plaintiff's Combi which is shown in the right hand lane of the Old Lobatse Road, and the Cressida's skid marks are also noted in the right hand lane at a point 13 metres behind [and to the south] of the point of impact between the two vehicles which is also shown in the right hand lane 12.8 metres behind [and to the south] of the stationary Combi. This witness also testified that arising from the accident he had charged the

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plaintiff with driving without due care and attention in making a xu' turn without first ascertaining that it was safe to do so, and that the plaintiff had paid a P50 admission of guilt fine for such offence.
In cross-examination it was put to the witness that PW4 Sebogodi had told the Court that the plaintiff did not make a *u' turn as alleged but said in reply that such was contrary to Sebogodi's police statement. It was then put to the witness that he had never charged the plaintiff, to which the witness replied: I did charge him, I warned him verbally, and plaintiff paid an admission of guilt for such offence and paid the money to me,- and in support of that averment he tendered to the court a copy of a receipt in the plaintiff's name [receipt No.352266 for P50 for Driving without due care and attention] and said he had explained [in Setswana] to the plaintiff that he could either pay an admission of guilt fine or could go to Court."
The Court upon a consideration of the evidence made the
following findings of fact. It said that the evidence of
Plaintiff and his witnesses was "not particularly impressive.
Plaintiff himself had very little recall regarding what had
transpired both before and after the accident." The learned
Judge also questioned the reliability of PW2 in view of the
limitations of his range of vision and his unreliable estimates
of speed. He was similarly unimpressed by the evidence of both
PW3 and PW4. On the other hand he found Matome DW2 to be "a
thoroughly objective witness". He makes a similar finding in
regard to the driver of the Vespa Scooter Mr. Molapisi (DWl)
(Although he refers to him as DW2 it is clear from the context
that he means DWl) . He then proceeds to find on a balance of
probabilities that "the root cause of the accident lay in the
fact that the Plaintiff did      without any prior warning,
attempt to make a "U" turn on his own lane ..." Bearing in mind
the proximity of the Cressida at the point in time when he
attempted this manoeuvre "the driver of the Cressida was unable

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to avoid colliding with the Plaintiff's Combi." The Court goes on to say, as I interpret the judgment, that Matome was placed in a sudden emergency as a result of the unexpected and unusual manoeuvre of the Plaintiff and in an attempt to avoid a head-on collision "with the approaching vehicle" he was obliged to "turn into the left (sic) as far as he could; and thus collided with the driver's door of the Plaintiff's Combi;" (I think the learned Judge must mean to the right.)
He concludes by saying the following:
"I unhesitatingly find that the accident occurred solely due to the Plaintiff's negligent driving in attempting to make a "u" turn ... without first ensuring that it was safe to do so.
There are two issues before us.
1.     
Was the Court a quo justified in finding that the collision occurred in the manner just described, and
2.     
On the basis of this finding of fact was he right to hold that this act was the cause of the collision and that Matome did not nevertheless contribute to the accident due to his negligence.
Mr. Joina for the appellant challenged the findings of the learned presiding Judge under both headings cited above. He urged us to find that the Court had interfered unduly with the conduct of the trial, and was " on a whole unfair and unjust to the Plaintiff's witnesses".
I have carefully examined the passages cited by Counsel in support of these serious allegations. They are not substantiated by the record of the proceedings. Whilst cold print cannot reflect the demeanour of the presiding officer, it will not fail upon careful scrutiny to reveal whether a witness has been harassed by unjudicial and unwarranted interventions by the

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presiding officer. The present record does not do so. What it does reflect is inept and repetitious questioning by Counsel, often irrelevant and ill-directed. I will refer to one example of this herein below.
Counsel also pointed to the fact that defence Counsel was allowed to examine the investigating officer (DW3) in relation to Plaintiff's admission of guilt when such a contention had not been put to Plaintiff in cross-examination. I think Counsel is right that this occurred. However, he failed to protect his client's interests by not objecting to the introduction of such evidence. Indeed he compounded plaintiff's dilemma by himself cross-examining on this issue and thus introducing further damaging evidence.
Thus for example at p. 96 of the record the following is
recorded:
"Mr Joina: At that time where was the combi when he paid the fine? (this refers to the payment of the admission of guilt referred to above)
DW3 (the investigating officer) It was with him.
Mr Joina: Had you already handed over the combi to him
when he paid?
DW3 : Yes.
Mr Joina: I put it to you that when Mr Ntlatseng was
paying the P50-00 fine he was under the impression that he was releasing his combi and at the time he was not fully recovered.
DW3 : I do not agree, after he indicated that he
understood the charge, I told him he could either pay an Admission of guilt fine to the police office, or he could go before a Magistrate, and it was then that he paid an Admission of Guilt fine of P50-00 at the Police Office."
This citation from the record indicates clearly that, far

8 from resisting the introduction of evidence which had not been put to Plaintiff, his Counsel by the manner in which he conducted his case, assented to its introduction and participated - to his clients detriment - in canvassing the facts surrounding the issue to the full. In these circumstances he can hardly be heard to complain on appeal before us.
Another example of Plaintiff's Counsel solicitation of inadmissible evidence to his client's prejudice is to be found at p94 - 95 of the record, also in respect of the cross-examination of the investigating officer DW3. The relevant passages in the record read as follows:
"MR JOINA:       Please confirm that the only reason you
charged the plaintiff was because of the information that you received from the driver of the Cressida that the combi driver was making a U-turn?
COURT:   Can I put it to you that your decision
to charge the plaintiff was based on what Gabriel told you?
DW 3:    No, there was another independent
witness.
MR JOINA:        Who was that independent witness?
DW3:     He is Bethel Molapisi.
MR JOINA:        Did he made any statement to the
police?
DW3:     That is correct.
MR JOINA:        Were they the two people who made
statements to the police?
DW3:     There was another, who is George
Sebogodi.
MR JOINA         Was George's statement similar to the
other people's statements?
DW3:     That is correct.
MR JOINA:        George Sebogodi gave evidence in this

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Court and stated that the driver of the combi was not making a U-turn. And that he was driving behind him; and gave evidence to that effect. What do you have to say to that?
DW3:     That is contrary to what he told the
police."
It was not the manner in which the presiding officer conducted the trial that prejudiced the Plaintiff's case. His Counsel was the true author of such misfortune as may have resulted from the introduction of damaging inadmissible evidence.
Although in his grounds of appeal and in his written heads, Counsel did attack the finding of the Court a quo rejecting the evidence of the Plaintiff's witnesses, he did not address us on this contention. I can only say that a reading of the evidence in no way prompts me to find that the Court a quo erred in its finding in this respect. Certainly there was ample and prima facie acceptable evidence that the collision occurred in the manner alleged by Defendant in his pleadings; i.e. as a result of Plaintiff initiating a "U" turn in the face of oncoming traffic at a point in time when it was not only inopportune, but indeed dangerous to do so. Certainly the police plan indicating the position of the vehicles after the collision tends to support Defendant's version and is certainly not in conflict with it.
Counsel did argue before us that even on the basis of an acceptance of Defendant's version Matome (DW2) was negligent and that his negligence was the cause of the collision. His difficulty in this regard was of course that he had to rely almost exclusively on Defendant's evidence in order to find material to sustain to such a contention.

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His principal submission in this regard was that Matome should have avoided the collision by swerving to the left instead of taking avoiding action towards the right.
There are several difficulties in upholding this argument. The first problem is that both the witnesses DW1 and DW2 testified that there was another Combi on the scene; stationary on the left side of the road, in the vicinity of the point of impact and at the time the collision occurred. This evidence was accepted by the Court a quo and despite strenuous attempts to persuade us to the contrary, I am satisfied that the learned Judge was entitled so to find on the evidence before him.
In the second place, Matome was placed in a dilemma. He was suddenly confronted by a situation of extreme urgency due to an unusual and unexpected manoeuvre by the Plaintiff. His judgment in the situation that confronted him, was to try to avoid colliding with the Combi by swerving to the right. Mr Joina suggested he should have continued straight on. The problem with this proposition is the following:
Had the Plaintiff suddenly realised the danger he had created and brought his vehicle to a stop, a collision would on the proposition advanced also have been inevitable. In that event Plaintiff would no doubt have contended that Matome should have swerved to the right!
Whilst each case must depend on the particular circumstances established by the evidence, there is as a matter of principle ample authority for the proposition that a party who negligently creates a situation of imminent danger will find it difficult to discharge the onus of proving negligence attributable to the fact

11 that in that emergency a driver may choose the wrong option in swerving to avoid an accident. See in this regard:
STOLZENBERG V LURIE 1959 (2) SA 67 AT 74; COOPERS MOTOR LAW VOLUME 2 AT PAGE 89 -91 and the cases cited under footnote 277 at p.90.
In my opinion there was ample evidence before the Court a quo to justify its finding that the collision was caused by the negligence of the Plaintiff and that it had failed to establish any contributory negligence on the part of MATOME.
I would dismiss the appeal with costs.
DELIVERED IN OPEN COURT THIS 14th DAY OF July 1994

 J.H. STEYN JUDGE OF APPEAL

I AGREE:
T.A.AGUDA JUDGE OF APPEAL


I AGREE:
LORD N. WYLIE JUDGE OF APPEAL

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