Court name
Supreme Court of Zimbabwe
Case number
SC 89 of 2002
Civil Appeal 23 of 2001

Magidi v Sibanda and Others (23/2001) (SC 89 of 2002, Civil Appeal 23 of 2001) [2002] ZWSC 89 (20 October 2002);

Law report citations
Media neutral citation
[2002] ZWSC 89


REPORTABLE (74)

















Judgment
No S.C. 89\2002


Civil
Appeal No 23\2001

















NDANATSEYI
MAGIDI v (1) STANLEY SIBANDA (2) GAUNTLET
SECURITY COMPANY (PRIVATE) LIMITED (3) AIG
ZIMBABWE
INSURANCE COMPANY (PRIVATE) LIMITED











SUPREME
COURT OF ZIMBABWE


SANDURA
JA, CHEDA JA & GWAUNZA AJA


HARARE
MAY 28 & OCTOBER 21, 2002








T.
P. Kawonde
,
for the appellant





G.S.
Wernberg
,
for the respondents








CHEDA
JA: The appellant’s husband was knocked down and killed by a
motor vehicle driven by the first respondent, Stanley
Sibanda, whom I
shall refer to as Sibanda.





The
second respondent was the owner of the motor vehicle and employer of
Sibanda. The third respondent was the insurer of the
motor vehicle.





The
appellant sued for damages following the death of her husband as a
result of the accident. The High Court awarded her 20%
of the claim
against Sibanda, and recorded that the claims against the second and
third respondents had been withdrawn as it was
common cause that
Sibanda was not acting in the course of his employment.





In
her Notice of Appeal the appellant complains against the finding that
Sibanda was not acting in the course of his employment
and that the
claims against the second and third respondents were withdrawn.





I
prefer to deal with these two points before I deal with the merits.





The
summons was issued against the three respondents. All three entered
appearance to defend. In their joint plea the respondents
all
denied liability and said the appellant is put to the proof thereof.






A Pre-trial
Conference was arranged after the close of pleadings and issues were
agreed.





Nothing
was said at all about the liability of the second and third
respondents.





At
the trial evidence was led regarding Sibanda’s role in the
accident. Again, no mention at all was made regarding the second
and third respondents. No evidence was led to prove any claims
against them. The record does not show that the claims against
the
second and third respondents were withdrawn. The parties deny that
the claims were withdrawn.





Where,
in the pleadings, a claim is disputed, the claimant must lead
evidence at the trial to prove the claim.





It
cannot be said that because the respondents said nothing further they
were admitting the claims. The appellant should have
led evidence
to establish the liability of the respondents.






The
appellant argued that the question of Sibanda not acting in the
course and scope of his employment with the second respondent
was
never in issue. I do not agree because in their pleadings both the
second and third respondents denied liability and clearly
stated that
the appellant is put to the proof thereof. The appellant failed to
lead any evidence on the claims against the respondents
and so did
not prove the claims. According to the record the claims were made.
They were denied. That was the end. It follows
that even if one
goes by the understanding that they were not withdrawn, they were
never proved.





Turning
now to the merits of the case, the evidence for the appellant’s
case came from two witnesses, namely, John Zano, a private
security
guard, and Tonderayi, a police officer.





John
Zano’s evidence was that on the day in question he saw the deceased
park his motor vehicle on the right side of Greentrees
Road. The
deceased walked out of his vehicle towards its back.





A
Nissan vehicle driven by Sibanda came from the front, left its lane
to go towards the deceased’s vehicle, and struck the deceased
then
returned to the road. The deceased’s vehicle was a Mazda and
Sibanda’s vehicle was a Nissan. He was about 50 metres
from the
Mazda when he watched the accident.






After
striking the deceased Sibanda’s vehicle went back into the road and
stopped. He shouted at the person, telling him that
the person had
struck someone. Sibanda stopped his vehicle and came back to the
scene. John Zano disagreed with Sibanda on the
point of impact.
He said the deceased was struck while behind his vehicle. He denied
that he told the police of the deceased
being struck while trying to
cross the road.





Under
cross-examination he said the deceased wanted to go around his
vehicle to its back, but could not explain why he thought so.
He
accepted that the deceased had not yet gone to the back of the
vehicle.





On
visibility he told the court that there was still some light. Later
he admitted that it was then pitch dark. He maintained
that he had
not changed his evidence and what he told the Police was the truth.





The
trial court found that his evidence was not reliable and rejected it.





Police
Officer Tonderayi said he got to the scene of the accident. He
found the deceased inside a motor vehicle with a broken
leg.
Sibanda was arguing and trying to mislead the police officer about
how the accident had occurred. He behaved as if he wanted
to fight
the police officer. Sibanda was eventually taken for a blood test.





He
wrote in the traffic accident book but did not complete it as he
wanted to take the deceased to hospital. He called an ambulance
to
take the deceased to hospital.





The
police officer’s evidence did not take the case any further as he
had not witnessed the accident.





It
is clear why the evidence of John Zano could not be relied on.
Where it differs from that of Sibanda, Sibanda’s version sounds
more probable. Sibanda’s evidence is that the deceased was coming
back to cross the road towards his car, and on seeing him,
Sibanda
swerved to the right to avoid the deceased but it was too late.
John Zano’s evidence is that Sibanda swerved to the right,
struck
the deceased who was behind or at the back of his vehicle, then
swerved back to the road. Later he said Sibanda struck the
deceased
who was on the side of his vehicle without touching the deceased’s
vehicle at all. This sounds most improbable. No
reason is given
for Sibanda swerving to strike the deceased then return to the road
as if this was deliberate.





John
Zano indicated first a point behind the deceased’s vehicle, then a
point on the side of the deceased’s vehicle, as the
point of
impact.






In
comparison, Sibanda’s version and the point of impact near the
centre of the road seem more probable. The trial court was,
therefore, correct in accepting Sibanda’s version.






On the
liability of the second and third respondents it was clear that
Sibanda was no longer in the course of his employment.
He had
finished work. He was on his way home and had stopped on the way
and drunk beer with a friend. His course of employment
was over.
See
Gwatiringa
v Jaravaza & Anor

2001 (1) ZLR 383.






The evidence
also shows that Sibanda’s vehicle had its lights on.






Accepting
that the deceased was about to cross the road, he had a duty to see
that he crossed when it was safe to do so.






The
following head note from
Swanepoel
v Parity Insurance Co Ltd

1963 (3) SA 819 is very relevant:-





“A
pedestrian wanting to cross a busy road has the primary duty to make
sure that he chooses an opportune moment. Traffic on a main
road
need not be ready for any emergency created by people or vehicles who
enter the road unexpectedly from the sides, though, where
a driver
has ample opportunity to see a pedestrian so entering the road and is
unskillful in not swerving, he must bear a share of
the blame, albeit
a lesser share, if he collides with such pedestrian.”








Although
in this case this was not a main road, the deceased should have seen
the lights of an on-coming vehicle as it was then
dark according to
the evidence. He failed to avoid the vehicle that was coming with
its lights on. He clearly contributed to
the accident. I
therefore see no reason to interfere with the trial court’s
apportionment of blame. It seems quite appropriate.





For
these reasons the appeal cannot succeed and it is dismissed with
costs.














SANDURA
JA: I agree











GWAUNZA
AJA: I agree















Kawonde &
Company,

appellant's legal practitioners


Atherstone
& Cook
,
respondent's legal practitioners