Lipholo Moholobela V Lesotho National General Insurance CO, LTD (CIV/T/62/2019) [2024] LSHC 117 (15 July 2024)

IN THE HIGH COURT OF LESOTHO HELD AT MASERU CIV/T/62/2019 In the matter between: LIPHOLO MOHOLOBELA PLAINTIFF and LESOTHO NATIONAL GENERAL DEFENDANT INSURANCE CO., LTD Neutral citation: Lipholo Moholobela v Lesotho National General Insurance Co., Ltd [2019] LSHC 117 Civ (15 July 2024) Page | 1 CORAM : KHABO J., HEARD : 14 MAY 2024 DELIVERED : 15 JULY 2024 SUMMARY Practice and procedure - inspection in loco - whether there is need to conduct an inspection in loco where in the process of a trial for claim of compensation in terms of the Motor Vehicle Insurance Order, 1989, a dispute arose as to the condition of the road at the point of impact, namely, whether the road was straight after the curve, or it formed a decline. ANNOTATIONS Statutes and subsidiary legislation Motor Vehicle Insurance Order, 1989 Page | 2 Cases cited Lesotho Thabo Makebe v Napo Peaeane CIV/A/8/1982 `Mota v Phaloane 1980 (2) LLR 260 Publications D. T. Zeffert, A. P. Paizes and A St Q Skeen in their work, The South African Law of Evidence Lexis Nexis Butterworths, Durban, 2003 Page | 3 RULING [1] This court is called upon to ascertain whether there is need to conduct an inspection in loco where a dispute arose during proceedings whether the road declined after a curve, or it became straight just before the point of impact. This enquiry is brought about by the differing versions of evidence on the position of the road. [2] The substantive claim is for payment of compensation under the Motor Vehicle Insurance Order, 19891 (the Order) for injuries sustained by the Plaintiff whilst driving a motor vehicle by way of medical expenses, estimated future medical and hospital expenses, loss of earnings, general damages for pain and suffering and for the loss of amenities of life following a motor vehicle accident. The Plaintiff contends that the Defendant is liable to compensate him for the damages suffered in terms of the said Order. 1 Order No. 26 of 1989 Page | 4 [3] As aforesaid, during the trial an issue arose as to whether after the curve the road is straight or whether there was a decline. It was at this point as PW 2 was testifying that Counsel for the Plaintiff applied that an inspection in loco be conducted because of the conflicting versions as regards the condition of the road. Defendant’s Counsel objected to the request. Hence this ruling. [4] The holding of an inspection in loco is a discretion of the trial Judge, which, of course, must be exercised judicially. The learned authors D. T. Zeffert, A. P. Paizes and A St Q Skeen in their work, The South African Law of Evidence2 remarking on this point had this to say that: [a] refusal to hold an inspection is therefore to a greater or lesser degree a rejection of evidence, but the decision on whether or at what stage of the trial it should be held is nevertheless a matter for the discretion of the court, which will seldom the reviewed on appeal. Page | 5 [5] Conducting an inspection in loco during a trial is advantageous for Judges. It allows them to visit the actual scene where an alleged incident took place, providing a clearer perspective. As succinctly pointed out in `Mota v Phaloane:3 There is no such thing as the perfect witness. Witnesses are either reliable or unreliable according to the many factors which affect them. Some people are more observant than others and some have better recollections of past events. Some witnesses are more subjective than others and may confuse what they saw or heard with what they were subsequently told. Apart from honest human failings, there are other factors which may render evidence of witnesses unreliable. Inspections in loco are very helpful in these circumstances to verify evidence led. [6] The court in Thabo Makebe v Napo Peaeane4 found it prudent to go for an inspection in loco to afford the litigants an opportunity to point out clearly the tree plantations over which 3 1980 (2) LLR 260 at 265 4 CIV/A/8/1982 Page | 6 they were disputing. This was a case in which the Appellant sued the Respondent before the ‘Mamathe Local Court over a poplar tree plantation. There was an issue with the boundaries of the plantation, and it was critical for the litigants to point out clearly the tree plantation over which they were disputing. [7] It is this court’s considered view that neither the Plaintiff nor the Defendant stand to suffer any prejudice if the inspection in loco is conducted. The results thereof will put this court in a clearer position in making a fair and just determination on the scene of the vehicle accident. [8] In the circumstances, the court concludes that an inspection in loco will assist in providing a clearer perspective of the position of the road at the point of impact for a more informed decision. The request by Plaintiff’s Counsel for its conduct is accepted. Logistics thereof will be coordinated with the Assistant Registrar serving this court in the first week of the commencement of the second session of court. Page | 7 ORDER [9] In the result, the court makes the following order: (a) That the inspection in loco shall be held on a date to be arranged; and (b) Costs shall be costs in the cause. _________________ F. M. KHABO JUDGE For the Plaintiff : Mr U. J. Motsohi For the Defendant : Adv., R. Cronje Page | 8