Pathfinder Luxury Coaches (Private) Limited V (1) Shamiso Kasvosve (2) Bekithemba Masuku (3) CBZ Insurance Company

DISTRIBUTABLE   	      (72)

PATHFINDER     LUXURY     COACHES     (PRIVATE)     LIMITED

v

(1)     SHAMISO     KASVOSVE     (2)     BEKITHEMBA     MASUKU     (3)     CBZ INSURANCE     COMPANY

SUPREME COURT OF ZIMBABWE

BHUNU JA

HARARE: JUNE 20, 2019 & OCTOBER 03, 2019

G. Wagoneka, for the applicant

N. Sai, for the respondent

IN CHAMBERS

BHUNU JA: 	This is an application for condonation and extension of time within which to appeal against the decision of the High Court in terms of r 43 (1) of the Supreme Court Rules, 2018. The application is opposed.

The applicant is a company engaged in the transport industry trading as Pathfinder Luxury Coaches. The first respondent is the wife of the deceased who was killed in a traffic accident involving a bus belonging to the applicant. The second respondent is the driver employed by the applicant. He was driving the bus in the course of his duty. The third respondent is the applicant’s insurer.

The salient facts of the case can be summarised as follows: The first respondent issued summons in the High Court claiming damages arising from the road accident which claimed her husband’s life.  The basis of the claim was grounded in negligence. It being alleged that the second respondent drove the bus negligently thereby causing the accident. The particulars of negligence are that the second respondent was over speeding and that he failed to act reasonably when the accident appeared imminent. The court a quo found the applicant vicariously liable as the second respondent was acting within the scope of his employment.

The second respondent denied the allegations raised against him. It was his defence that he was not over speeding but that the accident was caused by a cow which strayed into the road. He denied that he failed to act reasonably when the accident appeared imminent. He argued that after hitting the stray cow he lost control of the bus which swerved to the right lane which had oncoming traffic, resulting in the head on collision.

The High Court found that the second respondent was negligent and ordered the applicant and the second respondent to pay damages in the sum of US$60 000.00 the one paying the other to be absolved. It held that the second respondent failed to act reasonably when the accident became imminent by swerving onto the lane of oncoming traffic.

Upon finding that the second respondent was negligent, the court a quo held that when the accident became imminent the second respondent ought to have swerved to the left to avoid colliding with oncoming traffic.

Aggrieved by the decision of the High Court, the applicant filed an appeal to this Court on 28 February 2018. Although the notice of appeal was filed timeously, it was not served on the first respondent within the time frame stipulated in the Rules. The applicant now applies for condonation and extension of time within which to note an appeal.

The basic requirements to be satisfied for an application of this nature to succeed are well known as outlined in the case of Friendship v Cargo Carriers Ltd & Anor SC 1/13      p 4 of the judgment as:

The extent of the delay;

The reasonableness of the explanation for the delay; and

The prospects of success on appeal.

I now proceed to consider the three requirements in sequence.

In clarifying the reasons for delay, the explanation proffered by the applicant is that its legal practitioner erroneously interpreted the rules.  The applicant’s legal practitioner deposed to a supporting affidavit explaining that he erroneously interpreted the rules. In turn, counsel for the first respondent argued that the applicant should suffer the sins of its legal practitioner since she is its agent. The adage that he who does a thing through another does it himself is apt.

For that reason, there is a limit beyond which the sins of a legal practitioner should not be visited upon the client. In Viking Woodwork P/L v Blue Bells Enterprises P/L 1998(2) ZLR 249 at 252H-253C SANDURA JA stated that:

“Although the fault was most probably that of the appellant’s legal practitioners, the appellant cannot escape the consequences of the lack of diligence on the part of its lawyers.  As STEYN CJ said in the Saloojee case (supra) at 141B-E:

I should point out, however, that it has not at any time been held that condonation will not in any circumstances be withheld if the blame lies with the attorney. There is a limit beyond which a litigant cannot escape the results of his attorney’s lack of diligence or the insufficiency of the explanation tendered. To hold otherwise, might have a disastrous effect upon the observance of the rules of this court. Considerations ad misericordiam should not be allowed to become an invitation to laxity. In fact, this Court has lately been burdened with an undue and increasing number of applications for condonation in which the failure to comply with the rules of this Court, was due to negligence on the part of the attorney. The attorney, after all, is the representative whom the litigant has chosen for himself, and there is little reason why, in regard to condonation of a failure to comply with a rule of the court, the litigant should be absolved from the normal consequences of such a relationship, no matter what the circumstances of the failure are.”

The rule however is not cast in stone. The court has a discretion. In casu, the lack of diligence by the applicant’s legal practitioner was not wilful or deliberate. This is so because the judgment being appealed against was granted on 7 February 2018.  The first respondent was served with the notice of appeal on the 5th of March 2018, thirteen days after the expiry of the 15 days induciae. The delay is not inordinate.

The applicant filed its notice of appeal timeously. Had it served the first respondent timeously, this application would not have been before this Court. In exercising my discretion, I take cognisance of the fact that although the appeal had been duly set down for hearing on 19 July 2019, the applicant did not wait for the matter to be struck off the roll. Upon realising the error, it immediately sought to rectify the error by making this application. This is an indication that the applicant seriously intends to prosecute its appeal. In light of this, I consider that the explanation for delay is reasonable as it was not wilful or deliberate.

That is not however the end of the matter. In determining this application, I am enjoined to look not only at the delay and the reasonableness of the explanation for such delay, but also the prospects of success of the intended appeal. With regards prospects of success, the applicant avers that the court a quo erred in finding that the second respondent was negligent. The test which is to be applied in assessing whether or not a person acted negligently was spelt out in the case of Mills v Farmery 1989 (2) ZLR 336 H p343 where it was held that:

“It must be remembered that, in law, a reasonable man is a notional creature. He is not any reasonable man. He is the reasonable man that the circumstances of the case demand. As stated by McKerron, The Law of Delict 7 ed at p 36: “But in delict there is only one standard — the standard of the reasonably prudent person situated in the same circumstances as defendant. But although there is only one standard, the quantum of care required to comply with that standard varies with the circumstances of the case.”

Further in Lomagundi Sheetmetal and Engineering Pvt Ltd v Basson 1973 (1) RLR 356 (A) at p362-363 the court remarked as follows:

“There have been many cases dealing with culpability through negligence, many cases dealing with what I may call the degree of foreseeability which must be established by a plaintiff before a defendant can be held to be liable…At the onset, I should like to emphasise what was said generally by my brother MCDONALD at p542 where he said:

‘The essential attribute of the law of negligence is that it should be flexible so as to be capable of providing an answer to the infinite variety of situations in which negligence is alleged. Once inflexible rules adopted as to the test of the existence of negligence, either generally or in a special type of case, quite unwarranted inroad is made into the basic concept underlying the law….’

What a prudent man would or would not do, or would not foresee in any particular case, must depend on a very wide variety of circumstances and few cases are ever identical in the relevant circumstances.”

Applying the above test to the facts of this matter, it can be concluded that the second respondent drove the bus negligently. In the court a quo the second respondent acknowledged that he knew the road very well. He therefore knew that the chances of coming across a stray animal were high. It follows that he ought to have driven the bus with caution. Counsel for the applicant submitted that the second respondent failed to see the cow because there was a curve. However, the pictures of the scene of accident tendered as evidence in the court a quo show that there was no curve.

When asked why the second respondent swerved to the right instead of the left, counsel for the applicant indicated that had the bus swerved to the left, the bus could have overturned as it was overloaded. He argued that the second respondent came across a bus from their company which had broken down and as per their standard procedure he was obliged to carry the passengers from the bus which had broken down. An inference can be drawn that the second respondent acted negligently as over loading on its own is an act of negligence regardless of the reasons behind the over loading. It is also a criminal conduct prohibited and punishable by law. The applicant cannot therefore benefit from his employee’s criminal conduct.

Further, counsel for the applicant submitted that it was unsafe for the second respondent to swerve to the left as there were culverts on that side of the road. From the pictures which were taken at the scene of the accident the culverts were less dangerous than colliding with oncoming traffic. The only inference which can be drawn is that the second respondent was over speeding in the circumstances and failed to keep a proper look out resulting in him failing to stop or swerve to the left when the accident became imminent.

The applicant attacks the judgment of the court a quo on the basis that the court a quo disregarded the evidence of an expert witness. The evidence of the expert was that there was a possibility that the steering wheel developed a mechanical fault after hitting the cow but the braking system was not affected. Be that as it may, the second respondent testified that he was driving at 50km/hr, if what he testified was true he ought to have stopped the bus before hitting the cow.  More so, evidence was tendered to the effect that there were no signs of hard braking to show that the second respondent had applied brakes before hitting the cow. The court a quo cannot therefore be faulted for finding that the second respondent failed to act reasonably when the accident appeared imminent.

Consequently, the appeal has no prospects of success and the instant application for condonation is accordingly dismissed with costs.  Costs follow the result.

Dube-Banda, Nzarayapenga and Partners, applicant’s legal practitioners

Mundia and Mudhara, first respondent’s legal practitioners