Zweni and Another v Modimogale

• Jurisdiction: South Africa
• Judge: Stewart CJ, Galgut AJA and Kotzé AJA
• Judgment Date: 18 October 1991
• Citation: 1993 (2) SA 192 (BA)
• Hearing Date: 11 June 1991
• Court: Bophuthatswana Appellate Division

Kotzé, AJA.:

On 3 August 1987 a collision occurred between a Toyota Cressida H motor vehicle owned by the respondent (hereinafter called the plaintiff) and a vehicle owned by the Minister of Defence (hereinafter called the second defendant) and driven by the first appellant (hereinafter called the first defendant) acting within the course of his employment with the second defendant. The Toyota Cressida was damaged beyond repair and rendered inoperative.

The plaintiff, as a result of the said collision, instituted action in I the Supreme Court against the first and second defendants jointly and severally on 3 December 1987 for the recovery of the damage caused to her motor vehicle and loss caused to her business by reason of the loss of use of the said vehicle.

Section 75(2) of the Republic of Bophuthatswana Constitution Act 18 of J 1977 has, it should be noted, been complied with and nothing turns on a

Knotzé AJA

A suggestion in the pleadings to the contrary. The first defendant and the second defendant filed a joint plea on 14 April 1988 in which inter alia:

(a)

they denied that the collision was caused by the negligence of the first defendant and averred that the collision was caused by the sole negligence of the plaintiff;

(b)

B the plaintiff was put to the proof of the allegation that the vehicle was damaged beyond repair and that she suffered damage in respect thereof; and

(c)

the plaintiff was put to the proof of the allegation that the vehicle was used by her in her business prior to the collision and that, as a result of the collision, she suffered loss (hereinafter C called 'consequential damage') as a result of the loss of use of the vehicle.

At a pre-trial conference held on 19 July 1989 the defendants persisted in their denial of negligence on the part of the first defendant and in the averment of the plaintiff's sole negligence being the cause of the collision. Moreover the denial that the consequential damage was sustained D was also persisted in. A second pre-trial conference was held on the date that the trial commenced before Lawrence AJ on 7 August 1989. At this belated stage the defendants conceded that the collision was solely due to the negligence of the first defendant. And then only was agreement reached in regard to the damage to the vehicle - the second defendant agreeing to pay the plaintiff R9 700 in respect thereof. And so the matter went to E trial on the date last mentioned - the only remaining issues being the amount of the consequential damage (if any) suffered by the plaintiff and the question of costs of the action.

The consequential damage which the plaintiff claimed consists of the aggregate of R12 000 for the hire of a taxi for...