The
plaintiff alleges in her particulars of claim that the sole cause of
the collision was the negligent driving by Serogwe. Defendant
admitted that collision occurred, but denied that Serogwe was the
sole cause of the collision.Defendant pleaded that the sole cause of
the collision was the negligence of Swartz, the third party. In
addition it was pleaded that the said Harenz Swartz is a person
contemplated by section 6(2)(b)(ii) of the Motor Vehicle Accidents
Act, 1990 (Act 30 of 1990). Alternatively, the defendant pleaded
that if the Court should find that Serogwe was negligent, his
negligence did not cause the collision or the damages sustained by
the Plaintiff, or contributed thereto. In the further alternative
the defendant pleaded that if the Court should find that Serogwe was
negligent and that his negligence contributed to or caused the
collision, the negligence of Swartz contributed to the collision and
the plaintiffs damages. As such the defendant claims an
apportionment of damages in terms of the Apportionment of Damages
Act, 1956 (Act 34 of 1956).
The
defendant also issued and served upon Harenz Swartz a third party
notice in terms of Rule 13 of the High Court Rules, (which notice
was amended several times) as well as a notice in terms of section
2(2)(b) of Act 34 of 1956. It is common cause that the third party
never intervened in the action between the plaintiff and defendant,
and that, should this Court find that the third party was negligent
and contributed to the plaintiffs damages, this Court may only make
a declaratory order in respect of the third party. (Shield
Insurance Co. Ltd v Zervoudakis 1967
(4) SA 735 (ECD): Hart
and Another v Santam Insurance Co. Ltd 1975
(4) SA 275 (ECD); Randbond
Investments (Pty) Ltd v FPS (Northern Region (Pty) Ltd 1992
(2) SA 608 (W)).
The
collision occurred at a robot controlled intersection shortly after
midnight in the early hours of the Day of Goodwill, 26 December
1998. The street in which the plaintiffs vehicle traveled, Abraham
Mashego Street, runs through the intersection. Before the
intersection along the path that plaintiff traveled, Abraham Mashego
Street runs in a downward direction, goes through the intersection
and then leads across a bridge which is positioned over a riverbed.
Should one continue with this road over the bridge, a residential
area on the immediate right is known as Grysblok. Further along
Abraham Mashego Street one would be traveling in the general
direction of Otjomuise, another residential area,
approximately 5 kilometres away. It is in this residential are that
the plaintiff and the third party lived.
On
the left side (as the plaintiffs vehicle was traveling) of Abraham
Mashego Street there are houses and on the right are the CCN
offices. The road entering the intersection from the left is
Mungunda Street and runs parallel to the riverbed. It continues
through the intersection, but the street on the opposite side of the
intersection is called Caesar Street and also runs generally
parallel to the riverbed in a northern direction. The intersection
is not a perfect cross. A motorist entering the intersection from
Mungunda Street must veer slightly towards the right when crossing
over to Caesar Street. The roads were tarred and lit by electric
street lights.
Before
the intersection is reached, the view for a driver traveling from
the direction in which plaintiffs vehicle was traveling, towards the
left to Mungunda Street is obscured, partly by the incline, partly
by shrubs and trees and a signboard on the corner of Abraham Mashego
Street and Mungunda Streets. Similarly the view of Abraham Mashego
Street to the right for a person traveling in Mungunda Street
towards the intersection is obscured by the shrubs, trees and sign
board.
Mungunda
Street lies lower than the approach of Abraham Mashego Street
towards the intersection. Before Mungunda Street enters the
intersection there is a slight dip in the street, where after it
goes up at a slight incline towards Caesar Street.
In
summary the plaintiffs case regarding the collision itself amounts
to the following:
On
26 December 1998 shortly after midnight the plaintiff was a
passenger in a Volkswagen Caddy bakkie. She was sitting behind in
the bakkie, which had a canopy, with a female relative, Alexia and
the latter's small child. Plaintiffs husband, the third party, drove
the Caddy. Next to him, in front was the witness Clemens Gaseb. They
proceeded along Abraham Mashego Street in the general direction of
Otjomuise. Near the CCN offices they entered the robot controlled
intersection, which I described earlier. Mr Swartz entered the
intersection at about 50 kph while the robot was green for him.
Shortly after he had entered the intersection he collided with the
vehicle of Mr Serogwe, which entered the intersection from Mungunda
Street when the robot was red for him. He was traveling very fast.
As a result of the collision the plaintiff was injured.
In
contrast, the defendant's case essentially is that Mr Serogwe
entered the intersection from Mungunda Street while the robot was
green for him and that Mr Swartz was negligent by entering the
intersection while the robot was red for him. The defendant further
alleged that Mr Swartz was under the influence of alcohol at the
time. In the further particulars provided by the defendant the
grounds of negligence relied upon were set out as follows:
"1.1
The said Harenz Swartz entered into the intersection when it was not
safe and/or opportune to do so; and/or
1.2
The said Harenz Swartz entered into the intersection against the
red traffic light; and/or
1.3
The said Harenz Swartz entered into the intersection when he did
not have the right of way; and/or
1.4
The said Harenz Swartz did not heed the right of way which the
vehicle with registration number N99449W, driven by Mr Ben Serogwe
had; and/or
1.5
The said Harenz Swartz did not apply brakes timeously and/or at all;
1.6
The said Harenz Swartz did not avoid the collision by exercising
reasonable care and while in a position to do so; and/or
1.7
The said Harenz Swartz was under the influence of liquor."
Counsel
agreed in oral argument at the end of the evidence presented, and it
is indeed clear that two opposing or contradictory versions of the
accident and what occurred thereafter were put before the Court. In
such a case it has been said that:
"Where
there are two stories mutually destructive, before the onus is
discharged, the court must be satisfied upon adequate grounds that
the story of the litigant upon whom the onus rests is true and the
other is false." (National
Employers' General Insurance Association v Gany 1931
AD 187 at 199).
However,
in African
Eagle Life Assurance Co Ltd v Cainer 1980
(2) SA 234 (W) it was held (at 237F-238) with regard to the approach
as stated in Gany
that
-
" this
approach to problems of proof in this type of case only
applies
in
cases where there are no probabilities one way or the other. Where
there are probabilities, inherent or otherwise, there is no room for
this approach. On the other hand, where there are no probabilities -
where, for instance, the factum
probandum was
whether a particular thing was white or black, with not the
slightest evidence as to the preponderance of white or black things
in that particular community, there are clearly no probabilities of
any sort. And, when the testimony of witnesses is in conflict, the
one merely saying the thing was white and the other black, it does
not matter logically what the measure of proof is, whether it is on
a balance of probabilities or beyond a reasonable doubt. The
position is simply that there is no proof, by any criterion, unless
one is satisfied that one witness' evidence is true and that of the
other is false. It is frequently said that the dictum
in
the Gany
case
does not apply to civil cases because of the omission of the learned
Judge to have regard to the measure of proof in civil cases being on
a balance of probabilities. But this criticism is invalid because,
unless suitably qualified, it confuses proof with the measure of
proof. Where there is no probability there is simply no proof of
anything (regardless of the measure by which you measure it) unless
you believe one person and disbelieve the other. Until then the
chances of it being black or white remain exactly evenly balanced.
This is simple logic."
This
approach has been approved and applied in numerous cases and I shall
bear it in mind in my evaluation of the evidence. I further take
into consideration the following passage in National
Employers' General Insurance Co Ltd v Jagers 1984
(4) SA 437 (E) where the Court said (at 440E-G):
"It
seems to me, with respect, that in any civil case, as in any
criminal case, the onus can ordinarily only be discharged by
adducing credible evidence to support the case of the party on whom
the onus rests. In a civil case the onus is obviously not as heavy
as it is in a criminal case, but nevertheless where the onus rests
on the plaintiff as in the present case, and where there are two
mutually destructive stories, he can only succeed if he satisfies
the Court on a preponderance of probabilities that his version is
true and accurate and therefore acceptable, and that the other
version advanced by the defendant is therefore false or mistaken and
falls to be rejected. In deciding whether that evidence is true or
not the Court will weigh up and test the plaintiffs allegations
against the general probabilities. The estimate of the credibility
of a witness will therefore be inextricably bound up with a
consideration of the probabilities of the case and, if the balance
of probabilities favours the plaintiff, then the Court will accept
his version as being probably true. If however the probabilities are
evenly balanced in the sense that they do not favour the plaintiffs
case any more than they do the defendant's, the plaintiff can only
succeed if the Court nevertheless believes him and is satisfied that
his evidence is true and that the defendant's version is false."
The
plaintiff did not testify in person. The witnesses who testified in
her case were Det/Sergeant Nunuheb, who investigated the matter; Mr
Phillip Haradoeb, the first person who was at the scene of the
collision; Mr Clemens Gaseb, the passenger in front with Mr Swartz;
Mr Swartz, the driver; and Mr Jeremy Engelbrecht.
For
the defendant the following witnesses testified: Mr Serogwe, the
other driver; Oubaas Makies, an alleged passenger; police officers
Haraseb, Nowaseb and Harold Gaseb; the ambulance driver, Mr Strydom;
and two women, Oscarine Tenzin and Ella Bakhela.
The
trial was tenaciously conducted by all the parties against a
backdrop of suggestions and innuendo, on the one hand, that the
defendant was dragging its feet because inter
alia it
was unable to pay the settled amount, and, on the other hand, that
the plaintiff, the third party and sympathetic witnesses had motive
to colour or adapt the evidence in order for the plaintiff and the
third party to benefit from the huge settled amount, especially in
the light of her plight. Evidence was presented by both sides that
there were attempts or apparent attempts to influence witnesses in
various ways. The evidence presented did not just cover the
collision itself but also event before and especially after the
collision. Cast in simple terms, the main factual issues in respect
of which there is a dispute have boiled down to the following
questions:
Which
driver went through the intersection against the red light?
Were
Swartz and Gaseb under the influence of alcohol?
Did
Swartz leave the scene to look for help or because he was under the
influence of alcohol?
Did
Serogwe have passengers in his vehicle?
Mr
Swartz testified that on Christmas Day, 25 December 1998 he walked
over from his house to that of the witness Clemens Gaseb between
17:00 and 18:00. He found Gaseb barbecuing some meat. They ate the
meat and shared a six pack of Tafel Lager beer, each having three
beers. After the braai they went to Swartz' house where they watched
a video. They consumed no alcohol there as the plaintiff does not
drink or want others to drink there.
At
about 23:00 they traveled seated as I described before, to different
houses in various residential areas to see relatives. No alcohol was
consumed. Shortly after 24:00 they approached the intersection in
Abraham Mashego Street. He was driving at plus minus 50 kph when he
entered the intersection. The robot was green. He saw a vehicle
suddenly driving in front of him from the direction of Mungunda
Street towards Caesar Street. In cross-examination he explained that
he saw Serogwe's vehicle just before or at the time of the
collision, that there was very little time to react and that
everything happened in a split second. He said that his view was
obstructed to the left into Mungunda Street, because of the trees
and sign board, but that he did look in that direction before he
entered the intersection. He said any person would look to see if
there are vehicles approaching when approaching a robot
intersection. In reexamination he said that he saw Serogwe's
vehicle when he entered the robot crossing, that is why he could
still swerve and apply his brakes.
The
other vehicle was driving very fast. Swartz applied his brakes and
swung his vehicle toward the right in the direction of Caesar Street
to avoid the accident. However, the two vehicles collided and came
to a standstill. Mr Swartz stopped in the left-hand lane of Caesar
Street facing into Caesar Street, pushed into that direction by
Serogwe's vehicle. Serogwe's vehicle came to a standstill on the
ground next to Caesar Street, facing the river bed.
Swartz
immediately got off his vehicle and walked towards the other driver,
accompanied by Gaseb. Serogwe was getting out of his vehicle. Swartz
immediately asked him why he was driving like that. In response
Serogwe just held his head and said that he is sorry. By this Swartz
understood Serogwe to indicate that he is guilty. Serogwe was alone.
Thereafter
Swartz returned to inspect his vehicle and to see whether any of his
passengers were hurt. The plaintiff was screaming for help. She was
lying down at the back of the Caddy. Alexia and her child were
standing outside next to the Caddy. Swartz wanted to get into the
back to help the plaintiff, but somebody told him from behind that
she should not be touched, it may be serious. Someone arrived with a
cell phone and he was asked to telephone the police and ambulance.
They waited for a long time, but neither the police nor the
ambulance arrived. The plaintiff kept screaming for help. Swartz
said he was feeling very sorry for the plaintiff and desperately
wanted to help her. He therefore told Gaseb to stay at the scene and
that he would run off to his brother's house. It is common cause
that Swartz has a brother, Peter Karon who lived in Grysblok, a
residential area on the other side of the riverbed. He passed
through the riverbed and the veld and then proceeded to Karon's
house, from which he wanted to telephone. At the stage he left the
scene there were no police officers yet. He later added that the man
with the cell phone also left the scene.
At
Karon's house the gate was locked. He jumped over the fence and
someone (the witness Engelbrecht) came out, who told him that Karon
had gone to a farm. Engelbrecht was looking after the house and told
him that the phone was locked. They then woke up someone in the
neighbour's house, which had a phone, but they could not phone from
there. Swartz waited a short while as Engelbrecht had told him that
Karon would be back at anytime. After a while Swartz went to look
for a taxi, found one and returned tot he scene of the accident, but
there was nothing. Everyone had left, and the vehicles were gone. He
then went by taxi to visit his wife in hospital, but was not allowed
to see the plaintiff. He went home as the children were alone.
The
next day he went to Ben Swartz, another brother in Otjomuise and
borrowed his vehicle to go to the police to report the case. On his
way to Clemens Gaseb's house he met Clemens by chance and took him
along to Wanaheda Police Station. Clemens told him who the
investigating officer was. They asked the police on duty to contact
Nunuheb, but he did not turn up. From there they visited the
plaintiff in hospital. Then they went home.
On
27 December they again went to the police where they met Nunuheb.
Swartz was interviewed first. Nunuheb asked him why he ran off from
the scene of the accident. Swartz told him that he went to look for
help. Nunuheb informed him that he had gone go Karon's house with
Clemens to look for Swartz in order to arrest him for not being at
the scene. Apparently Clemens had told Nunuheb that Swartz had gone
there to look for help. Swartz then made a warning statement.
Swartz
is in all material respects corroborated by Jeremy Engelbrecht.
Peter Karon was his uncle and he looked after Karon's house on
Christmas evening 1998. Karon and family had gone to the farm for
the day and they were expected back that same night. He went to bed
between 22:30 and 23:00. Swartz woke him up by knocking at the door
and told him that he had been in an accident. He was looking for
Karon. Swartz was very shocked and he kept referring to the fact
that his wife was hurt seriously. Swartz wanted to use the phone,
but it was locked. They tried the neighbour's at Erf 344 but were
unsuccessful. Swartz waited a few minutes for his brother but then
returned to the scene. He felt sorry for Swartz and when asked
"Could you evaluate whether he was under the influence of
liquor or not?", his answer was "No.". Engelbrecht
went to bed and woke up the next day at 10:00 to find that Karon had
returned in the meantime.
In
cross examination he made it clear that it was not possible that
Swartz was drunk because he did not smell of alcohol. He was able to
observe well as they were standing close to each other and talking.
He said his head was clear and that he himself hand not been
drinking. He noticed that Swartz was wearing a pair of spectacles
with one lens missing. He did not know at what time Swartz came to
wake him up.
Clemens
Gaseb corroborated Swartz in all material respects regarding the
events on Christmas Day and how the collision occurred. Although he
did not look at the speedometer he estimated Swartz to have driven
between 40 and 50 kph. In cross examination he said Swartz drove not
more than 50 kph. He said Swartz could not have moved faster, only
slower. He based his estimation thereon that "someone who
usually gets into a car he would know at approximately what speed
the car would be traveling." By this I understood him to say
that from having been a frequent passenger he has acquired some
experience of the speed at which a vehicle is traveling. He did
admit that he did not have a driver's licence, but only about two
months before he entered the witness box obtained a driver's
licence. In his handwritten statement (Gl) prepared a day or two
after the collision he put the speed at 50 kph. Later in cross
examination he said that Swartz was driving at a reasonable speed
which he estimated to be 50 kph.
I
am willing to accept that Gaseb's estimation is not too far off. It
fits in with that of Swartz. In any event, the speed at which Swartz
was traveling is not one of the grounds of negligence relied on by
the defendant. Furthermore, although Serogwe denies this, Det/Segt
Nunuheb said that Serogwe pointed out the collision point to him. In
Court all the parties pointed out the same point. The sketch plan he
drew up and measurements he made were never disputed and must be
accepted as correct (except that points C and D must switch around).
According to this information the point of impact was very close to
the point where Swartz must have seen Serogwe's vehicle for the
first time. It is just in the lane next to the one in which he was
traveling before one leaves the intersection on the bridge's side.
What is more, Swartz' vehicle stopped just about two steps away from
the point of impact.
I
agree with Mr Muller, who appeared for the plaintiff and the third
party, that the evidence tends to show that Swartz did not move fast
and probably used his brakes as testified. The points on the scene
therefore also tend to corroborate Gaseb in his estimation.
Gaseb
further confirms Swartz' evidence that they immediately went to
Serogwe's vehicle after the collision, that Serogwe held his head
and said "God, I'm sorry" and that he was alone. They
returned to the Caddy and heard plaintiff calling for help. He also
heard that plaintiff said she could not move. He confirms that
Swartz tried to help her but that he was stopped. He saw that Swartz
was in shock. Swartz then said that he would go look for help at
this brother. There was some uncertainty on the evidence whether
Swartz mentioned that he intended going to the brother in Grysblok,
as he also has a brother in Otjomuise, but in my view nothing turns
on this. There is evidence on record that Otjomuise is about 5
kilometres away from the scene and it is unlikely that Swartz would
have gone so far or intended to go there, as Karon was just around
the corner in Grysblok. Besides, Gaseb knew where Karon lived as he
had been there before. In fact he took Nunuheb to that house later
that evening to look for Swartz. The ambulance arrived about 5 to 10
minutes after Swartz had left. The plaintiff was placed in the
ambulance, which also took Alexia and the child and they all left.
At
the scene Nunuheb, whom he knew from before, asked him where Swartz
is and he told Nunuheb that Swartz went to his brother's house for
help. He accompanied Nunuheb to the house, found the brother, but
not Swartz. They drove back to the scene hoping that Swartz would be
there, but he was not. The vehicles were towed away and Gaseb was
taken home.
Both
Swartz and Gaseb are corroborated by the witness Phillip Haradoeb in
all material respects. He was the first person on the scene
immediately after the accident occurred. He confirms the incident
relating to what Serogwe said and stated that to him it appeared
that they argued about the manner in which Serogwe had driven. He
stated that his wife is a nurse and she cautioned Swartz not to move
the plaintiff in her condition. He said that Swartz initially was in
shock, but calm. Later he was "confused" after he saw the
plaintiffs condition and moved towards the riverside. He was not
asked to explain his description of the plaintiff as being confused.
He saw him walking down into the river and towards Grysblok. He
noticed Serogwe talking on his radio and a person with a cell phone
called the police and ambulance. The ambulance and police arrived
only after a very long time and removed the plaintiff. He instructed
Gaseb to remain at their vehicle to keep it safe. He did not notice
the police searching for Swartz in the river. He did not see that
either of the drivers was under the influence of alcohol. The
witness made a good impression in the witness box.
In
aspect of the case that took up much of the Court's time was the
allegation by the defendant that Swartz was under the influence of
alcohol at the time of the collision. The allegation is coupled with
another, namely that Swartz decided to skip the red robot as it was
late at night and usually quiet on Christmas evening. The
implication of the allegation appears to be that he did so because
he was under the influence of alcohol, although this was not
actually stated. This is also the true reason, defendant says why
Swartz ran from the scene. I prefer to deal with this issue earlier
in the judgment as the analysis of the evidence surrounding this
aspect will facilitate the weighing up of the probabilities
concerning the cause of the collision itself.
Swartz
and Clemens Gaseb both admit that they had three Tafel Lager beers
each with meat between 17:00 and 18:00 the previous day.
Thereafter
they ate more meat at Swartz' home. Swartz drove around from 23:00
until the collision shortly after 24:00 without any problems. Both
he and Gaseb denied that either of them was under the influence of
alcohol. It is important to note that not one witness testified that
he actually saw Swartz under the influence of alcohol.
Serogwe,
who knew and recognized Swartz shortly after the collision, did not
describe him as being under the influence of alcohol. According to
Serogwe they were told to go near the police vehicle for a breath
alcohol test. At the time Nunuheb and Swartz were approaching each
other. He heard Nunuheb say to Swartz in Damara or Nama (which he
understand) "You see yourself that you are drunk" and
"run" and shortly thereafter heard the policeman say
"there he's running, there he's running" referring to
Swartz.
In
a written statement (exhibit "B7") Serogwe made on 11 May
2004 during the trial, but before he testified, he stated for the
first time that Nunuheb said to Swartz "You must run away, you
know you are under the influence of liquor". Later in the
written statement he expressly confirms this. When cross-examined on
this statement he persisted that Nunuheb did this. There is
overwhelming evidence that Nunuheb arrived at the scene only after
Swartz had left the scene. No one else mentioned that any breath
tests were done.
In
the warning statement by Serogwe dated 27 December 1998 he mentioned
at the end that Swartz was drunk, that he observed Swartz and that
Swartz ran away from the scene but makes no mention that he did so
on Nunuheb's instruction. When confronted with this statement,
Serogwe testified that he never made this statement, but was asked
to sign a blank form or warning statement, which he did. This
startling fact he mentioned for the first time in his evidence after
he was pressed in cross examination about its contents. He also
admitted that he never mentioned it to the defendant's legal
practitioners during any of the preparations for the case. This
explains why it was not put to Nunuheb during cross-examination.
Serogwe was a police officer in the past and was at the time of the
collision a security officer at Transnamib who at times investigated
crimes at times together with the police. I find it highly
improbable that he would sign a blank warning statement. Even if he
did so, one would expect of him to have reported or mentioned it as
soon as he found out that it contains a statement purportedly made
by him, especially if it is wrong. He mentioned several instances in
which the statement was incorrect during cross-examination. I
further find it highly improbable that Nunuheb who was investigating
the collision would have instructed a drunken driver to run from the
scene in the presence of the other driver and other police officers
and onlookers. If he did this, one would expect that Serogwe would
immediately have protested or reported the instruction. Instead he
only mentioned it 5Vfe years later. I have no hesitation in
rejecting Serogwe's evidence on these aspects as false.
It
is also in this statement ("B7) that Serogwe for the first time
mentioned that Nunuheb removed a crate of beers and a bottle of
Richelieu brandy from Swartz' vehicle. In his testimony before this
court he however said that it was one of the policemen dressed in
camouflage uniform who took these items from the Caddy and put them
in the police vehicle.
Both
in during and during cross-examination Nunuheb denied that any
liquor was found on or removed from the vehicles or the scene of the
accident. No one else saw the alleged crate of beer or bottle of
brandy. Both Swartz and Gaseb denied that there were such things in
the Caddy.
Nowaseb
who was called by defendant and who was a detective sergeant in the
Namibian Police appears to have been one of the first police
officers on the scene. He testified that he inspected the vehicles
of both drivers and he did not see a crate or bottle of brandy. He
left the scene before Nunuheb arrived. He never saw any other police
officer at the scene or anyone in uniform. The alleged crate of beer
and Richelieu seem to have disappeared into thin air. In exhibit
"B7" Serogwe mentioned that he asked Nunuheb about this
alcohol when he went to see Nunuheb the next morning at the police
station and that Nunuheb "just told that it is his job he knows
what he must do". He says further than when he and instructing
counsel, Mr Murorua asked Nunuheb whether "he still having the
evidences of liquor", Nunuheb said "that he is still
having the evidences there". This was never put to Nunuheb in
cross-examination and there was no attempt reflected in the evidence
to produce such exhibits in Court. In my view the weight of evidence
strongly favours the probability that there was no crate of beers or
bottle of brandy found in the Caddy.
I
next turn to a consideration of the remainder of the evidence of
Nowaseb. He says he was the first policeman on the scene and that he
was off duty and in plain clothes. He passed by the scene on the way
home. He reported the collision by cell phone to the police and
called for an ambulance. It took a long time for them to respond.
Eventually he left the scene to report the matter in person at
Wanaheda Police Station. Swartz also mentioned a man with a cell
phone who telephoned the police and ambulance, but who left before
their arrival. He appears to have thought this was a civilian. It
seems to me that this person may very well have been Nowaseb,
although Nowaseb testified that he only spoke to Serogwe and Gaseb.
When he looked for Swartz they could not locate him or observe him.
He said that Swartz may have been amongst the persons on the scene.
He testified that Gaseb spoke to him at the scene. Gaseb told him
that he was a passenger in the Caddy and that Swartz was the driver.
Gaseb also told him that "they" drove "over " a
red robot and bumped into an oncoming vehicle. At the time Nowaseb
was right next to Gaseb and he clearly observed Gaseb to be
"reasonably drunk". His tongue was slurring, his breath
smelled of alcohol and he was unsteady on his feet.
Nowaseb
then inspected the vehicles. I understood his evidence to be that he
did this because it is normal procedure for a police official who
comes onto a scene of a collision to inspect the inside and
immediate vicinity of the vehicles involved. He peeped in the front
of the Caddy and saw beer bottles there as well as beer bottles next
to the vehicle when he moved around to the back. He saw nothing when
he inspected Serogwe's vehicle.
In
cross-examination he said that he could not remember if he inspected
the vehicles alone. What is clear is that he did not make any point
to take anyone with him. He acknowledged that normally the driver
would be taken along lest the driver later denies the fact that
something relevant was found. When pressed on why he did not do it
in this case, he said it is not a written policy or rule, but that
it is done out of habit. When pressed further on this point he said
that he actually does not normally work with collision cases, but
with fraud cases. He further explained that he saw beer bottles
inside the Caddy where the passenger's feet would be. He could not
say how many, but it was more than one. At first he said they were
empty, then he corrected himself and said that he could not actually
say whether there were sealed bottles. He did not take them out of
the vehicle. On the left side at the back of the Caddy he found more
than one empty beer bottle on the ground. Again he could not say how
many.
Nowaseb
said that he showed his appointment certificate to Gaseb and that he
wanted to know who the drivers were. Although he acknowledged that
it was important to know who and where the driver and passengers of
each vehicle were, he did not actually ask Serogwe about any
passengers or see any. To explain this he said that it is actually
the responsibility of the person who is coming to investigate the
case. He acknowledged that a passenger or liquor could disappear
from the scene if he did not report their existence to the
investigator.
There
is evidence that Nowaseb's report was noted in the occurrence book
at Wanaheda with particulars of where he could be traced. He noted
that an accident took place and that there were serious injuries. It
seems he did not report the evidence of alcohol in the vehicle or
the drunken passenger.
The
fact that Gaseb was allegedly under the influence was not put to
Nunuheb or Haradoeb during cross-examination. However, it may be
that the evidence of Nowaseb was not available at the time these
witnesses testified. I have the impression that the defendant's list
of witnesses grew as the case progressed. Nevertheless, it seems
clear that Haradoeb had occasion to observe Gaseb's condition and
actually spoke to him. He did not mention the signs which, according
to Nowaseb were noticeable to anyone. In my view it is unlikely that
Haradoeb would have left a drunken person in charge of Swartz'
vehicle.
Nunuheb
had a lot of contact with Gaseb that evening. Gaseb did not tell him
the story that Swartz had driven through the intersection while the
light was red. If he told Nowaseb this freely, why does he not tell
Nunuheb, the investigator? Nunuheb also drove with him to Karon's
house and back to the scene to leave Gaseb in charge of the vehicles
until they are towed away. Nunuheb must have noticed Gaseb's
condition and if he were indeed intoxicated it is unlikely that
Nunuheb would not have made something of it or mentioned it in his
own statement, especially as he was keen to trace the driver and
even formulated charges against him for leaving the scene. If Gaseb
was intoxicated and bottles were found in the Caddy it seems obvious
that the next logical question would be whether the driver may not
have been intoxicated. Nowaseb suggested that perhaps Nunuheb did
not do his duty in this regard, but I find it improbable bearing in
mind that he actually went to look for Swartz and brought Gaseb back
to the scene to remain there until they are towed away. He also
asked Serogwe (and it seems Gaseb) to report to the police station
the next morning at 8:00 for statements. Although he may be
criticized on his subsequent handling of the matter and the content
of the statements and accident report, I am unable to find on the
evidence that he was in dereliction of his duty on the night of the
collision, unlike Nowaseb.
I
find Nowaseb's evidence regarding the beer bottles vague and
unsatisfactory. He says he went specifically to inspect the vehicle
as it is customary to do. Having seen that the passenger of one
vehicle is drunk and having heard that he admitted to their vehicle
infringing the red traffic light and finding empty bottles, but no
driver, it is probable that any police officer in his position would
have specifically counted the bottles, or have made a point to see
if they were empty or full or made notes of his observations or not
have left the scene until the investigator or other police arrived
to whom he could hand over the scene. According to him he was the
only police officer there. There was no need to drive to Wanaheda to
report the matter in person. He could have made another urgent
telephone call. As a detective with the rank of sergeant normally
handling fraud case I think it is reasonable to expect of him to
anticipate that the driver might have consumed some of the beer and
may remove the evidence or disappear from the scene. Yet he leaves
the scene without any handing over to another police officer.
According to him he also did not report his finding of the beer
bottles or the drunken passenger to anyone. He did not report the
passenger's explanation that they crossed the intersection against
the traffic light and caused the collision. He also did not mention
this in the occurrence book to alert anyone to the circumstances
which he found at the scene. His explanation is that was the duty of
the investigator to deal with all this, but elearly the investigator
may not have found the scene in the state Nowaseb left it.
Furthermore, the drunken passenger might not repeat the story to the
investigator or might even leave the scene. To conclude, I find his
evidence improbable and unsatisfactory on these aspects.
Oscarine
Tenzin and Ella Bakhela went to the scene some time after the
accident. The ambulance arrived while they were there. Tenzin saw a
male person sitting in the passenger seat of Swartz' vehicle. On the
dash board were two empty drinking glasses. She is the only person
that saw this. In my view this evidence is neither here nor there.
Ella Bakhela saw an empty glass and empty beer bottles in the back
of Swarz' vehicle where the plaintiff was lying and crying. She was
also the only one who saw this. The persons who made specific
inspections, namely Nowaseb and Nunuheb did not see this. It seems
that Ella was approached to testify at a very late stage. I find it
doubtful and improbable that she would remember seeing such details
as the glass and empty beer bottles after a period of approximately
5'/2
years.
I prefer not to rely on her evidence on this aspect in the face of
the evidence by Nowaseb and Nunuheb.
The
only other witness who gave evidence on the alcohol aspect is Harold
Gaseb, the uncle of Clemens Gaseb. At the time he testified he was a
constable in the Namibian Police with eleven years service. He had
previously done duty as a court orderly at the magistrate's court
and as a traffic officer. At the time of the collision he was living
in Port Louis Street about 500 - 600 metres from Clemens. He stated
that they had a good relationship and that Clemens used to come to
him with his problems, one of which was alcohol abuse. Allegedly
Clemens respected Harold and also borrowed money from him on
paydays.
On
26 December 1998 between 7:00 and 8:00 Clemens came to see Harold
and told him that he had been involved in a vehicle accident. He
said that Swartz was the driver of the vehicle and that the other
vehicle was a Transnamib pick-up. Clemens also told him that they
had had a party and drank at a certain house in Katutura and just
before midnight Swartz and he got into the front of the vehicle with
three ladies in the back. They were on their way back to Swartz'
house in Otjomuise. As it is normally quiet during Christmas nights,
Swartz speeded through the intersection while the traffic light was
red. (I pause to point out that this intersection appeared to be
quite busy that night. Not only were Swartz and Serogwe there,
Haradoeb, Nowaseb and Haraseb passed there by chance shortly after
the collision. The evidence was that there were several other
vehicles and onlookers who stopped at the scene. It appears that not
all passed there because of the accident.)
The
light was green for the Transnamib vehicle and they collided.
Clemens said that if Swartz had obeyed the traffic light, the
accident would not have occurred. Clemens also told him that he was
feeling bad, that if Swartz had not gone through the red robot, the
accident would not have happened and Mrs Swartz would not have been
hurt. He told Gaseb that she had sustained a neck injury. Gaseb
stated that Clemens was not happy about being a passenger involved
in the accident and said, referring to Swartz that the "bastard"
nearly caused his death.
Clemens
further said that he forgot to take along some of the liquor that
was in the vehicle for his hangover the next day. He mentioned that
there were beers, Richelieu brandy and a half jack of Mellow Wood
brandy. Clemens also said that Swartz got out of the vehicle and
said to Clemens that he is going to run, that he could not stay
there, as he was drunk. Swartz said that if he stayed there the
police would lock him up for drunken driving. According to Harold,
Clemens came to him for advice, because, as Swartz had run away from
the scene, Clemens was worried that Swartz might turn around and say
that it was Clemens who had been the driver. Gaseb advised him that
as he had been just a passenger in the vehicle, why should he be
afraid? He told Clemens just to tell the truth.
According
to Gaseb, Clemens said that he was not feeling well and had a
hangover. Gaseb could also observe that he was hung over, as he
smelled strongly of alcohol and his eyes looked as if he had gone to
sleep late. Gaseb sent his daughter to go and buy a beer at a
shebeen nearby and when she returned, Clemens took the beer and
left.
A
short while thereafter Clemens and Swartz came walking to Gaseb's
house and Swartz asked Gaseb for transport to take him to the place
where the accident had taken place to look for his spectacles. Gaseb
obliged. He parked his vehicle in Caesar Street and went with a
footpath down into the river bed with Clemens and Swartz to look for
the spectacles. In the witness box he could not remember if they
found the spectacles or not. He also could not remember if Swartz
wore spectacles that day. From there he took Clemens and Swartz
home.
This
witness also told the Court that on 3 August 2004 during the time
that Swartz was giving evidence in this Court Swartz had approached
the witness to come and say, if he is called, that he had found
Swartz and Clemens on 26 December 1998 at the river looking for the
spectacles, because this is what Swartz had testified. Swartz also
told him that he had denied in evidence that he went to the scene
with Harold Gaseb. Swartz was giving him a tip-off, as he described
it. Swartz allegedly wanted Gaseb to help him with this piece of
evidence.
Gaseb
also told the court that the next day he met with Swartz in Port
Louis Street near his home, because the latter left him a message at
home. Swartz then showed Gaseb a document which had been handed in
at Court. It was a statement about the events of the collision on 26
December 1998. (There was indeed handed in as exhibit "J"
a statement conforming to the description). Swartz then said that Mr
Erasmus, his instructing counsel, had said that Gaseb should go
thoroughly through the statement and when he testifies his testimony
must go along the same lines at that of Swartz in the statement. Mr
Erasmus had also allegedly said, in the words of Gaseb, that "they
are only short of one percent, then they walk away with 5 million"
an apparent reference to the fact that the plaintiff needed only to
prove 1% negligence on the part of Serogwe to succeed in her claim
(something which had been mentioned by counsel for both parties in
Court during an earlier application for postponement of the trial
and in the opening statement on behalf of plaintiff at the start of
the trial.).
Swartz
was recalled to be cross-examined on these allegations and he denied
them. Swartz earlier testified that he borrowed his brother Ben
Swartz' vehicle on the morning of 26 December and later went with
Clemens to look for the lens of his spectacles which he lost in the
river bed the previous evening. While there, Harold Gaseb happened
to come by. When Clemens was cross-examined, he also denied the
conversation which Harold alleged took place and his allegations
relating to the spectacles.
There
are several aspects about Harold Gaseb's evidence which are to my
mind quite improbable. If Gaseb was upset and felt bad about Swartz
"going through" the red robot, it is likely that he would
he have told Nunuheb the same story. Even if one accepts that he may
have been afraid that Swartz would pin the driving onto him, why
would he then tell Nunuheb that Swarz had gone to his bother in
Grysblok to seek assistance? One would expect that he would have
told Nunuheb that Swartz was drunk and ran away not to be arrested.
If he really told the story about the beers, the Richelieu and
Mellow Wood, it is improbable that both Nowaseb and Nunuheb did not
see all these items, although they inspected the vehicle. The
alleged fear that Swartz would pin the driving on him is
unreasonable as at least Alexia and Haradoeb saw that Swartz was the
driver. There were also other relatives who saw that
Swartz
drove the vehicle the previous evening before the collision. Clemens
did not have a driver's licence - it is improbable that he would
have driven Swartz' vehicle, especially if he, Clemens, was drunk.
It seems to me that Harold needed some aspect on which to "advise"
Clemens.
I
find it improbable that Clemens would shortly afterwards bring the
very Swartz, who nearly killed him the previous evening, ran away
and who is suspected of perhaps wanting to pin the driving on him,
to Harold to ask for transport to look for his spectacles. It is
further improbable that Harold would comply and that the two Gasebs
would assist Swartz in these circumstances to look for the
spectacles. I find Harold's explanation on this score vague and
improbable. I bear in mind that at the time Harold was a police
officer. I think it highly improbable that he did not confront
Swartz about committing several offences the previous evening,
especially as there was a prospect in the mind of his nephew Clemens
that Swartz would blame Clemens.
He
did not even ask Swartz anything about the previous evening's
events. Further, he goes so far as to assist the very offender at
the scene of the crimes to retrieve his property which was lost
while fleeing from justice while knowing that an innocent person was
seriously injured. If he truly did all this he is patently dishonest
and not to be trusted. This of course does not necessarily mean that
he is lying, but in the absence of other satisfactory evidence
supporting him, I take a dim view of his evidence on these aspects.
It
is also opportune to deal at this stage with the impression made on
me by Clemens Gaseb. He was not an easy witness to deal with. He
sometimes did not answer questions and had to be pressed, sometimes
by the Court. However, I did not have the impression that it was
because he wanted to hide anything or because he could not explain.
I agree with Mr Muller's submission that he wanted to be clever. He
also seemed to be obstinate at times. His failure to attend the
proceedings after an adjournment while he was under
cross-examination seemed to be related to financial constraints and
a dispute with plaintiffs legal practitioners about his costs and
not because he wanted to avoid being questioned. He testified by
means of an interpreter and at times appeared to have difficulty
with understanding the questions in translation. These sometimes
related to questions relating to his view about the importance of
reasonableness of certain matters and not about facts of narrative
material.
One
aspect which caused him difficulty was the fact that he obviously
missed a day in his recollection of events, namely the day light
hours of 26 December 1998. At times he appeared to think that the
accident occurred on 27 December after midnight. He was adamant that
he made his warning statement the very next morning after the
accident. Swartz said that they went to the police station twice -
once on the 26th
and once on the 27th
of December. On 26 December they tried to get hold of Nunuheb, but
he did not turn up, so they returned the next day. In this respect
he is supported by Serogwe who initially gave the same evidence. I
have considered whether this difficulty of Clemens had anything to
do with the story told by Harold Gaseb. However, in the light of the
fact that the weight of probability is against Harold's version, I
have come to the conclusion that it is probably a problem with his
memory or a mistake.
Another
aspect to be dealt with is that Clemens did reluctantly admit after
long cross-examination that he discussed the incident of the
collision with Swartz the next day. Swartz, rather improbably,
denied this. I must point out that this is a common feature of the
testimony of witnesses in Court who are often reluctant to deny that
they have discussed any aspect of a case, no matter how startling,
shocking or life changing the event may have been, even with their
lawyers. One knows that they naturally did discuss it and any lie or
reluctance that they have not does not tend to weigh heavily in the
mind of the Court.
Returning
to Harold Gaseb's evidence regarding the events of 3 August, it
seems to me unlikely that Swartz would tip Harold off regarding a
relatively unimportant piece of evidence, namely that Harold found
Swartz
at the scene looking for his spectacle lens. Swartz must have known
that Harold would probably be called by the defendant and that any
attempt to influence him would probably be revealed, especially if
he was asking Harold to tell a deliberate lie.
The
same can be said about the evidence regarding the statement on the
events of 26 December 1998. In any event, there can be no reason for
Mr Erasmus to send a message to Harold to tailor his evidence along
the lines of Swartz' statement at it is concerned with the collision
itself, and not with any matter on which Harold could or would be a
witness. Swartz also did not strike me as being so unintelligent or
uninformed that he would think that it would serve any purpose to
ask Harold to do this. In fact, Swartz' evidence amounts thereto
that it would have served no purpose. In my view Harold's evidence
on this aspect cannot be accepted.
I
now turn to the issue of why Swartz left the scene. He says it was
to seek assistance from his brother. He is supported in this version
by Clemens that this was the reason he advanced and which was
conveyed to Nunuheb, who further confirms this. He says that he was
desperate to help the plaintiff and that the ambulance took long to
arrive. In this he is supported by the evidence of defendant's
witness, Mr Strydom, who said that the ambulance only left for the
scene at 24:59. This is slightly less than an hour after the
collision approximately took place. There is evidence by both Swartz
and Haradoeb that the plaintiff was not to be moved. That this was
said, is highly likely on the probabilities. According to Swartz the
man with the cell phone had left. As I said before, this appears to
be Nowaseb who confirmed that the ambulance took long to arrive and
that he then left to personally report the matter.
It
may be that one can raise valid criticism as to why Swartz did not
seek help from Haradoeb, from any of the onlookers, or at one of the
nearby houses. At least Haradoeb had a vehicle there and could
possibly have taken Swartz to seek for assistance. Swartz explained
that he did not know Haradoeb that well and did not now anyone else
there, except his brother. He took what he thought was the quickest
route through the river bed and walked, ran and jogged to Karon's
house where he jumped over the fence. There was some light and he
could see, although he did acknowledge that the route he took was
not easy and without obstacles. It may be that a person who was
thinking clearly and calmly might rather have chosen to take the
route along the road and over the bridge, but I bear in mind the
evidence that Swartz was shocked, confused and concerned about his
wife, which is reasonable and probable in the circumstances. It
seems natural that a person in Swartz' position would prefer to seek
help from a relative close by. He is supported, as I already pointed
out, by Engelbrecht about what occurred at Karon's house. This lends
support to his story that he left to seek assistance.
It
does seem strange that Swartz missed the return of his brother, as
well as Nunuheb's visit to Karon's house and that he returned to the
scene after everyone had left. He explains this by saying that he
went to look for a taxi, which he found nearby at the corner of the
street at a big house. During cross-examination Mr Geier for
defendant confirmed that there is indeed such a place which is also
a business place at the corner of the street in which Karon lives.
Swartz said that he also had to wait for the taxi driver to fetch a
bag in the house and close the gates. This took time. They then
drove back to the scene.
It
appears to me that Swartz was just unfortunate in that he missed his
brother and Nunuheb. He says he did not see them. It is not unlikely
that Karon returned soon after Swartz had left, as he was expected
home any minute. In fact, Nunuheb found him there shortly
afterwards. Furthermore, from exhibit "K", a street map
handed in it is clear that there is more than one route that a
vehicle could take from the scene to Karon's house. It is not
improbable that Karon and Nunuheb had taken a different route to
that taken by Swartz. It seems to me that were it not for the
allegation that Swartz was under the influence no-one would have
thought it strange that he left the scene to look for assistance or
that he missed his brother or Nunuheb on the way back. In the
absence of any credible evidence that he was indeed under the
influence, the probabilities favour Swartz' version that he left the
scene for an innocent purpose.
In
coming to this conclusion I must also mention that Swartz made a
good impression on me when he testified. In addition I do not think
that the fact that these aspects were not fully dealt with in his
warning statement is of great import, as there is clear evidence
that the reason for his absence was already conveyed to Nunuheb on
the night of the collision. As far as Nunuheb is concerned it is
clear that he must be mistaken that Haraseb had told him that Swartz
was warned not to leave the scene. None of the police officers have
given such evidence. It seems to me that it is not improbable that
the general impression arose at the scene that Swartz had fled,
perhaps also because he was at least some of the time jogging or
running. He only told Clemens that his purpose in leaving was
innocent. To others observing him it probably looked as if he was
fleeing or even hiding in the river bed. It is not improbable that
this impression could have led to a suspicion that he was under the
influence and had to make a getaway.
I
now turn to the evidence by the defendant's witnesses in more detail
and will then deal with the first and last two factual questions
posed above. The evidence by the witness Serogwe in essence amounted
to the following. He had two passengers with him in the front of the
Transnamib pick-up. The two were Oubaas Makkies and Don. He picked
them up at Ella Bakhela's house about 500-600 metres away from the
intersection in Mungunda Street. Her house is at Erf 9533. Ella
testified that the intersection can be seen from outside her house.
Serogwe was in a hurry as he was busy investigating a matter of
stolen property which was kept at a certain house. He needed Don to
point out the house to him. Why Makkies went along is not quite
clear. Serogwe said that he drove about 80 kph. He first said that
when he got onto Mungunda Street at Ella's house the robot was
already green for him. He drove towards the intersection and before
the crossing he heard a bang or a knock. He then said "the time
that I just reached the crossing that's when I heard a knock or a
hit on my right hand side." He pointed out a point on photo
D(12) which coincides with the place which Nunuheb indicated on the
sketch plan as the point of impact. It is clear that Serogwe did not
see plaintiffs vehicle at all before or during the collision, but
only after he had come to a standstill and he got out of his own
vehicle. When he heard the knock he swerved right and came to a
standstill off the road down in the riverbed. (His description is
misleading. From the point pointed out it is clear that it was not
actually in the riverbed, but higher up on the banks of the incline
towards the river.)
As
the driver's door had already been damaged before and could not
open, both he and his two passengers got out on the passenger side.
He then moved around his vehicle and saw Swartz' vehicle next to
his. (Again Sergowe's description is not accurate, as Swartz'
vehicle was at point A on exhibit Al, about 18 paces away from
Serogwe's vehicle.)
Contrary
to what everyone else said, Serogwe testified that the police were
there within seconds and that the drivers were instructed not to
move. Much later he said that they arrived 30 - 40 minutes later.
Later they were called to give a breath specimen for alcohol, which
evidence is likewise not supported by any other witness. That is
when Nunuheb allegedly told Swartz to run away, which evidence I
have already rejected. Swartz then ran and the police were searching
for him. Nunuheb then said that he could report at the police
station at 8:00. This he did, but Nunuheb was not there. He returned
on 27 December when the warning statement was taken. Later he stated
that he actually met Nunuheb on 26 December and signed a blank
warning statement.
According
to Serogwe, Oubaas Makkies disappeared from the scene, that is why
no statement was eventually taken from him. The obvious place to
have looked for him was at Ella Bakhela's house where he found
Makkies. There is no evidence that this was done. It is clear though
that he never mentioned to the police or in any of his statements
that
Makkies
was the one passenger. He only mentioned a person by the name of
Deon, who he later said was Don. Nunuheb confirms that Serogwe had
mentioned that there was a passenger by the name Deon. Much time was
spent on the issue of whether Serogwe tried to bring Deon and
Nunuheb together for a statement to be taken and whether Nunuheb
failed to do his duty in this regard. The initial stance taken in
plaintiffs case was that Serogwe was alone in the vehicle, but later
it was conceded after Oscarine and Ella testified that Don and
Makkies may have been in the vehicle at the time of the collision.
There
are however, aspects of Makkies' evidence that concern me. He first,
like Serogwe said that the light was green when they drove off from
Ella's House, but then he changed his evidence and said that he saw
the light turning green about 16 paces before they entered the
intersection. Serogwe also changed his evidence in cross-examination
to say the light turned green when they were about 50 metres away
from the intersection. Makkies just heard the sound of the collision
and did not see Swartz' vehicle. Immediately after the accident he
saw Swartz get out of his car and run away. Makkies said that he
stayed at the scene for about 30 minutes and then went to Ella's
home and told her and Oscarine that they had been involved in an
accident. Strangely, he did not tell them what happened and on their
own testimony, they did not ask him what happened. They were only
concerned about Don, who was, according to Makkies, unharmed.
Makkies also testified that the police searched for the other driver
and even fired shots in the process. There was no such evidence by
anyone else. This must be a clear fabrication. The witness Haraseb
who arrived by chance at the scene testified that he was dressed in
a blue uniform and accompanied by a driver in a camouflage uniform.
They looked for Swarz in the river bed, but did not state that they
fired shots.
Although
Makkies appeared truthful in the witness box about his criminal
record and the general impression he conveyed was one of honesty, it
was clear that he is not youthful anymore. He was slow to respond to
questions and in his manner of speaking. I did not get the
impression that he was quick in his reactions or particularly
responsive. Bearing in mind in his favour that the accident occurred
a considerable time before his testimony, I must nevertheless say
that I would not be surprised if he were not particularly observant.
His testimony that Swartz ran away immediately tends to confirm this
impression. What is more, he did not even tell the women at home
what had occurred, as one would have expected, namely that another
vehicle disobeyed the red light. This must surely have been
something noteworthy to say in the circumstances. According to him
he also did not speak to Serogwe at the scene, which also seems
strange. I have my doubts that he even discussed the matter with
Serogwe later, as he was never mentioned as a witness who could
testify that Serogwe was in the right and Swartz in the wrong. It
was only after Don died that his name came to the fore. If he did
discuss it, it would rather seem that he probably could not assist
Serogwe. If he could assist, I find it very improbable that he just
left the scene without making himself available as a witness. For
the reasons already mentioned, I am not inclined to rely on his
evidence as to the colour of the traffic light.
Serogwe's
evidence was most unsatisfactory. Counsel for the defendant conceded
mildly that he was not the best witness and that his evidence should
be treated with caution. I do not propose to deal with the countless
instances where he clearly contradicted himself, adjusted his
evidence to cast himself in a better light, blamed others for his
mistakes, gave spurious answers and even fabricated evidence. I have
already referred to some aspects in regard to exhibit B7 and the
warning statement. At times he seemed not to know the difference
between lies and the truth. Apart from this he was distinctly
hostile, arrogant and rude in the witness box while being
cross-examined. The Court repeatedly had to warn him to listen to
the questions and to answer them. What is clear is that his evidence
on material issues cannot be relied upon in the absence of
corroboration. In the light of my findings on the evidence given by
Makkies I am driven to the conclusion that there is no support for
Serogwe's version that the traffic lights were green for him. I am
fortified in this conclusion by the evidence of Swartz, Clemens and
Haradoeb that Swartz and Clemens immediately after the collision
went to Serogwe and confronted him about his driving. Swarz says he
was angry about the manner in which Serogwe drove. Haradoeb had the
impression that there was an argument. This reaction by Swarz would
be a natural reaction by an innocent driver towards the offending
driver. In addition Serogwe held his head and apologized.
Apart
from this Serogwe on his own version drove at 80 kph at night in an
area where the speed limit is 60 kph. He did not keep a proper look
out or enter the intersection with the necessary care expected from
a reasonable driver in the circumstances. In the intersection he did
not even see plaintiffs vehicle until after the collision and they
had come to a stop. He only swerved to the left after his vehicle
had been hit. It is clear that Serogwe was negligent and caused the
accident. In the result the plaintiff has proved her claim against
the defendant.
As
far as the driving by Harenz Swartz is concerned, I can find no
basis upon which it can be said that he was negligent on any of the
grounds alleged by the defendant and point out that the general
description of the damage to his vehicle supports his version that
he swerved to the right. The claim against him as third party must
fail.
In
the result I make the following order:
1.
In
respect of plaintiffs claim against the defendant judgment
is
granted for the plaintiff for:
1.1
Payment of the amount of N$4, 713, 232-00.
1.2
Interest on the aforesaid amount at the rate of 20% per annum
calculated from 14 days after the date of judgment to date of
payment.
1.3
Costs of suit.
2. In
respect of defendant's claim against the third party the
claim
for declaratory relief is dismissed with costs.
APPEARANCE
FOR PARTIES:
PLAINTIFF
AND THIRD PARTY:
Adv L C MULLER SC
Instructed
by: Van der Merwe-Greeff Inc
DEFENDANT:
ADV. H Geier
Instructed
by Murorua & Associates
Swartz v Motor Vehicle Accident Fund and Another (I 1717.2003) [2006] NAHC 53 (10 March 2006);