REPUBLIC OF NAMIBIA

CASE NO.: I
2325/2011

“Not
Reportable”

IN THE HIGH COURT OF
NAMIBIA

MAIN DIVISION

HELD AT WINDHOEK

In the matter
between:

BUSH EVENTS &
ADVENTURES (PTY) LTD …..................PLAINTIFF

and

N M THERON
…......................................1^ST
DEFENDANT

WILLEM DU PLESSIS
…...............................2^ND
DEFENDANT

CORAM:
DAMASEB, JP

Heard
on: 2012.06.05

Delivered
on: 2012.06.05 [ex tempore]

___________________________________________________________

JUDGMENT:

DAMASEB, JP:

[1] This is a claim
for damages arising from a motor vehicle accident. The quantum is not
disputed and the only issue that I have to determine is whether there
was negligence on the part of the 2^nd Defendant that
caused the alleged damage to the Plaintiff’s vehicle.

[2] The Plaintiff
alleges that on or about 29^th January 2010 on Robert
Mugabe Drive in Windhoek a collision occurred between Plaintiff’s
motor vehicle and the vehicle then and there driven by the 2^nd
Defendant and belonging to the 1^st Defendant. It is
alleged that the 2^nd Defendant was acting within the
course and scope of his employment with 1^st Defendant, an
allegation which is denied.

[3] It is further
alleged that the sole cause of the accident was the collision caused
by the negligent driving of the 2^nd Defendant as follows:

(a) That the 2^nd
Defendant failed to take cognisance of the Plaintiff’s vehicle
travelling in the lane to the Defendant’s right hand side, and
that the 2^nd Defendant entered Plaintiff’s lane at a
time when it was dangerous and inopportune to do so.

(b) That the 2^nd
Defendant failed to indicate his intention to change lanes.

(c) 2^nd
Defendant failed to apply his brakes timeously or at all.

(d) 2^nd
Defendant drove at an excessive speed in the

circumstances.

(e) 2^nd
Defendant failed to avoid the collision when he could have and should
have done so.

[4]
The 2^nd
Defendant’s plea is that
there was no collision in the first place and that, secondly,
to the extent that damage may have
been caused to the vehicle of the Plaintiff, it was as a result of
the negligence of the driver of the Plaintiff’s vehicle who
drove at an excessive speed or failed to take cognisance of 2^nd
Defendant’s vehicle, failed
to take cognisance when approaching an uphill curve, lost control of
his vehicle and veered off the road and collided against a pavement.

THE PLEA:

[5] As I understand
the plea, the 2^nd Defendant’s case is that the
driver of the Plaintiff’s vehicle approached 2^nd
Defendant’s vehicle from behind and intended to overtake that
vehicle when it was unsafe to do so and therefore veered off the road
and the damage to Plaintiff’s vehicle was sustained as a
result.

[6] At the trial of
the matter both sides gave evidence. The Plaintiff called one Witness
being Mr Moyo, the driver of the vehicle of the Plaintiff at the
time. Mr Moyo’s evidence, in brief, is that he was driving from
north to south in Robert Mugabe Drive on the material day. He was in
the right hand lane and the 2^nd Defendant in the left hand
lane. Having passed the traffic lights at Centaurus, somewhere around
Maeura Mall and moving on in the southerly direction alongside State
House, the 2^nd Defendant who was then in the left hand
lane, without warning or any indication, turned into the right hand
lane in front of Mr Moyo. This allegedly all happened in a split
second, and that he was therefore unable to control the car and as a
result veered to the right and on to the pavement resulting in the
accident as a result of which the damage was caused to the
Plaintiff’s vehicle.

[7] The Defendant
called two Witnesses who were at the time in the 1^st
Defendant’s vehicle, the one, of course, being the driver. The
version of the Defendant’s witness is materially the same as
that given in the Pleadings. Such contradiction in their versions as
is suggested by Counsel for the Plaintiff in argument is immaterial
in my view, and in any event, does not point to collusion or
fabrication on their part. In fact, it points to the fact that their
evidence is not rehearsed.

[8]
The 2^ndDefendant
testified, together with one Bertus Beukes
who was a passenger in the 1^st
Defendant’s vehicle at the time of the
accident. Both maintained that they were driving along Robert Mugabe
from north to south when the Plaintiff’s driver approached from
behind in the same left lane they were in. They both testified that
the 2^ndDefendant
then moved the vehicle slightly to the left to give the Plaintiff’s
driver enough space to pass to their right. They then realised
that the Plaintiff’s driver was travelling
at a very high speed and lost control of the vehicle, veered to the
right hand lane, over the island, onto the road moving in the
opposite direction where the vehicle tipped over, or collided against
a hard object and came to a stop.

[9] Although it was
initially alleged in the particulars of claim that there was a
collision between the two vehicles allegedly caused by the 2^nd
Defendant, it is now conceded by the Plaintiff that there was no
physical contact between the two vehicles. The Plaintiff’s
Counsel in fact sought to amend paragraph 5 of the Particulars of
Claim wherein that allegation of contact appears. I refused the
request to amend from the bar which was made without warning or any
explanation why it was sought so late in the day when the Plaintiff’s
Counsel knew from the beginning when the plea was filed, that such
physical contact was denied. The Court even raised this matter at the
Pre-trial Conference and expressed surprise at the unusual nature of
the dispute between the parties. The Plaintiff’s Counsel had
ample time to consider the matter, take proper instructions and to
amend the Pleadings. They failed to do that. The attempt to only seek
amendment so late in the day undermines, in my view, - and in a
material way, the Plaintiff’s case. The version seems to change
as events unfolded.

[10] Another
significant variance between the Plaintiff’s evidence and the
Pleadings is the following: The evidence now led on behalf of the
Plaintiff amply demonstrates that the allegations made in the
Particulars of Claim that the 2^nd Defendant failed to
apply his brakes timeously or at all, and that he drove at an
excessive speed at the time of the collision, is inconsistent with
the proven facts and the probabilities in the case. It is now common
cause that the 2^nd Defendant’s vehicle was carrying
a heavy load and was travelling very slow. Moyo who testified on
behalf of the Plaintiff conceded that had 2^nd Defendant
applied brakes the situation would have been even worse. That is
inconsistent with the version in the Pleadings that the 2^nd
Defendant drove at high speed and failed to apply brakes timeously or
at all.

[11] Another
improbability in the Plaintiff’s case is the evidence by Moyo
that at the traffic lights opposite the Centaurus Secondary School,
the 2^nd Defendant drove past red lights while Moyo stopped
and that a Landcruiser (allegedly moving in front of the 2^nd
Defendant) passed the same traffic lights also moving north to south.
Moyo maintained rather implausibly in my view, that he had stopped at
the same traffic lights but thereafter caught up with both 2^nd
Defendant and the Landcruiser just before the accident happened.

The 2^nd
Defendant denied that there was a Landcruiser in front of him at the
time. If I have to accept Moyo’s version I must conclude that
when he left the traffic lights opposite the school, he took off at
very high speed. How else could he make up the distance between him
and the 2^nd Defendant and especially the Landcruiser, that
had, on his own version, passed the traffic lights at Centaurus even
before the 2^nd Defendant did?

[12] I am persuaded
by the argument on behalf of the Defendants that it is most
improbable that if Moyo was travelling at about 60km/h, as he says he
was, he could have failed to control the vehicle. The position at
which the car landed and the resultant damage also point to the fact
that he was driving at excessive speed.

[13] Some reliance
was placed by the Plaintiff on a statement allegedly made by 2^nd
Defendant to the police, which seemed to suggest that the 2^nd
Defendant was sick and that he might have acted in a manner that was
negligent. This statement is, at best, incoherent and ambiguous. In
any event, the taker of the statement did not testify and its
evidential value is at best minimal. Be that as it may, the 2^nd
Defendant has denied the contents attributed to him in the statement
and therefore I place no reliance on it, in so far as it is suggested
that it points to the Defendant admitting at the time that he acted
in a fashion that was negligent.

[14] I find the
Plaintiff’s version of how the accident happened is in conflict
with his Pleadings. I also find that the version of Moyo is
implausible in the light of all the circumstances and inconsistencies
I pointed out. On the contrary, the Defendant’s case was not
dented in cross-examination. The Plaintiff bears the onus and has
failed to prove that it is more probable than not that the 2^nd
Defendant drove in a negligent manner as alleged by the Plaintiff.

ORDER:

[15] The Plaintiff’s
claim is dismissed with costs.

_____________________

DAMASEB, JP

ON BEHALF OF THE
PLAINTIFF: MS A BOTES

INSTRUCTED BY:
FRANCOIS ERASMUS & PARTNERS

ON BEHALF OF THE 2^ND
DEFENDANT: MR M TJITURI

INSTRUCTED BY:
HENGARI, KANGUEEHI & KAVENDJII INC.