‘Unreportable’

CASE NO.: I 884/2011

IN THE HIGH COURT OF
NAMIBIA

In the matter between:

HENDRIK HAININGA
…....................................................................................Plaintiff

and

MESAG MULUNGA
…...................................................................................Defendant

CORAM:
PARKER J

Heard on: 2012 July 2 –
6

Delivered on: 2012 July
24

_________________________________________________________________

JUDGMENT

_________________________________________________________________

PARKER
J: [1] The plaintiff, represented by Ms Botes, has instituted
action against the defendant in which he claims damages in the amount
of N$43, 400-50 and interest thereon. The following relevant facts
are either indisputable or undisputed. The suit arises from a
collision of a motor vehicle Hyandai Elentra, Registration Number
N28659W, driven at the material time by a Mr Shiimi (‘the
plaintiff’s motor vehicle’) and a motor vehicle 2000
Daewoo, Registration Number N406550W, driven at the material time by
Victor Mulunga (‘the defendant’s motor vehicle’).
Although at that material time the defendant’s motor vehicle
was registered in the defendant’s name, he had donated it to
his brother, Victor Mulunga. And as respects the plaintiff’s
motor vehicle; the ownership of the vehicle is in the plaintiff. The
plaintiff’s vehicle was travelling eastwards from the western
direction on Brug Street in order to proceed into Florence
Nightingale Street. There was a (‘stop’ or ‘yield’)
sign on Brug Street at its intersection with Florence Nightingale
Street. Florence Nightingale Street is the main street, and
therefore, the advantageous route, whilst Brug Street is the minor,
feeder street. And it was on Florence Nightingale Street that the
defendant’s vehicle was travelling on.

[2]
The evidence adduced on behalf of the plaintiff’s case and that
adduced on behalf of the defendant’s case on the issue of whose
negligence caused the collision are mutually destructive to each
other. In such a case, the proper approach is for me to apply my mind
not only to the merits and demerits of the two sets of versions but
also their probabilities, and it is only after so applying my mind
that I would be justified in reaching the conclusion as to which
version to accept and which to reject (Harold Schmidt t/a Prestige
Home Innovations v Heita 2006 (2) NR 556). That is the manner in
which I approach the resolution of the versions on the opposite sides
of the suit given by the witnesses on certain crucial matters.

[3]
It was testimony of Haininga (the plaintiff) that at the time the
collision occurred the defendant’s motor vehicle was being
driven without its headlamps switched on. Haininga was riding in the
rear seat of the plaintiff’s vehicle. Haininga’s
testimony about the headlamps was repeated by Shiimi, the driver of
the plaintiff’s motor vehicle, as aforesaid. The version of
Victor, the driver of the defendant’s motor vehicle was that he
had switched on not only the vehicle’s headlamps but also its
foglights; and after the collision he came out of the vehicle and he
saw that the right headlamp and the foglight were still on. He added
that it was not possible for him to have been driving the vehicle for
a long distance from his house in Windhoek North in the streets
without switching on the lights of the vehicle. The collision
occurred in the wee hours, i.e. at about between 12 midnight and
02h00. After having applied my mind not only to the merits and
demerits of the two versions about the lights, and also their
probabilities, I reject the plaintiff’s versions, and I accept
Victor’s version. I find that on a balance of probabilities,
the headlamps and the fog-lights on the plaintiff’s motor
vehicle were switched on before the collision.

[4]
I also make the following factual findings – relying also on
the approach set out in Harold Schmidt t/a Prestige Home
Innovations v Heita supra. Shiimi was travelling on Brug Street.
Far away from the ‘stop’ or ‘yield’ sign he
stopped his vehicle, and after a short moment the vehicle proceeded
towards the intersection. I accept that he stopped at the second
time; this time at the ‘stop’ or ‘yield’
position. His vehicle then proceeded to enter Florence Nightingale
Street in order to proceed eastwards thereon in the left lane, in his
opposite view, travelling from the west towards the easterly
direction. And in order to do that Shiimi’s vehicle had to cut
across the left lane of the traffic on Florence Nightingale Street,
travelling northwards from the south. It is this selfsame left lane
carrying traffic on Florence Nightingale, travelling northwards from
the southerly direction, that Victor’s vehicle had been
travelling on, that is, from the south to the north. Victor’s
evidence was that his vehicle had been travelling at a reduced speed
because it had just moved over a speed-calming hump that was in his
lane. It was when Shiimi’s vehicle was cutting across Victor’s
lane on Florence Nightingale Street that the collision occurred.

[5]
In determining whose negligent driving caused the collision I rely on
the principles I set out in Marx v Hunze 2007 (1) NR 228 at
230 C-H, which in turn are distilled from the authorities:

‘This
wise prescript should be the starting point of my enquiry. It has
been held that a driver travelling along a main road is entitled to
assume that the traffic approaching from a minor crossroad will not
enter the intersection unless it is safe to do so. In Victoria
Falls and Transvaal Power Company Ltd v Thornton’s Cartage Co
Ltd
De Waal JP stated that the duties of a driver entering an
intersection from a minor road have been stated as follows:

“When
a person driving a car approaches a street which is a main
thoroughfare, or in which he is aware that there is likely to be a
considerable amount of traffic, he must approach the intersecting
street with due care and be prepared to expect traffic. His first
duty is to see that there is no traffic approaching from his right,
and then to look for traffic approaching from his left.’ (1931
TPD 516 at 519)”

[6]
The driver on a main road is entitled to assume that a driver on a
minor crossroad will not enter the intersection unless it is safe for
him or her to do so. However, this assumption does not confer upon
such driver to drive at such speed that, despite warning, he or she
is unable to avoid colliding with a vehicle entering the intersection
from a minor crossroad. Doubtless, coupled with the duty to travel at
a reasonable speed, is the duty to keep a proper lookout. Once a
driver on main road becomes aware of a vehicle approaching an
intersection along a minor crossroad it is his duty to keep such
vehicle under observation, and failure to do so may be negligence. Of
course, the duty to keep a vehicle ‘under observation’
does not mean that the driver must keep his eyes upon the approaching
vehicle continuously, and ignore other traffic or other parts of the
road than the minor crossroad in which the approaching vehicle is
travelling.’

[6]
I accept Victor’s evidence that when he realized that Shiimi’s
vehicle was entering his lane, denying him his right of way, he
swerved his vehicle to his right into the oncoming lane in which
Shiimi’s vehicle was attempting to enter; whereupon the
collision occurred. From the totality of the evidence I find that
when the collision occurred Shiimi’s vehicle had not completed
the manoeuvre that would have placed his vehicle completely in the
left lane on Florence Nightingale, with the vehicle clearly facing
the easterly direction. It is the left front part of Victor’s
vehicle that was damaged because, according to Victor’s
evidence, which I have accepted previously, when he alighted from his
vehicle after the collision he saw that the right headlamp and
fog-light on his vehicle were working and they were on. Besides, the
locus of the collision was not completely in the left lane but
slightly on the dividing line. Accordingly, I reject Shiimi’s
evidence that the point of impact was directly on the front of his
vehicle and that of Victor’s vehicle and completely inside the
left lane.

[7] I have found
previously what Victor did to avoid the collision even though –
as I say – his vehicle had right of way on Florence Nightingale
Street. What steps did Shiimi take to avoid the collision, seeing
that his vehicle was entering a main, advantageous route? From his
own evidence, I find that he did nothing to avoid the collision. He
might have had the presence of mind to brake his vehicle; but he did
not. And on this point I accept submission by Ms Sikongo, counsel for
the defendant, that Shiimi did not brake his vehicle. Shiimi should
not have proceeded, without a proper lookout, into the main street
since he was not joining the main street in order to drive in the
same lane and in the same direction as Victor on Florence Nightingale
Street. He was, as I have found previously, cutting across Victor’s
lane of traffic on Florence Nightingale. And I have also rejected
Shiimi’s version that Victor’s vehicle was speeding and
its headlamps were not switched on. Shiimi had the duty to take due
care and be prepared to expect traffic on the Florence Nightingale
Street, being the main street and the advantageous route. All this
Shiimi did not do, resulting in the collision. In that regard, Shiimi
was negligent in his driving, and contributing to the collision.

[8] But that is not the
end of the matter. I have previously accepted Victor’s evidence
that he braked and swerved into the lane to his right, that is, the
left lane into which Shiimi was attempting to gain entry. If Victor
was not driving fast and had just passed over a speed-calming hump,
as I have found previously, there would have been no need for him to
apply the brakes of his vehicle and swerve the vehicle at the same
time. He could have braked the vehicle and pulled it unto the
shoulder of the lane he was driving in, without driving his vehicle
dangerously into the oncoming lane to his right, which was apparently
the same lane Shiimi was attempting to drive his vehicle into. Thus,
Victor should have kept a proper lookout and be prepared to expect
approaching traffic in that lane. For all the above about Victor’s
driving, I find that Victor was also negligent in his manoeuvres, and
his negligence, too, contributed to the collision of the two
vehicles.

[9] For the aforegoing
reasoning and conclusions, I conclude that in virtue of the factual
findings I have made and considering them against the backdrop of the
principles enunciated in the authorities, it is fair and just to
grant judgment for the plaintiff. However, because of Shiimi’s
own contributory negligence, the plaintiff succeeds in his claim to
the extent of 51% of his claim. As respects costs, since the
plaintiff has not been successful substantially, it is reasonable
that the plaintiff is not awarded costs. (See Hydraulic Brakes
Trucks & Trailer CC v Mutual & Federal Insurance Co. of
Namibia Ltd Case No. I 1923/2006 (Judgment delivered on 26 March
2007) (Unreported).) The result is that, in my opinion, each party
should pay his own costs.

[10] In the result, I
make the following orders:

1. Judgment for the
plaintiff in an amount equal to 51% of N$43, 400-50, plus interest at
the rate of 20% per annum from date of this judgment to date of full
and final payment.

2. There is no order as
to costs.

_______________

PARKER J

COUNSEL ON BEHALF OF
THE PLAINTIFF: Ms A Botes

Instructed by: Francois
Erasmus & Partners

COUNSEL ON BEHALF OF
THE DEFENDANT: Ms N E M Sikongo

Instructed by: Nambahu &
Uanivi Attorneys