[Not
reportable]

REPUBLIC OF
NAMIBIA

CASE NO. I
4549/2009

IN THE HIGH
COURT OF NAMIBIA

In the matter
between:

PETRUS VILJOEN
........................................................................Plaintiff

and

GOVERNMENT OF
THE REPUBLIC OF NAMIBIA ........................Defendant

CORAM:
VAN NIEKERK, J

Heard: 17, 18
November 2011

Delivered: 20
August 2012

___________________________________________________________________________

JUDGMENT

VAN NIEKERK,
J: [1] The plaintiff instituted action against the defendant
for damages arising from a motor vehicle accident which occurred on
23 April 2009 in Gevers Street, Windhoek.

[2] The defendant
denies that its employee was negligent. In the event that this Court
does find that he was negligent, it is denied that the defendant was
the cause of the collision and it is averred that it was in fact the
plaintiff who was the sole cause of the collision. In the further
alternative the defendant alleges that, should it be found that the
defendant’s employee was negligent and thereby contributed to
the collision, then the plaintiff’s negligence also contributed
to the collision and the defendant therefore prays that the damages
be apportioned in terms of the Apportionment of Damages Act, 1956
(Act 34 of 1956).

[3] The defendant
instituted a counterclaim for its damages. The plaintiff denies
liability on the same legal grounds as the defendant raises to the
claim in convention and similarly prays for dismissal of the claim in
reconvention, alternatively for an apportionment of damages.

[4] Based on the
pleadings, admissions made during the case management stage, the
evidence before the Court and observations and measurements recorded
after an inspection in loco, it is common cause that:

1. On the day of
the accident the plaintiff was the driver of a BMW sedan with
registration number N8777W.

2. The defendant’s
vehicle was a Ford Ikon sedan with registration number POL6429 driven
by Chief Inspector Joseph Swartz while acting in the course and scope
of his employment with the defendant.

3. The plaintiff’s
damages amount to N$99 994-43.

4. The defendant’s
damages amount to N$25 037-19.

5. The collision
occurred in front of the Chinese Embassy in Gevers Street. This
street runs in an east-west direction in front of the Embassy which
is on the southern side of the street.

6. At the scene
Gevers Street has two lanes, each 5 metres in width, divided by a
broken white line in the middle of the two lanes with pavements on
the outside edges of the lanes.

7. In the lane on
the side of the Chinese Embassy (hereinafter “the southern
lane”) the pavement makes way for a 2 metre wide parking area
for motor vehicles to park one behind the other and parallel to the
street. The point of impact was at a spot about in the middle of the
southern lane opposite the place where the pavement makes way for the
parking area.

8. In the opposite
lane (hereinafter “the northern lane”) slightly to the
east of the parking area Ilse Street enters Gevers Street on its
northern side.

9. Continuing
further east along Gevers Street there is a blind rise if one travels
from east to west. On the eastern side of the rise Gevers Street
makes an S-bend, followed by a sharp incline towards the crest of the
blind rise.

10. At the crest
of the blind rise on the southern side of the street there is a bush,
which serves as a convenient marker to indicate the point at which a
sedan vehicle approaching from east to west (in this case plaintiff’s
vehicle) is first visible to a driver sitting in a vehicle similar to
that of defendant at the point (hereinafter “the turning
point”) where Chief Inspector Swartz began to execute a U turn
from the northern lane to the southern lane. The parts of a vehicle
which is visible at this point are the roof and front windscreen and
the bonnet from the level of where the front indicator lights are
located.

11. The turning
point is in the same line of direction as the point of impact.

12. The distance
between the turning point and the point of impact, on the one hand,
and the bush, on the other hand, is 88 metres.

13. From the crest
of the blind rise the street declines slightly to the area of the
point of impact.

[5]
The plaintiff testified that on the particular day between 8h00 and
9h00 he drove from east to west in the southern lane over the blind
crest. He knows the route well as he usually drives along it every
day to work. As he came over the crest he observed the Ford Ikon
approaching from the opposite direction in the northern lane. The
vehicle indicated that it intended turning to its right. The
plaintiff did not brake, but lifted his foot from the accelerator to
slow down slightly as he was not sure whether the oncoming driver
intended waiting for him to pass or intended turning. The Ikon came
to a near standstill closer towards the pavement on the northern
side. From this the plaintiff deducted that the driver would wait for
him to pass. However, Chief Inspector Swartz did not wait, but about
6 metres away from the BMW he turned towards his right, across the
plaintiff’s line of travel. The plaintiff observed that when
Swartz commenced to execute the turn, he was talking to his female
passenger in front. The plaintiff braked and tried to avoid the
collision by swerving slightly to the right, but nevertheless hit the
rear left side of the Ikon behind its wheel. The plaintiff’s
BMW was damaged on its nose slightly more to the left. The plaintiff
came to a standstill at about the point of impact and then moved it
slightly forward and out of the way of the line of traffic. Chief
Inspector Swartz immediately asked the plaintiff why he was driving
so fast, but the latter denied that he was driving fast.

[6]
The plaintiff telephoned Mr Manfred Mansfeld, a loss adjustor, and
called him to the scene to take photographs and measurements. He
arrived shortly afterwards. He observed that the BMW’s brake
marks were 4,2 metres up to the point of impact, which he marked with
a brick. The Ikon came to a standstill with its nose facing in a
south-eastern direction into the parking bay. The front half of the
vehicle was in the parking bay and the back half was in the street.
The force of the impact had moved the rear end of the Ikon 2.5 metres
from the point of impact. The distance between the point of impact
and the place where he found the plaintiff’s BMW was 10 metres.

[7]
Chief Inspector Swartz told the Court that he had to visit the
Chinese Embassy that morning. He was accompanied by Sgt Amakali. He
drove in Gevers Street in the northern lane, slowed down and
signalled with the vehicle’s indicator that he intended turning
right to park in the parking bay on the southern side. He waited for
two vehicles to pass from the eastern direction. He was virtually at
a standstill and specifically looked for any other vehicles from the
front. The road was clear and he proceeded to turn to the right,
entering the southern lane. When the Ikon’s front wheels and
part of its front were over the middle line, he observed the
plaintiff’s vehicle approaching very fast from the east. The
BMW was about 65 metres away when he first saw it. Swartz stated that
he was driving slowly at about 10 – 20 kph because the space in
which to move the Ikon into the parking space was narrow. When the
Ikon was halfway into the parking space he heard the sound of brakes.
He looked, saw the BMW and the next moment it bumped into the Ikon.
He estimated that the BMW was about 6 - 7 metres away when he heard
the sound of braking. The BMW passed his car and came to a standstill
at the place where Mr Mansfeld later observed it. He denied that the
plaintiff came to a standstill at the point of impact and later moved
his vehicle out of the way.

[8]
It is essentially the plaintiff’s case that the defendant was
negligent because he did not keep a proper lookout and turned right
when it was unsafe and inopportune to do so. The defendant’s
case is that the plaintiff drove at an unreasonably high speed in the
circumstances by not adhering to the speed limit of 40 kph.

[9]
The duties of a driver executing a turn to the right and those of
following and oncoming drivers have been authoritatively stated in
Sierborger v South African Railways and Harbours 1961 (1) SA
498 (A) at 505A-D as follows:

“The
heavy flow of urban traffic would be seriously interfered with if, on
each occasion when a signal is exhibited by a motorist intending to
turn across the line of traffic, such traffic were required to come
to a stop or slow down. Such signal is of course a notification to
following and oncoming traffic that the driver intends to turn across
the line of traffic, but equally implicit in it is that he intends to
do so at an opportune moment and in a reasonable manner. It is also,
more particularly, a signal to following traffic that the driver in
question intends to move over towards the middle of the road
preparatory to choosing the opportune moment to cross over on to that
half of the road being used by traffic coming in the opposite
direction. A driver of a vehicle proceeding in this latter direction
does not, with reference to a vehicle whose driver has signalled an
intention to turn across his path and who is directing his vehicle
towards the middle of the road preparatory to doing so, incur an
obligation to stop or slow down. Certainly he must keep such vehicle
under observation and as soon as it is clear that, despite the
inopportuneness of the moment, it intends to cross in front of him,
he must take all reasonable steps that may be necessary to avoid
colliding with it.”

[10]
In Kühne v Simon and another 1995 NR 139 (HC) at 145C –
146B this Court stated:

“Mr
Heathcote
relied on S
v Olivier
1969 (4) SA 78 (N) at 83B-D where Miller J said inter
alia:

'. . . Nor do I
think it is practicable to require of a driver that, before executing
the turn, he must satisfy himself that his signal has been observed
by other drivers whose vehicles may be endangered thereby.'

I have no quarrel with this
part of the dictum of the learned judge provided it is understood
that the caution expressed is against accepting as a general rule
that the driver turning to his right must first satisfy himself that
his signal had been observed by other drivers whose vehicles might be
endangered.

It must be noted that the
learned judge also expressed himself against accepting as a general
rule that a driver who has properly and timeously signalled his
intention to turn to his right across a stream of traffic, may assume
that 'his signal has been observed and will be heeded'. I
agree with this statement. (See 83A of the judgment.)

I also agree with the learned
Judge where he said:

'A proper lookout
has ever been regarded as essential equipment for every driver on the
roads, it is not lightly to be discarded for or relegated to a
position subordinate to any system of signals, however helpful that
system might be.'

(My emphasis.)

The learned Judge continued to
quote with approval from Negligence on the Highways by
Mazengarb where the learned author said:

'There is also a
mistaken idea that after a driver had given a signal of intention to
turn across the route of traffic, the obligation to avoid other users
of the road ceases, and that the duty of avoidance is on the oncoming
traffic. This is not so. The driver who is changing direction and
turning across the usual route of traffic, must always wait for a
reasonable opportunity to cross safely.'

(My emphasis.)

The learned Judge then
continued:

'. . . The driver
intending to turn to the right, across a route which may be taken by
other traffic, must necessarily bear in mind that he will be
undertaking a potentially dangerous operation (See eg R
v Miller supra at p 50) and he must therefore
be careful to ''choose an opportune moment to cross . . . and do so
in a reasonable manner''. (Per Van Winsen AJA in Sierborger
v South African Railways and Harbours 1961
(1) SA 498 (A) at 504.)

This seems to me
to be the ultimate test to apply in deciding whether a right-hand
turn of the kind now under consideration was legitimately or culpably
undertaken; the enquiry is: was it opportune and safe to attempt the
turn at that particular moment and in those particular circumstances?
Whether it was opportune and safe, or not, will depend upon whether a
diligens paterfamilias in
the position of the driver at that time and in the circumstances then
prevailing would have regarded it as safe. (Cf Kruger
v Coetzee 1966 (2) SA 428 (A) at p 430).'

(See at 83G-84B of judgment.).”

See
also Kandenge v Ministry of Works, Transport and Communication
2002 NR (HC) at 325A-F).

[10]
Chief Inspector Swartz estimated that he drove about 2 – 2.5
metres from the time that he first observed the plaintiff’s
vehicle until the collision. He further estimated that he drove at
about 10 – 20 kph. As Mr Slabber for the plaintiff
demonstrated during cross-examination, Chief Inspector Swartz would
have covered 2.8 metres per second at 10 kph, which is a comfortable
walking speed. Bearing in mind that Chief Inspector Swartz said he
was carefully executing the U-turn because the space in which to do
it was narrow, a speed of about 10kph seems probable. If he saw the
BMW for the first time at about 65 metres as he testified, it
necessarily means that the plaintiff travelled 65 metres in the one
second it took for Chief Inspector Swartz to travel 2.8 metres. This
would mean that the plaintiff must have travelled at 216 kph. Clearly
this was impossible. As was established during the test runs made
during the inspection in loco, the maximum speed at which a
sedan comparable to the BMW could travel along the twists and turns
in Gevers Street, execute the S-bend and travel up the blind rise
without discomfort to the driver and passengers was about 60 kph.
Even so, one clearly sensed that a speed of 60kph was too fast in the
circumstances, given the fact that it is a street in a residential
area where there are several concealed exits and Ilse Street entering
Gevers Street after the blind rise.

[11]
The plaintiff estimated that he drove, at most, 60kph. He was frank
when he admitted that he was not sure whether the speed limit at the
time was 40kph or 60kph. His frankness made a good impression on me.
He made it clear, though, that it was not really possible to go fast
because of the physical features of the street. For purposes of the
case it was accepted on behalf of the plaintiff that at the time the
speed limit at the incline to the blind rise and further west along
Gevers Street was 40kph and that he transgressed by exceeding the
speed limit. Mr Mutorwa on behalf of the defendant submitted
during argument that the plaintiff could have driven at any speed up
to 80kph. While it is not impossible I agree with Mr Slabber
that it is improbable given the fact that this speed would have been
distinctly uncomfortable. Besides, the figure of 80kph was not based
on any evidence by either of the parties. The only thing Chief
Inspector Swartz said was that the plaintiff drove “very fast”.

[12]
In my view it is improbable that the plaintiff only came to a
standstill for the first time 10 metres away from the point of impact
as this would have meant that the BMW’s left side must have
come into contact with the Ikon’s bumper. However, it is common
cause that there was no damage on the BMW indicating that it’s
left side scraped past the Ikon’s bumper. The fact that the
plaintiff was able to stop his vehicle within a relatively short
distance at the point of impact and that fact that the damage was not
that severe are further indications that the plaintiff’s speed
was probably not high.

[13]
The preceding discussion in paragraphs [10] to [12] supra
indicates that the version by Chief Inspector Swartz is not reliable,
because he clearly exaggerated the speed at which the plaintiff
drove. He had the opportunity at the inspection in loco to
correct his estimations, but did not. It is common cause that at the
time of the trial he was still involved as an accused in a criminal
trial arising from this collision. He clearly had reason to colour
his evidence in a manner favouring his innocence. While I accept the
probability that he did look for oncoming traffic at some stage
before he started turning right, the fact that he only saw the BMW
for the first time at a distance of about 65 metres indicates that he
did not keep a proper lookout. The fact that the front wheels of the
Ikon were already over the middle line when he first noticed the
plaintiff is further evidence that he did not keep a proper lookout
before he started to execute the turn. The plaintiff’s evidence
that he was speaking to his passenger was never disputed in
cross-examination of the plaintiff, nor was it addressed in the
evidence-in-chief by Chief Inspector Swartz. It was only denied when
he was cross-examined by plaintiff’s counsel. In the
circumstances the denial does not carry much weight. The impression I
have is that his attention was not fully on the road as he was
chatting to his passenger. Clearly Chief Inspector Swartz did not
execute the turn at an opportune moment. In my view he was negligent
and contributed to the collision.

[14]
I now turn to a consideration of whether the plaintiff was negligent.
Mr Slabber submitted that the plaintiff kept a proper
look-out. As he came over the blind crest the plaintiff had a clear
view of the road ahead and immediately saw the defendant’s
vehicle approaching. He slowed down slightly keeping the Ikon under
observation and immediately applied the brakes when he realized that
that vehicle was turning right. He submitted that the plaintiff’s
actions were in keeping with the duty of a driver in his position as
set out in Sierborger’s case. Up to this point I agree
with the submissions made.

[15]
Counsel further submitted that, although the plaintiff exceeded the
speed limit, this did not contribute to the collision, as (if I
understood him correctly) the plaintiff would not have been able to
evade the collision even if he drove at 40kph.

[16]
Mr Mutorwa, on the other hand submitted that the plaintiff was
indeed negligent as he drove in an unreasonable manner when he
exceeded the speed limit. He relied on the following passage from
Kandenge’s case:

“Mr
Marcus
persuasively argues with reference to Sierborger
v South African Railways and Harbours
1961 (1) SA 498 (A) at 504G and Moore
v Minister of Posts and Telegraphs
1949 (1) SA 815 (A) at 826 that

'(g) Generally one
expects and is entitled to expect reasonableness rather than
unreasonableness, legality rather than illegality, from other users
of the highway.'

I agree with the statement as a
general proposition, without for any moment suggesting that such
expectation diminishes the duty of other road users to remain alert
and exercise the care expected from reasonable drivers in the same
circumstances.”

[16]
In my view Mr Mutorwa is correct in this sense that Chief
Inspector Swartz was entitled to assume that users of that part of
the road would be adhering to the speed limit. I think it is
reasonable to assume that at least part of the reason why the speed
limit is set at 40 kph is because there are concealed exits ahead
when one travels from east to west. The blind rise means that a
driver travelling in this direction would have a limited look out.
But that is not all. Such a driver would not be visible to other
drivers e.g. intending to enter Gevers Street from Ilse Street, or
intending to enter Gevers Street from their premises, or, as in this
case, turning right from north to south to park in front of the
Embassy. Part of the purpose of the low speed limit is surely to
allow such drivers some opportunity to execute their manoeuvres in
safety by not having a vehicle suddenly bearing down upon them. The
plaintiff, knowing the physical features of the street very well,
should have been particularly aware of the danger posed by speeding
there and adjusted his speed at least to the legal limit. If the
plaintiff had not exceeded the speed limit, he would have been
visible for a longer period of time to Chief Inspector Swartz who may
very well have noticed him earlier or who may very well have been
able to take evasive action, e.g. by braking instead of continuing to
travel forward. The plaintiff would also probably have been able to
swerve more to the right or do so earlier than he was able to do in
this case, thereby avoiding the collision. The conclusion is that the
plaintiff was also negligent and indeed contributed to the collision.

[17]
In my view the plaintiff’s degree of fault should be placed at
20% and the defendant’s at 80%. Based on this assessment their
respective claims should be reduced accordingly. I also intend
adjusting the costs payable according to this assessment.

[18] In the result
the following order is made:

Ad the
claim in convention:

1. The
   plaintiff is awarded damages in the sum of N$79 995.51 with interest
   on this amount, subject to the automatic set-off which will operate
   as a result of paragraph 3 of this order, at the rate of 20% per
   annum calculated from date of judgment.

   
   

2. The
   defendant shall pay 80% of the costs of the claim in convention.

   
   

Ad the
claim in reconvention:

3. The
   defendant is awarded damages in the sum of N$5 007.44. Since an
   automatic set-off will operate there is no order for payment of
   interest.

   
   

4. The
   plaintiff shall pay 20% of the costs of the claim in reconvention.

   
   

[signed]

_____________________

VAN NIEKERK, J

Appearance for
the parties

For the plaintiff:
Mr A Slabber

Dr Weder, Kauta
and Hoveka Inc

For the defendant:
Mr N Mutorwa

Office of the
Government-Attorney