CASE NO. I 4262/2010

REPUBLIC OF NAMIBIA

IN THE HIGH COURT OF
NAMIBIA, MAIN DIVISION

In
the matter between:

POPFACE
PROPERTIES CC
........................................................................Plaintiff

and

J
K E BEILER First Defendant S W SCHNEBEL ......................Second
Defendant

CORAM:
VAN NIEKERK, J

Heard: 21, 22 November
2011

Delivered: 5 September
2012

________________________________________________________________

JUDGMENT

VAN
NIEKERK, J: [1] The plaintiff instituted action against the
two defendants jointly and severally for damages arising from a motor
vehicle collision which allegedly occurred on 26 May 2010 on the
tarred service road leading past the Brakwater Shopping Centre north
of Windhoek. In its particulars of claim read with the further
particulars the plaintiff alleges that the collision occurred between
its motor vehicle, a Toyota Hilux bakkie with registration number
N8382W driven by Mr J M P Haufiku and “a Suzuki Samurai motor
vehicle with registration number N85779W, then and there being driven
by the Second Defendant with the necessary permission from the First
Defendant.”

[2]
In paragraph 6 of the particulars of claim the plaintiff avers as
follows:

“6. The sole
cause of the collision was the negligent driving of the Second
Defendant in that he, inter
alia:

1. 
   failed to take cognisance of
   plaintiff’s oncoming vehicle;

   
   

2. 
   entered Plaintiff’s lane at a
   time when it was dangerous and inopportune to do so;

   
   

3. 
   failed to apply his brakes timeously
   or at all;

   
   

4. 
   drove at an excessive speed in the
   circumstances;

   
   

5. 
   failed to avoid a collision when he
   could have and should have done so.

   
   

[3]
In paragraph 7 of the particulars of claim there is an averment that
the plaintiff’s vehicle was damaged beyond economical repair as
a result of the second defendant’s negligence and details are
given of how the damages are made up. Apart from alleging in
paragraph 8 that the defendants, despite proper demand, refuse and/or
neglect to pay the damages, no further averments are made against the
first defendant.

[4]
The defendants entered appearance to defend. In their amended plea
they inter alia state in paragraph 3 that a collision occurred
on the said date between plaintiff’s vehicle and a truck with
registration number N65751W which was stationary next to the
intersection. They deny that any collision whatsoever occurred
between the plaintiff’s vehicle and the first defendant’s
vehicle at the time driven by the second defendant.

[5]
The defendants further deny the allegations contained in paragraph 6
of the particulars of claim and in particular that the second
defendant was negligent in any way or that he caused the collision,
even if he be found to be negligent. They plead that the collision
was caused by the driver of plaintiff’s vehicle, who was
allegedly negligent in one or more of the following respects, namely
(i) he failed to keep a proper lookout; (ii) he failed to apply his
brakes timeously or at all; (iii) he failed to exercise proper or
adequate control over his vehicle; (iv) he drove at an excessive
speed under the prevailing circumstances. They further plead that if
the Court finds that the second defendant was negligent and that his
negligence caused the collision, then and in that event the
defendants aver that the driver of the plaintiff’ vehicle was
also negligent and that his negligence contributed to the collision.

[6]
The parties agreed before the trial that the citation of the parties,
the plaintiff’s locus standi and the quantum of the
plaintiff’s damages are not in dispute.

[7]
In the pre-trial order it was determined that the following issues of
fact are to be resolved during the trial: (i) whether the plaintiff’s
vehicle was involved in a collision with the first defendant’s
vehicle driven by the second defendant (ii) whether the second
defendant’s negligence caused the collision and/or damage to
the plaintiff’ vehicle; and (iii) whether the negligence of the
driver of the plaintiff’s vehicle caused or contributed to the
collision.

[8]
The pre-trial order determined the issues of law to be resolved
during the trial to be (i) whether negligence, if any, on the part of
plaintiff’s driver entitles the defendants to indemnification
without joinder of the plaintiff’s driver; and (ii) whether the
plaintiff sets out sufficient averments in its particulars of claim
to sustain a cause of action against the first defendant. (The second
issue was added by the Court.)

[9]
Before I turn to the evidence it is convenient to deal with the
second issue of law at this stage. The vicarious liability of a
vehicle owner who is not the driver is conveniently summarized by
Neethling, Potgieter, Visser, Law of Delict, (5^th
ed) at p344 as follows:

“Where a
motor car owner allows someone else (who is not his employee) to
drive his car and the driver negligently causes an accident, the
owner is fully liable for the loss provided that the following three
requirements are met: (a) the owner must request
the driver to drive the vehicle or supervise
his driving; (b) the vehicle must be driven in the interest
of the owner;
and (c) the owner must retain a right
(power) of control over
the manner in which the vehicle is driven.”

[10]
As I understand it, Mr Erasmus
for the plaintiff conceded after presenting argument on
the issue that, apart from the allegation that the second defendant
drove the vehicle with the permission of the first defendant, no
other allegations regarding vicarious liability of the first
defendant are made. As such the particulars of claim do not sustain
any cause of action against the first defendant. I agree with Mr
Vaatz for the
defendants that the claim against the first defendant should be
dismissed, but in my view an exception should have been raised
timeously. The matter was also already raised at early stage by the
Court during case management. The first defendant’s costs will
therefore be limited.

[11]
Before evidence was led an inspection in loco
was held at the scene. It is common cause that the scene
of the alleged collision is located at a place called Brakwater
Shopping Centre where a side entrance from the shopping centre
running from east to west enters the tarred main service road between
Windhoek and Brakwater, running along the north/south axis.
The intersection is in the shape of a T with the long
leg of the T running roughly from east-north-east to west-south-west.
There is a stop sign on the left side and a stop line
painted on the road surface, indicating to a driver driving from east
to west and entering the service road that he or she should stop at
the intersection. To the north of the intersection the service road
goes straight for a short distance and gently uphill for about 250
paces, where after it makes a curve towards the northeast while
continuing to climb. North of the intersection along the side of the
southbound lane of the service road there are two prosopis
trees a short distance apart. During the inspection in
loco they had been cut back, but the second
defendant testified that on the day of the alleged collision, these
trees were much higher and also wider in their circumference, which
led thereto that his view of the curving road to the north was
obscured. The speed limit along the service road was 90kph.

[12]
The plaintiff called the driver of its vehicle, Mr Haufiku, to
testify. His testimony, in summary, is this: On the date in question
he drove the plaintiff’s vehicle on the service road from north
to south in the direction of Windhoek. His brother and sister were
passengers in the vehicle. The Toyota bakkie, a single cab, had a
canopy on the back, on which was loaded a large roll of cable. He
drove at a speed of about 60kph, but slowed down to 50 - 40kph just
before the collision. He observed the first defendant’s Suzuki
stationary at the stop street at the intersection. The driver of the
Suzuki then moved forward slowly into the southbound lane, i.e. the
lane in which Mr Haufiku was travelling. Mr Haufiku hooted and moved
to his right with part of the Toyota in the opposite lane, but the
Suzuki continued forward and collided with its front bumper against
the plaintiff’s bakkie between the left rear wheel fender and
the left door. Mr Haufiku lost control and the Toyota overturned on
its right side. It slid across the road and hit a truck that was
stationary just to the south of the intersection on the left side of
the lane in which the Toyota was travelling. The truck was halfway on
the gravel shoulder of the service road and halfway on the tarred
surface of the surface road, facing in a southern direction. The
distance between the point of impact with the Suzuki to where the
truck was standing was about 20 metres.

[13]
Mr Haufiku was injured but managed to get out of the bakkie. He then
noticed that the Suzuki was no longer at the scene. It is common
cause that the second defendant drove away from the scene in a
northern direction along the service road. According to Mr Haufiku
police officers who happened to be close by in a police vehicle
travelled in the direction that that the second defendant drove and
later brought him back to the scene. Later Sergeant Hangula of the
Namibian Police arrived and took down statements from the three
drivers.

[14]
A rough sketch plan (Exhibit “A”) was handed in on which
point X indicates the point of impact between the Toyota bakkie and
the Suzuki. This point is at the intersection about in the middle of
the southbound lane, i.e. the lane in which Mr Haufiku was
travelling.

[15]
Sergeant R S Hangula of the Namibian Police testified that he was
called to the scene on 26 May 2010. He observed that the bakkie had
collided with the truck. The vehicles had not been moved by the time
he arrived. The second defendant was also at the scene. Sergeant
Hangula interviewed the three drivers and wrote down their
explanations on a pro forma form. Later at the police station he
copied the explanations and other information recorded at the scene
on an official Namibia Road Accident Form which was handed in as
Exhibit “C”. The explanation he recorded from the second
defendant reads as follows:

“According to
Mr S W Schnebel he was driving a Suzuki reg N 85779 W entering
service road from the Brakwater Bullewater turning right facing
northern direction. He collided with the vehicle that was coming from
the north reg N 8382 W and my vehicle got damaged in front.”

[16]
On 4 June 2012 Sergeant Hangula obtained the second defendant’s
warning statement (Exhibit “D”) in which the latter
stated the following:

”On
26.05.2010 at about 13h00 I was driving out of the super market with
my vehicle registration N 85779W Suzuki at the intersection with
services road, before I entered the main road I checked both side
(sic)and it was clear. I checked again and show (sic)
big rolly (sic)
(truck) approaching from the northern direction. At the same time I
was entering the road turning right the the (sic)
truck collided slightly with my vehicle. The Toyota VXTI N8382W that
was also coming from the northern direction swerved and lost control
and collided into the truck. The one driver came out and asked me if
I was alright.”

[17]
When it was suggested to Sergeant Hangula during cross-examination
that he might have made a mistake when he was recording the second
defendant’s explanation in the pro forma form, he most
firmly answered in the negative. He confirmed Mr Haufiku’s
evidence that the bakkie had overturned on its right side and then
slid on its side to collide with the truck.

[18] This concluded the
plaintiff’s case.

[19]
The second defendant was the only witness for the defendants. His
evidence in chief and under cross-examination is summarized as
follows. He testified that he stopped at the stop sign, intending to
turn right into the service road. He looked north. His view was
obstructed by the two trees, the closest of which was about 50 metres
away. He entered the service road and when he was about 1 metre over
the stop line, a truck appeared from the north from behind the trees.
The second defendant stopped immediately about halfway into the
southbound lane of the service road. The truck swerved, but a slight
collision occurred between the front of the Suzuki and the rear left
tyre of the truck. The truck came to a standstill at point C about 20
metres away on the left of the intersection. The second defendant
left the Suzuki at the point (XX on Exhibit “F”) where it
collided with the truck. He explained that he did not think about
moving it out of the way at the time. The second defendant got out of
the Suzuki. A person who he thinks was the driver of the truck asked
him if he was alright. The second respondent replied in the
affirmative. The damage to the Suzuki was slight. At that stage the
second defendant did not notice that the number plate had been ripped
off.

[20]
He got back into the Suzuki. He then looked north and then south, but
observed no oncoming traffic. He then pulled away without looking
north again and entered the lane running from south to north. He was
already completely in that lane (at point XXX on Exhibit “F”)
but with his vehicle facing about north-north-west when he observed a
white vehicle for the first time about 20 metres away (at point Y on
Exhibit “F”) travelling in the same lane from north to
south. As I understand his evidence he did not realize at the time
that it was the Toyota bakkie. However, in the witness box he
accepted that it was indeed the Toyota. It swerved left and passed
the Suzuki on its left side. The Toyota travelled at a very high
speed which he estimated to be at least 90kph. The second defendant
continued to explain in greater detail that the Toyota moved more to
the west, while he moved more to the east. In fact, he was under the
impression that the Toyota actually went onto the gravel shoulder on
the western side, but that it could not go further west because there
was a metal railing. Curiously, he stated that the Toyota passed his
vehicle on the left side at point Z. This point is further north away
from point Y where the Toyota was when he first saw it at point Y.
This does not make any sense although the second defendant was given
an opportunity to mark the point on Exhibit “F”. It was
not clarified in re-examination and during oral argument at the end
of the case Mr Vaatz was unable to explain his client’s
evidence on this aspect. It would have made sense if the second
defendant first saw the Toyota when it was at Z, and that it passed
him at point Y, but this is not the second defendant’s
evidence.

[21]
According to the second defendant, no collision occurred between his
vehicle and the Toyota. The second defendant continued driving to the
plot where he resides about 3 km away. He then noticed that the
vehicle’s number plate was missing and decided to return to the
intersection to look for it. At the scene he observed many police
officers. The truck was still at the place where he had left it. He
denied that the Toyota was at the scene.

[22]
He explained that the reason that his first explanation to Sergeant
Hangula is different to the later explanation and to his testimony is
because Sergeant Hangula asked him if there had been a collision
between his vehicle and “the Toyota”. The second
defendant thought that “the Toyota” was the truck. He
thereupon gave an explanation of what had occurred between him and
the truck, while Sergeant Hangula thought that he was talking about
the bakkie.

[23]
During cross-examination he further explained that the reason why
paragraph 3.1 of the initial plea by the defendants had admitted the
allegations in paragraph 5 of the particulars of claim was also
because he thought all along that the reference to a Toyota motor
vehicle was a reference to the truck. He also testified that he had
not consulted with the erstwhile legal practitioners for the
defendants who drafted the initial plea. When it was pointed out to
him by counsel for the plaintiff that the summons refers to a Toyota
Hilux and not to a truck or lorry, he readily acknowledged that he
should have read the summons more carefully.

[24]
He was also confronted with the contradiction in Exhibit “D”
and his testimony concerning the driver who asked him if he was
alright. According to Exhibit “D” this occurred after the
incident with the bakkie, but according to his testimony, this
occurred before the incident with the bakkie. He explained that the
sequence as stated in his testimony is the correct sequence, but
could not adequately explain why the wrong sequence was given in
Exhibit “D”, except that he did not think this detail to
be important. Although the second defendant may have been confused at
the scene, he certainly had no reason to be confused when the warning
statement was taken down.

[25]
He further explained that the sentence in Exhibit “D”
which reads, “The Toyota VXTI N8382W that was also coming from
the northern direction swerved and lost control and collided into the
truck” was based on what he had learnt later and on assumption.
He did not state when had learnt this, but I understood that he
allegedly did not know this yet at the time that he gave his first
explanation to Sergeant Angula at the scene.

[26]
While I accept that the second defendant may not have known that the
reference to “the Toyota” was a reference to the bakkie
and not to the truck, I must mention, as was emphasized by Mr Erasmus
during submissions, that it was never disputed by defendant’s
counsel during cross-examination of the plaintiff’s witnesses
that the Toyota was still exactly in the same position where it had
collided with the truck while Sergeant Hangula and the second
defendant were at the scene. Not only is it highly probable that this
was indeed the case, I find that there is no reason to doubt
Sergeant’s Hangula’s testimony on this point.

[27]
An aspect of the second defendant’s evidence which I find
improbable is his evidence that he was not aware of any collision
apart from the one between him and the truck. His explanation of what
had occurred after he collided with the truck is relevant here. On
this explanation he had an incredibly close shave with the Toyota in
what could only be described as a hair-raising experience.
Nevertheless, on the second defendant’s version he then
continued driving towards his plot, blissfully unaware of what was
happening behind him. Even if I take into consideration the second
defendant’s advanced age and that he was hard of hearing and
that he might not have heard any collision, I find it improbable that
he did not even look behind him to see what was happening after the
Toyota had passed him. Indeed, the second defendant himself testified
that he time and again asked Sergeant Hangula why there were so many
police officers at the scene and that he stated to Hangula that there
must have been two collisions, but that the latter never answered
him. Apart from the fact that this version was also not put to
Sergeant Hangula during cross-examination, this evidence does
indicate a greater extent of knowledge about what had occurred than
the second defendant was willing to admit. Furthermore, in the light
of my finding that the Toyota was still at the scene when the second
defendant returned, I find it improbable that the second defendant
did not put two and two together.

[28]
The second defendant’s explanation for why the Toyota
overturned is the following: He assumed that the Toyota saw two
vehicles, i.e. the truck and the Suzuki, blocking his way when he
came around the curve and down the hill. He went into the opposite
lane to avoid them, but then the second defendant moved into that
lane. The driver of the Toyota was driving at a very high speed and
over-reacted to the situation and therefore overturned the vehicle.
When it was put to him that it was the fact that the Suzuki collided
with the Toyota that caused it to overturn, he stated that it was
impossible, as such a collision would have moved the Toyota more west
and not east towards the truck.

[29]
In my view it is not necessary to determine whether it was the
collision only which caused the plaintiff’s vehicle to
overturn. On the second defendant’s evidence he was stationary
in the Toyota’s lane and moved forward further into that lane
while his view to the right was obscured by the trees. In spite of
the fact that he just before had a slight collision with the truck
which should have made it very clear how dangerous the intersection
is, he pulled away from his position after looking only right and
then left. In the circumstances he should have looked to the right
again before pulling away. This fact and the fact that he only saw
the Toyota for the first time when it was 20 metres away clearly
indicate that he did not keep a proper lookout and entered the
service road without making sure that it was safe to do so, as was
his duty to do. Mr Vaatz, correctly in my view, conceded that
the second defendant was negligent in this respect and created a
dangerous situation for Mr Haufiku.

[30]
However, he submitted that it is unlikely that a collision between
the Toyota and the Suzuki had occurred as the Suzuki was only
slightly damaged and as a collision would have pushed the stationary
Suzuki to the left, of which there is no evidence. However, I do not
agree. The fact that the Suzuki had slight damage does not mean that
there was no collision. The issue of the Suzuki being pushed to any
side is in my view mere speculation. In contrast to the second
defendant Mr Haufiku gave his evidence in a clear and straightforward
manner. The photographs he produced in evidence show clear damage on
the Toyota which fits in with the description he gave of where the
Suzuki hit the bakkie. In the circumstances I am of the view that the
plaintiff has proved on a balance of probabilities that a collision
did occur between the Suzuki and the Toyota.

[31]
Mr Vaatz submitted that Mr Haufiku was also negligent to a
major degree and contributed by far the greatest degree to the
plaintiff’s damage. He submitted that Mr Haufiku must have had
a clear view of the road ahead and drove too fast in the
circumstances, bearing in mind the heavy load he had on the bakkie.
He submitted that Mr Haufiku’s evidence that he drove 60 kph is
improbable as the speed limit is 90kph and there was no reason for
him to drive so slowly on that stretch of road. When Mr Haufiku saw
that there was an obstruction in the road, he should have slowed down
substantially, which he failed to do. It was his speed combined with
the heavy load which caused the Toyota to overturn and collide with
the truck. As such, counsel submitted, there should be an
apportionment of damage with the minor part attributed to the
negligence of the second defendant.

[32]
Mr Erasmus on the other hand submitted that even if Mr Haufiku
drove at the speed of 90kph as estimated by the second defendant, he
still drove within the speed limit. Moreover, there was no duty on Mr
Haufiku to adjust his speed as he was entitled to assume that the
second defendant would not enter the service road when it was not
safe to do so. I agree with this submission and conclude that there
was no negligence on the part of Mr Haufiku.

[33]
As a result of my finding it is not necessary to deal with the first
issue of law set out in the pre-trial order.

[34]
The result in this matter is, then, that the plaintiff’s claim
against the first defendant is dismissed with costs, which costs
shall be limited as if the first defendant excepted to the
plaintiff’s claim. In respect of the second defendant judgment
is given for the plaintiff in terms of prayers 1, 2, and 3 of the
particulars of claim.

___________________

VAN NIEKERK, J

Appearance for the
parties

For the plaintiff: Mr F G
Erasmus

(Francois Erasmus and
Partners)

For the defendants: Mr A
Vaatz

(Andreas Vaatz &
Partners)