Ipumbu v Kandolo ((P) I 1633/2007) ((P) I 1633/2007) [2009] NAHC 85 (03 April 2009);

CASE NO.: (P) I 1633/2007

IN THE HIGH COURT OF NAMIBIA

In the matter between:

PAULUS IPINGE IPUMBU PLAINTIFF

and

AMON KANDOLO DEFENDANT

Coram: MARCUS, A.J.

Heard on: 2009.02.24 – 27

Delivered on: 2009.04.03

JUDGMENT:

MARCUS, A.J.: [1] Defendant was negligent and his negligence was the cause of the accident that occurred on 9 June 2006, on the Outapi-Omafo gravel road, approximately 600m to 1km from the T-junction with the Oshikuku road. It might appear that I killed the suspense of a story that is yet to be told, but to my defence I say, the script never really bore any of it. The outcome, once the facts were told, was all too clear. One wonders why, defendant then chose to fight the suit when it would have been wiser to concede and honour the promise, made on the day he caused the damage to plaintiff’s vehicle, to make good the loss. What remains is to give my reasons for the conclusion so boldly stated.

[2] Defendant is employed as a secretary at a primary school at Okalongo. He was driving in a westerly direction on his way to work at about 7h40 in the morning. It was a clear morning and visibility was good. The road was fairly straight, dry and creating dust as one drove along it. On both sides of the road there were homestead fences adjoining the road. Importantly, there were no side roads or turns offs linking up with the gravel road.

[3] While driving, defendant saw an Isuzu bakkie standing on the left side of the road with its back wheel off the body of the vehicle. Defendant recognised the vehicle as belonging to a certain Ms Loide, who was a teacher working at the same primary school as defendant. His immediate intention was to turn around and drive back to where Ms Loide’s Isuzu bakkie was standing in order to help. He proceeded for a further 100m, gradually slowing down without stopping his vehicle while moving it towards the edge of the road. He then moved his front left and back tyres off the road, to enable him to execute the right hand U-turn in one movement. Defendant stated that he indicated his intention to turn, from the moment he started slowing down, for a distance of about 8 to metres.

[4] Before turning, defendant looked back through the car window. He did not look through his vehicle’s rear view mirrors, to see if there was a car behind him. Defendant under cross-examination stated that through the dust he could see Ms Loide’s car and school kids who were making their way to school. As he was turning, he kept looking right, which was the direction he was turning to. While in the middle of the road, with his car standing diagonally in the road and before completing the right hand turn, he heard a loud noise and saw plaintiff’s car proceeding in a westerly direction (his initial travelling direction). He then realised that plaintiff’s car had hit his vehicle on its front right side. The collision occurred more or less in the middle of the road.

[5] In light of the aforestated facts, what was the standard of care required of defendant, towards his fellow road users and more particularly to ones following his vehicle? When answering this question it is important to bear in mind that a U-turn is ‘inherently dangerous in its nature unless executed with scrupulous care’. (See: R v Miller 1957 (3) SA 44 (T) at p 50; See also: Kühne v Simon and Another 1995 NR 139 (HC) at 145 I-J.)

[6] The manoeuvre is dangerous because the driver of the vehicle following him would not expect a sudden turn in the street and especially not in a street with no turn offs. Defendant was thus obliged to display great care when making such a turn and not attempt it, unless he was certain that no other vehicles was following him, or it was safe to do so (See: Bell v Minister of Economic Affairs 1966 (1) SA 251 (N) ).

[7] In R v Miller supra the court said the following:

" it seems to me that the weight of authority in the Transvaal is to this effect that, generally speaking, the motorist may not assume that his signal for a right-hand turn has been observed simply because he has given an adequate signal. In my opinion that is correct in principle. The motorist must make sure that he can execute a right-hand turn without endangering either oncoming or following traffic. Generally speaking he can only do this by properly satisfying himself that such traffic has observed and is responding to his signal, or that it is sufficiently far away or slow-moving not to be so endangered, or unless some special circumstance or circumstances exist..."

[8] Defendant was negligent in many respects. He failed to use his rear view mirror to see if there was any vehicle following him. Had he done so he might have seen plaintiff who, on seeing defendant’s vehicle move towards the left of the road, had moved his vehicle to the centre of the road in order to overtake him. Defendant generally failed to keep a proper look out. He never saw plaintiff’s vehicle while driving on the road until the very moment it collided with his vehicle. Having failed to keep a proper look out, he was not in a position to determine whether, plaintiff’s vehicle had observed and in fact responded to his signal to turn right, how far plaintiff’s vehicle was and the speed at which such vehicle was moving. Defendant never brought his vehicle to a standstill before executing the right hand turn. Given the inherent dangerous nature of this manoeuvre, it was incumbent on him to bring his vehicle to a complete standstill, satisfy himself that it was safe and only thereafter to make the right hand U-turn.

[9] An important feature of the finding of negligence on the part of defendant and plaintiff’s lack thereof is the fact that, the turn was performed at a place where there was no side road leading off the road. Traffic following defendant could in my opinion not reasonably b expected to be alert to a possible right-turn by defendant (See: R v Miller supra at p 50).

[10] A worrying feature of this case is the complete lack of appreciation by defendant of his duty towards following vehicle. In evidence, defendant stated that because he was indicating his intention to turn, plaintiff should have waited until he had executed his turn and only proceeded thereafter. This is wrong, as the duty was primarily on him to ensure that he could execute a right hand turn without endangering following traffic. This in my view implied, waiting till plaintiff’s vehicle had passed him and only thereafter to execute his U-turn.

[11] The misapprehension of his duty towards vehicles following him contributed greatly, in my view, to the accident. Defendant was fuelled by the desire to render assistance to Mr Loide, a fellow colleague at the school. The desire to render assistance, commendable as it is, made him completely oblivious to any other vehicle resulting, as it did, in the accident.

[12] What remains is to consider whether plaintiff by his conduct also contributed to the accident, as claimed by defendant. At the trial defendant’s allegations of negligence on the part of plaintiff, were essentially reduced to the allegation of excessive speed. Defendant testified that, in his opinion, the accident could have been avoided if plaintiff had not driven at an excessive speed of 120km per hour, and had applied his brakes. Defendant testified that he asked plaintiff why he had not applied the brakes, to stop his vehicle and allow him to complete his turn. According to defendant plaintiff responded by saying that he could not break, because he was driving at a high speed of 120km per hour.

[13] Plaintiff denied that he was driving at 120km per hour and stated that he was driving at 70km per hour. He said he could not drive fast on the gravel road which was poorly maintained and above all he was transporting a heavily pregnant woman in his car. To a question under cross-examination why he only stopped his vehicle 50m to 80m from the point of impact and whether this was not due to the fact that he was driving too fast, plaintiff stated that he was under shock and he only stopped his vehicle once he felt that it was safe to do so. He also denied that he had told defendant that he was driving at 120km per hour.

[14] It is common cause that defendant made a statement immediately after the accident occurred, in which he accepted responsibility to repair the damage caused to plaintiff’s vehicle. What is not common cause though is whether the second part of the statement which contains the acceptance of responsibility was voluntarily made. Defendant stated that he was coerced by plaintiff to accept responsibility under threat of violence. Plaintiff disputes this and stated that the statement was voluntarily made.

[15] Defendant stated that he voluntarily made the statement up to the sentence stating: "As I was turning right I did not see a Mercedes Benz with the registration number N 24 SH that was coming from rear and it was driven at the speed of 120km per hour". He stated in evidence that plaintiff told him that he had been driving at a high speed of 120km per hour, while the written statement does not include that description. The difference between the two statements was never examined under cross-examination. Plaintiff, who relied on the entire statement by defendant to show that defendant had accepted responsibility, was never pressed on how defendant was able to say that plaintiff was driving at 120km per hour and where defendant got the information.

[16] I have referred to the statement by defendant, because his explanation how he came to make it reflects greatly on defendant’s reliability as a witness. Defendant testified that he was threatened by plaintiff to obey his rules and admit responsibility. He state that he complied as he thought that plaintiff, who was shouting at him and touching his right hip, as if to remove a gun was a soldier.

[17] Defendant’s explanation in this regard is so ‘manifestly absurd’, fantastic and so romancing a character’ that it simply cannot be believed. (See: Small v Smith 1954 (3) SA 434 SWA at 438E-H). Plaintiff was driving a civilian car and not wearing any military attire. He never produced any gun nor did defendant ever see a gun. The fact that plaintiff was according to defendant shouting at him (something that according to defendant soldiers do), a fact in any event not confirmed by the independent witness, Ms Vilho, could not reasonably have given rise to the belief that plaintiff was a soldier.

[18] Defendant when testifying never mentioned that he informed the police that plaintiff had coerced him to take a statement, nor did he ever lay a charge against plaintiff. It was only under cross-examination that he suddenly ‘remembered’ this fact. This was in my opinion a complete afterthought. I find that the allegation that he was forced into making a statement, accepting responsibility to be a figment of his imagination, in order to extricate himself from the possible consequences of his statement.

[19] Defendant did not generally impress me as a truthful witness. He at times gave long winding explanations under cross-examination, or pretended not to have understood questions when he realised that answers he gave might harm his case. I specifically made a note during cross-examination that defendant was changing his story as he went along, embellishing it at every opportunity and filling out earlier omissions.

[20] Plaintiff on the other hand struck me as a much more truthful witness. He testified confidently and was willing to concede certain questions when he could not dispute them. He was also corroborated by the independent witness in two respects, one that he in fact wanted to call the police and that it was defendant who was reluctant to do so, and two that he did not shout at defendant or appear threatening.

[21] Taking all this into account I am inclined to believe plaintiff that, he was driving at 70km per hour and not 120km per hour. In any event even if plaintiff was driving at 120km per hour, defendant did not prove that plaintiff was negligent in driving at that the speed or that the accident could have been avoided had plaintiff driven at a lower speed (i.e. that it was the cause of the accident).

[22] Plaintiff testified that, although he did not keep a constant watch at defendant’s vehicle he was at all times aware that defendant’s vehicle was driving in front of him. His failure to keep a constant watch was induced by defendant moving his vehicle (tyres) off the road. This led plaintiff to believe that defendant was going to park his vehicle on the side of the road.

(23) When plaintiff saw defendant move his vehicle partly off the road, he moved his vehicle towards the centre of the road in order to pass defendant’s vehicle. This I find completely reasonable. His assumption that defendant would park was not an unreasonable one, bearing in mind that he did not see defendant indicate to turn right. The fact that plaintiff did not see defendant indicate, is in this case not of any moment, as it has not been proved to be a contributing cause to the collision. To proceed on seeing plaintiff indicate would in the circumstance not be negligent, as plaintiff would be entitled to assume that defendant would wait for him to pass before executing his turn. It has been said that ‘generally one expects and is entitled to expect reasonableness rather than unreasonableness, legality rather than illegality, from other users of the highway’. (See: Sieborger v South African Railways and Harbours 1961 (1) SA 498 (A) at 504 G)

[24] Plaintiff testifies that he only saw defendant’s vehicle sharply moving towards him, when it was about 1 to 2 metres apart and he was thus unable to avoid the accident. He testified that breaking in those circumstances would have been the wrong option, as he had to move his vehicle away from the danger that the defendant’s vehicle presented. I do not think that plaintiff’s conduct fell short of the standard of the reasonable person and find that he was thus not negligent.

[25] Counsel on behalf of defendant submitted, in argument, that plaintiff should be non-suited on the ground that he had not proved that he was the owner of the motor vehicle that was damaged. I do not think that there is any merit in this submission. Plaintiff testified that he bought the vehicle for N$35 000.00, paid the purchase price and took delivery of the vehicle and was, prior to the accident, using the vehicle. This in my view is sufficient to establish ownership of the vehicle.

[26] Counsel for defendant submitted that by failing to produce a registration certificate, showing that the vehicle was registered in his name, plaintiff had failed to prove ownership. Registration of the vehicle in a person’s name is not a pre-requisite for transfer of ownership which is governed by the common law (See: Akojee v Sibanyoni and Another 1976 (3) SA 440 (W) at 442 D-E). Section 20 of the Road Traffic and Transport Act, Act No. 22 of 1999 and the Regulations promulgated there under, provide for the registration and licensing of motor vehicles. They provide that no person may operate a motor vehicle on a public road, which is not registered or licensed. Both the Act and Regulations do thus not purport to regulate the acquisition of ownership to a motor vehicle.

[27] I am satisfied that plaintiff has proved, at the very least, common law ownership of the motor vehicle and also bona fide possession. Counsel did not refer me to any law that compromised plaintiff’s claim to ownership in terms of the common law. The submissions with regard to a failure to prove ownership by plaintiff therefore fails.

[28] The parties agreed to leave the issue of quantum of damages for future determination. I find that plaintiff succeeded in proving damages to his car, as evidenced in the pictures handed into Court and which were marked "B1" and "B2".

[29] I therefore make the following order:

1. Defendant is liable to compensate plaintiff for the damages sustained to plaintiff’s car as a result of the accident that occurred on 9 June 2006;

2. Defendant is liable for plaintiff’s costs, of one instructing and one instructed counsel.

_______________________

MARCUS, A.J

ON BEHALF OF THE PLAINTIFF: ADV. N BASSINGTHWAIGHTE

Instructed by: H D Bossau Legal Practitioners

ON BEHALF OF THE DEFENDANT: MR A E J KAMANJA

Instructed by: Sisa Namandje & Co.