Swarts V Mva Fund

CASE NO.: I 1 7 1 7 / 2 0 0 3

IN THE HIGH COURT OF COURT OF NAMIBIA

In the m a t t e r between:

MARIA MAGDALENA SWARTZ

PLAINTIFF

and THE MOTOR VEHICLE ACCIDENTS FUND

DEFENDANT

and

HARENZ SWARTZ

CORAM:

Heard:

THIRD PARTY

VAN NIEKERK, J

2 2 - 2 5 J u n e 2 0 0 4 ; 2 - 4 August 2004; 2 5 - 2 7 October 2 0 0 4 ; 1 - 5 November 2004; 2 - 3 December 2 0 0 4

Delivered:

10 March 2 0 0 6

JUDGMENT

VAN NIEKERK, J: The plaintiff instituted action against the defendant by way of combined s u m m

by h e r h u s b a n d , the third party, a n d a n o t h e r vehicle, driven by Mr Ben Serogwe.

It is c o m m o n c a u s e t h a t the plaintiff a n d the third party are

married in c o m m u n i t y of property a n d t h a t plaintiff is a quadriplegic as a result of t h e injuries s u s t a i n e d .

The q u a n t u m of plaintiffs claim h a s

been settled at N$4 7 1 3 232 - 00. It r e m a i n s for this Court to determine the i s s u e of negligence.

The plaintiff alleges in her particulars of claim t h a t the sole c a u s e of the collision w a s the negligent driving by Serogwe.

Defendant admitted t h a t

collision occurred, b u t denied t h a t Serogwe w a s the sole c a u s e of the collision.

Defendant pleaded t h a t the sole c a u s e of the collision was the

negligence of Swartz, the third party. In addition it w a s pleaded t h a t the said Harenz Swartz is a person contemplated by section 6(2)(b)(ii) of the Motor Vehicle Accidents Act, 1990 (Act 30 of 1990).

Alternatively, the

defendant pleaded t h a t if the Court should find t h a t Serogwe was negligent, his negligence did not c a u s e the collision or the d a m a g e s sustained

by

the

Plaintiff,

or

contributed

thereto.

In

the

further

alternative the defendant pleaded t h a t if the Court should find t h a t Serogwe w a s negligent a n d t h a t his negligence contributed to or c a u s e d t h e collision, the negligence of Swartz contributed to the collision a n d the plaintiffs d a m a g e s .

As s u c h the defendant claims an a p p o r t i o n m e n t of

d a m a g e s in t e r m s of the Apportionment of D a m a g e s Act, 1956 (Act 34 of 1956).

3

The defendant also issued a n d served u p o n Harenz Swartz a third party notice in t e r m s of Rule 13 of the High Court Rules, (which notice was a m e n d e d several times) as well as a notice in t e r m s of section 2(2)(b) of Act 34 of 1956. It is common c a u s e t h a t the third party never intervened in the action between t h e plaintiff a n d defendant, a n d that, should this Court find t h a t t h e third party w a s negligent a n d contributed to the plaintiffs d a m a g e s , this Court m a y only m a k e a declaratory order in respect of t h e third party.

(Shield Insurance Co. Ltd v Zervoudakis 1967

(4) SA 7 3 5 (ECD): Hart and Another v Santam Insurance Co. Ltd 1975 (4) SA 2 7 5 (ECD);

Randbond Investments (Pty) Ltd v FPS (Northern Region

(Pty) Ltd 1992 (2) SA 6 0 8 (W)).

The collision occurred at a robot controlled intersection shortly after midnight in the early h o u r s of the Day of Goodwill, 26 December 1998. The street in which t h e plaintiffs vehicle traveled, A b r a h a m Mashego Street, r u n s t h r o u g h the intersection. Before the intersection along the p a t h t h a t plaintiff traveled, A b r a h a m Mashego Street r u n s in a downward direction, goes t h r o u g h t h e intersection a n d t h e n leads a c r o s s a bridge which is positioned over a riverbed. Should one continue with this road over the bridge, a residential a r e a on the immediate right is known as Grysblok. F u r t h e r along A b r a h a m Mashego Street one would be traveling in

the

general

direction

of

Otjomuise,

another

residential

area,

4

approximately 5 kilometres away. It is in this residential are t h a t the plaintiff a n d the third party lived. On the left side (as the plaintiffs vehicle w a s traveling) of A b r a h a m Mashego Street there are h o u s e s a n d on the right are t h e CCN offices. The road entering the intersection from the left is M u n g u n d a Street a n d r u n s parallel to the riverbed.

It

c o n t i n u e s t h r o u g h the intersection, b u t the street on the opposite side of the intersection is called Caesar Street a n d also r u n s generally parallel to the riverbed in a n o r t h e r n direction. cross.

The intersection is not a perfect

A motorist entering the intersection from M u n g u n d a Street m u s t

veer slightly towards the right w h e n crossing over to C a e s a r Street.

The

r o a d s were tarred a n d lit by electric street lights.

Before the intersection is reached, t h e view for a driver traveling from the direction in which plaintiffs vehicle was traveling, towards the left to M u n g u n d a Street is obscured, partly by the incline, partly by s h r u b s a n d trees a n d a signboard on the corner of A b r a h a m Mashego Street a n d M u n g u n d a Streets.

Similarly the view of A b r a h a m Mashego Street to the

right for a person traveling in M u n g u n d a Street towards t h e intersection is obscured by the s h r u b s , trees a n d sign board. M u n g u n d a Street lies lower t h a n the a p p r o a c h of A b r a h a m Mashego intersection.

Street towards the

Before M u n g u n d a Street e n t e r s the intersection there is a

slight dip in the street, where after it goes up at a slight incline towards C a e s a r Street.

5

In s u m m a r y the plaintiffs case regarding the collision itself a m o u n t s to the following:

On

26

December

1998

shortly after midnight the

p a s s e n g e r in a Volkswagen Caddy bakkie.

plaintiff w a s a

She w a s sitting behind in the

bakkie, which h a d a canopy, with a female relative, Alexia a n d the latter's small child.

Plaintiffs h u s b a n d , the third party, drove the Caddy.

Next to him, in front w a s t h e witness Clemens Gaseb.

They proceeded

along A b r a h a m Mashego Street in the general direction of Otjomuise. Near the CCN offices they entered the robot controlled intersection, which I described earlier. Mr Swartz entered the intersection at a b o u t 50 k p h while t h e robot w a s green for him.

Shortly after he h a d entered the

intersection he collided with the vehicle of Mr Serogwe, which entered the intersection from M u n g u n d a Street w h e n the robot w a s red for him.

He

w a s traveling very fast. As a result of the collision the plaintiff w a s injured.

In c o n t r a s t , t h e defendant's case essentially is t h a t Mr Serogwe entered the intersection from M u n g u n d a Street while the robot w a s green for him a n d t h a t Mr Swartz w a s negligent by entering the intersection while the robot w a s red for him. The defendant further alleged t h a t Mr Swartz was u n d e r t h e influence of alcohol at the time. In the further particulars

6

provided by the defendant the g r o u n d s of negligence relied u p o n were set out as follows:

"1.1

The said Harenz Swartz entered into the intersection when it was not safe and/or opportune to do so; and/or

1.2

The said Harenz Swartz entered into the intersection against the red traffic light; and/or

1.3

The said Harenz Swartz entered into the intersection when he did not have the right of way; and/or

1.4

The said Harenz Swartz did not heed the right of way which the vehicle with registration number N99449W, driven by Mr Ben Serogwe had; and/or

1.5

The said Harenz Swartz did not apply brakes timeously and/or at all;

1.6

The said Harenz Swartz did not avoid the collision by exercising reasonable care and while in a position to do so; and/or

1.7

The said Harenz Swartz was under the influence of liquor."

Counsel agreed in oral a r g u m e n t at the end of the evidence presented, a n d it is indeed clear t h a t two opposing or contradictory versions of the accident a n d w h a t occurred thereafter were p u t before the Court. In s u c h a case it h a s been said that:

7

"Where there are two stories mutually destructive, before the onus is discharged, the court must be satisfied upon adequate grounds that the story of the litigant upon whom the onus rests is true and the other is false." (National Employers' General Insurance Association v Gany 1931 AD 187 at 199).

However, in African Eagle Life Assurance Co Ltd v Cainer 1980 (2) SA 234 (W) it w a s held (at 237F-238) with regard to t h e a p p r o a c h as stated in Gany t h a t -

"

this approach to problems of proof in this type of case only applies

in cases where there are no probabilities one way or the other. Where there are probabilities, inherent or otherwise, there is no room for this approach. On the other hand, where there are no probabilities - where, for instance, the factum probandum was whether a particular thing was white or black, with not the slightest evidence as to the preponderance of white or black things in that particular community, there are clearly no probabilities of any sort. And, when the testimony of witnesses is in conflict, the one merely saying the thing was white and the other black, it does not matter logically what the measure of proof is, whether it is on a balance of probabilities or beyond a reasonable doubt. The position is simply that there is no proof, by any criterion, unless one is satisfied that one witness' evidence is true and that of the other is false. It is frequently said that the dictum in the Gany case does not apply to civil cases because of the omission of the learned Judge to have regard to the measure of proof in civil cases being on a balance of probabilities. But this criticism is invalid because, unless suitably qualified, it confuses proof with the measure of proof. Where there is no probability there is simply no proof of anything (regardless of the measure by which you measure it) unless you believe one person and disbelieve the other. Until

8

then the chances of it being black or white remain exactly evenly balanced. This is simple logic."

This a p p r o a c h h a s been approved a n d applied in n u m e r o u s cases a n d I shall bear it in mind in my evaluation of the evidence. I further take into consideration

the

following

passage

in

National

Employers'

Insurance Co Ltd v Jagers 1984 (4) SA 4 3 7 (E) where the

General

Court said (at

440E-G):

"It seems to me, with respect, that in any civil case, as in any criminal case, the onus can ordinarily only be discharged by adducing credible evidence to support the case of the party on whom the onus rests. In a civil case the onus is obviously not as heavy as it is in a criminal case, but nevertheless where the onus rests on the plaintiff as in the present case, and where there are two mutually destructive stories, he can only succeed if he satisfies the Court on a preponderance of probabilities that his version is true and accurate and therefore acceptable, and that the other version advanced by the defendant is therefore false or mistaken and falls to be rejected. In deciding whether that evidence is true or not the Court will weigh up and test the plaintiffs allegations against the general probabilities. The estimate of the credibility of a witness will therefore be inextricably bound up with

a consideration

of the

probabilities of the case and, if the balance of probabilities favours the plaintiff, then the Court will accept his version as being probably true. If however the probabilities are evenly balanced in the sense that they do not favour the plaintiffs case any more than they do the defendant's, the plaintiff can only succeed if the Court nevertheless believes him and is satisfied that his evidence is true and that the defendant's version is false."

The plaintiff did not testify in person.

The witnesses who testified in her

case were D e t / S e r g e a n t N u n u h e b , who investigated t h e matter; Mr Phillip Haradoeb, the first person who w a s at the scene of t h e collision; Mr Clemens G a s e b , the p a s s e n g e r in front with Mr Swartz; Mr Swartz, the driver; a n d Mr J e r e m y Engelbrecht.

For t h e defendant the following witnesses testified: Mr Serogwe, the other driver; O u b a a s Makies, an alleged passenger; police officers Haraseb, Nowaseb a n d Harold Gaseb; the a m b u l a n c e driver, Mr Strydom; a n d two women, Oscarine Tenzin a n d Ella Bakhela.

The trial w a s tenaciously conducted by all the parties against a backdrop of suggestions a n d i n n u e n d o , on the one h a n d , t h a t the defendant was dragging its feet b e c a u s e inter alia it w a s u n a b l e to pay the settled a m o u n t , a n d , on the other h a n d , t h a t the plaintiff, t h e third party a n d sympathetic witnesses h a d motive to colour or a d a p t the evidence in order for t h e plaintiff a n d the third party to benefit from the h u g e settled a m o u n t , especially in the light of her plight. Evidence w a s presented by both sides t h a t there were a t t e m p t s or a p p a r e n t a t t e m p t s to influence witnesses in various ways. The evidence presented did not j u s t cover the collision itself b u t also event before a n d especially after the collision. Cast in simple t e r m s , t h e m a i n factual i s s u e s in respect of which there is a d i s p u t e have boiled down to the following questions:

10

1.

Which driver went t h r o u g h the intersection against t h e red light?

2.

Were Swartz a n d Gaseb u n d e r the influence of alcohol?

3.

Did Swartz leave the scene to look for help or b e c a u s e he w a s u n d e r t h e influence of alcohol?

4.

Did Serogwe have p a s s e n g e r s in his vehicle?

Mr Swartz testified t h a t on C h r i s t m a s Day, 25 December 1998 he walked over from his h o u s e to t h a t of the witness Clemens Gaseb between 17:00 a n d 18:00.

He found Gaseb barbecuing some meat.

They ate the m e a t

a n d s h a r e d a six p a c k of Tafel Lager beer, each having three beers. After the braai they went to Swartz' h o u s e where they watched a video.

They

c o n s u m e d no alcohol there as the plaintiff does not drink or w a n t others to drink there.

At a b o u t 23:00 they traveled seated as I described before, to different h o u s e s in various residential a r e a s to see relatives. consumed.

No alcohol was

Shortly after 24:00 they a p p r o a c h e d the intersection in

A b r a h a m Mashego Street.

He w a s driving at p l u s m i n u s 50 k p h when he

entered t h e intersection. The robot w a s green. He saw a vehicle suddenly driving in front of him from the direction of M u n g u n d a Street towards C a e s a r Street.

In cross-examination he explained t h a t he saw Serogwe's

vehicle j u s t before or at the time of the collision, t h a t there w a s very little

11 time to react a n d t h a t everything h a p p e n e d in a split second. He said t h a t his view w a s obstructed to the left into M u n g u n d a Street, b e c a u s e of the trees a n d sign board, b u t t h a t he did look in t h a t direction before he entered t h e intersection. He said any person would look to see if there are vehicles a p p r o a c h i n g w h e n approaching a robot intersection. In reexamination he said t h a t he saw Serogwe's vehicle w h e n he entered the robot crossing, t h a t is why he could still swerve a n d apply his b r a k e s .

The other vehicle w a s driving very fast.

Swartz applied his b r a k e s a n d

s w u n g his vehicle toward the right in the direction of C a e s a r Street to avoid t h e accident. standstill.

However, the two vehicles collided a n d came to a

Mr Swartz stopped in the left-hand lane of Caesar Street

facing into C a e s a r Street, vehicle.

p u s h e d into t h a t direction by Serogwe's

Serogwe's vehicle came to a standstill on the ground next to

C a e s a r Street, facing the river bed.

Swartz immediately got off his vehicle a n d walked towards the other driver, accompanied by Gaseb.

Serogwe w a s getting out of his vehicle.

Swartz immediately a s k e d him why he w a s driving like that. Serogwe j u s t held his h e a d a n d said t h a t he is sorry.

In response

By this Swartz

u n d e r s t o o d Serogwe to indicate t h a t he is guilty. Serogwe w a s alone.

12

Thereafter Swartz r e t u r n e d to inspect his vehicle a n d to see whether any of his p a s s e n g e r s were h u r t .

The plaintiff w a s screaming for help.

She

w a s lying down at the b a c k of the Caddy. Alexia a n d h e r child were s t a n d i n g outside next to the Caddy.

Swartz w a n t e d to get into the back

to help the plaintiff, b u t somebody told him from behind t h a t she should not be touched, it m a y be serious.

Someone arrived with a cell phone

a n d he w a s a s k e d to telephone the police a n d a m b u l a n c e .

They waited

for a long time, b u t neither t h e police nor the a m b u l a n c e arrived. plaintiff kept screaming for help.

The

Swartz said he w a s feeling very sorry

for t h e plaintiff a n d desperately w a n t e d to help her.

He therefore told

Gaseb to stay at t h e scene a n d t h a t he would r u n off to his brother's house.

It is c o m m o n c a u s e t h a t Swartz h a s a brother, Peter Karon who

lived in Grysblok, a residential a r e a on the other side of the riverbed.

He

p a s s e d t h r o u g h the riverbed a n d the veld a n d t h e n proceeded to Karon's h o u s e , from which he w a n t e d to telephone. At the stage he left the scene there were no police officers yet. He later added t h a t t h e m a n with the cell p h o n e also left t h e scene.

At Karon's h o u s e the gate w a s locked.

He j u m p e d over the fence a n d

someone (the witness Engelbrecht) came out, who told h i m t h a t Karon h a d gone to a farm.

Engelbrecht w a s looking after the h o u s e a n d told

him t h a t t h e p h o n e w a s locked.

They t h e n woke up someone in the

neighbour's h o u s e , which h a d a p h o n e , b u t they could not p h o n e from

13

there.

Swartz waited a short while as Engelbrecht h a d told him t h a t

Karon would be b a c k at anytime.

After a while Swartz went to look for a

taxi, found one a n d r e t u r n e d tot he scene of the accident, b u t there was nothing. Everyone h a d left, a n d the vehicles were gone. He t h e n went by taxi to visit his wife in hospital, b u t w a s not allowed to see t h e plaintiff. He went h o m e as the children were alone.

The next day he went to Ben Swartz, a n o t h e r brother in Otjomuise a n d borrowed his vehicle to go to the police to report t h e case. On his way to Clemens Gaseb's h o u s e he met Clemens by c h a n c e a n d took him along to W a n a h e d a Police Station. officer w a s .

Clemens told him who t h e investigating

They a s k e d the police on duty to contact N u n u h e b , b u t he

did not t u r n u p .

From there they visited the plaintiff in hospital.

Then

they went h o m e .

On 27 December they again went to the police where they met N u n u h e b . Swartz w a s interviewed first. the scene of the accident.

N u n u h e b asked him why he r a n off from

Swartz told him t h a t he w e n t to look for help.

N u n u h e b informed him t h a t he h a d gone go Karon's h o u s e with Clemens to look for Swartz in order to a r r e s t him for not being at the scene. Apparently Clemens h a d told N u n u h e b t h a t Swartz h a d gone there to look for help.

Swartz t h e n m a d e a warning s t a t e m e n t .

14

Swartz is in all material respects corroborated by J e r e m y Engelbrecht. Peter Karon w a s his uncle a n d he looked after Karon's h o u s e on C h r i s t m a s evening 1998.

Karon a n d family h a d gone to t h e farm for the

day a n d they were expected b a c k t h a t s a m e night. between 22:30 a n d 23:00.

He went to bed

Swartz woke him up by knocking at the door

a n d told him t h a t he h a d been in an accident.

He w a s looking for Karon.

Swartz w a s very shocked a n d he kept referring to the fact t h a t his wife w a s h u r t seriously.

Swartz w a n t e d to u s e the p h o n e , b u t it was locked.

They tried the neighbour's at Erf 344 b u t were unsuccessful.

Swartz

waited a few m i n u t e s for his brother b u t t h e n r e t u r n e d to the scene.

He

felt sorry for Swartz a n d w h e n a s k e d "Could you evaluate whether he w a s u n d e r t h e influence of liquor or not?", his a n s w e r w a s "No.". Engelbrecht went to bed a n d woke up the next day at 10:00 to find t h a t Karon h a d r e t u r n e d in the m e a n t i m e .

In cross examination he m a d e it clear t h a t it w a s not possible t h a t Swartz w a s d r u n k b e c a u s e he did not smell of alcohol.

He was able to

observe well as they were s t a n d i n g close to each other a n d talking.

He

said his h e a d w a s clear a n d t h a t he himself h a n d not been drinking.

He

noticed t h a t Swartz w a s wearing a pair of spectacles with one lens missing. He did not know at w h a t time Swartz c a m e to wake him u p .

15

Clemens G a s e b corroborated Swartz in all material r e s p e c t s regarding the events on C h r i s t m a s Day a n d how the collision occurred.

Although

he did not look at the speedometer he estimated Swartz to have driven between 40 a n d 50 kph. more t h a n 50 k p h . slower.

In cross examination he said Swartz drove not

He said Swartz could not have moved faster, only

He b a s e d his estimation thereon t h a t "someone who usually gets

into a car he would know at approximately w h a t speed t h e car would be traveling."

By this I u n d e r s t o o d him to say t h a t from having been a

frequent p a s s e n g e r he h a s acquired some experience of the speed at which a vehicle is traveling.

He did admit t h a t he did not have a driver's

licence, b u t only a b o u t two m o n t h s before he entered the witness box obtained a driver's licence. In his h a n d w r i t t e n s t a t e m e n t (Gl) prepared a day or two after the collision he p u t the speed at 50 kph. Later in cross examination he said t h a t Swartz w a s driving at a r e a s o n a b l e speed which he estimated to be 50 kph.

I am willing to accept t h a t Gaseb's estimation is not too far off. with t h a t of Swartz.

It fits in

In any event, the speed at which Swartz w a s

traveling is not one of the g r o u n d s of negligence relied on by the defendant.

Furthermore,

although

Serogwe

denies

this,

Det/Segt

N u n u h e b said t h a t Serogwe pointed out the collision point to him. In Court all the parties pointed out the s a m e point. The sketch plan he drew u p a n d m e a s u r e m e n t s h e m a d e were never d i s p u t e d a n d m u s t b e

16

accepted as correct (except t h a t points C a n d D m u s t switch around). According to this information t h e point of impact w a s very close to the point where Swartz m u s t have seen Serogwe's vehicle for the first time. It is j u s t in t h e lane next to the one in which he w a s traveling before one leaves the intersection on the bridge's side.

What is more, Swartz'

vehicle stopped j u s t a b o u t two steps away from the point of impact.

I agree with Mr Muller, who appeared for the plaintiff a n d the third party, t h a t the evidence t e n d s to show t h a t Swartz did not move fast a n d probably u s e d his b r a k e s as testified.

The points on the scene therefore

also tend to corroborate Gaseb in his estimation.

Gaseb further confirms Swartz' evidence t h a t they immediately went to Serogwe's vehicle after the collision, t h a t Serogwe held his h e a d a n d said "God, I'm sorry" a n d t h a t he w a s alone. They r e t u r n e d to t h e Caddy a n d h e a r d plaintiff calling for help. not move. stopped.

He also h e a r d t h a t plaintiff said she could

He confirms t h a t Swartz tried to help h e r b u t t h a t he was He saw t h a t Swartz w a s in shock.

would go look for help at this brother.

Swartz t h e n said t h a t he

There w a s some u n c e r t a i n t y on

the evidence w h e t h e r Swartz mentioned t h a t he intended going to the brother in Grysblok, as he also h a s a brother in Otjomuise, b u t in my view nothing t u r n s on this. There is evidence on record t h a t Otjomuise is a b o u t 5 kilometres away from the scene a n d it is unlikely t h a t Swartz

17

would have gone so far or intended to go there, as Karon w a s j u s t a r o u n d the corner in Grysblok. Besides, Gaseb knew where Karon lived as he h a d been there before. In fact he took N u n u h e b to t h a t h o u s e later t h a t evening to look for Swartz. The a m b u l a n c e arrived a b o u t 5 to 10 m i n u t e s after Swartz h a d left.

The plaintiff w a s placed in the a m b u l a n c e , which

also took Alexia a n d t h e child a n d they all left.

At the scene N u n u h e b , w h o m he knew from before, a s k e d him where Swartz is a n d he told N u n u h e b t h a t Swartz went to his brother's h o u s e for help.

He accompanied N u n u h e b to the h o u s e , found t h e brother, b u t

not Swartz.

They drove b a c k to the scene hoping t h a t Swartz would be

there, b u t he w a s not.

The vehicles were towed away a n d Gaseb was

taken home.

Both Swartz a n d G a s e b are corroborated by the witness Phillip Haradoeb in all material respects. He w a s the first person on the scene immediately after the accident occurred. He confirms the incident relating to w h a t Serogwe said a n d stated t h a t to him it a p p e a r e d t h a t they argued a b o u t the m a n n e r in which Serogwe h a d driven. He stated t h a t his wife is a n u r s e a n d she cautioned Swartz not to move t h e plaintiff in her condition. He said t h a t Swartz initially w a s in shock, b u t calm. Later he w a s "confused" after he saw the plaintiffs condition a n d moved towards the riverside. He w a s not a s k e d to explain his description of the plaintiff

18

as being confused. He saw him walking down into the river a n d towards Grysblok. He noticed Serogwe talking on his radio a n d a person with a cell p h o n e called the police a n d a m b u l a n c e . The a m b u l a n c e a n d police arrived only after a very long time a n d removed the plaintiff.

He

instructed Gaseb to remain at their vehicle to keep it safe. He did not notice the police searching for Swartz in the river. He did not see t h a t either of the drivers w a s u n d e r the influence of alcohol. The witness m a d e a good impression in the witness box.

In aspect of the case t h a t took up m u c h of the Court's time w a s the allegation by the defendant t h a t Swartz w a s u n d e r the influence of alcohol at the time of the collision.

The allegation is coupled with

another, namely t h a t Swartz decided to skip the red robot as it was late at night a n d u s u a l l y quiet on C h r i s t m a s e v e n i n g . The implication of the allegation a p p e a r s to be t h a t he did so b e c a u s e he w a s u n d e r the influence of alcohol, although this w a s not actually stated. This is also the t r u e reason, defendant says why Swartz r a n from the scene.

I prefer

to deal with this i s s u e earlier in the j u d g m e n t as the analysis of the evidence s u r r o u n d i n g this aspect will facilitate the weighing up of the probabilities concerning the c a u s e of the collision itself.

Swartz a n d Clemens Gaseb both admit t h a t they h a d three Tafel Lager beers each with m e a t between

17:00 a n d

18:00 the previous day.

19

Thereafter they ate more m e a t at Swartz' home.

Swartz drove a r o u n d

from 23:00 until the collision shortly after 24:00 without any problems. Both he a n d G a s e b denied t h a t either of t h e m w a s u n d e r the influence of alcohol.

It is i m p o r t a n t to note t h a t not one witness testified t h a t he

actually saw Swartz u n d e r the influence of alcohol.

Serogwe, who knew a n d recognized Swartz shortly after t h e collision, did not describe h i m as being u n d e r the influence of alcohol.

According to

Serogwe they were told to go n e a r the police vehicle for a b r e a t h alcohol test. At the time N u n u h e b a n d Swartz were a p p r o a c h i n g each other.

He

h e a r d N u n u h e b say to Swartz in D a m a r a or N a m a (which he u n d e r s t a n d ) "You see yourself t h a t you are drunk" a n d "run" a n d shortly thereafter heard

the policeman say "there he's r u n n i n g ,

there he's running"

referring to Swartz.

In a written s t a t e m e n t (exhibit "B7") Serogwe m a d e on 11 May 2004 during the trial, b u t before he testified, he stated for t h e first time t h a t N u n u h e b said to Swartz "You m u s t r u n away, you know you are u n d e r the influence of liquor".

Later in the written s t a t e m e n t he expressly

confirms this. When cross-examined on this s t a t e m e n t he persisted t h a t N u n u h e b did this. There is overwhelming evidence t h a t N u n u h e b arrived at the scene only after Swartz h a d left the scene. t h a t any b r e a t h t e s t s were done.

No one else mentioned

20

In the warning s t a t e m e n t by Serogwe dated 27 December 1998 he mentioned at the end t h a t Swartz w a s d r u n k , t h a t he observed Swartz a n d t h a t Swartz r a n away from the scene b u t m a k e s no mention t h a t he did so on N u n u h e b ' s instruction.

When confronted with this statement,

Serogwe testified t h a t he never m a d e this s t a t e m e n t , b u t w a s asked to sign a b l a n k form or warning statement, which he did. This startling fact he mentioned for the first time in his evidence after he w a s pressed in cross examination a b o u t its c o n t e n t s . He also admitted t h a t he never mentioned it to t h e defendant's legal practitioners d u r i n g any of the p r e p a r a t i o n s for the case. This explains why it w a s not p u t to N u n u h e b during cross-examination. Serogwe w a s a police officer in the p a s t a n d was at the time of the collision a security officer at T r a n s n a m i b who at times investigated crimes at times together with the police.

I find it

highly improbable t h a t he would sign a blank warning s t a t e m e n t .

Even

if he did so, one would expect of him to have reported or mentioned it as soon as he found o u t t h a t it contains a s t a t e m e n t purportedly m a d e by him, especially if it is wrong.

He mentioned several i n s t a n c e s in which

the s t a t e m e n t w a s incorrect during cross-examination. I further find it highly improbable t h a t N u n u h e b who was investigating the collision would have instructed a d r u n k e n driver to r u n from the scene in the presence of the other driver a n d other police officers a n d onlookers. did this,

If he

one would expect t h a t Serogwe would immediately have

21

protested or reported the instruction. years later.

Instead he only mentioned it 5Vfe

I have no hesitation in rejecting Serogwe's evidence on these

a s p e c t s as false.

It is also in this s t a t e m e n t ("B7) t h a t Serogwe for the first time mentioned t h a t N u n u h e b removed a crate of beers a n d a bottle of Richelieu b r a n d y from Swartz' vehicle.

In his testimony before this court he however said

t h a t it w a s one of t h e policemen dressed in camouflage uniform who took these items from t h e Caddy a n d p u t t h e m in the police vehicle.

Both in d u r i n g a n d d u r i n g cross-examination N u n u h e b denied t h a t any liquor was found on or removed from the vehicles or the scene of the accident.

No one else saw t h e alleged crate of beer or bottle of brandy.

Both Swartz a n d G a s e b denied t h a t there were s u c h things in the Caddy.

Nowaseb who w a s called by defendant a n d who w a s a detective sergeant in the Namibian Police a p p e a r s to have been one of the first police officers on t h e scene.

He testified t h a t he inspected the vehicles of both

drivers a n d he did not see a crate or bottle of b r a n d y . before N u n u h e b arrived.

He left the scene

He never saw any other police officer at the

scene or anyone in uniform. The alleged crate of beer a n d Richelieu seem to have d i s a p p e a r e d into thin air.

In exhibit "B7" Serogwe mentioned

t h a t he a s k e d N u n u h e b a b o u t this alcohol w h e n he went to see N u n u h e b

22

the next m o r n i n g at t h e police station a n d t h a t N u n u h e b "just told t h a t it is his job he knows w h a t he m u s t do".

He says further t h a n when he

a n d i n s t r u c t i n g counsel, Mr M u r o r u a asked N u n u h e b w h e t h e r "he still having the evidences of liquor", N u n u h e b said "that he is still having the evidences there".

This w a s never p u t to N u n u h e b in cross-examination

a n d there w a s no a t t e m p t reflected in the evidence to produce s u c h exhibits in Court.

In my view the weight of evidence strongly favours the

probability t h a t there w a s no crate of beers or bottle of b r a n d y found in t h e Caddy.

I next t u r n to a consideration of the r e m a i n d e r of the evidence of Nowaseb.

He says he w a s the first policeman on the scene a n d t h a t he

was off d u t y a n d in plain clothes.

He p a s s e d by the scene on the way

home. He reported the collision by cell p h o n e to the police a n d called for an a m b u l a n c e .

It took a long time for t h e m to respond.

Eventually he

left the scene to report the m a t t e r in person at W a n a h e d a Police Station. Swartz also mentioned a m a n with a cell p h o n e who telephoned the police a n d a m b u l a n c e , b u t who left before their arrival. have t h o u g h t this w a s a civilian.

He a p p e a r s to

It s e e m s to me t h a t t h i s person may

very well have been Nowaseb, although Nowaseb testified t h a t he only spoke to Serogwe a n d Gaseb.

When he looked for Swartz they could not

locate him or observe him.

He said t h a t Swartz m a y have been a m o n g s t

the p e r s o n s on the scene.

He testified t h a t G a s e b spoke to him at the

23

scene.

Gaseb told h i m t h a t he w a s a p a s s e n g e r in the Caddy a n d t h a t

Swartz was t h e driver. Gaseb also told him t h a t "they" drove "over " a red robot a n d b u m p e d into an oncoming vehicle.

At the time Nowaseb was

right next to Gaseb a n d he clearly observed G a s e b to be "reasonably drunk".

His tongue w a s slurring, his b r e a t h smelled of alcohol a n d he

w a s u n s t e a d y on his feet.

Nowaseb t h e n inspected the vehicles. I u n d e r s t o o d his evidence to be t h a t he did this b e c a u s e it is normal procedure for a police official who comes onto a scene of a collision to inspect t h e inside a n d immediate vicinity of the vehicles involved.

He peeped in the front of the Caddy a n d

saw beer bottles there as well as beer bottles next to the vehicle w h e n he moved a r o u n d to the back. He saw nothing w h e n he inspected Serogwe's vehicle.

In cross-examination he said t h a t he could not r e m e m b e r if he inspected the vehicles alone.

W h a t is clear is t h a t he did not m a k e any point to

take anyone with him.

He acknowledged t h a t normally the driver would

be t a k e n along lest the driver later denies the fact t h a t something relevant w a s found.

When pressed on why he did not do it in this case,

he said it is not a written policy or rule, b u t t h a t it is done o u t of habit. When p r e s s e d further on this point he said t h a t he actually does not normally work with collision cases, b u t with fraud c a s e s . He further

24

explained

that

he

saw

beer

bottles

inside

the

Caddy where

the

p a s s e n g e r ' s feet would be. He could not say how m a n y , b u t it w a s more t h a n one. At first he said they were empty, t h e n he corrected himself a n d said t h a t he could not actually say w h e t h e r there were sealed bottles. He did not take t h e m out of the vehicle. On the left side at t h e b a c k of the Caddy he found more t h a n one empty beer bottle on the ground. Again he could not say how m a n y .

Nowaseb said t h a t he showed his a p p o i n t m e n t certificate to Gaseb a n d t h a t he w a n t e d to know who the drivers were. Although he acknowledged t h a t it w a s i m p o r t a n t to know who a n d where t h e driver a n d p a s s e n g e r s of each vehicle were, he did not actually a s k Serogwe a b o u t any p a s s e n g e r s or see any.

To explain this he said t h a t it is actually the

responsibility of the person who is coming to investigate the case.

He

acknowledged t h a t a p a s s e n g e r or liquor could d i s a p p e a r from the scene if he did not report their existence to the investigator.

There is evidence t h a t Nowaseb's report was noted in the occurrence book at W a n a h e d a with particulars of where he could be traced.

He

noted t h a t an accident took place a n d t h a t there were serious injuries. It s e e m s he did not report the evidence of alcohol in the vehicle or the d r u n k e n passenger.

25

The fact t h a t G a s e b w a s allegedly u n d e r the influence w a s not p u t to N u n u h e b or Haradoeb during cross-examination. However, it m a y be t h a t the evidence of Nowaseb w a s not available at the time these witnesses testified.

I have the impression t h a t t h e defendant's list of

witnesses grew as the case progressed.

Nevertheless, it s e e m s clear t h a t

Haradoeb h a d occasion to observe Gaseb's condition a n d actually spoke to him. He did not mention the signs which, according to Nowaseb were noticeable to anyone. In my view it is unlikely t h a t Haradoeb would have left a d r u n k e n person in charge of Swartz' vehicle.

N u n u h e b h a d a lot of contact with Gaseb t h a t evening. Gaseb did not tell him the story t h a t Swartz h a d driven t h r o u g h the intersection while the light was red. If he told Nowaseb this freely, why does he not tell N u n u h e b , the investigator? N u n u h e b also drove with h i m to Karon's h o u s e a n d b a c k to the scene to leave Gaseb in charge of the vehicles until they are towed away.

N u n u h e b m u s t have noticed Gaseb's

condition a n d if he were indeed intoxicated it is unlikely t h a t N u n u h e b would not have m a d e something of it or mentioned it in his own s t a t e m e n t , especially as he w a s keen to trace t h e driver a n d even formulated charges against him for leaving the scene.

If Gaseb was

intoxicated a n d bottles were found in the Caddy it s e e m s obvious t h a t the next logical question would be w h e t h e r the driver m a y not have been intoxicated. Nowaseb suggested t h a t p e r h a p s N u n u h e b did not do his

26

d u t y in this regard, b u t I find it improbable bearing in mind t h a t he actually went to look for Swartz a n d brought G a s e b b a c k to the scene to r e m a i n there until they are towed away. He also a s k e d Serogwe (and it s e e m s Gaseb) to report to the police station the next m o r n i n g at 8:00 for s t a t e m e n t s . Although he m a y be criticized on his s u b s e q u e n t handling of the m a t t e r a n d t h e content of the s t a t e m e n t s a n d accident report, I am u n a b l e to find on t h e evidence t h a t he w a s in dereliction of his d u t y on the night of t h e collision, unlike Nowaseb.

I

find

Nowaseb's

evidence

regarding

the

beer

bottles

vague

and

unsatisfactory. He says he went specifically to inspect t h e vehicle as it is c u s t o m a r y to do. Having seen t h a t the p a s s e n g e r of one vehicle is d r u n k a n d having h e a r d t h a t he admitted to their vehicle infringing the red traffic light a n d finding empty bottles, b u t no driver, it is probable t h a t any police officer in his position would have specifically counted the bottles, or have m a d e a point to see if they were empty or full or m a d e notes of his observations or not have left the scene until t h e investigator or other police arrived to w h o m he could h a n d over t h e scene. According to him he w a s the only police officer there. There w a s no need to drive to W a n a h e d a to report t h e m a t t e r in person. u r g e n t telephone call.

He could have m a d e a n o t h e r

As a detective with the r a n k of sergeant normally

h a n d l i n g fraud case I t h i n k it is reasonable to expect of h i m to anticipate t h a t the driver might have c o n s u m e d some of the beer a n d m a y remove

27

the evidence or d i s a p p e a r from the scene.

Yet he leaves the scene

without any h a n d i n g over to a n o t h e r police officer.

According to him he

also did not report his finding of the beer bottles or the d r u n k e n p a s s e n g e r to anyone. He did not report the p a s s e n g e r ' s explanation t h a t they crossed the intersection against the traffic light a n d c a u s e d the collision. anyone

He also did not mention this in the occurrence book to alert to

the

c i r c u m s t a n c e s which

he

found

at

the

scene.

His

explanation is t h a t w a s the d u t y of the investigator to deal with all this, b u t elearly the investigator m a y not have found t h e scene in t h e state Nowaseb left it. F u r t h e r m o r e , the d r u n k e n p a s s e n g e r might not repeat the story to the investigator or might even leave t h e scene. To conclude, I find his evidence improbable a n d unsatisfactory on these a s p e c t s .

Oscarine Tenzin a n d Ella Bakhela went to the scene some time after the accident. The a m b u l a n c e arrived while they were there. Tenzin saw a male person sitting in the p a s s e n g e r seat of Swartz' vehicle. On the d a s h board were two empty drinking glasses. She is the only person t h a t saw this. In my view this evidence is neither here nor there. Ella Bakhela saw an empty glass a n d empty beer bottles in t h e b a c k of Swarz' vehicle where the plaintiff w a s lying a n d crying.

She w a s also the only one who

saw this. The p e r s o n s who m a d e specific inspections, namely Nowaseb a n d N u n u h e b did not see this. It s e e m s t h a t Ella w a s a p p r o a c h e d to testify at a very late stage. I find it doubtful a n d improbable t h a t she

28

would r e m e m b e r seeing s u c h details as the glass a n d empty beer bottles after a period of approximately 5'/2 years. I prefer not to rely on her evidence on this a s p e c t in the face of the evidence by Nowaseb a n d Nunuheb.

The only other witness who gave evidence on the alcohol aspect is Harold Gaseb, the uncle of Clemens Gaseb. At the time he testified he w a s a constable in the Namibian Police with eleven years service. He h a d previously done d u t y as a court orderly at the magistrate's court a n d as a traffic officer. At t h e time of the collision he w a s living in Port Louis Street a b o u t 500 - 6 0 0 m e t r e s from Clemens. He stated t h a t they h a d a good relationship a n d t h a t Clemens u s e d to come to him with his problems, one of which w a s alcohol a b u s e . Allegedly Clemens respected Harold a n d also borrowed money from h i m on paydays.

On 26 December 1998 between 7:00 a n d 8:00 Clemens came to see Harold a n d told him t h a t he h a d been involved in a vehicle accident. He said t h a t Swartz w a s the driver of the vehicle a n d t h a t t h e other vehicle w a s a T r a n s n a m i b pick-up. Clemens also told h i m t h a t they h a d h a d a party a n d d r a n k at a certain h o u s e in K a t u t u r a a n d j u s t before midnight Swartz a n d he got into the front of the vehicle with three ladies in the back. They were on their way b a c k to Swartz' h o u s e in Otjomuise. As it is normally quiet during C h r i s t m a s nights, Swartz speeded t h r o u g h the

29

intersection while t h e traffic light w a s red. (I p a u s e to point o u t t h a t this intersection a p p e a r e d to be quite b u s y t h a t night. Not only were Swartz a n d Serogwe there, Haradoeb, Nowaseb a n d H a r a s e b p a s s e d there by c h a n c e shortly after the collision. The evidence w a s t h a t there were several other vehicles a n d onlookers who stopped at t h e scene. It a p p e a r s t h a t not all p a s s e d there b e c a u s e of the accident.)

The light w a s green for t h e T r a n s n a m i b vehicle a n d they collided. Clemens said t h a t if Swartz h a d obeyed the traffic light, the accident would not have occurred. Clemens also told him t h a t he w a s feeling bad, t h a t if Swartz h a d not gone t h r o u g h the red robot, the accident would not have h a p p e n e d a n d Mrs Swartz would not have been h u r t . He told Gaseb t h a t she h a d s u s t a i n e d a neck injury. Gaseb stated t h a t Clemens was not h a p p y a b o u t being a p a s s e n g e r involved in the accident a n d said, referring to Swartz t h a t the "bastard" nearly c a u s e d his d e a t h .

Clemens further said t h a t he forgot to take along some of t h e liquor t h a t was in the vehicle for his hangover the next day. He mentioned t h a t there were beers, Richelieu b r a n d y a n d a half j a c k of Mellow Wood brandy. Clemens also said t h a t Swartz got o u t of the vehicle a n d said to Clemens t h a t he is going to r u n , t h a t he could not stay there, as he w a s d r u n k . Swartz said t h a t if he stayed there the police would lock h i m up for d r u n k e n driving. According to Harold, Clemens came to h i m for advice,

30

b e c a u s e , as Swartz h a d r u n away from the scene, Clemens w a s worried t h a t Swartz might t u r n a r o u n d a n d say t h a t it w a s Clemens who h a d been the driver. Gaseb advised him t h a t as he h a d been j u s t a p a s s e n g e r in the vehicle, why should he be afraid? He told Clemens j u s t to tell the truth.

According to Gaseb, Clemens said t h a t he w a s not feeling well a n d h a d a hangover. Gaseb could also observe t h a t he w a s h u n g over, as he smelled strongly of alcohol a n d his eyes looked as if he h a d gone to sleep late. Gaseb sent his d a u g h t e r to go a n d b u y a beer at a s h e b e e n nearby a n d when she r e t u r n e d , Clemens took the beer a n d left.

A short while thereafter Clemens a n d Swartz c a m e walking to Gaseb's h o u s e a n d Swartz a s k e d Gaseb for t r a n s p o r t to take him to the place where the accident h a d t a k e n place to look for his spectacles. Gaseb obliged. He p a r k e d his vehicle in C a e s a r Street a n d went with a footpath down into the river bed with Clemens a n d Swartz to look for the spectacles. In the witness box he could not r e m e m b e r if they found the spectacles or not. He also could not r e m e m b e r if Swartz wore spectacles t h a t day. From there he took Clemens a n d Swartz home.

This witness also told the Court t h a t on 3 August 2 0 0 4 during the time t h a t Swartz w a s giving evidence in this Court Swartz h a d a p p r o a c h e d the

31

witness to come a n d say, if he is called, t h a t he h a d found Swartz a n d Clemens on 26 December 1998 at the river looking for the spectacles, b e c a u s e this is w h a t Swartz h a d testified. Swartz also told h i m t h a t he h a d denied in evidence t h a t he went to the scene with Harold Gaseb. Swartz w a s giving him a tip-off, as he described it. Swartz allegedly w a n t e d G a s e b to help him with this piece of evidence.

Gaseb also told the court t h a t the next day he m e t with Swartz in Port Louis Street n e a r his home, b e c a u s e t h e latter left h i m a message at home. Swartz t h e n showed Gaseb a d o c u m e n t which h a d been h a n d e d in at Court. It w a s a s t a t e m e n t a b o u t the events of the collision on 26 December 1998. (There w a s indeed h a n d e d in as exhibit "J" a s t a t e m e n t conforming to the description). Swartz t h e n said t h a t Mr E r a s m u s , his instructing counsel, h a d said t h a t Gaseb should go thoroughly t h r o u g h the s t a t e m e n t a n d w h e n he testifies his testimony m u s t go along the s a m e lines at t h a t of Swartz in the s t a t e m e n t . Mr E r a s m u s h a d also allegedly said, in t h e words of Gaseb, t h a t "they are only short of one percent, t h e n they walk away with 5 million" an a p p a r e n t reference to the fact t h a t the plaintiff needed only to prove 1% negligence on the p a r t of Serogwe to succeed in her claim (something which h a d been mentioned by counsel for both parties in Court during an earlier application for p o s t p o n e m e n t of the trial a n d in the opening s t a t e m e n t on behalf of plaintiff at the s t a r t of the trial.).

32

Swartz was recalled to be cross-examined on these allegations and he denied t h e m . Swartz earlier testified that he borrowed his brother Ben Swartz' vehicle on the morning of 26 December a n d later went with Clemens to look for the lens of his spectacles which he lost in the river bed the previous evening. While there, Harold Gaseb happened to come by. When Clemens w a s cross-examined, he also denied the conversation which Harold alleged took place and his allegations relating to the spectacles.

There are several aspects a b o u t Harold Gaseb's evidence which are to my mind quite improbable. If Gaseb was u p s e t and felt bad about Swartz "going t h r o u g h " the red robot, it is likely that he would he have told N u n u h e b the s a m e story. Even if one accepts t h a t he may have been afraid t h a t Swartz would pin the driving onto him, why would he then tell N u n u h e b t h a t Swarz had gone to his bother in Grysblok to seek assistance? One would expect that he would have told N u n u h e b that Swartz was d r u n k a n d r a n away not to be arrested. If he really told the story about the beers, the Richelieu and Mellow Wood, it is improbable t h a t both Nowaseb a n d N u n u h e b did not see all these items, although they inspected the vehicle. The alleged fear t h a t Swartz would pin the driving on him is u n r e a s o n a b l e as at least Alexia a n d Haradoeb saw that Swartz was t h e driver. There were also other relatives who saw that

33

Swartz drove the vehicle the previous evening before the collision. Clemens did not have a driver's licence - it is improbable t h a t he would have driven Swartz' vehicle, especially if he, Clemens, was drunk. It s e e m s to me t h a t Harold needed some a s p e c t on which to "advise" Clemens.

I find it improbable t h a t Clemens would shortly afterwards bring the very Swartz, who nearly killed h i m the previous evening, r a n away and who is suspected of p e r h a p s wanting to pin the driving on him, to Harold to ask for transport to look for his spectacles. It is further improbable that Harold would comply a n d t h a t the two G a s e b s would a s s i s t Swartz in these

circumstances

to

look

for

the

spectacles.

I

find

Harold's

explanation on this score vague and improbable. I bear in mind that at the time Harold w a s a police officer. I think it highly improbable that he did not confront Swartz a b o u t committing several offences the previous evening, especially as there was a prospect in the mind of his nephew Clemens t h a t Swartz would blame Clemens. He did not even ask Swartz anything a b o u t the previous evening's events. Further, he goes so far as to assist the very offender at the scene of the crimes to retrieve his property which was lost while fleeing from justice while knowing that an innocent person was seriously injured. If he truly did all this he is patently dishonest and not to be trusted. This of course does not necessarily m e a n t h a t he is lying, but in the absence of other satisfactory

34

evidence s u p p o r t i n g him, I take a dim view of his evidence on these aspects.

It is also o p p o r t u n e to deal at this stage with the impression made on me by Clemens Gaseb. He was not an easy witness to deal with. He sometimes did not answer questions a n d had to be pressed, sometimes by the Court. However, I did not have the impression t h a t it was because he wanted to hide anything or because he could not explain. I agree with Mr Muller's s u b m i s s i o n that he wanted to be clever. He also seemed to be obstinate at times.

His failure to attend the proceedings after an

a d j o u r n m e n t while he was u n d e r cross-examination seemed to be related to financial c o n s t r a i n t s and a dispute with plaintiffs legal practitioners a b o u t his costs a n d not because he wanted to avoid being questioned. He testified by m e a n s of an interpreter a n d at times appeared to have difficulty

with

understanding

the

questions

in

translation.

These

sometimes related to questions relating to his view about the importance of r e a s o n a b l e n e s s of certain m a t t e r s and not about facts of narrative material.

One aspect which caused him difficulty was the fact t h a t he obviously missed a day in his recollection of events, namely the day light h o u r s of 26 December 1998. At times he appeared to think t h a t the accident occurred on 27 December after midnight. He was a d a m a n t t h a t he made

35

h i s warning s t a t e m e n t the very next morning after the accident. Swartz said t h a t they went to the police station twice - once on the 2 6 once on the 2 7

t h

t h

and

of December. On 26 December they tried to get hold of

N u n u h e b , b u t he did not t u r n u p , so they r e t u r n e d the next day. In this respect he is s u p p o r t e d by Serogwe who initially gave t h e s a m e evidence. I have considered w h e t h e r this difficulty of Clemens h a d anything to do with the story told by Harold Gaseb. However, in the light of the fact t h a t t h e weight of probability is against Harold's version, I have come to the conclusion t h a t it is probably a problem with his memory or a mistake.

Another a s p e c t to be dealt with is t h a t Clemens did reluctantly admit after long cross-examination t h a t he discussed the incident of the collision with Swartz the next day. Swartz, r a t h e r improbably, denied this. I m u s t point out t h a t this is a common feature of the testimony of witnesses in Court who are often reluctant to deny t h a t they have d i s c u s s e d any aspect of a case, no matter how startling, shocking or life changing the event may have been, even with their lawyers. One knows t h a t they naturally did d i s c u s s it and any lie or reluctance t h a t they have n o t does not tend to weigh heavily in the mind of the Court.

Returning to Harold Gaseb's evidence regarding the events of 3 August, it s e e m s to me unlikely t h a t Swartz would tip Harold off regarding a relatively u n i m p o r t a n t piece of evidence, namely t h a t Harold found

36

Swartz at the scene looking for his spectacle lens. Swartz m u s t have known t h a t Harold would probably be called by the defendant a n d that any a t t e m p t to influence him would probably be revealed, especially if he w a s asking Harold to tell a deliberate lie.

The s a m e can be said a b o u t the evidence regarding the s t a t e m e n t on the events of 26 December 1998. In any event, there can be no reason for Mr E r a s m u s to send a message to Harold to tailor his evidence along the lines of Swartz' s t a t e m e n t at it is concerned with the collision itself, and not with any m a t t e r on which Harold could or would be a witness. Swartz also did not strike me as being so unintelligent or uninformed t h a t he would think t h a t it would serve any p u r p o s e to a s k Harold to do this. In fact, Swartz' evidence a m o u n t s thereto t h a t it would have served no p u r p o s e . In my view Harold's evidence on this aspect c a n n o t be accepted.

I now t u r n to the issue of why Swartz left the scene. He says it was to seek a s s i s t a n c e from his brother. He is s u p p o r t e d in this version by Clemens t h a t this w a s the reason he advanced a n d which was conveyed to N u n u h e b , who further confirms this. He says t h a t he was desperate to help the plaintiff a n d t h a t the a m b u l a n c e took long to arrive. In this he is supported by the evidence of defendant's witness, Mr Strydom, who said t h a t the a m b u l a n c e only left for the scene at 24:59. This is slightly less t h a n an h o u r after the collision approximately took place. There is

37

evidence by both Swartz a n d Haradoeb t h a t the plaintiff w a s not to be moved. T h a t this w a s said, is highly likely on the probabilities. According to Swartz the m a n with the cell phone h a d left. As I said before, this a p p e a r s to be Nowaseb who confirmed t h a t the a m b u l a n c e took long to arrive a n d t h a t he t h e n left to personally report the matter.

It m a y be t h a t one c a n raise valid criticism as to why Swartz did not seek help from Haradoeb, from any of the onlookers, or at one of the nearby h o u s e s . At least Haradoeb h a d a vehicle there a n d could possibly have t a k e n Swartz to seek for assistance.

Swartz explained t h a t he did not

know Haradoeb t h a t well a n d did not now anyone else there, except his brother. He took w h a t he t h o u g h t was the quickest route t h r o u g h the river bed a n d walked, r a n a n d jogged to Karon's h o u s e where he j u m p e d over the fence. There w a s some light a n d he could see, although he did acknowledge t h a t the route he took w a s not easy a n d without obstacles. It m a y be t h a t a person who was thinking clearly a n d calmly might r a t h e r have chosen to take the route along the road a n d over the bridge, b u t I bear in mind the evidence t h a t Swartz w a s shocked, confused and concerned a b o u t his wife, which is reasonable a n d probable in the c i r c u m s t a n c e s . It s e e m s n a t u r a l t h a t a person in Swartz' position would prefer to seek help from a relative close by. He is supported, as I already pointed out, by Engelbrecht a b o u t w h a t occurred at Karon's h o u s e . This lends s u p p o r t to his story t h a t he left to seek assistance.

38

It does seem strange t h a t Swartz missed the r e t u r n of h i s brother, as well as N u n u h e b ' s visit to Karon's h o u s e a n d t h a t he r e t u r n e d to the scene after everyone h a d left. He explains this by saying t h a t he went to look for a taxi, which he found nearby at the corner of t h e street at a big h o u s e . During cross-examination Mr Geier for defendant confirmed t h a t there is indeed s u c h a place which is also a b u s i n e s s place at the corner of the street in which Karon lives. Swartz said t h a t he also h a d to wait for the taxi driver to fetch a bag in the h o u s e a n d close t h e gates. This took time. They t h e n drove b a c k to the scene.

It a p p e a r s to me t h a t Swartz w a s j u s t unfortunate in t h a t he missed his brother a n d N u n u h e b . He says he did not see t h e m . It is not unlikely t h a t Karon r e t u r n e d soon after Swartz h a d left, as he w a s expected home a n y m i n u t e . In fact,

N u n u h e b found him there shortly afterwards.

F u r t h e r m o r e , from exhibit "K", a street m a p h a n d e d in it is clear t h a t there is more t h a n one route t h a t a vehicle could take from the scene to Karon's h o u s e . It is not improbable t h a t Karon a n d N u n u h e b h a d taken a different route to t h a t t a k e n by Swartz. It seems to me t h a t were it not for the allegation t h a t Swartz was u n d e r the influence no-one would have t h o u g h t it strange t h a t he left the scene to look for a s s i s t a n c e or t h a t he missed his brother or N u n u h e b on the way back. In the absence of any

39

credible

evidence

that

he

was

indeed

under

the

influence,

the

probabilities favour Swartz' version t h a t he left the scene for an innocent purpose.

In coming to t h i s conclusion I m u s t also mention t h a t Swartz made a good impression on me when he testified. In addition I do not think t h a t t h e fact t h a t t h e s e a s p e c t s were not fully dealt with in his warning s t a t e m e n t is of great import, as there is clear evidence t h a t the reason for h i s a b s e n c e w a s already conveyed to N u n u h e b on the night of the collision. As far as N u n u h e b is concerned it is clear t h a t he m u s t be m i s t a k e n t h a t H a r a s e b h a d told him t h a t Swartz was warned not to leave the scene. None of the police officers have given s u c h evidence. It seems to me t h a t it is not improbable that the general impression arose at the scene t h a t Swartz h a d fled, p e r h a p s also b e c a u s e he was at least some of the time jogging or r u n n i n g . He only told Clemens t h a t his purpose in leaving was innocent. To others observing him it probably looked as if he w a s fleeing or even hiding in the river bed. It is not improbable t h a t this impression could have led to a suspicion t h a t he was u n d e r the influence a n d h a d to m a k e a getaway.

I now t u r n to the evidence by the defendant's witnesses in more detail a n d will then deal with the first and last two factual questions posed above. The evidence by the witness Serogwe in essence a m o u n t e d to the

40

following.

He

had

two

passengers

with

him

in

the

front

of the

T r a n s n a m i b p i c k - u p . The two were O u b a a s Makkies a n d Don. He picked t h e m up at Ella Bakhela's h o u s e a b o u t 5 0 0 - 6 0 0 m e t r e s away from the intersection in M u n g u n d a Street. Her h o u s e is at Erf 9 5 3 3 . Ella testified t h a t the intersection c a n be seen from outside her h o u s e . Serogwe was in a h u r r y as he w a s b u s y investigating a m a t t e r of stolen property which was kept at a certain h o u s e . He needed Don to point out the h o u s e to him. Why Makkies went along is not quite clear. Serogwe said t h a t he drove a b o u t 80 kph. He first said t h a t when he got onto M u n g u n d a Street at Ella's h o u s e the robot was already green for him. He drove towards t h e intersection a n d before the crossing he h e a r d a bang or a knock. He t h e n said "the time t h a t I j u s t reached the crossing that's when I h e a r d a k n o c k or a hit on my right h a n d side." He pointed out a point on photo D(12) which coincides with the place which N u n u h e b indicated on t h e sketch plan as the point of impact. It is clear t h a t Serogwe did not see plaintiffs vehicle at all before or during the collision, b u t only after he h a d come to a standstill a n d he got out of his own vehicle. When he h e a r d the knock he swerved right a n d came to a standstill

off the

road

down

in

the

riverbed.

(His

description

is

misleading. From the point pointed out it is clear t h a t it was not actually in the riverbed, b u t higher up on the b a n k s of the incline towards the river.)

41

As the driver's door h a d already been damaged before a n d could not open, both he a n d his two p a s s e n g e r s got out on the p a s s e n g e r side. He t h e n moved a r o u n d his vehicle and saw Swartz' vehicle next to his. (Again Sergowe's description is not accurate, as Swartz' vehicle was at point A on exhibit A l , a b o u t 18 paces away from Serogwe's vehicle.)

Contrary to w h a t everyone else said, Serogwe testified t h a t the police were there within s e c o n d s a n d t h a t the drivers were instructed not to move. Much later he said t h a t they arrived 30 - 40 m i n u t e s later. Later they were called to give a b r e a t h specimen for alcohol, which evidence is likewise not s u p p o r t e d by any other witness. T h a t is w h e n N u n u h e b allegedly told Swartz to r u n away, which evidence I have already rejected. Swartz then r a n a n d the police were searching for him. N u n u h e b then said t h a t he could report at the police station at 8:00. This he did, but N u n u h e b w a s not there. He returned on 27 December w h e n the warning s t a t e m e n t w a s taken. Later he stated t h a t he actually met N u n u h e b on 26 December a n d signed a blank warning statement.

According to Serogwe, O u b a a s Makkies disappeared from the scene, that is why no s t a t e m e n t w a s eventually taken from him. The obvious place to have looked for him w a s at Ella Bakhela's h o u s e where he found Makkies. There is no evidence t h a t this was done. It is clear though t h a t he never mentioned to the police or in any of his s t a t e m e n t s that

42

Makkies w a s t h e one passenger. He only mentioned a person by the n a m e of Deon, who he later said w a s Don. N u n u h e b confirms t h a t Serogwe h a d m e n t i o n e d t h a t there w a s a p a s s e n g e r by the n a m e Deon. Much time w a s s p e n t on the issue of w h e t h e r Serogwe tried to bring Deon a n d N u n u h e b together for a s t a t e m e n t to be t a k e n a n d whether N u n u h e b failed to do his d u t y in this regard. The initial stance taken in plaintiffs case w a s t h a t Serogwe was alone in the vehicle, b u t later it was conceded after Oscarine a n d Ella testified t h a t Don a n d Makkies may have been in t h e vehicle at the time of the collision.

There are however, a s p e c t s of Makkies' evidence t h a t concern me. He first, like Serogwe said t h a t the light w a s green when they drove off from Ella's House, b u t t h e n he changed his evidence a n d said t h a t he saw the light t u r n i n g green a b o u t 16 paces before they entered the intersection. Serogwe also c h a n g e d his evidence in cross-examination to say the light turned

green

when

they

were

about

50

metres

away

from

the

intersection. Makkies j u s t h e a r d the s o u n d of the collision a n d did not see Swartz' vehicle. Immediately after the accident he saw Swartz get out of his car a n d r u n away.

Makkies said t h a t he stayed at the scene for

a b o u t 30 m i n u t e s a n d then went to Ella's home a n d told her a n d Oscarine t h a t they h a d been involved in an accident.

Strangely, he did

not tell t h e m w h a t h a p p e n e d a n d on their own testimony, they did not a s k him w h a t h a p p e n e d . They were only concerned a b o u t Don, who was,

43

according to Makkies, u n h a r m e d . Makkies also testified t h a t the police searched for t h e other driver and even fired s h o t s

in the process. There

w a s no s u c h evidence by anyone else. This m u s t be a clear fabrication. The witness H a r a s e b who arrived by c h a n c e at the scene testified t h a t he w a s dressed in a blue uniform a n d accompanied by a driver in a camouflage uniform. They looked for Swarz in the river bed, b u t did not state t h a t they fired s h o t s .

Although Makkies a p p e a r e d truthful in the witness box a b o u t his criminal record a n d t h e general impression he conveyed was one of honesty, it w a s clear t h a t he is not youthful anymore. He was slow to r e s p o n d to q u e s t i o n s a n d in his m a n n e r of speaking. I did not get the impression t h a t he w a s quick in his reactions or particularly responsive. Bearing in m i n d in his favour t h a t the accident occurred a considerable time before h i s testimony, I m u s t nevertheless say t h a t I would not be surprised if he were not particularly observant. His testimony t h a t Swartz r a n away immediately tends to confirm this impression. What is more, he did n o t even tell the women at h o m e w h a t h a d occurred, as one would have expected, namely that a n o t h e r vehicle disobeyed the red light. This m u s t surely have been something noteworthy to say in the c i r c u m s t a n c e s . According to him he also did not speak to Serogwe at the scene, which also seems strange. I have my d o u b t s t h a t he even discussed the m a t t e r with Serogwe later, as he was never mentioned as a

44

witness who could testify t h a t Serogwe was in the right a n d Swartz in the wrong. It w a s only after Don died t h a t his n a m e came to the fore. If he did d i s c u s s it, it would r a t h e r seem t h a t he probably could not assist Serogwe. If he could assist, I find it very improbable t h a t he j u s t left the scene without m a k i n g himself available as a witness.

For the reasons

already mentioned, I am not inclined to rely on his evidence as to the colour of the traffic light.

Serogwe's evidence was most unsatisfactory. Counsel for t h e defendant conceded mildly t h a t he was not the best witness a n d t h a t his evidence should be treated with caution. I do not propose to deal with the c o u n t l e s s i n s t a n c e s where he clearly contradicted himself, adjusted his evidence to cast himself in a better light, blamed others for h i s mistakes, gave s p u r i o u s a n s w e r s a n d even fabricated evidence. I have already referred to some aspects in regard to exhibit B7 a n d the warning s t a t e m e n t . At times he seemed not to know the difference between lies a n d the t r u t h . Apart from this he was distinctly hostile, arrogant and rude

in

the

witness

box while

being

cross-examined.

The

Court

repeatedly h a d to w a r n him to listen to the questions a n d to answer them. W h a t is clear is t h a t his evidence on material i s s u e s c a n n o t be relied u p o n in the absence of corroboration. In the light of my findings on the evidence given by Makkies I am driven to the conclusion t h a t there is no s u p p o r t for Serogwe's version t h a t the traffic lights were green for

45

him. I am fortified in this conclusion by the evidence of Swartz, Clemens a n d Haradoeb t h a t Swartz a n d Clemens immediately after the collision went to Serogwe a n d confronted him a b o u t his driving. Swarz says he was angry a b o u t t h e m a n n e r in which Serogwe drove. Haradoeb h a d the impression t h a t t h e r e w a s an argument. This reaction by Swarz would be a n a t u r a l reaction by an innocent driver towards the offending driver. In addition Serogwe held his h e a d a n d apologized.

Apart from this Serogwe on his own version drove at 80 k p h at night in an a r e a where the speed limit is 60 kph. He did not keep a proper look out or enter the intersection with the necessary care expected from a reasonable driver in t h e circumstances. In the intersection he did not even see plaintiffs vehicle until after the collision a n d they h a d come to a stop. He only swerved to the left after his vehicle h a d been hit. It is clear t h a t Serogwe was negligent a n d caused the accident. In the result the plaintiff h a s proved her claim against the defendant.

As far as the driving by Harenz Swartz is concerned, I can find no basis u p o n which it can be said t h a t he was negligent on any of the grounds alleged by the defendant a n d point out t h a t the general description of the damage to his vehicle s u p p o r t s his version t h a t he swerved to the right. The claim against him as third party m u s t fail.

46

In the result I m a k e t h e following order:

1.

In respect of plaintiffs claim against the defendant j u d g m e n t is granted for t h e plaintiff for:

1.1

P a y m e n t of the a m o u n t of N$4, 7 1 3 , 232-00.

1.2

Interest on the aforesaid a m o u n t at the rate of 20% per a n n u m calculated from 14 days after the date of j u d g m e n t to date of payment.

1.3

2.

Costs of suit.

In respect of defendant's claim against the third party the claim for declaratory relief is dismissed with costs.

VAN NIEKERK, J

47

APPEARANCE FOR PARTIES:

PLAINTIFF AND THIRD PARTY:

Adv L C Muller SC Instructed by: Van der Merwe-Greeff Inc

DEFENDANT:

Adv H Geier Instructed by M u r o r u a & Associates