REPUBLIC OF NAMIBIA
HIGH COURT OF NAMIBIA NORTHERN LOCAL DIVISION, OSHAKATI
JUDGMENT
Case no: HC-NLD-CIV-ACT-DEL-2020/00224
In the matter between:
HOSEA SAKARIA 1ST PLAINTIFF
ABISAI NATANGWE LOTENI 2ND PLAINTIFF
and
EMMANUEL MUYALE DEFENDANT
Neutral citation: Sakaria v Muyale (HC-NLD-CIV-ACT-DEL-2020/00224) [2025] NAHCNLD 16 (07 February 2025)
Coram: MUNSU J
Heard: 10 October 2024
Delivered: 06 February 2025
Reasons: 07 February 2025
Flynote: Law of Delict – Motor vehicle collision – Parties alleging negligence – Onus on each party to prove what it alleges.
Summary: A collision occurred between the plaintiffs’ and the defendant’s motor vehicle. The drivers were travelling in opposed directions. The parties attributed negligence on the part of the other as the sole cause of the collision.
Held, that there was no credible evidence regarding the speed at which both vehicles were travelling. Thus, the court had to rely on proven and objective facts.
Held, that the defendant had swerved his motor vehicle into the lane for oncoming traffic and, at the time of the collision, he was on the wrong side of the road facing the wrong direction.
Held, that the defendant failed to keep a proper lookout, otherwise he would have seen the plaintiffs’ motor vehicle approaching.
Held, that the value of the plaintiffs’ motor vehicle immediately prior to the collision was not provided. Thus, the court was unable to determine the difference between the pre-collision and the post-collision value.
______________________________________________________________________
ORDER
______________________________________________________________________
The Defendant’s negligence was the cause of the collision between the black Nissan Note motor vehicle with registration N 10922 UP and the red GWM Steed 5 pick-up with registration number N 8809 UP.
With respect to the quantum of damages, the Court absolves the Defendant from the instance.
The Defendant must pay the Plaintiffs’ costs of suit.
The Defendant’s counterclaim is dismissed.
The matter is removed from the roll and is regarded as finalised.
______________________________________________________________________
JUDGMENT
______________________________________________________________________
MUNSU J
Introduction
[1] The plaintiffs instituted action against the defendant for damages arising from a motor vehicle collision.
[2] The first plaintiff is Mr Hosea Sakaria an adult Namibian male. He is the lawful owner of a black Nissan Note bearing registration number N10922UP, one of the vehicles that was involved in the collision.
[3] The second defendant is Mr Abisai Natangwe Loteni, an adult Namibian male. He was employed by the first plaintiff as a taxi driver, and was the driver of the Nissan Note on the day of the collision. For ease of reference, I will refer to him in this judgment as the taxi driver.
[4] The defendant is Mr Emmanuel Muyale, an adult Namibian male. He is the owner of a red GWM Steed 5 pick-up bearing registration number N8809UP, which was involved in the collision with the Nissan Note.
The facts
[5] On 07 March 2020, and on the main road between Outapi and Ruacana, a motor vehicle collision occurred between the first plaintiff’s Nissan Note, there and then being driven by the taxi driver, and the defendant’s GWM pick up motor vehicle, there and then being driven by the defendant.
[6] The parties attributed negligence on the part of the other as the sole cause of the collision. The plaintiffs claimed in their particulars of claim that the defendant was negligent in that he failed to keep a proper lookout; he failed to apply his brakes timeously or at all; he entered a lane of on-coming traffic when it was unsafe and inopportune to do so; he failed to have regard for oncoming traffic; and that he failed to avoid the collision when in the exercise of reasonable care he could have or should have done so.
[7] The defendant, not only denied the plaintiffs’ allegations, but also filed a counterclaim in which he alleged that the taxi driver was negligent in that he failed to keep a lookout; he failed to stop his motor vehicle or apply his brakes timeously or at all; he failed to avoid the collision when in the exercise of reasonable care he could have; and that he was driving at a speed prohibited on the gravel road and collided into the defendant’s motor vehicle which was driving at a slow speed.
The plaintiffs’ evidence
[8] It was not disputed that the first plaintiff is the owner of the Nissan Note motor vehicle. He testified that on 07 May 2020, at around 19h15, he received a phone call from the taxi driver, who informed him that he was involved in a collision. He testified that the taxi driver informed him that he veered off the road because the defendant who was travelling from the opposed direction was fast approaching on his lane of travel, and that there was no way to avoid him but to veer off the road.
[9] It was his testimony that he contacted Shaduka Trading CC, a towing company, to have his motor vehicle towed to the garage for assessment of the damages. He recounted that the damages occasioned to the motor vehicle amounted to N$ 87, 930.15, which was more than its purchasing price of N$ 47 000. For that reason, he demanded payment of N$ 47 000 from the defendant as he felt that the amount of N$ 87, 930.15 would not be fair and reasonable.
[10] The taxi driver testified that on 07 May 2020 he was acting in the scope and authority of his employment with the first plaintiff. He related that he was driving from Ruacana to Outapi, and on the way he picked up a passenger, one Martha Shaanika. He stated that towards Onamaunda Bridge, he came across four oncoming motor vehicles.
[11] He continued by saying that, out of nowhere, he saw the fourth motor vehicle, being the defendant's, attempting to overtake the three motor vehicles in front of it. He added that since the defendant was fast approaching on his (taxi driver’s) lane and was not slowing down, he veered off the road and promptly engaged the brakes to prevent a head-on collision. Additionally, he stated that the defendant also swerved his motor vehicle off the road into his direction resulting in a collision.
[12] According to the witness, the defendant failed to apply brakes timeously, and failed to avoid the collision when in the exercise of reasonable care he could have done so. The witness refuted the defendant’s claim that there was an animal on the road.
[13] Martha Shaanika was a passenger in the Nissan Note which was being driven by the taxi driver. She related that she met the taxi driver for the first time on the fateful date after she stopped him. She testified that as they were approaching the bridge, she saw the defendant’s motor vehicle swerve onto the taxi driver’s lane in an attempt to overtake three vehicles. She further narrated that the defendant’s motor vehicle was approaching very fast without stopping or getting off the road, which prompted the taxi driver to veer off the road to allow the defendant’s motor vehicle to pass in order to prevent a head-on collision.
[14] The witness recounted that while the Nissan Note was at standstill on the side of the road, the defendant’s motor vehicle swerved off the road and collided with the Nissan Note. She became unconscious and was taken to the hospital.
[15] The plaintiffs called Emmanuel Muyale, an assessor, quote estimator and tow-inn assistant at Shaduka Trading CC. He has eight years’ experience. He testified that upon inspecting the first plaintiff’s motor vehicle, he determined that the damages suffered by the plaintiff was a total amount of N$ 87 930.15, comprising of the following amounts: N$ 68 811.00 as fair and reasonable costs for the supply of parts, N$ 7 650.00 as fair and reasonable costs for repairing the vehicle, and N$ 11 469.15 for V.A.T.
The defendant’s evidence
[16] The defendant testified that on the aforesaid date he was transporting bricks to his village. While he was approaching the bridge, a donkey suddenly jumped into the road. He immediately applied brakes and swerved his vehicle towards the right in order to avoid bumping the donkey. He recounted that the donkey also ran into his direction and got hit by the left front part of the motor vehicle. As a result of the impact, the left mirror broke off.
[17] The defendant further testified that there was a big tree on the left side of the road, and since there was no oncoming traffic, he felt that the safest option was to bring the motor vehicle to a standstill on the right side of the gravel road. According to him, he safely turned to the right side of the road but before his motor vehicle came to a standstill, the Nissan Note motor vehicle came speeding from the front and crashed on the left side of his motor vehicle.
[18] It was his testimony that on 23 September 2020, he approached Alexander and Melissa Trading CC, an auto repair workshop to inspect his motor vehicle and provide him with a quotation. He went on to say that he was informed that his motor vehicle was damaged beyond economic repair, with the damages totaling N$ 172 000.
[19] Shatiwa Benjamin testified that he was assisting the defendant to transport bricks to his village. He was seated at the loading box on top of the bricks. He testified that towards the bridge, a donkey jumped into the road, causing the defendant to swerve the motor vehicle to the right side of the road in order to avoid bumping the donkey. He continued to say that the donkey ran into the direction of the defendant’s vehicle and got hit by the motor vehicle’s left mirror.
[20] He went on to say that it was dangerous for the defendant to get off the road on the left side as there was a huge tree, so the defendant swerved to the right because there was no oncoming traffic or any obstacle. The witness testified that, just as the defendant was about to bring the motor vehicle to a standstill on the side of the road, he saw the Nissan Note approaching from the front at a high speed and bumped into the defendant’s motor vehicle. The witness’s testimony was corroborated by that of Shihova Thomas who was seated at the front passenger seat of the defendant’s motor vehicle.
[21] Alexander Serfontein testified as an expert in auto motor repairs and restoration services. He narrated that he assessed the damages on the defendant’s motor vehicle, and in his opinion it was damaged beyond economic repair, with the cost of repair amounting to N$ 172,500.00.
The issues
[22] In terms of the pre-trial order, this court is called upon to determine which of the parties caused the collision. Also, the court has to resolve the issue of quantum of damages.
Submissions by the parties
[23] The plaintiffs reiterated their case that the defendant was the cause of the collision in that he had swerved onto the taxi driver’s lane, prompting the latter to veer of the road in order to avoid a head-on-collision. In the process, the defendant swerved off the road to the direction of the taxi driver resulting in the collision. Counsel for the plaintiffs further pointed out the multiple times the defendant and his witnesses changed their evidence.
[24] Additionally, it was submitted that there was no evidence to show that there was a donkey on the road as claimed by the defendant and his witnesses. Counsel further argued that the broken pieces of the left mirror of the defendant’s motor vehicle remained a mystery. He contended that the plaintiffs’ version of the events was more probable.
[25] On the other hand, counsel for the defendant pointed out that the plaintiffs failed to allege in their particulars of claim that the defendant was overtaking and speeding. That they only did so in their plea to the defendant’s counterclaim. It was further submitted that there was no credible evidence regarding the speed at which the defendant was driving. Counsel further argued that the defendant was not overtaking nor was he speeding because his motor vehicle was fully loaded with bricks.
[26] It was further contended that the plaintiffs evidence was not in line with the accident report regarding the time of the collision, and whether at the time of the collision the taxi driver’s motor vehicle was at standstill. It was also pointed out that the taxi driver and his passenger differed on whether the defendant managed to overtake any of the three motor vehicles. The taxi driver testified that he never passed any of the three cars, while the passenger claimed that he was able to pass two.
[27] Furthermore, counsel argued that if the taxi driver’s testimony was anything to go by, he would not have been able to reduce his speed, get off the road, and bring his vehicle to a stop before the incident. His passenger would also have jumped of the taxi before the collision, so it was submitted. He went on to say that if the taxi driver had not been speeding, his passenger would not have struck herself on the dashboard.
[28] It was counsel’s submission that the taxi driver’s passenger was not truthful as she went on to testify about events that transpired when she claimed to have been unconscious.
[29] In addition, it was submitted that the plaintiffs failed to prove the extent of their damages, in that there was no prima facie evidence of the pre-collision value of the motor vehicle, and its value after the collision.
Discussion
[30] Nothing turns on the issue of the plaintiffs’ failure to allege in their particulars of claim that the defendant was overtaking and speeding. Among the allegations made in the particulars of claim was that the defendant had entered the lane for on-coming traffic when it was unsafe and inopportune to do so. They also claimed that the defendant failed to have regard for oncoming traffic. In their plea to the counter claim, the plaintiffs pleaded that the defendant was attempting to overtake three motor vehicles. Thus, at pleading stage, the defendant was aware of the case he had to meet.
[31] Counsel for the plaintiffs criticised the defendant and his witnesses for changing their evidence several times. However, it should be noted that most of the changes counsel referred to were corrections made to the witness statements at the time of reading same into the record. The statements were not made under oath and only became evidence once the content was confirmed under oath. Thus, the corrections which were made prior to the content of the statements being confirmed under oath cannot be regarded as evidence.
[32] Given that the defendant also filed a claim in reconvention, both the plaintiffs and the defendant bear the onus to prove on a balance of probabilities the negligent conduct attributed to the other.
[33] In a case as the present one:
'(The plaintiff) 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 plaintiff's 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 plaintiff's 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.'1
[34] The parties pointed out what they perceived as inconsistencies in the other party’s case. However, the majority of the issues counsel placed emphasis on were immaterial to the determination of the matter.
[35] Although the collision seems to have occurred after 19h00, the parties agreed that it was not yet dark at the time it happened. I found the plaintiffs’ case to have been credible and straightforward. It was that the taxi driver saw the defendant’s oncoming vehicle encroach into his lane, causing him to veer off the road in order to avoid a head-on collision, however, the defendant swerved in the direction of the taxi driver resulting in the collision.
[36] Besides the defendant’s alleged speeding by the taxi driver, there was no other reason provided why the taxi driver who was travelling on the correct lane had to veer off the road. The case by the defendant against the plaintiffs’ was built on the premise that the taxi driver had been speeding. There was no credible evidence regarding the speed at which both vehicles were travelling. Thus, the court has to rely on proven and objective facts. The taxi driver refuted the allegation that he was speeding. His entire evidence was unshaken.
[37] In the present matter, the defendant swerved his motor vehicle into the lane for oncoming traffic. At the time of the collision, he was on the wrong side of the road facing the wrong direction. Thus, the defendant’s explanation became crucial.
[38] It was not the defendant’s case that he was faced with a sudden emergency. His case was that in order to avoid the donkey, he had to swerve to the lane for oncoming traffic with a view to go and park by the roadside. The reason he gave for swerving to the lane for oncoming traffic was that it was safe for him to do so because there was no oncoming traffic. However, before he could even come to a standstill, the taxi driver’s motor vehicle (that was travelling from the opposed direction) crashed into his motor vehicle. So, even on his version it follows that he failed to keep a proper lookout, otherwise he would have seen the motor vehicle driven by the taxi driver. He would still have been able to see the said motor vehicle even if it was to be accepted that it was speeding. It was common cause that the vehicles were travelling on a high way.
[39] The defendant’s case was marred with ambiguities. During cross-examination of the taxi driver, the following exchanges took place between him and counsel for the defendant:
Q: Yes that is correct and I put it to you that the Defendant as he was approaching the bridge a donkey moved into the road from between where the bridge ends and the tree nearby in between there a donkey moved onto the road as he was trying to avoid that donkey going too far to the far right he hit the donkey and the left mirror broke off and then he pull off to the road. You coming from the front speeding when you saw that that there is a collision there that there is an accident him having bumped a donkey you panicked you pulled off from the road until you hit him. Where he was pulling off that is how you hit him?2
A: No My Lord that is not correct it is not true My Lord if I was the one driving fast My Lord Defendant is the one who panicked My Lord because I slowed down and then he is the one who then panicked and then veered off the road and then followed me and collided with me while I already pulled over.3
Q: And I am putting it to you that you failed to apply your breaks where else you have seen that Defendant have hit a donkey and then veered off from the road you failed to apply your brakes to avoid hitting against the vehicle of the Defendant?4
A: I did not fail to apply breaks My Lord he collided me while I was at standstill My Lord.5
A similar question was posed to Martha Shaanika:
Q: Okay the first thing is that the very first thing is that the Defendants vehicle was the first to pull off from the road after he hit a donkey at the bridge he pulled off and Loteni panicked when he saw the Defendant pulling off from the road hitting a donkey and he come and hit he was speeding he come and hit the vehicle of the Defendant do you understand that. Do you understand that?6
A: Is it the Defendant.
Q: The Defendant yes, the Defendant bumped a donkey?
A: It is not true My Lord there were no animals on the road.
[40] The above questions presuppose, first, that the defendant’s motor vehicle had pulled over on the side of the road and the taxi driver crashed into him. Second, the taxi driver saw the alleged accident involving the defendant and the donkey. If this is true, the defendant cannot be heard to say that there was no oncoming traffic.
[41] But there is a further problem: The donkey must still have been on the road, hence the taxi driver swerving off the road and colliding with the defendant. If this was not the case, there was no explanation why the taxi driver would have driven off a clear road into the defendant who was not on the road. It happens frequently that motorists would find traffic alongside the road, or even turning, but would simply proceed without being triggered to drive off the road.
[42] The vagueness in the defendant’s case was further compounded by the questions posed by counsel for the defendant to the first plaintiff, Mr Sakaria:7
Q: Okay and if he told you that he was avoiding a donkey and he pull off from the road and he was bumped by Mr Loteni why did you not sue both of them?
A: I could not sue the 2nd Plaintiff My Lord because according to Defendant his version is that he was avoiding to bump a donkey or he hit a donkey with his mirror but on the road where he is alleging to have hit the donkey with the mirror there was no mirrors on the road or broken or pieces of broken mirrors on the road My Lord. And further that My Lord my car indicates or shows or clearly shows that it was the one which was collided with it was hit. Because the damage were only on one side of the road.
Q: Okay thank you Mr Sakaria in your evidence you said you were called by the 2nd Defendant to the scene is that correct?
A: Correct.
Q: It is also correct that you arrived only thereafter and when you arrived at the scene you said you did not find the Defendants vehicle there is that correct?
A: Correct.
Q: If you did not find his car there why do you expect to find a mirror there?
A: If the car hit the donkey My Lord the pieces should be on the road My Lord.
Q: Okay I am putting it to you that that is not correct because it is a mirror that break off and the whole vehicle was taken away with all its pieces that is why you did not find anything there do you have a comment on that?
A: No I do not agree with that My Lord…Because at the place where the collision the actual collision happened My Lord all the pieces were there My Lord.
Q: Okay and I am putting it to you that the donkeys even that were there by the time you arrived they have only moved on there everything have been removed?
COURT: Sorry, sorry I did not hear the question repeat your question for me.
Q: Even by the time that you arrived because you arrived later over an hour after the collision everything was removed even the donkeys that were in the road amongst which one of the donkeys were bumped by the Defendant were already removed?
A: It is not possible My Lord that a donkey is hit and then it is removed who could have removed that donkey My Lord and also at the place where the collision happened there were some pieces My Lord why were they not removed then.
Q: Okay thank you that is a very good answer, and I want to put it to you that do you know that the donkey was hit with a mirror it did not die, it moved on do you understand that. And you arrived over an hour later that is why you did not find the Defendants vehicle there and you confirm that it is true. You also did not find the person who was injured, you only find Mr Loteni and the Defendant and the traffics that were almost done.
A: If the donkey was indeed hit My Lord by this vehicle by Defendants vehicle at that speed My Lord is it possible for it not or to survive My Lord. And if it was indeed hit with a mirror a mirror is something that smashes My Lord so if it was hit with a mirror there must be pieces of that mirrors on the road.
Q: Okay I want to put it to you that by the time that you arrived there everything was already covered up that you did not find anything there?
[43] If the donkey that was bumped by the defendant ‘moved on’, one assumes that the road was clear because the defendant was on the side of the road. It begs the question why the taxi driver would have driven off a clear road into the defendant’s vehicle. This supports the plaintiffs’ case that the defendant was overtaking, and fearing a head-on collision, the taxi driver veered off the road, which the defendant similarly did. As to who removed the broken mirror from the road remained a mystery, considering the fact that the pieces of the wrecks were still at the scene. The defendant did not inform the court if he had shown the traffic officers who attended to the scene the point where the donkey was bumped. So, as the matter progressed, the issue of the donkey became more unclear. The plaintiffs’ witnesses were clear that there were no donkeys on the road.
[44] As pointed out earlier, the defendant was on the wrong side of the road facing the wrong direction. He bore the onus, under the circumstances where he was accused of having caused the accident to show that he was not in the wrong. He did not manage to do so. The court accepts the plaintiffs’ version as more probable and supported by objective facts. It is for this reason that the court had declined to absolve the defendant at the close of the plaintiffs’ case.
[45] In terms of the pre-trial order, one of the issues for determination is ‘whether the defendant is liable for the damages occasioned on the plaintiffs’ motor vehicle’. Although not stated clearly, I am satisfied that the parties placed the quantum of damages in dispute.
[46] The evidence before the court was that the plaintiffs’ motor vehicle was damaged beyond economic repair. In Western Administration Services (Pty) Ltd v Shifotoka8 the court had the following to say:
‘Evidence of the estimated cost of repairs would, however, not be an appropriate yardstick by which to measure the diminution in value as a result of the damage if the evidence clearly shows that in an economic sense the vehicle is damaged beyond repair - in other words, that the cost of restoring the vehicle to its pre-collision condition would be in excess of the difference between its pre-collision and post-collision values.’
[47] In Dentry v Voights9 the court held that the pre-collision and post-collision values of a vehicle are important in determining the quantum of damages suffered where a vehicle is said to have been damaged beyond economic repair.10
[48] The first plaintiff’s loss would thus be the difference between the pre-collision and post-collision value of the Nissan Note. The value of the Nissan Note immediately prior to the collision was not provided. The first plaintiff merely provided evidence of the amount he purchased the vehicle in June 2019. He had placed on record that it was a 2010 second hand model. The collision took place almost a year after he purchased the motor vehicle. Thus, the court is unable to determine the difference between the pre-collision value immediately prior to the collision and the post-collision value. Accordingly, the defendant must be absolved as regards the claim for the quantum of damages suffered by the first plaintiff.
Costs
[49] The plaintiffs have been substantially successful. In the exercise of my discretion, I find it appropriate to order the defendant to pay the plaintiffs’ costs.
The order:
[50] For these reasons, I make the following order:
The Defendant’s negligence was the cause of the collision between the black Nissan Note motor vehicle with registration N 10922 UP and the red GWM Steed 5 pick-up with registration number N 8809 UP.
With respect to the quantum of damages, the Court absolves the Defendant from the instance.
The Defendant’s counterclaim is dismissed.
The Defendant must pay the Plaintiffs’ costs of suit.
The matter is removed from the roll and is regarded as finalised.
________________
D C MUNSU
JUDGE
APPEARANCES
PLAINTIFFS: GK Japhet
Of Kangumu Attorneys
Outapi.
DEFENDANT: JL Matheus
Of Slogan Matheus & Associates Inc.
Ongwediva.
1 National Employers’ General Insurance Co Ltd v Jagers 1984 (4) SA 437 (ECD).
2 Page 76-77 para 30 – 10 of the record of proceedings dated 14 September 2022.
3 Ibid.
4 Page 78 para 10-20 of the record of proceedings dated 14 September 2022.
5 Ibid.
6 Page 132 of the record of proceedings.
7 Reference herein is made to pages 156-157 of the record of proceedings dated 16 September 2022.
8 Western Administration Services (Pty) Ltd v Shifotoka (HC-MD-CIV-ACT-OTH-2018/00470) [2019] NAHCMD 103 (16 April 2019).
9 Dentry v Voights (HC-MD-CIV-ACT-DEL-2021/00916) [2022] NAHCMD 446 (31 August 2022).
10 See Sheehama v Nehunga 2021 (2) NR 349 (SC).
Cited documents 1
Judgment 1
| 1. | Western Administration Services (Pty) Ltd and Another v Shifotoka (HC-MD-CIV-ACT-DEL 2447 of 2017) [2019] NAHCMD 103 (16 April 2019) | 2 citations |