REPUBLIC OF NAMIBIA
HIGH COURT OF NAMIBIA
MAIN DIVISION, WINDHOEK
Case no: I 1019 /2012
In the matter between:
J D W GERBER
MINISTER OF DEFENCE
S W NEKUNDI
Gerber v Minister of Defence and Another (I 1019/2012)
 NAHCMD 250 (23 AUGUST 2013)
Coram: UEITELE, J
Heard: 28 January 2013
Delivered: 23 August 2013
- What constitutes - Requirement
that motorist must keep proper look-out - Such requirement being that
motorist must scan road in all directions in order to anticipate and
thus avoid imminent danger.
The plaintiff claims
damages occasioned to his motor vehicle in a road collision that
occurred on 27 October 2011 in Post Street, Tsumeb. The plaintiff
only called one witness whose evidence was to the effect that the day
in question she was travelling from the westerly direction to the
easterly direction at a speed of approximately 40 km per hour. She
testified that her attention was fully focused on the road especially
for the pedestrians crossing the road and for those vehicles that
were parked on both sides of the road, and that as she was travelling
she just ‘suddenly heard a bump on her vehicle.’
The second defendant, who
was the driver of the vehicle which was involved in the collision
with the plaintiff’s vehicle, testified on behalf of the first
defendant, his testimony was that on the day in question (ie the 27th
day of October 2011) he reversed his vehicle out of a parallel
parking into Post Street. He testified that he checked to his right,
there was no vehicle on the road, to his left over the vehicles
parked next to his vehicle and there was no vehicle on the road and
also in his rear view mirror and there was no vehicle on the road, it
is only after that that he moved his vehicle out of the parking bay.
As he moved out of the parking bay the vehicle he was driving and the
vehicle driven by Ms. Gerber collided in the middle of the road.
Held that there is
no general rule that a person is entitled to act on an assumption
that every driver of a motor-car will always act reasonably and
diligently. A reasonable man will base his conduct on the knowledge
that drivers of motor-cars are not infrequently guilty of certain
classes of negligence or breaches of by-laws.
Held further that
a proper look-out entails a continuous scanning of the road ahead,
from side to side, for obstructions or potential obstructions
sometimes called "a general look-out.'' It was found that the
driver of the plaintiff’s vehicle did not observe the vehicle
being driven by second defendant pulling out of the parking bay, she
did not observe that vehicle’s reversed lights she only
‘suddenly heard a bump on her vehicle.’
Held further that
Ms. Gerber (the driver of the plaintiff’s vehicle) was
negligent, she was not entitled to drive as if she was wearing
blinkers but should have had regard, not only to the street itself,
but also to its immediate environs. She advanced no reasons why she
became aware of the second defendant’s vehicle for the first
time when it had already collided with her vehicle or why she could
not have become aware of it earlier.
Absolution from the
instance is granted with costs.
 In this action
plaintiff claims damages in the sum of N$33 002-74 plus interest on
that amount. The plaintiff’s claim is in respect of damages
occasioned to his motor vehicle in a road collision that occurred on
27 October 2011 in Post Street, Tsumeb.
 The plaintiff's motor
vehicle, a 1.6 Ford Focus Ambiente, Registration Number N 132 T, was
at the time of the collision driven by a Miss G.E Gerber (the
plaintiff’s wife), while the second defendant, who is employed
by the Ministry of Defence and was acting within the course and scope
of his employment with first defendant, drove a Toyota Landcruiser
motor vehicle, Registration Number NDF 3457. The Toyota Landcruiser
motor vehicle belongs to the first defendant. The quantum of damages
for the plaintiff’s motor vehicle was agreed between the
parties this being and amount of N$27,274-22.
 The plaintiff's
particulars of claim allege that second defendant was the sole cause
of the collision in that he was negligent in one or more of the
he failed to keep a proper lookout;
he failed to take cognizance of plaintiff’s motor vehicle
before exiting a parking bay;
he failed to apply brakes timeously or at all;
he failed to avoid the collision where a reasonable and prudent
driver would have been able to do so.’
 The first defendant
denied the allegations and pleaded as follows to the plaintiff’s
particulars of claim;
[ie the allegations quoted above in paragraph 3] are denied. In
amplification of such denial, defendants aver that it was the driver
of plaintiff’s vehicle who was negligent and consequently the
sole cause of the collision in that:
She failed to keep a proper look out.
She drove at an excessive speed under the circumstances, the area
having been overcrowded and there being a lot of activities due to
the copper festival;
She failed to avoid a collision where a reasonable and prudent driver
would have been able to do so. More particularly defendants aver
second defendant was reversing out of a parking bay and was already
in the road and ready to proceed forward.
the driver of plaintiff’s vehicle came from behind second
defendant driving at an excessive speed and had to attempt overtaking
second defendant to avoid a collision as she travelled so fast she
could not have stopped to avoid a collision.
the driver of plaintiff’s vehicle changed lanes (while
overtaking) so close to first defendant’s vehicle that the back
bumper of the plaintiff’s vehicle hooked on the defendant’s
vehicle’s tow hinge.’
 Defendants pleaded in
the alternative that, should the court find that the plaintiff’s
driver was not the sole cause of the collision then defendants plead
that plaintiff’s driver significantly contributed to the
collision and as such damages should be apportioned to the driver of
plaintiff’s vehicle. Defendants however still aver that second
defendant was not the cause of the collision.
 The parties in terms
of Rule 37(12) (as amended) filed a draft pre-trial order which I
made an order of court on 28 November 2012. In terms of the pre-trial
order I was only required to determine:
Whether the sole cause of the collision was the negligent driving of
the Second Defendant or plaintiff’s driver?
To what extent was their (sic) contributory negligence from
either Plaintiff’s driver or Second Defendant?’
 I will now review the
evidence in the case. The plaintiff only called one witness namely
the driver of the vehicle Ms. Gerber. Her evidence is to the effect
that the day in question (ie the 27th day of October 2011)
was a day on which the Copper Festival was being held in Tsumeb and
on that particular day the festival was being held at the United
Nations Park in Tsumeb. She was travelling in Post Street, Tsumeb.
Post Street runs (east to west) between the United Nations Park which
is situated to the south of the Street and Minen Hotel which is
situated to the north of the Street. She was travelling from the
westerly direction to the easterly direction at a speed of
approximately 40 km per hour (but in cross examination and
re-examination she testified that she actually came from the
southerly direction and at the intersection turned into Post Street
proceeding into the easterly direction). She testified that her
attention was fully focused on the road especially for the
pedestrians crossing the road and for those vehicles that were parked
on both sides of the road, and that as she was travelling she just
‘suddenly heard a bump on her vehicle.’ After that
testimony Ms Gerber was asked some questions by her counsel and she
answered the questions. I will below briefly summarise the said
questions and answers.
And this vehicle with which you collided from where did it come?
It was standing in the parking area…Right in front of the
Did you notice that vehicle coming, reversing or coming out of that
parking bay? Tell us what happened we were not there. ---
Not at all.
So where did it come from?
This vehicle was on the parking right in front of the Minen
Hotel. It must have been pushed out from there.’
 Part of the
cross-examination of Ms. Gerber went as follows:
according to you did he bump into you directly when he was reversing?
Yes I mean it is where I heard this bump.
Can we try and clarify that. Did you see him bumping you or you
just heard the sound?
As I said I was already half past him then I saw on my corner of my
eye that he is reversing back and that is where I heard this bump…
If you testify the 2nd defendant reversed into you how
would you explain how the damage occurred as shown by Exhibit…B2?
When he came, when he scratch me, when he came against me I stopped
but I do not know whether his vehicle was still moving.
The reason I ask you this question is because it is my
instruction that it is your vehicle attempting to overtake my
I was already past him when I saw that he was in motion. It can
be that he did not immediately stop he was still moving, in motion.’
 The court also had
questions for clarification. The exchange with the court was as
I just have one or two questions for clarity. Did I hear you
correctly that you testified that you saw the vehicle coming driven
by Mr Nekundi [the second defendant] only after it had bumped you?
That is correct.
Did you see his reverse lights on?
I cannot think that I saw his reverse lights were on.’
 The second defendant
(who was the driver of the Toyota Land Cruiser which was involved in
the collision with the plaintiff’s vehicle) testified on behalf
of the first defendant, his testimony was that on the day in question
(ie the 27th day of October 2011) he had taken a patient
to the hospital in Tsumeb and also had to pick up something at Pick
and Pay. When he got to Pick and Pay the parking there was full and
the only parking he got was the parking in front of the Minen Hotel
and it is there where he parked the vehicle. He proceeded and
testified that as soon as he had finished with his business, he
jumped into the vehicle. He checked all his blind spots and indicated
and then he moved out of the parking bay. As he moved out of the
parking bay the vehicle he was driving and the vehicle driven by Ms.
Gerber collided in the middle of the road.
 He further testified
that after he realized that he had collided with Ms. Gerber’s
vehicle, he drove back into the parking bay, got out of the vehicle
and walked to where Ms. Gerber had brought her vehicle to a
standstill. He estimated the distance that he walked to her vehicle
to be approximately 80 meters. On a question from his counsel as to
which part of his vehicle collided with Ms. Gerber’s vehicle he
testified that it was the tow hinge of the vehicle that he was
driving and the left side of the rear bumper of Ms. Gerber’s
vehicle that made contact. He said the vehicle he was driving was not
damaged at all.
 Part of the
cross-examination of Mr Nekundi went as follows:
in your estimation how far would you say was the rear end of your
vehicle from the tarred road…?
Half a meter.
On your left hand side and on your right hand side there were
other vehicles. If you look to your right hand side just both sides
but let us just start with the right hand side if you look to your
right hand side what could you see in respect of the tarred road?
Could you see there?
There was somebody who was indicating for me behind.
I am asking did you look to your right hand side towards the
And what did you see?
There was no car.
And did you look to your left hand side?
And what did you see?
There was no car also.
And did you look through the vehicles next to you?
By doing what? How did you manage that? Explain to us how did you
check the blind spot on your left hand side?
Like if you are on the chair a Cruiser is a bit high…And
then some of those cars they are like some of them they are short or
let me say then you have to look over them or something….
And did you see the vehicle of Ms. Gerber before the collision?
So where would you suggest she came from?
She came from this turn. That is where I suggest she came from.
Yes but she was in Post Street at the time of the collision was
But meters from this street to where I was parking and that is why I
told you that it is only may be six to seven parkings or something.
…if you looked in your rear view mirror what would you
If there was a car then you have to see.
I am asking you what view would you have from your rear view
There is a park or the road.
But I put it to you only the area directly behind you and on the
other side of the road that you would have been able to see, is that
And if you looked in your right hand and your left hand rear view
mirrors, the side mirrors basically the same?
Yes …That is why I used my blind spots.
Which are those?
Blind spots to look over to the cars like to check.
And you say you did look but you did not see any vehicle?
Yes I did not see any car.’
 Having summarized
the evidence, I now turn to deal with counsel submissions. Mr Erasmus
who appeared for the plaintiff submitted that the probabilities
favour the plaintiff especially with regard to the pleadings. I will
briefly repeat the pleadings. The plaintiff alleged in paragraphs 7.1
and 7.2 that Mr Nekundi failed to keep a proper lookout; and that he
failed to take cognizance of plaintiff’s motor vehicle before
exiting a parking bay. Mr Erasmus then submits that on Mr Nekundi own
evidence he testified that he jumped into the vehicle looked right,
looked left and looked in his rear mirror and saw a guard or somebody
to that effect showing him to come and then he went out. Mr Erasmus
then submitted that:
my Lord what happens thereafter my Lord what happens after that his
rear end of his vehicle on his own version ends up in the lane of the
oncoming traffic and there is a collision. Why was there a collision
my Lord because he did not keep a look out. He says I did not see it.
He did not even see it until he hit it…If you go to 7.2 my
Lord on page 4 he failed to take cognizance of the plaintiff’s
motor vehicle before exiting the parking bay. My Lord can do nothing
else with respect but except (sic)
that the second defendant was reversing while the plaintiff’s
vehicle was oncoming. What the second defendant did is what is
exactly stated in 7.2 he failed to take cognizance of that vehicle.
He cannot now rely that he had a car guard pointing him to come. The
obligation remains on him the guy behind the steering you have to
look. He did not even see that vehicle until it hit him according to
him. He failed to have cognizance of that vehicle my Lord.’
Mr Erasmus furthermore argued that the obligation to have a proper
look out is more on the party who is executing a reverse maneouver
and that Ms. Gerber had the right of way and other drivers should not
interfere with that right of way. I must say with respect that I
cannot agree that every driver has such a right, a right to assume
that all other drivers would observe their duties. Such an assumption
is contrary to the law as enunciated by Greenberg, J (as he then
was), in van
v Union Government,
The head-note reads as follows:
is no general rule that a person is entitled to act on an assumption
that every driver of a motor-car will always act reasonably and
diligently. A reasonable man will base his conduct on the knowledge
that drivers of motor-cars are not infrequently guilty of certain
classes of negligence or breaches of by-laws. Thus, a motorist
approaching an intersection of streets should allow for the
possibility of another motor-car approaching such intersection on the
other street at a speed which is dangerous or may give rise to danger
of a collision.’
And on page 188 the
learned Judge says:
it is a matter of common experience that drivers of motor-cars not
infrequently are guilty of negligence or of breaches of by-laws, then
a reasonable man will base his conduct on this knowledge and will not
behave as if he were in a Utopia where infringements of the law are
unknown. He will not stake life and limb merely on an implicit faith
that such infringements do not occur but will realize that they are
not infrequent and will regulate his conduct on that knowledge. This
does not mean, e.g. that in driving along a street on his correct
side he is not entitled to assume (in the absence of an indication to
the contrary) that traffic coming in the opposite direction will not
swerve suddenly and without reason into his course; common experience
does not show that conduct of this kind is to be apprehended but
where a certain class of unlawful conduct is not infrequent, the
reasonable man will bear this fact in mind and will allow for it.’
 The submission of Mr
Erasmus (quoted above in paragraph 13) appears attractive but it
overlooks certain aspects. The aspects that it is overlooking are set
out in the following cases:
the matter of Robinson
Bros v Henderson
assuming that, as the defendant himself admitted, the plaintiff in
the circumstances had the right of way, the whole question would
appear to be whether he acted reasonably in entirely ignoring the
approaching car on the assumption that the driver would respect his
right of way and would avoid coming into collision with him. In my
opinion that was not the conduct of a reasonable man. It is the
duty of every driver of a motor car when approaching a crossing, no
matter whether he believes he has the right of way or not, to have
regard to the traffic coming from a side street. There is necessarily
a certain amount of danger in approaching a crossing, and it is the
duty of every driver to exercise reasonable care to avoid coming into
collision with another car entering the crossing from a side street.
Having seen such a car, he is not justified in taking no further
notice of it, on the assumption that the driver is a careful man and
may be relied upon to respect his right of way. If every driver of a
motor car were a reasonable man there would be few accidents; it is
against the careless and reckless driver that one has to be on one's
guard. The duty of the plaintiff in this case was to keep the car
coming down Alice Street under observation, and not to have entirely
lost sight of it merely because he had the right of way.'
In the matter of Nogude
v Union and South-West Africa Insurance Co Ltd,
proper look-out entails a continuous scanning of the road ahead, from
side to side, for obstructions or potential obstructions (sometimes
called "a general look-out'': cf Rondalia Assurance
Corporation of SA Ltd v Page and Others 1975 (1) SA 708 (A) at
718H-719B). It means -" more than looking straight ahead -
it includes an awareness of what is happening in one's immediate
vicinity. He (the driver) should have a view of the whole
road from side to side and in the case of a road passing through a
built-up area, of the pavements on the side of the road as well.''
(Neuhaus, NO v Bastion Insurance Co Ltd 1968 (1) SA 398 (A) at
405H-406A.). Driving with "virtually blinkers on'' (Rondalia
Assurance Corporation of SA Ltd v Gonya 1973 (2) SA 550 (A) at
554B) would be inconsistent with the standard of the reasonable
driver in the circumstances of this case.'
the matter of
Marine & Trade Insurance Co Ltd v Biyasi
JA (in a judgment
concurred in by Rumpff, CJ
and Miller, JA)
legal position in this regard is clear. Although Goliath was
proceeding along a through road, he did not, merely on that account,
enjoy an absolute right of precedence, and he was not relieved of the
duty of keeping what has often been referred to as a general
look-out. This Court has, on a number of occasions, said that such a
general look-out means more than looking straight ahead - it includes
an awareness of what is happening in one's immediate vicinity,
viewing the whole road from side to side. A driver on a through road
is, of course, not under a duty to keep a cross road under the same
careful observation as would be required of him if there was no stop
driver may regulate his conduct on the general assumption of correct
behaviour by others; but that, recognizing the possibility of
incorrect behaviour, he will so far as is reasonably possible allow a
margin of safety for, and pay regard to, that possibility
particularly when approaching danger spots such as intersections.’
 In present case the
plaintiff’s evidence is that the 27th day of October
2011 was a busy day, pedestrians and vehicles alike were moving
around, Ms. Gerber joined the Post Street from a side street and was
travelling at a speed of 40 km per hour. Her attention was fully
focused on the road especially for the pedestrians crossing the road
and for those vehicles that were parked on both sides of the road.
She did not observed the vehicle being driven by second defendant
pulling out of the parking bay, she did not observe that vehicle’s
reversed lights she only ‘suddenly heard a bump on her
vehicle’. On the other hand the second defendant’s
evidence was that at the time when he got into his vehicle he looked
to his right, to his left (he looked over the vehicles that were
parked next to his vehicle) and at that moment there were no vehicles
travelling in Post Street.
I start with the conduct of Ms. Gerber. I am of the view that, Ms.
Gerber was negligent in two respects; first it is her testimony that
she did not see the vehicle driven by the second defendant until she
collided with that vehicle. She was not entitled to drive as if she
was wearing blinkers but should have had regard, not only to the
street itself, but also to its immediate environs. She advanced no
reasons why she became aware of the second defendant’s vehicle
for the first time when it had already collided with her vehicle or
why she could not have become aware of it earlier. Secondly,
she testified that there
were vehicles parked on both side of the road and pedestrians moving
in the street yet she proceeded to drive at a speed of 40 km per hour
(which in my view is excessive in the circumstances). She ought to
have seen the second defendant emerging from the parking bay at least
if she had been keeping a proper look-out and if she was aware of
what is happening in her immediate vicinity. In
the English case of Tart
v Chitty and Company Ltd,
Rowlatt, J said:
seems to me that when a man drives a motor-car along the road, he is
bound to anticipate that there may be people or animals or things in
the way at any moment, and he is bound to go not faster than will
permit of his stopping or deflecting his course at any time to avoid
anything he sees after he has seen it. If there is any difficulty in
the way of seeing, as, for example, a fog, he must go slower in
consequence. In a case like this, where a man is struck without the
driver seeing him, the defendant is in this dilemma, either he was
not keeping a sufficient look-out, or if he was keeping the best
look-out possible then he was going too fast for the look-out that
could be kept.'
I say the speed of 40km per hour is excessive in the circumstance for
the following reasons. There
was evidence that Ms. Gerber joined Post Street from a side street
and there was also evidence (contrary to what Mr Erasmus content in
his submission that there was no evidence) that the distance from the
intersection where Ms. Gerber joined Post Street to the parking bays
in front of Minen Hotel was approximately 40 meters. W E Cooper
speed is commonly indicated to the driver, by the speedometer to the
distance, in terms of kilometer per hour, as these units are
appropriate to the distance and times which are involved in the usual
car journey. Where events take place over much shorter distances and
in much shorter times as in traffic collision it is more appropriate,
and more convenient for calculation to express vehicle speed in units
per second. The conversion is as follows: Speed in units per second =
speed in kilometers per hour ÷ 3,6.’
the above it is clear that to be able to determine the distance which
a vehicle travelling at 40 km per hour would cover in a second one
must divide the 40 km travel per hour by 3.6 and that gives us an
answer of 11.1. It follows if a vehicle is travelling at 40 km per
hour will cover a distance of 40 meters in just 3.6 seconds. Surely
to cover 40 meters in 3,6 seconds in an area where there are
movements of pedestrians and vehicles that may exit parking bays is
grossly negligent. See the comments of Van den Heever,
JA in the matter of
v Century Insurance Co Ltd.
our law a man is bound to guard against dangers which he could or
should have foreseen. What is reasonably 'foreseeable' will depend
upon surrounding circumstances. If, say, he drives across one of the
huge even pans on the borders of South West Africa where human beings
rarely make their appearance, he may perhaps reasonably assume that
his vehicle is the only one within a radius of many miles and if,
relying upon that reasonable assumption, he drives at a speed which
does not allow him to pull up within the limits of his vision and
collides with some obstruction the presence of which he could not
reasonably have anticipated, he may very well be held to be free from
blame. On the other hand when travelling along a frequented road he
may meet with an obstruction which so blends with the surrounding
scene that he misinterprets the significance of the light impulses
conveyed to him through his eyes, and he may perhaps be excused if he
fails to pull up before he collides with it. If, however, he travels
along a frequented road upon which he should have foreseen the
likelihood of there being animals, pedestrians or stationary vehicles
and he takes the risk of travelling through a section of the road
which he has not probed with his eyes, at a speed which does not
permit of his drawing up before reaching any object which suddenly
appears within the range of his vision and an accident results, I
have difficulty in seeing how - as a matter of reasoning, not law -
he can escape from the dilemma. Of course when other factors, which
such a person cannot reasonably have foreseen, contribute towards the
collision, other considerations will enter into the inquiry. Here
there were no such factors and to my mind Verster was negligent in
that he drove the car at a speed which did not permit of his pulling
up before colliding with an object the possible presence of which he
should have foreseen.’
 I now turn to the
defendant’s case the second defendant’s evidence is that
that at the time when he got into his vehicle he looked to his right
and to his left and he did not see any vehicle and proceeded to move
out of the parking bay, his evidence is not that he reversed his
vehicle into the street at a time when there was a car
approaching and either at such a short distance away or going so fast
that he should have foreseen that his obtrusion into its path might
lead to a collision. I therefore find that the second defendant acted
in a manner every reasonable driver would do in the circumstances.
 In the
circumstances, therefore, I come to the conclusion that the plaintiff
has failed to prove that the accident is to be attributed to the
negligent driving of the first defendant's driver.
 In the result I make
the following order:
I grant absolution from
the instance with costs.
PLAINTIFF: F G Erasmus
Of Francois Erasmus &
FIRST AND SECOND
DEFENDANTS: M Ndlovu
Of Government Attorneys