THE HIGH COURT OF NAMIBIA
the matter between:
A T NANGOLO THIRD
on: 3 November 2000 JUDGMENT
AJ: The pleadings in this matter of both the plaintiff and the
defendants lack particularity and the plea is in fact vague and
embarrassing. Neither of the parties have availed themselves of the
rules of court relating to exceptions or applications to strike out.
Some of the initial defects have been remedied by further particulars
filed on request and also by the evidence itself but some remain.
its Particulars of Claim, plaintiff alleged that on or about 26th
September 1997 (at the trial this was changed to 29 September 1997)
"and at or near Special Supermarket at Ondangwa a motor vehicle
collision occurred between plaintiffs motor vehicle with registration
number N591SA and defendant's motor vehicle with registration number
N807G there and then been (sic) driven by second defendant."
alleges further that the collision was caused by the "sole
negligence" of the driver of first defendant's vehicle and as a
result plaintiff suffered damages in the sum of N$34 160.00.
Plaintiff says this amount was the "pre-collision" value of
his motor vehicle.
are no allegations whatsoever linking the first defendant to the
collision, to the negligence nor to the damages alleged to have been
sustained. The fact that second defendant drove the vehicle owned by
first defendant does not make first defendant liable for any damages
caused by the negligence of second defendant unless second defendant
was driving "in the course and scope of his employment with
first defendant." Mkize
v Martens 1914
AD 382; Feldman
(Pty) Ltd v
AD 733. This vital allegation is absent. There are other details
absent in these particulars of claim for instance it is not alleged
whether plaintiffs vehicle was in motion at the time of the collision
and if not in motion whether it was standing on the road or off the
road on which second defendant was driving. Furthermore there are no
facts alleged why plaintiff can claim for the "pre-collision"
value of his vehicle, as and for damages.
defendant did not apply to strike out all allegations concerning
himself on the grounds that there were no allegations connecting him
with the claim of plaintiff. Further particulars were requested and
when these were supplied they partially repaired some of the defects.
But there were still no allegations of vicarious liability which are
essential in the circumstances to hold first defendant liable.
the plea, defendants admitted that the collision had occurred but
denied that the collision was due to the negligent driving of second
defendant. They alleged;
the collision between first defendant's motor vehicle and the
vehicle was caused as a result of the sole negligence of A T Nangolo
who was the driver of motor vehicle with registration N5966SH, and
more in particular, in that the said Nangolo, who was driving
immediately ahead of the second defendant, turned right, without
giving any indication of his intention to do so, at a time when it
was dangerous and inopportune to do so, and more particularly, after
the second defendant, who was driving first defendant's vehicle, was
already busy overtaking the said Nangolo after giving due notice of
his intention to do so. Alternatively, and only in the event that it
may be found that the second defendant was also negligent, then the
defendants plead that the said Nangolo was contributory negligent and
that the defendants' liability for the damages to the plaintiffs
vehicle should be reduced with the extent of the contributory
negligence of Nangolo."
this plea, even though defendants main allegation is that the "sole
negligence of Nangolo" caused the collision, they do not allege
how Nangolo's negligence caused second defendant to drive into
plaintiffs vehicle. Nangolo may well have been negligent in doing
what defendants allege but there is no allegation linking the
negligent conduct of Nangolo with the collision between defendant's
and plaintiffs vehicles. This makes the "Plea" vague and
embarrassing. From these allegations plaintiff could not have known
what case he had to meet. Defendants, however, instituted Third Party
proceedings against Nangolo and it is only from the particulars
served on Nangolo in that case, that the plaintiff could ascertain
what case he had to prepare for. I shall refer to those particulars
at a later stage. In cross-examination of second defendant, Mr
Shikongo read to second defendant what he said in those particulars.
He did not admit giving those facts to his legal adviser and it was
put to him that they differed from his own plea and the evidence he
had given. He replied to the cross-examination that his vehicle did
not roll over. The aforesaid notwithstanding, what he pleaded did
constitute an explanation by second defendant of how the collision
now turn to the evidence that the parties placed before the Court.
was no request by either party for an inspection in
Court was not assisted by the submission to the Court of a proper
plan of the scene of the accident with measurements and the
identification of points thereon. A sketch plan with no measurements
(not even the width of the road whereon second defendant drove) was
handed up to the Court. The person who drew this plan and who
compiled the legend identifying certain points thereon was not called
to testify. The Court cannot therefore refer to that legend or to the
reason of the evidence given by second defendant and his witness
Jospeh Nelembu who was a passenger in the vehicle sitting next to the
driver at the time, the Court is aware that the road in question is
the Main Road from Ondangwa to Oluno, that it is tarred but that it
has gravel shoulders on either side of the tarred surface. While
there is no evidence of the width of the road there is evidence that
it consists of a carriage-way running from Ondangwa to Oluno and a
carriage-way running from Oluno to Ondangwa and that cars approaching
from opposite directions can pass each other comfortably in the
normal course. The width of the shoulders are not known but the
shoulders are wide enough to permit a motor vehicle to drive thereon
with all four wheels. The road is raised approximately half a metre
above the surrounding country-side.
plaintiff testified that on 29th
September 1997, he had been shopping at the Special Supermarket at
Ondangwa, (also referred to in this matter as a cuca shop) situated
some 20 metres from the Main Road. He drove his vehicle N591SH from
the shop, along the dirt road and then stopped and waited at the
T-junction of the dirt road and the Main Road (he demonstrated this
in Court) some 3 to 4 metres off the Main Road for traffic to pass so
that he could enter upon the said Main Road. While waiting there
vehicle N807G coming from his left, came straight at him striking his
vehicle on its left and turning it over so that the wheels of this
vehicle were in the air.
his evidence, second defendant said that he was driving truck N807G
along this road in the direction from Ondangwa to Oluno when a Toyota
Corolla (hereafter Toyota) about 15 metres in front of him activated
its indicator to show it was turning left, it rear lights went on and
the Toyota slowed down and left the tarred surface of the road and
proceeded with all four wheels on the gravel shoulder. Second
defendant says that this gave him the impression that the Toyota was
stopping but unexpectedly the Toyota entered on the tarred surface
again and without indicating turned right as second defendant was
about to pass. He says his vehicle either scraped the Toyota or just
missed it. He demonstrated in Court so that it looked like a scrape.
His witness who sat on his left Mr Joseph Nelembu says the vehicles
hit each other. Second defendant says his vehicle then shot across
the road and into and on to plaintiff s vehicle.
his plea second defendant made no allegations whatsoever about
Nangolo activating his left indicator and leaving the tarred surface
with all four wheels. There was no mention of his rear lights going
on and that he was given the impression that Nangolo was stopping.
There is no allegation that Nangolo thereafter entered on the road in
front of him. In his plea he said Nangolo was driving "immediately"
ahead "of him and turned right without giving any indication of
his intention so to do when second defendant was already busy
overtaking him after giving due notice of his intention to do so".
There is no allegation of the vehicles having hit. And certainly no
suggestion that such a collision be it ever so slight preceded and
perhaps caused second defendant to hit plaintiffs vehicle.
aforesaid notwithstanding when second defendant was cross-examined he
did not admit that he told his attorney the version which was pleaded
in his Third Party Particulars. He said his vehicle did not roll. I
quote specifically what was put to him by Mr Shikongo and what was
alleged in his Third Party particulars:
keeping any lookout for the second defendant's vehicle and without
observing that second defendant was in the process of overtaking his
vehicle, and without giving any indication of his intention to do so,
the Third Party started to execute a right turn at a time when it was
totally inappropriate and inopportune to do so, and more particularly
when the second defendant was already next to the Third Party's
vehicle, busy overtaking him, which caused first defendant's vehicle
to leave the road whereafter second defendant lost control of the
vehicle and it overturned where it collided with the plaintiffs
case must be judged on the evidence and not on the pleadings. The
pleadings, however, can cast doubt as to the accuracy of the evidence
and I approach the evidence of second defendant with caution.
witness, Joseph Nelembu, did not make a good impression on the Court.
He said he looked at the speedometer at the time of the collision and
saw that second defendant was driving at 60 kph. He had no reason to
look at the speedometer and was nonplussed when the court questioned
him about this. He also related that the Toyota's rear lights and
flicker went on when it was 15 metres in front of them and that the
vehicle left the road and drove on the gravel shoulders before
returning and driving in front of them and then turning right. If he
was watching this manoeuver by the Toyota one wonders at what stage
he was looking at the speedometer.
that the Toyota was being driven in this inexplicable way, one could
expect a driver in the position of second defendant driving only at
60 kph to slow down when the Toyota returned to the Main Road and not
attempt to pass him. Notwithstanding, second defendant believing that
the Toyota was going to stop was entitled to pass him having
satisfied himself that it was safe so to do and the driver of the
Toyota should not have "deviated to his right" nor
thereafter do a right turn while second defendant was overtaking him.
v A.A. Mutual 1972(2)
SA 234 (Q)
defendant testified that he was in fact driving at 60 kph. There is
no evidence to the contrary and the Court must accept this. He said
he was dragging a trailer which made sudden braking difficult as the
trailer would bump against the rear of his vehicle. He does not
testify that lic did brake suddenly (which one could expect in the
circumstances), and that the trailer rammed his vehicle. He does,
however, say that he braked. No one testified of tyre marks on the
road. He does not testify why it is that he did not stop on the road
or on the shoulder of the road after scraping Nangolo (or just
missing him). He does not testify why after their vehicles scraped in
the middle of the road he could not stop in the opposite carriage-way
or on the shoulder or drive at a slower speed or perhaps a faster
speed so as to pass the Toyota (if it was still turning). The
explanation as to what actually happened would appear to be the one
he gave in the Third Party Proceedings.
circumstances such as these when a plaintiffs vehicle is stationary
off the road, whereon a defendant is driving and the defendant leaves
the road and collides with the plaintiff s stationary vehicle, an
inference arises that the collision is due to negligence of the
defendant. If the defendant wishes to escape liability, he would have
to produce some evidence which on a balance of probability at the end
of the case shows that he was not negligent.
vSA Mutual Fire & General Insurance Co Ltd 1979(4)
SA 301 at 306 (C); Naude
N.O. v Tranvaal Boot & Shoe Manufacturing Co. 1938
AD 379 at 399 Arthur
v Bezuidenhout & Mieny 1962(2)
SA 566 at 574B.
S.R. 41, Hopley, J said;
conducting operations in which care skill and courage are required -
among which must be numbered the driving of vehicles in populous
centres - cannot be excused if their judgment or courage should
without justification fail them at the very moment when these were
most required to avert accident or disaster."
was quoted with approval by Davis, AJA in Rex
SA 141 at 146 but Davis
it does not seem to me to matter whether the place where the
is driven be a populous centre or a country road."
306E, King, J said;
it is a persons duty to exercise proper skill and correct judgment, a
failure to do so is undoubtedly negligence."
a person drags a trailer he must travel at a speed which will enable
him to stop in an emergency without the trailer either colliding with
his vehicle from behind or in anyway hampering him in the control of
his vehicle or preventing him from avoiding a collision. I am
satisfied that at 60 kph a reasonable motorist driving a vehicle
without a trailer would have been able to avoid colliding with
plaintiff and would certainly not have lost control after a collision
with the Toyota. On his own showing second defendant was negligent
after the collision in the middle of the road. Despite the balance of
the wide carriage-way and a wide shoulder he did not control his
the aforesaid principles expressed in the above-mentioned cases
of Naude N.O.supra and
was a "tactical" onus
defendants to place such evidence before this Court which would
displace the inference of negligence which arises from the objective
circumstances of the collision. The only relevant evidence which
second defendant placed before this Court was that Nangolo
negligently turned right colliding with second defendant but as I
have said, I am satisfied that driving at 60 kph with the exercise of
proper care after such collision second defendant should not have
lost control of his vehicle and thereby collided with plaintiffs
vehicle. While Nangolo's negligence contributed to the collision and
perhaps even initiated it, second defendant's negligence was equally
to blame. If I must apportion blame between the two, I would say that
each was 50% to blame.
there are joint wrongdoers as in this case who are responsible for
the plaintiffs damages, the plaintiff can elect to sue both jointly
and severally or he can elect to sue either one of them. Plaintiff is
therefore entitled to hold second defendant liable for all his
damages irrespective of Nangolo's contributory negligence.
however, did not come to Court and Mr Mueller asked for a judgment in
respect of the damages which defendants proved they had suffered.
have already dealt with the negligence of Nangolo vis-a-vis second
defendant. This negligence was responsible for the damages sustained
by first defendant to his motor vehicle N807G. On behalf of first
defendant two experts testified. Mr Rainier Arangies testified that
he had examined N807G and that N$18 565-15 was the reasonable cost of
repairs to the body of the vehicle to put it into its pre-collision
condition. Mr Hendrik Phillipus Potgieter testified that he too
examined the vehicle and that the reasonable cost of mechanical
repairs to the vehicle to put it into its pre-collision condition was
defendant is accordingly entitled to a judgment by default against A
T Nangolo in the sum of N$24 262-24. An amendment of his claim to
reduce it to this amount was granted.
turn now to consider the damages plaintiff is claiming from first and
have already pointed out that plaintiff is confined to a claim for
damages against second defendant only. In plaintiffs Particulars of
Claim there are no allegations to establish a legal basis for holding
first defendant liable. There is also no evidence to this effect.
Plaintiff had to allege and prove that when second defendant collided
with him, second defendant was acting in the course and scope of his
employment with first defendant. He did not do so and he cannot
succeed in a claim against him.
a motor collision case, a plaintiff is entitled to claim from the
person liable for his damages, the reasonable costs of repair to put
his damaged motor vehicle in the same condition which it was before
the vehicle is beyond economic repair, he can claim the difference
between the market value of the vehicle at the time of the collision
and the value of the wreck after the collision. The latter course is
the course chosen by plaintiff.
gave defendants notice in terms of Rule of Court 36(9)(b) of his
intention to call Mr Christian Theron de Wit to give expert evidence
in respect of his damages which he alleged he sustained.
he was called, Mr de Wit testified that he had been a motor vehicle
assessor in Namibia for twelve years and carried on business as
Countrywide Assessing Services. His business involved the assessment
of the value of motor vehicles involved in collisions.
Ic testified that he was asked on 17 July 2000 to assess what the
value of plaintiff s vehicle N591SH was before the collision and
after the collision so that the damages sustained by plaintiff could
be ascertained. He said he had not seen the vehicle either before or
after the collision but he was shown photographs of the vehicle taken
before and after the collision. These photographs were submitted to
the Court. He said he also received reports concerning the vehicle
from plaintiff. In reply to defendant's request for further
particulars, plaintiff alleged that his vehicle was a complete "write
off'and annexed an invoice from a garage in support of this
allegation. Plaintiff had testified that his vehicle prior to the
collision was in sound condition and that after the collision it was
a "write-off. Defendants did not give evidence contradicting
de Wit testified that in the motor trade in Namibia and in South
Africa, there is a publication known as "The South Africa
Vehicle Value Guide" of "MWV Publishers South Africa"
which is accepted in the trade as authoritative and reliable in
regard to the value of vehicles and he accepted it as such. He said
using this guide, the photographs aforesaid and the reports from
plaintiff, he assessed the value of plaintiff s vehicle before the
collision as N$38 610-08. He testified that the wrecks of vehicles of
this type, this model and this vintage which were not economically
repairable was approximately N$8 122-00. He stressed that both
figures were averages. Under special circumstances these figures
could vary but not by very much. He said pursuant to reports about
the condition of this vehicle before and after the collision and in
the light of his own experience he considered the figures which he
had given were reasonable.
SA 1(A) particularly the reasoning for calculation of damages by Van
Blerk and Potgieter AJJ.)
the cross-examination of Mr de Wit, Mr Mueller did not question Mr
de Wit's qualifications nor as to the nature of the reports he had
received concerning the vehicles condition. He did, however,
question him as to whether he could judge the mechanical condition
of a vehicle without examining it and whether this would affect the
value of a vehicle. Mr de Wit replied that he could not assess the
mechanical condition of a vehicle without an examination. Obviously
a vehicle in sound condition would have a higher valuation than one
in poor condition. From his replies it is clear that "wrecks"
would have different values depending on the extent of their damage.
Mr de Wit stressed that his figures were averages and that in
individual cases values could vary.
it comes to estimates of value for the calculation of damages,
pinpoint accuracy is not possible except when vehicles or other
goods have been sold on the open market when the price obtained
represents market value. Reasonable averages are acceptable by the
Courts and most awards are reasonable estimates. A plaintiff should
not be non-suited merely because his loss is difficult to quantify.
The court must do the best it can with the materials to hand. This
view has frequently been expressed by learned judges.
am satisfied that the estimate of damages sustained by plaintiff is
reasonable and there is no evidence to contradict it. Plaintiff has
reduced his claim accordingly.
Order of this Court is:
1. The plaintiffs claim against first defendant is
dismissed with costs but such costs are limited to the costs of an
exception as at the date of service of the Particulars
Second defendant shall pay to plaintiff the sum of NS30 488-08 as
and for damages;
defendant shall pay interest at the rate of 20% per annum on the
aforesaid sum from date hereof to date of payment;
defendant must pay plaintiffs costs which will include the costs of
the expert Mr de Wit.
1. First Defendant is granted default judgment in the
sum of N$24 262-24 against the Third Party A.T. Nangolo.
A.T. Nangolo, the Third Party herein, shall pay the costs of
E Shikongo Shikongo Law Chambers
first and second Defendant: Mr
P F Koep & Co