Court name
High Court
Case name
Griffiths v Motor Vehicle Accident Fund
Media neutral citation
[2001] NAHC 10
















»
*















Case
No.: I. 54/98





IN
THE HIGH COURT OF NAMIBIA




















In
the
matter between:















VANESSA
CECILIA GRIFFITHS
PLAINTIFF


and















THE
MOTOR VEHICLE ACCIDENT FUND
DEFENDANT











CORAM:
HANNAH, J Heard on: 13
th-26th
February 2001 Delivered on: 20
th
March 2001
JUDGMENT



HANNAH,
J: On 22
nd
September, 1994 Clive Gareth Paul Griffiths (the deceased) was
driving a Mercedes Benz 200, Registration Number N36661W, along the
Otjiwarongo to Omaruru road in a southerly direction. Whilst entering
the township of Kalkfeld the vehicle left the road and collided with
a tree. The deceased died as a result of injuries which he sustained.
Those facts are common ground between the parties.















As
a result of the death of the deceased, the husband and, so it is
claimed, the breadwinner of the



plaintiff
and her five minor children, the plaintiff instituted this action
against the defendant for the payment of damages to her in her
personal capacity and in her capacity as mother and natural guardian
of the minor children.











The
action was instituted against the defendant, a juristic person by
virtue of section 2(2) of the Motor Vehicle Accidents Act, No. 30 of
1990, on the strength of an allegation that the death of the deceased
was caused by the negligence of the owner of the Mercedes Benz. In
the original particulars of claim it was alleged that the vehicle
"suddenly tore apart in two pieces and left the road" and
it was further alleged that the owner:




6.1




allowed the vehicle to be driven in a dangerous state of



disrepair
which the owner knew or ought to have known existed.











7.



The
state of disrepair was a latent nature and not within the knowledge
of the Plaintiffs husband."









The
particulars of claim were, however, amended and the allegations just
referred to were amplified and extended. It is now alleged in
paragraph 5 of the amended particulars of claim that the Mercedes
Benz:















(a)
tore apart in two pieces and left the road, alternatively







(b)
commenced and/or developed tearing and/or cracking and/or commenced
breaking up and left the road and collided with a tree;
alternatively





(c)



left
the road and collided with a tree.













As
for the negligence of the owner, it is now alleged:





"7.1
such owner or employee(s) (both owner or employee(s) hereinafter
collectively referred to as "the owner") consented and/or
permitted and/or allowed the motor vehicle to leave its custody
and/or gave or handed out the motor vehicle to other parties (or
allowed the motor vehicle be handed out or to be given to other
parties) for the purpose of selling or auctioning off the motor
vehicle to third parties generally and/or to plaintiffs husband
particularly and/or by allowing the motor vehicle to be driven by
plaintiffs husband, whilst the owner knew or ought to have known
that the motor vehicle:



(a) contained
defects, latent or otherwise;
and/or



(b) was
in a dangerous or other state of disrepair which made
the motor
vehicle unsafe or unfit for use on a public or
other road;







and/or







(c) was
generally unsafe and/or unfit for use on a public or
other road:







Alternatively







7.2
the owner was negligent in that it failed to properly repair and/or
maintain and/or inspect the motor vehicle for defects before
allowing the vehicle to leave its custody or giving or handing out
the motor vehicle (or allowing the motor vehicle to leave its
custody or giving or handing out the motor vehicle (or allowing the
motor vehicle to be given or handed out) to other parties for the
purpose of selling or auctioning off the motor vehicle to third
parties generally and/or to plaintiffs husband particularly and/or
before allowing the motor vehicle to be driven by plaintiffs
husband;







In
the alternative to paragraph 7
supra
(and
only in the event of it being found what is set out in the aforesaid
paragraphs 7, 7.1 and 7.2
supra
does
not
per
se
constitute
negligence irrespective of whether the hereinafter mentioned steps
were taken or not), plaintiff avers that the owner was negligent in
that the owner acted in the manner as set out in paragraph 7.1
supra
and
further because the owner failed to inform or take reasonable steps
to





inform
or bring to the knowledge of plaintiff s husband or any other
prospective purchaser of the motor vehicle the relevant facts and
circumstances regarding the condition of the motor vehicle as set
out in paragraphs 7.1(a) to (c)
supra,
the
contents hereof are incorporated by reference as if specifically
repeated herein;"







On
10"' March, 1998 the parties agreed that if plaintiff could not
prove ownership as pleaded in the particulars of claim the defendant
could not be held liable and the parties therefore agreed that the
trial of the action should be separated into three parts. The
question of ownership should be decided first. If this decision was
in the plaintiffs favour then the question of liability should be
decided and if this decision was also in the plaintiffs favour
quantum should then be decided. The separation of the trial in this
way was approved by the Court.











And
so it came about that from 29
th
February, 2000 to 2
nd
March, 2000 Levy, A.J. heard evidence and argument on the question
of ownership. On 10
th
May, 2000 the learned judge delivered his judgment on this aspect of
the case and made the following order:















"(a)
Ownership of the Mercedes Benz 200, N36661W driven by Plaintiffs
husband on 22 September 1994, when Plaintiffs husband was killed,
vested at that time, in First National Bank Ltd., and First National
Bank Ltd. was the owner thereof as required by Act No. 30 of 1990.







(b)
Costs of this hearing to be paid by Defendant."







That
disposed of the question of ownership and I am now called upon to
adjudicate upon the issue of liability. This involves two issues,
namely negligence and causation.















I
will begin with a summary of the evidence. The plaintiffs first
witness was Andre Kandolf.



He
purchased the Mercedes Benz N36661W from a firm called Rolling
Wheels in 1993. To enable him to pay for it he obtained a loan from
First National Bank (FNB). Kandolf said that he was happy with the
vehicle but wanted it to look "nice". He therefore took it
to a firm of panel beaters called Asco Motors. Asco informed him
that the vehicle was not straight and certain welding joints were
pointed out to him. Kandolf then set about returning the vehicle
either to Rolling Wheels or to FNB. When he received no response
from either of these entities he engaged the services of Behrens &
Pfeiffer, a firm of attorneys, and they in turn instructed Harry
Riegel, a loss adjuster, to examine the vehicle and compile a
report. Riegel examined the vehicle and test drove it and provided
Pfeiffer with a report dated 9
th
August, 1993 and photographs. As this report played a fairly major
role at the trial I will set out its contents in some detail.











Riegel
measured the depth of the tread on each of the vehicle's tyres. The
depths were 0.5 mm, 3.0 mm, 3.0 mm and 2.0 mm. His report describes
the condition of the tyres as "good" though when he came
to give evidence he said that the depth of the tread of a tyre
should be at least 1 mm and, in his opinion, a tyre should be
removed when the depth of the tread is 2 mm. The report then goes on
to list a number of minor defects and then deals with the doors
which are described as having been panel beaten and not opening or
closing properly. More defects are then listed and it is stated that
two sections from two different vehicles have been welded together
to form one vehicle.











The
distance between the vehicle's front and rear axle was 2570 mm on
the right side and 2596 mm on the left resulting in a difference in
distance between the two axles of 26 mm. This shows,

according to the report, that the building together of the two body
sections was done without a straightening and measuring system.











The
report concludes with the observation that the building together of
bodies taken from two vehicles causes the resulting body to lose its
stability, that the difference in the axle distances causes the
vehicle to run out of its tracks and that the steering geometry is
disturbed. In Riegel's opinion the vehicle was not "traffic
safe/roadworthy" and, as it could not be repaired, could only
be used for spare parts.











Armed
with Riegel's report and the accompanying photographs Kandolf and
his attorney, Pfeiffer, met with officials of FNB in the second
quarter of 1994. Pfeiffer showed the report to FNB's credit manager,
one Kaufmann, and pointed out Riegel's conclusions. This led to a
settlement whereby FNB repaid Kandolf one half of the deposit which
he had paid and all instalments and Kandolf returned the vehicle.
According to Pfeiffer, who also testified on behalf of the
plaintiff, about one month after the settlement was reached he met
Kaufmann and Kaufmann told him that he had instructed the personnel
in his office to sell the vehicle as spare parts. He added that he
had expressly instructed them not to put the vehicle on auction
because he would have sleepless nights if someone should die while
driving it.











It
is convenient at this point to deal with the objection made by Mr
Muller, who appeared on behalf of the defendant, to the
admissibility of the evidence to which I have just referred. Mr
Muller submitted that the evidence falls into the general category
of hearsay evidence and is inadmissible as it does not fall within
any of the exceptions to the hearsay rule.



In
Union
and South West Africa Insurance Co. Ltd
v
Quntana,
N.O.
1977(4(
SA 410 (A) the Court was concerned with an action brought in terms
of the Motor Vehicle Insurance Act, 29 of
1942,
and the point which arose for decision was whether an extra-curial
statement or admission made by the driver of the insured vehicle was
admissible as against the registered insurance company. Corbett, J.
A., delivering the judgment of the Court, pointed out that such
evidence falls into the general category of hearsay evidence and is,
therefore, inadmissible unless it comes within the ambit of one of
the exceptions to the hearsay rule. One such exception considered by
the learned judge was the existence of privity or identity of
interest. Having considered the position of the driver of the
insured vehicle in an action under the 1942 Act, Corbett, J. A. said
at 424 A:















"This
being in broad outline the nature of the statutory liability cast
upon registered insurers and of the relationship between the
registered insurer and an authorised driver of the insured vehicle,
I am of the view that in terms of our substantive law there is not
as between them the privity or identity of interest or obligation
necessary to render the admissions of the driver receivable in
evidence against the insurer. Primarily, sole liability is cast upon
the registered insurer and it is only exceptionally that the driver
may become liable, either directly to the claimant or, by way of the
right of recourse, to the insurer. When the driver does become
liable directly to the claimant it is as an alternative obligor and
his liability is quite disparate from that of the insurer. Whatever
the precise meaning of 'privity or identity of interest or
obligation' may be, it seems to me that it does not relate to such a
situation."











The
learned judge concluded at 426 E:















"For
these reasons, therefore, I am of the view that, in general, and
certainly in this particular case, the admission of the driver of
the insured vehicle is not admissible against the registered
insurer, in an action under Act 29 of 1942, on the ground of privity
or identity of interest or obligation; and that, in the absence of
some other ground of admissibility, such as the admission forming
part of the
res
gestae
or
having been authorised by pre-appointment or reference or by
subsequent adoption, the admission is not receivable in evidence at
all."







Our
Motor Vehicle Accidents Act has the same general pattern of
liability as was to be found in the South African Motor Vehicle
Insurance Act, 29 of 1942, and, in my respectful opinion, this Court
should follow the reasoning and conclusion reached in the
Quntana
case
(supra).
Furthermore,
although the Court in that case was concerned with an extra-curial
statement or admission made by the driver of the insured vehicle I
see no reason why the owner or his employees should not be in
precisely the same position.











Neither
Mr Geier, who appeared for the plaintiff, nor Mr Muller referred the
Court to the
Quntana
case
(supra)
but,
as I understand it, Mr Geier accepts that the evidence of Pfeiffer
of what Kaufmann told him is hearsay evidence. Mr Geier's approach
was that the evidence should be admitted as showing Kaufmann's state
of mind. What instructions Kaufmann gave his personnel do not show
his state of mind but, in my opinion, his statement that he would
have sleepless nights if someone should die while driving the
Mercedes Benz does. To that limited extent I rule that the evidence
under consideration is admissible.











The
following admission by the defendant was recorded in the minutes of
a pre-trial conference held on 21
st
February, 2000:























"The
Defendant admits that First National Bank, Wesbank Branch, Windhoek,
was the owner of the 1998 Mercedes Benz, from the time it was
repossessed from Mr A. Kandolf on or about 25
th
July 1994 until it



subsequently
left the repossession yard of Wesbank."







"Wesbank"
is the branch of FNB where Kaufmann was employed and the minutes of
a pre-trial conference held on 9
th
February, 2001 record a further admission by the defendant that:















"" Pikkie
Louw and J Kaufmann were employees of Wesbank/First



National
Bank during September 1994 and that they acted at all relevant times
within the course and scope of their employment as aforesaid."







At
the same pre-trial conference the parties also agreed that the
record of the proceedings in front of Levy, A.J. and the judgment of
the learned judge should form part of the present proceedings and I
now turn to the judgment of Levy, A.J. The learned judge found that
Johannes Pretorius, the manager of Motor House CC, used car dealers,
had, in or about the middle of 1994, visited Wesbank's repossession
yard and seen the Mercedes Benz 200 with which this case is
concerned. In his judgment, the learned judge continued:















"Pretorius
says that he asked FNB if he could sell the vehicle 'on their behalf
and they agreed. He testified that the vehicle was taken from the
yard to the premises of Motor House CC where it was for sale on
behalf of FNB. At the time he dealt with one Kaufmann and 'Pikkie'
Louw both of whom were employees of FNB, the former being the
manager of the second-hand car division of that Bank and Wesbank,
and the latter, the manager of the repossession yard of Wesbank. He
says the agreement was that he would hold and sell the car 'on
consignment' for FNB and he undertook thereby that if he made a
profit, that is sold it above the reserve price, such profit was to
the credit of Motor House CC.







Pretorius
says he was unable to sell the vehicle and it remained on the floor
of Motor House CC until it was taken to Gerry's Auction and Car
Sales in Independence Avenue to be auctioned for and on behalf of
FNB. It was taken there with six or seven other cars one to three
weeks before the auction sale was held on 15 September 1994."



The
record of the proceedings held before Levy, A.J. also shows that in
cross-examination by Mr Muller Pretorius was asked about the
condition of the Mercedes Benz when it was on the floor of Motor
House CC. Pretorius said that he could tell from the spacing of the
rear door to the rear fender that the vehicle had been in an
accident. However, the witness denied that he had been informed by
either Kaufmann or Louw that the vehicle had been damaged and
rebuilt.











Continuing
with the judgment of Levy, A.J., the next witness to the chain of
events surrounding the Mercedes Benz was Rolf Vogt. In September,
1994 he and the owner of Motor House CC purchased the business known
as Gerry's Auction and Car Sales and Gerry's Auction and Car Sales
held their first auction on 15
th
September, 1994. The Mercedes Benz was one of the vehicles auctioned
that day and the deceased was the successful bidder. The auctioneer,
Rolf Vogt, testified that the deceased asked him if he could take
the vehicle because he wanted to show it to his wife and he had an
appointment with the Mercedes Benz agent "to service the
vehicle 100%". Although payment for the vehicle had not been
finalised Vogt allowed the deceased to take it on the understanding
that he would immediately return Vogt's garage registration plates.
This evidence is admissible in order to show why Vogt's released the
vehicle to the deceased but no more.











At
this point I should mention the evidence of Johannes Berry who was
called as a witness by the defendant. At the material time he was
employed as a car salesman by Autocentre in Windhoek. The owner of
Autocentre at that time was Vogt and the Mercedes Benz spent some
time on the floor of their showroom. Presumably, this was after it
left Motor House's premises en route to Gerry's Auction and Car
Sales.



Berry
said that at the beginning of September, 1994 the deceased came to
Autocentre and enquired whether the Mercedes Benz had been sold. At
that stage it was at Gerry's and Berry arranged for it to be brought
to Autocentre and the deceased asked to be taken on a test drive.
Berry agreed and with the deceased as a passenger he drove the
Mercedes Benz to a point just outside Okahandja and back. The
deceased wanted the vehicle tested at high speed and Berry said that
he drove it up to 200 kph. At 150 to 160 kph there was, he said, a
little vibration on the steering wheel but at 170 to 180 kph this
vibration disappeared. On the return journey the deceased drove for
a few kilometres. Berry said that there are bends or curves on the
road to Okahandja and the vehicle did not pull to one side nor was
there any noticeable defect to the windscreen. Except for the
vibration on the steering wheel at a certain speed he experienced no
problems with the vehicle.











I
now come to the evidence of Isador Titus who was a passenger in the
Mercedes Benz at the time of the fatal accident. He was a friend of
the deceased and had known him for about five years prior to his
death. He said that he had had occasion to drive with the deceased
on many occasions and described him as a very good driver.











On
the day of the accident the deceased first drove from Windhoek to
Ofjiwarongo where he had business to transact and it was then their
intention to travel to Swakopmund via Omaruru. A person named Moody
was seated in the front passenger seat next to the deceased and he,
Titus, sat on the middle of the back seat with the deceased's two
young children seated on either side. The following is a summary of
what Tims said in examination-in-chief concerning the accident.



As
they approached Kalkfeld the Mercedes Benz was not being driven at a
very high speed. Titus then felt the vehicle shaking. He looked up
and saw that the top of the windscreen had come loose. He sat back
and grabbed the two children as he realised that something dangerous
was about to happen. He then saw that the part of the vehicle behind
the front seats had broken as the mat had torn. The deceased tried
to control the vehicle but the front part had broken loose and the
witness could see sparks. The front part of the vehicle collided
with a tree and at some point in time the witness lost
consciousness. He regained consciousness when the police were
loading him into their vehicle.











In
cross-examination Titus was asked about the journey prior to the
accident. One thing which he said he remembered was that the
steering wheel was shaking a lot. He could not recall the speed of
the vehicle when this occurred but when it happened the deceased
applied a tighter grip to the steering wheel. Titus said that the
deceased made no comment and would have stopped had it been a
problem.











Titus
was also asked about what he saw when they entered Kalkfeld and it
is apparent from his answers that he saw very little. He did not see
any speed limit signs although other evidence established that there
were three such signs for southbound traffic and he could not say
whether the speed of the Mercedes Benz was fast or slow. This
contrasts with his evidence-in-chief that the speed was not very
high. He was asked to describe what happened again and said that as
they approached the township there was a bend and, although it was
difficult to put into words, there was a "pull" on the
vehicle. This occurred in the bend itself and was similar to a
vehicle going onto a gravel surface. Then he saw the windscreen
separate itself from the roof one bit at a time.



Titus
was pressed on this part of his evidence and, although according to
the witness he could not say exactly, he said that the roof parted
from the windscreen by about 15 cm in the middle. Then, he saw that
just behind the front passenger seat the vehicle broke. The carpet
was torn and he could see tar. The gap in the floor was about 6 cm
and ran from the middle of the left seat to the drive shaft tunnel.
The back part of the vehicle broke off before the front part hit the
tree and lifted itself. As for the sparks he could not say at what
stage of the incident he saw these but he could remember them.











Titus
was then asked about a statement which he made to the police on 3
rd
October, 1994 in Windhoek. He agreed with counsel that at that time
everything was fresh in his mind and that the object of the exercise
was to tell the police everything he could remember happening. The
statement reads as follows:















"1.
On Thursday 94.09.22 and at around 12hl5 I was a passenger with Mr.
Griffiths and others travelled from Otjiwarongo to Kalkfeld. 2. Mr.
Griffiths was the driver and I was on the back sit. At around 13h00
and approaching Kalkfeld Mr. Griffiths was driving on a speed
approx. 120 km/h when the car left the road and collided against the
tree which was on the edge of the road. Before the car hit the tree
I felt the backside of the car was shivering and Mr. Griffiths tried
to controlled the car, but everytime he turned the car was just
shivering, like it was going to broke in two pieces. We were five in
the car. The time the accident took place, I don't know how it
happened."











The
statement was then sworn to.











What
is set out in Titus's statement does not accord with the vivid
account which he gave to the Court of the roof lifting and the
Mercedes Benz actually breaking in two before the front part

struck the tree and he was asked about this. With regard to speed he
said it could have been 120 kph which contrasts with his earlier
evidence that he could not say whether the speed of the Mercedes
Benz was fast or slow. When asked about his statement that he did
not know how the accident happened he said that when he made the
police statement maybe it was not clear to him. Then when it was put
to him that he had decided to add a number of things which had not
happened when giving testimony in Court he said that at that stage,
referring to when the police statement was taken, he probably could
not remember everything. He had told the police everything he could
remember. And in re-examination the witness fell back on lack of
memory: he could not remember the statement, he could not remember
if it was translated, he could not remember if there was an
interpreter and he could not remember if he had read it.











The
police officer who took Titus' statement was called by the
defendant. Sgt. Kairua was a constable at the time and he attended
the scene of the accident. On 3
rd
October, 1994 he went to Windhoek and visited Titus at his house. He
said that he asked Titus to explain everything that had happened and
what is set out in the statement is an English translation of what
Titus told him in Afrikaans. He then read the statement back and
asked Titus whether he was satisfied and Titus said that he was. In
cross-examination Kairua was asked a few questions about the
circumstances in which the statement was recorded but no suggestion
was made that it had been recorded inaccurately.











Another
witness who saw the accident was Emily Doeses. She was a cleaner at
a nearby school hostel. At about 12:30 p.m. on 22
nd
September, 1994 she and a co-worker, Ludmila Ochurab, were on their
way home walking along the Otjiwarongo to Omaruru road in a
northerly direction.



At
a certain point they saw a vehicle approaching them fast and it left
the road on the west side and then crossed back. Both Emily and
Ludmila ran and, according to Emily, she heard a sound when the
vehicle collided against a tree. Emily said that a gas cylinder
struck her on the lower part of her left leg and she fell. Her leg
was broken with a bone protruding. With the aid of a photograph she
pointed out where she had been when she was struck by the gas
cylinder and where Ludmila was when she was struck and injured by
part of a car seat. Although Emily was confused as to where she and
Ludmila were when they first saw the vehicle it is not disputed that
both were struck by flying objects at the places pointed out by
Emily.











Sgt.
Karugub was another police officer who attended the scene of the
accident on 22
nd
September,
1994. On his arrival he found two parts of a Mercedes Benz. The
front part was lying against a tree facing north while the rear part
was a few steps away with the open part facing south. Karugub said
that he looked for marks on the road and could clearly see four tyre
marks on the tar. He marked these on a rough sketch plan which he
drew the following day. He saw no scratch or scrape marks on the
road nor did he see any broken vehicle parts on the road.











In
cross-examination Karugub said that the tyre marks appeared to him
to be made by a vehicle broadsiding and, as appears from his sketch
plan, they come from the west side of the road and head towards the
tree on the east side in a slight curve.











Apart
from the factual evidence just summarised certain plans of the scene
of the accident and a number of photographs were admitted in
evidence by agreement between the parties. The photographs are of
the Mercedes Benz when it was inspected by Riegel in August, 1993,
of the



Mercedes
Benz after the accident and of the scene of the accident. It was
largely with the aid of this material that the expert witnesses
called by both parties endeavoured to reconstruct the accident.











It
is common ground between the parties that a driver entering the
township of Kalkfeld from Otjiwarongo first passes a 90 kph speed
limit sign and then two 60 kph signs. He is then confronted with a
gentle right hand curve in the road and beyond this curve there is a
minor road leading off to the left (east). At the time of the
accident there was a tree on the east side of the main road a metre
or two from the edge of the road and just short of the junction just
referred to. On both sides of this tree there were short poles
placed in the ground with double cables threaded through them. The
crash caused two of the poles on the northern side of the tree to be
dislodged and one on the southern side to be partly dislodged. After
the accident the front part of the Mercedes Benz was lying
approximately 500 mm from the tree and the rear portion was lying in
the mouth of the junction 16,5 metres from the front part. Emily was
struck by the gas cylinder on the southern side of the junction 19,7
metres from the rear portion of the Mercedes Benz and Ludmila was
struck by the seat also on the southern side of the junction 23,06
metres from the rear portion. One other distance which should be
mentioned is the distance of the tyre marks on the road which is
given as 31,4 metres.











Coming
now to the expert evidence, it is clear that the plaintiff intended
to rely on Riegel as her mainstay in this regard. Riegel's evidence
can conveniently be divided into two parts. Firstly, there is his
evidence arising from his inspection of the Mercedes Benz in July,
1993 and his test drives of the vehicle at that time. Secondly,
there is his evidence arising from a report which he compiled dated
2
nd
March, 1998. In final submissions Mr Muller was critical of Riegel's
qualifications to testify as an expert and although there is some
substance to these criticisms when it comes to the 1998 report I
remain satisfied that the witness was competent to express opinions
arising from the 1993 inspection and test drives.











Riegel
first inspected the Mercedes Benz on 19
lh
July, 1993 and he then took it for a test drive. He said that it was
unstable, vibrating and pulling very strongly to the right.
Surprisingly, Kandolf, who had been driving the vehicle since the
beginning of June, 1993, including a fairly long trip from Windhoek
to Keetmanshoop and back, said that he noticed only a little pull to
the right. It was, he said, soft to drive and that was "nice".
It was "very comfortable".











Returning
to Riegel's evidence, he took the Court through a series of
photographs which he took of the Mercedes Benz in July, 1993 and
these, he said, showed various defects on the vehicle arising from
the manner in which two body parts had been welded to one another.
He was particularly concerned with the fact that the floor panels
had been spot welded at intervals of 50 mm and this, in his opinion,
should never have been done. According to Riegel, it was done badly
and incorrectly and the stability of the whole chassis was affected.











Riegel
said that driving the Mercedes Benz over an uneven road would cause
movement of the welded sections and the more the vehicle is used the
more the welded joints will weaken. At the time, he said, he was of
the opinion that if the vehicle was driven further, and depending on
the roads, it would break apart. After assessing all the
damage/defects he was of the firm opinion that the vehicle was not
roadworthy.



In
cross-examination Pviegel referred to his second test drive of the
Mercedes Benz. He said that he drove it at 100 kph and found it
difficult to keep control when negotiating a bend. It is apparent
from the evidence of both Kandolf, who drove the vehicle for a total
of about 2500 kms, and Berry, who drove the vehicle from Windhoek to
Okahandja and back at high speed, that neither of these witnesses
experienced the difficulty referred to by Riegel. If the evidence of
these two witnesses is correct then either Riegel is mistaken in his
recollection of the behaviour of the vehicle or the cause of such
behaviour was not inherent, was capable of rectification and had
been rectified at least by the time Berry drove it. I will return to
this later in this judgment.











In
cross-examination Riegel was also asked about other potential causes
of vibration and pulling to one side or the other. He agreed that
the following can be potential causes: varying tyre pressures, wheel
balance, bent wheel rims, incorrect axle adjustment, uneven tyre
rotation and, to some extent, poor tyre wear combined with bad shock
absorbers. The witness also agreed that all these defects can be
rectified.











Riegel
was also questioned about the various defects referred to in his
1993 report and how they affected the driveability of the Mercedes
Benz. He said that the crux of the matter was that two sections had
been welded together. He insisted that this has an influence on
stability. Although he admitted to certain mistakes in his
evidence-in-chief concerning welding seams on the Mercedes Benz he
said that they did not alter the fact that two parts were joined
together. That was a theme which was repeated from time to time and
it seems that Riegel has a deep-seated objection to vehicles where
two parts have been welded together. I will consider whether this
has affected his objectivity later in this judgment.



With
regard to reconstruction of accidents, at the outset of his evidence
the Court raised the question whether it had been established that
Riegel was qualified to express opinions on such a subject.
Eventually, Mr Geier applied for leave and was granted leave to
adduce further evidence and it emerged that in the mid-sixties
Riegel had been fairly extensively involved in reconstructing
accidents, that in the following years up until 1990 he had been
involved in 25 to 30 of such cases and since 1990 had been involved
in approximately 15 more. Based on his experience I ruled that he
could give evidence reconstructing the accident. However, although
he expressed certain opinions in his evidence-in-chief as to the way
in which the accident occurred, in cross-examination he said that he
had not been asked to do a reconstruction. He said that he had
visited the site of the accident in 1998 and taken measurements of
points indicated by the plaintiffs attorney but after so many years
he could not do a reconstruction. He went further and said that had
he not driven the Mercedes Benz in 1993 he would not have been able
to give any opinion concerning reconstruction.











In
the foregoing circumstances I find it unnecessary to dwell further
on the evidence of Riegel save to mention his evidence concerning an
indentation on the roof of the Mercedes Benz. This can be seen in
three photographs of the vehicle taken while the two parts were kept
at Kalkfeld Police Station. The indentation is to the front of the
roof on the driver's side and Riegel conceded that if this
indentation was caused by the tree it would mean that the vehicle
was intact when it hit the tree. Riegel further agreed that another
photograph, Exhibit H53, shows that bark had been removed from the
tree at a point which coincides approximately with the roof of the
Mercedes Benz. Finally, Riegel conceded that the vehicle was
probably in one piece when it hit the tree although he continued to
insist that the deceased "probably" or "possibly"
lost control because of defects in the vehicle.











Due
to the unsatisfactory nature of Riegel's testimony, Mr Geier sought
leave to call a further expert and although Rule 36(9) of the High
Court Rules had not been properly complied with such leave was
granted. And so Jacobus Verster was called to give evidence. He is
employed by a local authority in South Africa as an accident
investigator and reconstruction expert and, having regard to his
qualifications and experience is well-qualified to testify with
regard to accident reconstruction.











Verster's
evidence ranged over a number of topics and I will bear in mind his
evidence as a whole. However, I will summarise only two aspects of
his evidence. With regard to the speed of the Mercedes Benz
immediately prior to the accident, Verster was prepared to accept
that speed was involved but he was not prepared to say that such
speed was high speed. He said that it was clear from the road
engineer's plan, which was one of the plans placed before Court,
that the road at the point where the accident occurred is more
straight than curved. This, in the opinion of Mr Verster, was one
factor to be taken into account when deciding whether speed played a
role. In his view, the curve in question could be taken at
approximately 180 kph with ease "give and take maybe a little
bit of steering forces". Then, addressing the damage to the
Mercedes Benz, as depicted in various photographs, Verster said that
you cannot just look at damage and assume from the extent of the
damage that the vehicle was travelling at a high speed. He said that
a more scientific approach was required using what he described as
"crash analysis data". As for the fact that part of a rear
seat and a gas cylinder were thrown some distance from the rear part
of the Mercedes Benz, Verster maintained that it would be dangerous
to conclude that this indicated high speed without first considering
various factors. Was it the whole seat or just a part? If the
former, was the seat bolted down? How high was the cylinder
projected? Did it bounce or slide along the ground? What was its
weight? Without answers to questions such as these Verster said he
could not say that high speed was involved.











The
other part of Verster's evidence which I intend summarising is his
evidence regarding separation of the Mercedes Benz or part thereof
prior to the collision with the tree. Verster's opinion was that the
roof of the Mercedes Benz, at least at the A pillars, was probably
separated from those pillars just prior to the vehicle colliding
with the tree. The A pillars are the metal struts which run from the
front comers of the roof to the wing of the vehicle. Verster echoed
Riegel's evidence that it can be seen from the photographs that
there is an indentation on the right side of the front part of the
roof which, according to the witness, indicates force being applied
to the roof at that point in the direction of the rear of the roof.
In other words, that part of the roof had been forced towards the
rear. However, when one looks at the right side of the roof, i.e.
the part of the roof running from the right A pillar to the rear,
there is no damage. If the roof was attached to the right A pillar
at the point of impact one would expect damage in that area. The
witness' conclusion was that as there was no damage in that area but
damage was caused to the front of the roof then the roof had to be
lifted up at the point of impact.











Verster
said that this conclusion was further supported by what can be seen
in photograph H46 of the right A pillar. It can be seen, he said,
that the A pillar has been pushed towards the centre of the Mercedes
Benz. If the roof had been attached to the A pillar when the A
pillar was pushed into that position it would have dragged the roof
with it. The roof would not have jumped away and sustained no damage
on the right side. Verster considered that Titus' description of the
roof lifting made a lot of sense. Verster's reconstruction of the
accident was that the roof jumped open, the driver probably got a
fright and jerked the steering wheel or braked and as a consequence
lost control. From the tyre marks on the road the Mercedes Benz was
at some stage on it's wrong side of the road and then yawed back to
its correct side and collided with the tree.











In
cross-examination Verster was constrained to agree that he had made
a mistake when identifying the A pillar in photograph H46. He agreed
that what he had identified as the A pillar pushed towards the
centre of the Mercedes Benz was in fact the cover of the A pillar.
He agreed that the right A pillar is depicted in photograph H47 and
it has a substantial kink in the middle. He further agreed that if
the A pillar had been attached to the roof when the impact occurred
one would see it in the condition shown in photograph H47.











Mr
Muller then put to Verster that the kink on the A pillar proves that
the roof was still attached to the A pillar at the point of impact.
Verster did not disagree with this suggestion contenting himself
with saying why did the roof not sustain damage to the right? Mr
Muller then put it to the witness that on the probabilities the roof
was still attached at the time of impact and Verster said that he
had to agree with that probability. He also agreed that the roof
would have sagged a little as a result of the A pillar bending and
when it was put to him that this would explain the indentation on
the front of the roof he said that under such circumstances the
possibility did exist. Pursuing this, Mr Muller suggested that
because of the force of penetration and the angle involved the tree
would have caused the indentation as seen on photograph H46 and
Verster agreed. However, he continued to insist that the absence of
damage on the right side of the roof was significant.



Verster
was then questioned about his thought processes when formulating his
opinion on how the accident occurred. He agreed that step one was
Titus' account. Step two was Riegel's evidence. And step three was
confirmation by the photographic evidence. He said that if Titus'
account had been simply that the Mercedes Benz shuddered, that the
deceased lost control and then tried to regain control then he would
not have come to the conclusion he did.











The
defendant called two experts, Johannes Strydom and Martin Slabber.
Strydom is a consultant in investigation, cause analysis and
reconstruction of motor accidents and his qualifications and
experience are similar to, though rather more extensive than, those
of Verster. The same information was made available to him as was
provided to Verster and he had the added advantage of visiting the
scene of the accident albeit almost four years after it had
occurred.











Strydom's
conclusion concerning the accident under consideration is set out in
the summary of his evidence which he confirmed in the witness box.
His conclusion reads:















"I
am of the opinion that this collision occurred as a result of the
driver of the Mercedes Benz vehicle who entered the said curve in
the left lane at a high speed, lost control, swerved sharply to the
right to try to gain control over the vehicle, left the road on the
western side of it, and at this stage the vehicle started spinning
anti-clockwise and skidded side-ways across both lanes and hit the
tree on the drivers side of the vehicle.







At
impact with the tree the vehicle broke into two parts and came to
the final resting positions as indicated on the police plan."







Strydom
said that in reaching his conclusion he took into account the final
resting positions of the two parts of the Mercedes Benz, the yaw
marks on the road, the damage marks on the tree, the damage to the
vehicle, the positions of the two injured pedestrians and the layout
of the road including the curve.











With
regard to speed the witness said that there was not enough physical
evidence to calculate the speed of the Mercedes Benz correctly but
he adhered to the view that the speed must have been high. This view
was based on the matters just mentioned and his twenty nine years
experience dealing with motor accidents.











Unlike
Verster, Strydom did not have regard to Titus' evidence when
reaching his conclusion and so far as the question of the roof
lifting that, he said, was not in his field. In cross-examination he
agreed with counsel that, generally speaking, one would not expect a
driver to lose control when negotiating the curve in the road with
which this case is concerned. He said that normally that curve could
comfortably be negotiated at 140 kph.











Slabber's
qualifications and experience differ from the other experts who
testified. He graduated from Stellenbosch University, South Africa
in 1955 with a degree in mechanical engineering. He then did
practical training in the United Kingdom and from 1960 lectured in
the engineering faculty of mechanical engineering at Stellenbosch
until 1973. From 1973 he worked for various companies involved in
the production and design of motor vehicles. The same information
made available to Verster and Strydom was made available to him and,
like Strydom, he visited the scene of the accident.















Based
on the information made available to him and his visit to the scene
of the accident Slabber reconstructed the accident as follows:















"That
the driver of the Mercedes Benz lost control of the vehicle when he
tried to negotiate the right-hand turn on the approach to Kalkfeld
from Otjiwarongo. He was travelling at a high speed and landed on
the right-hand verge.







To
regain control, the driver tried to cross back to the left-hand side
of the road. Regrettably his corrective action was to swerve
resulting in a broadside back across the tarred section of the road.
The back of the vehicle started rotating in an anti-clockwise
direction, with right-hand rear tyre making a distinct broadside
rubber mark on the road.







At
this stage the driver was still trying to correct the situation by
turning the steering to the right. The result of this action was
that the front tyres left no distinct mark on the road.







The
Mercedes Benz crossed the particular section of the road at an angle
increasing from parallel to about 24 degrees at the left-hand verge
of the tarred section (Eastern side). The vehicle itself had rotated
through approximately 57 degrees.







With
the rear wheels still on the tarred section, the left front comer of
the vehicle collided with the steel cables strung from the short
supporting poles.







As
the vehicle penetrated the cables the left-hand vertical section of
the chromed grill assembly and the left-hand headlight assembly made
contact with the upper steel cable as depicted in photograph 48 on
page 27. The cable penetrated the front end of the left-hand front
fender, folding it backwards and causing the buckle on the upper
edge.







As
the vehicle further penetrated the cable barrier, three of the
support poles collapsed, two ahead of the tree and one beyond the
tree. The vehicle was partly constrained by the cables, until they
snapped. This resulted in a further rotation of the vehicle to a
total rotation angle of approximately 106 degrees. The further
penetration of the cables during this phase, also caused the engine
hood (bonnet) to buckle.







The
vehicle struck the tree at an angle of about 106 degrees on the
right-hand front door. This impact position is slightly ahead of the
vehicle's centre of gravity, which will cause the vehicle to rotate
further in an anti­clockwise direction. Penetration of the tree
will continue to a maximum point.



The
tree had two stems of which one was partially torn off as depicted
in photograph 53, page 29. The upper section of the tree branch
contacted the leading edge of the roof above the driver's head at a
point where the windscreen starts. Refer to photographs 44, 45, 63
and 64.







The
construction of the vehicle is such that the section from the front
seats forward can be considered as one part with its own centre of
gravity, as well as the same for rear section. Impact on the
driver's door will then cause a sideways bending action of the
vehicle structure. If the induced bending moment due to the impact
is high enough, vehicle will start pulling apart from the left-hand
side and will totally part due to the momentum of the rear section.







After
parting, the rear section will still have sufficient momentum to
propel it to the final position as indicated in the police plan.







The
fact that the rear seat of the car as well as a gas bottle in the
car were flung from the rear part of the car and collided with two
persons quite a distance further is an indication that the vehicle
travelled at a high speed on impact with the tree."







Slabber
elaborated on his reconstruction while in the witness box. He dealt
with the reaction time of a driver confronted with the bend in
question, a bend which Slabber described as slight. He said that
once the vehicle was on the dirt or gravel section on the western
side of the road the driver would obviously try to get it back on
the road. If he had gone back gradually he should have had no
problem but if he turned too sharply he would have induced a
sideways or yaw movement. The vehicle then started to rotate and
Slabber illustrated the movement of the vehicle as it crossed the
road on a plan which he had prepared and with the aid of a model
car. Slabber then explained why he was of the opinion that the
Mercedes Benz first struck the cables strung from poles, an opinion
with which Verster disagreed. The vehicle continued to rotate and
struck the tree on the right hand door. Due to the centre of gravity
of a vehicle being more or less where the gear lever would be the
Mercedes Benz would then have rotated further. Slabber went on to
explain that the effect would have been that one side of the vehicle
would want to open and the other side close-in. Put another way, one
part would be under tension and the other under compression and if
the tension is high enough there will be a tearing or breaking
apart. Having broken off the rear section spun around and ended with
the open section facing south.











Dealing
with the speed of the Mercedes Benz, Slabber started his
considerations by taking the speed of the vehicle when it entered
the bend as 120 kph. This speed was given to him and presumably
comes from Titus' statement to the police. He then considered the
damage to the vehicle with a view to ascertaining its speed when it
struck the tree. He said that the damage did not enable him to come
to any precise conclusion regarding speed but it must have been
considerable. He also took account of the possibility that the
deceased braked once he realised there was a problem and continued
to brake once the vehicle left the tarred road. When the vehicle
returned to the tarred road it started to yaw or broadside as is
evidenced by the tyre marks on the road and this would have resulted
in further retardation of its speed. Then there was the fact that
two pedestrians were struck by objects propelled from the vehicle.
Slabber was of the firm opinion that the gas cylinder and rear seat
cushion left the rear part of the vehicle when it spun after
colliding with the tree and both objects were thrown a considerable
distance. This, he said, indicates that there was a high spin on the
rear section after the collision plus longitudinal speed. Slabber
was of the opinion that the speed of the Mercedes Benz when it
collided with the tree was somewhere in the region of 70 kph, maybe
more. And although he took a speed of 120 kph as his starting point
he was of the opinion that the speed of the Mercedes Benz when it
entered the bend was probably higher.















Slabber
was also asked to comment on the evidence of Titus, Riegel and
Verster regarding the lifting of the roof of the Mercedes Benz. He
said that it was not possible for the roof to have lifted for 15 cm
in the middle as described by Titus. For the roof to have lifted it
would have had to have parted from both A pillars and could not just
have lifted in the middle. And if it had lifted from both A pillars
but remained connected to the two B pillars which are situated
between the front and rear doors there would have been a distinct
kink in the roof; but no such damage is depicted in any of the
photographs. Further, if, after lifting 15 cm, it was no longer
connected to either A pillars or B pillars there would have been
some indication at the back end of the roof that it had moved up 15
cms. There was no such indication. As for the evidence of Titus that
part of the Mercedes Benz broke and there was a gap in the floor of
about 6 cms which ran from the middle of the left seat to the drive
shaft tunnel, Slabber was of the opinion that there was no way in
which that could have happened. Although there was only stitch or
spot welding along the floor panels the two sills on either side and
the tunnel in the centre were continuously welded as accepted by
Riegel in cross-examination. Accordingly, there was no reason for
there to be an opening in the floor panels which are positioned
between each sill and the tunnel.











Dealing
with the evidence of Riegel and Verster regarding the lifting of the
roof, Slabber said it is clear from the photographs that the tree
penetrated the driver's door and right A pillar. This, he said, is
established by the severe kink on that A pillar. At some stage in
the penetration process the kink in the A pillar became so severe
that it tore the A pillar from the top. The witness then referred to
photograph H46 which, he said, clearly depicts a definite tear at
the top of the A pillar. He disagreed entirely with Verster's
evidence that it was a clean break at the welding seam. He placed a
ring around the top of the A pillar where the tear occurred.



Slabber
also gave an explanation for the indentation on the front leading
edge of the roof on the driver's side, the indentation relied on by
Pdegel and Verster as suggesting that the roof had lifted prior to
the impact with the tree. He said that this was caused when the tree
had penetrated the A pillar. He illustrated this part of his
evidence in a sketch (Exhibit V). The witness said that the tear
marks at the top of the A pillar together with the kink in the A
pillar which caused the tearing plus the deformation of the door
frame all lead to the fact that the A pillar on the right side was
still attached to the roof at the time of impact.











As
for Verster's opinion that damage to the right edge of the roof was
to be expected if the roof was still attached at the time of impact,
Slabber said that that would be expected if the impact was further
back but not when the impact occurred against the A pillar with the
vehicle rotating.











Slabber
also commented on Riegel's 1993 report. Some of the points dealt
with were the following. Poor tyre treads would not have had any
effect on the driveability of the vehicle when driven in dry
conditions. The difference in distance between the two axles of 26
mm meant that one axle sat across the vehicle at an angle. Taking
the distance from the middle of one wheel as
1500
mm and applying basic mathematical principles the angle involved was
0,99°. Slabber said that such a small angle would not have an
influence on the driveability of the vehicle although it would crab.
However, with the angle as low as 1° a driver would not easily
notice it. It makes steering to one side easier than to the other
and it could have an effect on the wear of the front tyres.















With
regard to Riegel's evidence that the joining together of two vehicle
sections has an influence on stability, Slabber said that the wrong
terminology had been used. The body does not give stability to a
vehicle. The correct word is "stiffness". Slabber
explained that the bodies of different types of vehicles vary in
stiffness. They are not absolutely rigid. If the weld on the sills
and the drive shaft tunnel were properly welded then the fact that
the floor panels are stitch or spot welded would contribute little
to the stiffness of the body.











Slabber
was also asked about Riegel's conclusion that the Mercedes Benz was
unroadworthy and he said that he did not share that conclusion. Such
defects as there were could be adjusted. Although it was to some
extent skew, if he had to use the vehicle he would live with that.
Any vibration which was experienced had nothing to do with poor
welding.











Slabber's
evidence-in-chief was probed at some depth in cross-examination but
the general picture that he had painted was not materially altered.
He accepted that the result of butt welding is that the joint which
has been welded would be weaker but only a little bit weaker. He
considered that the welded material would be more or less 80% of its
original strength but this would fall within the necessary safety
margin. Slabber was also questioned about the likely result of bad
welding and he conceded that if cracks appear where bad welding has
been done you will get progressive worsening eventually leading to
the vehicle breaking up. However, he reiterated that you would not
have movement in one area such as the floor panels. The whole would
move together. He considered it unlikely that both welded sills and
the welded tunnel would break simultaneously and if one sill were to
break the driver would be aware of it.















As
I indicated earlier in this judgment the question of liability
involves two issues, namely negligence and causation. The test for
determining negligence was authoritatively stated by Holmes, J.A. in
Krttger
v Coetzee
1966(2)
SA 428 (A) at 430 E-F:















"For
the purposes of liability
culpa
arises
if-



a) a
cliligens
paterfamilias
in
the position of the defendant -



(i) would
foresee the reasonable possibility of his
conduct injuring
another in his person or property
and causing him patrimonial
loss; and



(ii) would
take reasonable steps to guard against such
occurrence; and



b) the
defendant failed to take such steps."







The
plaintiffs case, on the question of negligence, is that Riegel's
1993 report, (Exhibit J) correctly reflects the condition of the
Mercedes Benz at that time. The Mercedes Benz, according to the
report, was not "traffic safe / roadworthy" and, as it
could not be repaired, could only be used for spare parts. The
report was shown to Kaufmann, FNB's credit manager, in the second
quarter of 1994 and Riegel's conclusions were pointed out. Kaufmann
was therefore aware of the fact that the Mercedes Benz was not
"traffic safe/roadworthy" and was fit only for spares.
Despite this, FNB permitted Pretorius, of Motor House CC, to remove
the Mercedes Benz from its repossession yard for the purpose of
selling it and ultimately it was knocked down to the deceased at an
auction. The deceased was permitted to drive the vehicle away and
one week later, because of its condition, the deceased was killed.











Mr
Geier submitted that a reasonable person in the same circumstances
as Kaufmann would have foreseen the reasonable possibility of harm
to
the
deceased,
would have taken reasonable steps to guard against that possibility
but failed to take such steps. Counsel submitted that the three
parts of the test for
negligence
have been satisfied and that
FNB
should
be
adjudged
negligent.



VVhen
making his submissions Mr Geier relied in part on a certain passage
in the judgment of Levy, A.J. The learned judge set out the evidence
of one Angela Dreyer, an employee of FNB and Kaufmann's junior. Her
evidence concerned the deceased's application for finance for the
purchase of the Mercedes Benz. The judgment continues:















"It
was formally admitted by Mr Geier on behalf of Plaintiff that the
deceased had completed the form and applied for finance on 13
th
September
1994 and that Mr Kaufmann approved thereof."







1
do not see how the plaintiff can use an admission made on her behalf
to prove a fact against the defendant. But, in any event, there is
no evidence that Kaufmann realised or should have realised that the
deceased's application for finance was in respect of the Mercedes
Benz to which Riegel's report referred.











Although
not expressly concluded in such terms, Riegel's report can, in my
view, be interpreted as concluding that the Mercedes Benz was in a
dangerous condition. Not only does it conclude that the vehicle was
not "traffic safe/roadworthy" but it states that it is
only fit for spare parts. That Kaufmann saw it in this light is, I
think, made clear by Pfeiffer's evidence, which I accept, that
Kaufmann told him that he would have sleepless nights if someone
should die while driving the Mercedes Benz.











If
Riegel's report was correct in its conclusion and the Mercedes Benz
was indeed in a dangerous condition then, in my judgment, Kaufmann
should have taken steps to ensure either that the vehicle was not
disposed of for use on the road or that anyone acquiring it or, for
that matter, using it, was made aware of its dangerous condition.



Pretorius
asked FNB if he could sell the Mercedes Benz on their behalf and FNB
agreed. He was permitted to remove the vehicle from FNB's
repossession yard for the purpose of selling it. One of the
employees of FNB with whom Pretorius dealt was Kaufmann and
Pretorius denied that he had been told by Kaufmann or the other
employer with whom he dealt that the vehicle had been damaged and
rebuilt. It must, in my view, follow from this that he was also not
told that the vehicle was in a dangerous condition.











As
Kaufmann was not called to testify by the defendant the evidence of
Pretorius to which I have just referred remains uncontradicted and,
in my view, must be accepted. I therefore find that Kaufmann not
only failed to take any steps to ensure that the Mercedes Benz was
not disposed of for use on the road and failed to pass on
information concerning the vehicle's dangerous condition but he was
actually instrumental in having the vehicle put up for sale. In my
judgment, if the evidence establishes that the Mercedes Benz was
indeed in a dangerous condition then Kaufmann was negligent.















The
minutes of a pre-trial conference held on 9
th
February, 2001 record that:















"Defendant
admits that Pikkie Louw and J Kaufmann were employees of Wesbank /
FNB during September 1994 and that they acted at all relevant times
within the course and scope of their employment as aforesaid."







If
Kaufmann was negligent FNB, as his employer, must be held
vicariously liable for his negligence.















The
question of negligence is entwined with the question of causation
because in each the state or condition of the Mercedes Benz in
September, 1994 has to be considered. In this connection, Mr Geier
relied heavily in final submissions on the direct evidence of Titus.
If the Court were to accept the evidence of that witness as to how
the accident occurred then clearly the death of the deceased was
caused by the dangerous condition of the vehicle. However, I have to
consider to what extent, if at all, Titus is a credible and
trustworthy witness. I agree with counsel that, when seen in
isolation, Titus' description in examination-in-chief of what
occurred appeared plausible enough particularly when seen against
the backdrop - undisputed - that the vehicle separated into two
parts. But Titus' description in examination-in-chief of what
occurred cannot be considered in isolation. It must be considered
and weighed against several factors which emerge from the rest of
the evidence, not least being his statement to the police made on
3
rd
October,
1994 less than a fortnight after the accident.











I
have already set out the contents of Titus' statement and I do not
intend to repeat them. It is perfectly plain that what he told the
police bore little resemblance to what he told this Court some six
years later. Indeed, the only common denominator in his police
statement and his testimony is his reference in the police statement
to the Mercedes Benz shivering "like it was going to broke in
two pieces" but there can be no real doubt that by 3
rd
October, 1994 Titus was well aware that that was what ultimately
happened. He said in cross-examination that he had even been
interviewed at some stage by NBC reporters.











Titus
did not deny making the police statement and, in any event, there
was adequate proof that he did make it both from his own lips when
he identified his signature and from the evidence of Sgt. Kairua.
When questioned on how he could give a graphic description in
February, 2001 of hovv the accident happened whereas in October,
1994 he told the police that he did not know how it happened all the
witness could resort to were unconvincing answers such as maybe it
was not clear to him in 1994 or probably he could not remember
everything at that stage.











When
seen in the light of his statement to the police I regard the
account given by Titus to this Court as highly suspect but that is
not all. Slabber, who, to my mind, was the epitome of an expert
witness, dismissed Titus' account of a 6 cms gap appearing in the
floor of the Mercedes Benz from the middle of the left seat to the
drive shaft tunnel out of hand. I find his reasons for doing so
convincing. In making this finding I take account of Riegel's
evidence which was not in agreement with that of Slabber but I
regard the latter's evidence as vastly superior. Not only is he far
better qualified to express opinions on matters which fall within
the domain of mechanical engineering but he provided convincing
reasons for his opinions whereas Riegel fell back on generalisations
such as that it is never allowed by the manufacturer to cut the body
of a motor vehicle into pieces and weld them together.











Further,
there is the question of the roof parting from the windscreen by
about 15 cms in the middle as described by Titus in his evidence.
Slabber said that that was not possible and even Riegel said that he
could not imagine that happening.











Mr
Geier submitted that corroboration for Titus' evidence concerning
the roof can be found in the testimony of Verster that the roof of
the Mercedes Benz had to be lifted up at the point of impact with
the tree. This conclusion was based on the presence of the
indentation on the right side of the front part of the roof and the
absence of any damage on the right side of the roof.



However,
in cross-examination Verster agreed that he had made a mistake when
identifying the right A pillar in the photographic evidence. The
position of the A pillar, as identified by the witness, formed part
of his reasoning for the conclusion that the roof had lifted prior
to the impact and when the A pillar was correctly identified Verster
did not disagree with the proposition that the kink on it proves
that the roof was still attached at the point of impact. He was then
constrained to fall back on the absence of damage on the right side
of the roof.











The
absence of damage on the right side of the roof of the Mercedes Benz
was, in my view, satisfactorily explained by Slabber. The impact
with the tree occurred while the vehicle was rotating. The tree
penetrated the driver's door and the right A pillar. The right A
pillar slopes from the wing of the vehicle to the roof and when the
tree penetrated it would not have made contact with the right side
of the roof. In my judgment, that is the probable explanation for
the absence of damage on the right side of the roof.











Verster
and Riegel also sought to support their respective opinions that the
roof had lifted prior to the impact by reference to the indentation
on the right side of the front of the roof. Slabber also dealt with
this. It was caused, he said, when the tree penetrated the A pillar.
In cross-examination Verster agreed that this was a possibility but
I would go further. If one has regard to photograph H46 it can be
seen that there is a tear at the top of the A pillar as testified to
by Slabber. This is not consistent with the welding seam breaking on
its own. It is, however, consistent with force being applied to the
A pillar causing it to bend or kink and dragging the roof down to a
point where it tore away from the A pillar. In the process the tree
could well have caused the indentation on the front of the roof and
I accept Slabber's evidence, at least on a

balance of probabilities, that this was what happened. I accept that
at the time of the impact the A pillar on the right side was still
attached to the roof.











Mr
Geier submitted that Titus had no motive to misrepresent the events
surrounding the accident but it is not necessary for the defendant
to establish a motive. Whatever his reasons for doing so, I am
satisfied that Titus has placed before the Court a fictitious
account of what occurred. I reject his testimony.











That,
of course, does not dispose of the matter completely. There remains
the evidence of Riegel concerning the condition of the Mercedes Benz
in July, 1993, the fact that the curve in the road being negotiated
by the deceased when he left the road was gentle or slight and the
evidence of Riegel that in his opinion the deceased lost control
because of defects in the vehicle.











Riegel's
evidence must first be compared with that of Kandolf and Berry.
Riegel was highly critical of the condition of the Mercedes Benz.
When he test drove it in July, 1993 it was, he said, unstable,
vibrating and pulling very strongly to the right. He found it
difficult to keep control when negotiating a bend at 100 kph.
However, Kandolf, who drove the vehicle for a total of about 2500
kms, and Berry, who drove the vehicle from Windhoek to Okahandja and
back at high speed, did not experience these difficulties. Kandolf
said that he only noticed a little pull to the right and, apart from
that the Mercedes Benz was "nice" and "very
comfortable". And Berry said that all he noticed was a little
vibration on the steering wheel at a speed of between 150 and 160
kph. To that can be added the fact that the deceased, who also test
drove the Mercedes Benz, subsequently saw fit to bid for it at
auction and to use it to convey his children

and friends. There are therefore two completely different pictures
of the behaviour or performance of the Mercedes Benz.











What
emerged clearly from Riegel's evidence was his deep seated dislike
for vehicles where two parts have been welded together and I think
it likely that this, coupled with the fact that the Mercedes Benz
ultimately broke in two, has coloured his mind and probably, to some
extent, affected his recollection. It must be borne in mind that
Riegel was only called upon to report on the accident in January,
1998, more than three years after it had occurred and more than four
years after he had inspected the Mercedes Benz. And in his 1998
report he felt free to condemn the welding joint which held the two
parts of the vehicle together as "extremely unprofessional"
and to state, as a "finding" that the weld joints had come
undone as the vehicle was travelling through Kalkfeld resulting in
the two parts of the vehicle separating. Yet in evidence he admitted
that the welding of the two sills and the tunnel was continuous
welding and abandoned his "finding" that the vehicle broke
in two prior to colliding with the tree. In my view, Riegel's
evidence as to the condition or behaviour of the Mercedes Benz in
July, 1993 must be approached with a great deal of circumspection.











On
the other hand, the evidence of Berry was simple and
straightforward. He test drove the vehicle at the beginning of
September, 1994 and, after the accident which took place a couple of
weeks later, saw pictures of the deceased in the newspapers. He
therefore had good reason to recall what had happened. In my
judgment, Berry's evidence can safely be relied upon and either
Riegel is mistaken in his recollection of the behaviour of the
Mercedes Benz or, as was said by Slabber, adjustments must have been
made to it during the period from Riegel's test drives to the time
it was driven by Berry.











To
succeed in this action the plaintiff has to prove that the Mercedes
Benz was in a dangerous condition and that as a result thereof it















"commenced
and/or developed tearing and/or cracking and/or commenced breaking
up and left the road and collided with a tree."







In
my judgment, the plaintiff has failed to prove either of these
allegations. Looking at the probabilities as a whole, the accident
and the death of the deceased were caused by the deceased losing
control of the Mercedes Benz for some reason not connected with its
condition. In these circumstances the action must be dismissed.











As
for costs, counsel are agreed that the costs of this part of the
trial must follow the event. Also, that the agreement in respect of
costs prior to 29
th
February, 2000 be made an order of Court. However, I was not asked
to make any order for payment of the qualifying expenses of the
defendant's two expert witnesses.















In
the result, the following orders are made:




  1. The
    action is dismissed;



  2. The
    plaintiff is to pay the defendant's costs of this part of the
    trial;



  3. The
    agreement in respect of costs prior to 29
    th
    February, 2000 is made an order of Court.










For
the Plaintiff:







Instructed
by



Advocate
H. Geier







Messrs
Oliver Law Office











For
the Defendant: Instructed by:



Advocate
L. C Muller, S.C Government Attorney










(P)
A 121/01





U
M STRITTER vs AFRICAN GAME (PTY) LTD & OTHER







HOFF,
J







HEARD
ON: 2001/05/03 DELIVERED ON: 2001/05/07







PRACTICE







URGENT
APPLICATION:



SUMMARY
JUDGMENT - Reason why urgent relief was sought inter alia - absence
of applicant.







No
reason advanced for absence and no reason advanced why urgent
application had not been instituted as soon as cause thereof has
arisen. Reason for absence important consideration in order to
establish whether court should exercise its discretion in favour of
applicant. Court not to be kept in the dark regarding cause of
absence. No case made out to be a application as matter of urgency.
Application struck from roll.