REPUBLIC OF NAMIBIA
THE HIGH COURT OF NAMIBIA
the matter between:
VAN NEEL 2ND
– 28/01/2010; 01/02/2010; 10/02/2010
This is a motor vehicle collision case. A collision occurred on 8
January 2006 at the intersection of Sam Nujoma Drive and Hendrik
Witbooi Street, between the two vehicles belonging to the plaintiff
and the first defendant respectively. Either party alleges that the
other’s driver was negligent. The plaintiff claims damages from
the first and second defendants jointly and severally, while the
first defendant counterclaims against the plaintiff for the damage to
The particulars of negligence alleged against either side are
to keep a proper lookout
failing to apply the brakes of the vehicle timeously or at all
failing to heed traffic lights
failing to give right of way to the other driver
failing to avoid a collision when with exercise of reasonable care it
was possible to avoid the collision.
The two versions are therefore
Crucially, either side accuses the other’s driver of driving
through a red traffic light and crashing into the other for whom the
traffic light was green and thus enjoying the right of way. Either
side also relies on contributory negligence of the other in the event
of it being found that their driver was the cause of the collision.
As a result of the collision either party suffered patrimonial loss:
The damage to the plaintiff’s vehicle amounts to N$ 70 882, 25
and that of the first defendant’s vehicle to N$48 209, 01. The
quantum is reciprocally admitted. My only task is to decide who was
The first witness for the plaintiff was Mr. Paulo Lubaki (Paulo) the
driver of her vehicle at the time of the collision. Paulo is the
plaintiff’s husband. According to Paulo he, his wife, Simon
Sledge Lebang and another male person, were on the fateful day
proceeding in his wife’s Jetta from east to west on Sam Nujoma
Drive. The time was about 16H30. His ultimate destination was Rocky
Crest which is located to the east of the intersection where the
collision took place. The plaintiff was sitting at the time in the
front left seat; while Lebang was seated in the rear left seat and
the fourth person in the rear right seat.
 Paulo testified that after
he had passed the Orban Primary School he drove towards the
intersection where the collision occurred. When he was still far from
the intersection, he observed that the robot light at the
intersection was red for him About 60 meters before the intersection
he noticed that the robot lights turned green in his favour –
giving him the right of way to proceed along his path. He saw no
traffic in the intersection at the time. As he proceeded, his wife
said words to him indicating that a vehicle was coming into the
intersection (from South to North). He then looked to the left,
noticed the other vehicle and applied the brakes but the two cars
were already too close to each other and collided. Paulo and his
passengers alighted from the vehicle and Paulo went over to the
driver of the other vehicle, Mr. van Neel (“the second
testified that he was very angry after the collision and was asked by
his wife to cool down. He then confronted Van Neel and asked him
do you want to kill us?”,
whereupon Van Neel apologized and said he was driving under pressure
and that he was on the cellphone at the time speaking to his employer
who wanted him to get back to the workplace to make an unexpected
delivery before 17H00 – as a result of which he did not see the
red light. Paulo testified that after the collision, Van Neel’s
employer came and also apologized over his driver’s causing the
collision and promised Paulo that the damage to the Jetta will be
covered by his insurance.
Paulo testified that the “City Police” arrived soon after
the collision and took possession of the second defendant’s
driver’s license which was only returned to van Neel at the
request of his employer.
 The next
day Paulo went to the offices of the traffic police and made a
statement about the collision. He there ascertained that the second
defendant made a statement which he considered was contrary to the
second defendant’s acceptance at the scene of the collision
that he was in the wrong. Paulo testified that he thereupon called
the second defendant on the cellphone and informed him that his
statement was not in accordance with what happened and told him that:
truth will set you free.”
 On cross-examination he
stated that upon entering the intersection he never looked (as he did
not need to) left or right for oncoming traffic.
for the defendants put to Paulo that no mention was made in the
particulars of claim that Van Neel was on a cellphone at the time of
the collision; that Paulo did not know the speed limit on the road;
that he could not tell how fast he was driving at the time, and that
he did not look left or right before he entered the intersection- all
of which Paulo conceded but suggested not to have made any difference
as he was right in entering the intersection when he did.
Paulo denied the suggestion by Mr Geier that there was another
vehicle in the intersection proceeding from the north to the south
which Van Neel had to and gave way to before he (Van Neel) could turn
into Sam Nujoma Drive to proceed in the opposite direction from
which Paulo came.
The next witness for the plaintiff was Simon Sledge Lebang. He
lodges at the home of the plaintiff and her husband Paulo and he did
so at the time of the collision. He knows the Lubaki family since
2003 and considers himself part of the family.
At the material time, he was in the Jetta sitting in the left rear
seat right behind Mrs Lubaki. He confirms the time to have been
around 16H30. According to Sledge, as they approached the
intersection, he heard Mrs Lubaki shout something to the effect that
the vehicle coming from the south on Hendrik Witbooi Street was not
going to stop. This was about 8 meters before they reached the
intersection. Sledge testified that he had a good view of the
intersection as they approached and did not see any other vehicle
inside the intersection, or any vehicle approaching the intersection
in either direction. Sledge testified that he saw the other car for
the first time when it was already 1½ meters into the
intersection, i.e. when its nose only was inside the intersection.
Sledge testified that when Mrs Lubaki sounded the warning about the
car coming from the south on Hendrik Witbooi Street, he was able to
look at the robots and saw that the lights were green for the traffic
moving on Sam Nujoma drive in the direction they were proceeding,
i.e. east to west. According to Sledge, when Mrs Lubaki sounded the
warning, the Jetta was about 8 meters outside the intersection. He
also testified that at the time of the warning of Mrs Lubaki, he
looked to the left and got the impression that the driver of the
vehicle coming from the south on Hendrik Witbooi was holding a
cellphone to his ear.
Sledge confirmed that after the collision, Paulo angrily asked Van
Neel if he wanted to kill them and that Van Neel apologized and said
he was on the cellphone at the time. He was able to hear the
conversation between Paulo and Van Neel as he was about 2 meters from
them at the time.
 Sledge could not say if
Paulo was driving fast or slow at the time they entered the
intersection but denied that Paulo had enough time to swerve to the
right so as to avoid the collision.
The last witness was the plaintiff, Mrs Sophia Lubaki. She confirmed
that their Jetta was about 60 meters from the robot when the lights
turned green for them and Paulo proceeded into the intersection
towards the west. Mrs Lubaki testified that the robot light facing
them was green when her husband approached the intersection. When
they were about 6-7 meters from the intersection, she saw the vehicle
driven by the second defendant approach from the left on Hendrik
Witbooi Street and sounded the alarm to her husband. Paulo tried to
apply the brakes but it was too late to avoid the crash. She
testified that when she for the first time saw the vehicle driven by
the second defendant, its nose was just entering the intersection.
She testified that when she saw that vehicle it was already upon them
and it was not possible for Paulo to avoid a crash. The Mini Van
driven by the second defendant rammed into the Jetta, causing damage.
Mrs Lubaki testified that at the time she saw the Mini Van she
shouted to Paulo: “Is
this driver going to stop?” -
Or something to that effect.
Mrs Lubaki confirmed that Paulo was angry after the collision and
that she had to calm him down. She remembers that Paulo went to
speak to the second defendant but she did not hear their
conversation. Mrs Lubaki also testified that when the collision
happened, the Jetta was halfway into the intersection. Mrs Lubaki
denied the suggestion that she failed to observe the Mini Van earlier
than she should have.
The defense case
The only witness on behalf of both defendants was Donald De Wet Van
Neel, the driver of the vehicle that collided with the Jetta of the
plaintiff and the second defendant in this case. He was employed at
the material time by the first defendant as a driver and did
deliveries for first defendant’s clients. On the day of the
collision he was driving a ‘’Kia’’ bakkie
with a prominent “Fruit and Veg.” logo and was doing
deliveries for that enterprise. He testified that in the afternoon
before 17h00 he was instructed by a superior to return to the place
of work to undertake an unscheduled delivery. He was moving from
south to north on Hendrik Witbooi as he approached the intersection
of that street with Sam Nujoma Drive. His intention was to turn east
into Sam Nujoma Drive. As he approached the intersection, he
observed that the robot facing him was green, thus giving him the
right of way. He entered the intersection slowly because to the
north of the intersection he saw a vehicle approach, followed by
another one behind it.
According to Van Neel, he entered the intersection when he had the
green light but the light changed to “yellow” while he
was already inside the intersection, and the next moment he saw a
Jetta crash against the Mini Van he was driving. Van Neel was with a
co-worker inside the car who got injured in the collision. Van Neel
testified that after the collision he went over to the Jetta and
Paulo asked “how could I drive like that?” He did not
answer Paulo and went back to the Mini Van.
On cross-examination Van Neel testified that when he was around
Hochland Service station he got a call from a superior on his
cellphone to return to Fruit & Veg. for an unscheduled delivery.
He also stated that he was at no point stationary whilst inside the
intersection and that his car was proceeding slowly (at about 15 km
ph) until the moment of the crash. He said that when the crash
happened, the car coming to the north of the intersection had already
passed. He also testified that the lights changed to red for him
while he was already inside the intersection.
When asked if the light could have changed to amber before changing
to red Van Neel said it could have but that he did not notice it. He
also accepted that if the light had turned green for him, it could
not at the same time have turned green for Paulo. Van Neel disputed
that the collision took place at the approximate point indicated by
the Lubaki’s and Sledge, stating on the contrary that the
collision occurred seven meters inside the intersection from the
southern entry of the intersection, and about 12 meters inside the
intersection from the eastern entry point to the intersection, i.e.
the direction Paulo was coming from, prompting Mr. Slabber to place
on record that on that version the collision must have occurred much
closer to the western entry point of the intersection. Van Neel
stated that when he saw the Jetta for the first time it was already
upon him and that he had not seen it before that.
Van Neel testified that Lubaki was angry after the collision. Van
Neel then made an extra-ordinary statement more or less to the
cannot say exactly who was right and who was wrong, but when I
negotiated the intersection, the light was green.”
He went on
cannot say precisely that Lubaki is wrong.”
Van Neel also said that he cannot think that Paulo could have
confronted him in anger if Paulo believed that he [Paulo] was in the
wrong. Van Neel conceded, as he had done throughout, that at the
time he was on his way to load an unscheduled delivery and that he
was under time pressure at the time of the collision. When asked
where Paulo could have got that
information he pleaded ignorance but maintained it was not from him.
Van Neel confirmed that two days later, after he had given his
account of the collision to the police, Paulo confronted him on the
cellphone about his statement and said to him: “The
truth will set you free.”
What discrepancies and contradictions there are in the evidence of
Paulo, Mrs Lubaki and Sledge is not significant and was to be
expected 3 years after the collision happened. In fact such
discrepancies and contradictions show the likelihood of collusion
amongst these witnesses most unlikely. The core essence of the
evidence of these 3 witnesses was not shaken in cross-examination.
Significantly, when he was cross-examined Van Neel said that he could
not tell for sure if Paulo was correct in saying that the light was
green for Paulo when he entered the intersection. That is curious.
This must be seen against the backdrop that the evidence of the
plaintiff and her witnesses that it was when they were about 6-8
meters from the intersection, that the second defendant commenced his
entry into the intersection at which time it was not possible for
Paulo to take any reasonable steps to avoid a collision. Mrs Lubaki
and Paulo both testified in that respect that everything happened so
fast. The second defendant himself also testified that he only
noticed the Jetta when it was close to him just before the collision.
case of the defendants in the pleadings is that the light was green
for Van Neel when he approached and entered the intersection. The
robot light could not have been green for both. One of the two
drivers’ stories is false.
concession by Van Neel that he cannot tell for sure that Paulo is
right to say he had the green light makes his evidence untrustworthy.
It buttresses, in my view, Paulo’s version that he had the
green light to proceed while Van Neel did not. I find corroboration
for the plaintiff’s case in the following facts and
circumstances: immediately after the collision, Paulo in anger
accused Van Neel of driving negligently. He, in his own words and as
admitted by Van Neel, asked him. “Do
you want to kill us? Van
Neel never answered? What is more, he never remonstrated with Paulo
about this accusation as one would have expected him to do if he were
not the party in the wrong. Even when Paulo called him two days
later to accuse him that he had changed his story in the collision
report to the police, Van Neel never sought to point out to Paulo
that he was accusing him falsely for being the negligent driver.
Paulo testified that immediately after the collision, Van Neel
apologized and said that he was inattentive at the time because he
was driving under pressure as he had been ordered by his employer to
return to the workplace before five as there was another delivery to
be made before 17H00. He added that the employer of the second
defendant came and equally apologized to Paulo and assured him that
the damage to the Jetta would be taken care of by his
insurance. If true, this is a clear admission of negligence by Van
evidence is unambiguous that the collision took place at about 16H30,
giving Van Neel only about 30 minutes to get to his place of work,
load whatever cargo was to be loaded, and to make the unscheduled
delivery before 17H00. That indeed Van Neel was called by his
employer on the cellphone and so instructed was admitted by Van Neel
to be correct. Van Neel denies that he gave that information to
Paulo. Where else would Paulo have got the information from? Mr.
Geier’s suggestion in re-examination of Van Neel that it could
have been either the driver in Van Neel’s car or Van Neel’s
employer that Paulo could have got the information from is, at best,
speculative. Significantly, the suggestion was not put to Paulo in
cross-examination to comment on
and the employer was not called to come and say that he was the
source of the information. As regards the passenger in the Mini Van,
Mr. Geier stated that his testimony, if called, would not take the
case any further- a position accepted by Mr. Slabber. I therefore
make no inference either way from the fact that the passenger in the
Mini Van was not called.
In my view, Paulo evidence of what van Neel said to him –evidence
peculiarly in the knowledge of Van Neel- corroborates Paulo’s
story that Van Neel admitted to have been inattentive at the time and
that he drove into the intersection when the robot light was red
against him and green for Paulo.
 The second defendant’s
version that there was another car coming from the north inside the
intersection to which he had to give way was vehemently denied by all
of the witnesses of the plaintiff and I accept that their version
that the intersection was clear at the time the robot light turned
green in their favour.
 In my view the critical
question in this case is which driver had the right of way (green
light) at the time both entered the intersection?
 The testimony of Mrs
Lubaki and Sledge that at the time of the collision the Jetta was
only half-way into the intersection, supports the location pointed
out by the Lubakis and Sledge as the spot where the collision
occurred. I prefer their version of where the collision occurred to
that given by the second defendant: Van Neel testified that the
collision occurred about 7 meters into the intersection from his
direction and about 12 meters into the intersection from the eastern
entry point. On that version the collision took place very close to
the western point of entry to the intersection. That could not be as,
on the common cause facts, Van Neel had turned to the right (towards
the east) immediately after he entered the intersection at its
southern entry point which is about 7.4 meters from the eastern entry
point of the intersection. He later sought to back-track this
statement when he realised that
did not accord with even his own version of where the collision
occurred. This about turn raises doubts about the trustworthiness of
Van Neel’s recollection of events.
 Given that the two
versions are mutually destructive, the plaintiff can only succeed if
I am satisfied that her version is true and that of the defendants
The material point of dispute in this case is which of the two
drivers drove through the red light when the other had the green
light to proceed. One of the two versions is true and the other
false. The Lukakis and Sledge asserted vehemently that when the
Jetta reached the robot-controlled intersection the light was green
in their favour and that there was no other vehicle in the
intersection at that point and that by the time they noticed the Mini
Van driven by the second defendant enter the intersection Paulo did
not have enough reaction time to avoid a collision.
 Given that only one of the
two drivers could have driven through the red light, Van Neel’s
concession that he cannot say with certainty that Paulo did not heed
the red light – in the absence of even as much as a hint in the
evidence that the robot was not functioning properly- is damning as
it casts serious doubt on Van Neel’s version that he, not
Paulo, had the green light to proceed.
 Mr Geier has urged me that
it is common cause that when Paulo approached the intersection, the
Mini Van (with colourful and very prominent signage) driven by the
second defendant was already inside the intersection and that Paulo
should have seen it and taken avoiding action by swerving to the
right. Paulo was with his wife and two others in the vehicle, and the
notion that the Mini Van was so positioned inside the intersection at
the time that he should have seen it suggests that he chose
deliberately to bring harm unto himself, his wife and others. That is
 Both Mrs Lubaki and Lebang
testified that the very first moment they noticed the Mini Van it was
only its nose which was inside the intersection. By that time they
were only about 6-8 meters from entering the intersection with the
green light in their favour. Against this factual backdrop Mr Slabber
defendants version of the point of impact the front of plaintiff’s
vehicle was not more than some 4.5 meters into the intersection. At
worst for plaintiff her driver had travelled 12, 5 meters from the
moment plaintiff exclaimed about second defendant not stopping. At 60
kph 0, 75 seconds would have followed until impact. At 80 kph only 0,
5 seconds would have followed. No motorist, not even Michael
Schumacher, is equipped with instantaneous reaction to danger.’’
This accords with the testimony
of all the protagonists, that everything happened so fast and that
when they noticed the presence of each other’s vehicles, the
crash was inevitable.
 I agree with the dictum of
Muller J, relying on similar dicta from South Africa, that where a
motorist enters a robot-controlled intersection with the robot light
in his favour and while the intersection is clear, there is no duty
on that driver to regulate his driving on the assumption that the
driver of another vehicle approaching the intersection with the robot
against him might not stop. To expect more of the motorist who has
entered the intersection with the robot in his favour would be to
make driving impossible.
 I am satisfied that the
plaintiff has established on a preponderance of probabilities that
the second defendant drove into the intersection when the robot was
red for him and when it was green in favour of Paulo, and that
failure of Van Neel to heed a traffic light was the sole cause of the
collision that occurred on 8 January 2006 between the vehicle
belonging to the plaintiff and the one belonging to the first
defendant. The plaintiff has established on a balance of
probabilities that her version of how the collision occurred is true
and that of the second defendant false.
 It is common cause that
the second defendant was at the time of the collision in the employ
of the first defendant who is vicariously liable for the negligence
of the second defendant.
 The quantum of the damage
to the plaintiff’s vehicle having been admitted, the plaintiff
is entitled to judgment in that amount.
 I therefore make the
plaintiff’s claim against the first and second defendants
succeeds and judgement is entered for the plaintiff in the amount of
N$70,882.25, with costs.
amount of N$70,882.25 will attract interest at the rate of 20% per
annum calculated from the date of judgment.
first and second defendants are liable to the plaintiff for the
judgment debt of N$70,882.25 plus interest and costs, jointly and
severally, the one paying the other to be absolved.
first defendant’s counterclaim against the plaintiff is
dismissed, with costs.
ON BEHALF OF THE
PLAINTIFF: Mr. A. Slabber
WEDER, KAUTA & HOVEKA INC.
ON BEHALF OF THE DEFENDANT:
BEHRENS & PFEIFFER