CASE NO.

: I 1 7 1 7 / 2 0 0 3

IN THE HIGH COURT OF COURT OF NAMIBIA

In the m a t t e r between:

MARIA MAGDALENA SWARTZ PLAINTIFF

and

THE MOTOR VEHICLE ACCIDENTS FUND DEFENDANT

and

HARENZ SWARTZ THIRD PARTY

CORAM: VAN NIEKERK, J

Heard: 2 2 - 2 5 J u n e 2 0 0 4 ; 2 - 4 August 2004; 2 5 - 2 7 October

2 0 0 4 ; 1 - 5 November 2004; 2 - 3 December 2 0 0 4
Delivered: 10 March 2 0 0 6

JUDGMENT

VAN NIEKERK, J: The plaintiff instituted action against the defendant by way of combined s u m m
by h e r h u s b a n d , the third party, a n d a n o t h e r vehicle, driven by Mr Ben

Serogwe. It is c o m m o n c a u s e t h a t the plaintiff a n d the third party are

married in c o m m u n i t y of property a n d t h a t plaintiff is a quadriplegic as a

result of t h e injuries s u s t a i n e d . The q u a n t u m of plaintiffs claim h a s

been settled at N$4 7 1 3 232 - 00. It r e m a i n s for this Court to determine

the i s s u e of negligence.

The plaintiff alleges in her particulars of claim t h a t the sole c a u s e of the

collision w a s the negligent driving by Serogwe. Defendant admitted t h a t

collision occurred, b u t denied t h a t Serogwe w a s the sole c a u s e of the

collision. Defendant pleaded t h a t the sole c a u s e of the collision was the

negligence of Swartz, the third party. In addition it w a s pleaded t h a t the

said Harenz Swartz is a person contemplated by section 6(2)(b)(ii) of the

Motor Vehicle Accidents Act, 1990 (Act 30 of 1990). Alternatively, the

defendant pleaded t h a t if the Court should find t h a t Serogwe was

negligent, his negligence did not c a u s e the collision or the d a m a g e s

sustained by the Plaintiff, or contributed thereto. In the further

alternative the defendant pleaded t h a t if the Court should find t h a t

Serogwe w a s negligent a n d t h a t his negligence contributed to or c a u s e d

t h e collision, the negligence of Swartz contributed to the collision a n d the

plaintiffs d a m a g e s . As s u c h the defendant claims an a p p o r t i o n m e n t of

d a m a g e s in t e r m s of the Apportionment of D a m a g e s Act, 1956 (Act 34 of

1956).
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The defendant also issued a n d served u p o n Harenz Swartz a third party

notice in t e r m s of Rule 13 of the High Court Rules, (which notice was

a m e n d e d several times) as well as a notice in t e r m s of section 2(2)(b) of

Act 34 of 1956. It is common c a u s e t h a t the third party never intervened

in the action between t h e plaintiff a n d defendant, a n d that, should this

Court find t h a t t h e third party w a s negligent a n d contributed to the

plaintiffs d a m a g e s , this Court m a y only m a k e a declaratory order in

respect of t h e third party. (Shield Insurance Co. Ltd v Zervoudakis 1967

(4) SA 7 3 5 (ECD): Hart and Another v Santam Insurance Co. Ltd 1975 (4)

SA 2 7 5 (ECD); Randbond Investments (Pty) Ltd v FPS (Northern Region

(Pty) Ltd 1992 (2) SA 6 0 8 (W)).

The collision occurred at a robot controlled intersection shortly after

midnight in the early h o u r s of the Day of Goodwill, 26 December 1998.

The street in which t h e plaintiffs vehicle traveled, A b r a h a m Mashego

Street, r u n s t h r o u g h the intersection. Before the intersection along the

p a t h t h a t plaintiff traveled, A b r a h a m Mashego Street r u n s in a downward

direction, goes t h r o u g h t h e intersection a n d t h e n leads a c r o s s a bridge

which is positioned over a riverbed. Should one continue with this road

over the bridge, a residential a r e a on the immediate right is known as

Grysblok. F u r t h e r along A b r a h a m Mashego Street one would be traveling

in the general direction of Otjomuise, another residential area,

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approximately 5 kilometres away. It is in this residential are t h a t the

plaintiff a n d the third party lived. On the left side (as the plaintiffs

vehicle w a s traveling) of A b r a h a m Mashego Street there are h o u s e s a n d

on the right are t h e CCN offices. The road entering the intersection from

the left is M u n g u n d a Street a n d r u n s parallel to the riverbed. It

c o n t i n u e s t h r o u g h the intersection, b u t the street on the opposite side of

the intersection is called Caesar Street a n d also r u n s generally parallel to

the riverbed in a n o r t h e r n direction. The intersection is not a perfect

cross. A motorist entering the intersection from M u n g u n d a Street m u s t

veer slightly towards the right w h e n crossing over to C a e s a r Street. The

r o a d s were tarred a n d lit by electric street lights.

Before the intersection is reached, t h e view for a driver traveling from the

direction in which plaintiffs vehicle was traveling, towards the left to

M u n g u n d a Street is obscured, partly by the incline, partly by s h r u b s a n d

trees a n d a signboard on the corner of A b r a h a m Mashego Street a n d

M u n g u n d a Streets. Similarly the view of A b r a h a m Mashego Street to the

right for a person traveling in M u n g u n d a Street towards t h e intersection

is obscured by the s h r u b s , trees a n d sign board. M u n g u n d a Street lies

lower t h a n the a p p r o a c h of A b r a h a m Mashego Street towards the

intersection. Before M u n g u n d a Street e n t e r s the intersection there is a

slight dip in the street, where after it goes up at a slight incline towards

C a e s a r Street.
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In s u m m a r y the plaintiffs case regarding the collision itself a m o u n t s to

the following:

On 26 December 1998 shortly after midnight the plaintiff w a s a

p a s s e n g e r in a Volkswagen Caddy bakkie. She w a s sitting behind in the

bakkie, which h a d a canopy, with a female relative, Alexia a n d the

latter's small child. Plaintiffs h u s b a n d , the third party, drove the Caddy.

Next to him, in front w a s t h e witness Clemens Gaseb. They proceeded

along A b r a h a m Mashego Street in the general direction of Otjomuise.

Near the CCN offices they entered the robot controlled intersection,

which I described earlier. Mr Swartz entered the intersection at a b o u t 50

k p h while t h e robot w a s green for him. Shortly after he h a d entered the

intersection he collided with the vehicle of Mr Serogwe, which entered the

intersection from M u n g u n d a Street w h e n the robot w a s red for him. He

w a s traveling very fast. As a result of the collision the plaintiff w a s

injured.

In c o n t r a s t , t h e defendant's case essentially is t h a t Mr Serogwe entered

the intersection from M u n g u n d a Street while the robot w a s green for him

a n d t h a t Mr Swartz w a s negligent by entering the intersection while the

robot w a s red for him. The defendant further alleged t h a t Mr Swartz was

u n d e r t h e influence of alcohol at the time. In the further particulars

 6

provided by the defendant the g r o u n d s of negligence relied u p o n were set

out as follows:

"1.1 The said Harenz Swartz entered into the intersection when it was
not safe and/or opportune to do so; and/or

1.2 The said Harenz Swartz entered into the intersection against the
red traffic light; and/or

1.3 The said Harenz Swartz entered into the intersection when he did
not have the right of way; and/or

1.4 The said Harenz Swartz did not heed the right of way which the
vehicle with registration number N99449W, driven by Mr Ben
Serogwe had; and/or

1.5 The said Harenz Swartz did not apply brakes timeously and/or at
all;

1.6 The said Harenz Swartz did not avoid the collision by exercising
reasonable care and while in a position to do so; and/or

1.7 The said Harenz Swartz was under the influence of liquor."

Counsel agreed in oral a r g u m e n t at the end of the evidence presented,

a n d it is indeed clear t h a t two opposing or contradictory versions of the

accident a n d w h a t occurred thereafter were p u t before the Court. In s u c h

a case it h a s been said that:

 7

"Where there are two stories mutually destructive, before the onus is
discharged, the court must be satisfied upon adequate grounds that the
story of the litigant upon whom the onus rests is true and the other is
false." (National Employers' General Insurance Association v Gany 1931
AD 187 at 199).

However, in African Eagle Life Assurance Co Ltd v Cainer 1980 (2) SA 234

(W) it w a s held (at 237F-238) with regard to t h e a p p r o a c h as stated in

Gany t h a t -

" this approach to problems of proof in this type of case only applies
in cases where there are no probabilities one way or the other. Where
there are probabilities, inherent or otherwise, there is no room for this
approach. On the other hand, where there are no probabilities - where,
for instance, the factum probandum was whether a particular thing was
white or black, with not the slightest evidence as to the preponderance of
white or black things in that particular community, there are clearly no
probabilities of any sort. And, when the testimony of witnesses is in
conflict, the one merely saying the thing was white and the other black, it
does not matter logically what the measure of proof is, whether it is on a
balance of probabilities or beyond a reasonable doubt. The position is
simply that there is no proof, by any criterion, unless one is satisfied that
one witness' evidence is true and that of the other is false. It is frequently
said that the dictum in the Gany case does not apply to civil cases
because of the omission of the learned Judge to have regard to the
measure of proof in civil cases being on a balance of probabilities. But
this criticism is invalid because, unless suitably qualified, it confuses
proof with the measure of proof. Where there is no probability there is
simply no proof of anything (regardless of the measure by which you
measure it) unless you believe one person and disbelieve the other. Until
 8

then the chances of it being black or white remain exactly evenly

balanced. This is simple logic."

This a p p r o a c h h a s been approved a n d applied in n u m e r o u s cases a n d I

shall bear it in mind in my evaluation of the evidence. I further take into

consideration the following passage in National Employers' General

Insurance Co Ltd v Jagers 1984 (4) SA 4 3 7 (E) where the Court said (at

440E-G):

"It seems to me, with respect, that in any civil case, as in any criminal
case, the onus can ordinarily only be discharged by adducing credible
evidence to support the case of the party on whom the onus rests. In a
civil case the onus is obviously not as heavy as it is in a criminal case,
but nevertheless where the onus rests on the plaintiff as in the present
case, and where there are two mutually destructive stories, he can only
succeed if he satisfies the Court on a preponderance of probabilities that
his version is true and accurate and therefore acceptable, and that the
other version advanced by the defendant is therefore false or mistaken
and falls to be rejected. In deciding whether that evidence is true or not
the Court will weigh up and test the plaintiffs allegations against the
general probabilities. The estimate of the credibility of a witness will
therefore be inextricably bound up with a consideration of the
probabilities of the case and, if the balance of probabilities favours the
plaintiff, then the Court will accept his version as being probably true. If
however the probabilities are evenly balanced in the sense that they do
not favour the plaintiffs case any more than they do the defendant's, the
plaintiff can only succeed if the Court nevertheless believes him and is
satisfied that his evidence is true and that the defendant's version is
false."
The plaintiff did not testify in person. The witnesses who testified in her

case were D e t / S e r g e a n t N u n u h e b , who investigated t h e matter; Mr

Phillip Haradoeb, the first person who w a s at the scene of t h e collision;

Mr Clemens G a s e b , the p a s s e n g e r in front with Mr Swartz; Mr Swartz,

the driver; a n d Mr J e r e m y Engelbrecht.

For t h e defendant the following witnesses testified: Mr Serogwe, the other

driver; O u b a a s Makies, an alleged passenger; police officers Haraseb,

Nowaseb a n d Harold Gaseb; the a m b u l a n c e driver, Mr Strydom; a n d two

women, Oscarine Tenzin a n d Ella Bakhela.

The trial w a s tenaciously conducted by all the parties against a backdrop

of suggestions a n d i n n u e n d o , on the one h a n d , t h a t the defendant was

dragging its feet b e c a u s e inter alia it w a s u n a b l e to pay the settled

a m o u n t , a n d , on the other h a n d , t h a t the plaintiff, t h e third party a n d

sympathetic witnesses h a d motive to colour or a d a p t the evidence in

order for t h e plaintiff a n d the third party to benefit from the h u g e settled

a m o u n t , especially in the light of her plight. Evidence w a s presented by

both sides t h a t there were a t t e m p t s or a p p a r e n t a t t e m p t s to influence

witnesses in various ways. The evidence presented did not j u s t cover the

collision itself b u t also event before a n d especially after the collision.

Cast in simple t e r m s , t h e m a i n factual i s s u e s in respect of which there is

a d i s p u t e have boiled down to the following questions:

 10

1. Which driver went t h r o u g h the intersection against t h e red light?

2. Were Swartz a n d Gaseb u n d e r the influence of alcohol?

3. Did Swartz leave the scene to look for help or b e c a u s e he w a s

u n d e r t h e influence of alcohol?

4. Did Serogwe have p a s s e n g e r s in his vehicle?

Mr Swartz testified t h a t on C h r i s t m a s Day, 25 December 1998 he walked

over from his h o u s e to t h a t of the witness Clemens Gaseb between 17:00

a n d 18:00. He found Gaseb barbecuing some meat. They ate the m e a t

a n d s h a r e d a six p a c k of Tafel Lager beer, each having three beers. After

the braai they went to Swartz' h o u s e where they watched a video. They

c o n s u m e d no alcohol there as the plaintiff does not drink or w a n t others

to drink there.

At a b o u t 23:00 they traveled seated as I described before, to different

h o u s e s in various residential a r e a s to see relatives. No alcohol was

consumed. Shortly after 24:00 they a p p r o a c h e d the intersection in

A b r a h a m Mashego Street. He w a s driving at p l u s m i n u s 50 k p h when he

entered t h e intersection. The robot w a s green. He saw a vehicle suddenly

driving in front of him from the direction of M u n g u n d a Street towards

C a e s a r Street. In cross-examination he explained t h a t he saw Serogwe's

vehicle j u s t before or at the time of the collision, t h a t there w a s very little

 11

time to react a n d t h a t everything h a p p e n e d in a split second. He said

t h a t his view w a s obstructed to the left into M u n g u n d a Street, b e c a u s e of

the trees a n d sign board, b u t t h a t he did look in t h a t direction before he

entered t h e intersection. He said any person would look to see if there

are vehicles a p p r o a c h i n g w h e n approaching a robot intersection. In re-

examination he said t h a t he saw Serogwe's vehicle w h e n he entered the

robot crossing, t h a t is why he could still swerve a n d apply his b r a k e s .

The other vehicle w a s driving very fast. Swartz applied his b r a k e s a n d

s w u n g his vehicle toward the right in the direction of C a e s a r Street to

avoid t h e accident. However, the two vehicles collided a n d came to a

standstill. Mr Swartz stopped in the left-hand lane of Caesar Street

facing into C a e s a r Street, p u s h e d into t h a t direction by Serogwe's

vehicle. Serogwe's vehicle came to a standstill on the ground next to

C a e s a r Street, facing the river bed.

Swartz immediately got off his vehicle a n d walked towards the other

driver, accompanied by Gaseb. Serogwe w a s getting out of his vehicle.

Swartz immediately a s k e d him why he w a s driving like that. In response

Serogwe j u s t held his h e a d a n d said t h a t he is sorry. By this Swartz

u n d e r s t o o d Serogwe to indicate t h a t he is guilty. Serogwe w a s alone.

 12

Thereafter Swartz r e t u r n e d to inspect his vehicle a n d to see whether any

of his p a s s e n g e r s were h u r t . The plaintiff w a s screaming for help. She

w a s lying down at the b a c k of the Caddy. Alexia a n d h e r child were

s t a n d i n g outside next to the Caddy. Swartz w a n t e d to get into the back

to help the plaintiff, b u t somebody told him from behind t h a t she should

not be touched, it m a y be serious. Someone arrived with a cell phone

a n d he w a s a s k e d to telephone the police a n d a m b u l a n c e . They waited

for a long time, b u t neither t h e police nor the a m b u l a n c e arrived. The

plaintiff kept screaming for help. Swartz said he w a s feeling very sorry

for t h e plaintiff a n d desperately w a n t e d to help her. He therefore told

Gaseb to stay at t h e scene a n d t h a t he would r u n off to his brother's

house. It is c o m m o n c a u s e t h a t Swartz h a s a brother, Peter Karon who

lived in Grysblok, a residential a r e a on the other side of the riverbed. He

p a s s e d t h r o u g h the riverbed a n d the veld a n d t h e n proceeded to Karon's

h o u s e , from which he w a n t e d to telephone. At the stage he left the scene

there were no police officers yet. He later added t h a t t h e m a n with the

cell p h o n e also left t h e scene.

At Karon's h o u s e the gate w a s locked. He j u m p e d over the fence a n d

someone (the witness Engelbrecht) came out, who told h i m t h a t Karon

h a d gone to a farm. Engelbrecht w a s looking after the h o u s e a n d told

him t h a t t h e p h o n e w a s locked. They t h e n woke up someone in the

neighbour's h o u s e , which h a d a p h o n e , b u t they could not p h o n e from

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there. Swartz waited a short while as Engelbrecht h a d told him t h a t

Karon would be b a c k at anytime. After a while Swartz went to look for a

taxi, found one a n d r e t u r n e d tot he scene of the accident, b u t there was

nothing. Everyone h a d left, a n d the vehicles were gone. He t h e n went by

taxi to visit his wife in hospital, b u t w a s not allowed to see t h e plaintiff.

He went h o m e as the children were alone.

The next day he went to Ben Swartz, a n o t h e r brother in Otjomuise a n d

borrowed his vehicle to go to the police to report t h e case. On his way to

Clemens Gaseb's h o u s e he met Clemens by c h a n c e a n d took him along

to W a n a h e d a Police Station. Clemens told him who t h e investigating

officer w a s . They a s k e d the police on duty to contact N u n u h e b , b u t he

did not t u r n u p . From there they visited the plaintiff in hospital. Then

they went h o m e .

On 27 December they again went to the police where they met N u n u h e b .

Swartz w a s interviewed first. N u n u h e b asked him why he r a n off from

the scene of the accident. Swartz told him t h a t he w e n t to look for help.

N u n u h e b informed him t h a t he h a d gone go Karon's h o u s e with Clemens

to look for Swartz in order to a r r e s t him for not being at the scene.

Apparently Clemens h a d told N u n u h e b t h a t Swartz h a d gone there to

look for help. Swartz t h e n m a d e a warning s t a t e m e n t .

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Swartz is in all material respects corroborated by J e r e m y Engelbrecht.

Peter Karon w a s his uncle a n d he looked after Karon's h o u s e on

C h r i s t m a s evening 1998. Karon a n d family h a d gone to t h e farm for the

day a n d they were expected b a c k t h a t s a m e night. He went to bed

between 22:30 a n d 23:00. Swartz woke him up by knocking at the door

a n d told him t h a t he h a d been in an accident. He w a s looking for Karon.

Swartz w a s very shocked a n d he kept referring to the fact t h a t his wife

w a s h u r t seriously. Swartz w a n t e d to u s e the p h o n e , b u t it was locked.

They tried the neighbour's at Erf 344 b u t were unsuccessful. Swartz

waited a few m i n u t e s for his brother b u t t h e n r e t u r n e d to the scene. He

felt sorry for Swartz a n d w h e n a s k e d "Could you evaluate whether he

w a s u n d e r t h e influence of liquor or not?", his a n s w e r w a s "No.".

Engelbrecht went to bed a n d woke up the next day at 10:00 to find t h a t

Karon h a d r e t u r n e d in the m e a n t i m e .

In cross examination he m a d e it clear t h a t it w a s not possible t h a t

Swartz w a s d r u n k b e c a u s e he did not smell of alcohol. He was able to

observe well as they were s t a n d i n g close to each other a n d talking. He

said his h e a d w a s clear a n d t h a t he himself h a n d not been drinking. He

noticed t h a t Swartz w a s wearing a pair of spectacles with one lens

missing. He did not know at w h a t time Swartz c a m e to wake him u p .

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Clemens G a s e b corroborated Swartz in all material r e s p e c t s regarding

the events on C h r i s t m a s Day a n d how the collision occurred. Although

he did not look at the speedometer he estimated Swartz to have driven

between 40 a n d 50 kph. In cross examination he said Swartz drove not

more t h a n 50 k p h . He said Swartz could not have moved faster, only

slower. He b a s e d his estimation thereon t h a t "someone who usually gets

into a car he would know at approximately w h a t speed t h e car would be

traveling." By this I u n d e r s t o o d him to say t h a t from having been a

frequent p a s s e n g e r he h a s acquired some experience of the speed at

which a vehicle is traveling. He did admit t h a t he did not have a driver's

licence, b u t only a b o u t two m o n t h s before he entered the witness box

obtained a driver's licence. In his h a n d w r i t t e n s t a t e m e n t (Gl) prepared a

day or two after the collision he p u t the speed at 50 kph. Later in cross

examination he said t h a t Swartz w a s driving at a r e a s o n a b l e speed which

he estimated to be 50 kph.

I am willing to accept t h a t Gaseb's estimation is not too far off. It fits in

with t h a t of Swartz. In any event, the speed at which Swartz w a s

traveling is not one of the g r o u n d s of negligence relied on by the

defendant. Furthermore, although Serogwe denies this, Det/Segt

N u n u h e b said t h a t Serogwe pointed out the collision point to him. In

Court all the parties pointed out the s a m e point. The sketch plan he

drew u p a n d m e a s u r e m e n t s h e m a d e were never d i s p u t e d a n d m u s t b e

 16

accepted as correct (except t h a t points C a n d D m u s t switch around).

According to this information t h e point of impact w a s very close to the

point where Swartz m u s t have seen Serogwe's vehicle for the first time.

It is j u s t in t h e lane next to the one in which he w a s traveling before one

leaves the intersection on the bridge's side. What is more, Swartz'

vehicle stopped j u s t a b o u t two steps away from the point of impact.

I agree with Mr Muller, who appeared for the plaintiff a n d the third party,

t h a t the evidence t e n d s to show t h a t Swartz did not move fast a n d

probably u s e d his b r a k e s as testified. The points on the scene therefore

also tend to corroborate Gaseb in his estimation.

Gaseb further confirms Swartz' evidence t h a t they immediately went to

Serogwe's vehicle after the collision, t h a t Serogwe held his h e a d a n d said

"God, I'm sorry" a n d t h a t he w a s alone. They r e t u r n e d to t h e Caddy a n d

h e a r d plaintiff calling for help. He also h e a r d t h a t plaintiff said she could

not move. He confirms t h a t Swartz tried to help h e r b u t t h a t he was

stopped. He saw t h a t Swartz w a s in shock. Swartz t h e n said t h a t he

would go look for help at this brother. There w a s some u n c e r t a i n t y on

the evidence w h e t h e r Swartz mentioned t h a t he intended going to the

brother in Grysblok, as he also h a s a brother in Otjomuise, b u t in my

view nothing t u r n s on this. There is evidence on record t h a t Otjomuise is

a b o u t 5 kilometres away from the scene a n d it is unlikely t h a t Swartz

 17

would have gone so far or intended to go there, as Karon w a s j u s t a r o u n d

the corner in Grysblok. Besides, Gaseb knew where Karon lived as he

h a d been there before. In fact he took N u n u h e b to t h a t h o u s e later t h a t

evening to look for Swartz. The a m b u l a n c e arrived a b o u t 5 to 10 m i n u t e s

after Swartz h a d left. The plaintiff w a s placed in the a m b u l a n c e , which

also took Alexia a n d t h e child a n d they all left.

At the scene N u n u h e b , w h o m he knew from before, a s k e d him where

Swartz is a n d he told N u n u h e b t h a t Swartz went to his brother's h o u s e

for help. He accompanied N u n u h e b to the h o u s e , found t h e brother, b u t

not Swartz. They drove b a c k to the scene hoping t h a t Swartz would be

there, b u t he w a s not. The vehicles were towed away a n d Gaseb was

taken home.

Both Swartz a n d G a s e b are corroborated by the witness Phillip Haradoeb

in all material respects. He w a s the first person on the scene immediately

after the accident occurred. He confirms the incident relating to w h a t

Serogwe said a n d stated t h a t to him it a p p e a r e d t h a t they argued a b o u t

the m a n n e r in which Serogwe h a d driven. He stated t h a t his wife is a

n u r s e a n d she cautioned Swartz not to move t h e plaintiff in her

condition. He said t h a t Swartz initially w a s in shock, b u t calm. Later he

w a s "confused" after he saw the plaintiffs condition a n d moved towards

the riverside. He w a s not a s k e d to explain his description of the plaintiff

 18

as being confused. He saw him walking down into the river a n d towards

Grysblok. He noticed Serogwe talking on his radio a n d a person with a

cell p h o n e called the police a n d a m b u l a n c e . The a m b u l a n c e a n d police

arrived only after a very long time a n d removed the plaintiff. He

instructed Gaseb to remain at their vehicle to keep it safe. He did not

notice the police searching for Swartz in the river. He did not see t h a t

either of the drivers w a s u n d e r the influence of alcohol. The witness

m a d e a good impression in the witness box.

In aspect of the case t h a t took up m u c h of the Court's time w a s the

allegation by the defendant t h a t Swartz w a s u n d e r the influence of

alcohol at the time of the collision. The allegation is coupled with

another, namely t h a t Swartz decided to skip the red robot as it was late

at night a n d u s u a l l y quiet on C h r i s t m a s e v e n i n g . The implication of the

allegation a p p e a r s to be t h a t he did so b e c a u s e he w a s u n d e r the

influence of alcohol, although this w a s not actually stated. This is also

the t r u e reason, defendant says why Swartz r a n from the scene. I prefer

to deal with this i s s u e earlier in the j u d g m e n t as the analysis of the

evidence s u r r o u n d i n g this aspect will facilitate the weighing up of the

probabilities concerning the c a u s e of the collision itself.

Swartz a n d Clemens Gaseb both admit t h a t they h a d three Tafel Lager

beers each with m e a t between 17:00 a n d 18:00 the previous day.

 19

Thereafter they ate more m e a t at Swartz' home. Swartz drove a r o u n d

from 23:00 until the collision shortly after 24:00 without any problems.

Both he a n d G a s e b denied t h a t either of t h e m w a s u n d e r the influence of

alcohol. It is i m p o r t a n t to note t h a t not one witness testified t h a t he

actually saw Swartz u n d e r the influence of alcohol.

Serogwe, who knew a n d recognized Swartz shortly after t h e collision, did

not describe h i m as being u n d e r the influence of alcohol. According to

Serogwe they were told to go n e a r the police vehicle for a b r e a t h alcohol

test. At the time N u n u h e b a n d Swartz were a p p r o a c h i n g each other. He

h e a r d N u n u h e b say to Swartz in D a m a r a or N a m a (which he u n d e r s t a n d )

"You see yourself t h a t you are drunk" a n d "run" a n d shortly thereafter

heard the policeman say "there he's r u n n i n g , there he's running"

referring to Swartz.

In a written s t a t e m e n t (exhibit "B7") Serogwe m a d e on 11 May 2004

during the trial, b u t before he testified, he stated for t h e first time t h a t

N u n u h e b said to Swartz "You m u s t r u n away, you know you are u n d e r

the influence of liquor". Later in the written s t a t e m e n t he expressly

confirms this. When cross-examined on this s t a t e m e n t he persisted t h a t

N u n u h e b did this. There is overwhelming evidence t h a t N u n u h e b arrived

at the scene only after Swartz h a d left the scene. No one else mentioned

t h a t any b r e a t h t e s t s were done.

 20

In the warning s t a t e m e n t by Serogwe dated 27 December 1998 he

mentioned at the end t h a t Swartz w a s d r u n k , t h a t he observed Swartz

a n d t h a t Swartz r a n away from the scene b u t m a k e s no mention t h a t he

did so on N u n u h e b ' s instruction. When confronted with this statement,

Serogwe testified t h a t he never m a d e this s t a t e m e n t , b u t w a s asked to

sign a b l a n k form or warning statement, which he did. This startling fact

he mentioned for the first time in his evidence after he w a s pressed in

cross examination a b o u t its c o n t e n t s . He also admitted t h a t he never

mentioned it to t h e defendant's legal practitioners d u r i n g any of the

p r e p a r a t i o n s for the case. This explains why it w a s not p u t to N u n u h e b

during cross-examination. Serogwe w a s a police officer in the p a s t a n d

was at the time of the collision a security officer at T r a n s n a m i b who at

times investigated crimes at times together with the police. I find it

highly improbable t h a t he would sign a blank warning s t a t e m e n t . Even

if he did so, one would expect of him to have reported or mentioned it as

soon as he found o u t t h a t it contains a s t a t e m e n t purportedly m a d e by

him, especially if it is wrong. He mentioned several i n s t a n c e s in which

the s t a t e m e n t w a s incorrect during cross-examination. I further find it

highly improbable t h a t N u n u h e b who was investigating the collision

would have instructed a d r u n k e n driver to r u n from the scene in the

presence of the other driver a n d other police officers a n d onlookers. If he

did this, one would expect t h a t Serogwe would immediately have

 21

protested or reported the instruction. Instead he only mentioned it 5Vfe

years later. I have no hesitation in rejecting Serogwe's evidence on these

a s p e c t s as false.

It is also in this s t a t e m e n t ("B7) t h a t Serogwe for the first time mentioned

t h a t N u n u h e b removed a crate of beers a n d a bottle of Richelieu b r a n d y

from Swartz' vehicle. In his testimony before this court he however said

t h a t it w a s one of t h e policemen dressed in camouflage uniform who took

these items from t h e Caddy a n d p u t t h e m in the police vehicle.

Both in d u r i n g a n d d u r i n g cross-examination N u n u h e b denied t h a t any

liquor was found on or removed from the vehicles or the scene of the

accident. No one else saw t h e alleged crate of beer or bottle of brandy.

Both Swartz a n d G a s e b denied t h a t there were s u c h things in the Caddy.

Nowaseb who w a s called by defendant a n d who w a s a detective sergeant

in the Namibian Police a p p e a r s to have been one of the first police

officers on t h e scene. He testified t h a t he inspected the vehicles of both

drivers a n d he did not see a crate or bottle of b r a n d y . He left the scene

before N u n u h e b arrived. He never saw any other police officer at the

scene or anyone in uniform. The alleged crate of beer a n d Richelieu seem

to have d i s a p p e a r e d into thin air. In exhibit "B7" Serogwe mentioned

t h a t he a s k e d N u n u h e b a b o u t this alcohol w h e n he went to see N u n u h e b

 22

the next m o r n i n g at t h e police station a n d t h a t N u n u h e b "just told t h a t it

is his job he knows w h a t he m u s t do". He says further t h a n when he

a n d i n s t r u c t i n g counsel, Mr M u r o r u a asked N u n u h e b w h e t h e r "he still

having the evidences of liquor", N u n u h e b said "that he is still having the

evidences there". This w a s never p u t to N u n u h e b in cross-examination

a n d there w a s no a t t e m p t reflected in the evidence to produce s u c h

exhibits in Court. In my view the weight of evidence strongly favours the

probability t h a t there w a s no crate of beers or bottle of b r a n d y found in

t h e Caddy.

I next t u r n to a consideration of the r e m a i n d e r of the evidence of

Nowaseb. He says he w a s the first policeman on the scene a n d t h a t he

was off d u t y a n d in plain clothes. He p a s s e d by the scene on the way

home. He reported the collision by cell p h o n e to the police a n d called for

an a m b u l a n c e . It took a long time for t h e m to respond. Eventually he

left the scene to report the m a t t e r in person at W a n a h e d a Police Station.

Swartz also mentioned a m a n with a cell p h o n e who telephoned the

police a n d a m b u l a n c e , b u t who left before their arrival. He a p p e a r s to

have t h o u g h t this w a s a civilian. It s e e m s to me t h a t t h i s person may

very well have been Nowaseb, although Nowaseb testified t h a t he only

spoke to Serogwe a n d Gaseb. When he looked for Swartz they could not

locate him or observe him. He said t h a t Swartz m a y have been a m o n g s t

the p e r s o n s on the scene. He testified t h a t G a s e b spoke to him at the

 23

scene. Gaseb told h i m t h a t he w a s a p a s s e n g e r in the Caddy a n d t h a t

Swartz was t h e driver. Gaseb also told him t h a t "they" drove "over " a red

robot a n d b u m p e d into an oncoming vehicle. At the time Nowaseb was

right next to Gaseb a n d he clearly observed G a s e b to be "reasonably

drunk". His tongue w a s slurring, his b r e a t h smelled of alcohol a n d he

w a s u n s t e a d y on his feet.

Nowaseb t h e n inspected the vehicles. I u n d e r s t o o d his evidence to be

t h a t he did this b e c a u s e it is normal procedure for a police official who

comes onto a scene of a collision to inspect t h e inside a n d immediate

vicinity of the vehicles involved. He peeped in the front of the Caddy a n d

saw beer bottles there as well as beer bottles next to the vehicle w h e n he

moved a r o u n d to the back. He saw nothing w h e n he inspected Serogwe's

vehicle.

In cross-examination he said t h a t he could not r e m e m b e r if he inspected

the vehicles alone. W h a t is clear is t h a t he did not m a k e any point to

take anyone with him. He acknowledged t h a t normally the driver would

be t a k e n along lest the driver later denies the fact t h a t something

relevant w a s found. When pressed on why he did not do it in this case,

he said it is not a written policy or rule, b u t t h a t it is done o u t of habit.

When p r e s s e d further on this point he said t h a t he actually does not

normally work with collision cases, b u t with fraud c a s e s . He further

 24

explained that he saw beer bottles inside the Caddy where the

p a s s e n g e r ' s feet would be. He could not say how m a n y , b u t it w a s more

t h a n one. At first he said they were empty, t h e n he corrected himself a n d

said t h a t he could not actually say w h e t h e r there were sealed bottles. He

did not take t h e m out of the vehicle. On the left side at t h e b a c k of the

Caddy he found more t h a n one empty beer bottle on the ground. Again

he could not say how m a n y .

Nowaseb said t h a t he showed his a p p o i n t m e n t certificate to Gaseb a n d

t h a t he w a n t e d to know who the drivers were. Although he acknowledged

t h a t it w a s i m p o r t a n t to know who a n d where t h e driver a n d p a s s e n g e r s

of each vehicle were, he did not actually a s k Serogwe a b o u t any

p a s s e n g e r s or see any. To explain this he said t h a t it is actually the

responsibility of the person who is coming to investigate the case. He

acknowledged t h a t a p a s s e n g e r or liquor could d i s a p p e a r from the scene

if he did not report their existence to the investigator.

There is evidence t h a t Nowaseb's report was noted in the occurrence

book at W a n a h e d a with particulars of where he could be traced. He

noted t h a t an accident took place a n d t h a t there were serious injuries. It

s e e m s he did not report the evidence of alcohol in the vehicle or the

d r u n k e n passenger.
 25

The fact t h a t G a s e b w a s allegedly u n d e r the influence w a s not p u t to

N u n u h e b or Haradoeb during cross-examination. However, it m a y be

t h a t the evidence of Nowaseb w a s not available at the time these

witnesses testified. I have the impression t h a t t h e defendant's list of

witnesses grew as the case progressed. Nevertheless, it s e e m s clear t h a t

Haradoeb h a d occasion to observe Gaseb's condition a n d actually spoke

to him. He did not mention the signs which, according to Nowaseb were

noticeable to anyone. In my view it is unlikely t h a t Haradoeb would have

left a d r u n k e n person in charge of Swartz' vehicle.

N u n u h e b h a d a lot of contact with Gaseb t h a t evening. Gaseb did not tell

him the story t h a t Swartz h a d driven t h r o u g h the intersection while the

light was red. If he told Nowaseb this freely, why does he not tell

N u n u h e b , the investigator? N u n u h e b also drove with h i m to Karon's

h o u s e a n d b a c k to the scene to leave Gaseb in charge of the vehicles

until they are towed away. N u n u h e b m u s t have noticed Gaseb's

condition a n d if he were indeed intoxicated it is unlikely t h a t N u n u h e b

would not have m a d e something of it or mentioned it in his own

s t a t e m e n t , especially as he w a s keen to trace t h e driver a n d even

formulated charges against him for leaving the scene. If Gaseb was

intoxicated a n d bottles were found in the Caddy it s e e m s obvious t h a t

the next logical question would be w h e t h e r the driver m a y not have been

intoxicated. Nowaseb suggested t h a t p e r h a p s N u n u h e b did not do his

 26

d u t y in this regard, b u t I find it improbable bearing in mind t h a t he

actually went to look for Swartz a n d brought G a s e b b a c k to the scene to

r e m a i n there until they are towed away. He also a s k e d Serogwe (and it

s e e m s Gaseb) to report to the police station the next m o r n i n g at 8:00 for

s t a t e m e n t s . Although he m a y be criticized on his s u b s e q u e n t handling of

the m a t t e r a n d t h e content of the s t a t e m e n t s a n d accident report, I am

u n a b l e to find on t h e evidence t h a t he w a s in dereliction of his d u t y on

the night of t h e collision, unlike Nowaseb.

I find Nowaseb's evidence regarding the beer bottles vague and

unsatisfactory. He says he went specifically to inspect t h e vehicle as it is

c u s t o m a r y to do. Having seen t h a t the p a s s e n g e r of one vehicle is d r u n k

a n d having h e a r d t h a t he admitted to their vehicle infringing the red

traffic light a n d finding empty bottles, b u t no driver, it is probable t h a t

any police officer in his position would have specifically counted the

bottles, or have m a d e a point to see if they were empty or full or m a d e

notes of his observations or not have left the scene until t h e investigator

or other police arrived to w h o m he could h a n d over t h e scene. According

to him he w a s the only police officer there. There w a s no need to drive to

W a n a h e d a to report t h e m a t t e r in person. He could have m a d e a n o t h e r

u r g e n t telephone call. As a detective with the r a n k of sergeant normally

h a n d l i n g fraud case I t h i n k it is reasonable to expect of h i m to anticipate

t h a t the driver might have c o n s u m e d some of the beer a n d m a y remove

 27

the evidence or d i s a p p e a r from the scene. Yet he leaves the scene

without any h a n d i n g over to a n o t h e r police officer. According to him he

also did not report his finding of the beer bottles or the d r u n k e n

p a s s e n g e r to anyone. He did not report the p a s s e n g e r ' s explanation t h a t

they crossed the intersection against the traffic light a n d c a u s e d the

collision. He also did not mention this in the occurrence book to alert

anyone to the c i r c u m s t a n c e s which he found at the scene. His

explanation is t h a t w a s the d u t y of the investigator to deal with all this,

b u t elearly the investigator m a y not have found t h e scene in t h e state

Nowaseb left it. F u r t h e r m o r e , the d r u n k e n p a s s e n g e r might not repeat

the story to the investigator or might even leave t h e scene. To conclude, I

find his evidence improbable a n d unsatisfactory on these a s p e c t s .

Oscarine Tenzin a n d Ella Bakhela went to the scene some time after the

accident. The a m b u l a n c e arrived while they were there. Tenzin saw a

male person sitting in the p a s s e n g e r seat of Swartz' vehicle. On the d a s h

board were two empty drinking glasses. She is the only person t h a t saw

this. In my view this evidence is neither here nor there. Ella Bakhela saw

an empty glass a n d empty beer bottles in t h e b a c k of Swarz' vehicle

where the plaintiff w a s lying a n d crying. She w a s also the only one who

saw this. The p e r s o n s who m a d e specific inspections, namely Nowaseb

a n d N u n u h e b did not see this. It s e e m s t h a t Ella w a s a p p r o a c h e d to

testify at a very late stage. I find it doubtful a n d improbable t h a t she

 28

would r e m e m b e r seeing s u c h details as the glass a n d empty beer bottles

after a period of approximately 5'/2 years. I prefer not to rely on her

evidence on this a s p e c t in the face of the evidence by Nowaseb a n d

Nunuheb.

The only other witness who gave evidence on the alcohol aspect is Harold

Gaseb, the uncle of Clemens Gaseb. At the time he testified he w a s a

constable in the Namibian Police with eleven years service. He h a d

previously done d u t y as a court orderly at the magistrate's court a n d as a

traffic officer. At t h e time of the collision he w a s living in Port Louis

Street a b o u t 500 - 6 0 0 m e t r e s from Clemens. He stated t h a t they h a d a

good relationship a n d t h a t Clemens u s e d to come to him with his

problems, one of which w a s alcohol a b u s e . Allegedly Clemens respected

Harold a n d also borrowed money from h i m on paydays.

On 26 December 1998 between 7:00 a n d 8:00 Clemens came to see

Harold a n d told him t h a t he h a d been involved in a vehicle accident. He

said t h a t Swartz w a s the driver of the vehicle a n d t h a t t h e other vehicle

w a s a T r a n s n a m i b pick-up. Clemens also told h i m t h a t they h a d h a d a

party a n d d r a n k at a certain h o u s e in K a t u t u r a a n d j u s t before midnight

Swartz a n d he got into the front of the vehicle with three ladies in the

back. They were on their way b a c k to Swartz' h o u s e in Otjomuise. As it is

normally quiet during C h r i s t m a s nights, Swartz speeded t h r o u g h the

 29

intersection while t h e traffic light w a s red. (I p a u s e to point o u t t h a t this

intersection a p p e a r e d to be quite b u s y t h a t night. Not only were Swartz

a n d Serogwe there, Haradoeb, Nowaseb a n d H a r a s e b p a s s e d there by

c h a n c e shortly after the collision. The evidence w a s t h a t there were

several other vehicles a n d onlookers who stopped at t h e scene. It a p p e a r s

t h a t not all p a s s e d there b e c a u s e of the accident.)

The light w a s green for t h e T r a n s n a m i b vehicle a n d they collided.

Clemens said t h a t if Swartz h a d obeyed the traffic light, the accident

would not have occurred. Clemens also told him t h a t he w a s feeling bad,

t h a t if Swartz h a d not gone t h r o u g h the red robot, the accident would not

have h a p p e n e d a n d Mrs Swartz would not have been h u r t . He told Gaseb

t h a t she h a d s u s t a i n e d a neck injury. Gaseb stated t h a t Clemens was

not h a p p y a b o u t being a p a s s e n g e r involved in the accident a n d said,

referring to Swartz t h a t the "bastard" nearly c a u s e d his d e a t h .

Clemens further said t h a t he forgot to take along some of t h e liquor t h a t

was in the vehicle for his hangover the next day. He mentioned t h a t there

were beers, Richelieu b r a n d y a n d a half j a c k of Mellow Wood brandy.

Clemens also said t h a t Swartz got o u t of the vehicle a n d said to Clemens

t h a t he is going to r u n , t h a t he could not stay there, as he w a s d r u n k .

Swartz said t h a t if he stayed there the police would lock h i m up for

d r u n k e n driving. According to Harold, Clemens came to h i m for advice,

 30

b e c a u s e , as Swartz h a d r u n away from the scene, Clemens w a s worried

t h a t Swartz might t u r n a r o u n d a n d say t h a t it w a s Clemens who h a d

been the driver. Gaseb advised him t h a t as he h a d been j u s t a p a s s e n g e r

in the vehicle, why should he be afraid? He told Clemens j u s t to tell the

truth.

According to Gaseb, Clemens said t h a t he w a s not feeling well a n d h a d a

hangover. Gaseb could also observe t h a t he w a s h u n g over, as he smelled

strongly of alcohol a n d his eyes looked as if he h a d gone to sleep late.

Gaseb sent his d a u g h t e r to go a n d b u y a beer at a s h e b e e n nearby a n d

when she r e t u r n e d , Clemens took the beer a n d left.

A short while thereafter Clemens a n d Swartz c a m e walking to Gaseb's

h o u s e a n d Swartz a s k e d Gaseb for t r a n s p o r t to take him to the place

where the accident h a d t a k e n place to look for his spectacles. Gaseb

obliged. He p a r k e d his vehicle in C a e s a r Street a n d went with a footpath

down into the river bed with Clemens a n d Swartz to look for the

spectacles. In the witness box he could not r e m e m b e r if they found the

spectacles or not. He also could not r e m e m b e r if Swartz wore spectacles

t h a t day. From there he took Clemens a n d Swartz home.

This witness also told the Court t h a t on 3 August 2 0 0 4 during the time

t h a t Swartz w a s giving evidence in this Court Swartz h a d a p p r o a c h e d the

 31

witness to come a n d say, if he is called, t h a t he h a d found Swartz a n d

Clemens on 26 December 1998 at the river looking for the spectacles,

b e c a u s e this is w h a t Swartz h a d testified. Swartz also told h i m t h a t he

h a d denied in evidence t h a t he went to the scene with Harold Gaseb.

Swartz w a s giving him a tip-off, as he described it. Swartz allegedly

w a n t e d G a s e b to help him with this piece of evidence.

Gaseb also told the court t h a t the next day he m e t with Swartz in Port

Louis Street n e a r his home, b e c a u s e t h e latter left h i m a message at

home. Swartz t h e n showed Gaseb a d o c u m e n t which h a d been h a n d e d in

at Court. It w a s a s t a t e m e n t a b o u t the events of the collision on 26

December 1998. (There w a s indeed h a n d e d in as exhibit "J" a s t a t e m e n t

conforming to the description). Swartz t h e n said t h a t Mr E r a s m u s , his

instructing counsel, h a d said t h a t Gaseb should go thoroughly t h r o u g h

the s t a t e m e n t a n d w h e n he testifies his testimony m u s t go along the

s a m e lines at t h a t of Swartz in the s t a t e m e n t . Mr E r a s m u s h a d also

allegedly said, in t h e words of Gaseb, t h a t "they are only short of one

percent, t h e n they walk away with 5 million" an a p p a r e n t reference to the

fact t h a t the plaintiff needed only to prove 1% negligence on the p a r t of

Serogwe to succeed in her claim (something which h a d been mentioned

by counsel for both parties in Court during an earlier application for

p o s t p o n e m e n t of the trial a n d in the opening s t a t e m e n t on behalf of

plaintiff at the s t a r t of the trial.).

 32

Swartz was recalled to be cross-examined on these allegations and he

denied t h e m . Swartz earlier testified that he borrowed his brother Ben

Swartz' vehicle on the morning of 26 December a n d later went with

Clemens to look for the lens of his spectacles which he lost in the river

bed the previous evening. While there, Harold Gaseb happened to come

by. When Clemens w a s cross-examined, he also denied the conversation

which Harold alleged took place and his allegations relating to the

spectacles.

There are several aspects a b o u t Harold Gaseb's evidence which are to my

mind quite improbable. If Gaseb was u p s e t and felt bad about Swartz

"going t h r o u g h " the red robot, it is likely that he would he have told

N u n u h e b the s a m e story. Even if one accepts t h a t he may have been

afraid t h a t Swartz would pin the driving onto him, why would he then tell

N u n u h e b t h a t Swarz had gone to his bother in Grysblok to seek

assistance? One would expect that he would have told N u n u h e b that

Swartz was d r u n k a n d r a n away not to be arrested. If he really told the

story about the beers, the Richelieu and Mellow Wood, it is improbable

t h a t both Nowaseb a n d N u n u h e b did not see all these items, although

they inspected the vehicle. The alleged fear t h a t Swartz would pin the

driving on him is u n r e a s o n a b l e as at least Alexia a n d Haradoeb saw that

Swartz was t h e driver. There were also other relatives who saw that
 33

Swartz drove the vehicle the previous evening before the collision.

Clemens did not have a driver's licence - it is improbable t h a t he would

have driven Swartz' vehicle, especially if he, Clemens, was drunk. It

s e e m s to me t h a t Harold needed some a s p e c t on which to "advise"

Clemens.

I find it improbable t h a t Clemens would shortly afterwards bring the very

Swartz, who nearly killed h i m the previous evening, r a n away and who is

suspected of p e r h a p s wanting to pin the driving on him, to Harold to ask

for transport to look for his spectacles. It is further improbable that

Harold would comply a n d t h a t the two G a s e b s would a s s i s t Swartz in

these circumstances to look for the spectacles. I find Harold's

explanation on this score vague and improbable. I bear in mind that at

the time Harold w a s a police officer. I think it highly improbable that he

did not confront Swartz a b o u t committing several offences the previous

evening, especially as there was a prospect in the mind of his nephew

Clemens t h a t Swartz would blame Clemens. He did not even ask Swartz

anything a b o u t the previous evening's events. Further, he goes so far as

to assist the very offender at the scene of the crimes to retrieve his

property which was lost while fleeing from justice while knowing that an

innocent person was seriously injured. If he truly did all this he is

patently dishonest and not to be trusted. This of course does not

necessarily m e a n t h a t he is lying, but in the absence of other satisfactory

 34

evidence s u p p o r t i n g him, I take a dim view of his evidence on these

aspects.

It is also o p p o r t u n e to deal at this stage with the impression made on me

by Clemens Gaseb. He was not an easy witness to deal with. He

sometimes did not answer questions a n d had to be pressed, sometimes

by the Court. However, I did not have the impression t h a t it was because

he wanted to hide anything or because he could not explain. I agree with

Mr Muller's s u b m i s s i o n that he wanted to be clever. He also seemed to be

obstinate at times. His failure to attend the proceedings after an

a d j o u r n m e n t while he was u n d e r cross-examination seemed to be related

to financial c o n s t r a i n t s and a dispute with plaintiffs legal practitioners

a b o u t his costs a n d not because he wanted to avoid being questioned. He

testified by m e a n s of an interpreter a n d at times appeared to have

difficulty with understanding the questions in translation. These

sometimes related to questions relating to his view about the importance

of r e a s o n a b l e n e s s of certain m a t t e r s and not about facts of narrative

material.

One aspect which caused him difficulty was the fact t h a t he obviously

missed a day in his recollection of events, namely the day light h o u r s of

26 December 1998. At times he appeared to think t h a t the accident

occurred on 27 December after midnight. He was a d a m a n t t h a t he made

 35

h i s warning s t a t e m e n t the very next morning after the accident. Swartz

t h
said t h a t they went to the police station twice - once on the 2 6 and
t h
once on the 2 7 of December. On 26 December they tried to get hold of

N u n u h e b , b u t he did not t u r n u p , so they r e t u r n e d the next day. In this

respect he is s u p p o r t e d by Serogwe who initially gave t h e s a m e evidence.

I have considered w h e t h e r this difficulty of Clemens h a d anything to do

with the story told by Harold Gaseb. However, in the light of the fact t h a t

t h e weight of probability is against Harold's version, I have come to the

conclusion t h a t it is probably a problem with his memory or a mistake.

Another a s p e c t to be dealt with is t h a t Clemens did reluctantly admit

after long cross-examination t h a t he discussed the incident of the

collision with Swartz the next day. Swartz, r a t h e r improbably, denied

this. I m u s t point out t h a t this is a common feature of the testimony of

witnesses in Court who are often reluctant to deny t h a t they have

d i s c u s s e d any aspect of a case, no matter how startling, shocking or life

changing the event may have been, even with their lawyers. One knows

t h a t they naturally did d i s c u s s it and any lie or reluctance t h a t they have

n o t does not tend to weigh heavily in the mind of the Court.

Returning to Harold Gaseb's evidence regarding the events of 3 August, it

s e e m s to me unlikely t h a t Swartz would tip Harold off regarding a

relatively u n i m p o r t a n t piece of evidence, namely t h a t Harold found

 36

Swartz at the scene looking for his spectacle lens. Swartz m u s t have

known t h a t Harold would probably be called by the defendant a n d that

any a t t e m p t to influence him would probably be revealed, especially if he

w a s asking Harold to tell a deliberate lie.

The s a m e can be said a b o u t the evidence regarding the s t a t e m e n t on the

events of 26 December 1998. In any event, there can be no reason for Mr

E r a s m u s to send a message to Harold to tailor his evidence along the

lines of Swartz' s t a t e m e n t at it is concerned with the collision itself, and

not with any m a t t e r on which Harold could or would be a witness. Swartz

also did not strike me as being so unintelligent or uninformed t h a t he

would think t h a t it would serve any p u r p o s e to a s k Harold to do this. In

fact, Swartz' evidence a m o u n t s thereto t h a t it would have served no

p u r p o s e . In my view Harold's evidence on this aspect c a n n o t be accepted.

I now t u r n to the issue of why Swartz left the scene. He says it was to

seek a s s i s t a n c e from his brother. He is s u p p o r t e d in this version by

Clemens t h a t this w a s the reason he advanced a n d which was conveyed

to N u n u h e b , who further confirms this. He says t h a t he was desperate to

help the plaintiff a n d t h a t the a m b u l a n c e took long to arrive. In this he is

supported by the evidence of defendant's witness, Mr Strydom, who said

t h a t the a m b u l a n c e only left for the scene at 24:59. This is slightly less

t h a n an h o u r after the collision approximately took place. There is

 37

evidence by both Swartz a n d Haradoeb t h a t the plaintiff w a s not to be

moved. T h a t this w a s said, is highly likely on the probabilities. According

to Swartz the m a n with the cell phone h a d left. As I said before, this

a p p e a r s to be Nowaseb who confirmed t h a t the a m b u l a n c e took long to

arrive a n d t h a t he t h e n left to personally report the matter.

It m a y be t h a t one c a n raise valid criticism as to why Swartz did not seek

help from Haradoeb, from any of the onlookers, or at one of the nearby

h o u s e s . At least Haradoeb h a d a vehicle there a n d could possibly have

t a k e n Swartz to seek for assistance. Swartz explained t h a t he did not

know Haradoeb t h a t well a n d did not now anyone else there, except his

brother. He took w h a t he t h o u g h t was the quickest route t h r o u g h the

river bed a n d walked, r a n a n d jogged to Karon's h o u s e where he j u m p e d

over the fence. There w a s some light a n d he could see, although he did

acknowledge t h a t the route he took w a s not easy a n d without obstacles.

It m a y be t h a t a person who was thinking clearly a n d calmly might

r a t h e r have chosen to take the route along the road a n d over the bridge,

b u t I bear in mind the evidence t h a t Swartz w a s shocked, confused and

concerned a b o u t his wife, which is reasonable a n d probable in the

c i r c u m s t a n c e s . It s e e m s n a t u r a l t h a t a person in Swartz' position would

prefer to seek help from a relative close by. He is supported, as I already

pointed out, by Engelbrecht a b o u t w h a t occurred at Karon's h o u s e . This

lends s u p p o r t to his story t h a t he left to seek assistance.

 38

It does seem strange t h a t Swartz missed the r e t u r n of h i s brother, as well

as N u n u h e b ' s visit to Karon's h o u s e a n d t h a t he r e t u r n e d to the scene

after everyone h a d left. He explains this by saying t h a t he went to look

for a taxi, which he found nearby at the corner of t h e street at a big

h o u s e . During cross-examination Mr Geier for defendant confirmed t h a t

there is indeed s u c h a place which is also a b u s i n e s s place at the corner

of the street in which Karon lives. Swartz said t h a t he also h a d to wait for

the taxi driver to fetch a bag in the h o u s e a n d close t h e gates. This took

time. They t h e n drove b a c k to the scene.

It a p p e a r s to me t h a t Swartz w a s j u s t unfortunate in t h a t he missed his

brother a n d N u n u h e b . He says he did not see t h e m . It is not unlikely

t h a t Karon r e t u r n e d soon after Swartz h a d left, as he w a s expected home

a n y m i n u t e . In fact, N u n u h e b found him there shortly afterwards.

F u r t h e r m o r e , from exhibit "K", a street m a p h a n d e d in it is clear t h a t

there is more t h a n one route t h a t a vehicle could take from the scene to

Karon's h o u s e . It is not improbable t h a t Karon a n d N u n u h e b h a d taken

a different route to t h a t t a k e n by Swartz. It seems to me t h a t were it not

for the allegation t h a t Swartz was u n d e r the influence no-one would have

t h o u g h t it strange t h a t he left the scene to look for a s s i s t a n c e or t h a t he

missed his brother or N u n u h e b on the way back. In the absence of any

 39

credible evidence that he was indeed under the influence, the

probabilities favour Swartz' version t h a t he left the scene for an innocent

purpose.

In coming to t h i s conclusion I m u s t also mention t h a t Swartz made a

good impression on me when he testified. In addition I do not think t h a t

t h e fact t h a t t h e s e a s p e c t s were not fully dealt with in his warning

s t a t e m e n t is of great import, as there is clear evidence t h a t the reason for

h i s a b s e n c e w a s already conveyed to N u n u h e b on the night of the

collision. As far as N u n u h e b is concerned it is clear t h a t he m u s t be

m i s t a k e n t h a t H a r a s e b h a d told him t h a t Swartz was warned not to leave

the scene. None of the police officers have given s u c h evidence. It seems

to me t h a t it is not improbable that the general impression arose at the

scene t h a t Swartz h a d fled, p e r h a p s also b e c a u s e he was at least some of

the time jogging or r u n n i n g . He only told Clemens t h a t his purpose in

leaving was innocent. To others observing him it probably looked as if he

w a s fleeing or even hiding in the river bed. It is not improbable t h a t this

impression could have led to a suspicion t h a t he was u n d e r the influence

a n d h a d to m a k e a getaway.

I now t u r n to the evidence by the defendant's witnesses in more detail

a n d will then deal with the first and last two factual questions posed

above. The evidence by the witness Serogwe in essence a m o u n t e d to the

 40

following. He had two passengers with him in the front of the

T r a n s n a m i b p i c k - u p . The two were O u b a a s Makkies a n d Don. He picked

t h e m up at Ella Bakhela's h o u s e a b o u t 5 0 0 - 6 0 0 m e t r e s away from the

intersection in M u n g u n d a Street. Her h o u s e is at Erf 9 5 3 3 . Ella testified

t h a t the intersection c a n be seen from outside her h o u s e . Serogwe was in

a h u r r y as he w a s b u s y investigating a m a t t e r of stolen property which

was kept at a certain h o u s e . He needed Don to point out the h o u s e to

him. Why Makkies went along is not quite clear. Serogwe said t h a t he

drove a b o u t 80 kph. He first said t h a t when he got onto M u n g u n d a

Street at Ella's h o u s e the robot was already green for him. He drove

towards t h e intersection a n d before the crossing he h e a r d a bang or a

knock. He t h e n said "the time t h a t I j u s t reached the crossing that's

when I h e a r d a k n o c k or a hit on my right h a n d side." He pointed out a

point on photo D(12) which coincides with the place which N u n u h e b

indicated on t h e sketch plan as the point of impact. It is clear t h a t

Serogwe did not see plaintiffs vehicle at all before or during the collision,

b u t only after he h a d come to a standstill a n d he got out of his own

vehicle. When he h e a r d the knock he swerved right a n d came to a

standstill off the road down in the riverbed. (His description is

misleading. From the point pointed out it is clear t h a t it was not actually

in the riverbed, b u t higher up on the b a n k s of the incline towards the

river.)
 41

As the driver's door h a d already been damaged before a n d could not

open, both he a n d his two p a s s e n g e r s got out on the p a s s e n g e r side. He

t h e n moved a r o u n d his vehicle and saw Swartz' vehicle next to his.

(Again Sergowe's description is not accurate, as Swartz' vehicle was at

point A on exhibit A l , a b o u t 18 paces away from Serogwe's vehicle.)

Contrary to w h a t everyone else said, Serogwe testified t h a t the police

were there within s e c o n d s a n d t h a t the drivers were instructed not to

move. Much later he said t h a t they arrived 30 - 40 m i n u t e s later. Later

they were called to give a b r e a t h specimen for alcohol, which evidence is

likewise not s u p p o r t e d by any other witness. T h a t is w h e n N u n u h e b

allegedly told Swartz to r u n away, which evidence I have already rejected.

Swartz then r a n a n d the police were searching for him. N u n u h e b then

said t h a t he could report at the police station at 8:00. This he did, but

N u n u h e b w a s not there. He returned on 27 December w h e n the warning

s t a t e m e n t w a s taken. Later he stated t h a t he actually met N u n u h e b on

26 December a n d signed a blank warning statement.

According to Serogwe, O u b a a s Makkies disappeared from the scene, that

is why no s t a t e m e n t w a s eventually taken from him. The obvious place to

have looked for him w a s at Ella Bakhela's h o u s e where he found

Makkies. There is no evidence t h a t this was done. It is clear though t h a t

he never mentioned to the police or in any of his s t a t e m e n t s that

 42

Makkies w a s t h e one passenger. He only mentioned a person by the

n a m e of Deon, who he later said w a s Don. N u n u h e b confirms t h a t

Serogwe h a d m e n t i o n e d t h a t there w a s a p a s s e n g e r by the n a m e Deon.

Much time w a s s p e n t on the issue of w h e t h e r Serogwe tried to bring

Deon a n d N u n u h e b together for a s t a t e m e n t to be t a k e n a n d whether

N u n u h e b failed to do his d u t y in this regard. The initial stance taken in

plaintiffs case w a s t h a t Serogwe was alone in the vehicle, b u t later it was

conceded after Oscarine a n d Ella testified t h a t Don a n d Makkies may

have been in t h e vehicle at the time of the collision.

There are however, a s p e c t s of Makkies' evidence t h a t concern me. He

first, like Serogwe said t h a t the light w a s green when they drove off from

Ella's House, b u t t h e n he changed his evidence a n d said t h a t he saw the

light t u r n i n g green a b o u t 16 paces before they entered the intersection.

Serogwe also c h a n g e d his evidence in cross-examination to say the light

turned green when they were about 50 metres away from the

intersection. Makkies j u s t h e a r d the s o u n d of the collision a n d did not

see Swartz' vehicle. Immediately after the accident he saw Swartz get out

of his car a n d r u n away. Makkies said t h a t he stayed at the scene for

a b o u t 30 m i n u t e s a n d then went to Ella's home a n d told her a n d

Oscarine t h a t they h a d been involved in an accident. Strangely, he did

not tell t h e m w h a t h a p p e n e d a n d on their own testimony, they did not

a s k him w h a t h a p p e n e d . They were only concerned a b o u t Don, who was,

 43

according to Makkies, u n h a r m e d . Makkies also testified t h a t the police

searched for t h e other driver and even fired s h o t s in the process. There

w a s no s u c h evidence by anyone else. This m u s t be a clear fabrication.

The witness H a r a s e b who arrived by c h a n c e at the scene testified t h a t he

w a s dressed in a blue uniform a n d accompanied by a driver in a

camouflage uniform. They looked for Swarz in the river bed, b u t did not

state t h a t they fired s h o t s .

Although Makkies a p p e a r e d truthful in the witness box a b o u t his

criminal record a n d t h e general impression he conveyed was one of

honesty, it w a s clear t h a t he is not youthful anymore. He was slow to

r e s p o n d to q u e s t i o n s a n d in his m a n n e r of speaking. I did not get the

impression t h a t he w a s quick in his reactions or particularly responsive.

Bearing in m i n d in his favour t h a t the accident occurred a considerable

time before h i s testimony, I m u s t nevertheless say t h a t I would not be

surprised if he were not particularly observant. His testimony t h a t

Swartz r a n away immediately tends to confirm this impression. What is

more, he did n o t even tell the women at h o m e w h a t h a d occurred, as one

would have expected, namely that a n o t h e r vehicle disobeyed the red

light. This m u s t surely have been something noteworthy to say in the

c i r c u m s t a n c e s . According to him he also did not speak to Serogwe at the

scene, which also seems strange. I have my d o u b t s t h a t he even

discussed the m a t t e r with Serogwe later, as he was never mentioned as a

 44

witness who could testify t h a t Serogwe was in the right a n d Swartz in the

wrong. It w a s only after Don died t h a t his n a m e came to the fore. If he

did d i s c u s s it, it would r a t h e r seem t h a t he probably could not assist

Serogwe. If he could assist, I find it very improbable t h a t he j u s t left the

scene without m a k i n g himself available as a witness. For the reasons

already mentioned, I am not inclined to rely on his evidence as to the

colour of the traffic light.

Serogwe's evidence was most unsatisfactory. Counsel for t h e defendant

conceded mildly t h a t he was not the best witness a n d t h a t his evidence

should be treated with caution. I do not propose to deal with the

c o u n t l e s s i n s t a n c e s where he clearly contradicted himself, adjusted his

evidence to cast himself in a better light, blamed others for h i s mistakes,

gave s p u r i o u s a n s w e r s a n d even fabricated evidence. I have already

referred to some aspects in regard to exhibit B7 a n d the warning

s t a t e m e n t . At times he seemed not to know the difference between lies

a n d the t r u t h . Apart from this he was distinctly hostile, arrogant and

rude in the witness box while being cross-examined. The Court

repeatedly h a d to w a r n him to listen to the questions a n d to answer

them. W h a t is clear is t h a t his evidence on material i s s u e s c a n n o t be

relied u p o n in the absence of corroboration. In the light of my findings on

the evidence given by Makkies I am driven to the conclusion t h a t there is

no s u p p o r t for Serogwe's version t h a t the traffic lights were green for

 45

him. I am fortified in this conclusion by the evidence of Swartz, Clemens

a n d Haradoeb t h a t Swartz a n d Clemens immediately after the collision

went to Serogwe a n d confronted him a b o u t his driving. Swarz says he

was angry a b o u t t h e m a n n e r in which Serogwe drove. Haradoeb h a d the

impression t h a t t h e r e w a s an argument. This reaction by Swarz would be

a n a t u r a l reaction by an innocent driver towards the offending driver. In

addition Serogwe held his h e a d a n d apologized.

Apart from this Serogwe on his own version drove at 80 k p h at night in

an a r e a where the speed limit is 60 kph. He did not keep a proper look

out or enter the intersection with the necessary care expected from a

reasonable driver in t h e circumstances. In the intersection he did not

even see plaintiffs vehicle until after the collision a n d they h a d come to a

stop. He only swerved to the left after his vehicle h a d been hit. It is clear

t h a t Serogwe was negligent a n d caused the accident. In the result the

plaintiff h a s proved her claim against the defendant.

As far as the driving by Harenz Swartz is concerned, I can find no basis

u p o n which it can be said t h a t he was negligent on any of the grounds

alleged by the defendant a n d point out t h a t the general description of the

damage to his vehicle s u p p o r t s his version t h a t he swerved to the right.

The claim against him as third party m u s t fail.

 46

In the result I m a k e t h e following order:

1. In respect of plaintiffs claim against the defendant j u d g m e n t

is granted for t h e plaintiff for:

1.1 P a y m e n t of the a m o u n t of N$4, 7 1 3 , 232-00.

1.2 Interest on the aforesaid a m o u n t at the rate of 20%

per a n n u m calculated from 14 days after the date of

j u d g m e n t to date of payment.

1.3 Costs of suit.

2. In respect of defendant's claim against the third party the

claim for declaratory relief is dismissed with costs.

VAN NIEKERK, J
 47

APPEARANCE FOR PARTIES:

PLAINTIFF AND THIRD PARTY: Adv L C Muller SC

Instructed by: Van der Merwe-Greeff Inc

DEFENDANT: Adv H Geier

Instructed by M u r o r u a & Associates