The State vs Jandre Lodewyk Dippenaar      

Swk-crm -4261/2015

Judgement

This was a marathon case that took almost 7 years to come to conclusion due to the many witnesses that were led; the intensive and exhaustive technical expert evidence that were led and due to the gravity of this case

The brief facts of the matter as it played out on the 29^th day of December 2014 was that the accused was 1^st pulled off by a traffic officer due to complaints of negligent and inconsiderate driving between the main road of Walvisbay and Swakopmund .  Soon thereafter on the salt road between Swakopmund and Hentiesbay acc was involve in a collision with the deceased Mr. Joschko; in which 6 people died. 3 people were passengers in the vehicle acc drove and 2 passengers and the driver. Mr. Joschko died in the other vehicle

The accused did originally stood trial on the following charges:

Count 1: Main count

The Road Traffic and Transportation Act ;Act 22 of 1999 –contravening section 80(1) read with sections 1;49;50;51;80(2);80(3);86;89;106;107 and 108 as amended-Reckless or negligent driving

Alternative to count 1

The Road Traffic and Transportation Act; Act 22 of 1999 contravening section 81 read with section 1; 50; 51; 86; 89 and 106 as amended-Inconsiderate driving

Count 2: Main count – Fraud

Alternative to count 2:

The Road Traffic and Transportation Act 22 of 1999- contravening section 84 read with section 1 and 106 as amended – Furnishing false information

Count 3:

The Road Traffic and Transportation Act 22 of 1999 contravening section 31(1) (a) read with section 31(2); 106 and 107 as amended-No drivers licence

Count 4 to count 9: Murder

Accused was discharged on count 2 and alternative in terms of section 174 of the CPA

The remaining charges read as follow:

Count 1: Main count- Reckless or negligent driving

It is alleged on or about the 29^th December 2014  upon a public road to wit Swakopmund – Walvisbay B2 road at or near Long Beach in the Central Division the accused did wrongfully and unlawfully drive a motor vehicle  with registration nr N8163GO recklessly or negligently by overtaking a vehicle where it constituted a danger to other road users or traffic and/or overtake a vehicle and re-entering his lane in a manner that constitutes a danger to other road users or traffic and/or failing to exercise reasonable care when driving

Alternative to count 1: Inconsiderate driving

That on or about the same date and place mentioned above the acc did unlawfully drive a vehicle with registration nr N8163G0 without reasonable consideration for any person using the road by overtaking a vehicle where it constitutes a danger to other road users or traffic and/or overtaking a vehicle and re-entering his lane in a manner that constitutes a danger to other road users or traffic and/or failing to exercise reasonable care when driving a vehicle

Count 3: No driver’s license

That on or about the 29^th day of December 2014 and on a public road Swakopmund-Hentiesbay C34 in the district of Swakopmund the acc did wrong fully and unlawfully drive a motor vehicle  with registration no N8163 GO other than under the authority ;and in accordance with the conditions, of a license issued to him under Chapter 4 of the Road Traffic and Transportation Act;Act22 of 1999, or of any document deemed to be a license  for the purpose of the said Chapter ;or a temporary authorization as referred to in section 31(2) of the Road Traffic and Transportation Act; Act 22 of 1999

Count 4 to count 9: Murder

That on or upon the 29^th day of December 2014 at or near Swakopmund-on the Hentiesbay C34 road in the district of Swakopmund the accused did unlawfully and intentionally killed the following human beings to wit Markus Walter Helmut Joschko; Alexander Marlene Joschko; Stephanie Dorothea Schermuck-Joschko; Charlene Charne Schoonbee; Dinah Lavinia Pretorius and Jan Carel Horn

The accused did plead not guilty on all the above-mentioned charges and gave an extensive elaborated plea explanation in terms of section 115 and made admissions in terms of section 220 of the CPA handed up as exhibit A

As per annexure A the acc stated the following: as to what happened on that faithful day as well as prior to the 29^th December 2014:

At par 6:

Accused stated he met deceased Dinah Pretorius on 13 December 2014 in Windhoek. They spend the following days in each other’s company. 0n 19^th December 2014 they departed to long beach in separate vehicles.

Para 10:

Before Christmas Dinah returned to Gobabis to join her parents for Christmas and she returned to Hentiesbay on 26 December 2014 accompanied by Charlene Schoombee.

Para 11:

On 29 December 2014 at 6 am Dinah; J C Horn; Charlene and the acc departed to Long beach to meet up with a group who as arranged was to be accompanied by Nico Smith into the Dunes. They departed with Dinah’s FJ Cruiser with registration no N 81630 GO. Accused was the driver of the FJ Cruiser with passengers J C Horn-one of his best friends seated on left front passenger seat. Dinah was seated behind accused on right rear passenger seat; Charlene sat behind JC on left rear passenger seat. During the day the seating positions remained the same. With their departure from Hentiesbay they took along Coke Zero; 1 bottle 750 ml Vodka; 1 x 750 ml Whiskey; some ciders; water and ice tea. During the day accused drank coke zero and at one stage poured himself vodka with coke zero but never got to finish it because he was driving.

Para 16:

Accused said because of his intentions to enter a romantic relationship with Dinah and that his parents and friends joined the dune trip he attempted to put his best foot forward he said because the vehicle was not his he drove carefully not to damage it.

Due to his off-road rally racing experience racing Nico Smith requested him to drive behind the group to ensure the group gets through and not get stuck in the sand. At around 14h00 his brother indicated he wanted to return to Long beach.

At para 23:

On arrival at Long Beach he inflated the Cruiser tyres and they left for Hentiesbay because they were supposed to have a barbecue the evening.

At para 24:

He states that the road between long beach and Swakopmund as the norm was busy that time of the year. And due to the circumstances prevailing on the road the speed in some instances travelled by the vehicles on the road was lower than the speed the vehicles normally travelled. He said on one occasion after he established that it was safe to do so pass some slow-moving vehicles in front of him. He did not do so in a reckless; negligent or inconsiderate manner.

At Para 25:

He can distinctly recall that on 1 occasion he was confronted with a situation when a vehicle turned slowly on the road before him. As he could observe the approaching vehicles for a considerate distance, he decided to overtake the vehicle against the barrier line to avoid the risk of the vehicles immediately following him to collide with the back of his vehicle and/or to take some other kind of unexpected evasive action as stated this resulted that he crossed the barrier line and then he overtook the vehicle.

At para 26:

Whilst driving into Swakopmund he heard a traffic vehicle siren but as he believed that the signal was not directed against him; he continued driving. At the 4-way stop the traffic official pulled up next to him and requested him to pull over

At Para 27:

At the filling station the traffic officer informed him that he received a complainant that he drove in an inconsiderate manner. Accused explained to the officer that he overtook a slow-moving vehicle against a barrier line in the circumstances as already referred to above he apologized. After receiving a warning not to do it again and to drive carefully.

At Para 29:

Accused stated that he was not requested to show a driver’s license to the traffic officer; as he was not in possession of a driver’s license as his was stolen during or about the night of 5 November 2014 when his house in Windhoek was broken into.

At Para 30:

They departed to Hentiesbay and on occasion he passed slower moving vehicles. This he only did after he established that it was safe for to do so.

At Para 31:

At mile 28 he suggested to his passengers that they should continue to drive along the beach to Hentiesbay as he did this frequently because one normally meet up with friends and/or acquaintances along the beach but they preferred to go home.

At Para 33:

They continued driving. The next thing he can recall was when he regained his conscienceless in hospital in Windhoek. He stated that he cannot remember or recall anything that happened in between. As result of his frustration not to be able to recall anything he sought interventions and assistance from a clinical psychologist and he is still receiving therapy in this regard. But unfortunate up to date he was not able to regain his recollection in respect of the events immediately before; during and after the collision near Hentiesbay.

On count 1:

In terms of Section 220 of Act 51 of 1977 as amended

Accused admitted the following:

A) That on 29 December 2014 he was the driver of the vehicle with registration nr N 8163GO on the road between Long beach and Swakopmund.

b) That the road between Long beach and Swakopmund is a public road. He denied each and every further element of the charge. He specifically denies that he drove the said vehicle recklessly; negligently or in an inconsiderate manner.

On Count 3

He denies each and every element and in respect of his denial he stated that during 2009 he was issued with a license for a period of 5yrs; which was to expire during January 2014.However prior to the expiry his wallet containing his license got lost-this happened during the last portion of 2013.

He unfortunately cannot recall the exact date.

As a result thereof he applied for a driver’s license at the offices in Tal St Windhoek at Road Authority Natis. He was issued with a temporary license and license card. According to his knowledge and understanding any license is issued for a period of 5 years it was this license that was issued and authorized during the last month of 2013 that was stolen from his house on 5 November 2014. He further stated that during the last period of 2013 and to 5 November 2014 on several occasions he was stopped at permanent and temporary roadblocks where he was requested to provide his driver’s license which he did-And at none of these occasions the validity of the driver’s license was questioned.

On Count 4 to 9:

Accused admits in terms of section 220 that on 29 December 2014 he was the driver of the vehicle with registration N8163 GO on the road between Swakopmund and Hentiesbay. He further admits that on the said date approximately 12kms from Hentiesbay a collision occurred between the vehicle described and the vehicle with registration nr N169585W. He further admitted that the following human beings died in and as result the collision and as result of injuries sustained in said collision:

A) Marcus Walter Helmut Joschko –deceased in count 4

B) Alexandra Marlene Joschko- deceased in count 5

c) Stephanie Dorothea Schemick Joschko –deceased in count 6

D) Charlene Sharne Schoombe –deceased in count 7

E) Dinah Lavinia Pretorius –deceased in count 8

f) Jan Carel Horn-deceased in count 9

It is further admitted that the said bodies did not suffer any further injuries during transportation from the scene of crime. Except for the aforesaid each and every element is denied in murder charges. Accused further denies that he at any stage acted with intent in the legal sense to kill the aforesaid persons; and denied that he acted negligently and put the state to proof of it.

He further denies that any of his actions caused the Collison that day.

The aforesaid plea with admissions were handed up as exhibit A

In respect of Count 1

Reckless and negligent driving the following evidence was presented: the court will refer to the relevance of each witness:

1st Witness: Freddy Mills

He was then a salesman for 24yrs at Stickles Toyota Swakopmund and a member of the local neighborhood watch. He told the court that he knew acc through motor racing events. He told the court that on 29 December 2014 he drove with his friend Natasha Horn on the B2 road between Walvisbay and Swakopmund. The reason he took the said road was to show his lady friend the many holiday makers on the beach between Walvisbay and Swakopmund. He narrated they drove in groups of convoys due to the congested traffic; and their speed was between 80 and 90 km. He explained just after the turn off at Long beach; at the turn off Daredevils Desert Adventures he noticed in his mirror a white FJ Cruiser oncoming at a high speed. The FJ was on a higher speed than their speed. He said the FJ Cruser came at a high speed passed/overtake them on the right-hand side; which was the wrong side of the road while there was oncoming traffic from the front.

The traffic from the front was moving from Swakopmund to Walvisbay. These oncoming vehicles flicked their lights because they were close to accused who were coming ahead on in their lane. As the oncoming vehicles flicked their lights witness braked and slowed down to 50km in order to create a gap/space for the FJ. The FJ Cruiser went into that space. Witness said he got a big a fright after this vehicle went into the gab. He took down the registration number of the FJ-Cruiser which was N8163G0. He got affright because the FJ Cruiser was close to them and close to the oncoming vehicles. He observed the oncoming vehicles also reduced their speed and seemed and tried to go to the left side of the road in order to avoid a collision. Witness said if he did not brake and reduced speed there would definitely have been an accident. Accused would have ridden off the road or would have collided with the oncoming vehicles.

Thereafter Mr. Mills observed the FJ Cruiser again moved out to overtake; passing vehicles in the fashion again the oncoming vehicles that flashed their lights. Witness said at that stage he felt the way the FJ Cruiser drove he was a danger to the traffic; the oncoming vehicles; as well as the convoy of vehicles that followed and he called the neighborhood watch. Witness said that according to him that followed the speed limit everyone drove and because acc overtook in the face of oncoming vehicles and there was not space to re-enter between the vehicles; that the FJ Curser drove recklessly. He said thereafter the FJ Cruiser was for quite a distance in his sight and he saw him passed vehicles two to three times while in sight. He described that there were many vehicles on both sides and they drove bumper to bumper on both sides and there were also vehicles off the road on both sides

Upon calling the neighborhood watch; Callie Van Der Merve responded, and witness requested him to contact the traffic in order to pull of FJ Cruiser and warn him for his driving. Witness was called back by Dewaldt Swart of neighborhood watch that informed him that officer Motinga pulled off the FJ Cruiser and he should come to identify the vehicle. When witness came to stop at Cymot; and as he walked over the road the FJ Cruser pulled away but he recognized the vehicle on the registration nr N8163GO. Dewaldt told him that the driver did identify himself as Jandre Dippenaar and he was just given a warning. Witness explained the reason why the road was so full at that stage was because it was festive season and everyone went to the beach or was coming or driving between the two towns. Like the accused he also drove an FJ Cruser which had a power full engine;

During cross-examination

The witness was in dept. questioned about the difference in his statement and what he told the court about where exactly about at the turn off or after the turn off he was when he saw the FJ Cruiser. He was also confronted as to why no mentioned was made in his statement as to the evasive action taken by the oncoming vehicles as it was stated in the oral evidence. Witness explanation as to reason why he left it out was because the police requested him to just give a brief statement as to what happened. Witness was questioned in dept as to whether he made more than one statement to the police. He said he gave a handwritten statement in January of 2015 and was presented with a typed statement in MAY 2015. Witness explained that he made a written statement on January 2015 which he signed. That same statement he was requested to type over and he signed the typed one in May 2015. It was established that witness did make more than one statement to insurance company and not to the police. He was in-depth questioned as to why he actually braked; whether it was in anticipation or in reflex. He was adamant that he was forced to brake and if he did not brake there would not have been enough space for the FJ Cruiser to move in and there would have been an accident. He was questioned on discrepancies in his statement and what he told court. It was put to witness that the reason for discrepancies was because it did not happen as he explained. He was also questioned as to why his statement is silent as to the 2 to 3 times the FJ overtook.

Accused denied that he overtook vehicles where it was dangerous and he never overtook where oncoming vehicle had to take evasive action. It is alleged that the reason for the discrepancies and why witness left out material details in the statement was because witness version was concocted.

His statement A76 dated 6 May 2015 was handed up as exhibit B

Statement of witness- dated 9 JANUARY 2015-Exibihit C

2^nd witness: Carl van der Merwe

He corroborated that on 29^th December 2014   he got a call from previous witness Mr. Freddy Mills on the neighborhoods watch number informing him that he was driving behind a white FJ Cruiser with registration number N8163GO; who was driving extremely inconsiderately and passing vehicles on a solid line and on hills and crests. Mr. Mills asked him to put it through on the radio; which he did. There was no response on the radio. Witness then called Dewaldt and asked if he heard it.

During cross-examination

Witness told the court that he gave a hand-written statement and was later in May the next year given a typed statement to sign. He could not explain why the fact that Mr. Mills told him that he was driving behind a white FJ Cruser that is driving inconsiderate not stated in this typed statement but claim it was in the 1^st statement. He was also questioned as to why it is not contained in his statement that Mills told him that The FJ Cruiser was driving over solid line-witness is adamant that he told the police in Afrikaans and they wrote and translate it in English.

His statement is handed up as exhibit D

3rd Witness: Dewaldt Lambertus Swart

Accused is known to witness as a rally driver and they met at rally meetings. He was also part of neighborhood watch and a police reservist. On 29 December 2014, between 16h25 and 16h30, previous witness; Callie van der Merwe called in on the neighborhood watch radio and reported there was someone that drove reckless and negligently on the road. Callie reported; the guy that called in told him that a white FJ Cruiser with registration nr N8163GO passed many vehicles at a time and even on a solid line. Witness immediately drove to the Swakopmund Bridge and seek assistance from Swakopmund Traffic. He was informed that traffic officer Motinga was on his way to the bridge. When he got to the bridge he saw two vehicles approaching from Walvisbay into Swakopmund Motinga also arrived a few minutes after him. -He observed from these two vehicles; behind the 1^st vehicle was the white FJ Cruiser and it was close to the vehicle in front. When the vehicle came closer he saw the registration nr was N8163GO and he identified the driver as Jandre. He indicated to Motinga and Motinga followed the vehicle. He could not turn immediately due to oncoming traffic. When he eventually got to Duneworks he saw that Motinga pulled over the FJ Cruser and was speaking to Jandre. While seeking parking he saw Jandre got into his vehicle with a passenger and they drove off. When he got to Motinga he told him that he warned acc for inconsiderate driving. Then Freddy Mills that originally made the call came to stop at Cymot. He observed Freddy was absolutely shocked and was shaken and nervous. Freddy he said that man drove very inconsiderate; reckless and dangerous and should have been locked up.

During cross-examination:

He was questioned on how many statements he made. He said he made two statements; 1 in January to the guys from the insurance company which he typed himself. The second statement he just gave the 1^st statement and the police brought it to sign. He conceded that he did not sign the statement in the presence of Havenga. He was confronted about the discrepancy that Mr. Mills never told the court that he also informed them that the vehicle overtook on solid line. He was also confronted as to why he did not state in his statement that Mr. Mills was shocked when they met he said he did not know every detail should be included. He was in dept questioned between the discrepancies in his statement and evidence in chief and between him and Mr. Mills’s evidence. His written statement was handed up as exhibit E-dated 9 January 2015.

His typed statement dated 6 MAY 2015- As exhibit F

4th Witness: Appollus Motinga

The traffic officer at Swakopmund municipality. He told the court he met accused for the 1^st time on 29 December 2014. He corroborates that around 16h00 on the said date a member of the neighborhood watch stopped him and reported about a vehicle driving from Walvisbay to Swakopmund   in an inconsiderate manner and requested   assistance to stop the vehicle at the bridge and one of their members was already there. Witness immediately drove to the Swakopmund Bridge and he met Mr. Dewaldt Swartz there. Mr. Dewaldt informed him that it was a white FJ Cruiser with a Gobabis registration number that overtook vehicles on a barrier line and while they were still discussing Dewaldt pointed at a white Toyota FJ Cruiser with registration no N8163GO as the vehicle passing by. They immediately jump into their cars and he followed the said vehicle; he stopped this vehicle with sirens in town in Sam Nujoma Street. Accused and 3 passengers alighted from the vehicle. He told the accused that there was a complaint against him that he overtook vehicles on a barrier line between Walvisbay and Swakopmund;

Accused in response confirmed it and explained that he only overtook one vehicle before he reached the bridged that was driving slowly. He further explained that there was a chain of vehicles following each other and he was afraid if he followed the same speed as the vehicle he overtook; that they might bump him. Accused humbly apologized and said he overtook for safety reasons. Witness said he requested accused driver’s license and he gave witness a code B license. Witness said he cross-checked the face and expiry date and handed it back to accused. -He then handed him back the license with a caution that he should not do it again. He could not recall what the expiry date was but confirmed that the license was valid. He did not test acc for alcohol because he was close to him and did not get the smell of alcohol. Accused then drove off.

 During Cross-examination:

It was put to witness that accused denies that witness requested his driver’s license because as admitted at that point accused was not in possession of a driver’s license because if he had one it already expired. Witness could not recall a conversation he had with Mr. Nico Smith telling him that he could not recall what code license accused had. In response he said a lot of people called about this case. He further states he has no knowledge of it that W/O Havenga gave his statement to insurance people or other people. Witness was questioned about a cellphone conversation that was recorded between him and Mr. Nico Smith. Witness said he cannot confirm that it was his voice on the conversation

The Afrikaans version of conversation was handed up as exhibit G and English translated version as exhibit H.

Witness then concluded said if accused says that he did not produce a driver’s license; then he must present an illegitimate license or a misrepresentation. The court at this stage wants to refer to the following authority with reference to discrepancy in police statements

•  The court in R v Steyn[1] had the following to say on witness statements:
• ‘[T]here is a serious possibility that statements made to the police, which are made in entirely different circumstances, may be far from constituting this accurate representation and through inaccuracies may be a target for cross-examination which, instead of revealing the truth, may obscure it.’
• In the same vein, in the headnote of S v Bruiners en ‘n Ander[2] the following was said where witnesses in certain respects deviated from their witness statements:

‘In order to discredit a State witness on the basis of his affidavit, it was still necessary that there had to be a material deviation by the witness from his affidavit, before any negative inference could be drawn. The purpose of an affidavit was to obtain the details of an offence, so that it could be decided whether a prosecution should be instituted against the accused. It was not the purpose of such an affidavit to anticipate the witness’s evidence in court, and it was absurd to expect of a witness to furnish precisely the same account in his statement as he would in his evidence in open court.’

Regarding to count 3 the following witness were led:

5^th Witness: Johannes Shuuya

He is the head of Windhoek Road Authority – stationed at Natis and employed since November 2011. His duties included to manage the office which operations included registration of drivers; registrations of vehicles; issuing of learners and driver’s license. On 8 July 2015 Sgt Amadila approached him at Natis and requested a detailed explanation in the form of a statement on the status of the driver’s license of Mr. JL Dippenaar. He logged into the Namibia Traffic Information system using the CA1 which provided a detailed report on all the transactions that was performed under the name JL Dippenaar. He also used the transaction 764- to check the validity of his license-he establish that his driver’s license expired on 5 January 2014. According to Natis system it was only renewed on 29 January 2015. He told the court between the period of 5 January 2014 and 29 January 2015 acc did not have a valid license.

He explained if a person loses a driver’s license he may apply for a duplicate and must indicate on form and also attached an affidavit from the police to explain how license got lost. If issued with a duplicate license; it will be valid for the next 5 years. According to the transaction he draw Mr. Dippenaar got a license on 17 December 2008-a temporary card and driving license card was issued on 28 April 2009. He said it is not possible that a temporary card will be issued without indication on the transaction report. According to CA 1 printout no duplicate was issued to Dippenaar in 2013. Witness said he disagrees with acc plea that a license was issued in 2013 because there is no indication of such on their system. On the 764 transaction it indicated that acc driver’s license   card expired on 5 January 2014 and his current license was issued on 29 January 2015.

Transaction 764 was handed up as – exhibit J 3

Transaction CA12 was handed up as –exhibit J 4

During cross –examination

Witness was questioned in dept on the processes to apply for a license and when it is stolen or lost. It was put to witness that accused license was stolen during November 2014, this was after he was granted a license because his license issued in 2009 got lost in 2013.He decided to apply for a new license or a duplicate. He completed J1 but when he got to Natis there was a problem with the eye test machine; the queue was long; he turned back and went home. He never presented J1 to Natis or anyone else. He then left the form in his GTI; travelled to Hentiesbay without being in possession of a driver’s license card. He got involved in this accident on 29 December 2014. His father got the form in his GTI and went to Natis to enquire. His father was told that the status of accused license card that it expired and should come himself.

Count 4 to 9 the following witnesses were led:

Witness: Ronnie van Zyl

He told the court that he does not know accused personally. He told the court that on 29 December 2014 between 16h00 and 17h00 he was driving back to Hentiesbay around mile 32 when a white FJ Cruiser past them at a very high speed and he estimated the speed at about 160km. The FJ Cruiser past 3 vehicles at the same time including his vehicle. He said he observed the FJ Cruiser for about 2 to 3 minutes behind him in his rearview mirror and then he passed 3 vehicles in a minute of seconds. Witness was driving at about 100km/h. He said the vehicle in front of him had to apply brakes because there was a little hump just after the turn off and he applied brakes so that the FJ Cruiser could go back into the lane again. He said at that stage it was only the FJ Cruiser and the 3 cars in that lane. Then the vehicle was gone.

He then turned off at mile 32 towards the sea. He met some friends; spend 5 minutes there then drove along the coastline further towards Hentiesbay. About 7km from Hentiesbay he saw the vehicle from life Link coming from Hentiesbay towards Swakopmund. They turned around towards Swakopmund and saw the smoke and came across the accident. He then saw the FJ Cruiser burning heavily and the Ford Ranger standing on the roadside and it was already standing on its wheels and accused was lying on the ground. He arrived at the scene at 17h15. He assisted Ian from the towing services to pull the pipes to extinguish the fire. The people from the other vehicle were still trapped in the vehicle. It took him about 15 to 20 minutes to return back to main road. He observed there was some marks like a gauge mark in the road as you drove to Swakopmund.

6th Witness: Ian James Stevenson

He knew accused by sight in Windhoek. For the peak season he stayed in Hentiesbay. On 29^th December 2014 he was on his way to Hentiesbay on the salt road. He described it as a dry salt road. He was driving in front of his wife in a white single cab Amarok. His wife drove a Nissan double cab bakkie. He said because his wife was driving behind him he did periodically looked in the rear and side mirror to see if she was still safe. As he got closer to Hentiesbay he saw in his side mirror a vehicle approaching his wife to overtake her. He could see that that vehicle was at a high speed. It overtook her. She did leave a space between herself and him should it be necessary for a vehicle to enter but that vehicle did not utilize that space instead it just carried on to also overtake witness. He also did leave gab if it was necessary for the vehicle to enter. He said he could recall when that vehicle overtook him the Amarok he drove actually shook and rocked his vehicle because of FJ Cruiser speed. The Speed limit there was 100km/h. He was just driving over the speedlimit and he drove between 110 and 115km\h. It was a white FJ Cruiser that overtook him on his right side-he could not recall his registration nr, but the FJ Cruiser did not go into that space but also overtook the vehicle in front of him and then disappeared over the blind rise. He said there were 3 vehicles in front of him.

He said he saw the FJ Cruiser overtook the 1^st vehicle in front of him then there was the blind rise and he was out of his vision and he could not see him. He described the speed of the FJ Cruiser as fast. He said the FJ Cruiser disappeared from his sight and after 2-3 seconds he saw a huge black puff. He saw when the FJ Cruiser went up the hill on the right-hand side and not see it reduced speed. He said the blind rise prevented him from seeing oncoming vehicle. He estimated the distance from the uphill to where saw FJ disappear at about 200 meters.  -He said once he caught up with them everyone pulled off the road. He moved to the scene and saw the FJ Cruiser burning. He saw a girl sitting on the ground and was being cared for by bystanders. He observed the acc used laying on the ground. Because of the heat of FJ he moved over to the wreckage of the white Ford Ranger double cab. He then assisted another man to flip over the bakkie to get access to the bakkie and get the girl that was trapped in the vehicle out. The bakkie was flipped over on its wheels- canopy was ripped open but it was impossible to get the girl out. The emergency vehicle came and assisted further. The incident happened about 10kms from Hentiesbay. He described the road as a very straight road; dry and as you get closer to Hentiesbay there was a couple of dips and rises. He said where he saw the FJ disappearing; it was not safe to overtake on the right-hand side of the road because you will not be certain whether it’s safe because of oncoming traffic. When the FJ Cruiser was burning it was on the right-hand side of the road. The Ford Ranger was on the sea side of the road-towards Hentiesbay it’s left. He testified that he drove a Amarok that was in the same class in terms of height as the vehicle acc drove and he could not see oncoming vehicles due to the blind rise.

During cross-examination

Defense questioned witness on the discrepancies in what is stated in the statement and what is said in court. That he stated in statement that FJ overtook 3 vehicles in front of him. Witness said it was as he stated in court. He also agrees that he did not indicate to police that FJ overtook at an uphill and he explained the reason why he did not state it in his statement was because the state prosecutor did ask more questions than the police.

His statement handed up as exhibit K

9^th Witness: Hazel Oosthuiszen

She did not know accused. She is a resident of Windhoek and was in Swakopmund on holiday on date of alleged incident. On the date of alleged incident, they were on route to Hentiesbay in a Range Rover. Her husband was driving and she sat on passenger side next to him. She said the atmosphere in their vehicle was silent and she concentrated on the road ahead of her. Plus minus 12km from Hentiesbay she noticed in the mirror a white vehicle driving behind them very closely this irritated her because she was afraid should they brakes that the vehicle will drive into them. The next moment she saw that the said vehicle passed on their right side. She said her husband drove very calmly at 95km\h.                                                                                           

She described the road between Swakopmund and Hentiesbay as salty; very uneven road with lot of crests. She conceded that the maximum speed limit on that road was 100km per hour. When this vehicle overtook them she saw it was a white Cruiser. The vehicle execrated quite a lot, and it passed them; tried to go in front of them skew. She observed that that it did not have control;  appeared as if the vehicle was moving side to side on the road and the next moment at a clear crest he drove on the right side of the road which was the wrong side; and it was a blind spot; one could not see what is on the other side of the road; and as he was going over the blind spot; they also came after him  and he was in their sight the whole time and  as they came over the blind spot they saw a collision between the FJ Cruiser and the Ford Ranger. The Ford overturned and rolled. She said the accident happened on the wrong side of the road. She said the FJ Cruiser moved a bit and stood there, and she saw the Ranger as it rolled and the FJ Cruiser in flames. She was very upset and angry. Everything happened suddenly.

According to witness the accident could have been avoided if the person with the white Cruiser followed the rules of the road and described it as an unnecessary accident because of irresponsible driving. They brake; stopped and pulled off the road. There were suddenly a crowd, and the road was quite bust that day. Her husband with the assistance of another man pulled out acc from the FJ AND screamed at him “Jy is gesuip; jy is gesuip. You are under the influence. The FJ was immediately in flames and within a few seconds there was an explosion. She further described the road condition where he overtook. She said the road goes down slightly and then there is a piece of road that is level; it is where he overtook them, but he no longer had control. She said she could not believe that he went right whilst it was a blind spot, but he did not have control. She emphasized that behind the blind spot she observed the FJ Cruiser on the wrong side of the road collided with oncoming traffic. She said she observed the FJ Cruiser with the collision; it rolled and with the impact it swerved towards the left; to their side and the vehicle landed on its roof.

She observed how they pulled out the German girl from the Ford Ranger. Weather was clear and there was no mist on the road. She estimated that they were about 40 meters from the FJ Cruiser and Ford when it collided. The reason why she was upset and angry because she said she experience that the FJ Cruiser drove recklessly and did not have control and feel if he drove 100kms per hour it would not have happened. On the question if the collision could have been avoided, she said that she think his speed was too fast and he was on the wrong side of the road and because of the blind spot the other vehicle did not have enough time to be able to see the Fj to be able to swerve out in time. The 1^st time she saw the Ford Ranger was when going on the blind spot is only when you can see what was going on other side. She said the 1^st time she saw the Ford Ranger was when it collided with FJ. She said there were no other vehicles in front of them. It was still daylight when collision occurred. She never saw the Ford Ranger in their lane. She said she could not clearly recall but think that the Ford Ranger came to lay in the lane they were traveling.

During cross-examination:

She concedes when she read her statement nothing was mentioned of the blind rise. She stated that she and her husband made the statements in his office without the assistance of anyone present and are not in agreement of police officers that states that they came to take statements from them. Her comment on why their statements are mirror images of each other she said was because they experienced it together. She conceded that they were together when they made the statement; discussed it and put it in writing. She stated that she did put in the statement everything she thinks was best; Witness was questioned in dept in what she stated in statement and what in court. She was adamant what she told the court is what happened. Witness evidence was compared with expert witness and several photos. Regarding to the real evidence as to the point of impact witness corrected herself and claimed that the FJ Cruiser must have returned to his lane just before impact.

9^th Witness: Paul Christiaan Oosthuizen

He corroborates that on the date of alleged incident they drove to Hentiesbay around 17h00. He corroborates that the road was busy that time of the year. He said about 12kms from Hentiesbay he saw in his rear mirror a vehicle behind him. He corroborates he drove less 100km/which was the speed limit. He got irritated because the vehicle drove impatiently on his tail. He said the next moment the said vehicle moved fast in the right and with acceleration passed him; he even looked in his side mirror to see if he could make eye contact or to see who was driving. He said he got the feeling of inconsiderateness of the driver of that vehicle. He said at that stage it was a salt road; uneven and the sight was good and the road was reasonably level.

He observed this FJ Cruiser with a Gobabis registration number passed him by and moved fast to the correct side of the road. He could see that the vehicle was not under control; the back of the vehicle was drifting right. The vehicle fastely accelerated and the instability of the vehicle continued. There was an uphill in front of them and when it was up on the crest it felt for him like it totally lost control. It moved to the wrong side of the road and the next moment there was a collision. He was a small distance behind the FJ Cruiser. It collided within a split second white Ford Ranger double cab. The double cab was upside down and came to a standstill in their lane. The collision happened about 20meters from the summit of the crest. The collision happened on the wrong side of the road; the right side. He said the FJ Cruiser suddenly drove into the other vehicle – it corroborates the version of Ms. Joschko.

He said he could recall the Ford came to stand still on his side of the road. He said he only saw the Ford Ranger at time of Collison because the road was lower at the plateau. His eye was on the FJ Cruiser until the collision. He braked because the accident happened close to them and he pulled off. The FJ Cruiser was on fire. With the assistance of someone they took out the driver from the burning wreckage with much struggle. He said he was angry and asked the accused if he was under the influence because he got the smell of alcohol from the accused and accused responded no. He said from the moment he saw the vehicle in his rear mirror he felt it was a reckless driver, but he did not have any illusion that he will cause the accident on the wrong side of the road. What caused the accident: he said that the FJ Cruiser accelerated considerably and the momentum of the vehicle let it swift and swerve; that is why he lost control and on the right side collided with an oncoming vehicle

He corroborated that the said road was relatively busy. He said in January the police contacted him to give a statement. He further stated at on the 30^th he got a call from Mr. Nico Smith and he was uncomfortable because he asked him all sort of questions about the incident and he was not sure how much info he should tell him and what his involvement was. Mr. Smith told him that he was a friend of the Dippenaar. Witness said when he got to Windhoek he was uncomfortable with this story. His lawyer advised him to make a statement, and he prepared a statement with assistance of his lawyer and when the police contacted him he gave them that statement. He said it is absurd if someone said the accident happened in his lane.

During cross-examination:

He was in-depth question as to why he and his wife statement is almost the same. He said he just told his wife to compile a statement but did not tell her how to compile the statement. Witness is adamant that his wife individually gave her statement. He said Mr. Smith called him several times and he was uncomfortable with his questions and did not think his answers through. The witness was pressed to give precise distances which he said he was reluctant to give because he was uncertain of the distances and did not want to estimate

Witness was adamant that when the FJ came left in front of them the road was still level and it started drifting left to right and with the loss of control, he moved up the hill and when he was on top of the hill he saw the accident. He stated as accused moved sharp to the right he moved into the oncoming vehicle. Witness also demonstrated how the FJ Cruiser was never under control after it overtook him and how it was drifting – demonstrating his hand zig-zag. He again explained that when the FJ came left in front of them; the road was still level and it started drifting left to right (demonstrating with the hand zigzag and when it was going up the hill; left right and with the loss of control moved up the hill and when it was on top; then he saw the accident. He again stated with the collision the FJ was on the wrong side of the road where it was level again and it was moving into the oncoming vehicle. Witness was thoroughly questioned regarding what happened before the collision; the movement of the FJ. He stated it was due to the high speed that it swift to the right. He confirmed as it stated in his statement that when he asked the accused if there were other people in the vehicle, he said his friend was in the vehicle.

7^th witness: Antonio Kiara Josko

She is the only surviving victim of the white Ford Ranger. She is a German national and was 19yrs old when she testified. She told the court that they came to Namibia to celebrate her parents’ anniversary and her mother’s birthday. On 29 December 2014 her dad Markus Josko (now deceased) was the driver; her mother Sherma Josko (deceased) sat left front on passenger side; she sat behind her father on back seat and her sister sat on left back seat. She described the road as a salt road that was quite hilly up and down. She said the road had no lines on, but it was enough for two vehicles to pass each other. The corroborates that the traffic was quite busy that day.

She described her father as normally considerate driver and while driving they spoke in general that because the road was not tarred one should be more carefully. Vehicle passed them coming from the north were obviously faster than them. From the South vehicles also passed them on right hand side. They were driving towards Swakopmund. She was chatting with her sister on the back seat. She said she could recall they drove up a little hill and suddenly a big white car appeared right in front of them and a second later the collision occurred. She further recalled seeing her father hand on the steering wheel trying to turn the wheel to the right and then she heard someone gasp. The big white vehicle she saw was on their side on the left-hand side. She said because the vehicle was so close to them, she could only see the bulbar of the car. She said she saw the vehicle coming over the hill and it was very close and less than a minute lapsed until the collision. According to her the reason for the collision was because the oncoming vehicle was very close to them and he was speeding.

She said it was her custom to look where they are driving and while conversing with her sister, she turned a bit to the left to have a better view of the road ahead. She said there was no time to react she just recall that her father pulled the steering wheel to the right or tried. At the moment her father tried to turn the steering wheel the collision occurred. The vehicle overturned and she could not make out where she was. She did not lose consciousness but only when vehicle came to a standstill, she could make out heaven and earth. She said they were hit from the front but cannot determine the angle of impact. Her stomach felt sore and she still hanged in her safety belt. She was able to remove the top part of safety belt and slide through bottom part and sat or kneeled. She looked out and saw people standing at a burning vehicle. People came to assist and with their assistance they broke the window and took her out. A man which she point out in court as the accused laid not far from her with a wound on his leg. Accused was staring at her and made her feel uncomfortable. She could say exactly on which of the road she laid. There were quite a lot of people on the scene.

The ambulance and paramedics came. They 1^st assisted the accused and later when she drew their attention, she was assisted and load on stretcher and put in ambulance and taken to hospital. She said there was a big fire and lots of smoke and she was afraid that their vehicle might also burn that is why she tied to get out of car. She sustained severe injuries. Her nose was skew and broken; she had severe pain in arms and legs – her right shoulder and right ankle was partly broken-she had wounds on toe and damage to one kidney. She was admitted in hospital. After sometime they took down her statement, but it was difficult due to the language barrier and they confused names. She stated that she could not write down everything, but it was important for that her to wrote down the basics. She said she was aware that it was not a detailed statement. On the question if the accident could have been avoided – she said she found it to be impossible from her dad side because it was to close and he could not avoid the collision even if he had turned to the left side and she felt because he did so he did actually saved her life.

She said she noticed that her dad tried to move the steering wheel to the right; so the collisions appears for her to be more or less on front left side that is why she escaped death. She said they drove on the left side of the road and that the vehicle with Collision turned backwards and then turned over to right side. Certain corrections in court made due to poor interpretation. It should read: that the car was oncoming on very fast on their side. The distance: -was very close it must have been a second. The question whether accident could have been avoided: definitely not from my father’s side because he saw the other car too late and he tried to react, but his reaction could not chance anything

During cross –examination:

She confirmed that at time of accident she was 16yrs old. She was questioned in dept and in length as to what she told the court. She was questioned in dept what she meant that she had to clearly state what the basics was to put in her statement. She is adamant that they drove on the left hand side of the road and is quite aware and it was important to say it because otherwise people could misinterpreted that her father was driving on the right hand side and that they make him responsible for the collision because in Germany they drove on right side and she wanted to make it clear here he drove on the left hand side. The witness was questioned in dept on where on the hill they were and where the other vehicle was. She was questioned why Officer Havenga stated that witness said they were moving downhill when she saw the vehicle-witness is adamant they moved uphill.

She said she could not give the precious speed of her father, but it was a good speed and lot of cars overtook them. She was in dept questioned on her statement and what she told the court. Witness is adamant that the police found it difficult to write exactly what she said. She was very adamant on what she told the court in chief. The defense tried to discredit her in every possible way. She stated the important basics she wanted to state was as follow:

a) That she was in the car on their way with her father; mother and sister

b) She said there was difficulty because they often changed the names

c) She stated they were on their way to Swakopmund

d) They drove up a hill and a car came towards them

e) It was also important to clarify that they drove on the left hand side

f) And the car came on their side of the road

The witness was questioned at length as to what she told the court in chief- she was adamant in her answers. Witness is adamant due to the hill she could not see the oncoming vehicles. She was then confronted with the difference with her statement to Emily Aschenborn – a witness that was never called-neither by the state or defense. Witness is adamant that the collision happened in their line and ended up in the left line after their car turned and flipped over. Witness denies that she was fabricating the fact that their vehicle flipped over. She is adamant it happened. She could not give an explanation why no hill was depicted on the photos shown to her. It was put to the witness with reference to the photographs that the impact happened in the line of the accused was entitled to travel. It was further put to the witness that with regard to the real evidence; that she was fabricating her story for one of two reasons 1) so exonerate her father’s wrongdoings and 2) because she did not really observed what happened – witness is adamant what she told the court was true.

Witness: Brain Allen Louw

He is employed at Life link emergency rescue services Hentiesbay as the chief ambulance officer. He told the court that he received a report on the 29^th December 2014 at 17:11 of a Collison and vehicle on fire and people trapped in wreckage. It took them 6 min to get to the scene. On arrival he observed a vehicle burning fiercely and the Ford Ranger pickup that was on its wheels slightly behind the burning vehicle of to the side of the road. He further noticed two injured persons lying on the side of the road. He saw another victim trapped in the Ford Ranger. When he approached the Ford Ranger he noticed two people in the front seats of vehicle that was clearly deceased and a 3^rd person was on the right rear seat. -He said he was the 1^st medical qualified person on the scene. He contacted the municipality to send out a truck to assist with the fire and people trapped. They were later able with the equipment of the fire truck access the injured people in the Ford ranger but the people was already dead.

The police only arrived later on the scene. He testified that initially the Ford ranger was very close to the burning Cruiser and they tried to move the said Ford while dragging it with another vehicle but were able to move it for about a meter and he said the front wheels were damaged and rear wheels was locked and could only move it for a meter from original point. He said when he arrived there, he could see the cleared pre-pattern from the impact. He saw a photo that the Ford was on its nose and he understood that bystanders pushed it back on its wheels. He confirmed Photo z- clearly shows the Ford Ranger lying pretty much on its nose at an angle on the verge of the road. He told the court that that time of the year the traffic was very busy on the road

He described it as salt road and looking at it from a distance you could easily not see there was a blind rise particular from Hentiesbay to Swakopmund; but from the other side you were able to see. He said coming from Hentiesbay towards Swakopmund the road is quite deceptive and you could not see that the road falls into a dip but coming from the opposite side the rise could be clearly seen. He corroborated that he on the 7^th January 2015 pointed out to Mr. Graham and Joubert where he found the vehicles when he came on the scene. He said when he returned with them to the scene the road was cleaned but the marks could still be clearly visible. He did point out to them the exact position of The Ford ranger and FJ Cruiser where he found them; the various tyre marks and scuff marks and debris pattern.

The scuff mark was on the edge of the road facing towards Swakopmund and was consistent with vehicles coming from Swakopmund-this corroborates the evidence of Mr. Joubert and several other witnesses. He states that when he returned with the two gentlemen he could clearly observed the gauge mark; a bit of debris to the side of road; specifically on the Hentiesbay side. He did spend between 2 and 3 hours on the scene on the night of incident. The injured accused was taken by Emed and Ms Jockho was also taken per ambulance. The police arrived fairly later on the scene which included W/O Havenga.

During cross-examination

He conceded that the gauge mark was in the lane of Swakopmund to Hentiesbay

-He stated when he got to the scene the vehicle was standing on its wheels.

Witness: Detective W\O Paula Havenga

She is the investigation officer of this case. She told the court she was well acquainted with the said road because she travelled this road between Hentiesbay and Swakopmund at least 3 times a week since 2004. She described the road as a salt road with some flats and some slopes and no markings. There are road signs of speed limit of 100km; curve ahead; no overtaking; and names of fishing spots. She told the court on the fatal day of the incident while on her way from Swakopmund to Hentiesbay there was a continuous traffic when she noticed black smoke and it became thicker as she approached it towards Hentiesbay. – as she approached a fishing spot De Walle there was a blind crest and when she got on top of the blind crest she noticed the accident scene in front of her. She described as she was on top of the crest there was a flat surface that proceeded into a slope. Then there is a piece that is flat; then slopes and flat; then slopes again. As she approached the scene, she saw a white Cruiser standing across the road and that was in flames. The flaming vehicle was in the middle, but the front side of the FJ Cruiser was more to the right side of the road facing eastern side and she was moving from Swakopmund to Hentiesbay

Next to the road; on the slope she observed a white Ford Ranger, about 5 meters from the edge of the road. When she got out, she observed that the Ford Ranger driver’s side was still there and wheel but, the whole passenger side was damaged. There were a lot of vehicle pieces between the Cruiser and the Ford Ranger. She observed Emed personal attended to the tourist girl and acc was lying on the ground and was being attended by a paramedic and putting an IV drip on.

Seeing the Cruiser burning furiously she asked the acc if anyone was with him in the vehicle and he replied. She gathered information and was approached by Mr. Maritz and Oosthuizen. The fire truck came and lot of public assisted to extinguish the fire. Mr. Brain Louw was also on the scene. Mr. Goosen cut off the roof of the Ford Ranger to remove the corpses in it and the remains of the two ladies and gentleman was removed from the Cruiser. After everything was removed she observed a hole in the road with tyre marks which looked like brake marks. She described the hole Asif you took a spade and dug a whole-it and was looked like the top of the road surface was taken off, it was not too deep. From Swakopmund to Hentiesbay road; the whole with tyre marks was on the right-hand side of the road. She said the hole faced in the direction of the Ford Ranger because the black marks showed in the direction of the Ford. They preserve the hole. She then explained the photo plan Exhibit FF and went through plan. Stated that photo 1 came from Mr. Oosthuizen and 12 her colleague warrant officer Auchab. Phot 12 explained the hole in the road with black mark. When she returned on the scene road past midnight, she noticed that the road was scrapped at the place where the accident was). The iron poles and cotton tap on the whole was removed and the road was smooth. They earlier put on the hole was removed. The court must here stop to make this remark:

A question that puzzles the court and seems to be a mystery to even the police officers and others that attended to this matter: Is why after such a major devastating accident was the road and specifically where the accident occurred; was it scrapped in the middle of the night?

What was the purpose?

W/O Havenga told the court that she the next morning enquired from the CEO of Hentiesbay Municipality and he did not know about the scrapping of the road know. She wondered who tempered with the road. After numerous enquiries she establish that a Mr. Victor of road authority was authorized the scraped the road. She said she did not authorize the scrapping of the road, she was also dumbs tucked by it. Mr. Oosthuizen and Mr. Maritz pointed out to her where everything more or less happened; where the FJ Cruiser overtook one car; then the other. She said on her return the road was scraped and all the points was not there as she marked   it on the night of the 29^th December. She went through the points she indicted to Sgt Murorwa to take photos of as exhibit R. She went through the road accident report handed up as exhibit M. She explained in 2017 the docket was handed over to Warrant Sheya. She said according to her observation speed played a role in this collision-due to the hole in the road surface if two cars collide head on the cars will bend down on the ground; it will jump in the air and damage

During cross-examination

The witness was questioned in dept. why statements were taken and all commissioned only in May 2015. She was questioned on the range of filling of witnesses. She was in-depth questioned on her statement and why she omitted certain factors in her statement. She was questioned on the exact place where gauge mark was found and why she claimed it to be the point of impact. It seems that witness and defense have a difference on the directions. She is adamant that gauge mark was in the right-hand side. She was questioned on distances she could not give. She was questioned on state witnesses’ evidence.

Witness: Daniel Langa

He is traffic coordinator for Erongo region. When he arrived on the scene he observed 2 vehicles; coming from Swakopmund side a white double cab bakkie on its wheels almost in the middle of the road and a burnt-out vehicle. In the ambulance was the driver of the FJ Cruiser; the accused. He also found police officers; fire brigade and emergency service people. He further observed the road was wet where the fire was extinguish; damages on the road; a big whole at one place and scuff marks in the road. On the left and center left was a quite deep crater in the road about 15 to 20 cm. The scuff mark was more to the side of the burnt vehicle. He also does not know who and why the road was scraped during the night. He corroborates there was a small hill close to where accident occurred so the visibility from the front was a little obscured. He described the road that there are a lot of hills on the road and it will go up and down and some blind corners; that it is not a flat road.

8^th witness: Igansisius Appolus Murorwa

He is a scene of crime officer in Namibian Police who photographed the scene of crime on 31 December 2014 at 12h00.-2 days after accident. W/O Havenga went to point the scene out to him. The scene he photographed was about 11.8 kms from Hentiesbay Services station towards Swakopmund. He described the said road as a salty; sloppy road; 100km\h signs; signs to switch on fog lights; no overtaking signs and there are no lines on the road. He further observed that the road is sloppy as you drive from Hentiesbay towards Swakopmund –then you see there is a bit of an incline and there is a dip in the road is you going to Swakopmund.

W/O Havenga showed him the direction of the vehicles; where the vehicles stood after accident. He then took photos according to her directions. These photos he complied as photo B. He said when he got to the alleged accident scene the road was already cleared. One could not see any debris or anything and he had to depend on the investigators word. Witness went through the photo plan with reference nr A72. He went through the photos as follow: a) Photo 1-the C34 road between Swakopmund and Hentiesbay where the accident took place. Point Z-indicates possible area of impact. Photo 2 – Point D indicates the alleged point where WHITE Ford Ranger was found after collision. He described the road from point B towards point A -the road is a bit inclined and thereafter; there was a dip and from there the road is inclined. From there the road is inclined and there were no road lines which marked the road since it was a salty road.

Photo 4-points is the same as previous photos and it could also be observed that the road is inclining and behind point A there is a dip and it could be seen that the road was cleaned and cleared of any debris. Photo 5 is a close-up of point C. It shows the condition of the road where it burnt here or that an object or something burnt-position is black in color. Photo 6 – depicts the FJ Cruiser with registration nr N8163 GO and Ford Ranger N169585 w photographed in Hentiesbay –already removed from the scene. He testified about the measurements between the different points. Photo plan is handed up as exhibit R.

During cross –examination:

He confirmed that he was directed on the scene and instructed by W/O Havenga. He said he also made his own observations and took photos accordingly. He concedes there is not a close up+ photo of the accident scene. Officer Murorwa was in dept questioned on the photos he took.

Witness: Detective W\O: Samuel Auxab

He went to the accident scene on date of incident. They came from the something like a hill when they saw the accident scene. This corroborates the other state witnesses. When they got there, things were scattered around and the Cruiser was burning -He also saw a lady at back seat of the Ford Ranger. He also notice tyre marks and a gauge mark where vehicles pushed each other. He also took photos of the scene which he later handed over to warrant officer Sheya. He took photo 12 on Warrant officer Havenga photo plan. The photo was taken from Hentiesbay side. It was on the left side of the road.

10^th Witness:  Johan Joubert

He is the expert called by the state and is an accident Reconstructionist. He is the managing director of Traffic Accident Reconstruction Services (Pty) Ltd in South Africa with 27yrs experience. He reconstructs motor vehicle accidents; using physics and apply mathematics in order to determine vehicle speed at impact; prior to impact. Shortly after the accident he and Mr. Martin Graham; mechanical expert was appointed by Hollard to investigate the collision because the FJ Cruiser was insured at Hollard Insurance Company. He then compiled a report which included 48 photographs in his investigation.

He explained to compile his report he was supplied with statements of Detective W\O Paula Havenga; Ms Joschka; Mr Ronny van Zyl; the independent witness and another independent witness Wilhelm Herman Maritz. -He in the company of Mr Graham made physical observations of the two vehicles involved at Distance Towing Hentiesbay on 8 January 2015 and took photos of the two vehicles. Further information he received was the manufacture specifications of the FJ Cruiser and the Ford Ranger; the road signs from Swakopmund to the accident scene and from Hentiesbay to the accident scene.

He further obtained statements from Brain Louw; the managing director of life Link that responded to the accident- a statement of Annely Ashenborn also of life Link; as well as statements from Dewaldt Swartz and Freddie Mills. He did calculations to determine the impact speed of the vehicles at point of impact. He told the court the accident occurred on the salt road between Swakopmund and Hentiesbay between white Toyota FJ Cruiser and Ford Ranger on the 29^th December 2014 approximately 12kms south of Hentiesbay. Witness then went through the list of photos he took and complied in his report. He corroborates that the accident scene as well as final rest positions was pointed out to him on 7^th January 2015 and also final rest positions by Mr. Brain Louw, the medic that arrived at the scene.

He also took a photo of the gauge mark that was created at the point of maximum engagement of the two vehicles. He examined and made observations on the scene. He said in his opinion the FJ Cruiser during the overtaking maneuver went almost off the right side of the road at one point and the scuff mark was caused by the right front and right rear tyre of the FJ Cruser as it attempted to turn to the left or not to go off the side of the road as illustrated as per photo 12. He stated that although the road surface and shoulder was apparently scrapped shortly after the accident, he could observer the final rest positions of both vehicles as it left depression.

He took photos of the final rest position of both vehicles. He took a photo of impressions in the road made by the FJ Cruser where it burnt. He testified since there no markings he created a baseline at the edge of the road using two fixed warning poles close to the scene. He took a photo of scuff mark that was curved. The width of the road was measured at 8 meters. He noted on the side of FJ Cruiser’s lane of travel was a dip in the road at rate of 1.3%. He further noted halfway between dip and summit of the hill the grade changed to 2.1% so it’s a bit steeper uphill. Scuff mark is 8.6m from there and is curved. The gauge mark to the summit was measured at 17.3 meters. He provided diagrams and measurements on A3 size sheets. Photo 43. It shows in direction of travel of FJ Cruiser prior to impact there is a blind rise.

He stated that according to the witness where the overtaking maneuver took place –just passed the hill-pass the top; the accident happened. He stated there is a summit of the hill and 17 and half meters further is the gauge mark. He was requested by the defense to provide additional electronic photos which he did. At point 7, he indicated the front of the FJ Cruser tyre marks front and rear tyres. He stated at 1^st the road looks flat but when zoomed in it shows the hill on the photo, it further also indicates a crest and a dip. Photos were also taken of the mechanical inspection of the said vehicles at Distance towing Hentiesbay with Mr. Graham. He testified that the Ford Ranger was pushed backwards and its cross member made contact with ground at maximum engagement. That the gauge mark was not the point of impact. He testified the vehicles moved in a clockwise rotation after impact. He testified that it was impossible for the accidental damage to be as they were if the Ford was travelling in the wrong lane. He testified it was necessary to work backwards to negate a bit of that rotation and moved the vehicles back to what is considered the 1^st contact point.

He found that the point of impact was 0.5 meters left of the center in the lane of the Ford Ranger. The scuff mark was observed close to the scene and attributed to the FJ Cruiser. Photo 27 showed picture of Ford Ranger, the impact was on the left front corner Ford pushing it backwards measuring at an angle of 47 degrees. Photo 33, coming from Swakopmund side there is warning signs of a salt road. Photo 47, no overtaking sign. Photo 48, 100km/h sign. He took photos of the damage of the Ford Ranger to determine the speed of the vehicles impact they used momentum calculations, he explained formula. The speed of Ford Ranger prior to impact was received from the GPS tracking supplier, was given at 85km/h. Using all these inputs he came to impact speed of FJ Cruiser at 147km/h. He testified that the F Cruiser only became visible to the Ford just before the FJ reached the summit of the hill. The Ford juts had one second reaction time to swerve and 1.5 seconds perception reaction time to brake with 85kms per hour and total stopping distance of 17 meters.

In his opinion in respect of swerving or braking the Ford would not have been able to avoid the accident. Opinion of Joubert at page 72 of report, he said his conclusion as Reconstructionist, considering:

1. The damage profile and physical evidence to vehicles.
2. The physical evidence of the road –as result of the accident like the scuff mark and gauge mark
3. The 3 witnesses statements which he cannot disregard
4. State witness Freddie mills description of the overtaking maneuver between Walvisbay and Swakopmund, this driving maneuver was the same as on the road between Henties and Swakopmund.
5. Mr. Mills evidence that FJ Cruser overtaking maneuver was done at a high speed in the light of oncoming traffic.
6. Also based on Mr. Swartz evidence that FJ Cruiser overtook and drove close to vehicles in front of him –not obeying safety following distances.
7. The statement of Ronny van Zyl-his description of the FJCrusier overtaking maneuver on high speed between Swakopmund and Hentiesbay-it was estimated that his speed was about 160km/h-taking into account it was a road of 100km/h-His description that the overtaking was done by overtaking 3 vehicles simultaneously; one after the other-He described the overtaking maneuver in the light of the circumstances as negligent.
8. Referring to the statement of Mr. Maritz-his description of the overtaking maneuver of the driver of the FJ Cruiser on the same road between Swakopmund and Hentiesbay was done at high speed-He also referred to the overtaking of 3 vehicles simultaneously –one after the other-He said the overtaking was done on a blind rise.
9. Statement of Ms Joscka-she described while driving between 80 and 90km/h they approached a hill-that the FJCruiser approached them in their lane at high speed prior to accident
10. Looking at the physical evidence on the road; the gauge mark; indicating the area of maximum engagement; scuff mark; tyre imprints left by the FJ Cruiser; the burn marks on the road of final resting position of FJ Cruiser.
11. –The damage profile of both vehicles.
12. Considering the road layout; warning signs on the road; the speed limit of 100km/h; several overtaking’s
13. Comparing the momentum calculations.
14. Considering it was a bumpy salt road ;many blind rises ;relatively  high volume of traffic at pick hour
15. The FJ Cruiser that travelled at an estimated speed of between 147 and 160km/h prior to impact.
16. The FJ Cruiser overtaking vehicles on a blind rise in such a way that he almost drove off the right-hand side of the road-referring to scuff mark.
17. The point of impact was determined as being half a meter to the imaginary line – when travelling to Swakopmund.
18. Therefore in the lane of travel of the Ford Ranger prior to the to the accident is in his opinion-the accident was solely caused by the way and manner in which the FJ Cruiser drove.

Mr. Joubert at the end of his evidence made an adjustment of 1 meter to the gauge mark-in relation to the pic of Havenga, he disagreed with the defense that the impact happened in acc lane and explained with his program and says that gauge mark would not have been at that place. He also disagreed that the gauge mark was the point of impact.

During cross-examination

He stated that his mandate was to determine who was negligent or reckless and that it was the insurance of the FJ Cruiser. He indicated there was negligence on the side of the FJ Cruiser. He told the court that he did take some of the statements of the witnesses and he later handed over these statements to W/O Havenga. It was put to him that his baseline and input values was incorrect. His measurement was also disputed and submitted to be incorrect. He was indept questioned in relation to the statements of Oosthuizens as to what he stated. Defense disputed that it was a scuff mark he found. He corrected the mistake he made with photo 12. He conceded that the GPS coordinates was incorrect. He was questioned on the visibility distance. He was indept questioned on formulas used to determine speed. He was in dept questioned on each photo he proved in his report.

Witness: Hendriques Stander Schoeman

He is employed at Cartrack as an assistant fleet service manager in South Africa and car track Namibia is a branch. They sell tracking devices to clients that enable the clients to track and monitor their vehicles and the information coming from the speed and locations. The vehicles belonging to Europcar was fitted with a GPS tracker and was their client at the time. They got a request from Mr Stan Bezuidenhout, defense expert for data to be send in a sheet form admitted as exhibit FFF. The tracking information as per exhibit indicated on 29 December 2014 the starting time was 8:18 and last time was 17:04. He said the GPS tracker could have stopped due to component that failed or some other reason

He testified that the last data recorded down the C34 road was at 17:03:58 at a speed of 105km\h; which was a distance from the point of impact. Mr. Joubert testified that it was a distance of 500 meters away from the place where collision took place. He said the speed is 90 to 95% accurate. He said it could have been more or less than the actual speed-could have been 109km\h or 101km\h.

Witness: Mr Martin Graham

He is a diesel mechanic in employment with previous witness; Mr Joubert at TAR Serves. He too was instructed by Hollard Insurance and accompanied Mr Joubert with this investigation. His work entitles accident scene analyses and vehicle inspections; inspection vehicles that were involved in accidents to establish whether the accident may have been caused due mechanical defects. He compiled his report that was handed up as exhibit EE. He testified that he inspected the vehicles involved where it was towed to tow-in company in Hentiesbay. -The inspection took place on 8/01/2015. He described the individual specific features of both the Ford Ranger and the Toyota Land Cruiser.

He made observations on both vehicles. He found no defects on the brake system of the FJ Cruiser. He went through the photos he took in the Exhibit, specifically photo 31.1- stated that this vehicle-the Toyota Land Cruiser-the damage profile showed that the vehicle was driven at a very high speed. He testified that the exhaust temperature must have been very high and that is why the vehicle burst into flames. He testified that the Ford Ranger was also severely damaged. Photo 45 is a detailed photo of the front suspension and cross-member that made contact with the ground and that caused the gauge mark that was found on the scene.

Photo 42- he said that the Ford Ranger was basically pushed down the angle as the left front wheel was faced down-made contact with the ground-in the direction of the scarp marks and caused the gauge mark, p20. He found in the cross-member the same deposits as that at gauge mark. He told the court through his investigation it was his conclusion; taking into account the age and service history of both vehicles that mechanical problems or premature failure was not the cause of the collision.

He did also in the presence of Mr. Joubert visited the scene. He did find a scuff mark in an arch in the lane from Swakopmund to Hentiesbay. He observed a gauge mark in the middle of the road in the lane towards Hentiesbay caused by the Ford Ranger. How it was caused, referred to photo 42, he said the vehicle was pushed down forcing the cross-member to engage with the road surface. He conceded with Mr. Joubert that the gauge mark was definitely not the point of impact. He said the point of 1^st impact is a distance prior to gauge mark. -He said in his opinion that the point of impact was in the middle of the road in direction of Swakopmund.

They did a brake skid test. Mr. Joubert took the measurements, he just drove the vehicle. The entire body of Land Cruiser did fold over its own chassis. He told the court that with reference to photo 31, the crumble zone and destruction of the vehicle reflect a high speed at impact. He estimated a speed of FJ Cruiser at impact at between 150 -160km/h. He was indept question on his evidence and on what was presented by Mr. Joubert.

Witness: Bernice Olivier

General Manager at Europcar told the court that the Ford Ranger with registration nr N169585 W double cab bakkie belonged to them and was rented out to the deceased MR Joschko   from 19^th to 29th December 2014 when accident occurred. She corroborates there was a GPS tracking device affixed to the said vehicle. The next day after the Collison she was provided a fleet page from car track of the last minute or two before the collision and it showed that the speed of the Ford Ranger was between 80 and 85 km/h. She reported the speed to her head office in South Africa that will then employ a company to do a reconstruction and they flew down and she provided them with the information. She said when they came to her she told Mr. Johan Fourie of Safadi company that the speed at the time of impact was 85km\h. A month or two later she gave the same information of the tracker report to Mr. Joubert of Traffic accident reconstruction services.

During cross-examination

She said the screenshot gave a speed between 80km\h and 85km. She was questioned as to why she did state in her statement a speed of 80 instead of 85 and she gave a reasonable explanation

Witness: Hermanus Heibertus Engelbrecht

He is an engineering and construction surveyor. When he was in employment of Multicon Namibia they did the ground survey of the road between Swakopmund and Hentiesbay in July 2014. He was the surveyor manager. They did use a GPS. The map was handed up as exhibit xxx. He said in 2019 his employer pin-pointed the accident scene in this case to him to allocate it on the map. He said he just plotted extract coordinates and put it on a map. After he surveyed the area he did put it in a map and gave it to his employer.

Witness Watze Hackermar

He is employed at Aragon engineering company Namibia as a technical director and does civil engineering of roads. The recent road he a detailed design on was done on the Swakop/Hentiesbay/Uis Road. He confirmed that they contracted Multicon to survey the road and they provided to them the survey; which is a drawing showing the existing ground levels with contours and other features that they have picked up as well as electronic format file that gives the coordinates. They received it from Mr. EngelBrecht. He confirmed they did the survey on the said road in 2014 and in 2016 they rebuild the road. -They got the position of the accident from Multcorn; they went out and crosses were erected next to the road and they surveyed. They then indicted it on the map for easy reference. Witness compiled a report of 4 pages that were handed up as exhibit XXX 2. In his report he pointed out that the accident occurred in almost straight alignment.

The horizontal alignment was not altered at this location. He testified that From Swakopmund for the first 200 meters the road was nearly flat; from 93 plus 0 to 93 plus 2 where the road rises with 1.8 meters to a crest whereafter it has a flat down slope; then it goes slowly gradually going down again; there is a dip then the road raises again. On the road between Swakopmund and Hentiesbay he indicated where the coordinates was a marked in paragraph 6 he explained the safely stopping sight distance. It is the minimum sight distance to enable a vehicle travelling at a designed speed on a wet pavement to come to a stop and to react to apply brakes as per design guidelines.

As he tabled for a safe stopping distance 120km/h stopping distance will be 270 meters. For 100km/h a safe stopping distance will be 200m. For 80km\h safe stopping distance is 140m. He said it is also applicable on gravel and tar road. For this specific case he said if they drove at the same speed; at height of 1.8 eyes sight could have seen each other at a distance of 400 meters they could safely stop. He did draw the said on the design model two similar vehicles at eyesight of 1; 8 and a line of 1; 5 meters up-he said those vehicles approaching the crest will not see each other. He said he wanted to emphasis that they could not see over that hill of 1.8m. The design was to determine according to speed; the hill; crest at which stage vehicles will be able to see each other and still be able to safely brake to stop.

During cross–examination

He conceded that according to this manual that these safe stopping distances were designed according to the vehicles in the 1960 and 70’s. He said that if the eyesight was given 5cm less it would make a difference in the calculations but not a substantial difference

CASE FOR STATE

In our law the prosecution carries the burden to prove its case against a suspect beyond reasonable doubt. This was clearly spelt out by the court in Rex v Difford 1937 SA 370 at page 373, as follows:

“It is equally clear that no onus rests on the accused to convince the court of the truth of any explanation he gives. If he gives an explanation, even if that explanation be improbable, the court is not entitled to convict unless it is satisfied, not only that the explanation is improbable, but that beyond any reasonable doubt it is false. If there is any reasonable possibility of his explanation being true, then he is entitled to his acquittal,”

In the defense case accused testified under oath and called 4 witnesses

Under oath the acc told the court he does oval track racing since the age of 17 yrs and is a champion in time rally racing. He told the court that the persons now deceased that was with him on that fateful day was Jessy Horn (his best friend); Dinah Pretorius and Charlene Skumbee. Regarding count 3, no driver’s license, he said he pleads not guilty according to him he did have a valid driver’s license but did not have proof of driver’s license card when he was driving. He did not have a driver’s license card on date on accident. Regarding his driver’s license card he said that he lost his wallet in November 2013 and applied for a new one which he got. He said he did not have a driver’s license card on the 29^th December. He was relieved that Motinga did not ask for his license on that day. Therefore he states if he would have been charged with not being in possession of driver’s license he would have pleaded guilty.

He drove to the coast for holiday on the 19^th December 2014 with a licensed driver. On the 19^th December 2014 himself and Serana van Ryn drove from Windhoek to the coast and Dinah Pretorius followed them with her FJ Cruiser. The road between Walvisbay and Swakopmund was familiar to him because he drove it regularly and Dinah remained at Long beach until the 23^rd December. Dinah drove back to her parents on the farm and he drove to Hentiesbay. Jessy and Charlene returned on the 26^th.- He described his relationship with Dana and said it was still in the beginning stage and he thought that they could go long way and they started to become romantically involved. On the 29^th December himself with Dinah, Jessy and Charlene were together in Hentiesbay. He said every year on the 29^th they had a Dune trip from Long beach to Dune 7. Nico Smith drove in front and then other people will also drive together. At the assembly point Nico Smith remained the others how to drive and not drink too much, and he requested accused to drive behind. They were with Dinah’s FJ Cruiser which he drove. His passengers were Dinah, Jessy and Charlene. Seat arrangement was himself driving; Jessy front left Charlene at the back left and Dinah at the back right.

In their vehicle they had a bottle of Vodka; a bottle of whiskey; few waters; ice tea; ciders; two cases of coke zero; camping chairs and warm things and a cool box of ice. He said at some stage he poured for himself a glass of vodka and coke zero. He said he just started drinking when got into the vehicle and drove and he poured it out. Thereafter he drank coke zero from a tin. Yhey thereafter drove to Dune 7 adventures. He said he did not drink anything. Then his brother said he was going home and asked if accused can follow him. They (accused; his brother; Dinah; Jessy; Charlene arrived at Lang Strand). At Long beach his brother cleaned his motorcycle, and he released the air in the FJ Cruiser wheels. They drove from Long beach to go to Hentiesbay to go braai. They drove from long beach to Swakopmund on the national road where they will drive to Hentiesbay in a northern direction. At that time of the year he the roads was extra busy

He said there was an incident at Vierkant Klip where a vehicle drove in front of him where he passed it on a barrier line to avoid vehicles behind him to collide with him; he took an evasive action. He said at that stage you could see far ahead of you and there was one vehicle coming from the bridge. He said that he believed he would have passed vehicles if it was safe and circumstances allowed it. He believed he would have passed because there are normally or usually people who are driving slower than the rest of the traffic. He said he knew Mr. Mills from sight and also the through motor vehicle circles. He said he would not have past if there was not enough space for him to come back. He don’t know why Mr. Mills said he drive the way he described it in court ; he said he could definitely not recall it and he would also not have passed on a blind spot and when there was no space to come back. On the evidence of Mr. Mills he said he does not know why he testified like that and he would not have passed at a blind spot and also not where there was no space to return to

He said he did not receive any other complainants of his driving and found it strange that only he complaint considering how busy the road was. He said when he drove over the bridge he heard the siren of the police vehicle and proceeded to drive because he did not think it was meant for him. At the 4-way stop he was indicated by the police stop. He stopped at Total and went to the officer. He told him that he received a complainant and acc said he explained to him what happened at Vierkantklip. The officer than just gave him a warning to drive calm and carefully. He said the officer did not request his driver’s license, and he was actually relieved that he did not ask for it. He thereafter took the road to Hentiesbay and seating arrangement remained the same. At that stage he did not drink anything further that contained alcohol. He said he was well acquitted with the road to Hentiesbay.

He corroborates that the road between Swakopmund and Hentiesbay was a salt road with no markings and that there were not many road signs. He could recall that they drove up the road and enquired from his passengers if they should drive along the beach. They continued on the road. Thereafter he could not remember anything except for waking up in Roman Catholic hospital Windhoek. He could not recall the exact date he woke up. When he woke up his mother told him about the accident. He told the court up to today he still could not recall anything. He went to a psychologist Heidi Burmeister and she tried for a reasonable time to assist her. She referred him to a psychologist in Cape Town; Ms. Stephanie Bardenhost but it did not help. Regarding the evidence of Mr. Ronny van Zyl and Mr Stevenson he said he could not recall what they said but would not have passed if it was not safe.

Regarding the evidence of the Oosthuizen he said he could not recall anything about what they testified. He said he does not believe he lost control with the said vehicle that day and although he could not recall; there are no reason why he would have lost control. He said he had no intention to hurt anyone. That all of them were friends in the vehicle. Jessy was his longtime friend. He foresaw a possible longtime future with Dinah and Charlene was a good friend. He did not have any reason to hurt them. He also apologized to the deceased families in court.

During cross-examination

He confirmed that he is experienced rally racer on gravel roads for the past 21yrs. When asked, he could not give any speed he drove at these races because he said the cars he did not have speedometers. He said on most of the races the roads are straight, but some have curves and dips. Uncle Nico Smith he knew for over 15yrs and they worked together in certain circumstances. He agrees that going up the dunes and motor racing vehicles do involve danger. He said he did have one glass of vodka with coke zero but could not give the size of the glass which he did not finish. The glass was reasonably full when he threw out the glass.

He could not give a speed limit he drove that day between long beach and Swakopmund but said it would have been reasonable with the flow of traffic. When asked if there was a caution of 80km on the road he said he was not sure, but he knew that there was one of 60km/h. Regarding Mr. Freddy Mills evidence that he overtook him at a high speed at a part where speed limit was 80km/h with oncoming vehicles and he had to break and reduce speed to avoid an accident- acc said he does not agree with it. He does not agree with Mr Mills evidence that he drove negligently or recklessly. According to accused he would not have passed if it was not safe and responded that the road at that time of the year would not have allowed him to drive excessive speed

On the evidence of Mr. Mills that they had to break or try to go to the side because in the manner he overtook-his reply that he could not believe it and could not recall it and would not have driven for something like that to happen. What was be clearly noted that accused answers will would reply that he would not have done something; he would not have acted in certain ways. He says he does not agree with Mills that he drove in a way that constitutes a danger to other road users. On a question he said he could unfortunately not say how many times he overtook contrary to his plea and evidence in chief where specifically stated that he could recall only one incident. According to him he overtook on barrier line when it was safe for him to do so.

He conceded that he was familiar with the road between Swakopmund and Hentiesbay and drove it a lot. He conceded that on this road some areas is flat and some has uphill and own hills. He concedes the speed limit on that road was 100km/h. When asked about the traffic on that fatal day he says he could not recall everything but that time of year it is always busy coming and going. He conceded knowing that the road is busy that time any driver on that road would have to exercise caution and patience. He said the last conversation he could recall was at Mile 28 when he asked if they must turn off. He was asked if he overtook any vehicles on that road. His reply that he could not recall but believe he would have past vehicles if it was safe. When asked what his speed was at Mile 28 his reply, it would have depended on the road and the traffic and surroundings, and he said it difficult to say because it is a long time ago.

When asked how the accident occurred, he said he could not remember; the last thing he could recall was the conversation at Mile 28. He could not say when he woke up in hospital and said he could not recall due to a medical problem and trauma. He says that his psychologist did not give him an opinion about his lack to remember; she just referred him to a psychiatrist. The psychiatrist told him that he will not recall the events due to the trauma and head injuries. When asked why he is so selective that he could only recall up to Mile 28 –he says he is not selective he just could not remember. He said he could not remember what happened after he was removed from the vehicle. He conceded that that he does not know the eyewitness Mr. Stevenson. When asked about Mr. Stevenson evidence that he noticed his vehicle approaching at a high speed; accused says he does not believe it. That time of the year the road is too busy to drive fast

Mr. Stevenson said he drove at a speed between 110km\h and 115km\h and the accused past him at that speed. Accused responded that Stevenson was not with him in his car and cannot comment on his speed, but he does not believe that if that was his speed he would have past him. He went on and said he could not remember that he passed him or that he went with a high speed. On Mr. Stevenson evidence that after acc overtook him he did not reduce his speed at all and where he overtook him there was a blind rise about 200 meters from there, he said he could not remember. He further stated that he would not have passed him if it would not have been safe to do so. On the statement that he drove gross negligently he maintained that he would not have passed if it was not safe to do so. He however could not dispute that Mr. Stevenson and Van Zyl was on the same road. On Mr. van Zyl evidence that the FJ Cruiser past him at high speed, his answer that the road would not allow him that time of the year due to the rush. On Mr. Oosthuizen evidence he said he would not have any reason to have lost control. He says he does not agree that the accident happened on the right side of the road because all the evidence shows it was the left side of the road

He said he cannot give comment to any of the eyewitnesses’ perspective, but he would not have any reason to have speed that time of the year; would not have reason to overtake where it was not safe and would not have had reason to pass vehicles at a high speed. On expert evidence his reply was that he does not believe he would have past vehicles on the blind crest, there would not have been reason for him to be on the side of the road and would not have reason to speed. His adamant that he did not drive recklessly and had no intention to hurt anyone including his friends that was in the said vehicle. On a question to Mr. Shuuya evidence that he did not have a valid driver’s license because it expired on 5 January 2014, he said he did not have any comment. On the fact that the driver’s license was only renewed in January 2015, he said that somewhere something went wrong but he did definitely during the course of 2014 had a driver’s license card.

1^st Defense witness: Nicolas Robertus Smith

 He is the person that accused referred to as uncle Nico. He is the managing director of Specialize investigation consulting services. He has a long relation with acc and his father through business and personal interactions. He corroborates acc that he was involved with them earlier the day on a Dune trip from Lang Strand to Dune 7. Accused and his group left around 14h30 to return to Hentiesbay. He was later informed of the accident in which acc was involved on the Swakop/Hentiesbay road and that his vehicle caught fire. He arrived at the scene of accident 12 kms south of Hentiesbay around 19h00, it is to be noted that was 2hours after the collision. He testified that the scene was a mess. There was lot of bystanders and vehicles was parked in an attempt to cordon the scene and tape; emergency workers. He then took photos of the scene with his cellphone. He went through the photo 1 to 7 he took and he went through it. He also took pictures of a gauge mark.

He spoke to Warrant officer Havenga and he told her according to information the FJ Cruiser was on its way from Henties to Swakopmund, it was on the wrong side of the road and collided with the Ford Ranger. He said it did not make sense to him because he knew the FJ was on its way from Swakop to Henties and her witness Mr Willem Maritz stated differently. He requested Havenga to speak to the witness again. She asked if he was covering for them. He gave the names of the people that were in the vehicle. He took photos of the damage of the vehicles. He says the explanation of Havenga did not make sense because there was a clear gauge mark in the in the left lane or western lane of the road with a lot of debris in the immediate vicinity, both vehicle was in the vicinity of the gauge mark; and he walked around and could not find any area of impact

He said he walked back and could not find any proof /marks/debris in that area. He returned the next day and found that the shoulders of the road were graded and also the gauge mark that was in the area of the shoulders of the road. He could clearly see the gauge mark the next day. He again took photos and described the photos to court. He has no idea who graded the road. He says the gauge mark was on the left side of the middle road. He also observed tyre marks, one was one the seaside and the other on the desert side. He also found a mark on the edge of the road. He said he could further no see any other marks on the road. He also took photo observation from distances after he heard people spoke the previous night of a bind rise. He says there was different road signs, but no sign of a blind rise in that area; neither a sign of no overtaking.

He then heard that Mr Oosthuizen was an eyewitness. He got hold of Mr Oosthuizen and he explained to him that he was on his way from south to north from Swakopmund to Hentiesbay when he realized that a vehicle pulled in behind him. After 30 seconds it moved out and overtook him. Then it seems that the vehicle started to swerve a bit and sharp to the right and collided with a bakkie; He said if it was not for the bakkie the FJ would have ended up in the desert. Witness said this explanation also did not make sense to him and Mr. Dippenaar sr decided to get someone to reconstruct the accident scene and he suggested Mr. Bezuidenhout to him.

They approached Mr. Oosthuizen again that told them since he was contacted by the police, he was not willing to speak to them again. They went out to the scene on the 8^th January where Mr Bezuidenhout took measurements and aerial photos. They also went to take photos of the wrecks where it was towed in. He said all information he received he will forward to Mr. Bezuidenhout. He also contacted Mr. Motinga and he told him that he received a report of a vehicle coming from Lang strand which overtook on a barrier line. That he stopped the vehicle and spoke to Mr Dippenaar and acc explained to him of a vehicle that was overtaken at area Vierkantklip and he overtook it and he allowed him to go. He also asked Motinga if acc was under the influence .he said no because if he was he would have charged him.

He was then explained by Ms Bardenhost how to do a drag test which she will use in her calculations. He did the drag sledge test and drive test on the said road-he was requested to do various tests on the FJ Cruiser. He said the conclusion he came to was that the area of impact had to be in the western lane of the road because he could not find any damages to the eastern side if the road. He did not see a scuff mark as indicated by Mr. Joubert when he walked that road. He only saw the next day a mark that was on the edge of the shoulder on the eastern side. He did not see any marks or skid marks or any other mark that was left by an object going into the direction of the accident scene or from the collision scene. His report was handed up as exhibit AAA

During cross-examination:

He concedes that he only came at the scene of accident two hours later. He said he drove to the scene he could not see a dip if there was it was a small dip. He changed his version and said that the gauge mark is the possible point of impact as to what he stated in chief that it was definitely the point of impact. He agrees that with the 3 stages when a vehicle two vehicles collide- 1^st contact when the vehicles crush into each other and if they crush into each other so much that they touch the ground then that will leave marks on the ground-he agreed and said that vehicles had to touch each other and it could be then or when or it could be during the impact they immediately went down or there is immediately impact to the ground. He concedes he saw the tyre marks but could not say to which vehicle it belonged.

He concedes that the debris was to the western side of the road and the Ford Ranger stood in the western side of the road. He conceded that he was on the scene because he knew the acc and his family and he said he felt sorry for him because they did not know what his condition was. He conceded that the drag sledge test was done by himself on the 29^th October 2016-almost two years after the accident. He further also conceded that the place where he did the drag sledge test is not the place on the scene of the accident. He conceded that he did also not tell Ms Bardenhost at what angel he did pull the scale. He concedes that the gauge mark that he claims is the point of impact is just his interpretation. He says he did investigation on request of accused father because of the rumors that accused is a murderer and he did this investigation in his capacity as a friend and due to his business.

He conceded that he approached Motinga two years after the accident an told him that he was enquiring on behave of the father. He further conceded that he did not tell Motinga that their conversation was recorded. He also conceded that he did not tell Mr. Oosthuizen that the conversation it to be used later in another forum. -He conceded that when Mr. Oosthuizen and Havenga told him that accused caused the accident, he chose not to believed it. It was put to the witness that the manner in which he dealt with potential witnesses was underhanded because he did have an interest in the matter; the interest to protect the acc and his father-he disagreed with this statement. He told the court that the measurements he took from both vehicles was not of the actual vehicles involved.

2^nd Defence witness: Dr Stefanie Bardenhost

She is a psychologist from South Africa and specialized in clinical disorders and forensic disorders. She corroborates that acc approached her for an evaluation regard to his personality problem and she complied a report in this regard dated 6 September 2019. She said the report was provided on request of Mr. Patrick Theron from PD Theron and Associates because the acc could not recall anything of the collision to compile this she did psychometric test. She said acc memory loss of the accident can be explained in the context of the traumatic experience. The traumatic brain injury as well as the severe emotional trauma he suffered as a result of the accident. She testified that acc CT brain scan indicated a mild edema.

Accused told her that he could remember up to mile 28 on the way to Henties bay about 12 kms before the accident. Accused narrated to her that at that stage he woke his passengers to ask if he must take a turn off or continue to Hentiesbay and they decided to continue. Accused reported that he feels responsible as the driver of the vehicle for the death of the passengers as it was his duty to deliver his friends safely. He said he lost his best friend and two other friends. Accused also regrets the loss of the tourist lives and demonstrated remorse for the consequences of the accident. Accused told her that the negative publicity regarding the accident had a negative impact on his emotional wellbeing and he was depressed due to this incident.

She said he did suffer a great deal concerning his physical injuries and emotional trauma as a result of the impact of the accident. She indicated that his brain scan indicated a mild brain edema according to the medical imaging report; physical to the brain in wide range medical psychological and behavioral problems with symptoms such as amnesia; headaches; concentration difficulties and vision changes. She says due to the fact that there were edema and emotional shock when the person is in severe emotional shock, the cortisone levels in the brain get higher as a result of the trauma and that can cause amnesia. She says due to physical injury on the rest of the body he was in an induced coma to stabilize the brain and to have the body. She said he was not malingering because of the brain edema and the possibility that he cannot remember can contribute or be blamed on that

During cross-examination:

She did her evaluation on acc from 19^th to 20 July 2019. She conceded that she was a qualified psychologist and not a neurologist. She further conceded that if you have memory loss it does affect the neurological aspect of the brain. She conceded with state that acc should have been evaluated by a neurologist -She said he recovered to a great extent but for now he does only have memory loss of the accident of the traumatic incidents. She agrees that although he was not tested by a neurologist she did look at his functioning. She agreed the fact that he told her he still cannot remember and she accepted it but states that her opinion is based on the fact that acc had a brain edema; the damage to the brain and that he cannot remember the incident and the memory loss is only regards to the accident.

She was asked how she knew acc was telling the truth; she said she did look at physical observations such as pupil dilation, because pupils dilate if you lie. She concedes that she did not do a neurological test. She could not tell when the memory loss started. She concedes that not in all incidents of a brain edema a person would have memory loss. Although she ruled out malingering, she said she did not do any specific test to determine it. She at one stage cried in court. She questioned as to why she broke down and cried in court-she explained that it was due to the fact that she was ill for long time and she was just emotional and explained that it was just a human reaction from her. The court must agree with the state the fact that this witness openly sympathized and got emotional in court does cast doubt on her objectivity.

3^rd Defence: Stanley Sadre Bezuidenhout

He is a forensic road traffic collusion reconstruction specialist. He told the court that Mr. Dippenaar Sr instructed him because he did not have any idea as what really happened in this collision and requested him to do a professional investigation. At that stage accused was still in hospital and in an induced coma and was not available for consultation. He flew to Namibia and was taken to the scene on the 8^th January 2015 to start to preserve evidence. He was appointed to conduct investigation; analyze and reconstruct in effort to produce an objective report. He said he intended to focus on the collusion dynamics, the speed of both vehicles; human factors; mechanical factors and the criminal case in this matter.

He received photographs; police documents; documents and others from his client and photographs and a list of statements from the police. He also visited the scene and the vehicles involved. He went through the photos of his report handed up as exhibit FFF. He did notice that no witnesses pointed relevant points to officer Murowa that complied the photo plan-only himself and W\O Havenga was present. He states Murorwa concentrated primarily on the area where the collision occurred and the produced a sketch plan that was not according to scale. According to him Murorwa did not make measurements to a high degree of accuracy; meaning that the exact location of point X could not be determined with accuracy. He therefore said due to lack of accuracy of measurements of Murorwa’s sketch plan the measurements was of no value for him to analyses and reconstruct

Regarding the 12 photographs of W/O Havenga he said he received black and white photos which excluded mechanical examination of the vehicles; did not have dates time; information and detail. He said her photographs also failed to capture all aspects of contamination of evidence. He also stated that it should be noted that although Havenga claim to have taken all the photos in photo plan herself; there seems be different orientation sizes dimensions and expectations-and says it seems that there must have been more than one camera that took these photos because they are not all of the same size orientation. He also received photos from West Coast initiative photo 9;10;11 and 12 that was also found on Havenga photos.

He goes through the list of photos received from others complied in his report. He stated according to his photos in the area of collision there is no stop; yield signs; speed bumps or nothing like that; no warning signs and no visible designated road shoulders. He further states there are several places on this road where there are topography changes where the road goes up and down and at some places there are angulations resulting in substantial visual impairment without warning in some areas, this corroborates the state witnesses observations as well as that of the state expert.

There are some places the hills are of such that you are robbed of forward vision and in his opinion causes visual impairment without warning signs. There are a no overtaking signs on the left-hand side and he assumes that it is due to the rise. He took a photo of the gauge mark and stated that is most likely evidence on the scene that suggests where a collision might have occurred and then in the premise, he said that the gauge mark cannot be accepted as the point of impact. The point of impact he says it is some place in three-dimensional spaces where the two vehicles touch each other for the 1^st time. He said the gauge mark as per illustration with a photo is in the left line, travelling north-the road towards Hentiesbay. He says the absence of tyre marks to be likely an indication of the prevailing sudden emergency from the presence of ABS

Obtained from photos he made the findings that there were no pre mechanical defects to both vehicles. He described the personification features of both vehicles involved. Indicated as per photo the speedo meter of the Ford that stopped or freeze at 83km\h, he says maybe it stopped to work at that speed and explained that external factors need to be considered to make a conclusion of it. Regarding the statement of Ms Joshco, he says that he could not find anything relevant that deviates substantially from what is expected but add that she was sitting in the rear and did not indicte in her statement on which side.

That she claims saw the Toyota approaching and her father tried to swerve but there was not enough time. That she fails to indicate how far away the car was then when she saw It 1^st; this affects the analyses. She further in her statement claims that the vehicle was approaching at a high speed but fails to confirm whether this was the function of the speed of both vehicles combined nor whether she was able to estimate the speed of the oncoming vehicle, that because she was not an expert she will not be able to address the relevant dynamics. She said that the vehicle was on their side of the road, he recommends further examination of how she was able to determine its position with accuracy on featureless brown road with no line indicators from the backside while it happened to quickly

He considered the testimony of MS Hazel Oosthuizen-according to her the FJ Cruiser that suddenly turn sharp towards the right and collided with the oncoming vehicle. She did not indicate how long the Toyota drove in front of them before the collision. She also did not indicate whether she saw the oncoming vehicle at any time and what the dynamics was. Regarding her husband’s statement, he did not indicate how long the Toyota drove ahead of them; he did not indicate how far the oncoming vehicle was and its dynamics. He did not indicate how far his vehicle was from the collision.

As per calculations he concluded the vehicles moved in an anti-clockwise at impact. Explains the fake right syndrome page 412 and especially because the driver of the ford is German national. He explained because the German national was not familiar with South African roads due to muscle memory –the Ford driver would likely have swerved without position in analysis and in doing so ended up swerving directly to the Toyota and he rightly goes on and say we will not really know, because the driver passed on, but he said it is possible of course that the Ford had simply behanded into the lane of approaching traffic and that its presence introduced a sudden emergency to the driver of the Toyota causing him to attempt to avoid the Collison and in doing so changing the approach part or dynamic without success.

He said perhaps the driver of the Ford was simply not concentrating, and he ended up moving across onto the approaching traffic lane; we do not know because Joscho testified that she saw the car in their lane, but the gauge mark is in the other side. That it is possible what she saw was a car directly ahead of them assuming they were in the correct lane-we do not know because the gauge mark is in the incorrect lane side of the road. He says the gauge mark is in the Toyota own lane so if he did overtake it already overturned to its own lane because the gauge mark and tyre marks is there

He said the Ford was therefore at its wrong side of the road with the collision. That the driver of the Ford did fake drive into the lane of oncoming traffic for whatever reason. The ford was therefore on the wrong side of the road as derived from the physical evidence. The collision he says therefore happened on the side of the road designated for the Toyota as clearly confirmed by the presence and position of the gauge and tyre mark. He indicated that the Ford was parallel to the road with its left wheel on the gauge mark at point of maximum engagement. He did use the following for analyses:

a) The impact damages of both vehicles

B) The achieved angle interaction between the vehicles

c) The area of impact or road damage

D) The final resting position

That the Toyota was in its own lane of travelling with the collision and if it did overtake it already turned to its own lane and the Ford swift into the lane of travel of the Toyota. He indicated that the PDOF-principle direction of force, the FORD travelled from the middle of the Ford diagonally towards the right side of the Ford and the PDOF of the FJ Cruiser travelled through the middle of the FJ towards the right C-pillar. In his addendum report he also analyzed all the witness evidence in court and the reports and evidence of Mr. Joubert and Graham and indicated why their evidence should not be accepted.

Regarding Joubert 1^st report –Exhibit EE, he indicated the flaws in Mr Joubert.

a) That he used the incorrect specifications of the vehicles.

b) That due to his incorrect values, his calculations are wrong.

c) The vehicles position was not measured before contamination.

d) Mr. Joubert relied on the memory of some one point out where the cars stood.

e) Measurements are inaccurate

f) The Ford was not properly photographed orientated or marked in its final position.

g) The FJ removal was contaminated; was not measured before removal.

h) The scene was not preserved adequately.

i) The dates on the camera were incorrect.

j) They did not record the changes in environment with every time they took pictures and how it was contaminated.

k) He found nothing on the scene that looked like a scuff mark

He does not agree with the deduction Mr. Joubert made of the scuffmark that the initial speed of the Ford was given as 85km then after he saw the tracker report and 105km\h in his second report. He failed to determine the pre-impact velocity of the Ford. He used wrong equation values. The drag factor of each vehicle could not accurately be determined. The exact center of the mass of the vehicle could not be determined. The approach angles could not be accurately determined. The method used by Mr. Joubert is not compatible with the well-established rules of natural law. He disagrees that the vehicles moved clockwise after impact to final rest position-according to him the FJ Cruiser rotated anti clockwise and the Ford clockwise after impact. He states that he disagrees with Mr. Joubert approach the moment analyses and everything he relied upon and that his report and testimony seems to be in contradiction with the very essence of what he was supposed to offer.-He said Mr. Joubert conclusion that the point of impact is 0.5m in the line of travel towards Swakopmund –he says that is incorrect because of the limitations and errors in his work. What is quite evident from the report of Mr. Bezuidenhout is that he discredited each and every eyewitnesses and the expert witness evidence and it seems that they could not contribute or was of no relevance to his investigation

Defense witness: Wilna Badenhorst

She is an accident reconstruction expert. She compiled a report in 2018 and which was handed up as exhibit LLLL. She received instructions from the legal team of the acc in November 2016 and was requested to consider a report that was compiled by Mr. Joubert and specifically to consider the available evidence and also to comment on his speed calculations. She was also in court most for the proceedings of the state case with Mr. Bezuidenhout. She said to compile this report she did utilize Mr. Bezuidenhout formation and his photographs. She never personally visited the scene; she did not take her own measurements; she relied on others information

She was also provided a color copy of Mr Joubert report with all attached annexures; measurements taken by Mr Nico Smith in respect of coefficient of friction values of the salt road surface; copy of the photo album; sketch plan and key by officer Murorwa; a copy of photo album of officer Havenga; copies of photographs taken by Mr. Stanley Bezuidenhout. She went through her report and photos complied in report. She said what she was busy doing was damage analysis and the importance of the direction in which vehicle parts was displaced or deformed to tell and determine the direction of force. She explained at point 6.3 that the principal direction of force is the direction of all the forces combined that acted on a vehicle during impact.

Point 6.4- that the principal direction of force that acted on the FJ Cruiser is not a centric force and resulted in a counter-clockwise rotation as result of impact. The damages and forces on the ford indicate that the rotation was counter-clockwise. Where is the area of impact-paragraph 8.2, the area of impact according to the physical evidence was according to her on the side FJ Cruiser correct side of the road and the reasons for the this is as follow: when considering the various photographs supplied a concentration of deep gauge mark are visible on the FJ Cruiser side of the road, a concentration of gauge is a good indication of where metal parts of a vehicle came into contact with the road surface and a great force

She stated it is probably that the concentration of gauge was made by the undercarriage parts of the Ranger whilst the Ranger rotated during maximum engagement. Her opinion why the gauges were made by the Ford Ranger is when looking at the extend of damages to the left front part of the Ford and the massive deformation and how far the wheel was pushed back and how the wheel is slanted downwards. She stated in Mr. Joubert opinion the curvature of the gauge is indicated to some extent where the other vehicles are coming from and according to her the curvature of the gauge made during impact cannot be used as an indication of the pre impact directional movement of any of the two vehicles. The curvature in general only indicate the rotation experience by the vehicles responsible for the gauge during maximum engagement and should correspond to the rotation determined for the vehicle by means of the process of damages.

The final rest position of the FJ Cruiser relative to the area of impact is therefore an indication and it is the only indication that there was most probably no steering inputs by the driver of the FJ Cruiser immediately prior to impact and that the FJ was probably travelling straight or parallel to the road on its correct side of the road when impact occurred. She stated there is no way that rotation was clockwise. Para 9.6 states that as far as the speed is concern it is not possible to do any meaning speed calculations due to the type of collision. She indicated that the PDOF of the Ford travelled at a sight angle towards the left from the left corner towards the rear corner of the Ford and PDOF of the FJ travelled through the middle of the JF towards the left side. She stated with reference to Mr. Joubert’s addendum report the if one accurate measure and perform the analyses the input values are not supposed to change.

Her report was handed up as exhibit LLLL. -She said that the trail of the debris which was in the immediate vicinity of the gauge mark supports the area of impact. Page 102 the scrapes are important because it indicated the movement of forces between the forces between the object making it responsible for the scraps as they are made. And that the lines up with the conclusion that the FJ Cruser was probably or was most probably traveling parallel on its side of the road in a relative straight northerly direction immediate before the impact

During cross-examination:

She conceded her instruction was to render opinion on Mr. Joubert report and calculations were possible. She concedes that she did not visit the scene herself but took note of Mr. Joubert’s width of the road of 8.0 meters. She conceded that the road is relatively straight in immediate vicinity of accident and there was an incline 10 -15 meters leading up to collision. She concedes that although she was not able to visit herself the scene and make calculation herself; it in a way robbed her of certain information but according to her the aerial photographs were of good quality and provided all the evidence she needed to form an opinion. She concedes that she therefore was not able to personally perform a slide distance test and although she could not measure the gauge herself she could determine it from the aerial photographs and information that was available but that she did not use the size of the gauge mark in any of her calculations and that it was irrelevant in her calculations.

According to her only the start of the gauge mark was irrelevant to her, contrary to the evidence of Mr. Bezuidenhout. She got the specifications and damages of vehicles on the photos. She indicated that maximum engagement the FJ was parallel to the road with the Ford Approaching at a slight angel from its correct lane into the incorrect lane. She did not use the measurements of the overheads in her calculations. She said she works with the deformable objects not measurements of the front parts of the vehicle. She agrees that she did not have the extend of the damage of the vehicle under the hood but look at the deformations ad the extend of deformations as per the aerial photographs.

She stated that the gauge mark represents the point of impact as well as point of maxim engagement, contrary to Mr. Bezuidenhout. She concedes that the tyre marks were made by Ford Ranger before it came to rest. She concedes there is no tyre marks of the FJ Cruiser. She mentioned there was a swerving action to the right of the road. According to her the 1^st impact was more in towards the FJ Cruiser side of the road. She concedes that looking at the damage of the vehicle significant speed was involve in both vehicles. She disagreed that it was due to speed that the FJ caught fire. She could not immediately say what was the induce damage and what was the impact damage on the Ford. She concedes that she could not determine the approach angles and that it was not possible to determine it with accuracy.

She concedes that the explanation the illustration and explanation of the PDOF differs from Mr. Bezuidenhout, but their rotation remains the same as counter-clockwise. She conceded that experts could look at the same material and could come to a different interpretation as in this case with her and Mr. Bezuidenhout. She is adamant that the way she found her PDOF is correct and the way she found her movement was correct and agree that any other finding -that is Mr. Bezudenhout’s- will be incorrect.

The court noted the following relevant differences in the defence expert witnesses’ findings:

a) The principal direction of force (PDOF).

b) The rotation of the vehicles after impact.

c) The angle of travel before impact.

d) Positions of the vehicles in relation to the road at impact.

e) Difference in opinion about the calculations of the pre-impact speed.

f) The version of Ms. Joska regarding the final rest position of the vehicles.

Defence witness: Wilhelm Knowds

He is a civil engineer. He was instructed by Mr. Theron in 2020 to look at the sight lines between two drivers of vehicles involved on the said road approaching the point of impact. He did receive the drawing, exhibit XXX 1which is a map the existing road levels on the road between Swakopmund and Hentiesbay before it was upgraded. It was indicated to him from the left-hand side from Swakopmund direction he took the FJ Cruiser roof height which was 1.78 meters and the driver height of driver of 1.55 meters. On the right-hand side of the drawing is the Ford Ranger at a height of 1, 81 meters and the driver’s height as 1, 55 meters and draw a line. The legend the profile of the road- shows the kilometer distance and levels showed the height of the road.

The legend further shows the existing road profile on the center line and there is a small crest and before and after the crest there is a dip that was filled up and that is evident by the lines on the left 10 meters and then right from Hentiesbay side he says the driver would experience an elevation in rise. The driver coming from Swakopmund will have the same experience the elevation will raise and he will move upwards. He indicated before the elevation from the south that is from Swakopmund from the map we can establish a lowest point at approximately at 93.370. An highest elevation in relation to point of impact was a crest at 13.498 measures at 93.320km. The lowest point of the crest from Hentiesbay to Swakopmund is at kilometers 93.520. The road on both sides of crest was elevated. From Swakopmund to Hentiesbay the lowest point on the map s at 19.160 and the highest at 93.320.

The methodology he used was to use these two lowest points and place the vehicles roof height and driver’s eyesight and then draw a line from the one drivers eye height to the roof of the oncoming vehicle and the same with the driver on the others side and found the distance between the two lowest point is 360 meters and indicted that there was definitely a line of sight. He indicated to the eyesight at the lowest point of where they found themselves when they approached the elevation. He indicated that the minimum line of sight above the surface over the crest is 5.3 meters.

He also pointed the point of impact on the drawing. The minimum line of sight above surface over the crest is 5.3 centimeter and distance is 360 meters. The distance from the lowest point of Fj to impact is 210 meters. Regarding to exhibit XXX 4 Ford Ranger to the point of impact is 150 meters. The combined distance will be 360 meters. These documents were handed up as exhibit MMMM 8.9 and 10. He stated at a distance of 460 meters they will become visible; that is 6.2 cm, that is the line of sight from one vehicle or driver to the roof of the other that the distance is visible over the crest.

During cross-examination:

He confirmed that at the lowest level the two vehicles at 360 meters visibility between the two vehicles were possible. Not definite as stated above. He conceded that up to 420 meters the vehicles were visible then because of the lower points and the vehicles moved from different time period if one takes the calculations there for a very short period will not be visible then at 360m they will again be visible to each other. He conceded that it also depends on where you place these vehicles. He concedes with Mr. Hepkema statement that when he used 1.5 meters not 1.5.at some stage the vehicles could not see each other.

DEFENCE CASE

At the end of the case the state submitted that:

With regard to count 1- Reckless and negligent driving and it’s alternative-inconsiderate driving: It is submitted that in the manner that accused drove was reckless as per the evidence of Mr. Mills that the accused was overtaking in front of oncoming traffic where there was no room for him to get back safely into the correct lane. Other cars had to leave the road and create gabs and that shows he drove recklessly. That the state did proof beyond reasonable doubt that the acc was driving in willful and wanton disregard for the safety of persons or property on the road. That accused drove at a higher speed than the speed limit at the time when the volume traffic was high.

Count 3 – Driving without a valid driver’s license: That the state did proof the accused license was granted in 2009 which is to expire in 2014. That accused stated that his license got loss in 2013. It is submitted that there is no record of other licenses after the one that expired in January 2014. That the state did proof beyond reasonable doubt that on the alleged date the accused did not have a valid driver’s license.

Regarding to count 4 -9: `

1. That the witnesses the state led on the mentioned charges were credible and did not contradict each other.
2. That the expert witnesses for the defence contradict each other on relevant points
3. That the experts outcomes were contradictory.
4. That the state did proof that the accused speed at the point of impact was way above the speed limit of 100km\h on a rough and uneven road surface and at the time the accused drove uphill visibility was obscured and that he drove in a reckless manner.
5. It is submitted that in this case the accused actions were at such that he could subjectively see that driving a vehicle in the manner that he did; could result in a collision with other vehicles and lives be lost.
6. It is further submitted that the actions of the accused as he went up a blind rise at that speed he was driving at, shows that he had foreseen the possibility of the collision and reconciled himself with it.
7. It is submitted that the Ford Ranger may have been attempting to avoid the imminent danger by turning to the right but because he was in the correct lane, the left lane; the impact was in the left lane, almost in the middle of the road; hence the three witness statements were that the accident happened in the left lane of travel of the Ford Ranger.
8. That the accused defense is basically that the driver of the Ford Ranger caused the accident as on seeing the accused in his lane should have continued driving straight in his left lane and the accused would have safely returned to his correct lane.
9. That it is clear from the evidence of the state that the driver of the Ford was plunged by the accused into a sudden emergency that he had no more than a second to escape that emergency.
10. That Antonia said her father pulled the steering wheel to the right or attempt to; he did not succeed as to the collision still occurred in the lane of the Ford Ranger.
11. That the accused knew that he was driving in the wrong lane and drove to fast in the circumstances. He was aware that the road was busy. He was aware he was going over a blind rise and may not be visible to the other drivers until too late. As a result, he only became visible to Antonia and it is submitted to the deceased when he came over the summit and appeared before them in their lane; with just a split second to react. The deceased had no opportunity to react in the way he did.
12. It is submitted that the state did proof beyond reasonable doubt that the accused reconciled himself with the consequence of his conduct which he subjectively foresaw and collided with the Ford Ranger resulting into killing six people
13. It is submitted that the state did proof its case beyond reasonable doubt- murder on count 4 to 9
14. It is submitted that the accused be convicted as charged on count 1(main); count 3 -4 to 9

Defence on the other hand submitted:

On count 1-Reckless or negligent driving

a) The defense illustrated throughout their submissions uncountable list of contradictions in the evidence in the state witness as per the 300 plus page written submission and why the witness should be discredited and not to be believed.

Count 3 –no drivers’ license: That the accused is charged with section 31(1) (a) of Road Traffic and Transportation Act; 22 of 1999. It is submitted that the acc did have a driver’s license which got stolen and did not have in the vehicle. That accused should have been charged with contravening section with section 31(1) (b) of the Act. It is submitted that the accused did held a valid driver’s license is an essential element of the offence charged as it confers the relevant jurisdiction for the court to preside over this matter and that accused was thus wrongly charged and that there is no relevant and credible evidence on which the acc can be convicted

On count 4 to 9 – Murder

b) Regarding the imaginary center line is submitted that the muddle and unsurmountable obstacle for the state is that the accident happened on a salt road where there are no markings or proper road signs. That the expert witnesses worked with a so-called imaginary middle line into which according to the state expert witness the accused crossed 50cm to the other side of the imaginary line. That the catastrophe of the case lies in this aspect as it is in the circumstances impossible to determine negligent or reckless in respect of the counts of murder or culpable homicide.

It is further submitted that if this court is to expect to work with an imaginary lines on a featureless road without any road signs all that does is translate into reasonable doubt from the onset. That the state cannot ploy and maneuver the process and the rule of law to serve its case because if permitted there can be no doubt that the effect thereof will effect undermine the administration of justice and the constitutional decree of fair trail. It is submitted that the court do not place decisive reliance on the state witnesses as their testimonies is devoid of credibility and there were material discrepancies in their evidence.

It is submitted that if regard is had to the written statements of the said witnesses after the accident; weight against the objective factors and the real evidence observed on the scene of the accident; same illustration that their versions of the event are improbable and should be rejected. It is submitted that practice had always been to charge drivers with reckless driving and culpable homicide but in this instance the state elected to charge with murder. It is submitted that the controversy regarding decisions involving drivers of motor vehicles is illustrated of the caution required to determine the distinction between doles and culpa. That the state in it head makes a blanket suggestion that it did proof it case of murder without alluding on which basis in law it is based. It then discussed doles eventualis. It is submitted that the state did not proof its case beyond reasonable doubt on the murder charges let alone in the form of dolus eventualis

The issues

The issues the court must consider:

1. Did the accused drive reckless or negligently; in the alternative inconsiderately.
2. Did the accused drive without having a valid driver’s license.
3. Did the accused drive with the necessary legal intent to kill a person/s; if the state failed proof “legal intention”; whether accused should be convicted of culpable homicide or not.

Onus

The court when evaluating the evidence must consider the totality of the evidence in order to decide whether or not the guilt of the accused has been proved beyond reasonable doubt. It is trite law that the burden of proof rests on the State to prove the guilt of the accused beyond a reasonable doubt.

The approach is that the onus rests upon the State to prove the accused’s guilt beyond a reasonable doubt and the corollary of that is that if the accused’s version in the light of all the evidence on record is reasonably possibly true and an innocent explanation then he is entitled to an acquittal.

Regarding the authority the court should consider

Reckless or negligent driving

Section 80 of Act 22 of 1999 reads as follows:

(1) No person shall drive a vehicle on a public road recklessly or negligently.

(2) Without restricting the ordinary meaning of the word “recklessly” any person who drives a vehicle in wilful or wanton disregard for the safety of persons or property shall be deemed to drive that vehicle recklessly.

(3) In considering whether an offence has been committed under subsection (1), the court shall have regard to all the circumstances of the case including, but without prejudice to the generality of the foregoing provisions of this section, the nature, condition and use of the public road on which the offence is alleged to have been committed, the amount of traffic which at the time actually was, or could reasonably have been expected to be, upon that road and the speed at and manner in which the vehicle was driven.’ (Emphasis provided)

Both v S (CA 83/2016) [2018] NAHCMD 239                                 (10 August 2018)

In S v HN 2010 (2) NR 429 (HC) at 443E – F the court in this regard stated the following: regarding single witnesses

“Evidence of the single witness need not be satisfactory in every respect as it may safely be relied upon even where it has some imperfections, provided that the court can find at the end of the day that, even though there are some shortcomings in the evidence of the single witness, the court is satisfied that the truth has been told.”

Where the evidence before court is circumstantial. In R v Blom-1939 AD 288 (supra) it was held that in reasoning by inference there are two cardinal rules of logic which cannot be ignored: (1) The inference sought to be drawn must be consistent with all the proved facts. If it is not, the inference cannot be drawn; (2) The proved facts should be such that they exclude every (other) reasonable inference, save from the one sought to be drawn. If they do not exclude other reasonable inferences, then there must be doubt whether the inference sought to be drawn is correct.

Regarding contradictions between state witness evidence and that of police statements

  S v Thomas (CC 19/2013) [2023] NAHCMD 550                                                                (6 September 2023)

It is stated as follow:

Whenever there are contradictions between the police statement of a witness and the evidence of such witness, the approach adopted in regard thereto is set out in S v Mafaladiso en Andere[3] at 584 (headnote):

‘The juridical approach to contradictions between two witnesses and contradictions between the versions of the same witness (such as, inter alia, between her or his viva voce evidence and a previous statement) is, in principle (even if not in degree), identical. Indeed, in neither case is the aim to prove which of the versions is correct, but to satisfy oneself that the witness could err, either because of a defective recollection or because of dishonesty. The mere fact that it is evident that there are self-contradictions must be approached with caution by a court. Firstly, it must be carefully determined what the witnesses actually meant to say on each occasion, in order to determine whether there is an actual contradiction and what is the precise nature thereof. In this regard the adjudicator of fact must keep in mind that a previous statement is not taken down by means of cross-examination, that there may be language and cultural differences between the witness and the person taking down the statement which can stand in the way of what precisely was meant, and that the person giving the statement is seldom, if ever, asked by the police officer to explain their statement in detail. Secondly, it must be kept in mind that not every error by a witness and not every contradiction or deviation affects the credibility of a witness. Non-material deviations are not necessarily relevant. Thirdly, the contradictory versions must be considered and evaluated on a holistic basis. The circumstances under which the versions were made, the proven reasons for the contradictions, the actual effect of the contradictions with regard to the reliability and credibility of the witness, the question whether the witness was given a sufficient opportunity to explain the contradictions – and the quality of the explanations – and the connection between the contradictions and the rest of the witness’ evidence, amongst other factors, to be taken into consideration and weighed up. Lastly, there is the final task of the trial Judge, namely to weigh up the previous statement against the viva voce evidence, to consider all the evidence and to decide whether it is reliable or not and to decide whether the truth has been told, despite any shortcomings. (At 593e – 594h.)’

• In this Jurisdiction, the above quoted dictum has been adopted with approval in numerous judgments of this court (S v Unengu;[4] S v Krylov[5]; S v BM[6]).
• In the same vein Maritz J (as he was then) in the unreported matter of Simon Nakale Mukete v The State[7] at 21 stated:

‘It is the experience of the Court that witness statements drafted by police officers are often not all-inclusive. Police officers tend to focus the statement on what they consider – rightly or wrongly – to be more (or most) relevant facts relating to the offence under investigation. The failure to include all the details of a series of events does not in itself mean that those events did not take place or that they have been a recent invention by the witness – especially not if the witness gives an explanation for their omission and that explanation is not gainsaid by anyone.’ (Emphasis provided)

Regarding expert witnesses

Grove v Endjala (HC-MD-CIV-ACT-CON-2019/05339) [2023] NAHCMD 117 (14 March 2023

Before considering his evidence, I deem it apposite at this junction to briefly set out the legal principles applicable when expert evidence is assessed. The principles were neatly summarized by the South African Supreme Court of Appeal in PriceWaterhouseCoopers Inc & Others[8].

‘[97]     Opinion evidence is admissible ‘when the Court can receive “appreciable help” from that witness on the particular issue’.[9] That will be when:

“… by reason of their special knowledge and skill, they are better qualified to draw inferences than the trier of fact. There are some subjects upon which the court is usually quite incapable of forming an opinion unassisted, and others upon which it could come to some sort of independent conclusion, but the help of an expert would be useful.” ’[10]

[116]   As to the nature of an expert’s opinion, in the same case, Wessels JA said:[11]

‘… an expert’s opinion represents his reasoned conclusion based on certain facts or data, which are either common cause, or established by his own evidence or that of some other competent witness. Except possibly where it is not controverted, an expert’s bald statement of his opinion is not of any real assistance. Proper evaluation of the opinion can only be undertaken if the process of reasoning which led to the conclusion, including the premises from which the reasoning proceeds, are disclosed by the expert.’

[117]   Courts in this and other jurisdictions have experienced problems with expert witnesses, sometimes unflatteringly described as ‘hired guns’. In The Ikarian Reefer[12],Cresswell J set out certain duties that an expert witness should observe when giving evidence.

            ‘The duties and responsibilities of expert witnesses in civil cases include the following:

1. Expert evidence presented to the Court should be and should be seen to be the independent product of the expert uninfluenced as to form or content by the exigencies of litigation.
2. An expert witness should provide independent assistance to the Court by way of objective unbiased opinion in relation to matters within his expertise … An expert witness in the High Court should never assume the role of advocate.
3. An expert witness should state the facts or assumptions on which his opinion is based. He should not omit to consider material facts which detract from his concluded opinion.
4. An expert witness should make it clear when a particular question or issue falls outside his expertise.’

            These principles echo the point made by Diemont JA in Stock[13]that:

       “An expert … must be made to understand that he is there to assist the Court. If he is to be helpful he must be neutral. The evidence of such a witness is of little value where he, or she, is partisan and consistently asserts the cause of the party who calls him. I may add that when it comes to assessing the credibility of such a witness, this Court can test his reasoning and is accordingly to that extent in as good a position as the trial Court was.”

            [99]      Lastly when dealing with the approach to an expert witness I have found helpful the following passage from the judgment of Justice Marie St-Pierre in Widdrington:[14]

                        “Legal principles and tools to assess credibility and reliability

                        [326]   Before any weight can be given to an expert’s opinion, the facts upon which the opinion is based must be found to exist.

                        [327]   As long as there is some admissible evidence on which the expert’s testimony is based it cannot be ignored; but it follows that the more an expert relies on facts not in evidence, the weight given to his opinion will diminish.

                        [328]   An opinion based on facts not in evidence has no value for the Court.

                        [329]   With respect to its probative value, the testimony of an expert is considered in the same manner as the testimony of an ordinary witness. The Court is not bound by the expert witness’s opinion.

                        [330]   An expert witness’s objectivity and the credibility of his opinions may be called into question, namely, where he or she:

•   accepts to perform his or her mandate in a restricted manner; 

•   presents a product influenced as to form or content by the exigencies of litigation;

•   shows a lack of independence or a bias;

•   has an interest in the outcome of the litigation, either because of a relationship with the party that retained his or her services or otherwise;

•   advocates the position of the party that retained his or her services; or•      selectively examines only the evidence that supports his or her conclusions or accepts to examine only the evidence provided by the party that retained his or her services.”

Nel v State (HC-MD-CRI-APP-CAL-2021/00052 [2021] NAHCMD 579 (9 December 2021

(b)  ‘ If on the proven facts a judge or  jury can form their own conclusions without help, then the opinion of an expert is unnecessary. In such a case if it is given dressed up in scientific jargon it may make judgement more difficult. The fact that an expert witness has impressive scientific qualifications does not by that fact alone make his opinion on matters of human nature and behaviour with the limits of normality any more helpful than that of the jurors themselves; but there is a danger that they may think it does.’

R v Turner [1975] 1 All ER 70 at 74d-e

(c)  A court is not bound by, nor obliged to accept, the evidence of an expert witness:

      R v Theunissen 1948 (4) SA 43 9 (C) at 46.

‘A court should not blindly accept and act upon the evidence of an expert witness … but must decide for itself whether it can accept the expert’s opinion.’

R V Nksatlala 1960(3) SA 543(A) at 546C – D

Gear Transport CC v Springbok Touring of Namibia (Pty) Ltd (I 3961/2014) [2019] NAHCMD 233 (8 July 2019)

In Motor Vehicle Assurance Fund v Kenny[15], where the court expressed itself thus:

‘Direct or credible evidence of what happened in a collision, must, to my mind, generally carry greater weight than the opinion of an expert, however experienced he may be, seeking to reconstruct the events from his experience and scientific training. Strange things often happen in a collision and, where two vehicles approaching each other from opposite directions collide, it is practically impossible for anyone involved in the collision to give a minute and detailed description of the combined speed of the vehicles at the moment of impact, the angle of contact or of the subsequent lateral or forward movements of the vehicles. Tompkin’s concession, therefore, that there are too many unknown factors in any collision to warrant a dogmatic assertion by an expert as to what must have happened seems to me to have been a very proper one. An expert’s view of what might have probably occurred in a collision must, in my view, give way to the assertions of the direct and credible evidence of an eyewitness. It is only where such direct evidence of an eye witness is so improbable that its very credibility is impugned, that an expert’s opinion as to what may or may not have occurred can persuade the Court to his view.’

Now considering charges and the merits of the case and taking onto account the authority as referred to:

Count 1 –Reckless/negligent driving

Freddie Mills is basically the main witness to this offence: It is common cause that this incident happened in the summer holiday at the coast. It is also common cause that during that period of the year and specifically that day the road between Walvisbay and Swakopmund was congested; to the effected that vehicles drove bumper to bumper in conveys. It is common cause that it was a road with a speed limit of 80km/h. Mr Mills testified the FJ Cruiser; in which acc was later identified to be the driver came at a high speed passed/overtake them on the right-hand side while there was oncoming traffic from the front. These oncoming vehicles flicked their lights because they were close to accused that was coming head on in their lane. The FJ Cruiser was on the wrong side of the road when he overtook in the sight of oncoming vehicles.

Witness narrated as the oncoming vehicles flicked their lights; he necessitated it to brake and slowed down to 50km in order to create a gap/space for the FJ Cruiser. He told the court that he got a fright by the acc driving maneuver because the acc was close to the oncoming vehicle and that even they had to reduce speed and try to go left to avoid an accident. He told the court that if he did not brake and reduced speed acc would have either driven off the road or caused an accident.

The court infers that; these are clearly actions of a driver that in the light of the prevailing circumstances has willfully disregard the existence of the congested road; disregard for the safety of other road users; and disregard for the safety of his passengers. It is quite evident that this was not a once off incident. Mr. Mills observed accused again moved out; overtake and pass other vehicles and again oncoming vehicles flashed their lights. Mr. Mills told the court that he was so traumatize by the accused driving behavior that he deemed it necessary to call the neighborhood watch and he felt accused was a danger to other road users. He was so traumatized that he was still in a state of shock when he later met Callie and Matunga in town.

Callie corroborated that when he met Mr. Mills he was still in a state of shock and was still shaking and uttered his disappointment and felt that acc should have been locked up for the manner in which he drove. He is demeanor afterwards gives in an indication that he genuinely had a traumatic experience. Both Mr. Van der Merwe and Dewaldt Swartz corroborates that Mr. Mills reported to them about the FJ Cruiser that drove reckless and negligent on the road. Mr. Swartz also confirmed the accused driving behavior when he saw him on the bridge driving close to the vehicle in front of him. Accused version is that he drove over a barrier line but only overtook one slow moving vehicle on the bridge. He could not recall if he overtook any other vehicles on that road. He does not agree with the version of Mr. Mills in the manner he drove.

According to accused he would not have passed if it was not safe and the road at that time of the year would not have allowed him to drive excessive speed. On the evidence of Mr. Mills that they had to break or try to go to the side because in the manner he overtook-he replied that he could not believe it and could not recall it and would not have driven for something like that to happen. Mr. Mills did not even know who the driver was when he made this report. The manner in which the accused drove is definitely reckless. The defense did point out the discrepancies between these witnesses evidence in what they stated in court. The defense also pointed out the discrepancies between their evidence in court and their witnesses’ statements. As per attached authority the court is satisfied with their explanations why some material factors were not stated in their statements.

The court is also of the opinion that these discrepancies were immaterial and does not discredit these witnesses. The court is satisfied that the witnesses were honest and credible and the court finds no reason not to believe them. The above witnesses corroborated each other on material and relevant facts. The court finds the version of the accused as false beyond doubt and rejects the version of the accused on this count. The court is satisfied that the state did proof beyond reasonable doubt on count 1 that accused drove recklessly in willful and wanton disregards for the safety of persons and their property.

Regarding count 3 -Driving without a license

The evidence is clear from above as per the testimony of Mr. Shuuya that their records indicated that accused driver’s license expired on 5 January 2014.That the following license was only issued on 29 January 2015, that on this fatal day accused did not have a valid license. Accused version is that he did have a valid license which was issued at Natis Tal Street in Windhoek. Despite the fact that no record reflects the existence such license; the accused claims that a license card was issued to him after the previous one was also stolen. The court is of the opinion that the accused was correctly charged and that the state did proof its case beyond reasonable doubt on count 3.

Regarding the murder charges from count 4 to 9

In the matter at hand the question the court must determine is whether accused drove with the necessary legal intent to kill a person/s; if the state fails to proof the legal intent; whether accused should be convicted of culpable homicide, the state must show that the accused unlawful driving in the circumstances caused the accident that resulted in the death of 6 persons and in order to do so; it must proof that the accused had the legal intention to commit murder; if they fail to do so consider if the state proof Culpable Homicide. The state submitted that the legal intent was proven in the form of dolus eventualis.

The court will discuss the term below.

S v Heita (CC 14/2016) [2023] NAHCNLD 103 (09 October 2023)

The law

[54]     Hunt and Milton^[16] state that murder consists of the unlawful and intentional killing of another person, with the elements being (a) unlawful (b) Intentional (c) Killing (d) of another person.  With regard to the element of intention, it is required that the test is subjective, the State must prove either actual or legal intention, mere culpa is insufficient. They further explain that actual intention exists where X commits the actus reus meaning to kill Y; and Legal intention exists where X commits the actus reus foreseeing that it may cause Y’s death.  With regard to the Killing element, it must be proven that if it was not for the conduct of X, Y would not have died when he did.^[17]

[55]     According to CR Snyman^[18] intention in the technical sense of the term can be defined as;

‘the will to commit the act or cause the result set out in the definitional elements of the crime, in the knowledge of the circumstances rendering such act or result unlawful. Defined even more tersely, one can say that intention is to know and to will an unlawful act or a result.’

[56]     For the accused to be convicted of the offence of murder, his actions should meet the following requirements as per Snyman:^[19] (a) He must be aware of the circumstances which made his act correspond to the definitional elements and rendered it unlawful, (b) He must be capable of acting in accordance with his insight into right or wrong and must have criminal capacity at the time of the commission of the crime. (c) He must have willed the commission of the act constituting the crime.

[57]     Intention is a state of mind. In a case where an accused like in this case is denying legal intention a subjective test must be applied. Therefore an inference must be drawn from the evidence relating to his outward conduct at the time of the commission of the act as well as the circumstances surrounding the incident. All the circumstances of the case should be considered

[58]     Snyman referred above went further to discuss the different forms of intention, being dolus directus, dolus indirectus and dolus eventualis. In the instant matter it is possibly the dolus eventualis we are looking at since there is no evidence that accused had direct intention to kill the deceased. The test in this regard is whether the accused foresaw the possibility of death resulting or arising as a result of his conduct and proceeded with such conduct reckless of that result.

[59]     In S v Humphreys,^[20] the court considered the test for dolus eventualis and it said:

‘In accordance with trite principles, the test for dolus eventualis is twofold:

(a)        Did the appellant subjectively foresee the possibility of the death of his passengers         ensuing from his conduct; and

(b)       did he reconcile himself with that possibility.’

South Africa: Kwazulu-Natal High Court, Durban

S v Siyaya (03/2024) [2024] ZAKZDHC 24 (14 May 2024)

In this case the accused were convicted of murder by dolus eventualis.

In this case eighteen children and two young adults died from multiple blunt force injuries sustained when a truck carrying 34 tons of coal with a total mass of 55 tons collided head-on with the scholar transport vehicle that they were travelling in.

 In this case at para 179] is stated as follow In Humphreys, Brand JA[56] expresses the test as follows;

‘(a) did the appellant subjectively foresee the possibility of the death of his passengers ensuing from his conduct; and (b) did he reconcile himself with that possibility (see e.g. S v De Oliveira  1993 (2) SACR 59 (A) at 65i-j). Sometimes the element in (b) is described as ‘recklessness’ as to whether or not the subjectively foreseen possibility ensues (see e.g. S v Sigwahla 1967 (4) SA 566 (A) at 570). I

[178]   In S v Pistorius the Supreme Court of Appeal articulated the concept of dolus eventualis in murder cases as follows:

‘In cases of murder, there are principally two forms of dolus which arise: dolus directus and dolus eventualis. These terms are nothing more than labels used by lawyers to connote a particular form of intention on the part of a person who commits a criminal act. In the case of murder, a person acts with dolus directus if he or she committed the offence with the object and purpose of killing the deceased. Dolus eventualis, on the other hand, although a relatively straightforward concept, is somewhat different. In contrast to dolus directus, in a case of murder where the object and purpose of the perpetrator is specifically to cause death, a person’s intention in the form of dolus eventualis arises if the perpetrator foresees the risk of death occurring, but nevertheless continues to act appreciating that death might well occur, therefore ‘gambling’ as it were with the life of the person against whom the act is directed. It therefore consists of two parts: (1) foresight of the possibility of death occurring, and (2) reconciliation with that foreseen possibility. This second element has been expressed in various ways. For example, it has been said that the person must act ‘reckless as to the consequences’ (a phrase that has caused some confusion as some have interpreted it to mean with gross negligence) or must have been ‘reconciled’ with the foreseeable outcome. Terminology aside, it is necessary to stress that the wrongdoer does not have to foresee death as a probable consequence of his or her actions. It is sufficient that the possibility of death is foreseen which, coupled with a disregard of that consequence, is sufficient to constitute the necessary criminal intent.’

Considering the above authority and the evidence led.

The court will 1^st refer what happened prior to the fatal accident and what was presented

Mr. Ronny van Zyl testified prior to the fatal collision he observed the FJ Cruiser past 3 vehicles simultaneously which included his vehicle at a high speed of which he estimated at 160km\h. He narrated that the FJ Cruiser drove in such a way that the vehicle in front of him had to apply brakes because there was a little hump just after the turn off. He applied brakes that the FJ Cruser could go back in the lane again. It is common cause that this fatal accident happened during the festive season; it further common cause that this specific road was busy with traffic coming and going (both sides of the road).

6th witness: Ian James Stevenson

He testified that accused overtook his wife that drove behind him at a high speed. She left space for accused to enter but he did not go into that space but instead also overtook the witness. Stevenson also left gab if necessary for the vehicle to enter, but the FJ Cruiser did not go into that space but also overtook the vehicle in front of him and then disappeared over the blind rise. Witness narrated that when accused overtook him his Amarok shook due to the high speed of the accused vehicle and it felt like a truck passed him. Mr Stevenson was driving at a speed between 110km\h and 115km\h. The inference drawn is that acc must have travelled at a much higher speed to cause such a shaking feeling. Mr. Stevenson testified that there were 3 vehicles in front of him. He further observed the FJ Cruiser overtook the 1^st vehicle; then there was a blind rise and he was out of his sight and 2 to 3 seconds later he saw the huge black puff. He saw the FJ Cruiser going up the hill on the right-hand side and did not see it reduced speed. He testified where acc overtook was dangerous to do so and the blind rise prevented him from seeing oncoming vehicles from the front.

Mrs. Hazel Oosthuizen testified that the FJ Cruiser drove very close behind them just before the accident and so close that his driving behavior irritated her. She was afraid should they brake he will drive into them. She narrated the next moment accused past them on the right-hand side; accelerated quite a lot when he past them and tried to go in front of them skew. Why skew?  The inference the court drew and as testified by Mrs. Oosthuizen was because accused was on a high speed and was not in control of the vehicle and went from side to side and at a clear blind spot he drove on the right-hand side which was the wrong side of the road for them. She described it as a blind spot where you cannot see on the other side. She testified that they had FJ Cruiser in sight the whole time as he went over the hill and as they came over the blind spot they saw the collision. She told the court that the accident happened on the wrong side of the road. She corroborates the evidence of Ms Joscko and the state expert evidence. This evidence was corroborated by Mr. Joubert that the accident happened 50cm from the center line on the side of driving of the Ford Ranger. She corroborates all the witnesses including the accused that the road was busy that time of the day.

Mr. Paul Oosthuizen corroborated his wife in every material aspect as to what occurred just prior to the fatal accident. He told the court that he was driving at about 100km\h. He also was irritated by the impatient driver on his tail. He corroborated that the FJ moved fast to the right side; accelerated and passed them. He described the driving behavior of the accused as inconsiderate. He further corroborated his wife that when the FJ Cruiser passed them on the right-hand side the vehicle was not in control. And the back of the vehicle was drifting to the right. This corroborates the expert evidence that the FJ Cruiser tyre marks were found as it almost went off the road on the right-hand side. He testified that the Cruisier accelerated and instability of the vehicle continued at an uphill and when the vehicle was up on the crest it appeared as if it totally lost control. He also demonstrated in court with his hand how the accused went zig-zag up the hill. He corroborates the other state witnesses that the FJ Cruiser moved to the wrong side of the road and then there was the collision

In the above-mentioned S v Siyaya (03/2024) [2024] ZAKZDHC 24 (14 May 2024)

It referred  the Humpreys case

13] For the first component of dolus eventualis it is not enough that the appellant should (objectively) have foreseen the possibility of fatal injuries to his passengers as a consequence of his conduct, because the fictitious reasonable person in his position would have foreseen those consequences. That would constitute negligence and not dolus in any form. One should also avoid the flawed process of deductive reasoning that, because the appellant should have foreseen the consequences, it can be concluded that he did. That would conflate the different tests for dolus and negligence. On the other hand, like any other fact, subjective foresight can be proved by inference. Moreover, common sense dictates that the process of inferential reasoning may start out from the premise that, in accordance with common human experience, the possibility of the consequences that ensued would have been obvious to any person of normal intelligence. The next logical step would then be to ask whether, in the light of all the facts and circumstances of this case, there is any reason to think that the appellant would not have shared this foresight, derived from common human experience, with other members of the general population.

80]   The first component of the test for dolus eventualis sometimes referred to as the cognitive aspect

In this case before court, accused in defense told the court that he was familiar with the salt road between Swakopmund and Hentiesbay. He conceded that it was flat and at some areas have up hills and downhills. Accused in his own words conceded that due to the busy road a driver must exercise care and patience that was quite the opposite as to how his driving behavior was described on the said day. It can be inferred that the accused was quite impatient and had totally disregard for the road and traffic.

During cross-examination accused were asked if he overtook vehicles; that was before the collision, he responded by saying that he could not recall –here it must be noted that this was supposedly the period when he still had his memory. He further responded by saying – he could not recall but he believe he would have past vehicles only if it was safe. If the accused was honest and absolutely sure; he could have given clear answers if the court is to believe his version. What is also quite clear is that when accused was confronted with the allegations against him he gave as what this court will call it “carefully calculated answers” to exonerate himself-he was never clear; never direct. On the evidence of Mr. Ronny van Zyl that he past him at a high speed, accused responded that the road would not have allowed him to drove in that way due to the rush of the year.

From these responses; the court could infer that accused knew that it was dangerous to overtake several vehicles at high speed at that specific place; time and period of that road. When these witnesses observed the driving behavior of FJ Cruiser, they did not know who the driver was. These witnesses corroborated each other on material factors and were honest and clear. They corroborated each other that the acc drove in a reckless; inconsiderate and danger manner before the collision. If we consider the collision itself:  the evidence of Ms. Joschko was a single witness as to what happened during the last fatal moments. Ms. Joschko corroborated that the road was busy on both sides. Ms. Joschko and her father was approaching from the opposite side. She corroborates there was a hill and they drove up the hill and suddenly there was a big car appeared in front of them, on their side of the road which corroborates the evidence of the Oosthuizen that accused drove out of control over the hill on the right-hand side

In the Humphreys case the accused was seriously injured in the accident and immediately admitted in hospital

He maintained that he remembers absolutely nothing from the time he went to stand in the queue in Buffskop road up to the time he regained consciousness in the hospital. He had no recollection of the accident itself but unlike Humphreys; acc in the matter at hand was still conscience after the accident and could still respond to a question whether there were passengers with him in the vehicle. Mr. Oosthuizen testified that he did ask accused if he was under the influence of intoxicating liquor because he did get the smell of alcohol when he approached the acc sitting on the ground. Accused version is that he can only recall up to Mile 28 where he asked his co passengers if they should turn off to the beach. Ms Josko testified when the big vehicle appeared in front of them; her father tried to turn the vehicle to the right in order to avoid the accident, but it was too late. She testified the vehicle was on their side of the road. She testified that her father could not avoid the collision; although he attempted to do so because the oncoming vehicle was at high speed; to fast ;to close and appeared over the hill.

Booysen v S (HC-MD-CRI-APP-CAL-2022/00041) [2023] NAHCMD 143 (27 March 2023)

In  regard  to the doctrine of ‘sudden emergency’. This has been explained by the author Cooper in Motor Law[21] as follows:

‘ A driver who – finds himself in a position of imminent danger, cannot be held guilty of negligence merely because in that emergency he does not act in the best way to avoid the danger.’ The Oosthuizens corroborated when the acc went over the hill; his vehicle was not in control and went over on the right side; which was their wrong side. The court also takes into account that, prior to the accident, there were complaints against the acc driving behavior by more than one witness on the main road between Walvisbay and Swakopmund whereby acc was pulled over by Traffic Officer Motinga and warned that such driving actions may cause an accident or serious injuries not only to himself but also to others. In spite of the earlier reprimanding the acc continued with the same driving behavior as per the evidence of the above witnesses that acc speeded and drive over blind rise while his view was obscured.

In this matter at hand and as described by the witnesses above taken from the subjective perspective from the general human populations the inferential reasoning the court could draw that acc must have foreseen by overtaking several vehicles simultaneously; driving at that a high speed over a hill on the wrong side of the road in these circumstances; that in a collision; the possibility of death may ensue and that includes death for his passengers  and/or  death of other drivers

There is no logic reason that the court could derive from that acc that acc would not have shares this foresight, derived from any person of normal intelligence or, with other members of the general population taking into account that acc is a champion rally driver and overtaking a vehicle on a blind rise in the face of oncoming vehicles possible consequence of death must have been obvious to the accused.

The court takes into account the factual evidence of the witnesses; supported by the physical evidence of the point of impact; gauge mark PDOF as well as the evidence of Ms. Joschko that acc approached their vehicle on the left hand side at high speed-the court is of the opinion that the cognitive component of foreseeability y( knowledge )of dolus eventualis has been met.

Conative component (volitional element) of dolus eventualis.

In the abovementioned case at para 15 the discussion is as follow

[15] This brings me to the second element of dolus eventualis, namely that of reconciliation with the foreseen possibility. The import of this element was explained by Jansen JA in S v Ngubane 1985 (3) SA 677 (A) at 685A-H in the following way:

‘A man may foresee the possibility of harm and yet be negligent in respect of that harm ensuing, eg by unreasonably underestimating the degree of possibility or unreasonably failing to take steps to avoid that possibility . . . The concept of conscious (advertent) negligence (luxuria) is well known on the Continent and has in recent times often been discussed by our writers. . . .

Conscious negligence is not to be equated with dolus eventualis. The distinguishing feature of dolus eventualis is the volitional component: the agent (the perpetrator) “consents” to the consequence foreseen as a possibility, he “reconciles himself” to it, he “takes it into the bargain”. . . . Our cases often speak of the agent being “reckless” of that consequence, but in this context it means consenting, reconciling or taking into the bargain . . . and not the “recklessness” of the Anglo American systems nor an aggravated degree of negligence. It is the particular, subjective, volitional mental state in regard to the foreseen possibility which characterises dolus eventualis and which is absent in luxuria.’

[ [17] Once the second element of dolus eventualis is misunderstood as the equivalent of recklessness in the sense of aggravated negligence, a finding that this element had been established on the facts of this case, seems inevitable. By all accounts the appellant was clearly reckless in the extreme. But, as Jansen JA explained, this is not what the second element entails. The true enquiry under this rubric is whether the appellant took the consequences that he foresaw into the bargain; whether it can be inferred that it was immaterial to him whether these consequences would flow from his actions. Conversely stated, the principle is that if it can reasonably be inferred that the appellant may have thought that the possible collision he subjectively foresaw would not actually occur, the second element of dolus eventualis would not have been established.

61]  A similar position was found by Leach JA in Director of Public Prosecutions, Gauteng v Pistorius^[22]  when he defined that intention, in the form of dolus eventualis arises –

‘…if the perpetrator foresees the risk of death occurring, but nevertheless continues to act appreciating that [it] might well occur, therefore gambling as it were with the life of the against whom the act is directed…Terminology aside, it is necessary to stress that the wrongdoer does not have to foresee death as a probable consequence of his or her actions. It is sufficient that the possibility of death is foreseen which, coupled with a disregard of that consequence, is sufficient to constitute the necessary criminal intent.’(my underlining)

---

S v Siyaya (03/2024) [2024] ZAKZDHC 24 (14 May 2024)

South Africa: Kwazulu Natal; High Court: Durban

[182]   It is the second aspect of the test in dolus eventualis, sometimes referred to as the conative aspect that is in dispute.

[183]   Whether or not this can be reasonably inferred is a fact based enquiry where the unique nature of every case needs to be considered. 

[184]   In Humphreys all the charges arose from a single incident which occurred on 25 August 2010 when a minibus, driven by the appellant, was hit by a train on a railway crossing near Blackheath on the outskirts of Cape Town. There were fourteen children in the minibus, ranging in ages between seven and sixteen years. Ten of the children were fatally injured in the collision, which gave rise to the ten charges of murder. Four of them fortunately survived, but were seriously injured. They were cited as the complainants in the four charges of attempted murder. At the end of the trial the appellant was convicted as charged on all fourteen counts and sentenced to an effective period of 20 years’ imprisonment. An appeal was lodged against both the convictions and the sentences imposed. On appeal, one of the appellant’s main contentions was that the State had failed to prove the element of murder described as dolus or intent, and more in particular dolus eventualis.

[16] The question  arises, whether it had been established that the appellant reconciled himself with the consequences of his conduct which he subjectively foresaw. The court a quo held that he did.

In the Humphreys case the Supreme Court of appeal held that the 2^nd element was not met due to the following two reasons: First, that common sense dictates that if the appellant foresaw the possibility of fatal injury to one or more of his passengers – as it is found he did – he must by the same token have foreseen fatal injury to himself.

An inference that the appellant took the death of his passengers into the bargain when he proceeded with his action would unavoidably require the further necessary inference that the appellant also took his own death into the bargain.

Put differently, the appellant must have been indifferent as to whether he would live or die. But there is no indication on the evidence that the appellant valued his own life any less than the average person or that it was immaterial to him whether or not he would lose his life.

In consequence it was concluded that it cannot be said the appellant reconciled himself with the possibility of his own death. What must follow from this is that he had not reconciled himself with the occurrence of the collision or the death of his passengers either.

In short, he foresaw the possibility of the collision, but he thought it would not happen; he took a risk which he thought would not materialise.

The second reason for concluding that the appellant did not reconcile himself with the consequences rests on the evidence that the appellant had successfully performed the same manoeuvre in virtually the same circumstances previously.

The fact that the manoeuvre which the appellant tried to execute was practically possible and that it had in fact been successfully executed by him previously, leads to the inference that, as a matter of probability, the appellant thought he could do so again.

Differently stated, the fact that the appellant had previously been successful in performing this manoeuvre probably led him to the misplaced sense of confidence that he could safely repeat the same exercise. Self-evidently the fact that his confidence was misplaced does not detract from the absence of reconciliation with the consequences he subjectively foresaw. It follows that the court a quo’s finding of dolus eventualis was not justified.

It must be noted that in this matter that both the drivers are not in a position to narrate to the court what happened during the fatal collision because:  1) the accused allege that he suffers from amnesia during this specific period and 2) the driver of the Ford Ranger died instantly.

The court in the Humphries case referred to the difference on opinion as to whether this form of intent only requires a cognitive element of foreseeability, or whether the element of volition (the power of choosing or determining; will; an act of making a choice or decision) was also necessary. The court held that this second leg of volition is only satisfied if the perpetrator foresaw the consequences of his conduct as a reasonable or real possibility, and furthermore reconciled himself to that possibility.

The second element of dolus eventualis is that the accused had to reconcile him with the possibility that serious injury or death may be a possibility if he continues with his action (driving in that matter). 

In Humphreyscase inferential reasoning may start out from the premise that, in accordance with common human experience, the possibility of the consequences that ensued would have been obvious to any person of normal intelligence.  According to Ackerman AJA, the foresight required for dolus eventualis is a subjective appreciation of the reasonable possibility that the unlawful consequences will occur.

Further in this case Ms. Joschko testified that her father drove at a speed between 80km\h and 90km\h.

This was corroborated by the evidence of Ms. Bernice Olivier testified that the last screenshot she forwarded to the state indicated a speed between 80km\h and 85km\h; 

The state witnesses corroborated each other that acc was speeding; overtaking in the sight of hills and crest

Mr. Graham testified that FJ Cruiser caught fire because it was driven at a high speed

Ms. Bardenhost conceded that speed played a significant role in this collision.

Mr. Joubert testified and concluded as per his pre impact speed indicated that the FJ Cruiser must have driven at a speed between 147km\h and 160km\h.

Mr. Ronny van Zyl estimated acc speed at 160kms. Accused was well acquainted with this specific road. He himself said one should be careful and patient on that road.

It is corroborated that accused drove in such away before the collision up to the collision that he lost control at one stage; there is physical evidence that he was almost off the road on right side; that he in that same way went over the blind rise on the right hand side of the road where his vison was obscured.

S v Nyathi (448/04) [2005] ZASCA 134; 2005 (2) SACR 273 (SCA) (23 May 2005)

Overtaking on a barrier line, and especially on a double barrier line where a motorist should realise that his inability to observe approaching traffic is compounded by the inability of traffic in the opposite direction to see him is probably the most inexcusably dangerous thing a road user can do.

The only reasonable inference the court could draw is that accused must have forseen driving on that road and specifically on that part where collision occurred; driving in an inconsiderate; reckless manner with such speed could cause an accident that could lead to fatal consequences.

The inference reasoning this court could come to is with the continuous illegal maneuvers; taking risks; driving over the blind rise at high speed while his vision was obscured; that acc must have foreseen the consequences of his actions and having the knowledge; that he reconciled or consent to himself to it.

On the issue of Reconciling with your own death in S v Siyaya (03/2024) [2024] ZAKZDHC 24 (14 May 2024)

[ [204]   The important aspect is he foresaw the death of other road users as a substantial and real possibility yet volitionally and deliberately embarked on a most dangerous course of driving fully alive to the possible consequences to other road users. That came to fruition, on these facts he should not be able to escape the consequences of his action because he foresaw that he might be killed also.

[205] The appellant in Humphreys foresaw the consequences only in terms of himself and his passengers, and as he had previously successfully completed the manoeuvre believed the harm would not occur.

In S v Dlamini the Supreme Court of Appeal held that “once it is inferred that the accused subjectively foresaw the real, reasonable or substantial possibility of death occurring then credibility is stretched beyond braking point where the accused denies that he accepts that death would ensue”.

[64] The fundamental difference in the two matters is that the accused in this matter did not have any reason to believe that the foreseen harm would not occur. His own evidence is that he saw the harm occurring as a real and substantial possibility. The only conclusion that can be drawn is that he reconciled himself with that substantial possibility.[65]

 [209]   In para 209 of Siyaya case envisaged by Beck CJ in S v Mncunzae the court said,” the driver of a motor-vehicle is in charge of an instrument that is as lethal as a firearm if it is not handled with proper care”.[66]

In th SCA OF HUMPRYES case the court further eluded  all the victims were passengers in the vehicle driven by the appellant,  he chose to take a risk in the sense that he dangerously sought to ‘race and beat’ a large train through a railway crossing. A course of action he had successfully completed before as he knew the time that the train ordinarily took to reach the crossing.  Further all the victims when one compares the two ‘vehicles’ involved in such a scenario, as it transpired, were likely to be, or more probable than not likely to come from his own vehicle.

[202]   The principle might similarly apply where the accused is driving a normal vehicle and is just as likely to kill himself as the occupants of the approaching vehicle a court would have some difficulty in coming to the conclusion that he had in fact reconciled himself to the possibility of the collision occurring as this would imply he was prepared to commit suicide[63]. This is particularly so where there is no other realistic danger to other road users at the time.

This is not the case in this matter. And considering the reasons eluded in Humphreys case; this court agrees that there was no evidence that accused; Dippenaar was suicidal, but what is different in this matter from accused case is that the victims are not only from the accused vehicle, but also from the other vehicle. The accused took extremely dangerous maneuvers in the face if oncoming vehicles. It is the opinion of the court he took risk immaterial as to what the consequence would be and that he reconciled himself with the possible consequences.

In the Humphreys case it was testified that accused successfully completed the same maneuver at the same location on more than one occasion and it can be inferred that is possible to cross the line without a collision. It however cannot be argued the same in this matter at hand as in the Humphreys case; that acc did overtake on a blind rise at the same place; at high speed in the face of upcoming traffic; while his vision was obscured and that he succeeded before. Instead, it can be argued that the accused driving maneuver was highly reckless under the circumstances and was immaterial to the consequences.

In the matter at hand there was no guarantee that there will not be vehicles on the other side; there was no guarantee that a collision will not occur. It can however be inferred that a collision was highly probable in case of a collision in the circumstances. 

The court is of the opinion that in the light of the circumstances accused subjectively must have foreseen that overtaking in the circumstances that there is a high probably of a collision in which death may ensue and irrespective of the consequences took the bargain immaterial of the unlawful consequences of death to his passengers as well as the passengers of the other vehicle and he reconciled him with the consequences. Accused main aim was not the collision per se; his main aim was to overtake several vehicles at once and overtook on a blind rise in an illegal and risky manner. It can be inferred from the evidence that accused did not desire to bring about the death of the passengers in this vehicle, but he desire to take reckless risks causing the death by his unlawful actions

Accused took an unrealistic risky chance by overtaking at a high speed on a blind rise; while he could not see whether vehicles were approaching; in the hope that there were no oncoming vehicles and in the hope that he would succeed his risky maneuver knowing that a collision is a real possibility.

It will be unavoidable to not to infer that the manner in which accused drove by overtaking several vehicles on a salt road at high speed over a blind rise that he could not have appreciated the possibility of a collision in which serious injuries or death could occur whether in his own vehicle or in a head on collision

It is the opinion of this court that although it could not be shown that accused desire to endanger himself; does not apply because he subjectively foreseen the death of not only his own passengers but also that of the other driver and his passengers and accused did reconcile himself with the possibility when he went on his risky overtaking maneuver.  

It’s the opinion of the court that accused consciously and deliberately took risks; in the foresight of real possibility that an accident can occur and it was highly probable in case of a collision people may be injured seriously or die.

In the matter Director of Public Prosecutions, Gauteng v Oscar Pistorius the following was stated:

“Dolus eventualis arises if the perpetrator foresees the risk of death occurring, but nevertheless continues to act appreciating that death might well occur. Significantly, the wrongdoer does not have to foresee death as a probable consequence of his actions. It is sufficient that the possibility of death is foreseen, and is coupled with a disregard of that consequence.

On the first question of law, it had to be determined whether the trial court properly applied the above principles to the facts that it had found had been proved. The trial court questioned how the respondent could reasonably have foreseen that the shots he fired would kill the deceased or whoever was behind the door. The Supreme Court held that the trial court’s question wrongly applied an objective rather than a subjective approach to the question of dolus. The issue was not what was reasonably foreseeable when the respondent fired at the toilet door, but whether he actually foresaw that death might occur when he did so. Thus, the critical distinction was between subject foresight (what actually went on in the mind of the accused) and objective foreseeability (what would have gone on in the mind of a reasonable person in the position of the accused). That distinction must not be blurred. The Supreme Court held that the trial court’s conclusion that the respondent had not foreseen the possibility of death occurring as he had not had the direct intent to kill stemmed from the application of the incorrect test

The conclusion was that the conviction and sentence for culpable homicide were set aside and replaced with a conviction of murder.

The Supreme Court of Appeal held that ‘the possibility of death is foreseen which, coupled with a disregard of that consequence, is sufficient to constitute the necessary criminal intent.’

Therefore, to him it is immaterial whether death results from his actions,17 and he does not allow the possibility of killing another human being to deter him from proceeding. In other words, he consciously accepted the risk.18

There is rarely direct evidence of the existence of the conative component and, therefore, it is inferred from the accused’s deliberation and preparation, together with a failure to render assistance.

19 An array of terminology exists for describing the conative component. Some judgments refer to the conative component as ‘insensitive recklessness’ or ‘callous indifference’.

However, the accused’s feelings toward the risk is irrelevant when determining the conative component, and it is immaterial whether the accused hoped that the risk would not materialise.21

 What matters is that the accused consciously proceeded to take the risk.

This above is applicable to the matter at hand.

Accused testified that he is a rally race driver since the age of 17yrs and a champion in oval race driving. He has vast experience in highspeed thrills and excitement; irrespective of the safety his own life. He is quite well acquitted with the consequences when he collides at a high speed or lose control over his vehicle in one of his risky maneuvers.

Considering the totality of the evidence; accused driving maneuver and actions not only on this road; but also earlier the day; the only inference the court could draw that its quite clear that accused must have foreseen that continuing on this dangerous embark could lead to fatal injuries and consequences;  he took risks; he continued to bargain the life’s of his passengers; and that of other road users irrespective of the consequences and that he felt immaterial as to the consequences knowing as stated above that a vehicle if not handled with the necessary care is a lethal weapon.

The court is of the opinion that the accused with his background in car racing; thrilled by speed went beyond conscious negligence and when he speed on this road like it was a racetrack; he overtook several vehicles at a high speed; went over a hill in the face of oncoming vehicles where he visibility was obscured; on the wrong side of the road; and seeing the Ford Ranger in front of him; tried to move back to his own lane which unfortunately had dire consequences.

It is clear from the evidence presented that accused went over the hill at high speed in the right lane; which was his wrong lane; the accused tried to move back to his own lane but was not in control; the driver of the Ford found himself in sudden emergency and tried to avoid the accident but could not and they collided at an angle close to the middle in left lane; the lane of driving of the Ford Ranger.

On the accused submission that the Ford caused the collusion because when Ford saw accused in his lane he should have just continued straight in his lane and accused would have returned to his correct lane – it the opinion of the court that it is evident that because the accused appeared in the lane of the Ford Ranger that the Ford Ranger attempted to avoid the accident as testified by Ms. Joschko, but could unfortunately not because there was no time and space and a second later was the collision

It is the opinion of this court that; if it was not for the acc actions this fatal collision would not have happened.

Burchell and Hunt submitted that where the accused foresaw harm as a real possibility but nevertheless persisted in their conduct, they consciously took the risk of it happening and therefore possessed dolus eventualis.

In S v Beukes,54 the Appellate Division held that it is highly unlikely that an accused will admit to or it will be proved that he foresaw a remote consequence and that it needs to be established that it was reasonably possible that harm would ensue.

The court is off the opinion considering the evidence of the eyewitnesses; considering the real evidence the only inference they could draw is that accused must have foresaw the consequences of his actions and irrespective of the consequences he bargained and reconciled himself with the consequences/

The court is of the opinion that the state did proof the 2^nd component  of the test for dolus eventualis.

Considering the inconsiderate driving of the accused not only on the salt road, but also the road between Walvisbay earlier the day; the callous driving maneuvers on not one occasion but on several occasions; driving almost off the road; driving zig zag due high speed and losing control over vehicle; going over a blind rise at high speed on the wrong side of the road; that acc was reckless; bargained and the life of the others and other road users; immaterial to what the consequences could be

In conclusion the court also want to refer to the matter of Maarohanye and another vs the State (A 378/2013) -SACR 337 delivered in South Africa High Court, Gauteng, Johannesburg on 8 October 2014.

19] What we see is that the law, like life, is at times complicated and more nuanced than we would like it to be.  Dolus eventualis, it seems, is not amenable to containment within a simple formula, the facts of the matter have a lot to do with the ultimate conclusion at the end of the day. All we can say is that the strongest case for dolus eventualis is likely to be found where there is foresight of a substantial possibility of causing the result in question; where the activity is part of an overtly dangerous and unlawful enterprise, and where the accused is uncaring about whether the victim lives or dies as a result of his conduct. On the other hand, the weakest case will tend to be where there is foresight of only a slight possibility of death; and where the accused strongly hopes that life will not be lost in consequence of his conduct and has taken considerable care to ensure that the risk is eliminated. It is, obviously, not easy to state with certainty precisely where the dividing point on this line will be, the facts of each case should provide the key. But, in Humphreys, at least, it is clear, as found by the Appeal Court that the requirements for dolus eventualis were not met: the accused was engaged in a dangerous activity and carried it out in a manner which was grossly negligent but a murder conviction could not be countenanced considering the facts in that matter. This is not to say that there can never be situations where fatal collisions involve dolus eventualis.

Considering the version of the accused as already stated the accused defense is that he cannot recall what happened during those fatal moments.

But quite strangely when accused was confronted with the versions of the state witnesses; on all his response he said he does not believe he would have acted or drove in the way they alleges; he does not believe he would have speeded in the light of the circumstances; he does not believe that he would have overtaken where it was not safe; he would not have reason to lose control

If the accused version is to be believed that he could not recall what happened during the collision; one should have expected that the accused would have been honest; clear and direct and would have responded by telling the court on all these allegations that he was not able to respond because he simply can’t recall. 

In conclusion the court wants to refer to the matter of Rooi v State (CA 115/2013) [2014] NAHCMD 281 (26 September 2014).

In S v Singh 1975 (1) SA 227 (N) the court discussed the approach of a court where there is a conflict of fact.  The learned judge says the following at page 228 F – H:

“It would perhaps be wise to repeat once again how a court ought to approach a criminal case on fact where there is a conflict of fact between the evidence of the state witnesses and that of an accused.  It is quite impermissible to approach such a case thus:  because the court is satisfied as to the reliability and the credibility of the state witness that, therefore the defence witnesses, including the accused, must be rejected.  The proper approach in a case such as this is for the court to apply its mind not only to the merits and the demerits of the state and the defence witnesses but also to probabilities of the case.  It is only after so applying its mind that a court would be justified in reaching a conclusion as to whether the guilt of an accused has been established beyond all reasonable doubt.” 

Considering the real evidence; the credibility of the state witnesses and reliability of their evidence; the version of the acc considering the merits and demerits; the probabilities of this case the court is satisfied that:

That the accused speeded on more than one occasion a salt dry uneven road; drove totally callously recklessly; immaterial to the consequence; consciously reconciled himself with the consequences and that the acc is the sole cause of this fatal accident.

The court is satisfied that the state on count 4 – 9 did proof beyond reasonable doubt murder with legal intent in the form of dolus eventualus.

The court is satisfied that the state did proof its case beyond reasonable doubt on count 1 (main)- and count 3.

The court finds accused guilty to count 1(main)-reckless driving; count 3 and count 4 to 9 guilty.

Date: 20 June 2024

G.R. Poulton

Regional Court Magistrate

.

---

[1] R v Steyn 1954 (1) SA 324 (A) at 335G-H.

[2] S v Bruiners en ‘n Ander 1998 (2) SACR 432 (SEC).

[3] S v Mafaladiso en Andere 2003 (1) SACR 583 (SCA).

[4] S v Unengu 2015 (3) NR 777 (HC).

[8] PriceWaterhouseCoopers Inc & Others v National Potato Co-operative Ltd & Another (451/12) [2015] ZASCA 2 (4 March 2015)

[9] Gentiruco AG v Firestone SA (Pty) Ltd 1972 (1) SA 589 (AD) at 616H. This statement it derived from Wigmore on Principles of Evidence (3 ed) Vol VII para 1923.

[10] Coopers (South Africa) (Pty) Ltd v Deutsche Gesellschaft für Schädlingsbekämpfung MBH 1976 (3) SA 352 (A) at 370G-H.

[11] Ikarian Reefer at 371F-H.

[12] National Justice Compania Naviera SA v Prudential Assurance Co Ltd (‘The Ikarian Reefer’) [1993] 2 Lloyd’s Rep 68 [QB (Com Ct)] at 81 – 82. Approved in Pasquale Della Gatta, MV; MV Filippo Lembo; Imperial Marine Co v Deiulemar Compagnia Di Navigazione Spa 2012 (1) SA 58 (SCA) para 27, fn 12 and Schneider NO and Another v AA and Another 2010 (5) SA 203 (WCC) at 211E-I.

[13] Stock v Stock 1981 (3) SA 1280 (A) at 1296 E-G. See also Jacobs and Another v Transnet Ltd t/a Metrorail and Another 2015 (1) SA 139 (SCA) para 15.

[14] Supra, fn 5. The judgment is one for the clarity of which I can only express admiration. It was upheld on appeal on all major issues. Wightman v. Widdrington (Succession de) 2013 QCCA 1187 (CanLII). An application for leave to appeal to the Supreme Court of Canada was dismissed. Elliot C. Wightman, et al. v. Estate of Peter N. Widdrington, 2014 CanLII 341 (SCC).

[15] 1984 (4) SA 432 (E) p 436-437A.

^[16] PMA Hunt and JRL Milton South African Criminal Law and Procedure- Common Law Crimes 2ed 1990 at 340 – 341.

[17] S v van As 1967 (4) SA 594 (AD).

^[18] CR Snyman Criminal Law 5 ed (2008).

[19] CR Snyman above at 155.

^[20] S v Humphreys 2013 (2) SACR 1 (SCA) (2015 (1) SA 491; [2013] ZASCA 20) paras 12 – 17.

[21] Cooper Motor Law Juta & Co Ltd 1982 Vol 1. P 521.

^[22] Director of Public Prosecutions, Gauteng v Pistorius 2016 (1) SACR 431 (SCA) (2016 (2) SA 317; [2016] 1 All SA 346; [2015] ZASCA 204).

[23] Pollock on Torts 15^th ed 366, R v Sprenger 1920 EDL 313 at 317, R v Cawood 1944 GWLD 50. See to Stolzenberg v Lurie 1959 (2) SA 67 W at 74E.