[14]
On her part, Ms Rakow mounted a two-prong response to the appellant’s counsel’s argument
based on the Constitution: one is a preliminary objection based on procedure; the other is on the merits. The procedural objection
is that since the matter that this Court is seized with is a criminal appeal, then in terms of rule 67 of the Magistrate’s
Court Rules, the appellant ought to have included the constitutional issue in the appellant’s grounds on which the appeal is
based by applying to the Court for leave to amend the grounds that he filed on 30 September 2004. I agree with Ms Rakow: if the appellant
wished to raise the constitutional issue he ought to have included the issue in his grounds of appeal. In my opinion, the relief
sought by the appellant is in essence a stay of proceedings, which is a form of relief recognized by the common law in both civil
and criminal proceedings. The purpose of the appellant’s application is to obtain relief against conviction and sentence on the ground that the appeal
had not been heard in a reasonable time within the meaning of Article 12 (1) (b) of the Namibian Constitution. That being so, in
my view, the application is substantially of a criminal nature, and, therefore, subject to rule 67 of the Rules of the Magistrate’s Courts as aforesaid, for it cannot be said that simply
because a fair trial is guaranteed by the Namibian Constitution the present appeal proceedings are “converted from criminal
to civil.” “It is not the form of the procedure used,” it has been said, “which matters so much as the nature and substance
of the application itself.” The result is that, in my view, Ms Rakow’s argument that the application, as it stands, is not properly before the Court and,
therefore, must be dismissed is well founded. In the result the appellant’s application is dismissed.
[15]
I now proceed to deal with the appeal on the merits. I understood both counsel to have submitted that
despite the failed attempt to reconstruct the record by filling in all the gaps so as to retrieve parts of the evidence that were
not recorded, there was sufficient material before this Court to enable it to deal with the appeal on the merits. Taking the entire
record of proceedings together with the learned magistrate’s “REASONS FOR JUDGMENT AND SENTENCE” that were compiled
when the memory of the learned magistrate was fairly fresh, I did not think any injustice would be occasioned to the State or the
appellant if I heard the appeal. I, therefore, decided that in the interest of avoiding further postponement, it was desirable that the appeal was heard because,
more important, the record was sufficient, in my opinion, to show the tenor of evidence at the trial.
[16]
In considering the appeal, I shall, however, not take cognisance of the contents of the so-called “An
Affidavit” by the learned magistrate purported to contain reconstructed portions of certain parts of the record. My reasons
for so deciding are as follows. First, neither Mr. Narib nor the appellant contributed to the reconstruction of the record, albeit
their contribution was not only necessary but also crucial. Second, it was highly desirable that the magistrate’s court either orally or on affidavit heard evidence from the witness or
witnesses whose evidence was inaudible, but this was not done.
[17]
The record shows that at the commencement of the trial Mr. Narib raised an objection to the charge. He
relied on s. 85 (1) (d) of the Criminal Procedure Act 1977 (the CPA). Mr. Narib and the learned prosecutor at the trial made submissions on the objection. At the close of their submissions, the learned
magistrate purported to order an amendment of the charge by the excision of the phrase “or anything to that effect”,
which appears in the further particulars that the prosecution furnished to the appellant in terms of s. 87 of the CPA: “AD
PARAGRAPH 1. The accused was reckless or negligent hence he drove through a red robot and as a result collided with a motor vehicle
with registration No. N71933W or anything to that effect, and or he bumped or hit a pedestrian or anything to that effect.”
I agree with Mr. Narib that the phrase tends to obfuscate the issue; or, at best, it is meaningless. But, contrary to the learned
magistrate’s view, the court’s order to expunge the phrase from the further particulars can hardly be taken as having
amended the charge: the confusing phrase does not even appear in the “particulars of charge” in the summons.
[18]
The learned magistrate might have been confused by certain words in the appellant’s counsel’s
notice in terms of s. 85 (1) of the CPA, namely, “Accused further objects to the charge as supplemented by the further particulars
…” With the greatest respect, further particulars do not amend charges: the purpose of further particulars is to enable
the accused to know the case that is proposed to be made against him or her and thus enable him or her to prepare his or her defence.
[19]
Thus, of the view which I take of the excision of the phrase “or anything to that effect”
contained in the further particulars and the decision of the learned magistrate related thereto, I have come to the conclusion that
the charge remained as it was formulated in the “SUMMONS IN CRIMINAL CASE”, which forms part of the record in this matter,
and which I have paraphrased at the beginning of this judgment. And as the learned magistrate stated, what remained to be done was
for the prosecution to prove that the appellant was negligent or reckless when he allegedly drove his vehicle through the intersection
whereby the vehicle collided with the vehicle driven by the complainant. The further particulars only explained, or gave particulars,
as to why the State alleges that the appellant drove negligently or recklessly within the meaning of s. 80 of the Act. I will return
to the further particulars in due course.
[20]
The case of the State, as I see it, is briefly as follows. The complainant, who was the second prosecution
witness at the trial, testified that when he was entering the intersection the traffic lights facing him were red, and so he stopped
on the stop line and only drove off in an easterly direction after the traffic lights had turned green in his favour. According to
him his vehicle was the only one travelling in the easterly direction towards Klein Windhoek at the time. He testified further that
the appellant who was driving northwards from the south drove past a vehicle that had stopped at the stop line at the intersection
because traffic, of which the appellant’s vehicle was a part, travelling in that line was facing the red traffic lights. Thus,
according to the complainant, the appellent drove through the intersection although the green traffic lights were not in his favour.
The complainant’s vehicle suffered a slight damage to its left headlight and the left side of the frontal grill, and the appellant’s
a slight scratch around the left rear mudguard and the left end of the rear bumper.
[21]
The complainant testified further that the appellant’s vehicle was travelling faster than 50 kph
that was why after the vehicle had bumped his vehicle, the appellant’s vehicle only came to a stop after it had mounted a pavement
and hit a wall, that was some meters away from the point of impact. It is, therefore, part of the prosecution’s case that the
appellant’s vehicle only came to stop some 50 meters away from close to the northern stop line on Robert Mugabe Avenue at the
intersection after it had mounted a pavement, broken through some steel railings and hit a wall to which the steel railings were
affixed because the complainant was driving at some considerable speed.
[22]
The appellant’s defence was also essentially the following. He was driving in the first lane, travelling
from the south in a northern direction as he approached the intersection. According to his testimony, the traffic lights were green
in his favour so he proceeded through the intersection. As he exited the intersection, he heard “a bang on his vehicle,”
which at first he mistook to be the noise of a tyre burst. He tried to control his vehicle, which was swerving to his right. In doing
so, his vehicle hit a pedestrian slightly and ended hitting a wall after mounting a pavement and breaking through steel railings
affixed to the wall. In his evidence-in-chief, the appellant sought to show that it was the complainant’s vehicle that bumped
into his vehicle as he exited the intersection. I will return to this evidence in due course. The appellant testified further that
his vehicle, which was a Namibia Police vehicle, was written off as a result of hitting the wall.
[23]
Thus, in my respectful view, what the prosecution had to prove beyond reasonable doubt in the court below
was this: did the appellant drive his motor vehicle (Registration Number POL 4386) recklessly or negligently at the intersection,
and thereby collide with another motor vehicle (Registration Number N71933W, driven by Martin Ndakaloko, the complainant) in contravention
of s. 80 (1), as read with ss. 1 and 80 (2) and (3), of the Act? As I have shown previously, that was also the view of the learned
magistrate. And as far as the court below was concerned, the prosecution had proved its case.
[24]
What is before this Court is an appeal launched by the appellant, and, therefore, the burden is solely
the appellant’s to persuade the Court to quash the conviction and set aside the sentence based on the grounds that he has filed.
In Willy Harold Hendricks and Thadeus A. Mutota Sheweda v The State, I had this to say concerning an appellate court’s power to interfere with the factual findings and findings on credibility
of the trial court:
It has been held that an appellate court’s power to interfere with the factual findings and findings on credibility of the trial
court are limited [Rex v Dhlumayo and another 1948 (2) SA 677 at 696; S v Gey van Pittius and another 1990 NR 35 at 40.] O’Linn, J put the principle succinctly thus in S v Slinger: “Where no irregularities or misdirections are proved or
apparent from the record, the Court of Appeal will normally not reject findings of credibility by the trial court and will usually
proceed on the factual basis as found by the trial court.” [1994 NR 9 at 10E] The learned Judge proceeded, “It is trite law that the function to decide on acceptance or rejection of evidence, falls primarily
within the domain of the trial court.” [ Slinger, supra, loc. cit.]
That is the manner in which I approach this appeal.
[25]
In his submission, Mr. Narib argued ad nauseum that the issue in the case is not a question of speed but that the appellant drove through the intersection when the traffic lights
facing him were red and, therefore, against vehicles, including the appellant’s, travelling from the east to the west at that
intersection. This argument sought to counter the prosecution’s averment that the appellant drove through the intersection,
even when he did not have the right of way, at such high speed (i.e. over 50 kph) that after his vehicle had collided with the complainant’s
he drove for some 50 meters, unable to bring his vehicle to a stop, until it was stopped by a wall, and only after the vehicle had
mounted a pavement and broken through steel railings affixed to the wall.
[26]
I do not think the prosecution’s contention about the speed at which the appellant drove is meant
to change or embellish the charge or to deflect the issue to be decided by this Court. The prosecution’s contention is based
on facts – facts, which, in my respectful opinion, cannot be controverted and, therefore, this Court cannot close its eyes
to because they form part of the res gestae, and, therefore, relevant. The relevance of the contention looms large if regard is had to the following facts, which are apparent on the record: The complainant’s
vehicle was travelling at a very low speed, almost coming to a standstill at the point of impact of the two vehicles. The reason
is that the complainant’s vehicle had just moved from the western stop line on Sam Nujoma Drive at the intersection and had
only travelled a distance equivalent to the width of the first lane of Robert Mugabe Avenue (see photo 1). The complainant applied
his brakes slightly, going by the slight brake marks his vehicle made on the road below the point of impact, and the appellant’s
vehicle “went pass it”, sustaining only a superficial abrasion to the left mudguard and the left end of the rear bumper.
The appellant was unable – tried as he did – to control his vehicle after being bumped slightly by the complainant’s
car, as aforesaid. The appellant’s testimony that he was travelling around 50 kph cannot reasonably possibly be true. From
the foregoing, I find that the respondent drove through the intersection at some considerable speed.
[27]
In this connection, with the greatest respect, I fail to see the relevance of the principle of sudden
emergency relied on by Mr. Narib; neither do I see on what basis the principle applies to the facts of this case. In any case, the
appellant, in my view, created the emergency and he cannot, therefore, be allowed to rely on the principle of sudden emergency to
escape the direct and reasonable consequences of his actions. I am fortified in this view by the following succinct statements by
Cooper. In his authoritative work Delictual Liability in Motor Law he states, “… an emergency due to a driver’s own negligence cannot avail him.” And in his Motor Law, he writes: “Driving is an operation which requires care, skill and courage, and a driver cannot be excused if his judgment
or courage without justification fails him at the very moment when these qualities are most required to avert accident or disaster.”
[28]
I now turn to deal with a central issue in this matter, namely, of the two drivers, i.e. the appellant
and the complainant, who had the right of way at the intersection, that is in whose favour were the green traffic lights? As mentioned
above, the appellant testified that the green traffic lights were in his favour; the complainant testified contrariwise. It is significant
to note that in her judgment, the learned magistrate was very much alive to the fact that the two accounts were mutually destructive
to each other, and, therefore, had to proceed with caution. On this point it was said in S v Singh:
The proper approach in a case such as this is for the Court to apply its mind not only to the merits and demerits of the State and
the defence witnesses but also to the 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.
And in S v Ipeleng, Mahomed, J (as he then was) said, “What still needs to be examined is whether there is a reasonable possibility that the evidence
of the appellant might be true.” This Court in S v Appelgrein, S v Engelbrecht and S v Petrus approved these principles.
[29]
The golden thread that appears clearly visible in the fabric of these cases is this: where in evidence
a court is presented with two versions that are mutually destructive to each other, the court must have a good reason for rejecting
one and accepting the other by applying its mind to the intrinsic merits and demerits of each version and the probabilities of the
case.
[30]
In Appelgrein, supra, having found that the evidence of both the appellant and complainant was not fairly and adequately put before the court a quo for that court to reach a proper assessment of the credibility of the complainant and the appellant, this Court concluded that the
learned magistrate had committed an irregularity. That is not the situation in the present case; for in the present case, the evidence
of both the complainant and the appellant was adequately and not only fairly, but also reasonably, put before the court. The record
supports the correctness of this view. A fortiori, unlike in Appelgrein, in casu, counsel, as I mentioned previously, represented the appellant in the court below. Then in Engelbrecht, this Court found that there were not sufficient grounds to enable the learned magistrate to hold that the complainant’s version
was true and that of the accused false. That is also not the situation in the present case. And in Petrus the Court stated that the magistrate’s court ought to have had good reason to be satisfied that complainant’s account
was the true one. This Court did not see any good reason and so set aside the conviction and sentence. In the present case, unlike
in Petrus, the learned magistrate found – and I have no good reason to reject the factual findings there were good reasons to accept
the complainant’s account as true.
[31]
I have given considerable thought to the learned magistrate’s judgment and the reasons therefor.
Having done so, I have come to the irrefragable conclusion that she did apply her mind to the essential merits and demerits of the
evidence of the complainant and that of the appellant and the probabilities of the case before accepting the evidence of the appellant.
[32]
From the record I find that if the traffic lights at the intersection were green in favour of the appellant,
the other vehicle on Robert Mugabe Avenue, like the appellant’s, would not have stopped at the stop line to give way to traffic
passing on Sam Nujoma Drive. In this connection, there is sufficient and credible evidence that the appellant recklessly drove past
that vehicle that was waiting at the stop line on Robert Mugabe Avenue because that vehicle, like the appellant’s, was facing
the red traffic lights. The appellant’s vehicle thereafter mounted a pavement and broke through steel railings affixed to a
wall, and was only stopped by this wall, which stands at about 50 metres from the point of impact of the two vehicles.
[33]
In my opinion, the following evidence is also significant and crucial; it has probative value, for it
goes to support in a material way the truth of the complainant’s account. According to the complainant, after the collision,
he alighted from his vehicle, approached the appellant and asked him, “…why he drove through the red traffic light.”
The appellant’s response was that he “did not drive through a red light.” Thereafter, the record reads: “I
(i.e. the complainant) then informed him that if he did not drive through red traffic lights, then the accident wouldn’t have
occurred.” The appellant had no reply to this forthright accusation. The complainant continued, “He was just arguing
there and with the victim who was bumped.” Incidentally, before the appellant’s vehicle broke through the steel railings
as aforementioned, it bumped a pedestrian on the shoulder of Robert Mugabe Avenue.
[34]
In the light of the totality of evidence, I cannot fault the facts found by the magistrate and her rejection
of the appellant’s account. In my opinion, the appellant’s account cannot reasonably possibly be true. I am satisfied
that the appellant’s version was proved to be false beyond reasonable doubt: the totality of evidence supports this view. It,
therefore, follows as a matter of inexorable logic that Mr. Narib’s rearguard submission that there was no evidence that the
traffic lights were synchronized at the material time is without substance.
[35]
But Mr. Narib submitted that the learned magistrate ought to have approached “the evidence of the
complainant with the necessary caution.” As I see it, Mr. Narib’s submission is based on two grounds. The first is that
the complainant was evasive, argumentative and at times gave unsolicited lectures on rules of the road. In support of his argument,
counsel referred the Court to
.RTF of original document