Rethinking "fault" in motor vehicle accident liability in Namibia

Abstract

Abstract provided by author

The concept of fault is deep-seated within the existence of the food-web of third party compensatory model throughout the entire legal world, from the continental jurisdictions to common law jurisdictions. Present in the fault shell is its injustice encapsulated in a form of negligence which is translated into a principal legal requisite and a condictio sine qua non vis-à-vis a successful civil claim. Attendant to this is a fact that the bottom of this food web is the people, the ultimate contributor to, and assuror of the existence and sustenance of the compensatory model. The model which is so much structured so that it's very existence and its primary leg is levies contributed from fuel consumed by each and very vehicle in the country. Whereas, so much is the protégé of the people against the detrimental consequences of road accidents, the social legislation addressing the social problems imposes legal hurdles upon the very people it is meant to put out dilemma. This dilemma is one which requires a claimant through conventionally established, but complicated rules and principles of law of delict, to prove that driver of the vehicle in question has failed the standards legally required of him to observe and that due to such a failure, the accident had occurred. The decisive question is, but for the negligence or other unlawful act, would the accident had occurred? Affirmation results in a positive claim; whereas and unfortunately, non-affirmation produces a negative result. And largely such latter cases are those only rarely attributable to human factors, but factors which I may extremely call vis maior. Cases of this kind occur without a human contribution to it. Innocent cases and innocent victims indeed. Consequently, since circumstances of road accidents are far removed from the equation of a human factor, the victims fall back into their own predicament. A bird's-eye-view to this quandary is positively identified as a strict adherence to the conventional delictual principles. Is there an alternative? The no-fault compensatory model is a probable surgical remedy to this dilemma facing, in case of Namibia, the socially disadvantaged, the unresourced, and the economically disadvantaged. The involvement of government in a compensation of roads victims justifies the social justice test, which of course, had failed. Road accidents victims in terms of the no-fault reform would "receive the benefit" regardless of their level and degree of fault.