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[2021] ZAECPEHC 3
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De Pontes v Kegge (1773/2018) [2021] ZAECPEHC 3 (26 January 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH
Case No.:
1773/2018
Date Heard:
25 August 2020
Date
Delivered:
26 January 2021
In
the matter between:
GERALD
DE
PONTES
Plaintiff
and
STEPHEN
KEGGE
Defendant
JUDGMENT
RONAASEN
AJ:
Introduction
[1]
On Sunday, 25 June 2017, at approximately
6:00, the plaintiff, while driving on the Seaview Road (“the
road”), collided
with a horse (“the horse”) (“the
collision”). The plaintiff suffered bodily injuries as a
result
of the collision and the horse, because of the injuries it
sustained in the collision, had to be destroyed.
[2]
The collision gave rise to a claim by the
plaintiff against the defendant, the owner of the horse, for payment
of damages he allegedly
suffered as result of being injured in the
collision. The defendant, in turn, instituted a claim in
reconvention against
the plaintiff for the damages he allegedly
suffered as a result of the horse being killed.
[3]
At the commencement of the proceedings I
made an order by agreement between the parties in terms of which I
was only required to
determine the liability of the parties to each
other for any damages they may have suffered as result of the
collision (“the
separation order”). It was agreed
that the question of the extent of any such damages would stand over
for later determination.
The pleadings
[4]
The plaintiff pleaded, in the following
terms, in paragraph 6 of the particulars of claim, that the defendant
owed him a duty of
care:
“
6.1.
The defendant kept the aforesaid horse on the aforesaid property at
all material times;
6.2.
The aforesaid property is located next to a busy road;
6.3.
The defendant was under a duty of care to members of the public,
including the plaintiff, to take reasonable
steps to prevent horses
from escaping from the aforesaid property and gaining access to the
public road concerned.”
[5]
The defendant, initially, in his plea
denied the existence of the alleged duty of care, but, prior to the
commencement of the trial,
admitted that he owed the plaintiff a duty
of care in the circumstances foreshadowed in paragraph 6 of the
particulars of claim.
[6]
What was in issue between the parties was
whether the defendant had breached the duty of care in the manner
alleged by the plaintiff
in paragraph 7 of the particulars of claim,
as follows:
“
7.
The aforesaid collision was caused wrongfully and negligently by the
defendant in one
of more of the following respects:
7.1.
He failed to take reasonable steps to prevent the aforesaid horse
from escaping
from the aforesaid property;
7.2.
He failed to take reasonable steps to prevent the aforesaid horse
having access
to a public road, i.e. Seaview Road;
7.3.
Without derogating from the generality of the aforesaid, he failed to
take
one or more or all of the following reasonable steps:
7.3.1.
Installing spring loaded gates, alternatively gates that would
automatically close if left open;
7.3.2.
He failed to lock the gates to the aforesaid property;
7.3.3.
He failed to pen the aforesaid horse at night in a secure paddock;
7.3.4.
He failed to install double gates that would prevent horses from
escaping if one gate were left open.”
[7]
The defendant met the plaintiff’s
averments of a negligent breach of the duty of care in the following
terms in paragraph
8 of his plea:
“
8.
AD PARAGRAPH 7
8.1.
The contents hereof, including sub-paragraphs, are denied as if
specifically
traversed;
8.2.
It is specifically pleaded that the collision was occasioned solely
by the
negligence of Plaintiff who was negligent in one of the
following respects:
8.2.1.
He failed to observe the horse present on the trafficable surface of
the tar road when, by exercise of reasonable
care, he would have done
so;
8.2.2.
He failed to keep a proper lookout;
8.2.3.
He failed to apply his brakes timeously or at all;
8.2.4.
He failed to exercise proper or adequate control over his motor
vehicle;
8.2.5
He drove the motor vehicle at an excessive speed in the
circumstances;
8.2.6.
He failed to avoid a collision when, by the exercise of reasonable
care and skill, he could and should have done
so; and
8.2.7.
He failed to take cognisance of the fact that he was driving through
a sumi-rural / agricultural area where he
could and should have
expected that from time to time stray animals might be present on the
public road, when, by exercise of reasonable
care, he could and
should have done so.
8.3.
In the event of it being held by the above Honourable Court that the
Defendant was negligent,
which is still denied, then and in that
event the Defendant denies that his negligence was the cause of the
collision. The
collision was caused by the negligence of the
Plaintiff. Particulars of the Plaintiff’s negligence are
set out in sub-paragraph
8.2 above;
8.4.
In the event of it being held by the above Honourable Court that the
Defendant was negligent
and that his negligence was a cause of the
collision, all of which is still denied, then and in that event the
Defendant avers
that the Plaintiff was also negligent and that his
negligence contributed to the collision. Particulars of the
Plaintiff’s
negligence are set out in sub-paragraph 8.2 above.”
[8]
The defendant’s claim in reconvention
was founded on the same allegations of negligence set out in the
preceding paragraph
and was met by the plaintiff by way of a general
denial, alternatively, a denial that any negligence which could be
attributed
to the plaintiff contributed to the cause of the
collision, further alternatively, that in the event of his negligence
being causally
linked to the collision, the defendant’s
negligent breach of the duty of care as alleged in the particulars of
claim contributed
to the collision.
Summary
of the evidence – plaintiff’s case
The
plaintiff
[9]
On 25 June 2017, while driving on the road,
he was involved in a collision with the horse. He was
travelling from his then
home in Seaview, Port Elizabeth to the
Volkswagen factory in Uitenhage where he was due to do an
installation at the instance of
his employer, Brand Systems. He
travelled on this road for that purpose three to four times a week.
[10]
It was still dark prior to the collision
and misty conditions prevailed. The plaintiff noticed a vehicle
approaching from
the opposite direction which, according to him, was
travelling quite fast. He could not see the vehicle as it was
misty on
the road. The vehicle approached him as he was
travelling under the N2 freeway. He had set the speed control
of his
vehicle at between 60-70 kilometres per hour. He
estimated that visibility was between 100 hundred and 150 metres.
[11]
Just prior to the collision he saw an eye
before him. He did not see a horse. Next he woke up.
He saw that a breakdown
service had arrived on the scene and an
ambulance, which later transported him to hospital.
[12]
The approaching vehicle passed him and he
glanced at it. A few seconds later the impact occurred.
All he remembered
is seeing an eye in his face.
[13]
The plaintiff confirmed the location of the
defendant’s property adjacent to the Seaview Road with
reference to an aerial
photograph. He showed where his vehicle
had come to a stop with reference to a police plan, which indicated
the vehicle being
stationary adjacent and to the left of the centre
line in his lane of travel.
[14]
He was unable to start his vehicle.
He could not walk. There were people standing around but nobody
spoke to him.
Somebody did offer to help him make a phone
call. He could not really see as the left portion of his face
was “bashed
in”.
[15]
At one stage the plaintiff sat on the
bonnet of his vehicle. He was transported by ambulance to
Livingstone Hospital.
He did not move his vehicle
post-collision. The impact of the collision was visible on the
bonnet of the vehicle. The
windscreen was missing and a portion
of the roof was taken off. The post-collision photographs of
the vehicle were taken
at his home in Seaview. The photographs
show that the vehicle was also damaged towards the rear end on the
roof.
[16]
The plaintiff did not see the horse after
the impact.
[17]
The plaintiff visited the defendant’s
property approximately two weeks after the collision. In
accessing the property
he noticed that on the driveway, close to the
road there was no gate. There were horses in a fenced enclosure
the gate to
which was under a tree. The gate was secured by a
lock. He visited the defendant’s property on two
occasions.
[18]
The plaintiff, on his visits to the
defendant’s property, did not see the closing mechanism (i.e. a
chain and a carabiner)
on the gate depicted in the photograph below,
which is the gate leading to the fenced enclosure where the defendant
kept his horses:
[19]
At the time of his visits the gate to the
fenced enclosure housing the horses was closed by way of a chain and
a padlock.
[20]
The plaintiff in cross-examination
confirmed that he travelled a lot for his work. In 2015 he
lived in Port Elizabeth and
then moved to Seaview. He moved to
his current residential address after the collision.
[21]
He drove to Uitenhage three to four times
per week for work. Alternatively, he drove to Port Elizabeth.
He stated that
he knew the road well, having grown up in the area,
and confirmed that there had been extensive development in the area
around
the road over the years. There were many smallholdings
where animals were kept.
[22]
The plaintiff had to be at the Volkswagen
plant at 7:00 am in the morning. He was used to travelling the
road in darkness.
There were no streetlights on the road.
[23]
On the morning of the collision he had left
home at approximately 5:40/45. It was still dark at the time of
the collision
and patches of mist were visible. The lights of
his vehicle were on dim and he also had his fog lights on which
projected
for approximately 40/50 metres.
[24]
The trees on either side of the road were
set back from the verge.
[25]
In the plaintiff’s direction of
travel there was a kink in the road, which was clear at the time.
Just past the kink
near a place supplying pet food the plaintiff
heard an approaching vehicle. The approaching vehicle passed
him and approximately
5/10 seconds later he saw the eye and he hit
the horse. He was travelling at approximately 60/65 kilometres
per hour at the
time of the collision. It was put to him in
cross-examination that this meant he was travelling approximately 19
metres per
second and that in five seconds he would have travelled
100 metres. Thus, he should have seen the horse. He said
he
did not.
[26]
He impacted the horse with the centre of
his vehicle. He deduced that the horse must have been moving at
the time of impact.
It could have come from either side of the
road. He struck the horse on its left rear side, which is
confirmed by a photograph.
He saw the eye on his windscreen.
He was adamant that he did not see the horse prior to the collision
and that if it had
been standing still at the time of the collision
he would have seen it. It was put to him that he did not see
the horse as
he was not paying attention to the verges adjacent to
the road. He said that he had not expected to see animals on
the road.
[27]
It was further put to the plaintiff that
had he been driving slower and kept a proper lookout he would have
seen the horse.
By not slowing down he did not see the horse
and was accordingly not acting as a reasonable man. The verges
were open and
he should have seen the horse. It was also put to
him that he was not looking at the verges because he was paying
attention
to the approaching vehicle. These propositions were
denied by the plaintiff.
[28]
The plaintiff reiterated that he did not
see where the horse was coming from. He disagreed with the
proposition that as there
was a wide verge one should normally see
the horse. It was put to him that although the horse was brown
it had on a beige
blanket which should have been easier to see in the
dark.
[29]
It was put to the plaintiff that he was
driving at an excessive speed and that the impacted occurred after
the sound of whistling
tyres could be heard. He denied this and
said that the speed control on his vehicle had been activated.
[30]
The plaintiff confirmed that he was
interviewed by a detective on 7 July 20 217 who had minuted a
statement from him. In the
statement he had said that they were
no streetlights on the road but had made no mention of the speed
control being activated.
He stated that the oncoming vehicle
played no part in the collision.
Gail
de Pontes
[31]
She is the wife of the plaintiff. She
was notified of the collision by somebody on the scene and went
there.
[32]
On arrival she saw the BMW vehicle the
plaintiff had been driving and an ambulance on the side of the road.
She also saw the
horse, which she was told was to be shot. She
did not see a beige blanket on the horse.
[33]
She visited the defendant’s property
some two weeks after the collision. The defendant was there.
The defendant
was emotional, which was the result of the recent death
of his partner.
[34]
The defendant paid her for the vehicle,
less the value of the salvage in terms of a written agreement
concluded between them.
[35]
When there was an inspection of the
property in 2019 the gate depicted in the photograph at paragraph
[10] above was closed and
secured by a padlock. There was no
chain on the gate at the time of the inspection.
[36]
The witness said that she had approached
the defendant to pay her as she needed a vehicle. It was put to
her in cross-examination
that the defendant paid the witness as he
felt sorry for her
.
Summary
of the evidence - defendant’s case
The
defendant
[37]
The defendant identified the location of
his property with reference to aerial photographs.
[38]
He had recently moved to the area. He
had brough his horses onto the property three days prior to the
collision.
[39]
He identified the enclosed area where his
horses were kept with reference to an aerial photograph.
[40]
He acquired a chain and a carabiner and
secured the gate as shown on the photograph in paragraph [10] above.
The chain and
carabiner were fastened to the fence.
[41]
The horse that died in the collision was a
thoroughbred, which was brown with a white face and wore a beige
blanket.
[42]
The defendant’s horses were secured
in a fenced enclosure behind the gate depicted in the photograph
reproduced in paragraph
[10] above. The defendant on the
Saturday evening before the incident had left the property in the
afternoon and had secured
the gate with the use of the carabiner as
pictured in this photograph.
[43]
At 6:30 on the Sunday morning of 25 June
2017 the defendant was in Kragga Kamma and was called to the
property. He arrived
on the scene of the collision at
approximately 6:40/50. It was misty when he arrived.
[44]
The defendant had nowhere else to keep his
horse. He used a carabiner rather than a padlock.
[45]
He had paid the plaintiff’s wife for
the vehicle because he felt sorry for her.
[46]
The defendant conceded in cross-examination
that anyone could have opened the gate of the paddock where the
horses were kept.
He, furthermore, conceded that had he locked
the gate on the Saturday afternoon before the collision he would not
have lost his
horse.
Marie
Lamont
[47]
The witness, who was called as an expert,
trains and sells show-jumping horses and bridles at her property in
the area where the
collision occurred.
[48]
The entrance to her business is controlled
by a gate with a delay switch.
[49]
A horse would normally wander out of an
open gate. A horse could not itself open the gate if secured in
the manner shown in
the photograph reproduced in paragraph [10],
above. The horses has been adequately secured through the use
of the mechanism
in the photograph.
[50]
In cross-examination she confirmed that
humans leave gates open.
Kenneth
Brown
[51]
On the date of the collision the witness
was living on the defendant’s property in the double storey
house he identified with
reference to an aerial photograph.
[52]
In the mornings the witness was often
disturbed by annoying, loud tyre sounds emanating from the road.
[53]
The defendant had not been living on the
property for long at the time of the collision. When he moved
onto the property he
introduced himself and asked the witness to
supply him with garage doors for his house. He wanted his
existing doors replaced
and motorised.
[54]
The gate to the fenced off portion of the
property occupied by the defendant, where his horses were also kept,
was always secured
with a chain. The previous owner also used
the chain shown in the photographs reproduced in paragraph [10]
above. The
witness says he could always hear somebody opening
the gate as the chain securing the gate made a distinctive sound.
[55]
The defendant left the property the evening
before the collision. The witness remembers hearing him closing
the gate to the
fenced area where he lived and where the horses were
kept.
[56]
The witness went to bed on the Saturday
night before the collision at 22:00. Later that night the
witness and his partner
Carren were woken by the sound of an arriving
car and heard knocking on a window. Someone by the name of
Fransie, who had
previously lived on the property had knocked on
their lodger Vernon’s window. Vernon lived on the ground
floor of the
house the witness and his partner occupied.
[57]
Thereafter Vernon and Fransie went into the
fenced area where the defendant’s house was and where the
horses were kept.
They opened the gate. The witness saw
car lights before he went back to bed. Later he heard and saw
them come out of
the fenced area. He did not take note of what
they did with the gate. The rest of the evening was
undisturbed, but
he remembers that the horses sounded as if they were
restless.
[58]
The witness recalled that on the morning of
the collision at 5:00 he heard the hoofs of a horse moving and saw a
dark horse going
past his house. His partner was also awake.
[59]
The witness heard a car and the sound of
tyres, which were quite loud. He had worked with cars for 20
years and was also a
drag and top end racer. The sounds he
heard were more high-pitched then usual. Then he heard a sound
as if a bomb had
gone off. He told his partner that a car had
hit the horse. He went to the scene of the collision where he
saw a BMW
vehicle. The driver was sitting holding his head.
He sent the defendant a text message advising him of the collision.
[60]
Mr Brown’s partner closed the gate to
the fenced area where the horses were kept. It was open.
According to him
Vernon and Fransie had opened the gate.
[61]
There was a lot of animal traffic on the
road, which he regarded as a dangerous road for that reason.
They were not many incidents
of trespassing in the area although he
was aware that somebody had been murdered in the surrounding
vicinity. Other than
the defendant’s horses there was no
more livestock on the property.
[62]
The witness lived on the property for six
months in all.
[63]
On the morning of the collision the weather
was cold, the grass was wet but it was clear with no rain or mist.
[64]
The BMW vehicle driven by the plaintiff was
severely damaged in the collision. The collision had occurred
50 metres from the
witness’ driveway. He had not heard
any sound indicating that the BMW had braked prior to the collision.
[65]
The BMW had been moved by the time the
witness got to the scene. There were other people on the scene
before the witness.
His memory was vague but he seemed to
recall seeing the plaintiff sitting on the gravel.
[66]
The witness spoke to the defendant on the
scene. The plaintiff could not speak.
[67]
He did not look for brake marks on the
road. What he saw on the scene was, in his view, not consistent
with a high-speed collision.
He had only heard one vehicle
prior to the collision.
[68]
He reiterated in cross-examination that
Vernon and Fransie had opened the gate leading to the fenced area
where the horses were
kept.
[69]
The witness continued living on the
property for some three months after the defendant had moved there.
He did not leave the
property on good terms with the defendant.
Carren
Michelle Lamprecht
[70]
She is Mr Brown’s fiance. They
lived on the defendant’s property for six months.
[71]
They normally did hear road traffic noise
in the mornings. The road was busy with animals such as
cows/dogs and cats.
There was also movement of people on the
road.
[72]
On the Saturday before the collision she
recalls the defendant being on the property in the afternoon.
She did not see him
leave.
[73]
She heard a car arriving in the night.
It was François Swanepoel who had arrived at the house (a.k.a.
Fransie).
He asked that they wake up Vernon, their lodger.
After that she went back to bed. A few minutes later Mr Brown
also
came back to bed. A few hours later she recalls hearing
what sounded like a horse moving outside their home.
[74]
She heard a loud bang a few minutes later.
She saw lights on the road as well as the BMW vehicle.
[75]
The gate to the fenced enclosure where the
defendant’s horses were kept (depicting in paragraph [10],
above) was open.
She closed the gate with the carabiner.
[76]
In cross-examination she stated that Vernon
and Fransie had opened the gate shown in the photograph in paragraph
[10], above during
the night before the collision.
The
issues to be determined
[77]
A consideration of the evidence adduced in
this matter and of the pleadings reaffirms that the principal issues
to be determined
in this matter are the following:
77.1.
whether or not the defendant, negligently,
breached his admitted duty of care to members of the public to take
reasonable steps
to prevent his horses from escaping from his
property and gaining access to the road and, if so, whether his
negligence was causally
connected to the injuries the plaintiff
sustained in the collision;
77.2.
the possible negligence of the plaintiff
and, if he was found to be negligent with regard to the collision,
the extent, if any,
to which his negligence contributed to the
collision.
Did
the defendant, negligently, breach his admitted duty of care?
[78]
Given that the defendant’s acceptance
of the duty of care attributed to him the defendant had to have been
aware of the fact
that if the horses on his property were to stray
onto the road, which was a public road adjoining the property, they
could endanger
the lives of road users. A reasonable person in
the position of the defendant would thus have taken steps to prevent
the
horses from straying onto the road, particularly at night.
Enslin
v Nhlapo
[2008] ZASCA 75
;
2008 (5) SA 146
(SCA)
at
[4]
.
[79]
It is not in dispute that the defendant, in
fact, took certain steps to ensure that his horses did not intrude on
the road.
The horses were housed in a fenced enclosure, which
was separated from the access road to his property that ran from the
road by
a gate (“the gate”). The gate was secured
by means of a chain and a carabiner in the manner shown in the
photograph
referred to in paragraph [10], above. The evidence
confirms that on the Saturday afternoon before the collision the
defendant
had secured the gate in this manner.
[80]
As stated in
Enslin
at [5] with reference to
Mkhwanazi v
Van der Walt
[1995] ZASCA 4
;
1995 (4) SA 589
(A)
at 594A-B it is an unfortunate fact of life that even though most
people act with reasonable care most of the time, a normal degree
of
negligence is an everyday occurrence.
[81]
In assessing the conduct of the defendant,
thus, the real question is whether a reasonable person in the
position of the defendant
would have taken further precautions to
prevent his horses from straying onto the road. It was the
contention of the plaintiff
in the particulars of claim that he was
required to take one or more or all of the following allegedly
reasonable steps:
81.1.
installing a spring loaded delegate,
alternatively, a gate it would automatically close if left open;
81.2.
locking the gate;
81.3.
installing double gates.
[82]
In cross-examination and in argument the
plaintiff seemed to confine himself to the defendant’s admitted
failure to secure
the gate by means of a lock.
[83]
In considering whether the defendant was
required to have taken further steps to secure the gate the following
objective facts must
be borne in mind:
83.1.
the access road to the fenced enclosure
where the horses were kept was secured by only one gate, i.e. the
gate to the enclosure.
There was no gate at the entrance to the
property where the access road joined the road;
83.2.
the gate did not have an automatic closing
mechanism, which would ensure that it could not be left open;
83.3.
the gate, if left open, would, effectively,
make the access road leading from the road to the enclosure part of
the road.
Mkhwanazi
at 594C;
83.4.
the defendant’s concession in
cross-examination that if he had locked the gate his horse would
still be alive.
[84]
The defendant’s evidence and that of
his expert that by securing the gate in the manner that he did, he
had acted sufficiently
reasonably in the circumstances as the area
was relatively free from crime and trespassers was devalued by the
further evidence
adduced by him of Mr Brown and Ms Lamprecht that at
the time of the collision the gate was open, allowing the horse to
escape from
the enclosure and intrude on the road. It is likely
that the gate was left open by the persons known as Vernon and
Fransie.
Whether or not they were the culprits does not really
matter. The fact is the horse escaped, which can only be
because the
gate was opened during the night before the collision and
left open, which allowed the horse to escape.
[85]
In line with the authorities cited above I
am of the view that it was indeed required of the defendant to take
further steps to
secure the gate, which could easily and
inexpensively have been achieved by the use of a lock. The use
of a chain and a carabiner
were not sufficient to guard against those
everyday occurrences of negligence by third parties, envisaged in the
authorities referred
to above (i.e., the gate being left open) and
which should have been foreseen and guarded against by the defendant.
[86]
By failing to secure the gate with a lock
the defendant negligently breached the admitted duty of care and
allowed for it to be
left open by third parties and which would make
it easy for the horses to escape. His negligence allowed the
horse to escape
and was thus causally linked to the collision and the
injuries sustained by the plaintiff.
Was
the plaintiff negligent?
[87]
It is not disputed that the collision
occurred whilst it was still dark. The plaintiff’s
visibility would also have
been affected by the prevalence of mist on
the road.
[88]
Furthermore, the plaintiff’s evidence
that had the horse been stationary in the road he would have seen the
horse and would
have been able to take evasive action is not
disputed. From his evidence that all he saw in front of him in
his windscreen
at the time of the collision was an eye one must
conclude that the horse came upon him suddenly, was moving at the
time and approached
him from one or other side of the road.
This conclusion is supported by the fact that the horse was hit by
his vehicle on
its left rear side.
[89]
It is difficult to find fault with the
plaintiff’s submission that a dark horse appearing at the last
moment, in misty conditions,
and in darkness, in front of his vehicle
could not be avoided as there was no time to react. Where there
is no opportunity
to take evasive action to avoid a collision
contributory negligence cannot be present.
[90]
I, therefore, find that in respect of the
collision the plaintiff was unable to avoid the collision and was not
negligent.
Conclusion
[91]
In the absence of contributory negligence
on the part of the plaintiff, the defendant’s negligence was
the sole cause of the
collision.
Order
[92]
I accordingly make an order in the
following terms:
1.
It is declared that the defendant, in
respect of the collision referred to in paragraph 3 of the
particulars of claim, was causally
negligent and is solely liable for
any damages the plaintiff may prove he suffered as a result of the
collision at a trial on this
issue, in due course.
2.
The plaintiff is absolved from the instance
in respect of the claim in reconvention.
3.
The defendant shall pay the plaintiff’s
costs attendant on the trial of the issues separated in terms of the
separation order.
O
H RONAASEN
ACTING JUDGE OF THE HIGH COURT
Appearances:
For
the plaintiff:
Adv EC Labuschagne SC, instructed
by Adams & Adams,
c/o
Jacques Du Preez Attorneys, Port Elizabeth
For the defendant:
Adv M Beneke SC, instructed by Joubert Galpin
& Searle,
Port
Elizabeth