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[2024] ZAFSHC 3
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Ralikonyana v De Villiers and Another (4633/2021) [2024] ZAFSHC 3 (2 January 2024)
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable: YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
Case
no
.
4633/2021
In
the matter between:
LUTHER
KING ARMSTRON RALIKONYANA
PLAINTIFF
and
LOUIS
DE VILLIERS
FIRST
DEFENDANT
MERIBA
BOERDERY
SECOND
DEFENDANT
CORAM:
VAN RHYN J
HEARD
ON:
14 NOVEMBER 2023
DELIVERED:
2 JANUARY 2024
[1]
At around midnight of Friday, 12 October 2018 or in the early hours
of 13 October 2018 the plaintiff,
Luther King Armstrong Ralikonyana,
was driving his Opel Corsa motor vehicle with registration letters
and numbers LR1[…]
when he collided with a calf that strayed
onto the road. The incident occurred on the N8 road between
Bloemfontein and Petrusburg,
approximately 45 kilometres from
Bloemfontein. The plaintiff was driving from Bloemfontein, where he
resides, in a westerly direction
to Kimberley. The plaintiff,
who was born on 1[…] O[…] 1969, suffered bodily
injuries as a result of the collision
with the calf.
[2]
The collision gave rise to a claim for damages against the
defendants, Louis De Villiers (“Mr
De Villiers”), cited
as the first defendant and Meriba Boerdery as the second defendant.
The calf was the property of, and
under the control of the first
defendant and/or the second defendant. In formulating his cause
of action, the plaintiff alleges
that the defendants were under a
legal duty to take reasonable steps to prevent his or its cattle,
such as the calf in question,
from entering the public road between
Bloemfontein and Petrusburg, in order to prevent collisions between
vehicles and cattle on
the road.
[3]
The plaintiff alleges that the fact that the calf strayed onto the
road and the consequential
collision was the direct result of the
negligence of the first defendant and/or the second defendant and/or
the employees of the
first defendant and/or the second defendant
acting within the course and scope of their employment with the first
and/or second
defendant. The grounds of negligence relied upon by the
plaintiff can concisely be summarized as follows:
3.1 A failure to erect
and maintain proper cattle proof fences so as to prevent the cattle
from escaping from the farm and stray
onto the public roads;
3.2 A failure to erect
and maintain proper gates in the fences and a failure to keep the
gates closed or locked;
3.3 A failure to employ
and utilise any or sufficient staff to act as herdsmen and failing to
have a system or proper system of
inspection and repair in place to
ensure that the fences are kept in a cattle proof state;
3.4 A failure to ensure
that newly weaned calves are kept in a kraal and/or enclosure to
prevent them from breaking out and/or escaping
to their mothers;
[4]
The defendants denied ownership of the calf and that a collision
occurred between the plaintiff’s
vehicle and the calf. The
defendants however admitted that in certain circumstances a legal
duty may be found to exist on an owner,
alternatively a person in
control of cattle in respect of motorists using a public road. The
negligent breach of this duty were
denied and that neither the first
nor the second defendant were negligent in any of the respects
alleged.
[5]
At the commencement of the proceedings I granted an order, by
agreement between the parties, in
terms of which I am only required
to determine the liability of the parties and that the issue
regarding the quantum of damages,
if any, would stand over for later
determination.
[6]
Plaintiff testified that on the night in question he left his
residence in Bloemfontein at approximately
11h30. At the time
he was employed at the Department of Police, Roads and Transport,
Free State Province. He was due to arrive
at Kathu, Northern Cape
Province the following morning for work related purposes. He planned
to travel to Kimberley where he would
stay over until he would
complete his trip to Kathu later during the morning of the 13
th
of October 2018.
[7]
At around midnight and while descending a small hill, he suddenly
noticed a black animal in front
of him. He swerved to the left
in an endeavour to avoid a collision with the animal, which later
appeared to be a black calf.
He was unsuccessful in his effort to
avoid an accident. It was dark and his vehicle’s lights
were switched to bright.
There is only one lane for traffic in the
direction of Kimberley and one lane from Kimberley in the direction
of Bloemfontein.
Prior to the collision with the calf he was
travelling between 100 to 120 km/h.
[8]
The plaintiff testified that he did not observe any other motor
vehicles in front or behind him
immediately prior to the collision.
The collision with the calf, which was in the middle of the lane in
which he was traveling,
occurred so quickly that the only evasive
action possible was to swerve to the left. He did not apply the
brakes of his motor
vehicle. In his opinion, it would have caused the
motor vehicle to roll if he had applied the brakes when he noticed
the calf.
In any event, according to his observation, if he had
applied brakes, he would not have been able to avoid the collision
with the
calf. The right front fender of the vehicle was
damaged as indicated on photographs 14 and 15 of the plaintiff’s
Photo
Bundle, Exhibit “A”. Damage to the left front side
and the right side of the front windscreen is visible.
[9]
The vehicle came to a standstill on the gravel next to the left lane
in which he was travelling
immediately prior to the collision. The
plaintiff testified that he sustained injuries as a result of the
incident. While being
trapped inside the vehicle he made several
calls to obtain help. An unknown motorist stopped at the scene
and called for
assistance. Members of the South African Police
Services arrived soon thereafter. He was transported to the hospital
by the emergency
services.
[10]
During cross examination it was established that the plaintiff had
travelled on the N8 road on numerous occasions
in the past. The
plaintiff was unable to give an estimation of the distance between
his vehicle and the calf when he noticed the
calf for the first time.
He furthermore cannot recall whether the calf was facing him or not.
[11]
It was put to the plaintiff that if he had swerved to the right he
would have been able to avoid the collision
with the calf. The
plaintiff rejected this version by indicating that according to him,
and having regard to the little time available
to decide what to do
under the prevailing circumstances, the only option was to swerve to
the left.
[12]
Warrant Officer Blaauw, stationed at the Petrusburg South African
Police Services, testified that he and
his colleague, Constable
Billy, attended the scene of the accident during the early hours of
the morning on 13 October 2018. At
their arrival at the scene he
noticed a vehicle on the left side of the road facing Petrusburg as
well as a dead, black calf lying
on a painted island in the middle of
the road. He tried to ascertain who the owner of the dead calf was by
tracking the footprints
of cattle found at the scene and was able to
ascertain that the tracks lead to a farm known as Meriba (the
“farm”).
Due to the lateness of the hour he decided to
wait until daylight before he continued with his investigation.
[13]
The next morning he again attended the scene and found Mr De Villiers
removing the dead calf from the scene
of the incident. He furthermore
noticed several farm workers herding cattle. Mr De Villiers informed
him that he is the owner of
the dead calf and that he suspects that
the calf, one of several recently purchased, escaped in an endeavour
to reunite with their
mothers.
[14]
The report compiled by Pieter Swanepoel (“Mr. Swanepoel”),
appended to the plaintiff’s
Rule 36(9)(a) and (b) notice, where
handed up by agreement between the parties. Mr Pretorius SC, counsel
appearing on behalf of
the defendants, confirmed that it is therefore
not necessary to call Mr. Swanepoel as an expert witness during the
trial. From
the
curriculum vitae
of Mr. Swanepoel it is
evident that he has extensive experience as an Agricultural Assessor
and Fire Ecologist. This includes
assessing the condition and
efficacy of agricultural fences and gates normally utilised by the
farming fraternity in fencing off
animals ranging from cattle, sheep,
goats and game as part of farming operations.
[15]
Mr. Swanepoel conducted an inspection
in loco
on the
defendants’ farm on 24 August 2023. The inspection was
also attended by the plaintiff’s attorney, a representative
of
the defendant’s attorney, as well as Mr. De Villiers. Mr de
Villiers pointed out the particular kraal where the weaning
calves
were kept and related certain information to Mr. Swanepoel and the
other attendees at the inspection
in loco.
[16]
Mr. De Villiers explained that the week before the incident he had
purchased a number of weaning calves from
his neighbour who farms
just to the north, i.e. on the opposite side of the N8 road.
After he had purchased the calves from
his neighbour he transported
the calves with a vehicle to the farm. The calves were then
kept with other calves in a pen
for a few days to enable them to
adapt to the new surroundings. The calf killed in the incident was
one of the weaning calves that
he had purchased from his neighbour
[17]
After four (4) days they were taken to a larger kraal together with
other older calves. According to
Mr de Villliers the condition
of the fencing of the larger kraal (“finishing corral”)
during the time of the inspection
in loco
was almost exactly
the same as the condition of the fencing at the time of the incident
during 2018. According to the observations
made by Mr Swanepoel the
condition of the barbed wire fence of the kraal was in a very poor
and dilapidated state due to the following:
17.1
The wires were found to be “slack” and not properly
tensioned;
17.2
The spacing in between the wires was insufficient and a calf could
very easily move through it without much
effort;
17.3
The fence appeared to be totally inadequate to prevent the weaning
calves from straying from the kraal.
[18]
Mr Swanepoel opined that young weaning calves will instinctively try
to break out from an enclosure to return
to their mothers.
During the inspection
in loco
a corrugated iron sheet was
found in an opening in the wire fence. The corrugated iron
sheet, marked “F” can
be seen on photograph 13. The
width of the corrugated iron sheet is 60 cm and in Mr Swanepoel’s
opinion a calf could
have jumped over the partitioning in an attempt
to escape from the kraal. In his opinion, the fences were not
properly constructed,
maintained and/or secured to reasonably prevent
the calves from escaping from the defendants’ farm and from
straying onto
the N8 road.
[19]
This concluded the evidence presented by the plaintiff. At the close
of the plaintiff’s case an application
for absolution from the
instance was brought by the defendants. The plaintiff opposed the
application. After hearing arguments
on behalf of the parties I
dismissed the application for absolution from the instance with
costs. Having considered the evidence
presented by the
plaintiff and taking cognisance of the fact that the defendants did
not raise a plea of contributory negligence,
I was satisfied that a
reasonable court can find in favour of the plaintiff. The reasons for
the finding in favour of the plaintiff
will be discussed in this
judgment.
[20]
The defendants closed their case and did not present any evidence
during the trial. In the light of the evidence
presented by the
plaintiff, the defendants applied for an amendment of their plea. The
application was not opposed by the plaintiff
and the amendment was
granted. The amendment amounted to the denial of the averments
made in paragraphs 4 and 5 of the plaintiff’s
particulars of
claim and the inclusion of paragraph 16.2 to the defendants’
plea. Paragraph 16.2 reads as follows:
“
16.2 In the
alternative, and in the event of the court finding that the
Defendants or any one of them were negligent in the respects
alleged
or at all, and that the said negligence resulted and/or contributed
to the collision, all of which are denied, then, and
under those
circumstances, Defendants plead that the Plaintiff was also negligent
in one, alternatively more, alternatively all
of the following
respects:
16.2.1 he drove to fast
under the circumstances;
16.2.2 he failed to apply
the brakes of his vehicle timeously or at all;
16.2.3 he failed to
reduce the speed of his vehicle timeously or at all;
16.2.4 he failed to take
proper, alternatively reasonable, alternatively adequate evasive
action to avoid the collision, which having
taken same, could have
avoided the collision;
16.2.5 Plaintiff’s
claim accordingly stands to be reduced in accordance with the
provisions of the Apportionment of Damages
Act, 34 of 1956.”
[21]
The onus rests upon the plaintiff to prove on a balance of
probabilities that the defendants were negligent
in one or other of
the respects alleged. Mr de Villiers is not
per
se
liable if it is found that his calf got into the road at night and
caused a collision. This does not give rise to a presumption
of
negligence. The plaintiff can only succeed by establishing by means
of credible and acceptable evidence that the defendants
were
negligent and that his/its negligent conduct caused damage to the
plaintiff.
[1]
[22]
In his address, Mr Pohl SC, counsel on behalf of the plaintiff,
argued that in order to discharge the onus
the plaintiff relied upon
the evidence of three witnesses, being his own testimony, that of
warrant Officer Blaauw and the expert
witness, Mr Swanepoel. The
combined effect of the evidence of these three witnesses indeed
established a
prima
facie
case that the defendants
negligently caused the collision. The most probable inference from
the evidence established the following:
that
the plaintiff collided with the calf which belonged to the first
defendant. The calf entered the N8 road from the defendants’
farm according to the testimony of Warrant Officer Blaauw who
followed the tracks of several calves/cows at the scene of the
accident to the said farm;
that
the calf got onto the N8 road from the kraal located on the farm.
The fences of the kraal were so dilapidated as to be completely
inadequate for keeping the weaning calf from escaping and straying
onto the N8 road;
[23]
Having regard to the fact that the calves were removed from their
mothers it is clear that a reasonable farmer
in the position of the
first defendant must have foreseen the possibility that the calves
would attempt to break free and stray
onto the N8. Therefore, a
reasonable farmer would have taken the precaution of properly
maintaining the fence of the kraal to prevent
the calves from
escaping from the kraal in which they were kept prior to the
collision on the night of 12 October 2018.
[24]
Mr Pohl SC further more contended that no contributory negligence on
the part of the plaintiff was proved
and therefore an order in favour
of the plaintiff that the defendants are liable for any damages,
which may be proved or agreed
in future, as well as costs be granted.
[25]
Mr Pretorius SC conceded that the ownership of the dead calf is not
disputed in that such admission was made
by Mr de Villiers to Mr
Swanepoel during the inspection
in loco.
It is furthermore
conceded that the calf strayed from the kraal onto the N8 road on the
night in question. On behalf of the defendants
it was contended that
the plaintiff was negligent in that he failed to take the necessary
evasive action immediately prior to the
collision.
[26]
The plaintiff left his home late at night and travelled on the N8
road, being a public road in between agricultural
farmlands. He must
have foreseen a possibility of encountering animals wandering across
the N8 road at night. There are no
street lights. The
plaintiff should have adjusted the speed at which he was travelling
according to his range of vision and
the prevailing circumstances.
Having regard to his evidence that he travelled at approximately 100
-120 Km/h, he would have been
able to swerve to the right which would
have been a safe option and thus have avoided the collision with the
calf.
[27]
The plaintiff failed to apply the brakes of the motor
vehicle in the fear that it might lead to the vehicle overturning.
He
furthermore simply persisted that his decision to swerve to the left
was the only option under the prevailing circumstances.
In the result
it is contended on behalf of the defendants that there should be an
apportionment of damages as a result of the plaintiff’s
contributory negligence.
[28]
Plaintiff, in my view, presented his testimony in a satisfactory
manner. He testified that he travelled the
specific route to Kathu in
the Northern Cape, his ultimate destination, on several occasions in
the past. He was an experienced
driver. His evidence that he
travelled at 100 – 120 Km/h and that he feared that if he
applied the brakes that it might cause
the vehicle to overturn, was
not seriously disputed. A reaction time of half a second as being a
reasonable reaction time have
been accepted in certain cases.
However, a reaction time of as much as one and a half seconds has
been accepted as being reasonable
in other matters.
[2]
[29]
In
Sifhago
v Santam Insurance Company Limited
[3]
Jansen JA held as follows:
“
It is common
knowledge that when a person is suddenly and unexpectedly called upon
to make a decision, his reaction time is longer
than when he is
alerted and expecting the emergency. In considering what the
reasonable driver would have done and in the
one second available to
him, allowance must be made for the limitations imposed by the
inevitable time lag between observation
and reaction, as affected by
the agony of the moment, the element of surprise, the likelihood of
momentary indecision…”
[30]
Mr Pohl SC argued that the defendants failed to prove that
plaintiff’s negligent driving, if any, had
caused or
contributed to the collision. The defendants had to prove that
the plaintiff’s failure to keep a proper lookout
was causally
connected with the collision. Therefore, the defendants had to prove
that, had the plaintiff reacted when the reasonable
man would have
reacted, the collision with the calf would not have occurred.
[31]
The exact speed at which the plaintiff was travelling immediately
prior to the collision with the calf was
not determined during the
trial. The plaintiff was not able to recall the exact speed. He was
not able to say how far the calf
was when he noticed same for the
first time. He was not even able to say that it was in fact a calf.
He merely saw a black animal
in the lane immediately in front of his
motor vehicle. One person may react very quickly to what he
observed whilst another
person may be much slower.
[32]
Mr Pretorius SC is correct in his contention that it is undoubtedly
the duty of every person to avoid an
accident, but when a person
behaves reasonably, even by justifiable error of judgment he does not
choose the very best course to
avoid the collision as events
afterwards show, then he or she is not on that account to be held
liable for being negligent.
[33]
Unless the facts pertaining to the speed at which the plaintiff
travelled immediately prior to the accident
and the distance of the
calf from the motor vehicle can be established on a balance of
probabilities, the court cannot find that
if the plaintiff had
reacted as a reasonable man would have, the collision would not have
occurred.
[4]
Having regard to
the fact that the collision occurred at around midnight and apart
from the headlights of the vehicle, it was dark,
the fact that the
calf was black, necessarily diminishes the chances of the calf being
visible earlier in time so as to allow an
opportunity to take evasive
action.
[34]
In
Van
Der Westhuizen and Another v S. A. Liberal Insurance Co., Ltd
[5]
Ogilvie Thompson A.J (as he then was) explained the usefulness of
mathematical calculations in collision cases as follows:
In my opinion, however,
the strictly mathematical approach, though undoubtedly very useful as
a check, can but rarely be applied
as an absolute test in collision
cases, since any mathematical calculations so vitally depends on
exact positions and speeds; whereas
in truth these latter are merely
estimates almost invariably made under circumstances wholly
unfavourable to accuracy.”
[35]
In accordance with the decision in
Jamnek
v Wagener
[6]
this
prima
facie
case places an onus of rebuttal (‘
n
weerleggingslas
)
on the defendants. The defendants are required to adduce evidence
that the calf did not get on to the road as a result of the
dilapidated condition of the fence of the kraal and strayed onto the
N8 road at the place where the collision occurred. Failing
that, the
prima
facie
inference of negligence becomes conclusive.
[36]
On the evidence presented by the plaintiff and the inferences drawn
as set out above, I am satisfied that the defendants,
more
specifically Mr de Villiers, exercised control over the calf and the
fences holding the weaning calves on the farm. In the
circumstances
Mr de Villiers therefore had a legal duty towards road users to take
such steps as were necessary and reasonably
possible to maintain the
fence of the kraal in such condition that it could fulfil its
function to keep animals from straying onto
the N8 road. In the
circumstances of the case it is reasonable to accept that if Mr de
Villiers or any of the workers employed
by either the first or second
defendant had indeed inspected the fence of the kraal prior to the
collision during October 2018
and differed from the evidence
presented by Mr Swanepoel as contained in his expert report, such
contradicting evidence would have
been presented during the trial.
[37]
It is therefore not unreasonable, in the absence of such evidence, to
infer that such evidence did not exists. On the
contrary, Mr de
Villiers indicated to Mr Swanepoel that the state of the fence of the
kraal at the time of the collision was not
much better than at the
time of the inspection
in loco
during August 2023.
Accordingly, the inference is reasonably justified that the
defendants could have prevented the dilapidated
condition of the
fence of the kraal and thus prevented the calf from straying onto the
N8 road causing the collision by taking
reasonable steps. I am
therefore satisfied that the accident which occurred at around
midnight on 12 October 2018 was due to the
negligence of the first
and/or second defendant.
[38]
As to the argument presented by Mr Pretorius SC that the plaintiff
should have opted to swerve to the right in light of the
evidence
that there was no oncoming traffic from the Kimberley direction and
would then have been able to avoid the collision with
the calf, I
agree with the argument by Mr Pohl SC that such a conclusion is based
on mere speculation. There is no evidence of
the exact speed at which
the plaintiff travelled immediately prior to the collision nor to the
exact position of the calf. The
plaintiff was unable to say in which
direction the calf was moving, if at all. I am of the view that the
defendants failed to establish
that the plaintiff took the wrong
decision under the prevailing circumstances or that the decision not
to apply the brakes of the
motor vehicle but to swerve to the left
was causally connected with the collision with the calf, in the sense
that if he decided,
in the limited time available to apply brakes or
swerve to the right, he would have avoided the collision with the
calf.
[39]
For these reasons the defendants failed to establish causal
negligence on the part of the plaintiff. The plaintiff proved
on a
preponderance of probabilities that the defendants negligently
breached the duty of care to take further steps to prevent
the
weaning calf from escaping from the kraal in which it was kept and
from straying onto the N8 road. The defendants’ failure
to
maintain the fence of the kraal to prevent the calf to escape and
from accessing the N8 road meant that the first and second
defendants
had been causally negligent in relation to such damages as may in due
course be proved by the plaintiff.
[40]
I accordingly make the following order:
1.
In the absence of contributory negligence on the part of the
plaintiff, the first and second
defendants, jointly and severally are
causally liable for any damages sustained by the plaintiff as a
consequence of the collision
which occurred between the motor vehicle
driven by the plaintiff and a calf on 12 October 2018.
2.
The first and second defendants, jointly and severally, the one
paying the other to be absolved,
are ordered to pay the costs of the
action.
VAN
RHYN J
On
behalf of the Plaintiff:
ADV
L POHL SC
Instructed
by:
MHLOKONYA
ATTORNEYS
BLOEMFONTEIN
On
behalf of the Defendants:
ADV.
C PRETORIUS SC
Instructed
by:
BLAIR
ATTORNEYS
BLOEMFONTEIN
[1]
Coreejes
v
Carnavon
Munisipaliteit & Andere
1964 (2) SA 454
(C);
Kruger
v
Coetzee
1966 (2) SA 428
(A);
Jamnek
v
Wagener
1993 (2) SA 54 (C).
[2]
Rodrigues v SA Mutual General Insurance company
1981 (2) SA 274
(A.
[3]
1969 (1) PH J1 (A).
[4]
Guardian National Insurance Co Ltd v Saal 1993(2) SA 161(CPD) at 163
D-G.
[5]
1949 (3) SA 160
(C) at p 168.
[6]
1993 (2) SA 54
(C).