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[2022] ZAFSHC 190
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Hanger v Regal and Another (A77/2015) [2022] ZAFSHC 190 (11 March 2022)

IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal
number:
A77/2015
Reportable:
YES/NO
Of
interest to other Judges: YES/NO
Circulate
to Magistrate: YES/NO
In
the appeal between:
MARIA
ELIZABETH HANGER
Appellant
and
JOE
REGAL
First

Respondent
PETRA
REGAL
Second

Respondent
CORAM:
VANZYL,
Jet
OPPERMAN,
Jet
DANISO, J
JUDGMENT
BY:
VANZYL,
J
HEARD
ON:
14
SEPTEMBER 2021
DELIVERED
ON:
11
MARCH 2022
[1]
This is a Full Court appeal against the
judgment and order made by a single (acting) judge on 11 December
2014.
At
the time when the application for leave to appeal was launched, the
acting stint of the said judge had ended, whereupon the application

for leave to appeal was dealt with by Daffue, J in accordance with
the provisions of
section 17(2)
of the
Superior Courts Act, 10 of
2013
. Daffue, J granted leave to appeal to this court, with costs to
be costs in the appeal.
[2]
The appellant was the plaintiff in the
court a
quo.
The action emanated from an incident
which occurred on 5 November 2009 when the appellant suffered
injuries on her right arm and
hand as a result of an incident which
occurred between the appellant and an encaged bear on the premises of
the respondents. The
respondents were the defendants in
the court a
quo.
[3]
After the appellant closed her case, the
respondents applied for absolution from the instance, which was
granted with costs.
[4]
This appeal is directed against the
last-mentioned order and judgment.
The
Second Respondent:
[5]
In the respondents' supplementary heads
of argument, filed by Mr Hefer, who appeared on behalf of the
respondents in the appeal,
it is mentioned that
"the
second respondent has in the meantime passed away
...".
We
consequently
mero motu
enquired
from Mr Hefer at the commencement of the appeal hearing whether an
executor has since been appointed in the estate of the
late second
respondent. Lengthy discussions followed as a result of our enquiry,
whereupon certain correspondence was handed to
us by Mr Hefer. After
we duly considered the correspondence, we were satisfied that an
executor had in fact been appointed and
that the executor was well
aware of the pending appeal and the date of the hearing of the
appeal. Both parties were also
ad
idem
that the appeal can and should
proceed in the circumstances. We consequently entertained the hearing
of the appeal.
Background
Events:
[6]
I deem it apposite to set out the
background events in accordance with the appellant's
evidence in chief. This is
merely for the sake of providing a
contextual basis to the judgment and should not be understood to
constitute any
finding
regarding credibility or the like.
[7]
At the time of the incident the
respondents (or the first respondent) conducted a taxidermy business
on their premises. The respondents
were the legal owners of a
Himalayan bear, which they kept in a cage on their premises.
[8]
On 5 November 2009 the appellant's
friend, Ms Holroyd,
went to the taxidermy business to fetch
an animal skin which belonged to her son in law.
She invited the appellant to accompany
her.
Both
the respondents were present at the business.
Ms Holroyd enquired from the second
respondent whether she can show the animals on the farm to the
appellant. The second respondent
readily
agreed.
The
three ladies walked to an area on
·the
premises where apes and baboons were being held in cages and then
approached the cage in which the bear was being held.
Whilst they were walking towards the
cage, the second respondent remarked that the bear is tame, that his
name is Grumpy, but that
the appellant should be careful, since he
remains a dangerous ("gevaarlike") animal.
The bear was seated in the cage against
the jackal­ proof wire fencing.
He
did not appear to be aggressive and made no sound.
[9]
From the evidence, read in conjunction
with two photographs which were handed in as exhibits, it is evident
that the structure of
the cage is built with iron bars.
The iron bars were covered with
the
so-called
jackal-proof
wire
fencing,
which
is
a
type
of wired mesh.
The cage was built on a concrete
platform.
The
floor of the cage was consequently
not
on ground level.
[10]
The appellant enquired from the second respondent what the bear's
diet consists of, to which
the second respondent replied that it
consisted of vegetables and fruit. The second respondent
spontaneously indicated that it
was time for the bear to have a fruit
and said that she was going to fetch an apple from the guesthouse.
She left, whilst the appellant
and Ms Holroyd remained behind. The
second respondent returned with a peach in her hand. She handed the
peach to the appellant
and told the appellant to feed the peach to
the bear. The second respondent told her to hold the fruit in her
hand and to give
it to the bear. The appellant gave the peach to the
bear, without putting her hand through the fence and the bear took
the peach
with its mouth and ate it. The appellant was standing on
the ground when she fed the peach to the bear and the second
respondent
was standing next to her at the time. According to her
evidence she had at no stage climbed onto or stood on the concrete
platform.
[11]
Immediately thereafter Ms
Holroyd fetched her cell phone from the
car. She wanted to take
a
photo of the appellant
standing
next to the cage of the bear, since she missed the opportunity
to take a photo whilst the appellant fed
the peach to the bear. Ms Holroyd requested the appellant to pose
next to the cage with
her
right
arm
directed
towards
the
fence
of
the
cage,
approximately shoulder height, a little to her back and with an open
hand.
According
to the appellant she held her open hand very close to the fence, but
not against it. Whilst facing Ms Holroyd for purposes
of the photo,
she felt that something was pulling on her hand and when she looked
backwards at her hand,
the
bear pulled her
arm
up to her elbow
through
the fence of the cage and into the cage.
[12]
The second respondent was present
throughout the whole ordeal. The appellant was unable
·to pull her arm back.
The second respondent and Ms Holroyd
stood behind the appellant and pulled her away from the cage in an
attempt to get her arm removed
from the cage, but without success.
[13]
The second respondent then hit the bear
from outside the cage with her one shoe, but the bear did not
respond.
It
continued biting the appellant's fingers and hand.
Ms Holroyd ran to the taxidermist
business and called out to the first respondent for help.
The first respondent immediately came
with a whip.
He
entered the cage of the bear and hit the bear with the whip,
whereupon the bear released the appellant's hand and arm.
The appellant was in extreme shock.
[14]
Towels were used in an attempt to stop
the bleeding and the respondents' son rushed the appellant to
hospital in his vehicle, accompanied
by Ms Holroyd.
[15]
Ms Holroyd,
the appellant's
friend,
was
also
called
as a witness. I do not intend to repeat her evidence herein. In
essence it corresponded with the appellant's version, although
there
were certain contradictions between her evidence and
that of the appellant. I will deal with
certain aspects of her evidence later in the judgment.
[16]
The appellant also called Mr Being as a
witness.
At
the time he was employed as the Control Bio Diversity Officer in the
Department of Environmental Affairs, Sub-Directorate Compliance

Monitoring and Law Enforcement.
He
testified that he has been employed by the Department for 33 years.
At the time of the incident, he was in
control of all the legal aspects such as the enforcement
of compliance with cage specifications
for specific animals, the inspection of such cages, the issuing of
permits, etc.
At
the time he had 12 officers who worked under his supervision.
He also had 6 years previous experience
of physically working with the animals in the Bloemfontein Zoo. I
will deal with further
specific aspects of his evidence later in the
judgment.
The
pleadings:
[17]
In her amended particulars
of claim the appellant
averred that the bear was kept in a cage
on the property of the respondents,
that
the respondents were the owners thereof and that the bear was under
the control of the respondents. The appellant also made
the following
averments:
"12.
The incident described was caused by the negligence of both the first
and second defendants who were negligent in one
or more of the
following respects:
12.1
The first and second defendants failed
to encage the bear adequately in order to control it.
12.2
The first and second defendants failed
to properly and adequately enclose the cage for it to be safe for
visitors and to prevent
the bear from putting its mouth through the
fence.
12.3
The cage was not adequately and properly
enclosed to prevent the bear biting visitors including the plaintiff.
12.4
The first and second defendants failed
to put up a sign, warning the plaintiff and other visitors of the
dangers posed by the bear
in close proximity to the cage.
12.5
No fence was erected to prevent the
plaintiff or other visitors coming too close to the cage and the
bear.
12.6
The top part of the cage did not contain
adequate fencing to prevent the bear from putting its mouth through
the fence.
12.7
The first and second defendants kept the
bear in the cage without due care and attention to the safety of
visitors including the
plaintiff.
12.8
The first and second defendants were in
control of the bear,
but
failed
to
take
adequate
precautions
for
the
protection
of
visitors,
including
the
plaintiff,
who
they
allowed to visit the bear that they kept in the cage.
13.
When the incident described above
occurred, the first and second defendants knew or ought to have
known:
13.1
That the bear is dangerous and can bite
any person that stands next to the fence of the cage.
13.2
That allowing the plaintiff to stand
next to the cage is dangerous
and
would
result
in
lying
to
the
defendant.
(sic)
13.3
By allowing and/or encouraging the
plaintiff to feed the bear is dangerous.
13.4
The bear is a wild animal and dangerous
to visitors and the appellant.
13.5
That by not enclosing the cage properly
to prevent the bear from putting its mouth through the fence can be
dangerous to visitors
and the plaintiff.
13.6
That the first and second defendants'
failure to secure an adequate distance between the cage and visitors,
including the plaintiff,
can be dangerous.
13.7
If visitors, including the plaintiff,
were bit (sic) by the bear, they could be injured and/or suffer
damages."
[18]
In their plea the first and second
respondents pleaded as follows in response to paragraph 12 of the
appellant's particulars of
claim:
"7.1
Save to admit that the first and second defendants were in control of
the bear, the remaining allegations contained in
this paragraph are
denied as if traversed separately, and plaintiff is put to the proof
thereto.
7.2
Defendants specifically plead that the
injuries sustained by the plaintiff were the result of her own
negligence in that she:
(a)
must have known
that the bear was
a wild
animal
and
that it was dangerous to come too close to the cage;
(b)
must have foreseen
that she could be injured by the bear if
she puts her hand on the fencing of the cage;
(c)
must have foreseen that it could be
dangerous to climb onto the elevated area surrounding the cage and to
touch the cage in the
process and that she had failed to take
reasonable steps and/or precautions to avoid such injuries being
inflicted by the bear.
7.3
Alternatively, defendants plead that the
plaintiff was well aware of the risk of injury in climbing onto the
elevated area aforesaid
and touching the cage after repeated warnings
by the second defendant not to act as such, and she had voluntarily
assented to the
risk of being injured by ignoring or failing to heed
the warnings of second defendant against such conduct.
7.4
Defendants consequently plead that the
injuries sustained by the plaintiff was the direct and sole result of
the appellant's own
negligence, alternatively her voluntarily
acceptance of the risk, alternatively defendants plead that the
plaintiff was contributory
negligent in the causation of the
incident."
[19]
In
response
to
paragraph
13
of
the
particulars
of
claim,
the respondents pleaded as follows:
"Save
to admit that defendants knew that if visitors were bit by the bear,
they could be injured and could suffer damages,
the remaining
allegations in the paragraph are denied as if traversed separately in
so far as they are in conflict with what has
already been pleaded by
defendants herein, and plaintiff is put to the proof thereof."
Judgment
of the court a
quo:
[20]
In
its
judgment
the
court
a
quo,
inter
alia,
stated
as
follows
at paragraph [3] thereof:
"From
the Heads of Argument filled in the application for Absolution and
from the argument raised in court on behalf of the
defendants
(sic),
it appears that the plaintiff relies on the
actio
or
edictum de feris
to impose strict liability on the defendants.
They
(sic)
aver that they therefore need not allege and prove
negligence by the defendants."
[21]
The court a
quo
subsequently found, in my view correctly so,
that the appellant's particulars of claim did not support such a
cause of action and
that the appellant was bound by her pleadings.
It, however, seems that the court a
quo
thereafter in any
event made a finding against the appellant regarding the appellant's
reliance (in argument) on strict liability.
In this regard the court
a
quo
found as follows at paragraph [30] of the judgment:
"In
my view, then, the plaintiff failed to provide any evidence which
could reasonably be seen to indicate that she was not
negligent or
that she did not voluntarily accept the risk of injury by her conduct
and that the plaintiff should for that reason
be allowed to rely on
strict liability."
[22]
In addition to the finding on strict
liability, the court a
quo
also
considered the various grounds of negligence of the respondents as
pleaded by the appellant in her particulars of claim and
as dealt
with in the evidence for purposes of the
actio
legis aquiliae.
In
this regard the court a
quo
stated
as follows at paragraphs [12], [13] and [14] of its judgment:
"[12]
... and although the plaintiff now purports to rely on strict
liability for which it need not allege or prove negligence,
she
listed in paragraph 11 of the Particulars, without pleading it in the
alternative, a long list of factors which she alleged
constituted the
defendants' negligence which allegedly caused
'the incident.
The
defendant
(sic)
was therefore entitled, in the absence of an
amendment, to prepare a defence on those material facts which the
plaintiff needs to
prove in order to succeed with its claim. And the
plaintiff by the end of her case needs to have provided evidence that
shows that
she has a possibility of obtaining judgment in her favour
at the end of the trial on those facts.
[13]
The plaintiff relies on the grounds of
negligence listed in her pleadings.
She
therefore has the
onus
to
prove that a
reasonable
person in the position of the defendants must have foreseen the
possibility that their conduct would injure another,
should have
taken reasonable steps to guard against such event and must have
failed to take such steps.
[14]
In order to avert absolution at this
stage,· the plaintiff needed to have led evidence on all these
elements and have at
least made out a
prima
facie
case regarding each element to
show that she has a probability of succeeding in proving all of the
said
elements.
In my view, the three witnesses who
testified for the plaintiff failed to do so."
[23]
After having dealt
with the evidence,
the court
a
quo
found
as follows:
"[28]
In my view, therefore, the plaintiff
failed to put any evidence before court on which a reasonable court
could or might find that
the defendants were negligent.
There is no evidence that the defendants
did not keep the bear lawfully, or that the cage failed to comply
with ·any statutory
or regulatory requirements, or that the
incident would have occurred had the plaintiff, on her own version,
not only touched the
wire fence, but allowed her fingers to protrude
into the cage.
[29]
There is no evidence, either, that the
bear bit her through the fence or that he was even able to do so, as
averred in her particulars
of claim.
There was no evidence that the cage
would not have been safe if she had not allowed her fingers to
protrude through the fence.
There
is no evidence, either, that any warning
signs
would
have prevented
her from allowing her fingers to
protrude through the fence.
There
is no evidence,
furthermore,
that the size of the cage provoked
the incident, that the bear did attempt
to tear down the fence, or that the defendants should reasonably have
foreseen a situation
where a grown-up person who admits to knowing
animals
and
to
having
known
that
the
bear
was
dangerous and could injure her, after
being warned that he was dangerous, would allow her fingers to
protrude into the bear's cage
while, on her own version, he was
sitting close to the fence where her protruding fingers would have
been within easy reach of
his mouth.
[30]
...
I
cannot but conclude, either, that the plaintiff failed to
make out a
prima
facie
case by putting evidence
relating to all the elements of her claim before the court on which a
reasonable court could or might find
in her favour."
The
appellant's Notice of Appeal:
[24]
The appellant duly filed her notice of
appeal, setting out the grounds for appeal.
I do not intend to repeat
same herein.
I will refer to some of the grounds when
I deal with the merits of the appeal.
Legal
principles
applicable
to applications
for absolution
from the
instance:
[25]
The well-known test to be applied when
considering an application for absolution from the instance was
formulated in
Claude
Neon Lights (SA) Ltd v
Daniel
1976
(4) SA 403
(AD)
at
409 G -
H
as follows:
"...
when absolution from the instance is sought at the close of
plaintiff's case, the test to be applied is not whether the
evidence
led by plaintiff establishes what would finally be required to be
established, but whether there is evidence upon which
a Court,
applying its mind reasonably to such evidence,
could or might (not
should nor ought to)
for the plaintiff." (Emphasis added.)
[26]
In
Gordon
Lloyd Page & Associates v Rivera
2001 (1) SA 88
(SCA) at para [2] the
court dealt with the aforesaid test for absolution as follows:
"This
implies that a plaintiff has to make out a
prima facie
case -
in the sense that there is evidence relating. to all the elements of
the claim - to survive absolution because without such
evidence no
court
could
find for the plaintiff. As far as inferences from
the evidence are concerned, the inference relied upon by the
plaintiff must be
a reasonable one, not the only reasonable one. ...
Having said this,
absolution
at the end of a plaintiff's case,
in the ordinary course of events,
will nevertheless be
granted
sparingly
but when the occasion arises a court should order it in
the interests of justice." (Emphasis added.)
[27]
In
Build-A-Brick
BK
v
Eskom
1996 (1) SA 115
(0)
at 123 A - E, Hattingh J held that the
test to be applied in determining the question
whether
the
defendant's
application
for
absolution from the instance should be
granted is
not whether the adduced evidence
requires an answer, but whether such evidence holds the possibility
of a finding for the plaintiff,
or put differently, whether
a
reasonable
court
on
the
basis
of
the
evidence
can
find
in
favour
of
the
plaintiff. At
the
absolution stage the inference sought by
the plaintiff need not be the most probable one like at the end of
case, but a reasonable
one. Consequently, at the absolution stage the
plaintiffs evidence should hold a reasonable possibility of success
and should the
court be uncertain whether the plaintiff's evidence
has satisfied this test, absolution should be refused.
The
merits of the appeal:
[28]
In my view the appeal is to be
considered
only
on the basis of the
actio legis
aquiliae.
It
is evident from the appellant's particulars
of claim
that the appellant
relies
on
the negligence of the respondents and the evidence was presented on
that basis. As correctly found by the court
a
quo,
the appellant did not rely on
the
actio de fetis
·in her particulars of claim,
nor was the evidence presented in support of a reliance on strict
liability.
[29]
When considering the merits of the
appeal on the basis of the
action Jex
aquiliae,
it is crucial to be
mindful of the fact that the appeal is directed against the granting
of absolution from the instance at the
close of the appellant's case.
It is therefore not for us, as the Court
of Appeal, to make a final determination regarding the
question·whether the respondents
had in fact acted negligently
and/or whether the appellant herself (also) acted negligently.
We merely have to apply the test for
absolution, as already dealt with above, to the evidence.
[30]
The court a
quo
correctly pointed out that there
were some discrepancies
between
the averments made in the particulars
of
claim, the appellant's evidence (including her cross­
examination) and Ms Holroyd's evidence pertaining to the issue
whether
the
appellant's
hand
in fact touched
the
cage when she posed for a photo and/or whether her fingers protruded
through the fence at some stage during that process.
However, in my view, it is unnecessary
for purposes of this appeal to make a
determination regarding this issue. It is common cause that the bear
in some or other way
in fact got hold of the appellant's hand and
arm.
Even
if it is to be accepted for purposes of this appeal that the
appellant had in fact touched the cage and/or that her fingers

protruded through the fence of the cage, which I do not find, and
that her conduct in this regard constituted negligence on her
side,
which I also do not find, it is not the end of the matter. The
principles of contributory negligence
are to be kept in mind,
which are set out as follows in
LAWSA,
Volume 15 (3ed), at para 217:
"217
Contributory
fault
The Apportionment
of Damages
Act [34 of 1956
s 1(1)(a)]
provides:
'Where any person suffers damage
which is caused partly by his own fault and partly by fault of any
other person, a claim in respect
of that damage shall not be defeated
by reason of the fault of the claimant but the damages recoverable in
respect thereof shall
be reduced by the court to such extent as the
court may deem just and equitable having
regard to the degree
in which
the claimant
was
at fault in relation to the
damage.'
The
provisions of
section 1
of the Act clearly relate only to cases where
a plaintiff has suffered harm partly as a consequence of his or her
own fault, and
partly as a consequence of the fault of the defendant.
The principle requires a comparative evaluation of the parties'
respective
degrees of fault and a proportionate reduction of the
damages recoverable by the plaintiff."
[31]
Therefore, what we have to determine for
purposes of this appeal, is whether the court a
quo's
findings with regard to the alleged
negligence of the respondents were correct for
purposes
of
the application
of
absolution from the instance.
I
will henceforth deal with the evidence and the court a
quo's
findings in this regard. When doing
so, it is necessary to also apply the principle that in order for a
party to succeed in an action
based on the
actio
legis aquiliae,
it is not required
that all the grounds of negligence which the party pleaded, be
proven.
[32]
On the appellant's version the second
respondent
warned
them, whilst they approached the bear in
the cage, that
although
the bear was tame, it was a dangerous animal.
Despite the second respondent herself
voiced and therefore knew that the bear was a dangerous animal, she,
on the appellant's version,
never warned or prevented the appellant
from standing close to the cage and/or not to touch the fence of the
cage and/or not to
stick her finger(s) through the fence. To the
contrary, it was not disputed that the second respondent even left
the appellant
and Ms Holroyd to remain on their own next to the cage
whilst she went to fetch a peach.
Thereafter, again instead of warning the
appellant not no bring her hand in close
proximity
to
the
fence,
she
gave
the
peach
to
the appellant
and
invited
her
to
feed
it
to
the
bear
through
the
fence.
[33]
In addition to the aforesaid, both the
appellant and Ms Holroyd testified that the second respondent was
present when the photo
was to be taken and when the incident
occurred.
Despite
her presence, on the evidence as is currently stands, the second
respondent at no stage prevented or warned the appellant
not to get
too close to the cage
and/or
not
to touch the fence of the cage and/or not to stick her finger(s)
through
the
fence during the process of posing for the photo.
[34]
In this regard the court a
quo
found as follows at paragraph [22]
of its judgment:
"Both
the plaintiff and Ms Holroyd .testified that the second defendant was
present when the incident happened, but neither
testified that the
latter saw the plaintiffs hand or fingers being held close to or
through the fence. There is no evidence, therefore,
that she had been
negligent in not warning the appellant shortly before the incident."
[35]
I cannot agree with the aforesaid
conclusion of the court a
quo.
The
appellant and Ms Holroyd could not have testified as to what the
second respondent saw or did not see.
The fact of the matter is that on the
appellant's case as it currently stands, the second respondent was
present without uttering
any warning to the
appellant.
It
would
therefore
be
for
the
respondents
to present evidence in response to the
appellant's case as to what the second respondent saw or did not see
at that stage.
[36]
Mr Boing testified in his evidence in
chief that he had
knowledge
of the bear which was being kept in a cage on the respondents'
premises and that during visits to the premises of the
respondents,
he saw the bear in the cage.
He testified that in his view the
following
shortcomings
existed in the manner and circumstances
in which the respondents
held the bear in the cage:
1.
Although legislation exists which
prescribes
specifications
for cages of indigenous animals, it
contains no specifications with regard
to cages for
foreign
animals, such as a bear.
However,
in his opinion the cage in which the bear was held was too small
which would have frustrated the bear.
2.
The wire fence which covered the iron
bars of which the cage was made, was not strong enough.
3.
In circumstances where members of the
public were to be allowed at the cage, a second railing or fence
should have been erected
at a distance of at least 1,2 metres from
the bear's cage to prevent members of the public from coming too
close to the cage.
The
mere fact that the
cage
was
built
on
a
concrete
platform
was
not
enough
to
keep
such
persons
at
a
safe
distance
from the cage.
4.
There were no sign boards which warned
members of the public of the danger the bear constitutes.
He
testified that members of the public
should have been properly be informed that the bear is a dangerous
animal.
[37]
It is common cause that the defendants
had a valid permit
which
authorised them to keep the bear on their premises in the said cage.
As already mentioned, Mr Boing testified that at the
time no
legislation existed which prescribed specifications for cages of
indigenous animals, such as a bear.
[39]
During his evidence in chief he
presented the following evidence, which is reflected at p. 124/21 to
p. 125/8 of the record:
"So
wat, wat ek net probeer vasstel is dit is hulle het nie by u kom
advies vra oor hoe hierdie hok moet .lyk nie, wat die
spesifikasies
moet wees nie?
...
Nee Edelagbare.
Op
die stadium toe u nou daar inspeksies gedoen het vir watter rede
ookal het u ooit aan die, aan die Regals uitgewys dat die hokke
is
nie eintlik geskik nie of nie volgens u standaard wat u sou verwag
nie? ... Nee Edelagbare. Dit is in die eerste plek nie my
mandaat
gewees nie aangesien dit 'n uitheemse dier was. Ek was ook nooit daar
om na die diere te kyk. Dit het maar toevallig gebeur
dat ons die
diere gesien het. Ons het by mnr Regal gereeld uitgekom oar
taksidermie aangeleenthede."
[40]
In its judgment the court a
quo
dealt with certain aspects of Mr
Being's evidence, whereupon it made certain conclusions:
"[25]
Counsel for the defendants pointed out the significance of Mr Boing's
concession that he was one of the top officials
in the employ of the
Department of Nature Conservation in the Free State and that the
keeping of animals and the safety of such
keeping fell under his
jurisdiction... Of special importance is his testimony that he
visited with the first defendant next to
the bear's cage on numerous
occasions, but that he never once mentioned to the first defendant
that the cage created a dangerous
situation, or that the absence of
warning signs could create a problem for·the defendant or for
the safety of visitors.
[26]
I 'agree with the defendants' counsel
that the only inference one can draw from that,
is that this
witness
who
was
a top
official
in
his field, either never
noticed
any danger
in
the situation,
or
did not consider it to be of sufficient concern to bring it to the
first defendant's attention.
[27]
That begs the question whether the
defendants should then reasonably have known that there was danger in
the situation and should
have taken steps to rectify the situation.
I agree that if an experienced top
official like Mr Boing never drew their attention to any dangerous
situation, it cannot readily
be said that they acted unreasonably
in
not
realising
that
the
situation
was
dangerous and that they were negligent
in not taking any reasonable steps to address such a situation."
[41]
Mr Boing did in fact concede that before
the permit was issued, the cage would have been inspected. He,
however, also
testified
that he himself never inspected the cage and never attended to the
premises of the respondents for purposes of inspecting
the cage.
The inspections were done by his
colleagues who did not have the same specialised knowledge he has.
He further testified that because at the
time no specifications existed for a cage in which to keep a bear,
his colleagues would
not have raised any issue regarding the
safety of the cage.
[42]
Mr Boing more than once emphasised
during his cross­ examination that whenever he visited the
premises of the respondents, it
was in relation to issues with regard
to the taxidermy business of the first respondent.
He, however,
readily
conceded that he knew about the cage and
that he
knew
what the cage looked like since he and the first respondent often
stood next to the cage in the shade whilst conversing.
[43]
The following question and answer
followed in his cross­ examination,
as reflected at p. 137/21 to p. 138/13
of the record:
"
Use
dat
u by verskeie geleenthede
saam
met mnr Regal daar by die hok staan en u kyk vir die beer en u sien
die hok, en dan verstaan
ek
van u op geen stadium het u vir mnr Regal gese maar hoor hierso ou
maat, hier is darem iets gevaarlik hier hoor.
Daardie beer gaan daardie ogiesdraad
opfrommel die dag ashy lus is om dit te doen.
Hierso moet 'n heining hier om wees,
netnou steek hy sy poot daardeur en hy gryp iemand.
U se u het nooit so iets vir horn gese
nie? ... U Edele, ja in nagedagtenis moes 'n ou dit dalk vir horn
gese het, maar soos ek
vroeer gese het, het ek was nooit daar vir
diere besigheid nie.
Ons
het van die taksidermie winkel af gestap na die horingstoor toe en
dan stap jy by die hokke verby en ek kom uit 'n dieretuin
agtergrond
uit.
Dit
was vir my partykeer mooi om die diere te sien.
Maar dit het nooit in my kop gekom om
vir horn te se weet jy daar is tout met die hokke nie.
Nee ek het dit nooit gese nie."
[44]
However, in my view, the aforesaid
concessions on which the respondents so heavily relied, should be
considered in conjunction with
the following explanations which Mr
Boing gave,
but
which
the
court
a
quo
failed
to
take
into consideration.
1.
Mr Being explained that he might have
warned the respondents
about
the dangerous situation with regard
to
the cage had he known that members of the public were also allowed at
the cage.
In
this regard he explained at p. 139/20 to 140/10 of the record that
there is a difference between the bear's owners being present
at the
cage as opposed to members
of
the public who are unknown to the bear:
"En
ek wil dit aan u stel dat u wat u lewe aan natuurbewaring en hokke en
goeters gewy het u sou dit vir horn verseker gese
het as u gedink het
daardie hok is gevaarlik, u sou dit gedoen het.   Ek sou
dit moontlik gedoen het, U Edele, as ek
geweet het hy laat publiek
daar toe en mense toe by die hokke. Maar ek het gedink dit is 'n
suiwer taksidermie en
that is,
dis dit.
En
nee wat mnr Boing, u het tog ten minste geweet dat mnr Regal self en
sy vrou kom van tyd tot tyd daar by die hok om met hul
troeteldiertjie te gesels of wat ookal. Dit maak mos nou nie saak of
daar nog een of twee ander ouens ook van tyd tot tyd daar kom
nie. U
sou vir horn gese het, stel ek aan u, as u gedink het daar is iets
gevaarlik. ... Ek sou, U Edele, maar daar is 'n verskil
tussen die
eienaar van die dier en vreemde mense wat die dier kom besoek. Daar
is beslis 'n verskil."
2.
The aforesaid evidence of Mr Being also
corresponds with evidence which he presented already during his
examination in chief at
p. 120/17 to p. 121/16 of the record:
"Nou
wat se u van die feit dat die, die getuienis in hoof namens die
eiseres was dat sy voorsien is van 'n perske deur Me Regal
engevra is
om die dier te voer.  Wat is u siening random dit?  ...
Edelagbare...die
algemene Jan Publiek kan nie voorsien, ek bedoel almal is nou nie
diere kenners nie. Ek glo die persoon, die eienaar
van die dier
behoort 'n diere kenner te wees. So Jan Publiek neem aan as die baas
die dier kan voer dan kan ek ook seker naby horn
kom. En die
ongesonde praktyk is dat jy, die eienaar raak aan die leeu (beer) en
dan, dan dink Jan Publiek hulle kan ook aan die
beer raak. ... En dis
net waar die probleem inkom. Die beer is gewoond aan sy eienaar maar
hy is nie gewoond aan lede van die publiek
nie. En ek staaf my woorde
deur my ondervinding in die dieretuin. Ons het spesifieke mense gehad
wat spesifieke diere opgepas het
en hulle het dit vir jare gedoen.
Ons het nie die arbeid in die dieretuin gereeld rondgeskuif tussen
hokke nie. Ashy by die bere
gewerk het, het hy omtrent lewenslank by
die bere gewerk en so by die roofdiere ensovoorts."
3.
In cross-examination Mr Being was
referred to a letter, dated 19 August 2014
issued by the Department, which letter,
although signed by the Acting Head Director, was written by Mr Being.
In the said letter
reference was made to the respondents'
bear and,
inter
alia,
stated the following:
"Enclosures
were inspected prior to permits being issued. Enclosure was found to
be in good order and permits have always been
kept updated."
In
re-examination when Mr Being was asked what he meant by_ the
aforesaid, he responded as follows at p.154/24 to p. 155/12 of the

record:
"
As
daar
staan
dat
die
'enclosure
was
found
to
be
in
good
order
wat word daarmee bedoel?
Beteken dit die beer sal nie ontsnap
nie of
beteken
dit hy is veilig
vir besoek
deur die publiek
of
beteken dit die beer behoort gelukkig te wees met die
omgewing waarin hy is, wat beteken dit?
...
Dit
beteken, U Edele, verskeie dinge.
Dit
beteken die beer sal veilig wees binne-in die
hok en dat hy goed versorg word.
Beteken
dit dat die hok is voldoende beveilig dat die
publiek horn mag besoek?
Kan u dit daaruit lees?
...
Nee,
ek glo
nie,
soos ek vroeer gese het U Edele. dit gaan oor die dier vir ons
.
So die hok is goed genoeg om die dier binnekant te hou en hy word
goed versorg.
Dis,
dis al wat ek eintlik bedoel het by daardie brief." (Own
emphasis).
Conclusion:
[45]
When considering
the issue of the respondents'
negligence,
it is important to consider it in the
light of Mr
Boin
g
·
s evidence that in the circumstances
where the encaged bear was not
open for visits by members of the
public, the inspection of the cage by his officials and the issuing
of the permit were done for
the purpose and on the basis of the
safety and the well-being of the bear, not for that of members of the
public, such as the appellant.
[46]
In my view Mr Boing's evidence may be
found to be sufficient
for
the appellant to ultimately succeed in proving that the first and/or
second respondents were negligent in one or more of
the manners pleaded. The evidence led on
behalf of the appellant was sufficient that a court may find in the
appellant's favour
on the basis of the
actio
legis aquiliae.
[46]
On a proper reading and consideration of
the totality of Mr Being's evidence and bearing in mind that he is an
expert in his field,
it
prima facie
indicates that the fence which
covered the cage (or part thereof) did not afford adequate protection
against the bear and that the
first and/or the second respondents
were negligent
in
allowing
members
of the public,
and
the appellant in particular, to come and to be in close proximity of
the bear's cage in circumstances in which they failed to
take
adequate, reasonable and necessary steps to protect him/her against
the bear·by,
inter alia:
1.
their failure to have erected a second
railing or fence at least 1.2 meters from the bear's cage; and/or
2.
their failure to have expressly warned
the appellant from coming in close proximity of the cage and/or from
touching the cage/fence.
[47]
The second respondent
prima
facie
also created a false sense
of safety to the appellant by having
invited the appellant to feed the pear to the bear through the fence
of the cage, whilst the
second respondent knew·
or.ought to have known that it was
dangerous to do so.
[48]
In the circumstances the court a
quo
could also not have found that
the
appellant
accepted
the
risk
of
injury
(volenti
non
fit iniuria),
moreover
so considering
that the burden of proof with regard
thereto rests upon the respondents.
[49]
In my view the appellant made out a
prima facie
case
to which the respondents have to respond, failing which the appellant
may succeed in her action based on the
actio
legis aquiliae.
[50]
For purposes of this appeal, the aforesaid
prima
facie
grounds of negligence on the side of the first and/or second
respondents are sufficient for the appeal to succeed. This, however,

does not mean that after having considered the totality of the
evidence after the close of the respondents· case, the court
a
quo
may not find that the appellant proved additional grounds
of the pleaded negligence on the part of the first and/or second
respondents.
Order:
1.
The
appeal
succeeds
and the
order
of
the court
a
quo,
dated 11
December 2014,
is
set
aside
and
substituted
with
the
following:
"The
application
for
absolution
from
tt1e
instance is
dismissed,
with
costs."
2.
The respondents are ordered to pay the
costs of the appeal, jointly and severally, payment by the one the
other to be absolved.
C.
VAN ZYL, J
I
concur
M.L
OPPERMAN, J
I
concur
N.S
DANISO, J
On
behalf of appellant:

Adv. FG Janse
van Rensburg
Instructed
by
:

Lovius
Block
Attorneys
BLOEMFONTEIN
On
behalf of the respondents:
Adv.

JJF Hefer SC
Instructed
by
:
Webbers

Attorneys
BLOEMFONTEIN