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[2019] ZAFSHC 3
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Roberts and Another v MEC, Department of Police, Roads and Transport, Free State Province (1447/2017) [2019] ZAFSHC 3 (7 February 2019)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No.: 1447/2017
In
the matter between
WERNER
ROBERTS
First
Plaintiff
JAMES
HARRY
ROBERTS
Second
Plaintiff
and
THE
MEC, DEPARTMENT OF POLICE,
ROADS
AND TRANSPORT,
FREE
STATE
PROVINCE
Defendant
HEARD
ON:
20, 21 and 23
NOVEMBER 2018
JUDGMENT
BY:
DAFFUE, J
DELIVERED
ON:
7 FEBRUARY 2019
I
INTRODUCTION
[1] Some five kilometres
outside the town of Hertzogville a young matric learner’s motor
vehicle trip from his school in Bloemfontein
to his parental home in
the Hertzogville district came to a sudden and abrupt end. In
broad daylight at about noon he collided
with a kudu bull that
attempted to cross his path of travel. The question to be
answered is whether it is a case of
res perit domino
–
damage rests where it falls - or whether the Free State Province
under whose control the particular public road resorts,
must be held
liable in delict as plaintiffs aver. It was not and could not be
contended that the kudu belonged to anyone.
It was accepted by
necessary implication by all to be
res nullius
.
Therefore no one, save for the present defendant could potentially be
blamed for causing the damages suffered.
II
THE
PARTIES
[2]
First plaintiff is Mr Werner Roberts, (“Werner”) the
former learner mentioned above, who was seriously injured in
the
aforesaid collision. Second plaintiff is his father, Mr James Harry
Roberts, a farmer of the Hertzogville district
.
For the sake
of convenience I shall hereinlater refer to first plaintiff as Werner
and to his father as Roberts Sr, save when I
refer to plaintiffs’
averments as set out in the pleadings. Adv PJJ Zietsman
appeared for the plaintiffs on the instructions
of Honey Attorneys.
[3] The defendant is the
MEC for the Department of Police, Roads and Transport, Free State
Province (“the defendant”).
Adv N Snellenburg SC,
assisted by Adv LR Bomela, acted for the defendant on instructions of
the Office of the State Attorney.
III
THE
PLEADINGS
[4]
In their particulars of claim the plaintiffs allege that on 26 June
2015 at about 11h30 a collision occurred between a motor
vehicle
driven by Werner and a kudu entering the R59 at about four and a half
kilometres from Hertzogville whilst vegetation alongside
the road
obscured the kudu from Werner’s view, causing severe injuries
to him.
[5]
It is
inter
alia
plaintiffs’ case relating to wrongfulness that defendant knew
that its failure to control the growth of vegetation on the
road
reserve alongside the R59 could restrict motorists’ view and
endanger them as a result of reduced visibility and that
it had a
legal duty to take reasonable steps such as controlling the growth of
vegetation in the road reserve to avoid risks presented
by reduced
visibilty.
[6]
Plaintiffs’ reliance on negligence is based on defendant’s
breach of its legal duty, through its employees, by omitting
to cut
the vegetation when they should have done so and as could reasonably
be expected of them in the circumstances, thereby allowing
the
vegetation to grow and preventing Werner from seeing the kudu until
it entered the road.
[7]
Werner suffered serious injuries as more fully set out in paragraphs
[10] to [13] while Roberts Sr incurred medical expenses
in respect of
Werner’s medical treatment as pleaded in paragraph [14].
[8]
In paragraph 4 of the plea defendant, whilst admitting a legal duty
and
inter
alia
the
“
duty
to control the growth of vegetation within the road reserve adjacent
to the road,”
denies
the remainder of plaintiffs’ allegations.
[9]
Defendant pleaded in paragraph 3 of its plea
“
...
that its failure to control the growth of vegetation in the road
reserve adjacent to the road,
could
not restrict the view of the reasonable motorist using the road and
endanger such motorist as a result of reduced visibility.”
Wrongfulness,
negligence and causation were all put in dispute. In
particular, pertaining to causation, it is alleged in paragraph
3.4
that
“
the
loss is too remote and not sufficiently linked to the loss (sic) so
as to attract liability.”
[10] Although defendant
denied in its plea that a collision occurred, this became common
cause later. It denied negligence
as mentioned earlier, but
alleged that in the event of a finding of negligence against
defendant, Werner was also negligent in
that he failed to (1) keep a
proper look-out, (2) apply his brakes timeously or at all and (3)
exercise proper and adequate control
over his vehicle.
During the trial it emerged, also from the testimony of defendant’s
own expert, that there
was no merit in any of these defences.
Mr Snellenburg sought an amendment after plaintiffs had closed their
case in order
to rely on excessive speed. Werner testified that
he travelled at a speed of between 120 and 130 kph. I granted
the
amendment notwithstanding objection. Mr Zietsman did not
apply to reopen plaintiffs’ case and merely recorded that it
was never put to Werner that he was travelling at an excessive speed.
IV
SEPARATION
OF MERITS AND
QUANTUM
[11] During a pre-trial
conference held in terms of rule 37(8) I separated merits and
quantum
by agreement in terms of rule 33(4), ordering that the disputes
contained in paragraphs 5 to 9 of the particulars of claim read
with
paragraphs 2 to 6 of the plea be adjudicated at first. Prior to
the leading of evidence I amended the order by agreement
insofar as
the allegations in paragraph 5 and subparagraphs 6(a) to 6(c) of the
particulars of claim were not in dispute.
The issues pertaining
to
quantum
– paragraphs 10 to 14 – stand over for
later adjudication if required
V
COMMON
CAUSE FACTS
[12]
The following facts turned out to be common course, either from the
pleadings, or as agreed prior to the leading of evidence,
or during
the hearing of the matter:
12.1 Werner was 18 years
old and a grade 12 learner when he, the driver of a Ford Territory
motor vehicle, collided with an airborne
and full-grown kudu bull
appearing from Werner’s left hand side;
12.2 The collision
occured in daylight at about 11h30 to 12h00 on the R59, a tarred
road, and approximately 4.5 to 5 kilometres
from the town of
Hertzogville ;
12.3 The road links
Hertzogville and Bloemfontein in that motorists have to travel on the
R64 from Bloemfontein through Dealesville
whereafter the R59 turns
off the R64 and continue to
inter alia
Hertzogville;
12.4 The R59 neither has
a tarred shoulder, nor a yellow line indicating the edge of the road
whilst relatively short grass grew
on the gravel shoulder at the
relevant time
ex facie
the admitted photographs;
12.5 From about thirty to
forty kilometres prior to the area of collision, when driving from
Bloemfontein, cultivated fields are
found on both sides of the road
and the road reserve is relatively cleared from shrubs and trees,
save for the occasional single
tree;
12.6 In the
vicinity of the area of collision relatively dense shrubs and trees
of different heights, particularly thorn trees,
are abound on the
road reserve on both sides of the road as is apparent from several
photographs, including a Google Earth picture;
in the area where
impact with the kudu took place overhanging branches of a tree were
measured to be 1.6 metres from the edge of
the tarred road to
Werner’s left hand side as he was travelling, and reference was
even made during testimony of a tunnel
effect caused by the
vegetation;
12.7 Defendant, through
its employees, was under an obligation to maintain the road reserve
alongside the R59; it was aware that
vegetation grew in the road
reserve and that animals were able to traverse the veld adjacent to
the road and to enter the road;
12.8 Defendant, through
its emplyees, was under a legal duty to control the growth of
vegetation within the road reserve alongside
the R59, but defendant
was not prepared to concede that its failure would pose a safety
hazard to motorists; defendant also denied
that the legal duty
entailed that it had to take such steps as were reasonable in the
circumstances to avoid risk to motorists
presented
inter alia
by restricted visibility.
VI
SUMMARY
OF THE EVIDENCE
[13]
I do not intend to summarise the evidence in any detail insofar as
much is common cause as set out in the previous paragraph.
Four
witnesses testified for the plaintiffs, to wit Werner and Roberts Sr,
Mr RC Brits and the expert, Dr L Roodt, a practising
specialist civil
engineer. I shall not deal with the testimony of plaintiffs and
their witnesses in the order that they testified,
but as I deem fit.
Mr B Grobbelaar, a forensic engineer specialising in
inter
alia
accident reconstruction cases, was defendant’s only witness.
[14]
Werner testified that he and Nicola van Heerden travelled the
particular morning from Bloemfontein to the Hertzogville district
in
her mother’s vehicle. He wrote an easy examination paper
that morning –
“
opstel
en brief”
as
he called it - and he did not have to prepare for it. He went
to bed early the previous evening. He knows the road
well and
has been travelling it regularly since his grade 7 days. He
testified that the speed limit was 120 kph as indicated
by a road
sign on the particular road. Although Werner was not
cross-examined in this regard, it appears from Dr Roodt’s
evidence who visited the scene much later that he did not notice any
road sign indicating a speed limit of 120 kph and therefore
he
accepted that the speed limit was only 100 kph. Mr Grobbelaar
relied on the AR Police report in respect of the collision
which
indicated a speed limit of 120 kph. Werner’s speed
immediately before the collision was between 120 and 130 kph.
According to him that is the normal speed maintained by road users on
that road. He stated that there could be kudu in the
Hertzogville district although he had never seen or come across one
on that road. From about 30 to 40 kilometres to the scene
of
the collision as he was travelling from Bloemfontein the road reserve
was relatively clear from shrubs and trees as crop farmers
removed
the vegetation in order to ensure that their crops obtain the
advantage of underground water. It was a clear day
and at about
11h30 he entered the stretch of road that he called the tunnel of
trees. The road ahead of him was clear.
Suddenly he
became aware through his periperal vision of a greyish object which
was higher than his face and to his left.
He was aware of the
airborne object, but he could not recall the impact or what happened
since that moment until he gathered consciousness
later.
According to him it could be a donkey and he could not say that it
was actually a kudu. He testified that it
was impossible to
observe animals in the road reserve in the particular area as a
result of the denseness of the trees. He
confirmed that the
road and the shoulder of the road to a width of 1.5 metres were clear
as he approached. He could not do
anything to avoid the
collision even if he looked directly at the animal prior to impact.
[15]
Mr Snellenburg put it to Werner that he was a farm boy and should
have foreseen that there might be animals in the bush or
“
bos”
as said.
Werner responded that he had never seen any animals in the road
reserve in that area prior to the collision.
[16]
Mr Brits was the first person that arrived at the scene of the
collision. He farms about 6 to 7 kilometres from the scene
in
the direction of Dealesville. He confirmed the relatively open
and clear road reserve from Dealesville, save for occasional
trees,
unlike the dense trees found in the area where the collision
occurred. It should be mentioned at this stage that the
evidence of these two witnesses is confirmed by the Google Earth map
and various photograps, as well as the evidence of Roberts
Sr, Dr
Roodt and Mr Grobbelaar.
[17]
On his way from Hertzogville to his farm Mr Brits came across the
decapitated head of a full-grown kudu bull, lying on the
road surface
and in the lane in which he was travelling. He stopped and
having heard a woman crying out, he investigated
and came across the
vehicle driven by Werner, who was still inside the vehicle and
bleeding profusely. Werner did not react
and could not speak to
the witness. Mr Brits called his son with instructions to call
Roberts Sr whilst he tried to stop the bleeding.
Roberts Sr
arrived soon, as well as a doctor of Hoopstad. Werner was taken
to hospital and the witness remained on the scene
for a while.
He found the body of the kudu next to the road,
i.e.
to the left hand side as Werner was travelling. He explained
that just before the area where the collision occurred, the
road
forms a small incline –
“‘
n
opdraande of hobbeltjie” – the effect being that the road
slopes downwards in the direction of Hertzogville.
[18]
Mr Brits testified that he had been resident on his farm for forty
years and although he was aware of kudu grazing in the area
from time
to time, they always move on to other areas. I wish to point
out at this early stage that Mr Snellenburg eventually
argued
relating to foreseeability that according to Mr Brits’ evidence
the vegetation in the road reserve has been in exactly
the same state
for ten years. This is not correct. Mr Brits referred to
an incident when he came across a vehicle that
left the road which
ended up underneath trees. Logic dictates that in a period of
ten years vegetation such as shrubs and
thorn trees would have become
taller and more dense.
[19]
At a later stage Mr Brits came across Mr Grobbelaar when Grobbelaar
was busy with an inspection at the scene of the collision.
They
communicated and he also indicated to him the position of the kudu’s
carcass and where he found the head. He disagreed
with the
positions as documented by Mr Grobbelaar in his report and shown on
photographs taken by him. According to him the
head of the kudu
was closer to Hertzogville than the carcass thereof and he also
disagreed as to the position where he found the
carcass. He
insisted that the carcass was found close to a Suidwes thorn tree,
which is different from other thorn trees
found in the area.
[20]
Roberts Sr testified that he had been contacted by Mr Brits who
informed him of the collision. He confirmed the
condition of
the road reserve as testified to by his son and Mr Brits. On
his way to the scene he called the doctor from
Hoopstad. He
referred to the plaintiffs’ photo bundle and confirmed that,
save for two photographs taken by his father
on the same day in his
presence, the other photographs were taken by him the following
Monday. He identified the position
where the kudu’s
carcass was found (which was earlier marked with a tin can) and the
path travelled by the vehicle from impact
till its stationary
position. Save for a minor difference between his version as to
where the carcass of the kudu was found
and the area of collision,
his evidence is in line with that of Mr Grobbelaar. The
photographs taken by the witness clearly
shows the tunnel effect
caused by trees alongside the road. At the point where the
collision occurred, the branches of the
one tree reach a point 1.6
metres from the edge of the tarred road. It is evident that the
gravel shoulder of the road in
the area was overgrown with grass at
the time, indicative of a lack of maintenance. However, the
height of the grass could
not and did not play any role in the
occurrence.
[21]
Dr Roodt testified for plaintiffs as an expert. His report was
accepted as part of the evidential material as is the
case with Mr
Grobbelaar’s report. The expertise of both witnesses was
accepted by the parties. Although Mr Snellenburg
critisised Dr
Roodt of being subjective, I am satisfied that the general tenor of
his version makes common sense and should be
accepted.
[22]
Dr Roodt referred to the South African Road Classification and Access
Management Manual (COTO 2012) endorsed by all Provinces
and
classified the R59 as a Class R2 road. Mr Snellenburg tried to
show that he was wrong and that it should be classified
as a Class R3
road. It appears from the maps, Appendix A of Dr Roodt’s
summary, that the R59 does not discontinue at
Hertzogville, but
actually passes the town. It was not testified to by the
witness, but anyone with a bit of knowledge of
the area will be able
to tell that the R59 continues to Christiana in the Northern Cape
Province.
[23]
The central theme of Dr Roodt’s evidence is that road builders
and also people in control of road maintenance should
regard safety
as paramount. A foregiving roadside environment should be
provided. He explained the obvious,
i.e.
the wider the road shoulder, the lower the risk of a collision.
He testified that the road reserve should be 6 metres in
width and
that it should be kept clean. All non-functional structures
such as trees and shrubs that are not specifically
protected should
be removed. It is not in dispute that the thorn trees and
shrubs in the road reserve are not proteced plants.
Human factors
must also be taken into consideration when roads are designed and/or
maintained, such as visual perception, reaction
time, expectancy,
frailty, fatique and distraction.
[24]
Dr Roodt testified that the vegetation on the R59 between km 52.35
and 53.0 (less than 700 metres) fails the test of safety
on two
counts, to wit it did not provide a safe recovery area in terms of
the forgiving roadside approach and secondly, it obscured
potential
dangers such as animals in the road reserve. He also referred
to the tunnel effect created by the excessive trees
and shrubs on the
road shoulder and road reserve. He reiterated the reduced
shoulder width as seen on the photographs annexed
to his report.
According to the witness, Werner could have evaded the kudu if the
road reserve was clear of vegetation that
obscured his vision.
[25]
Finally, the witness referred to the national S’hamba Sonke
programme for job creation and poverty eradication in rural
areas, a
programme funded by central government which is in addition to the
Provincial Road Maintenance Fund and stated that funding
was
available
“
to
promote maintenance on rural roads in local context using manual
labour.”
[26]
Defendant failed to call any witnesses to show that the
“
good
practice”
adopted
by Provinces as testified to by Dr Roodt should not be applicable to
the Free State Province and why the admitted legal
duty to keep the
road reserve clean was not adhered to. Instead it elected to
call an expert to provide the court with certain
calculations in an
attempt to show the absence of factual causation. The
expert, Mr Grobbelaar, was the defendant’s
only witness.
He visited the scene twice in May 2018, about three years after the
event. He was in possession of photographs
taken by plaintiffs,
the AR form of SAPS, Dr Roodt’s report and plaintiffs’
particulars of claim when he visited the
scene. He accepted
that the kudu was airborne when it collided with the vehicle, bearing
in mind the nature of the damage
to the vehicle. He took
photographs and also relied on points
inter
alia
pointed out by Mr Brits whom he met at the scene. He confirmed
in his report
“
the
bushes and grass on the western side of the road (left hand side as
the Ford was travelling) in the road reserve on approach
to the
accident scene.” Mr Grobbelaar pointed out trees and
shrubs at the other side of the stock fence (inside the
adjacent
farm) that would probably have concealed the kudu if it was in that
area before the collision. He also testified
about the
embankment on the other side of the fence and the fact that at the
particular point the road passes through a cutting,
the effect being
that the road surface was lower than the veld on the other side of
the fence. For this reason also,
the kudu would be
obscured from Werner’s view as he was approaching, obviously on
the assumption that the kudu simultaneously
came running from the
farm into the direction of the road.
[27]
Mr Grobbelaar measured the road reserve from the edge of the tarred
road to the stock fence and found it to be 12.5 metres
wide.
The stock fence was 1.2 metres in height. He calculated
stopping distances based on the vehicle’s speed
at 100, 120 and
140 kph, taking into consideration reaction time and concluded the
stopping distances to be 98, 131 and 169 metres
respectively and
stopping time to be 5.5, 6.4 and 7.2 seconds respectively. He
also relied on the speed of a kudu when walking,
trotting and bolting
as between 3.6 to 7.2, 30 to 40 and 50 to 60 kph respectively and
testified about the time it would take from
the fence to the road in
each case.
[28]
Based on the calculations in the previous paragraph Mr Grobelaar
considered three possible scenario’s, accepting that
there was
no significant vegetation in the road reserve on the western side
obscuring Werner’s view. If the kudu was walking
from the fence
towards the road, there would have been sufficient time for Werner to
avoid a collision. If the kudu was trotting
from the farm,
being obscured by vegetation on the farm as well as the embankment,
then jumped the fence and trotted towards the
road, it is improbable
that Werner would have been able to avoid a collision as the kudu
would have crossed the road reserve within
1.1 to 1.5 seconds.
This scenario is based on the assumption that the kudu trotted in a
straight line towards the road and
in such instance Werner would not
even have time to react. The third scenario is worse for
plaintiffs’ case.
If the kudu bolted from the farm at a
speed of between 50 to 60 kph, jumped the fence and ran directly
towards the road, it would
have taken him a mere 0.7 to 0.9 seconds
to cross the road reserve during which time he would be visible to
the oncoming Werner.
Obviously, there would be no time to avoid
a collision. Mr Grobbelaar conceded that it was unknown and
impossible to establish
where the kudu was at any given time prior to
it jumping towards the road. He conceded that a kudu can jump
into the air
from a stationary position.
[29] Although the
evidence is really quite straight-forward and no serious or material
differences need to be considered during
the evaluation process
infra
, it is important to extensively deal with several
judgments in order to set the scene for a proper evaluation of the
dispute.
Leach, JA stated in
Crafford
to be discussed
infra
that the law of delict is based on well-settled
principles, but it will appear from the authorities quoted
infra
that there are still differences of opinion amongst judges.
Several academic writers have also critisised the manner in which
judges adjudicate the different elements of the law of delict.
Therefore, and as it is often still cumbersome to apply the
law to a
particular factual scenario, I decided to consider several judments
in the hope that I may eventually arrive at the correct
conclusion.
VII
LEGISLATION
AND AUTHORITIES
[30]
Part A of Schedule 5 of the
Constitution provides for the functional areas of exclusive
provincial legislative competence, one of which
is
provincial roads and traffic. In terms of s 125(2)
(a)
of
the Constitution, the Premier, together with the other Members of the
Executive Council, exercises executive authority
by implementing
provincial legislation in a Province.
[31]
When one considers the consequences of the failure to maintain roads,
shoulders and road reserves, a person’s fundamental
right such
as the right to an environment that is not harmful to his/her health
and well-being, entrenched in s 24 of the Constitution,
comes into
play and it must be read with s 7(2) which stipulates that the State
must respect, protect, promote and fulfil the rights
in the Bill of
Rights. Although in a totally different context, the
dicta
of Mogoeng, J (as he then was) in
F
v Minister of Safety and Security
2012
(1) SA 536
(CC) in paragraphs [57] to [61] and Froneman, J, in
paragraphs [121] to [124] should be appreciated. In
adjudicating the
element of wrongfulness, constitutional values
should be considered during the evaluative assessment, in particular
the norm of
accountability.
[32]
The relevant provincial legislation is the Free State Roads
Ordinance, 4 of 1968, as amended. Section 19, which is couched
in permissive language, provides that
“
the
Head of the Department may (a) plant trees or any vegetation; (b)
remove trees or any vegetation; (c) effect such improvements;
or (d)
provide such amenities, within the road reserve of a public road, as
he or she may deem fit.”
[33]
In
Schwartz
v Schwartz
[1984] ZASCA 79
;
1984
(4) SA 467
(A)
Corbett
JA (as he then was) said the following in respect of permissive
language used in a statute at 473I – 474E:
“
A statutory
enactment conferring a power in permissive language may nevertheless
have to be construed as making it the duty
of the person or authority
in whom the power is reposed to exercise that power when the
conditions prescribed as justifying its
exercise have been satisfied.
Whether an enactment should be so construed depends on,
inter
alia
, the language in which
it is couched, the context in which it appears, the general
scope and object of the legislation, the
nature of the thing
empowered to be done and the person or persons for whose benefit the
power is to be exercised…….
As was pointed out in
the
Noble &
Barbour
case
supra,
this
does not involve reading the word ''may'' as meaning “must”.
As long as the English language retains its
meaning ''may'' can never
be equivalent to ''must”. It is a question whether the grant of
the permissive power also imports
an obligation in certain
circumstances to use the power.”
[34]
In my view the defendant has an obligation to use the powers
contained in s 19 of the Ordinance when the conditions prescribed
as
justifying its exercise have been met as stated by Corbett JA.
Roads and road reserves fall within the exclusive legislative
competence of the Province and no person or authority other than the
defendant has the power to maintain road reserves, unless
by
agreement with the defendant. Although in a different context,
it is apposite to mention the judgment of Roberson, J in
Agri
EC v MEC, Department of Roads and Public Works
2017 (3) SA 383
(ECG) at paragraphs [34] and [35] in particular.
I agree with the sentiments expressed.
[35]
In
Minister of Safety and Security v Van Duivenboden
2002 (6)
SA 431
(SCA) the SCA per Nugent, JA expressed several
dicta
relating to the accountability of organs of State in paragraphs [19]
to [22] and I paraphrase some:
“
However, those
barriers are less formidable where the conduct of a public authority
or a public functionary is in issue, for it
is usually the very
business of a public authority or functionary to serve the interests
of others…”
“…
it must
also be kept in mind that in the constitutional dispensation of this
country the State (acting through its appointed officials)
is not
always free to remain passive.”
“
The very existence
of that duty (the positive duty to act in the protection of the
rights enshrined in the Bill of Rights) necessarily
implies
accountability…”
“
Where the conduct
of the State, as represented by the persons who perform functions on
its behalf, is in conflict with its constitutional
duty to protect
rights in the Bill of Rights, in my view, the norm of accountability
must necessarily assume an important role
in determining whether a
legal duty ought to be recognised in a particular case.”
“
There was no
suggestion by the appellant that the recognition of a legal duty in
such circumstances would have the potential to
disrupt the efficient
functioning of the police or would necessarily require the provision
of additional resources.”
[36]
The following may be mentioned to emphasise the points articulated in
the previous paragraphs. Although the Department
has the right
in terms of s 13 of the Ordinance to
inter
alia
remove a fence
alongside a public road, the section being in permissive language as
well, it would be highly controversial and
unreasonable for the
Department to start removing fences along public roads in areas where
stock farming is undertaken.
[37]
I referred to the principle
res
perit domino
in
the introduction
supra.
In
considering the plaintiff’s claims I shall not ignore the
warning of Harms, JA in
Telematrix
(Pty) Ltd t/a Matrix Vehicle Tracking v Advertising Standards
Authority SA
2006 (1) SA 461
(SCA)
in
paragraph [12] where it was said that the first principle of the law
of delict is that everyone has to bear the loss he or she
suffers and
that Aquilian liability provides an exception to that rule.
Related thereto is always the apprehension of boundless
liability.
[38]
Plaintiffs quite clearly believe that this is not a case of
res
perit domino
in that they seek an order in terms whereof the defendant is obliged
to bear the damages suffered by them. The case they
elected to
institute is based on delict. The five requisites for delictual
liability are well-known. These are (a)
conduct of the
defendant which can be in the form of a
commissio,
e.g.
a
voluntary human act
,
or
an
omissio
,
e.g
.
the failure to take a positive step to prevent damage to another
where there was a legal duty to act; (b) wrongfulness of that
conduct; (c) fault in the form of negligence (or intent); (d) harm
suffered by the plaintiff and (e) a causal connection between
the
harm and the defendant’s conduct.
[39]
I shall refer to several decided cases dealing with i
nter
alia
the element of
wrongfulness
infra
,
but wish to start off with the often quoted judgment of
Minister
van Polisie v Ewels
1975
(3) SA 590
(A). It is stated at 597A-B that conduct is wrongful
if public policy considerations demand that in the particular
circumstances
the plaintiff has to be compensated for the loss
suffered by the defendant’s negligent act or omission,
i.e.
the legal convictions of society regard the conduct as wrongful.
[40]
In
Hawekwa
Youth Camp and Another v Byrne
2010
(6) SA 83 (SCA)
the SCA confirmed the legal position as follows in paragraph [22]:
“…
.
negligent conduct which manifests itself in the form of a positive
act causing physical harm to the property or person of another
is
prima facie wrongful. By contrast, negligent conduct in the form of
an omission is not regarded as prima facie wrongful. Its
wrongfulness
depends on the existence of a legal duty. The imposition of this
legal duty is a matter for judicial determination,
involving
criteria of public and legal policy consistent with constitutional
norms. In the result, a negligent omission causing
loss will only be
regarded as wrongful and therefore actionable if public or legal
policy considerations require that such omission,
if negligent,
should attract legal liability for the resulting damages.”
[41]
In
MEC
for the Department of Public Works, Roads and Transport v Botha
(20811/2014)
[2016] ZASCA 20
(17 March 2016) the SCA warned against
imposing a wide and general duty upon public authorities in the
absence of relevant evidence.
In that case the respondent
(plaintiff in the court
a
quo
)
suffered damages as a result of a collision with a tree that had
fallen into the road. The Department was held liable based
on
negligence and the SCA confirmed the judgment of the court a quo in
that respect. The evidence showed that the Department’s
employees were aware of the fallen tree and even started to take
steps to remove it from the road surface, but then abandoned the
unsuccessful attempts without warning motorists of the danger.
Much evidence was led in respect of the Department’s
alleged
duty of care
“
...
to maintain the road by removing trees that constantly grow and cause
a potential danger to the road users.” Evidence
was
inter
alia
led as to the duty to examine the conditions of the ground and the
roots at the base of trees and it was even suggested by one
of
plaintiff’s experts that the Department should have had in
place a systematic programme of eliminating trees which could
potentially be blown over in a storm, resulting in an obstruction of
the road. In the context hereof the SCA held at paragraph
[13]
that in the absence of evidence as to the costs and difficulty of
taking preliminary measures by appellant, the imposition
of such a
duty was unjustified.
[42]
In
Administrateur,
Transvaal
v
Van der Merwe
[1994] ZASCA 83
;
1994 (4) SA 347
(AD) at 359H – 360H the Appeal Court, as it was
known, found that the fact that the Administrator had control and
supervision
over a road was a necessary factor to find liability on
his part, but this was in itself not sufficient. In that case a
fire
emanated from the road reserve and spread to an adjacent farm.
The Administrator had a policy in place in terms whereof, by
reason
of the cost factor, firebreaks would be made alongside proclaimed
roads only when requested by landowners and in co-operation
with
them. The Appeal Court found that the Administrator’s
omission in not making firebreaks was, based on the totality
of the
evidence, not wrongful. See 361H - 362B and also the conclusion
at 363C that affordabilty and proportionality between
the potential
damage and the potential cost of prevention should be brought into
account in deciding the issue of wrongfulness.
[43]
In
Cape
Town Municipality v Bakkerud
2000 (3) SA 1049
(SCA) an elderly lady stepped into one of two
potholes close to each other on a Sea Point pavement in Cape Town and
fell, injuring
herself. She was successful in the Magistrate’s
Court, in the High Court where the matter was dealt with by a Full
Court, as well as on appeal to the Supreme Court of Appeal.
Marais, JA, writing for a unanimous SCA bench referred to the
dictum
of Brand, J (as he then was) in the High Court that the relative
immunity conferred upon local authorities in the so-called
“municipality
cases” was inconsistent with the legal
convictions of the public that municipalities were required to keep
streets and pavements
in a safe condition. The learned judge of
appeal considered numerous authorities and held at paragraph [17]
that
“
....when
a court is required to consider whether a legal duty should be
imposed in a given situation the ‘balance ultimately
struck
must be harmonious with the public’s notion of what justice
demands.’”
[44]
In paragraph [26]
of
Bakkerud
supra
the learned judge of appeal agreed with the High Court’s
conclusion that the general immunity of municipalities should be
revisted, but it was made clear that it could not be substitued with
a blanket imposition upon municipalities generally of a legal
duty to
repair roads and pavements. In applying the test of what the
legal convictions of the community demand, the learned
judge of
appeal stated in paragraph [27] that
“
...
the Courts are not laying down principles of law intended to be
generally applicable. They are making value judgments
ad hoc.”
He continued in paragraph [28] to contrast the position of small and
underfunded municipalities with large
and well-funded municipalities
and made two points. The small municipality may have many other
pressing claims that require
priority and in such case it may well be
found that it did not have a legal duty to repair its streets and
pavements. On the other
hand, it may be impossible, even for a large
and well-funded municipality to keep its streets and pavements in a
pristine condition
at all times.
[45]
Ultimately it was found in paragraph [32] of
Bakkerud
supra
that there was a legal duty on the municipality to repair the two
potholes, bearing in mind that Seapoint was a densely populated
suburb, the potholes were close to each other and not shallow and
were there for several months. Negligence was also found
and
the municipality’s appeal was dismissed. No evidence was
presented by the municipality.
[46]
In
Gouda
Boerdery Bk v Transnet
2005 (5) SA 490
(SCA), Scott, JA, writing for a unanimous court,
explained in paragraph [12] that in order to find whether a legal
duty existed
to act positively, factors such reasonableness, policy
and, where appropriate, constitutional norms should be considered.
[47]
In
Country
Cloud Trading CC v MEC, Department of Infrastructure Development,
Gauteng
2015
(1) SA 1
(CC) the wrongfulness enquiry was dealt with as follows:
”
[20]
Wrongfulness is an element of delictual liability. It functions to
determine whether the infliction of culpably caused harm
demands the
imposition of liability or, conversely, whether ‘the social,
economic and others costs are just too high to justify
the use of the law
of delict for the resolution of the particular issue.’
Wrongfulness typically acts as a brake on liability, particularly in
areas of the law of delict where it is undesirable or overly
burdensome to impose liability.
[21]
.....The statement that harm-causing conduct is wrongful expresses
the conclusion that public or legal policy considerations
require
that the conduct, if paired with fault, is actionable. And if conduct
is not wrongful, the intention is to convey the converse:
‘that
public or legal policy considerations determine that there should be
no liability; that the potential defendant should
not be subjected to
a claim for damages’, notwithstanding his or her fault.”
(emhasis added.)
[48]
In
Loureiro
and Others v Imvula Quality Protection (Pty) Ltd
2014 (3) SA 394
(CC) at paragraph [53] the Constitutional Court
warned that the concepts of wrongfulness and negligence should not be
conflated.
The court continued as follows:
“
The
wrongfulness enquiry focuses on the conduct and goes to whether the
policy and legal convictions of the community, constitutionally
understood, regard it as acceptable. It is based on the duty
not to cause harm – indeed to respect rights – and
questions the reasonableness of imposing liability.”
Therefore the
court held that a defendant’s
“
subjective
state of mind is not the focus of the wrongfulness enquiry.
Negligence, on the other hand, focuses on the state
of mind of the
defendant and tests his or her conduct against that of a reasonable
person in the same situation in order to determine
fault.”
[49]
In
Le
Roux and Others v Dey (Freedom of Expression Institute and
Restorative Justice Centre as Amici Curiae)
2011
(3) SA 274
(CC)
Brand, AJ, the scribe of the majority judgment and whose general
exposition of the law was in principle accepted by Froneman
and
Cameron, JJ in their minority judgment, stated the following in
paragraph [122]:
“
In the more recent
past our courts have come to recognise, however, that in the context
of the law of delict:
(a)
the
criterion of wrongfulness ultimately depends on a judicial
determination of whether — assuming all the other elements
of
delictual liability to be present — it would be reasonable to
impose liability on a defendant for the damages flowing
from specific
conduct; and
(b)
that
the judicial determination of that reasonableness would in turn
depend on considerations of public and legal policy in
accordance
with constitutional norms. Incidentally,
to
avoid confusion it should be borne in mind that, what is meant by
reasonableness in the context of wrongfulness has nothing to
do with
the reasonableness of the defendant's conduct, but it concerns the
reasonableness of imposing liability on the defendant
for the harm
resulting from that conduct.”
(emphasis
added).
[50]
In
Za
v Smith
2015 (4) SA 574
(SCA) Brand, JA had yet another opportunity to
express himself on the law of delict. In that case Mr Za
slipped on a snow-covered
mountain slope in the Matroosberg private
reserve, and fell to his death over a 150 metre precipice.
Brand, JA considered
wrongfulness, negligence and causation in that
order. Pertaining to wrongfulness he referred to all three
Constitutional
Court judgments cited in the previous paragraphs and
provided his reasons for the finding of wrongfulness in paragraph
[21].
He stated that “(I)n determining wrongfulness the
other elements of delictual liability are usually assumed.
Hence
the enquiry is whether – on the assumption (a) that
the respondents in this case could have prevented the deceased from
slipping and falling to his death; and (b) that he had died because
of their negligent failure to do so – it would be reasonable
to
impose delictual liability upon them for the loss that his dependants
had suffered through their negligence.” The
court found
that
“
both
respondents were in control of a property which held a risk of danger
to visitors” and that visitors were allowed
“
to
make use of a four-wheel-drive route, designed to lead directly to
the area which proved to be extremely dangerous.”
[51]
MTO Forestry
(Pty) Ltd v Swart NO
2017
(5) SA 76
(SCA) is a more recent judgment on the delictual
requirements of wrongfulness and negligence. In paragraphs [16]
to [18]
the SCA referred to the
dicta
of the Constitutional Court in
Loureiro
and
Country
Cloud supra
pertaining
to the wrongfulness enquiry, but warned that
“
(I)t
is potentially confusing to take foreseeability into account as a
factor common to the inquiry in regard to the presence of
both
wrongfulness and negligence.”
It
concluded in paragraph [18], after criticising some academics, that
it should now be recognised
“
that
foreseeability of harm should not be taken into account in respect of
the determination of wrongfulness, and that its role
may be safely
confined to the rubrics of negligence and causation.”
(emphasis added).
Leach JA, the
scribe of the judgment, drove the point home in
Pauw
v Du Preez
[2015]
ZASCA 80
, stating that
“
wrongfulness
and negligence are two separate and discrete elements of delictual
liability which .. should not be confused.”
[52]
In
McIntosh
v Premier, Kwazulu-Natal and another
2008 (6) SA 1
(SCA) Scott, JA, writing for a
unanimous court, had to deal with the appeal of a cyclist who
suffered injuries
as a result of riding through a pothole, causing
him to fall off his bicycle, whose claim was dismissed by the court
a
quo
.
In paragraph [11] the learned judge of appeal considered wrongfulness
briefly with reference to the provisions of the applicable
provincial
Act stipulating
inter
alia
that the road network is
“
to
be administered in order to achieve optimal road safety standards
within the Province”, acknowledging simultaneously that
a
public-law obligation does not necessarily give rise to a legal
duty. The Act also provides that available resources should
be
taken into account in achieving the goals set out in the Act.
The learned judge of appeal apparently accepted that a legal
duty
existed without expressly making such a finding and then continued to
deal with the element of negligence. Although
the judgment was
critisised by Johan Scott,
Owerheidsaanspreeklikheid
vir skade veroorsaak deur slaggate in openbare paaie
,
2009 TSAR 392
, it has been referred to in several later judgments
without criticism.
[53]
The often quoted
dictum
of Holmes JA in
Kruger
v Coetzee
1966 (2) SA 428
(AD) at 430E- G is worth repeating and I quote:
“
For
the purposes of liability
culpa
arises
if -
(a)
a
diligens
paterfamilias
in
the position of the defendant -
(i)
would foresee the reasonable possibility of his conduct injuring
another in his person or property and causing him patrimonial
loss;
and
(ii)
would take reasonable steps to guard against such occurrence; and
(b)
the defendant failed to take such steps.
This
has been constantly stated by this Court for some 50 years.
Requirement
(a)
(ii)
is sometimes overlooked. Whether a
diligens paterfamilias
in
the position of the person concerned would take any guarding steps at
all and, if so, what steps would be reasonable, must
always depend
upon the particular circumstances of each case. No hard and fast
basis can be laid down. Hence the futility, in general,
of seeking
guidance from the facts and results of other cases.”
[54]
In
Kruger
v Coetzee
supra
the Appeal Court held that the appellant, whose horses had entered a
public road whereupon the respondent collided with one of
them
causing damages to respondent, was not negligent. The
Venterstad Divisional Council built a temporary road across
appellant’s
property and caused a gate, giving access from the
main road to the new road, to be erected. Workers and visitors
to the
Orange-Fish River water scheme more often than not left the
gate open. Appellant, whose cattle and horses had been grazing
in the camp adjacent to the main road for many years, had to close
the gate on numerous occasions and even complained with the
Council,
but to no avail. The Appeal Court held that although the
diligens
paterfamilias
in appellant’s position would have foreseen the possibility of
his horses straying through the open gate on to the main road,
causing damage to motor vehicles which might collide with them and
would have taken reasonable steps to guard against such occurrence,
respondent did not prove that appellant could and should reasonably
have taken any further steps. Therefore negligence was
not
established and the appeal succeeded.
[55]
In
Van
Duivenboden supra
the SCA per Nugent, JA held in paragraph [23] with reference to the
test for negligence set out in
Kruger
v Coetzee
supra
that the enquiry as to what can reasonably be expected in the
circumstances of a particular case
“
...
offers considerable scope for ensuring that undue demands are not
placed upon public authorities and functionaries for the extent
of
their resources and the manner in which they have ordered their
priorities will necessarily be taken into account in determining
whether they acted reasonably.”
It
should be made clear at this stage already that defendant does
not rely on an inabilty to keep the road reserve clean of
shrubs and
trees due to lack of resources or any other reason and consequently,
the aforesaid
dictum
is not applicable. It was not necessary for plaintiffs to lead
any evidence as to the costs to keep the road reserve clean
of shrubs
and trees.
[56]
The SCA considered the issue of negligence as follows in
MTO
Forestry
supra
as follows:
“
[45]
As was mentioned by this court in Durr a landowner is under a ‘duty’
to control or extinguish a fire burning on
its land. But as Nienaber
JA stressed in H L & H Timber, whilst landowners may be settled
with the primary responsibility of
ensuring that fires on their land
do not escape the boundaries, this falls short of being an absolute
duty. And in considering
what steps were reasonable,
it
must be remembered that a reasonable person is not a timorous
faint-heart always in trepidation of harm occurring but ‘ventures
out into the world, engages in affairs and takes reasonable chances’.
Thus in considering what steps a reasonable person
would have taken
and the standard of care expected, the bar, whilst high, must not be
set so high as to be out of reasonable reach.
[46] ........
[47] A
reasonable landowner in the respondent’s position was therefore
not obliged to ensure that in all circumstances a fire
on its
property would not spread beyond its boundaries.
All
the respondent was obliged to do was to take steps that were
reasonable in the circumstances to guard against such an event
occurring. If it took such steps and a fire spread nevertheless, it
cannot be held liable for negligence just because further steps
could
have been taken.”
[57]
In
Za
v Smith supra
the
defence was raised that the danger which materialised when the
deceased slipped and fell was clear and apparent. In paragraphs
[22] to [28] Brand, JA considered the defence with reference to the
second leg of the test enunciated in
Kruger
v Coetzee supra
.
He found that precautionary measures should have been taken by
respondents as suggested by the appellant’s expert.
These
include the warning and educating of visitors by way of signs and
notices when dangerous conditions present themselves so
that the
unwary may know that they are entering a very treacherous area.
See paragraph [12].
[58]
In
McIntosh
supra
the
SCA considered the reasonableness of the respondents’ conduct
in paragraph [14] and reiterated that the adjudication of
the second
leg of the negligence inquiry
“
...
involves a value judgment which is to be made by balancing various
competing considerations, including such factors as the degree
or
extent of the risk created by the actor’s conduct, the gravity
of the possible consequences and the burden of eliminating
the risk
of harm.”
The
court went further and stated that where a public authority is
involved, a further consideration arises, to wit the autonomy
of the
authority to make decisions with regard to the exercise of its
powers. In this regard it was found that
“
....
a court will not lightly find a public authority to have failed
to act reasonably because it elected to prioritise one
demand on its
possible limited resources above another.” Having considered
the detailed evidence led at the trial on behalf
of respondents and
respondents’ policy, it was apparent that the pothole existed
for more than a year, and consequently the
SCA concluded in paragraph
[15]:
“
No
rational reason presents itself as to why the pothole was left
unrepaired for so long; nor was one advanced. In the
circumstances
the inference of negligence on the part of the
respondents’ servants responsible for the inspection and repair
of potholes
on the P164 is irresistible.”
[59] In
Van Vuuren v
Ethhekwini Municipality
2018 (1) SA 189
(SCA) the SCA was
required to consider the elements of wrongfulness and negligence.
The court referred to numerous
judgments on these issues, some which
I already referred to, in order to adjudicate the disputes.
The facts are briefly
as follows. Appellant’s eight
year old child descended down a water slide under the control of the
municipality, apparently
after being pushed by another child in the
queue behind him. He sustained serious injuries as a result of
an awkward landing.
The municipality did not employ a person or
persons to supervise children and to control the use of the slide.
There was
evidence that children used the slide in a chaotic manner.
Navsa, ADP, writing for a unanimous court, found in paragraph [29]
regarding wrongfulness that by providing the pool and slide facility
for the use of young children, the municipality created a
potential
risk of harm. It must be emphasised that in order to determine
whether a legal duty ought to be imposed on the
municipality, the
court referred in paragraph [22] to the immaturity and indiscipline
of children and s 28(2) of the Constitution
providing that in every
matter concerning a child, his/her best interests are of paramount
importance. Finally, it held in
paragraph [29] as follows on
the element of wrongfulness:
“
Considering, in
relation to wrongfulness, the criteria of reasonableness,
constitutional norms and policy, the compelling conclusion
is that in
the circumstances set out above, a legal duty is owed by the
Municipality to avoid negligently causing harm to persons
in the
position of Jacques. As appears from what is stated earlier,
the
steps that could be taken to prevent harm by ensuring access
control are relatively simple and would not place an intolerable
financial burden on the Municipality.
”
(emphasis added)
[60]
Navsa, ADP expressed himself as follows in paragraph [31] of
Van
Vuuren supra
on the element
of negligence:
“
As stated above,
foreseeability was fiercely contested by the Municipality,
particularly on the basis that parents are obliged to
care for their
children and that the Municipality was entitled to assume that
parents would look after and supervise their
children. It was
contended on behalf of the Municipality that since the appellant
herself did not foresee that Jacques would be
injured, it follows
that the Municipality itself could not be expected to foresee harm of
the kind suffered by Jacques.
We
are here concerned with whether, objectively, a sensible person in
the position of the Municipality would foresee the reasonable
possibility of operating the facility without access control
causing harm to children in the position of Jacques.
As stated above, it was obvious to Gregersen. From his evidence, it
would have been obvious to any official operating the facility
on
behalf of the Municipality, that unattended access had the effect of
children bunching up and pushing against each other and
that the
kind
of harm which ensued in this case was a reasonable possibility. The
Municipality failed to take steps to guard against such
an
occurrence.”
(emphasis
added).
[61]
The only authority available to counsel and the court relating to
collisions with wild animals such as kudu prior to the leading
of
evidence is
Crafford
v SANRAL
(215/2012) [2103] ZASCA 8 (14 March 2013). Once the legal
representatives had submitted their closing arguments, I requested
them to try and find further case law on the subject, reported or
unreported, but they failed to present me with any authority.
In
Crafford
the appellant, whilst driving his motor vehicle during the night,
collided with a kudu. Leach, JA considered causation based
on
the appeal against the trial court’s finding that the appellant
failed to discharge the onus of establishing that the
state of the
road reserve caused the collision. The learned judge of appeal
held that causation was not proven and consequently,
it was
unnecessary to consider the elements of wrongfulness and negligence.
He referred in paragraph [19] to insufficient
information to
determine how the collision occurred and to come to a finding in that
regard he would have
“
to
indulge in impermissible speculation.”
He
continued as follows in paragraph [21]:
“
(W)ithout
knowing where the kudu came from, how it moved, the manner in which
it came to be in the road, and where it and the appellant’s
motor vehicle were in relation to each other at any material time, it
is really impossible to determine solely from the fact of
a collision
where the kudu would have been and at what stage it would have become
visible to an approaching motorist, irrespective
of the length of the
grass alongside the road.”
[62]
I shall deal in
more detail with the SCA’s findings in
Crafford
when I evaluate the evidence and I shall show that the facts
in
casu
differ substantially from those in
Crafford
.
Whether that is sufficient for a finding in favour of plaintiffs
will be duly considered. Insofar as the SCA did not consider
SANRAL’s legal duty and the element of wrongfulness in a
similar factual scenario, as well as negligence, I shall do my best
to determine whether plaintiffs have proven the applicable elements
of the delict based on the general principles enunciated herein.
[63]
In
Minister
of Police v Skosana
1977 (1) SA 31
(A) at 34E-G Corbett, JA (as he then was) defined
causation in the law of delict. The first requirement is a
factual one
relating to the question whether the negligent act or
omission in question caused or materially contributed to the harm
giving
rise to the claim. The so-called “but for”
test applies. If factual causation is not proven, it is the end
of the matter. The second requirement is a sufficient link
between the negligent act or omission and the harm suffered, or
put
otherwise, legal causation. A flexible approach is followed in
this regard as set out in
Standard
Chartered Bank of Canada v Nedperm Bank Ltd
[1994] ZASCA 146
;
1994 (4) SA 747
(A) at 764I – 765A in which
“
factors
such as reasonable foreseeability, directness, the absence or
presence of a
novus
actus interveniens
,
legal policy, reasonability, fairness and justice all play their
part.”
[64]
In
Van
Duivenboden supra
the
SCA held in paragraph [25] that a plaintiff is not required to
establish the causal link with certainty, but merely that the
wrongful conduct was probably a cause of the damage. This calls
for
“
...
a sensible retrospective analysis of what would probably have
occurred,
based
upon the evidence
and what can be expected to occur in the ordinary course of human
affairs rather than an exercise in metaphysics.”
(emphasis
added).
[65] The sentiments in
Van Duivenboden supra
were repeated in
Za v Smith
supra
by Brand, JA in paragraph [30]. The learned judge of appeal
proceeded at paragraph [32] as follows:
“
Unlike
the court
a
quo
,
I therefore do not think it can be found as a fact that the warning
measures proposed by Tromp (appellant’s expert)
would be of no
consequence. On the contrary, in my view, they would probably
have been effective. This means that, but
for the respondents’
wrongful and negligent failure to take reasonable steps, the harm
that befell the deceased would not
have occurred.”
[66]
In
Fourway
Haulage SA (Pty) Ltd v SANRAL
[2008] ZASCA 134
;
2009 (2) SA 150
(SCA) Brand, JA cautioned in paragraph [34] that the
factors normally applied to consider legal causation
“
should
not be applied dogmatically, but in a flexible manner so as to avoid
a result which is so unfair or unjust that it is regarded
as
untenable.”
[67]
In
SA
Hang and Paragliding Association v Beswink
2015 (3) SA 449
(SCA) Brand, JA again had an opportunity to consider
and adjudicate a claim based on delict. He explained the “but
for” test in respect of factual causation and found in favour
of the appellants. He also dealt with legal causation
or
remoteness and stated in paragraph [37] that this is determinded by
considerations of policy, it being a measure of control
or as he
called it “a long-stop where right-minded people, including
judges, will regard the imposition of liability in a
particular case
as untenable, despite the presence of all other elements of delictual
liability.” The ultimate question
to be asked
in
casu,
based
on Brand, JA’s reasoning further on in the paragraph as well as
in
ZA
v Smith supra
,
is whether that which defendant wrongfully and negligently omitted to
do
in
casu
–
i.e.
to take reasonable steps to keep the road reserve clean – (and
only if this is found to be proven), increased the risk of
the
collision which resulted in Werner’s injuries.
[68]
In
Lee
v Minister of Correctional Services
2013 (2) SA 144
(CC) the Constitutional Court rejected the approach
of the SCA that failed to follow the approach in
Van
Duivenboden
supra.
Nkabinde,
J, the scribe of the majority judgment (there was a 5/4 split) dealt
with causation and the flexible approach to determine
factual
causation and accepted in paragraph [47] that the
“
most
recent, post-constitutional affirmations of that flexibility are to
be found in Van Duivenboden and Gore.” The
learned judge
concluded
in
paragraph [73] as follows:
“
A
court ultimately has to make a finding as to whether causation was
established on a balance of probabilities on the facts of each
case.
Causation will not always follow whenever a wrongful and negligent
omission is shown.”
VIII
EVALUATION
OF THE EVIDENCE AND APPLICATION OF THE LAW TO THE FACTS
[69]
I mentioned
supra
the facts which are common cause between the parties and the relative
lack of serious and material disputes. I intend to
deal firstly
with wrongfulness and then negligence,
inter
alia
as Brand, JA and
Navsa, JA did in
Hawekwa
and
Van Vuuren
supra
respectively. Finally, causation will be addressed.
[70]
It is clear what the
constitutional and statutory obligations of the defendant are and the
only question is whether it lived up
to those obligations. I
indicated
supra
that
defendant in actual fact admitted its legal duty to maintain the road
reserve and the only point of dispute is a measure of
degree.
The
citizens of the country in general and road users in particular
expect that our authorities contribute to their well-being when
travelling the roads of our country. Road safety should be a
priority, not only when roads are designed and built, but also
afterwards. Everyone has a constitutional right to an
environment that is not harmful to their health and well-being as
entrenched in s 24 of the Constitution.
[71]
It should also be pointed out that Dr Roodt’s evidence
pertaining to the national S’hamba Sonke programme for job
creation and poverty eradication was not challenged at all.
Furthermore, defendant did not plead financial constraints and/or
that the particular road was low down on its priority list and did
not qualify for maintenance above other roads. It also
refrained from leading evidence to put the matter in perspective.
Wrongfulness
[72]
The question to be answered is if it could be found that defendant
,
considering all relevant
circumstances, was under a legal duty to prevent vegetation such as
trees and shrubs to grow in the road
reserve to the extent proven and
in breach thereof acted wrongfully by refraining from keeping the
road reserve clear of such vegetation.
As mentioned in
Loureiro
supra
the
test is whether the policy and legal convictions of the community,
constitutionally understood, regard the failure to act as
acceptable. Although there is a duty not to cause harm to
others and to respect their constitutional rights, the concept
of
wrongfulness acts as a brake in the words of Khampepe, J in
Country
Bird supra
where it is
undesirable or overly burdensome to impose liability.
[73]
According to the uncontested evidence local crop farmers removed
trees growing in the road reserve adjacent to their cultivated
fields
in order to avoid trees from using underground water needed by their
crops. The area where the collision occurred
was not kept clear
by farmers for obvious reasons. There are no cultivated fields
adjacent to the particular stretch of road,
but veld consisting of
grass and trees suitable for live-stock such as cattle.
[74]
Defendant did not rely in its plea on the prioritising of certain
roads and/or lack of funds. In fact, no evidence was
tendered
by defendant to be considered as part of the totality of facts in
order to arrive at a conclusion in favour of defendant.
An
aspect such as the cost factor to keep the road reserve clean was not
addressed at all in either the pleadings or the evidence.
Mr
Snellenburg questioned Dr Roodt in this regard and made statements to
him, but no concessions were made. Statements by
counsel are
not evidence. In any event, any evidence that defendant might
have tried to lead, would probably be objected
to insofar as
defendant did not rely on such defences in its plea.
[75]
Defendant’s version in the plea that the failure to control the
growth of vegetation in the road reserve could not restrict
the view
of the reasonable motorist using the road is without substance,
bearing in mind the uncontested evidence, the evidential
material in
the form of several photographs, as well as the evidence of its own
expert, Mr Grobbelaar.
[76]
It must also be pointed out as indicated
supra
that defendant conceded in paragraph 4 of its plea that it was under
a legal duty to control the growth of vegetation in the road
reserve
adjacent to the road, but denied the further allegation that it also
had a legal duty to take steps as were reasonable
in the
circumstances to avoid risk to motorists due to restricted
visibility.
[77]
I am satisfied that although there are other reasons why road
reserves should be provided for and maintained, as Dr Roodt
testified, an extremely imported reason is the safety of road users
and even animals and pedestrians. An organ of State such
as
defendant should not be heard to say that road users on our public
roads, whether the speed limit is 100 or 120 kph, must reconcile
themselves with the fact that they travel these roads with a tunnel
vision because the vegetation next to the roads, such as
in
casu
, totally or
predominantly restrict visibility to the side and into the road
reserve. It is unacceptable from a legal policy
perspective
consistent with constitutional norms.
[78]
Even if the cost of maintaining the road reserve properly is to be
considered at this stage already as
inter alia
mentioned in
Administrateur, Transvaal
and
Van Vuuren supra
, I am
satisfied that, based on criteria of public and legal policy
consistent with our constitutional norms, defendant had a legal
duty
as alleged by plaintiffs. Its failure to act – its
omission - should attract legal liability if the elements of
negligence and causation are proven on a balance of probabilities.
In the words of Navsa, ADP, the steps that could be taken
to prevent
harm are relatively simple and would not place an intolerable
financial burden on defendant. I find that to impose
liability
in casu
is neither undesirable, nor overly burdensome as
mentioned by Khampepe, J
supra
.
Negligence
[79]
The test for negligence is an objective test,
i.e.
what would
the reasonable person have done if put in the defendant’s
shoes. See:
Kruger v Coetzee
supra. The questions
to be posed are whether the reasonable person would have foreseen the
reasonable possibility that his
conduct may cause harm and if so,
would he be taking reasonable steps to guard against such harm and
finally, whether the defendant
failed to take such steps.
[80]
The reasonable person is not “‘
a
timorous faint heart always in trepidation’ of harm occurring”
as explained in
MTO
Forestry supra
in
paragraphs [45] and [47]. However, the fact that Werner did not
foresee the reasonable possibility that an animal, whether
a kudu or
other domesticated animal such as a bovine, horse or donkey, might
enter the road and cause damage, is not the test.
One needs to
establish whether the
diligens
paterfamilias
in the
position of defendant would foresee the reasonable possibility of his
omission injuring another, would take reasonable steps
to guard
against such occurrence and defendant failed to take such steps.
As in
Bakkerud supra
defendant at its peril
failed to lead evidence in this regard.
[81]
It might have been argued that Werner did not foresee that an animal
like a kudu could traverse the road and cause a collision
with his
vehicle and therefore the reasonable person in the shoes of defendant
would also not foresee such occurrence. Such
argument would be
without merit. I refer to the judgment of Navsa, ADP in
Van
Vuuren supra
. Mr
Snellenburg did not deal in any detail with the element of negligence
and merely concentrated on wrongfulness and causation.
In my
view defendant should have experts in its service such as engineers
and other personnel trained in road maintenance.
It should have
been the case when the road was built insofar as defendant’s
predecessor, the Administrator of the Province
at the time was
concerned, and it remained defendant’s duty to have capable,
trained and experienced personnel in its employ
to oversee, regularly
inspect and maintain the roads and road reserves in the Province.
[82]
A once-off and effective removal of shrubs and trees such as the
thorn trees in the relatively small area concerned could not
cost an
arm and a leg and the same would be the case if further growth had to
be curtailed from time to time. If individual
crop farmers
along the particular road had the means, in the form of machines,
other tools and equipment, labour and financial
resources to clean
the road reserve adjacent to their farms, then surely defendant could
not be heard to plead poverty. It
appears as if defendant had
a
laissez faire
attitude.
I accept that there is no indication that anyone complained about the
state of the road reserve prior to the collision,
but defendant as a
prudent entity in control of roads in the Province must have teams
with qualified personnel in its employ, allocated
to each district to
regularly oversee the roads and road reserves under its control and
to arrange for maintenance thereof when
required. These
employees are supposed to be defendant’s eyes and ears on
ground level. Defendant elected not
to lead evidence in this
regard. The court is in the dark as to whether it has road
maintenance programmes in place, how
these are implemented and when,
how and by whom the particular road and road reserve were inspected
and maintained.
[83]
In my view the
diligens paterfamilias
in the position of
defendant, acting through its employees, would foresee the reasonable
possibility of its omission causing injury
to another and would take
reasonable steps to guard against such occurrence, whilst defendant
failed to take such steps.
I need to emphasise that the fact
that a kudu traversed the road is in my view immaterial. It
could have been a domesticated
animal such as a bovine, horse, goat
or donkey, or any other wild animal. It could just as well be a
pedestrian.
Causation
[84]
Mr Snellenburg relied on
Crafford
supra
and well-known
authorities such as
International
Shipping Co (Pty) Ltd v Bentley
1990 (1) SA 680
(A) in respect of factual causation and
Standard
Chartered Bank of Canada v Nedperm Bank Ltd
supra
.
He submitted that the question
in
casu
is simply whether the
collision would have occurred on the probabilities, but for the
wrongful omission to remove the vegetation
and concluded that factual
causation had not been proven.
[85]
As indicated
supra,
Crafford
is totally distinguishable on the facts. That collision
occurred during the night. Appellant, the driver of the motor
vehicle that collided with a kudu, suffered from amnesia and could
not recall how the collision occurred. He was
au
fait
with the particular road and had on several occasions prior to the
collision seen kudu next to the road. The road passes
through
fairly thick bushveld and the court accepted that kudu are likely to
abound in the area. Road signs warn against
the possible
presence of kudu. The court stated that no evidence was
tendered from which direction the kudu came, whether
it was already
in the road when the appellant approached it, but did not see it, or
whether the kudu came at a run from the bushveld
beyond the road
reserve, clearing the stock fence and charging towards the road into
the roadway directly in front of appellant’s
vehicle.
Consequently the court found in paragraph [12] that the list of
possible scenarios
“
is
truly endless.” In that case no photographs were handed in,
showing the height of the grass in the road reserve at the
time,
although it was accepted that there were clumps of grass and that the
particular type of grass can grow up to 2 metres in
height. It
was also accepted that kudu by way of skin colouring are difficult to
see, especially at night. Furthermore,
a driver’s range
of vision is restricted at night to the area illuminated by the
headlights of the vehicle. The court
ultimately found that even
if the grass alongside the road had been short at the time,
“…
one
does not have sufficient information to determine how the collision
probably took place.”
Therefore
it concluded that
“
the
list of imponderables is infinite” and “to find that any
of these scenarios is in fact what probably occurred would
be to
indulge in impermissible speculation.” The court
continued in paragraphs [21] and [22] to hold that even if the
grass
was short, it would be speculative to find that the kudu would become
visible when there was still sufficient time to successfully
avoid a
collision.
[86]
If the facts
in casu
were in line with that in
Crafford
,
I would be bound by the
stare
decisis
principle and would
have to dismiss the claims on the basis that causation was not
proven. However, I agree with Mr Zietsman
that the two cases
are distinguishable.
In casu
Werner collided with the
kudu in daylight. The previously obscured kudu approached the
road from Werner’s left hand
side at a time when it was
airborne. It was accepted by Mr Grobbelaar that a kudu can jump
into the air from a stationary
position and also, that it can
accelerate fast from a stationary position.
[87]
I am of the view that there is no reason why the “but for”
test for factual causation should be based on mathematics.
Although it cannot be totally ignored, it is rather a matter of
common sense as Brand, JA held at paragraph [30] in
Za
v Smith supra
, taking into
account the background of everyday-life experiences and considering
the matter in a practical manner. The plaintiffs
merely have to
prove that the occurrence was more likely than not, but for the
wrongful and negligent conduct. The causal
link does not have
to be established with certainty. See also
Van
Duivenboden
paragraph [25]
and
Lee paragraph [41]
supra
.
[88]
Judicial notice can be taken of the fact that antelope such as kudu
in particular are shy and avoid humans. Kudu are
likely to be
found in thick bushveld as Leach, JA held in
Crafford
supra
and seldom venture
into the open veld. Therefore, if the road reserve was cleared
of dense vegetation, the kudu would probably
have avoided the road
reserve, unless it wanted to cross the road to the other side.
In all probabilities the kudu bull was
grazing between the trees and
shrubs next to the road where he was obscured by the much taller
trees and shrubs from Werner’s
view. The more plausible
and reasonable inference to be drawn from the proven facts is that
the kudu, whose vision would
have been impaired as well, was
frightened by the oncoming vehicle and tried to flee, causing him to
jump into the direction of
the approaching Ford driven by Werner.
In my view such inference can be legitimately drawn from the proven
facts. It
would be highly speculative to suggest that the kudu
was inside the adjacent camp and then all of a sudden started to run
or trot
in the direction of the road, jumping the stock fence, going
down the embankment, and making a bee-line for the road in order to
cross it right in front of the Ford. In my view factual
causation has been proven.
[89]
Based on the totality of facts which need not be repeated I am
satisfied that there is a sufficiently close link between the
occurrence and defendant’s wrongful and negligent omission in
order to satisfy the test relating to legal causation.
As
Brand, JA stated in
Fourway
Haulage supra,
legal causation should be considered
“
in
a flexible manner so as to avoid a result which is so unfair or
unjust that it is regarded as untenable.”
Consequently,
I am satisfied that plaintiffs have proven all the required elements
for delictual liability in order to obtain success
on the merits of
the claims.
IX
COSTS
[90]
There is no reason why costs should not follow the event and why the
cost order requested by Mr Zietsman shall not be granted.
X
ORDERS
[91]
Consequently, the following orders are made:
(1)
Defendant is liable towards plaintiffs for the full extent (100%) of
their respective proven or agreed damages arising from
the first
plaintiff’s collision with a kudu on 26 June 2015;
(2)
Defendant is liable for payment of plaintiffs’ taxed or agreed
party and party costs in respect of the merits, which costs
will
include, but are not to be limited to the following:
(2.1)
The reasonable preparation, qualifying, reservation, accommodation
and travelling costs in respect of the expert, Dr Louis
Roodt;
(2.2)
Counsel’s fees and expenses;
(2.3)
The costs attendant upon obtaining the payments referred to in this
order.
(3)
Mr RC Brits is declared a necessary witness.
_____________
J.P.
DAFFUE, J
On
behalf of the plaintiffs: Adv PJJ Zietsman
Instructed
by: Honey Attorneys
Bloemfontein
On
behalf of the defendant: Adv N Snellenburg SC assisted by Adv LR
Bomela
Instructed
by: Office of the State Attorney
Bloemfontein