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[2019] ZAWCHC 54
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Cromhout v O'neil N.O and Others (19155/2015) [2019] ZAWCHC 54 (14 May 2019)
IN THE
HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
CASE NO:
19155/2015
In the matter between:
JULIANA
CROMHOUT
Plaintiff
and
PATRICIA
ENID O’NEIL
N.O.
First Defendant
AMANDA
CAREY N.O.
Second
Defendant
RONALD
JAMES ANTROBUS N.O.
Third
Defendant
(In their
capacities as trustees of the
Cavendish
O’Neil Animal Trust)
Coram:
Justice J I Cloete
Heard:
11, 12, 14 February 2019 and 2 May 2019
Delivered:
14 May 2019
JUDGMENT
CLOETE
J
:
Introduction
[1] This is an
application for absolution at the close of the plaintiff’s
case. The application was interrupted after argument by
Mr
Branford
(who appeared for the defendants) due to: (a) an
opposed application for amendment of the plaintiff’s
particulars of
claim which was refused with costs on 14 February
2019; (b) a subsequent delay of 2 ½ months while the
plaintiff
took advice from senior counsel, obtained a transcript of
her evidence and considered her position; and (c) a subsequent
opposed
application for the plaintiff to re-open her case to
introduce certain documentary evidence, which the parties were
ultimately
able to resolve in terms of an agreed order.
[2] During
October 2015 the plaintiff issued summons against the three
defendants,
in their capacities as co-trustees of the Cavendish
O’Neil Animal Trust (IT 461/99) for damages of R469 000
allegedly
resulting from the loss of her right index finger and
bruises to her right arm and body after she was attacked by a
chimpanzee,
Kalu, the personal property of the first defendant.
[3] Kalu was
kept in an enclosure on the farm Broadlands Stud which is owned
by
the Van der Westhuizen family (who are not involved in these
proceedings). The first defendant occupied the manor house on the
farm and the plaintiff rented a room on the farm.
[4] During the
course of pre-trial case management, the merits and quantum
were
separated and the trial thus proceeded on the merits only. The
plaintiff was the only witness who testified in support of
her case.
The documentary evidence later introduced was dealt with in the
agreed order as follows:
‘
1.
The following documents are received in evidence as exhibits (marked
Exhibit C) in
the above matter:
1.1
Bank Statements of the Cavendish O’Neil Animal Trust for the
periods of June 2013
to February 2014;
1.2
SARS Monthly Employer declaration of the Trust for all its employees,
including Michael
Tapaseri and Morgan Bricknell for the periods
10/2013 to February 2014.
2.
The aforementioned documents are what they purport to be;
3.
At the time of the incident the Trust was paying UIF of Michael
Tapaseri and
Morgan Bricknell;
4.
Michael Tapaseri is and was the keeper of Kalu at the time of the
incident and
Morgan Bricknell was the farm manager at Broadlands Farm
at the time of the incident;
5.
The bank statements reflect various weekly / monthly payments made to
Michael
Tapaseri and Morgan Bricknell…’
The pleadings
[5] The
relevant allegations in the plaintiff’s particulars of claim
were that:
5.1 At all material times the
defendants were in control of the farm;
5.2 The defendants introduced
Kalu, a wild animal, onto the farm, which would not naturally
occur
there;
5.3 The area in which Kalu was
kept was not properly fenced; nor did any warning signs appear
at or
near the area; nor was the plaintiff ever warned by the defendants
about the possible danger in coming close to Kalu’s
area;
5.4 On 14 December 2013 the
plaintiff approached Kalu’s enclosure holding a bag of figs
under her right arm;
5.5 While the plaintiff was
standing close to the fence Kalu grabbed her arm, pulled it through
the barred area of the enclosure and bit off her right index finger;
and
5.6 The incident was caused by
the sole negligence of the defendants in one or more of the
following
respects, namely (a) they
failed
to warn her of the
dangers of interacting with Kalu; (b) they
failed
to
properly and adequately fence the area in which Kalu was kept; and
(c) they
failed
to avoid the incident when by the
exercise of reasonable care they could and should have done so.
[my emphasis]
[6] In their
plea the defendants:
6.1 Denied having been in control
of the farm;
6.2 Averred that the first
defendant, in her personal capacity, introduced Kalu to the farm;
6.3 Denied that Kalu’s
enclosure was not properly fenced, alleging that it was kept securely
fortified with wire mesh and electrified fencing, together with a
smaller caged off enclosure which could only be entered through
a
safety gate;
6.4 Averred that prominent
warning signs and disclaimers were positioned at the entrance to
the
farm, near to the enclosure and on the enclosure itself; and
6.5 Alleged that the plaintiff
was verbally warned
inter alia
to be careful of and not to
interact with Kalu, including feeding her.
[7] The
defendants advanced four defences (each in the alternative) to the
allegation of sole negligence on their part. These were:
7.1 Voluntary assumption of risk;
7.2 In the first alternative,
sole negligence on the part of the plaintiff;
7.3 In the second alternative:
‘
11.1
On entering and/or exiting the farm, and/or situated at the
chimpanzee’s enclosure and on the farm,
the Plaintiff was
advised, by way of prominent signs that:…
11.2
The Plaintiff entered and/or exited the farm and/or utilized the
premises and approached, interacted
with and fed the chimpanzee, in
terms of an express, alternatively tacit agreement between herself
and the Trust, the terms of
which are set out in sub-paragraph 11.1
above, alternatively the Trust had taken reasonable steps to bring
the terms in question
to the attention of the Plaintiff and the
Plaintiff is consequently bound thereby.
11.3
The said terms on a proper construction thereof, relieve the Trust of
liability for negligence.’
and
7.4 In the third alternative,
contributory negligence.
[8] The
contents of the warning signs are also set out in paragraph 11.1
of
the plea. In essence, they draw attention to the presence of wild
animals including ‘
giant apes’
; and inform that
entry to and presence on the farm are dangerous and may ‘
pose
injuries and life threatening circumstances’
. Some prohibit
the feeding, handling or touching of ‘
monkeys’
.
[9] It is
convenient to deal first with the applicable legal principles,
secondly with the grounds relied upon in the absolution application,
thirdly the evidence relevant to these grounds, and fourthly
the
parties’ respective arguments.
Applicable legal principles
[10] The test for absolution at
the close of a plaintiff’s case is well established and
was set
out in
Gordon Lloyd Page & Associates v Rivera and Another
[1]
;
as follows:
‘
[2] The test for
absolution to be applied by a trial court at the end of a plaintiff’s
case was formulated in
Claude
Neon Lights (SA) Ltd v Daniel
1976
(4)
SA 403
(A) at 409G-H in these terms:
“…
(W)hen 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) find for the plaintiff.
(
Gascoyne v Paul and Hunter
1917
TPD 170
at 173;
Ruto Flour Mills (Pty) Ltd v
Adelson
(2)
1958 (4) SA 307
(T).)”
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 (
Marine
& Trade Insurance Co Ltd v Van der Schyff
1972
(1) SA 26
(A) at 37G-38A;
Schmidt
Bewysreg 4th ed at
91-2). 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…’
[11] Zeffertt
et al
:
The
South African Law of Evidence
[2]
provide the following useful summary:
‘
If at the end of the
plaintiff’s case there is not sufficient evidence upon which a
reasonable man could find for him or her,
the defendant is entitled
to absolution. Or, as it has been expressed on more than one occasion
by the Appellate Division, the
only question is whether, at the close
of the plaintiff’s case, there was such evidence before it,
assuming it
were true
,
upon which a reasonable court might, not should, give judgment
against the defendant. …
The courts have frequently
emphasised that absolution should not be granted at the end of the
plaintiff’s evidence except
in very clear cases, and that
questions of credibility should not normally be investigated until
the court has heard all the evidence
which both sides have to offer.
Thus in
Siko v Zonsa
Solomon J said that a
magistrate should not grant absolution merely because he or she does
not believe the plaintiff’s evidence,
except “where
witnesses have palpably broken down, and where it is clear that they
have stated what is not true… the
Supreme Court of Appeal has
held that the test is whether a court, if no further evidence were
led, after reasonable application
of its mind, might find in favour
of the plaintiff (
De
Klerk v Absa Bank Ltd and Others
).”’
[3]
[my emphasis]
[12] The plaintiff’s cause
of action is the
actio legis Aquiliae.
[4]
It is clear from the plaintiff’s pleaded case that she relies
squarely on an omission or omissions on the part of the defendants,
premised on their having introduced Kalu onto and having been in
control of the farm. She made no specific averment that the
defendants’
alleged omissions were
wrongful
.
[13] The convenient starting
point is the dictum of Harms JA in
Telematrix (Pty) Ltd v
Advertising Standards Authority SA
:
[5]
‘
The first principle of
the law of delict, which is so easily forgotten and hardly appears in
any local text on the subject is, as
the Dutch author Asser points
out, that everyone has to bear the loss he or she suffers. The
Afrikaans aphorism is that “skade
rus waar dit val”.
Aquilian liability provides for an exception to the rule and, in
order to be liable for the loss of someone
else, the act or omission
of the defendant must have been wrongful and negligent and have
caused the loss. But the fact that an
act is negligent does not make
it wrongful although foreseeability of damage may be a factor in
establishing whether or not a particular
act was wrongful.’
[14] As to wrongfulness, in
Sea
Harvest Corporation (Pty) Ltd and Another v Duncan Dock Cold Storage
(Pty) Ltd and Another
[6]
Scott JA said:
‘…
If the
omission which causes the damage or harm is without fault, that is
the end of the matter. If there is fault, whether in the
form of
dolus
or
culpa
,
the question that has to be answered is whether in all the
circumstances the omission can be said to have been wrongful…To
find the answer the Court is obliged to make what in effect is a
value judgment based,
inter
alia
, on its
perceptions of the legal convictions of the community and on
considerations of policy…’
[15] This was dealt with as
follows in
Za v Smith and Another
[7]
at para [20]:
‘
Reverting to the
enquiry into wrongfulness – properly understood – in this
case, it will be remembered that prior to
the watershed decision of
this court in
Minister
van Polisie v Ewels
1975
(3) SA 590
(A), liability for omissions was confined to certain
stereotypes. One of these was referred to as relating to those in
control
of dangerous property, who were said to be under a duty to
render the property reasonably safe for those who could be expected
to visit that property. After
Ewels
,
those stereotypes did not become entirely irrelevant. They still
afford guidance in answering the question whether or not policy
considerations dictate that it would be reasonable to impose
delictual liability on the defendant in a particular case, although
these stereotypes no longer constitute the straitjackets that they
were before
Ewels…’
[16] In
H v Fetal Assessment
Centre
[8]
it was said at paras [51] and [67] that:
‘
[51]
Our pre-constitutional law of delict is not couched in terms of a
duty to protect fundamental rights.
It is clear, however, that many
interests and rights protected under the common law quite easily
translate into what we now recognise
as fundamental rights under the
Constitution…
[67]
In addition to the general normative framework of constitutional
values and fundamental rights,
our law has developed an explicitly
normative approach to determining the wrongfulness element in our law
of delict. It allows
courts to question the reasonableness of
imposing liability, even on an assumption that all the other elements
of delictual liability
– harm, causative negligence and damages
– have been met, on grounds rooted in the Constitution, policy
and legal convictions
of the community…’
[17] In
Le Roux and Others v
Dey
[9]
the Constitutional Court also pointed out:
‘
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.’
[18] In
MTO Forestry (Pty) Ltd
v Swart N.O.
[10]
it was stated at para [18] that:
‘
[18]
One further issue relevant to both wrongfulness and negligence must
be mentioned. In
Country
Cloud
this
court, despite in the past having recognised foreseeability of harm
(a clear requirement of negligence) as a factor in determining
wrongfulness, expressed its ‘reservation about this approach,
mainly because it is bound to add to the confusion between
negligence
and wrongfulness’. The author of the judgment has since stated
extra-curially that it ‘went all the way
by saying that,
because foreseeability is an essential component of negligence, it
should find no place in the enquiry into wrongfulness
at all’.
With great respect, that may be the effect of the judgment but it
does not spell it out as being the case in unequivocal
terms. But I
agree with the motivation for such a conclusion. It 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. Such confusion will have the effect
of the two being
conflated and lead to wrongfulness losing its important attribute as
a measure of control over liability.
Accordingly,
I think the time has now come to specifically recognise 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.
’
[my emphasis]
[19] In
Stedall v
Aspeling
,
[11]
it was held at paragraphs [11] and [12] that:
‘
As is apparent from
its judgment, the court
a
quo
regarded
negligence as the essential issue that fell to be decided.
Consequently it confined itself to the enquiry whether
the
appellants’ failure to secure the swimming pool gates so they
could not be opened by a young child, and the second respondent’s
failure to keep C under constant observation, constituted negligence
as determined by the well-known test in that regard –
namely,
whether a reasonable person would in the circumstances have foreseen
that C might be injured by falling into the pool,
and taken
reasonable steps to avert such harm. However, in doing so, it
appears to have overlooked the requirement often
stressed by both
this Court and the Constitutional Court, particularly in recent
years, that wrongfulness is also an essential
and discrete element
which has to be established for delictual liability to ensue ...’
[20] While wrongfulness may be
assumed in cases involving positive conduct (for example, an
assault)
giving rise to personal injuries, this is not the case with conduct
in the form of an omission – where facts and
circumstances
may
give rise to a legal duty of care and a breach thereof
may
be
wrongful. In this regard, it was held at para [15] in
Stedall
,
as follows:
‘
Moving to a different
issue, in contrast to a positive act which causes physical harm to a
person or property, a negligent omission,
as relied on by the
respondents, is not necessarily regarded as
prima
facie
wrongful.
Consequently, in
Van
Duivenboden
, Nugent JA
stressed that a negligent omission should only be regarded as being
wrongful, “if it occurs in circumstances that
the law regards
as sufficient to give rise to a legal duty to avoid negligently
causing harm”.’
[21] Concerning the necessity of
pleading wrongfulness as a separate and distinct element of
delict in
the case of an omission, in
Stedall
it was made clear at paras
[17] to [19] that:
‘
[17]
There is another matter relevant to the dispute before this court. As
an omission is not prima facie
unlawful
the respondents, on particularising their claim, should not only have
alleged that the negligent omissions upon which they
relied had been
wrongful, but pleaded the facts upon which reliance was based in
support of that contention. Indeed in
Kadir
this court stated that
the facts pleaded “in support of the alleged legal duty
represent the high-water mark of the factual
basis on which the court
will be required to decide the question”. Conspicuous by its
absence in the particulars of claim,
however, was even a bare
allegation of wrongfulness on the part of the appellants. All that
was alleged was the alleged negligent
failure to take reasonable
steps to ensure that the swimming pool gate was closed or properly
secured.
[18]
Counsel for the respondents attempted to persuade us that it was
implicit in the pleading that
the alleged negligence of the
appellants had been wrongful. But not even on a generous
interpretation of what was pleaded,
can this be found. This is
an issue that should have been raised before the court a quo; but it
was not, and both sides proceeded
to litigate seemingly oblivious to
the fact that a necessary element of liability had not been mentioned
in the pleadings.
[19]
In his heads of argument before this court, counsel for the
respondents objected to the appellants,
in their notice of appeal,
having raised the fact that the court a quo
had
“overlooked” the fact that as C had been accompanied by
her mother they were entitled to rely on the latter to look
after
her. This, he complained, had never been pleaded by the
appellants, and if it had been evidence could have been led
“to
show why appellants could not in the circumstances have relied on
second respondent’s presence at the house to
negative their
defence”. All of this overlooks that
it
was in fact the respondents who bore the onus to allege and prove
wrongfulness, and that the appellants were not called on to
establish
a “defence” to a claim based on wrongfulness that had not
been levied against them
.
’
[my emphasis]
Grounds for absolution
[22] The grounds advanced were
essentially threefold, namely:
23.1 The failure to plead wrongfulness where a
negligent omission(s) was the plaintiff’s case, coupled
with
the absence of any evidence as to wrongfulness;
23.2 The failure to establish any
prima facie
case against
the defendants
, i.e. the Trust; and
23.3 The failure, in any event, to establish a
prima facie
case of negligent omission.
The plaintiff’s testimony and the documentary evidence
[23] The plaintiff testified that
on the day of the incident she resided on the farm in a section
that
was ‘
under’
the first defendant personally. It was
the first defendant, in her personal capacity, from whom the
plaintiff rented the room,
which was located in a wing separate to
the manor house and was previously used by the first defendant’s
late brother. Her
evidence was further that her interactions with
Kalu were at the instance, and indeed with the encouragement, of the
first defendant
personally. The plaintiff was aware of Kalu’s
history and how it came about that the first defendant brought or
introduced
her onto the farm. She also accepted, with reference to
the relevant permit, that the first defendant personally was Kalu’s
owner.
[24] The plaintiff did not
mention that the Trust caused Kalu to be introduced to the farm,
and
there was no evidence that the Trust itself played any direct role in
the control over Kalu save for payment of the salary
and wages of her
keeper, Mr Tapaseri. Indeed, there was no evidence as to the
“legal” arrangements between the
first defendant
personally, the Van der Westhuizens as owners, and the Trust, other
than a vague reference to the first defendant
having a usufruct and
the documentary evidence that the Trust paid the salaries and UIF
contributions of the farm manager, Mr Morgan
Bricknell, and Mr
Tapaseri.
[25] Significantly, the plaintiff
did not establish,
prima facie
, that either Mr Bricknell
or Mr Tapaseri were responsible for any negligent omission
giving rise to the incident. She
did not rely on vicarious liability
either. In fact, she conceded in her testimony that Mr Bricknell
had cautioned her against
interacting with Kalu but that she
persisted because the first defendant knew best, given the latter’s
long relationship
with Kalu and her expertise in interacting with
wild animals over many years. Equally significantly, the plaintiff
maintained that
Mr Bricknell had no ‘
authority’
to dictate to her how she should interact with Kalu. There was no
suggestion in the plaintiff’s evidence that the first defendant
acted in her representative capacity as trustee of the Trust in
either her own interactions with Kalu, her alleged encouragement
that
the plaintiff should interact with Kalu, or her alleged instruction
to the plaintiff that she should ignore the concerns expressed
by
Mr Bricknell and certain other individuals employed on the farm.
[26] Moreover, insofar as the
first defendant herself was concerned, the plaintiff gave no
evidence
that there was any negligent omission on her part. Instead, contrary
to what was pleaded, the plaintiff relied in her
testimony on the
first defendant’s
positive conduct
.
[27] As to the incident itself,
on the plaintiff’s own version it was
she
who approached
Kalu’s enclosure for the purpose of feeding her the figs in the
bag hanging from her right arm; that she fed
Kalu a few of them by
extending her own arm into the separate but adjoining caged-off
section while Kalu did the same; and it was
not suggested by her that
this particular interaction with Kalu had anything to do with the
enclosure not being ‘
properly fenced off’
as
pleaded. It was immediately after this interaction that Kalu grabbed
her arm and bit off her finger. The plaintiff herself testified
that
this was probably because Kalu became impatient with how slowly she
was feeding her the figs.
[28] According to the plaintiff,
she noticed after the incident that, in addition to the caged-off
area being covered in mesh as well ‘…
there were more
notices against the fencing, the camp surrounds, I noticed that more
notices had been put up, many more’.
She conceded the
presence of warning signs prior to the incident against the fencing
of the enclosure. She conceded that feeding,
handling or touching
were prohibited by these signs.
[29] However the fact that there
were warning signs did not, on her own version, deter her
from
interacting in the manner she did with Kalu on the day of the
incident. The following passage from her evidence in chief is
relevant:
‘
Ms Joubert: the
defendants raise the following issue, saying that there were notice
boards up, warning people not to interact with
Kalu, despite the
notice boards you still went and you interacted with Kalu in the
manner in which you described it to the court.
Plaintiff: Yes.
Ms Joubert: OK. Why did you
interact with Kalu in that way?
Plaintiff: Because I was
encouraged to.
Ms Joubert: By who?
Plaintiff: By Pat O’Neil,
because Pat O’Neil at no time to this very day did she ever
stop me from doing any of the
things that I did do, and which as I
have previously testified… such as feeding her, scratching her
back etc. Pat never,
ever warned me not to do it, she never told me
not to do it, she actually encouraged me to interact with Kalu.
[30] The plaintiff sought to
place reliance on her understanding that Kalu had been tamed but
conceded that at all material times she knew Kalu was a wild animal;
that a wild animal’s behaviour can be unpredictable;
and that
such unpredictability can be dangerous. According to her however,
none of this entered her mind during all of her interactions
with
Kalu because ‘…
I put my faith and my trust and my
interaction entirely on Pat O’Neil’
. Nevertheless at
the time of the incident she was aware of two previous occasions when
Kalu had acted unpredictably and dangerously,
one involving
Mr Bricknell and the other when Kalu bit off the fingertip of
one of the first defendant’s guests. She
conceded that before
the incident she was accordingly aware that Kalu had the potential to
act out of character and to bite off
someone’s finger.
[31] Ultimately she accepted that
the incident was possibly her fault but also placed the blame
on the
first defendant personally. In her words ‘
I relied not on
the people in the case of the farm at Broadlands, I relied on Pat’.
The ‘
people’
to whom the plaintiff referred
necessarily included both Mr Bricknell and Mr Tapaseri.
Discussion
[32] The Supreme Court of Appeal
in
Minister of Safety and Security v Slabbert
[12]
held as follows:
‘
A party has a duty to
allege in the pleadings the material facts upon which it relies. It
is impermissible for a plaintiff to plead
a particular case and seek
to establish a different case at a trial. It is equally not
permissible for the trial court to have
recourse to issues falling
outside the pleadings when deciding the case.’
This dictum has been cited with approval by the Constitutional Court
in
Molusi v Voges
.
[13]
[33] In arguing against
absolution
Ms Joubert
, who appeared for the plaintiff,
submitted that the defendants created a source of danger (a positive
act) by merely being
in possession
of a dangerous wild animal.
In this regard she placed reliance on
Neethling et al
:
Law
of Delict
[14]
where it is stated that:
‘
A person acts prima
facie wrongfully when he creates a new source of danger by means of
positive conduct (commissio) and subsequently
fails to eliminate that
danger (ommissio), with the result that harm is caused to another
person. Prior conduct in the form of
a positive act that creates a
danger of harm may, in other words, be a strong indication that a
legal duty rested upon the defendant
to take steps to prevent the
damage from materialising…’
[34] This argument is not
persuasive. There is not a single allegation in the particulars of
claim that the defendants “possessed” Kalu. Their alleged
“possession” of Kalu was also not relied upon
by the
plaintiff during her testimony, and the documentary evidence
introduced thereafter, in terms of the agreed order, took this
no
further on the plaintiff’s own evidence.
Ms Joubert
was
unable to refer me to any authority that possession
per se
constitutes positive conduct and
Mr Branford
was unable
to find any authority to support this proposition either.
[35] Perhaps fatal to this
argument however is that it could only have a bearing on the issue
of
wrongfulness.
Neethling et al
themselves deal with it under
this rubric; and at the risk of repetition and having regard to
Stedall supra
, the plaintiff neither specifically alleged
wrongfulness on the part of the Trust in her particulars of claim,
nor established
its existence on a
prima facie
basis in her
testimony.
[36] As regards
Mr Branford’s
submission that the plaintiff failed to establish any
prima facie
case against the Trust,
Ms Joubert
relied on their plea, in
particular paragraph 11 thereof. She submitted that in the plea the
Trust raised various defences on the
merits
of the case as
opposed to denying liability on the basis that they were the wrong
parties before the court. She argued that a reasonable
inference
could therefore be drawn from the contents of the plea, amplified by
the documentary evidence concerning payment of UIF
contributions and
wages by the Trust to Messrs Bricknell and Tapaseri, that the Trust
was in fact in control of Kalu’s enclosure.
[37] Again, this argument is not
persuasive. The onus rested on the plaintiff, not on the defendants,
to prove that the Trust was in control of Kalu. This was an
allegation made by the plaintiff that was specifically denied in the
plea. In any event, this argument is at odds with that advanced by
Ms
Joubert
on the basis, not of control, but of possession.
[38] In respect of the ground
advanced that the plaintiff, in any event, failed to establish
a
prima facie
case of negligent omission,
Ms Joubert
argued that it was the undisputed evidence of the plaintiff that she
could physically interact with Kalu at the caged-off area;
was
encouraged by the first defendant to physically interact with Kalu;
and that shortly after the incident, that area was covered
with mesh.
These, it was submitted, established a
prima facie
case of
negligence. However, the omissions upon which the plaintiff relied in
her pleading were simply not borne out by her own
evidence; and nor
were the aspects upon which
Ms Joubert
relied part of the
plaintiff’s pleaded case.
[39] As submitted by
Mr
Branford,
while the plaintiff’s pleaded case was premised
on Kalu simply grabbing her arm while she was standing close to the
enclosure,
her evidence showed that she had, to the contrary, been
physically interacting with Kalu just prior to the incident by
feeding
her and that she had, to this end, been putting her hand
and/or arm through the safety bars into the caged-off area of the
enclosure.
[40] Significant concessions made
by the plaintiff included that:
42.1 She disregarded verbal “cautions”
as
well as warning signs of which she was aware (including a warning
sign that appeared on the enclosure right where the incident
allegedly occurred);
42.2 She was aware of the previous incidents
involving Mr Bricknell and another guest; and
42.3 She nonetheless repeatedly put herself at risk
by regularly physically interacting with Kalu prior to the
incident.
[41] A defendant is only required
to take reasonable measures to safeguard others.
[15]
As argued by
Mr Branford
, even if it had been established,
prima facie
, that the Trust was in control of Kalu, there was
no evidence to suggest that her enclosure was not sufficiently or
reasonably
safely secured. It was in fact the plaintiff who breached
those safety measures by putting her arm and/or hand through the bars
of the caged-off area.
[42] Despite being aware, on her
own version, of the risks and dangers posed by interacting
with Kalu,
including the nature and potential ambit thereof, the plaintiff
nevertheless voluntarily exposed herself to these risks.
To the
extent that she relied on the first defendant’s personal
encouragement, this had nothing to do with the Trust’s
“control”. I thus disagree with
Ms Joubert’s
submission that the defendants would nevertheless still be required
to prove the defence of voluntary assumption of risk. The plaintiff’s
own evidence established this.
[43] In respect of additional
security measures effected to the caged-off area of the enclosure
after the incident, in
Sea Harvest Corporation (Pty) Ltd supra
it was held at para [27] that:
‘…
With the
benefit of hindsight the situation may seem otherwise; it usually
does. But that is not the test. In
S
v Bochris Investments (Pty) Ltd and Another
,
(
supra
at
866J to 867B) Nicholas AJA said the following:
“
In considering this question
[what was reasonably foreseeable], one must guard against what
Williamson JA called ‘the insidious
subconscious influence of
ex post facto
knowledge’
(in
S v Mini
1963 (3)
SA 188
(A) at 196E–F). Negligence is not established by showing
merely that the occurrence happened (unless the case is one where
res
ipsa loquitur
), or by showing after it
happened how it could have been prevented. The
diligens
paterfamilias
does not have ‘prophetic
foresight’. (
S v Burger
(supra)
at 879D). In
Overseas Tankship (UK) Ltd v
Morts Dock & Engineering Co Ltd (the Wagon Mound)
[1961] UKPC 1
;
[1961]
AC 388
(PC) ([1961]
[1961] UKPC 1
;
1 All ER 404)
Viscount Simonds said at 424 (AC)
and at 414G–H (in All ER):
‘
After the
event, even a fool is wise. But it is not the hindsight of a
fool; it is the foresight of the reasonable man which
alone can
determine responsibility.’
”
[44]
The following order is
made:
1. The application
for absolution from the instance at the close of the plaintiff’s
case succeeds with costs; and
2. Such costs
shall include any reserved costs orders as well as the costs
pertaining
to the application to re-open the plaintiff’s case.
J I CLOETE
For plaintiff
:
Adv L
Joubert
Instructed by: Miller
Bosman Le Roux
For defendants
:
Adv A
Branford
Instructed by: Everinghams Attorneys
[1]
2001 (1) SA 88
(SCA) at
92E-93A; see also
De Klerk
v Absa Bank Ltd and Others
2003 (4) SA 315
(SCA) at para [1].
[2]
At 164-165.
[3]
See also
South
Coast Furnishers v Secprop Investments
2012 (3) SA 431
(KZP) at para [15].
[4]
Although in her opening
address the plaintiff’s counsel placed reliance in the
alternative on the
edictum
de feris,
the essential
elements that the defendants owned Kalu and that Kalu strayed from
her enclosure were neither pleaded nor established
on the
plaintiff’s own evidence.
[5]
2006 (1) SA 461
(SCA)
para [12].
[6]
2000 (1) SA 827
(SCA)
para [19].
[7]
2015 (4) SA 574 (SCA).
[8]
2015 (2) SA 193 (CC).
[9]
2011 (3) SA 274
(CC)
para [122].
[10]
2017 (5) SA 76 (SCA).
[11]
2018 (2) SA 75 (SCA).
[12]
[2010] 2 All SA 474
(SCA) at para
[11].
[13]
2016 (3) SA 370
(CC) at para [28].
[14]
7
th
Edition at 60 (para 5.2.1).
[15]
Pretoria City Council v De Jager
1997 (2) SA 46
(AD) at 55H to J.