Enslin v Nhlapo (553/07) [2008] ZASCA 75; [2008] 4 All SA 156 (SCA); 2008 (5) SA 146 (SCA) (30 May 2008)

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[2008] ZASCA 75
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Enslin v Nhlapo (553/07) [2008] ZASCA 75; [2008] 4 All SA 156 (SCA); 2008 (5) SA 146 (SCA) (30 May 2008)

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REPUBLIC
OF SOUTH AFRICA
THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Reportable
Case Number :
553 / 07
In the matter between
HERMANUS FRANCOIS ENSLIN
...
APPELLANT
and
NGKAKA JACOB NHLAPO
...
RESPONDENT
Coram
: FARLAM, PONNAN JJA et SNYDERS AJA
Date of hearing
: 22 MAY 2008
Date of delivery
: 30 MAY 2008
SUMMARY
Liability of property owner – cattle straying onto
a public road – legal duty - negligence.
Neutral citation: This judgment
may be referred to as :
Enslin
v Nhlapo
(553/2007)
[2008] ZASCA 75
( 30 May 2008)
___________________________________________________________________
J U D G M E N T
___________________________________________________________________
PONNAN JA
[1] At approximately 7pm on 9 February 2002, the present respondent
(‘the plaintiff’) was driving his Toyota Venture, when he
came
upon a small herd of cattle alongside the farm Holfontein on the R26,
the main tarred road between Petrus Steyn and Heilbron.
He was unable
to avoid them and collided into one, a young Brahman bull. The
plaintiff sued the present appellant, the owner of the
farm (’the
defendant’) for the damages he sustained in consequence of the
collision. He averred that the cattle belonged to the
defendant,
alternatively, that the cattle were under the latter’s control. The
alleged grounds of negligence were that the defendant
had failed to:
ensure that the cattle were properly fenced in; prevent the cattle
from straying onto a public road; and warn approaching
motorists of
the presence of the cattle on the public road although he could have
done so. The plea denied ownership or control of
the cattle, as also
negligence. At the conclusion of the case, the issue of liability
having been separated from that of quantum
and the trial proceeding
solely on the former, the plaintiff’s claim was dismissed with
costs by the Petrus Steyn Magistrate’s
Court.
[2] On appeal, the Bloemfontein High Court (per Ebrahim J, Molamela
AJ concurring) reversed the decision of the trial court and altered
the order to one of judgment in favour of the plaintiff for such
damages as may be proved with costs. Persuaded that there were
prospects
that another court might well come to a different
conclusion in the matter, the high court, on application to it,
granted leave to
appeal to the full court (three judges) of that
division. The appeal succeeded before the full court. In terms of the
Supreme Court
Act, however, such further appeal on a judgment or
order given on appeal to it lay to this court and not to the full
court. (See
LTC Harms
Civil Procedure in the Superior Courts
para C1.23;
S v McMillan
2001 (1) SACR 148
(W);
Derby-Lewis
v Chairman, Amnesty Committee of the TRC
2002 (3) SA 485
(C).)
That part of the order of the high court referring the matter to the
full court was therefore a nullity as was the order of
the full
court, which had no jurisdiction to hear the appeal.
[3] The defendant testified that the Brahman bull with which the
plaintiff collided belonged to Mr Rondekop Mkwanazi. In that, there
was corroboration in the evidence of his erstwhile employee, Mr
Sahela Moloi. It follows that the conclusion by the trial court that
the bull in question did not belong to the defendant can hardly be
faulted. Although the defendant initially suggested in his evidence
that Mr Mkwanazi had hired the camp in which his cattle had been
grazing and whence they had strayed onto the public road, he later
clarified: ‘Dit is nou nie dat hy ‘n kamp huur en die kamp kaal
eet vir jaar in en jaar uit nie. Ek meen dit is my eiendom, ek
bestuur die plek, maar vir daardie tyd het hulle in die kamp geloop.
…’ The bull was, thus, on the defendant’s farm with the
knowledge and consent of the latter. It was the defendant who decided
where on the farm the cattle would graze and, for the right
to graze
his cattle on the defendant’s farm, Mr Mkwanazi paid the defendant
R15 per head per month. On his own version therefore
it would appear
that the defendant exercised a measure of control over the bull. But
it may well be unnecessary to go that far, for
he clearly exercised
control over the grazing camp in which the bull had been allowed to
roam freely unsupervised. (See
Jamneck v Wagener
1993 (2) SA
55
(C).)
[4] It must be accepted, it seems to me, that the defendant had to
have been aware of the fact that, if the cattle on his farm were
to
stray onto the adjoining public road, they could endanger the lives
of road users. A reasonable person in the position of the
defendant
would thus have taken steps to prevent the cattle from straying onto
the public road particularly at night. It is common
cause that the
defendant had indeed taken certain steps. The grazing camp was
separated by a fence from an access road that ran from
the public
road to a neighbouring property. Two gates had been installed. The
first, a wire gate, led from the camp to the access
road. The second,
a steel gate, led from the access road to the public road. For the
cattle to have strayed onto the public road
both gates had therefore
of necessity to have been open. According to the defendant he had
instructed his employees to keep both
gates closed. That, Mr Moloi
testified, he had done on the evening in question. The gates had
probably been opened thereafter - by
whom and in what circumstances,
does not emerge on the evidence.
[5] The real question in this case is whether a reasonable person
would have taken further precautions to prevent the cattle from
straying onto the public road. It is unfortunately a fact of life
that, even though most people act with reasonable care most of
the
time, a normal degree of negligence is an everyday occurrence (see
Mkwanazi v Van der Walt
[1995] ZASCA 4
;
1995 (4) SA 589
(A) at 594A-B). The
leaving open of one or more farm gates falls into that category of
negligence. Indeed, when it was suggested
to the defendant that there
was a real likelihood of visitors leaving the gate open, he replied:
‘
Dit is dan so, dit is dan so, maar
dit is nie die plaasboer se moeilikheid om agter elke kuiermens,
veral na ’n buurman toe se gat
af te ry en te kyk, ekskuus die
woord, agter hulle te gaan kyk dat hulle die hek toemaak nie’.
Of his arrangement with his neighbour in respect of the shared steel
gate, the defendant stated:
‘
Omdat die buurman … het reg om
die grond te gebruik deur na sy eiendom toe, en as daar geen vee
links en regs is nie, het hy die
reg om die hek oop te los. Soos ek
met hom ooreengekom het, want hy het die draad voorsien om die gang
te span juis vir daardie rede.
Vroeëre jare was daar nie ‘n gang
gewees nie, dit was ‘n enkeldraad gewees toe moes hy elke keer die
hek oop en toe maak’.
It was thus a reasonably foreseeable possibility that both gates
might have been left open, particularly as the one was utilised
by a
neighbour and his visitors to gain access to the adjoining property.
Moreover, on the defendant’s own version, his cattle
had strayed
onto the public road on a prior occasion. In those circumstances, it
seems to me, that a reasonable person would not
have shrugged his/her
shoulders in unconcern, as the defendant appears to have done, but
would definitely have considered further
precautionary measures over
and above those taken by the defendant in this case.
[6] In response to the suggestion that a cattle grid could have been
installed or a padlock utilised, the defendant stated:
‘
Daar is geen wet wat ‘n
grondeienaar verplig om ‘n slot of ‘n motorhek te sit nie, en ek
kan u net sê ter inligting by my plot
het ek ‘n motorhek gehad,
die vorige eienaar en, sy perd het sy bene gebreek in die motor hek,
so ‘n motorhek keer ook nie vee
nie. . . .
. . . So moenie vir my kom sê ek moet ‘n motorhek en
slotte aansit as anders dit, mense wat ook vee eienaar is, se beeste
loop
waar hulle wil, wanneer hulle wil by enige Vrystaatse dorpie.
U kan nou saam met my ry, ek belowe vir u ek gaan beeste
vir u … wys wat loop waar daar nie ‘n draad is nie. So moenie vir
my
sê ek moet motorhekke insit, ek het gedoen wat van my verwag is
en geen eienaar van ‘n bees of geen eienaar nie, as ek my buurman
se bees kry, hoeveel keer het ek al in die nag gery om my buurman se
bees uit die pad uitgejaag.’
[7] The use of a padlock to secure the steel gate or the installation
of a cattle grid on the access road shortly before it joined
the
public road would have been easy, inexpensive and effective measures
to prevent the cattle straying onto the public road. The
defendant’s
objection to the use of a padlock was that the one gate was shared by
his neighbour as well. The employment of a padlock
however, could
quite easily have occurred in consultation with his neighbour who
could have been furnished with a key. Considering
the respective
interests of the defendant on the one hand and the road users of the
public road on the other, the use of a padlock
or a cattle grid as
precautions were so easy and relatively inexpensive to take, that a
reasonable person would have taken at least
one if not both of them.
The defendant’s failure to take either precaution meant that he had
been causally negligent in relation
to such damage as may in due
course be proved by the plaintiff.
[8] There remains the question of the wasted costs incurred in
respect of the full bench appeal. Plainly the legal representatives
on both sides, who ought to have known that a further appeal to the
full court was incompetent, should be disentitled to recover
those
costs from their clients. It follows that no legal fees may be
debited against either party by their legal representatives
in
respect of those proceedings and such fees as may have been debited
must be refunded.
[9] In the result the appeal is dismissed with costs.
V M PONNAN
JUDGE OF APPEAL
CONCUR:
FARLAM
JA
SNYDERS
AJA