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[2015] ZAFSHC 63
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Hanger v Regal and Another (2826/2012) [2015] ZAFSHC 63 (27 March 2015)
IN THE HIGH COURT OF
SOUTH AFRICA
FREE STATE DIVISION,
BLOEMFONTEIN
Case No.: 2826/2012
DATE: 27 MARCH 2015
In the matter between:
MARIA ELIZABETH
HANGER
...............................................................................................
Plaintiff
And
JOE
REGAL
.......................................................................................................................
1st
Defendant
PETRA
REGAL
................................................................................................................
2nd
Defendant
JUDGMENT BY: DAFFUE, J
DELIVERED ON: 27 MARCH 2015
[1] This is an application by the
plaintiff for leave to appeal to the full bench of this division
against the judgment of Murray
AJ delivered on 11 December 2014 in
terms whereof she granted absolution from the instance with costs at
the close of plaintiff’s
case. Insofar as Murray AJ is not
presently acting in that capacity, the matter was allocated to me for
adjudication of the application
in accordance with the provisions of
section 17(2)
of the
Superior Courts Act, 10 of 2013
.
[2] The parties agreed that the
application could be decided in chambers in accordance with the
provisions of
rule 16(5)
of this Division. Plaintiff’s counsel
decided not to file any additional heads of argument. I received
heads of argument
from respondents’ counsel, supporting the
conclusions arrived at by Murray AJ and submitting that the
application should
be dismissed.
[3] Plaintiff relies on several grounds
of appeal. It is unnecessary to deal with each of these for purposes
of the adjudication
of this application.
[4] The test to be applied in
applications for leave to appeal is regulated by
section 17(1)
of the
Superior Courts Act. Leave
may only be given in certain specified
instances, one of which is if the judge or judges are of the opinion
that the appeal would
have a reasonable prospect of success.
LEGAL PRINCIPLES APPLICABLE TO
APPLICATIONS FOR ABSOLUTION FROM THE INSTANCE
[5] Harms JA dealt with the test for
absolution formulated in Claude Neon Lights (SA) Ltd v Daniel
1976
(4) SA 403
(AD) at 409 G – H as follows in Gordon Lloyd Page &
Associates V Rivera And Another
[2000] 4 ALL SA 241
(AD) at 243 B:
“This implies that a plaintiff
has to make out a prima facie case – in the sense that there is
evidence relating to
all the elements of the claim – to survive
absolution because without such evidence no court could find for the
plaintiff...
As far as inferences from the evidence are concerned,
the inference relied upon by the plaintiff must be a reasonable one,
not
the only reasonable one... Having said this, absolution at the
end of a plaintiff’s case, in the ordinary course of events,
will nevertheless be granted sparingly but when the occasion arises a
court should order it in the interests of justice.”
(emphasis
added.)
[6] For the sake of completeness the
well-known test set out in Claude Neon Lights loc cit is in the
following terms:
“... when absolution from the
instance is sought at the close of plaintiff’s case, the test
to be applied is not whether
the evidence led by plaintiff
establishes what would finally be required to be established, but
whether there is evidence upon
which a Court, applying its mind
reasonably to such evidence, could or might (not should or ought to)
find for the plaintiff.”
(emphasis added.)
[7] Hattingh J found that the test to
be applied in determining the question whether the defendant’s
application for absolution
from the instance should be granted is not
whether the adduced evidence required an answer, but whether such
evidence held the
possibility of a finding for the plaintiff, or put
differently, whether a reasonable Court can find in favour of the
plaintiff.
Consequently, at the absolution stage the plaintiff’s
evidence should hold a reasonable possibility of success for him and
should the Court be uncertain whether the plaintiff’s evidence
has satisfied this test, absolution ought to be refused.
See:
Build-A-Brick BK en 'n Ander v Eskom
1996 (1) SA 115
(O) at 123 A –
E. See also Schmidt C W H, Law of Evidence, loose leave edition, p.
3-16 to 3-18.
[8] I am of the opinion that the appeal
would have a reasonable prospect of success and that another court
may come to a different
conclusion for one or more of the following
reasons:
1. Merits and quantum were separated by
agreement and the only issue to be considered was defendants’
alleged liability to
compensate plaintiff. Murray AJ was of the view
that the matter was argued on behalf of plaintiff on the basis that
strict liability
should be imposed on defendants and that no reliance
was placed on negligence as pleaded. She then found that the case
that plaintiff
tried to make out was totally different from the case
pleaded and that plaintiff was bound by her pleadings. I am of the
view
that another court may find that plaintiff relied on negligence
in her particulars of claim and that the evidence led was sufficient
that a court may find in plaintiff’s favour on the basis of the
actio legis aquilliae. In order for a party to succeed in
an action
based on negligence it is not required that all the grounds of
negligence be proven.
2. The particular bear was kept in
captivity and plaintiff and her company were allowed to approach it
and to be close enough to
it for photographs to be taken. In fact it
is not disputed that the second defendant even left the plaintiff and
her party to
fetch a peach which she handed to plaintiff with an
invitation to feed the bear.
3. Notwithstanding his concessions in
cross-examination, Mr Boing’s evidence may be found to be
sufficient for plaintiff to
ultimately succeed in proving that
defendants, and second defendant in particular, was negligent as
pleaded and that a case was
made out for defendants to respond
thereto, failing which plaintiff may succeed in her action based on
the actio legis aquilliae.
4. It may be found that whether or not
the bear could have put his mouth and/or his paws through the
openings of the fence in order
to hurt a member of the public, and
plaintiff in particular, is immaterial based on the invitation to
plaintiff to feed the bear.
5. Although Mr Boing’s evidence
in cross-examination tends to throw a shadow over his evidence in
chief, his evidence as an
expert in his field demonstrated that the
particular fence did not afford adequate protection against the bear
and that defendants,
and second defendant in particular, was
negligent in allowing members of the public, and plaintiff in
particular, to be in close
proximity of the bear’s cage by
failing to take adequate, reasonable and necessary steps to protect
them/her from danger
by erection of a second railing or fence at
least 1.5 metres from the bear’s cage and/or to expressly warn
her from approaching
the bear and/or his cage.
[9] Consequently the following orders
are made:
1. The application for leave to appeal
to the full bench of the Free State High Court is granted.
2. Costs hereof are costs in the
appeal.
J. P. DAFFUE, J
On behalf of applicant: Adv. F.G.
Janse van Rensburg
Instructed by: Lovius Block
Attorneys
BLOEMFONTEIN
On behalf of respondent: Adv. P.J.
Loubser
Instructed by: Webbers
BLOEMFONTEIN