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[2014] ZAGPPHC 449
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Oosthuizen v Van Heerden t/a Bush Africa Safaris (A7/14) [2014] ZAGPPHC 449; 2014 (6) SA 423 (GP) (10 June 2014)
IN
THE GAUTENG HIGH COURT, PRETORIA
(
REPUBLIC
OF SOUTH AFRICA
)
Case
No.: A7/14
530/2011
Date:
10 June 2014
In
the matter between:
NICO
OOSTHUIZEN
..............................................................................................................
Appellant
and
SCHALK
VAN HEERDEN t/a
BUSH
AFRICA
SAFARIS
...................................................................................................
Respondent
JUDGMENT
KEIGHTLEY,
AJ
INTRODUCTION
AND COMMON CASE FACTS
[1]
It is the misfortune of cattle to be vulnerable to a disease which,
in English is rather euphemistically called “bovine
malignant
catarrhal fever”. The Afrikaans name for the disease is
far more descriptive, it is known simply as “snotsiekte”.
By all accounts the disease is nasty and usually results in the
infected cattle dying a painful death after a number of days of
suffering. In this judgment, I will refer to the disease by its
more common, and more descriptive, Afrikaans name.
[2]
It is well established in scientific circles that wildebeest, and
particularly blue wildebeest, are carriers of snotsiekte,
although
they do not suffer from the disease.
[3]
The appellant, who was the plaintiff in the court
a quo
,
claims that he lost six cattle to snotsiekte over a period of some
weeks from mid-October 2010. He instituted a delictual action
in the
Magistrate’s court of Ellisras against the respondent for
damages, on the basis that the source of the snotsiekte
infection was
the blue wildebeest kept by the respondent on the respondent’s
property. The appellant sought recompense
for the value of the
cattle he lost to the disease. The appellant's claim was
dismissed in the magistrate’s court and
he appeals against this
dismissal.
[4]
There are many facts in this case that are common cause. The
appellant is a cattle farmer and he is the lessee of a farm known
as
Goa. He commenced leasing the farm in February 2009. The farm is
divided into two sections, known as Goa West and Goa East.
A gravel
road separates the two sections of the farm. The facilities for
managing and treating the cattle, such as kraals, dipping,
loading
and watering stations, are all situated on Goa West, with Goa East
being used primarily for grazing.
[5]
To the north of Goa lies the southern border of the farm Samaria.
It is also divided by the gravel road into Samaria West
and Samaria
East. The respondent is the lessee of Samaria West. For
ease of reference, I will simply refer to the respondent’s
farm
as “Samaria”, although strictly speaking it is only on
Samaria West that the respondent conducts game farming
operations.
Samaria East is for all intents and purposes not relevant to the
issue in dispute in this matter.In addition to the
farm Samaria, the
respondent also farms on the properties Mariqua and Altefraai, which
adjoin Samaria to the west.
[6]
The respondent is primarily a game farmer, who runs hunting safaris
on the farms that he leases. He has removed the fences
between
the Western Portion Samaria, Mariqua and Altefraai with the effect
that he has a large area available to him on which to
conduct his
business. It is common cause that the respondent has blue
wildebeest on these properties. It is further
common cause that
the respondent has been farming with blue wildebeest on his
properties since 2002, and that he has all the necessary
permits for
such farming.
[7]
Samaria and Goa West share a common border, this is the northern
border of Goa West, and the southern border of Samaria.
The
border is 2,4km long. There is no common border between Goa
East and the portion of Samaria under the respondent’
control,
save for one junction point between the north-west corner of Goa East
and the south-east corner of Samaria. The
distance between the
properties at this point is 27 m, with the gravel road referred to
earlier separating the farms at this junction.
[8]
In addition to Samaria, there are other farms that border on the
appellant’s farm, Goa. The one that is relevant
for
purposes of this appeal is the farm Wellust, which is run by one Mr
van Vuuren. Wellust borders Goa West on the latter’s
western boundary. The length of this border is 3.3km. The distance
from the gravel road dividing Goa West from Goa East to the
border
with Wellust is, at the closest point, 1.320km. Mr van Vuuren
has blue wildebeest on the farm Wellust, as well as
on anther
adjoining farm that he operates, Stilstroom. The evidence
indicates that in July 2010, he imported a number of
blue wildebeest
onto Wellust, including some that he bought from the respondent on
his farm, Samaria.
[9]
The appellant does not dispute that he was aware of the existence of
blue wildebeest on the respondent’s farm Samaria
when the
appellant first moved his cattle on to Goa. It is common cause
that he did not request the respondent to take any
precautionary
measures or to put safeguards in place to deal with the risk of
infection from the respondent’s blue wildebeest.
It is
also common cause that the appellant himself took no precautionary
measures. In the appellant’s words: “
…
ek
sien vandag nog nie die punt hoekom moet ek my beeste weghou van die
blouwildebeeste of om dit te bestuur nie, want indien my
beeste
snotsiekte sou kry sou ek mos vergoed word.
” The
appellant’s attitude towards the risk of infection, therefore,
was that all of the risk lay at the door
of the respondent, and the
appellant was not required to put any safeguards in place. I
will have more to say about this
attitude later in my judgment.
[10]
It is not disputed that six of the appellant’s cattle died over
a period of some weeks from approximately 15 October
2010. The
appellant claims that all of these cattle died of snotsiekte. It
is common cause that two of the cattle were tested
positive for the
disease. No tests were conducted on the other cattle: the
appellant bases his case on what he says were
the similarities in the
symptoms displayed by all six cattle, and his knowledge of snotsiekte
as a cattle farmer of many years
standing. For reasons that
will become apparent later, nothing material turns on this issue.
THE
APPELLANT’S CLAIM IN THE COURT
A QUO
[11]
The appellant based his claim on the following facts:
[11.1]
On about 14 October 2010 he noticed that one of his cattle was sick.
[11.2]
He left the cow to die and once it was dead he was sure it was
snotsiekte that had killed her. He had seen snotsiekte
before
and he recognised the symptoms.
[11.3]
He contacted the respondent and told him that he had better get his
insurance in order because he was going to claim damages
from him for
the cow that had died of snotsiekte.
[11.4]
The appellant visited Mr van Vuuren, on Wellust, and issued a similar
warning.
[11.5]
Two weeks later, a second cow became ill. This time, the
appellant requested Dr Wiese, a vet who is also an expert
on
snotsiekte, to examine the animal. Dr Wiese confirmed it was
snotsiekte that the cow had contracted.
[11.6]
The following day, another cow became ill. The appellant killed
both animals and sent specimens to Dr Wiese for testing.
These
tests later came back as positive for snotsiekte.
[11.7]
Dr Wiese advised the appellant that the likely infection date of the
disease in his cattle was 15 September 2010.
[11.8]
He also advised the appellant that in terms of how the virus causing
the disease spreads, it cannot be transmitted beyond
a distance of 1
km.
[11.9]
The appellant testified that during the likely period of infection
his cattle were kept solely on Goa East. The last
time that
they were on Goa West was at the end of July 2010, when he had weaned
the last calves, and dipped the cattle. Thereafter,
he had
moved all the cattle onto Goa East for the winter, as he had no need
to use the facilities on Goa West to dip his cattle
or for any other
purpose. The appellant claimed that his cattle did not go on to
Goa West
at all
from the end of July to November 2010,
[11.10]
The distance between the farm Wellust and Goa East is approximately
1.3 km at the closest point. On Dr Wiese’s
advice that
the virus could not travel a distance of over 1km, the appellant
concluded that he would have no claim against Mr van
Vuuren on the
farm Wellust, as the distance was too great for Mr van Vuuren’s
wildebeest to have been the source of the infection.
[11.11]
The appellant’s case is that this left the blue wildebeest on
respondent’s farm as the only possible source
of the infection,
because, as I have indicated earlier, there is a common point of
contact between Goa East, where the appellant
claims his cattle were
at the relevant time, and the south east corner of Samaria, separated
by 27m.
[11.12]
It was on this basis that the applicant instituted his delictual
action against the respondent to recover his loss arising
from the
death of his cattle.
[12]
The legal basis for the appellant’s claim is described in his
particulars of claim as follows:
“
3.
Die Eiser se eis teen die Verweerder is op grond daarvan dat die
Verweerder die eienaar van blouwildebeeste op die PLAAS MARIKWA
en/of
die PLAAS ALTEFRAAI en/of die PLAAS SAMARIA wat gesamentlik bedryf
word en bekend staan as Bush Africa Safaris en aanspreeklik
is in een
of meer van die volgende opsigte, naamlik:
3.1
Nalatig was deur blouwildebeeste aan te hou wat snotskiektedraend is
welwetended dat dit skade kan veroorsaak aan beeste;
3.2
Blouwildebeeste aan te hou naby of teen die eiendom van die Eiser en
nie die nodige voorsorgmaatreels te tref ten einde bees
vrekte to
voorkom;
3.3
Die Wet op Diere Gesondheid se bepalings nie nate kom nie deur diere
aan to hou wat skadelik is;
3.4
Deur sy blouwildebeeste op so manier to bestuur dat dit ‘n
verhoogde risiko inhou vir die Eister.
”
[13]
In other words, the appellant averred that the respondent’s
alleged wrongful conduct was demonstrated by his negligence
in
keeping blue wildebeest, which are known to be carriers of snotsiekte
and which can result in harm to cattle, on his properties;
by his
keeping blouwildebeeste close to the property of the appellant
without taking the necessary precautions to prevent harm
to the
appellant's cattle; by the respondent managing his blouwildebeeste in
such a manner as to create an enhanced risk for the
appellant; and by
the respondent’s failure to comply with the necessary statutory
obligations pertaining to keeping dangerous
animals. I point
out that not much appears to have been made at the trial of this
latter aspect.
[14]
Appellant also averred that this aforementioned wrongful conduct by
the respondent led to the deaths of his cattle in that
these deaths:
“
is
veroorsaak deur snotsiekte en die snotsiekte was te alle relevant tye
hiervan afkomstig van die Eiser se blouwildebeeste
.”
[15]
The respondent denied delictual liability for the loss of the
appellant's cattle. In his plea the respondent placed all the
substantial averments in dispute. In addition he claimed that in the
event that the court found that the respondent was indeed
negligent,
he pleaded contributory negligence on the part of the appellant on
the basis that the appellant had brought cattle onto
his farm well
knowing of the existence of blouwildebeeste on the respondents
property, and by failing to take the necessary precautions
to protect
his own cattle from any inherent risk of snotsiekte.
[16]
The court
a quo
dismissed the appellant's claim on two
grounds; the first being in respect of the element of causation and
the second being in
respect of the element of proof of damages.
[17]
In the first place, the court found that the appellant had failed to
establish that it was the respondent’s blue wildebeest
that
were the cause of the snotsiekte in the appellant's cattle. In
evaluating the evidence, the court
a quo
rejected the
appellant’s version that the cattle had not been onto Goa West
from the end of July to mid-November 2010.
The court found that
this did not make sense, given that all the facilities for managing
and treating the cattle were on Goa West,
and given the fact that in
the region where the farms are situated, it is no longer winter from
September onwards. The court
a quo
also pointed to the
evidence advanced by various witnesses on behalf of the respondent to
the effect that the appellant’s
cattle were seen moving between
the two portions of the farm during the months in question.
[18]
As regards the issue of damages, the court
a quo
found that
the appellant had failed to prove his damages. The appellant’s
expert witness in this regard, Mr Vermaak,
was the auctioneer who had
originally sold a number of cattle including, the appellant claimed,
5 of the 6 that had died of snotsiekte,
to the appellant some
eighteen months before. At that stage, the cows were with
calf Mr Vermaak based his valuation
on the condition of the cattle at
the time they were originally sold to the appellant. He
confirmed that he had not seen
them again before they died. It
was also common cause that the sixth cow that died had not been
purchased from Mr Vermaak,
and was of a different breed from the
rest. These factors persuaded the court
a quo
to
conclude that the appellant had failed to prove his damages.
[19]
In view of the fact that the court
a quo
found the element of
causation lacking, it did not consider the question of whether the
appellant had satisfied the other elements
of the
actio legis
aquiliae
(save for, as I have indicated, the issue of damages),
nor was it necessary for the court
a quo
to consider the issue
of contributory negligence.
IS
THERE MERIT IN THE APPEAL?
[20]
The appellant bases his appeal against the court
a quo
’s
judgment on five grounds, only three of which are of any real
import. He contends that the court
a quo
erred in
finding:
[20.1]
that the appellant’s cattle were on Goa West during September
up to November 2010 (i.e. during the relevant period
of likely
infection);
[20.2]
by implication, that if the appellant’s cattle were indeed on
Goa West during this period, there was insufficient time,
during the
cattles’ presence on Goa West, for them to become infected with
snotsiekte, bearing in mind the expert witness,
Dr Wiese’s
evidence that the likely infection date was around 15 September 2010;
and
[20.3]
that the appellant had not proved his damages, and by failing to take
into account the fact that the appellant had placed
before the court
a quo
the best evidence of his damages.
[21]
The crux of the appeal is clearly the question of factual causation,
more specifically, did the appellant satisfy the onus
resting on him
to establish that the respondent’s blue wildebeest, and
only
the respondent’s blue wildebeest, were the probable cause of
the infection of the appellant’s cattle with snotsiekte?
[22]
In turn, this raises the critical question of whether the court
a
quo
erred in rejecting appellant’s version to the effect
that his cattle did not venture onto Goa West during the period when
they were susceptible to infection. This question was crucial
to the appellant’s case before the court
a quo
, and it
remains crucial to this appeal. The reason for this is that
unless the appellant’s version is accepted, (i.e.
unless it is
accepted that the appellant’s cattle were, as he claims,
exclusively on Goa East, and never on Goa West, from
July to November
2010) then it cannot be ruled out as a possibility that his cattle
were infected by Mr van Vuuren’s blue
wildebeest on the farm
Wellust. This is because Goa West and Wellust have a common
border and snotsiekte is therefore transmissible
between the two
properties. On this basis, if the probabilities lie with the
appellant’s cattle moving between the
two portions of Goa
during the months in question, as the respondent claims, then the
possibility must exist that the infection
came from Wellust and not
from Samaria.
[23]
The evidence led at the trial by the appellant and his witnesses on
the one hand, and the respondent and his witnesses on the
other, gave
rise to mutually destructive versions of events. On the one hand the
appellant vehemently asserted that his cattle
never went on to Goa
West during the winter months when the risk of infection was highest.
He claimed that he treated his cattle
prior to winter in order to
ensure that he did not have to dip them during the winter months. He
further claimed that he had no
other cause to take his cattle across
to Goa West in order to use the facilities that were only available
on that portion of the
farm. On the appellant's version, he did not
take his cattle onto Goa West for a period of four months.
[24]
On the other hand, according to the testimony of the respondent and
his witnesses, the appellant continued to move his cattle
between Goa
East and Goa West throughout this period, although it was not
seriously disputed that they were primarily kept on Goa
East at this
time.
[25]
The respondent testified that he recalled noticing that the appellant
continued to move his cattle between the two portions
of the farm
between the months of July to October 2010. The respondent drove
daily to the nearby shop, which he ran during this
period, and
remembered noticing the movement of respondent’s cattle between
Goa East and Goa West.
[26]
In addition the respondent testified that it was impossible for a
cattle farmer like the appellant to have no need of the facilities
that only existed Goa West for between 4 to 6 months. He
pointed out that, among other things, it would be necessary to dip
the cattle every 2 to 3 weeks to deal with ticks, particularly once
the rains came. He rejected the appellant’s evidence
that
the use of the product “Deadline” would be sufficient to
avoid having to use the dipping facilities on Goa West.
[27]
It is relevant to point out at this stage that the uncontested
evidence of the respondent was that he comes from cattle farming
stock in the area, and in fact had grown up on the farm Goa (the farm
now leased by the appellant), where his father had farmed
cattle. For
this reason, in my view, his evidence in this regard carries
considerable weight.
[28]
The respondent could not recall how often the cattle moved across to
Goa West, but he testified that this would have been at
least once a
month. He also testified that sometimes the appellant’s
cattle stayed overnight on Goa West, before moving
back to Goa East.
[29]
A further witness for the respondent, Mr Pieterse also testified that
during the period August to November 2010 he had driven
daily on the
road through Goa and had witnessed the appellant moving cattle
between the two portions of the farm. This happened
sometimes weekly
or fortnightly.
[30]
Mr van Vuuren, who farms on Wellust, testified to similar effect.
[31]
Where a court is faced with mutually destructive or irreconcilable
versions on the part of the plaintiff and the defendant,
it must
proceed as follows. It must first determine whether the matter may be
resolved on the probabilities. This involves considering
the
credibility of the witnesses, their reliability and, finally,
determining on the probabilities whether the party with the onus
has
succeeded in discharging it. See in this regard
Stellenbosch
Farmers Winery Group Ltd v Martell et Cie
2003 (1) SA 11
(SCA) at
14H-15E; National Employers’ General Insurance Co Ltd v Jagers
1984 (4) SA 437
(ECD) at 440D/E – F.
[32]
If there are no probabilities upon which to assess the irreconcilable
versions, then the court must apply the approach set
out in the often
cited dictum of Wessels JA in
National Employers’ Mutual
General Insurance Association v Gany
1931 AD 187:
“
Where
there are two stories mutually destructive, before the onus is
discharged the court must be satisfied that the story of the
litigant
upon whom the onus rests is true and the other false. It is not
enough to say that the story told by Clarke is not satisfactory
in
every respect, it must be clear to the court of first instance that
the version of the litigant upon whom the onus rests is
the true
version … “
[33]
See also
African Eagle Life Assurance Co Ltd v Cainer
1980 (2)
SA 234
(WLD) at 237.
[34]
In the present case, it seems to me that the dispute over whether the
appellant’s cattle were exclusively on Goa East
over the months
in question can be resolved on the probabilities. Moreover, it
seems to me that, having regard to all of
the evidence presented, the
probabilities do not favour the appellant. This is demonstrated by
the following:
[34.1]
When one has regard to the nature of the appellant’s farming
enterprise and the facilities available on the farm it
is improbable
that he never allowed his cattle to cross over onto Goa West
throughout the period from July to November 2010.
I have
already referred to the respondent’s evidence to the effect
that a cattle farmer on Goa would not be able to avoid
having to use
the facilities on Goa West for a period of four months. When
weighed against this evidence, the appellant’s
denial that he
ever took his cattle onto Goa West during those four months is
improbable.
[34.2]
There is then also the fact that it was not only the respondent, but
two other witnesses who also testified to the fact that
there was
movement of appellant’s cattle between the two portions of his
farm over the months in question. Like the
respondent, both Mr
Pieterse and Mr van Vuuren had ample opportunity to see cattle on Goa
West. Mr Pieterse testified that
he traveled twice daily on the
gravel road at this time, and Mr van Vuuren’s eastern boundary
borders on Goa West’s
western boundary. He testified that
he had the opportunity to view Goa West whenever he checked his
boundary fences on the
eastern section of his farm, and that he had
done so after July 2010, when he had seen the appellant’s
cattle on Goa West.
[34.3]
The appellant points to some inconsistencies in Mr Pieterse’s
testimony, and suggests that he may have had a motive
to testify in
support of the respondent. Be that as it may, that still leaves
the evidence of the respondent and Mr van Vuuren.
As far as the
latter is concerned, it is difficult to understand why he would have
testified that he had seen the appellant’s
cattle on Goa West
in the months after July 2010 unless he had seen them.
[34.4]
The appellant also points to the fact that the respondent does not
pinpoint the dates, times and duration of when the appellant’s
cattle allegedly were seen on Goa West. Counsel for the appellant
submitted that the appellant had established a
prima facie
case of infection from Samaria. He submitted that as a result
of these shortcomings in the respondent’s evidence, the
respondent was unable to rebut the appellant’s
prima facie
case, and hence the court
a quo
ought properly to have decided
the matter in the appellant’s favour.
[34.5]
These submissions have no merit. They ignore the fact that it
is the appellant who bore the overall onus of satisfying
the trial
court that respondent’s blue wildebeest on Samaria were the
source of the snotsiekte infection. The appellant’s
case,
on which he led evidence, was that his cattle were
never
on
Goa West from the end of July 2010 to November 2010. As part of
his overall onus, he assumed the evidentiary burden of
establishing
this. No evidentiary burden rested on the respondent to
establish when, where or for how long, the appellant’s
cattle
were on Goa West. It was sufficient for them to present
evidence to rebut the appellant’s case to the effect
that his
cattle were
never
on Goa West during the relevant period.
In my view, the respondent’s evidence to the effect that the
cattle were in
fact on Goa West during the period, without the
necessity to specify dates, times and duration, was entirely
sufficient to meet
the case made out by the appellant.
[35]
For all of these reasons, I am of the view that the magistrate was
correct in accepting the respondent’s version as the
more
probable. It follows that the court
a quo
was correct in
concluding that the appellant had not satisfied the onus resting on
him to establish that it was the respondent’s
blue wildebeest,
and no others, that infected his cattle with snotsiekte.
[36]
Moreover, even if it were to be assumed, in favour of the appellant,
and contrary to my finding above, that the court
a quo
erred
in the conclusion it reached in respect of the element of causation,
I am not persuaded that the appellant would have succeeded
in
establishing delictual liability on the part of respondent in any
event.
[37]
In the first place, I cannot accept as correct the appellant’s
averment that the respondent was negligent in keeping
blue wildebeest
while knowing that, as carriers of snotsiekte, they can cause harm to
cattle.
[38]
It cannot,
per se
, be negligent for game farmers to keep blue
wildebeest. It is well established that they carry a virus that
can be transmitted
to cattle and that can cause snotsiekte.
Notwithstanding this, the law permits farming with game, including
blue wildebeest,
and does not outlaw such farming in the proximity of
cattle farming. As I have indicated, it is common cause that
the respondent
obtained all the necessary permits for keeping blue
wildebeest many years before the appellant commenced cattle farming
on Goa.
In order for the appellant to succeed in establishing
the necessary element of negligence, in order to impose delictual
liability
on the respondent, something more would be required than
this.
[39]
The test for negligence requires that the
diligens paterfamilias
in the position of the respondent would have forseen the reasonable
possibility of his conduct injuring another and would have
taken
reasonable steps to guard against such harm occurring (
Kruger v
Coetzee
1966 (2) SA 428
(A)). While it cannot be gainsaid
that it is well known that blue wildebeest carry the snotsiekte
virus, this in itself is
insufficient to establish negligence on the
part of the respondent. He testified that he had farmed for
many years with both
cattle and blue wildebeest in proximity to each
other with no problems. In fact, the
appellant
himself
testified that he viewed the risk of his cattle contracting
snotsiekte from the respondent’s blue wildebeest as very
low.
He said the following in this regard:
“…
ek
boer al 30 vir jaar langs blou wildebeeste, waar my beeste op die
plaas Sara Bel het hulle gegrens aan die plaas Merino Vlakte
en
daarna het ek die plaas San Katrina gehad waar hulle gegrens het aan
die plaas Merino Vlakte wat sedert 1980 boer ek langs blou
wildebeest
het ek nog nie skade gehad nie … . …. Mnr van Heerden
weet sy blou wildebeest is honderd persent draers
van snotsiekte, hy
weet dit is ‘n feit.
Die persentasie wat my
beeste gaan snotsiekte kry, is bitter, is bitter min
.”
(emphasis added)
[40]
On the appellant’s own testimony, therefore, the risk of
infection from respondent’s animals was very low.
The
respondent testified to the fact that it would not be economically
viable for him to fence off a 1km stretch of his game farm
in order
to prevent the possible spread of infection to the appellant’s
cattle. He pointed to the fact that it is far
more difficult to
contain game in confined areas than cattle, and to the excessive cost
of game fencing material for the area that
would have to be covered.
He also testified to the effect that this would have on his business.
[41]
Given the low risk of infection, and the cost of erecting a game
fence, it is hardly credible to suggest that the respondent
was
negligent in failing to do so in this case.
[42]
There may well be cases where a game farmer can be held to have acted
wrongfully and unlawfully by farming with blue wildebeest
in the
proximity of cattle farming. The law reports contain examples
of cases in which the courts have considered claims
by cattle farmers
against game farmers over the risk of snotsiekte. I refer, for
example, to
Wright v Cockin
2004 (4) SA 207
(E), and
PGB
Boerdery Beleggings (Edms) Bpk v Somerville 62 (Edms Bpk
2008 (2)
SA 428
(SCA). There is also the unreported decision of this
court in
Strang v Pelser
(case no. 76709/2009, unreported
judgment of Vorster AJ dated 7 September 2012), which was recently
appealed to a full bench of
this court.
[43]
What these cases illustrate is that as is so often the case in
matters of this nature, whether a particular defendant or respondent
acted wrongfully or negligently in keeping blue wildebeest in
proximity to cattle farming activities, will depend very much on
the
particular facts at hand.
[44]
To succeed in a delictual action, both negligence and wrongfulness
must be established against the blue wildebeest farmer.
I have
already dealt with the issue of negligence. As far as the
element of wrongfulness is concerned, it is trite that not
every
infringement of a right will be regarded as being legally
reprehensible. The
boni mores
, or legal convictions of
the community, are used as a test to determine whether a particular
infringement is wrongful or unlawful.
This is essentially an
objective test, based on the criterion of reasonableness. The
question is essentially whether,
in all of the particular
circumstances of the case, a defendant has infringed a plaintiff’s
interests in an unreasonable
manner. This requires a balancing
of interests between the plaintiff and the defendant in light of all
the relevant circumstances
of the case. See in this regard
Neethling et al
The Law of Delict
(6ed) p33-9
[45]
In the present case, the question is whether the respondent acted
wrongfully, as the appellant avers in his particulars of
claim.
I consider the following factors relevant for purposes of determining
this question.
[45.1]
It is a significant feature of this case that the appellant brought
his cattle onto the farm Goa long after the respondent
had commenced
farming with blue wildebeest on his properties, and well knowing that
blue wildebeest were kept on the neighbouring
farms. This case
differs from both the
PGB Boerdery
case and the
Strang
case referred to earlier in this regard. Those cases were
concerned with circumstances in which game farmers wished to
introduce
blue wildebeest into areas where the applicants already had
established cattle farming operations.
[45.2]
In balancing the respective interests of the parties, it must be
recognised that both have the right to the reasonable use
of their
properties. In the circumstances of this case, it is untenable
to suggest that the respondent’s conduct in
keeping blue
wildebeest on his property is
per se
unreasonable. The
respondent testified to the fact that in all his years of farming
with blue wildebeest on his properties,
he has had no problem with
the transmission of snotsiekte to other cattle in the area, despite
the fact that a number of his other
neighbours are cattle farmers.
[45.3]
The respondent also denied that he had managed his farm in any manner
as to create a heightened risk for the appellant.
He pointed
out that he had conducted his game farming operations for many years
without incident. In addition, he testified
that he complied
with all the requirements laid down by the authorities when granting
him the necessary permits to keep blue wildebeest.
This
evidence was not challenged.
[45.4]
Of course, the appellant also has a right to the reasonable use of
his property, which entails the right to farm cattle should
he wish
to do so. However, the mere fact that blue wildebeest are known
to be carriers of the snotsiekte virus does not mean
that the
appellant’s right to reasonable use trumps the concomitant
rights of the respondent. The reasonable use of
property
between neighbours with competing interests necessarily involves a
give and take on both sides.
[45.5]
The appellant fails to acknowledge this fundamental principle.
His entire approach is that it is the respondent that
is required to
“give” and that it is the appellant’s right to
“take”. In other words, his case
rests on the
assumption that it was only the respondent that was obliged to take
precautions to prevent the possible infection
of appellant’s
cattle. This is evident from the following exchange
during the course of the appellant’s
cross-examination:
“
Sou
dit dan nou na wat ons bespreek het ‘n regverdige opsomming
wees om te sê dat u geen voorsorgmaatreels getref het
om
besmetting van blou wildebeest te bestuur of te beperk nie?
”
The appellant’s answer is “
Ja
.”
In
answer to the question of what steps he expected the respondent to
take to reduce the risk, the appellant answered: “
Ek verwag
van ‘n blouwildebees boer, van ‘n beesboer om ‘n
kilometer van sy bure af wat met beeste boer ‘n
wildwering te
span en sy wildebeeste te hou en sy diere op sy plaas te hou en weg
to hou van sy bure af.
”
[45.6]
I cannot accept the appellant’s contention that the respondent
was obliged to take this precaution and that his failure
to do so
constituted unreasonable and hence wrongful use of his property. On
the appellant’s own version, he brought cattle
into hisproperty
knowing that blue wildebeest were kept by the respondent on his
neighbouring farms, as well as on other neighbouring
farms. On
his own evidence, the appellant sat back and did nothing to protect
his own cattle from the risk of possible infection.
He did not
approach the respondent with a view to discussing measures to
accommodate both of their farming requirements in this
regard.
As the respondent testified: “
As hy sy risiko wil verlaag
sou hy eerder met my moes kom praat en dit met my onderhandel het
daaroor praat sodat ons beide daaraan
kon werk, of my in kennis stel
as dit vir
him ‘
n
risiko was vir hom.
” It is common cause that the
appellant did not do so.
[46]
In my view, and taking all of these factors into account, it was not
reasonable for the appellant to expect the respondent
to take sole
responsibility, at substantial cost to the respondent, for reducing
the risk of possible snotsiekte infection, while
at the same time
taking no responsibility himself for reducing the risk. Even
more so when, as the appellant testified, he
viewed the risk of
infection of his cattle to be “
bitter, bitter min
”.
To place this responsibility on the respondent would be contrary to
the underlying principles governing the reasonable
use of property
between neighbours.
[47]
The
boni mores
or legal convictions of the community do not
require that courts should come to the assistance of a litigant who
adopts an attitude
of this nature. The facts of this case
demonstrate that the appellant assumed the risk that his cattle might
be infected
and that he deliberately did nothing to prevent this.
He proceeded on the assumption that if his cattle contracted
snotsiekte,
the law would hold the respondent liable for his loss.
This was a mistaken assumption. I am of the view that there was
no wrongful conduct on the part of the respondent upon which to pin
delictual liability for any loss suffered by the appellant.
[48]
For this reason too, even if it were to be assumed that the appellant
established the element of factual causation (which I
have held he
did not), the appellant would not have succeeded in his action
against the respondent.
[49]
In light of my findings on the other elements of delictual liability,
it is unnecessary to consider the question of whether
the court a quo
correctly found that the appellant had not proved his damages.
[50]
For all of these reasons, I find that there is no merit in the
appeal.
[51]
I make the following order:
[51.1]
The appeal is dismissed with costs, such costs to include those of
senior counsel.
_______________________
R
M KEIGHTLEY AJ
Acting
Judge of the Gauteng Division of the High Court, Pretoria
I
agree
_______________________
J
W LOUW J
Judge
of the Gauteng Division of the High Court, Pretoria
HEARD
ON : 03 JUNE 2014
FOR
THE APPLICANT : I M BREDENKAMP SC
INSTRUCTED
BY : LEWIES & KITCHING ATTORNEYS
FOR
THE RESPONDENT: T STRYDOM SC
INSTRUCTED
BY: GRIESHABER ATTORNEYS