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[2014] ZAFSHC 140
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Mofokeng v Moloi (A106/2014) [2014] ZAFSHC 140 (4 September 2014)
IN THE HIGH
COURT OF SOUTH AFRICA
FREE STATE
DIVISION, BLOEMFONTEIN
Case
No: A106/2014
In
the matter between:-
FALLO
SAMUEL
MOFOKENG
.............................................................................................
Appellant
and
............................................................................................
PHINEAS
LETLATSA
MOLOI
............................................................................................
Respondent
CORAM:
RAMPAI, AJP
et
TSATSI, AJ
JUDGMENT
BY:
TSATSI,
AJ
HEARD
ON:
29
JULY 2014
DELIVERED
ON:
4
SEPTEMBER 2014
INTRODUCTION
[1]
This is an appeal against the judgment of the learned magistrate, who
granted absolution from the instance in favour of the
defendant/respondent on 25 October 2013.
[2]
In the main action the appellant was the plaintiff and the respondent
was the defendant. For the sake of convenience the parties
will be
addressed as appellant and respondent.
[3]
The appellant’s cause of action was a claim for payment in the
sum of R85 992, 00 in respect of damages caused as
a result of a
collision between his motor vehicle, and a cow on the 10
th
of September 2009. His motor vehicle was driven by his son, S.P.
Mofokeng.
FACTS
[4]
It is common cause that:
4.1
An accident occurred on 10 September 2009 at about 19h00 on the
public road between Villiers and Frankfort a short distance
from
Villiers.
4.2
The accident occurred between the appellant’s motor vehicle and
a cow that belonged to the respondent.
4.3
At a place where the accident occurred the road was fenced and that
the cow was within the road boundaries of the public road.
4.4
The respondent gave no explanation on the scene of the collision as
to how the cow came to be on the road.
4.5
At the time of the collision there was a suspicious vehicle on the
scene which quickly drove off after the collision.
[5]
The appellant alleged that the collision was caused solely by the
negligence of the respondent in that:
“
4.1
Nagelaat het om sy beeste met spesifieke verwysing na die betrokke
bees behoorlik in ‘n kamp te hou waar dit nie toegang
tot die
openbare pad het nie.
4.2
Nagelaat het om toe te sien dat die bees nie op die openbare pad is
sonder toesig nie.
4.3
Die beeste aangejaag het op ‘n openbare pad sonder om behoorlik
beheer daaroor te hou.
4.4
Die beeste aangejaag het op ‘n openbare pad sonder om voertuie
wat die pad gebruik het behoorlik te waarsku daarvan.”
[6]
The respondent denied each and every allegation by the appellant and
pleaded to the appellant’s particulars of claim as
follows:
“
4.1
Defendant denies each and every allegation therein contained as if
herein so set out, and particular that the Defendant was
negligent
either as alleged or at all.
Defendant specifically pleads that he
acted as a reasonable person would have in his position by taking
every precautionary steps
reasonably expected from him to prevent any
livestock to escape from the enclosed areas or his kraal.
4.2
Defendant denies each and every allegation therein contained as if
herein so set out, and particular that the Defendant was
negligent
either as alleged or as all.
Defendant specifically pleads that he
acted as a reasonable person would have in his position by taking
every precautionary steps
reasonably expected from him to prevent any
livestock to escape from the enclosed areas or his kraal.
4.3
Defendant denies each and every allegation therein contained as if
herein so set out, and particular that the Defendant was
negligent
either as alleged or as all.
Defendant specifically pleads
that none if his live stock was hastened over any public road at
19:00 on the 10
th
of September 2009 as all his livestock was already in his kraal
locked up.
4.4
Defendant denies each and every allegation therein contained as if
herein so set out, and particular that the Defendant was
negligent
either as alleged or as all
Defendant specifically pleads that
none if his live stock was hastened over any public road at 19:00 on
the 10
th
of September 2009 as all his livestock was
already in his kraal locked up.”
[7]
In the alter.native the respondent pleaded that the appellant’s
driver was negligent in that, he failed to keep a proper
look out;
that he failed to take the conditions of the road into account, when
approaching an informal settlement and that he failed
to apply his
brakes timeously or at all.
[8]
In the court
a quo
there was separation of merits and quantum
and the trial proceeded only on the merits.
ISSUES
[9]
The crux of the matter is whether the appellant had
prima
facie
established that a collision was
occasioned by the respondent’s negligence.
THE
APPELLANT’S EVIDENCE
[10]
The version of the appellant was narrated by two witnesses, the
first one is the driver Mr Shorty Pikinini Mofokeng, and the
appellant himself who is the owner of the vehicle.
[11]
The first witness was the driver who testified as follows:
That he
was driving from Johannesburg to Frankfort. There were about ten
passengers in the mini bus taxi. It was dark when he reached
Villiers. There was no rain, shortly before the collision. He was
driving at a speed of about 95 km per hour, at the zone where
the
speed limit was 100 km per hour. The accident happened after the off
ramp leading to Frankfort direction and on the right there
is a road
leading to Villiers. The road was steep. He was travelling downhill
when the accident happened. The grass was tall on
the shoulders of
the road. He noticed cattle on the left hand side of the road. One of
them unexpectedly ran across the road in
front of the motor vehicle.
The motor vehicle and the cow collided on his path of travel. He
could not avoid the collision for
three reasons. The first was that
he was very close when the cow ran across the road. The second reason
was that he could not slow
down because the brakes of the vehicle
were hopelessly defective. The third reason was he could not swerve
to the right as there
was an oncoming motor vehicle. The cow and the
vehicle ended on the right hand side of the road between the tarmac
and the fence. The
police were called. The police arrived at night and took a statement
from him. They advised him to remain on
the scene for the night,
which he and his father did.
[12]
The appellant also testified. He went to the scene of the accident.
He was already there when the police arrived. The Police
advised them
to remain on the accident scene to see who will come looking for the
dead cow. According to the police the person
looking for the
dead cow would possibly be the owner. The respondent visited the
accident scene the next day. His visit raised
the suspicion
that he was the owner of the dead cow and that he was possibly the
driver of the suspicious vehicle that was parked
next to the road at
the time of the collision. That car drove off without offering
assistance. He testified that his suspicion
was strengthened by the
conduct of the respondent. The respondent was able to locate exactly
where the dead cow was without any
struggle, despite the tall grass
which was supposed to be a hindrance. The presence of the
suspicious motor vehicle mentioned
above, was viewed by the appellant
as the respondent himself waiting in the motor vehicle to see how
events were going to unfold
after the collision. According to the
appellant this was because the respondent was trying to avoid
liability.
This
concluded the appellant’s version, thereupon the respondent
applied for absolution from the instance, before the respondent
testified. The respondent’s application was successful.
The appellant was aggrieved.
THE
RESPONDENT’S EVIDENCE
[13]
The respondent did not lead evidence, as I have already indicated.
THE
MAGISTRATE’S RULING
[14]
The learned magistrate concluded that no negligence at all had been
established by the appellant against the respondent. In
the cause of
giving a ruling, the magistrate said the following:
“
Wat
die feite dan nou in die saak aanbetref is dit my mening dat die
Eiser nie ‘n sweempie van nalatigheid bewys het tot hier
waar
sy saak gesluit is nie.”
[15]
After the decision the appellant applied for leave to appeal the
learned magistrate’s ruling. Leave was granted. Among
the other
grounds of appeal, the appellant contended that:
“
6.
The Honourable Magistrate erred in not taking into consideration
properly that the uncontested evidence of the facts by the
Plaintiffs
witnesses present a case scenario as prohibited by Regulation 313.
7.
The Honourable Magistrate erred in not taking into consideration
properly that the Defendants contradiction
(sic)
of
Regulation 313 as set out in the Plaintiffs particulars of claim and
supported by evidence constitute prima facie negligence.
8.
The Honourable Magistrate therefore erred in not finding that
grounds for negligence on the part of the Defendant had been proven
by the Plaintiff.
9.
The Honourable Magistrate erred in the circumstances in not applying
the principles set out in the
Jamneck v Wagner
case namely to
find that there was a rebuttal duty on the Defendant which he had to
comply with”.
[16]
On behalf of the appellant Mr Marais submitted that the trial
magistrate erred in making the finding that the evidence tendered
by
and for the appellant hardly disclosed any negligence on the part of
the respondent. Therefore Mr Marais, urged us to uphold
the appeal.
[17]
On behalf of the respondent Mr Hefer differed. He submitted that the
finding of the trial magistrate was correct. Therefore
he urged us to
dismiss the appeal.
THE
LAW
Absolution
from the instance
[18]
Rule 39(6), (7), and (8) of the Uniform Rules of the High Court
provides as follows:
“
(6)
At the close of the case for the plaintiff, the defendant may apply
for absolution from the instance, in which event the defendant
or one
advocate on his behalf may address the court and the
plaintiff or one advocate on his behalf may reply.
The defendant or his advocate may thereupon reply on any matter
arising out of
the address of the plaintiff or his advocate.
(7)
If absolution from the instance is not applied for or has been
refused and the defendant has not closed his case, the defendant
or
one advocate on his behalf may briefly outline the facts intended to
be proved and the defendant may then proceed to the proof
thereof.
(8)
Each witness shall, where a party is represented, be examined, cross
examined or re-examined as the case may be by only one
(though not
necessarily the same) for such party.
[19]
The test to be applied by the trial
court was: Was there evidence upon which a court might reasonably
find for the plaintiff? (See:
McCarthy
Ltd v Absa Bank Ltd
2010
1 All SA 435
(SCA);
Carmichele v
Minister of Safety and Security
2001 10 BCLR 995
(CC); 2001 4 SA 938
(CC) 951
).
[20]
The test to be applied by the trial court was
to
inquire whether the plaintiff has made out a
prima
facie
case which calls for the
respondent to answer. To the extent that the plaintiff relies upon
inferences, it is sufficient if the
inference the plaintiff wishes to
draw is a reasonable one; it need not be the only reasonable
inference
.
(
Marine
and Trade Insurance Co Ltd v Van der Schyff
1972 1 All SA 144
(A); 1972 1 SA 26
(A);
Alli v De Lira
1973 4 All SA 547
(T); 1973 4 SA 635
(T).)
[21]
The court has a discretion to grant
or refuse absolution from the instance (
Fedgas
(Pty) Ltd v Rack-Rite Bop (Pty) Ltd
1997 3 All SA 68
(B). In the exercise of this discretion it will
normally not have regard to the credibility of witnesses unless
there is a serious issue regarding the credibility of such witnesses
to the extent that the court is unable to place any reliance
upon them.
The court may also have
regard to the possibility that the plaintiff’s case may be
strengthened by evidence emerging during
the defendant’s
case.
(
Ruto
Flour Mills (Pty) Ltd v Adelson (2)
1958
4 All SA 252
(T); 1958 4 SA 307 (T).
[22]
Absolution from the instance can only be granted if the onus rests
upon the plaintiff. If the onus rests on the defendant,
there can be
no order for absolution from the instance either at this stage or
later (
Schoeman v Moller
1949 4 All SA 60
(O);
1949 3 SA 949 (O).
[23]
In
Gafoor
v Unie Versekeringsadviseurs (Edms) Bpk
1961 (1) SA 335
(A) at 340D-G the court stated as follows:
“
Another
observation that may be made is that as a rule when a trial Court
refuses absolution at the close of the plaintiff's case,
it avoids
unnecessary discussion of the evidence, lest it seem to take a view
of its quality and effect that should only be reached
at the end of
the whole case. In the same way on appeal it is generally right for
the Appellate Tribunal, when allowing an appeal
against an order
granting absolution at the close of the plaintiff's case, to avoid,
as far as possible, the expression of views
that may prematurely curb
the free exercise by the trial Court of its judgment on the facts
when the defendant's case has been
closed.”
Negligence
[24]
In
Enselin v Nhlapo
[2008] ZASCA 75
;
2008 (5) SA 146
SCA at 148J to 149 Ponnan JA said the following:
“
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.”
and
at 150C – D:
“
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
Mkhwanazi
v Van der Walt
[1995] ZASCA 4
;
1995 (4) SA 589
(A) at
594A - B).”
[25]
A question of negligence was discussed in an unreported judgment in
Van Zyl v Conradie
(case no 1536/1988 ECD delivered on 14 March 1991):
“
The
defendant is not automatically liable if it is found that his cattle
got into the road at night and caused a collision.
This does
not give rise to a presumption of negligence. There is no room
for applying the maxim res ipsa loquitor…
The plaintiff
can only succeed by establishing by means of credible and acceptable
evidence that the defendant was negligent and
that his negligent
conduct caused damage to the plaintiff.”
[26]
The decision in
Van
Zyl
,
supra
,
is clearly not compatible with the decision in
Enselin
,
supra
.
The latter is more authoritative. The former has no binding
force on me. Moreover
the
Road Traffic Regulation 313 of 1996 was clearly enacted
to enhance public protection from the foreseeable danger
posed by
stray animals roaming on a public road. The decision in
Van
Zyl
had eroded the public protection of road users. The Regulation
creates statutory negligence, albeit prima
facie
.
(see
Klaas
v Serfontein
1940 CPD 616
at 621).
[27]
In terms of the decision in
Jamneck v
Wagener
1993 (2) SA 54
(C) the onus
of rebuttal is placed on the defendant. Should the defendant
fail in this instance,
prima facie
inference of negligence becomes conclusive.
National
Road Traffic Regulation
[28]
Regulation 313 of the National Road Traffic of 1996 reads as
follows:
“
(1)
Subject to the provisions of subregulation (2), no person shall leave
or allow any bovine animal, horse, ass, mule, sheep, goat,
pig or
ostrich to be on any section of a public road where that section is
fenced or in any other manner closed along both sides,
and no person
shall leave such animal in a place from where it may stray into such
section of a public road.
…
(3)
In any prosecution for a contravention of subregulation (1), it
shall, in the absence of evidence to the contrary, be presumed
that
any animal referred to in subregulation (1) was left or allowed to be
on the section of the public road or place concerned
by the owner of
such animal, and a section of a public road shall be regarded as
fenced or analysed along both sides even though
there is an opening
providing access to such road in the fence or other enclosure.
…
(5)
A person in charge of an animal on a public road shall tend the
animal in such a manner as not to constitute an
obstruction or danger to other traffic.”
ARGUMENTS
The
Appellant
[29]
According to Mr Marais, the magistrate
incorrectly stated that there was no evidence as to whether the road
was fenced as the specific
evidence of the witness was that they
found the cow afterwards lying near the fence on the side of the
roadway. Accordingly the
magistrate erred and should have found in
the appellant’s favour and not granted absolution from the
instance in favour of
the respondent.
The
Respondent
[30]
In consideration of the appellant’s argument, Mr Hefer for the
respondent, argued that there was no evidence of respondent
leaving
the cow on the public road without proper supervision. He further
submitted that the appellant failed to prove negligence
on the part
of the respondent.
APPLICATION
OF THE LAW TO THE FACTS
[31]
In my view, and in light of the preceding submissions of counsel,
absolution from the instance should not have been granted.
There was
evidence upon which the court could have decided in the appellant’s
favour. There are also authorities that our
courts have relied on in
the past in instances where it has to be decided whether or not
absolution should be granted.
[32]
One of the reasons why absolution should not have been granted was
because of the fact that at the trial, the respondent did
not
seriously challenge the appellant’s evidence. On behalf of the
respondent no suggestions, contrary to the appellant’s
case
were put to the appellant’s witnesses. In my view the appellant
had given sufficient evidence which indicated
prima
facie
, that the respondent was causally
negligent (
Enselin
,
supra
).
Therefore it became necessary for the respondent to rebut the
appellant’s prima
facie
case of negligence.
[33]
Absolution granted in the case in question may open flood gates for
other similar cases and set a bad precedent where an owner
of an
animal may not be obliged to take reasonable steps to prevent the
animal from straying onto a public road, putting the lives
of
unsuspecting and vulnerable road users at risk. The reasons that the
learned magistrate gave for granting absolution in the
respondent’s
favour are not supported by what the law provides regarding
absolution.
[34]
In terms of Regulation 313 of the National Road Traffic, the
provision is pre-emptive, in the sense that the word “shall”
is used, not “may”. The provision clearly indicates that
“no person
shall
leave
or allow any bovine animal……..on
any section of the public road….” Therefore any owner of
an animal
is obliged to take reasonable steps to prevent his animals
from freely roaming on a public road unsupervised.
[35]
I am inclined to accept the appellant’s submission that there
was a
prima facie
case of negligence made out against the respondent. An appellate
tribunal, when allowing an appeal against an order whereby absolution
was granted midway, has to avoid expressing views that may curb or
inhibit a trial court from freely exercising its open mind on
all the
facts after the defendant has also closed his case (
Gafoor
,
supra
.)
[36]
The courts have frequently emphasized that absolution should not be
lightly granted at the end of the plaintiff’s evidence
except
in very clear cases (
South
African Law of Evidence: Zeffet & Others
P.164-
166). There are various authorities emphasizing that, in the ordinary
course of events, absolution will be granted sparingly,
but when the
occasion arises, a court should order it in the interest of justice.
This appeal was not such a case. I have therefore
come to the
conclusion that, this is untenable and the finding cannot stand.
[37]
Accordingly the following order is made:
37.1
The appeal is
upheld.
37.2
The order of
the court
a
quo
is set
aside and substituted with the following:
“
The
defendant’s application for absolution from the instance is
refused.”
37.3
The costs
occasioned by the appeal is costs in the cause.
37.4
The matter is
remitted to the trial court to deal with it accordingly.
______________
E.
K. TSATSI, AJ
I
agree.
________________
M.
H. RAMPAI, AJP
On
behalf of appellant: Adv. A. S. Marais
Instructed
by:
H
W Smith and Marais
BLOEMFONTEIN
On
behalf of respondent: Adv. J. J. F. Hefer
Instructed
by:
Helmut
Burger Attorneys
BLOEMFONTEIN