Nhlapo v Enslin (A370/2004) [2006] ZAFSHC 106 (2 February 2006)

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[2006] ZAFSHC 106
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Nhlapo v Enslin (A370/2004) [2006] ZAFSHC 106 (2 February 2006)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE FREE STATE
PROVINCIAL DIVISION)
Case No.: A370/2004
In the appeal between:
NGAKA JACOB
NHLAPO
Appellant
and
HERMANUS FRANCOIS
ENSLIN
Respondent
_____________________________________________________
CORAM:
EBRAHIM, J
et
MOLEMELA, AJ
JUDGMENT:
EBRAHIM, J
_____________________________________________________
HEARD ON:
19 SEPTEMBER 2005
_____________________________________________________
DELIVERED ON:
2 FEBRUARY 2006
_____________________________________________________
[1] This an appeal
against the judgement of the magistrate, Petrus Steyn dismissing with
costs an action brought by the appellant
against the respondent. The
appellant’s cause of action was a claim for payment in the sum of
R38 825,76 in respect of damages
caused as a result of a collision
between his motor vehicle driven by himself at the time and cattle
owned, alternatively, under
the control of the respondent.
[2] The
appellant alleges that the collision was caused solely through the
negligence of the respondent in that:
¡°4.1 he failed to ensure that the said cattle were properly fenced
in;
4.2 he failed to prevent the cattle
from straying onto a public road;
4.3 he failed to warn approaching
motorists of the presence of the cattle on the road surface although
he could have done so.”
[3] Aside from the
admission of the citation of the defendant (respondent) the
respondent’s plea is a complete and bare denial of
all the
allegations in the particulars of claim.
[4] In the court
a
quo
there was a separation of merits and quantum and the trial proceeded
only on the merits. The merits embraced 3 issues,
The citation of the
plaintiff;
The date, place and fact
of the alleged collision; and
The allegations of the
causative negligence of the respondent.
[5] At the trial, the
respondent did not seriously challenge the
locus
standi
of the appellant. Notwithstanding his plea of a lack of knowledge of
the collision, his own evidence confirmed the fact of the collision
as he had been contacted by the local South African Police Services
and visited the scene of the collision shortly after its occurrence.
[6] Although the
respondent denied ownership of the animal in question (a Brahman
bull), it was common cause that the animal was kept
in a grazing
encampment on the respondent’s land and under the respondent’s
control, exercised through an employee of the respondent,
one Molooi
who gave evidence at the trial.
[7] The
only issue in this appeal is whether the appellant established the
alleged negligence and causation at the trial.
[8] The evidence led at
the trial by both appellant and respondent may be briefly summarised
as follows:
8.1 The appellant was
driving along the main road between Petrus Steyn and Heilbron when he
collided with an animal, a Brahman bull.
This bull was kept in an
encampment on the respondent’s farm adjoining the public road. The
camp was secured by a wire gate.
The gate boarded on an access road
on the farm used by a neighbour, one Kheswa. A second steel gate
provided access from the access
road on the respondent’s farm to
the public road.
8.2 Immediately after the
collision the respondent’s evidence established that both gates
were open and several animals escaped
onto the public road through
the wire gate and the steel gate.
3. The evidence of Molooi
was that on the Saturday morning of the collision, that is the 9
th
of February 2002, both gates, that is the wire gate as well as the
steel gate were shut when he left the farm to spend the weekend
at
his home in the location. On the Monday morning when he returned to
work he found that 5 head of cattle were missing. He followed
the
spoor of the cattle and recovered 4 of the cattle on the opposite
side of the public road. The 5
th
animal was the Brahman bull which had been involved in the collision.
4. The
evidence of the respondent was, that notwithstanding his ownership of
the land and the fact that he maintained control over
the animals in
the grazing encampment through his employee, Molooi, he disavowed
responsibility for the collision on the grounds
that the steel gate
giving access from the farm to the public road was open. In this
regard his evidence was that he had an arrangement
with Kheswa in
terms of which Kheswa undertook responsibility to ensure that the
steel gate was shut all times.
[9] Kheswa was not called
as a witness to testify and the existence of this agreement was not
specifically pleaded as a defence nor
was the further submission in
oral argument by Mr. Van Rooyen who appeared on behalf of the
respondent pleaded as a defence, namely
that Mr. Kheswa had been
given a servitude in respect of the access road on the respondent’s
property. Whether or not such an
agreement existed and whether or
not Mr. Kheswa was given a servitude by the respondent is in my view
of no moment in light of the
approach I have adopted in this
judgement but for the purposes of the judgement I have assumed in the
respondent’s favour that
there was such an agreement.
[10] The fact is that the
open steel gate giving access to the public road was not the sole and
only reason why the cattle were able
to escape onto the public road
and cause the collision. The collision was caused as a result of
both gates being open. The wire
gate enclosing the grazing
encampment in which the cattle were kept as well as the steel gate
giving access to the public road had
been left open. Moreover, it is
clear from the sketch plan attached to the appeal record that the
proximity of the wire gate to
the steel gate was such as to make it
reasonably foreseeable that if the wire gate was left open cattle
would stray onto the public
road if the steel gate was also left
open. There is no evidence whatsoever as to how these two gates
came to be opened. The respondent
in exercising control over the
wire gate to the grazing encampment owed a duty to road users to
ensure that that gate, had been closed
such that it prevented the
animals from reaching the road through the second steel gate used by
Kheswa, see
JAMNECK
v WAGNER
1993 (2) SA 54
(C).
[11] There is also an
onus of rebuttal on the respondent to lead evidence regarding the
manner in which he complied with this duty
to control the wire gate.
Other than the evidence of Molooi that both the wire gate as well as
the steel gate were shut that Saturday
morning when he left the
location there is no evidence whatsoever on record of what control
was exercised over the wire gate from
the time Molooi left on
Saturday morning to the time of the collision that Saturday evening.
In the respondent’s evidence it was
apparent that there was no lock
on the wire gate to the encampment. In the absence of such evidence
the inference is justified that
the respondent could and should have
reasonably ensured that the cattle in the encampment were properly
retained within the grazing
camp and prevented from straying onto the
road, (see
JAMNECK’S
case
supra).
That the respondent failed in his duty to do so, amounts to
negligence on his part, which negligence was a direct cause of the
collision.
[12] In
the result the following order is made:
The appeal is upheld
with costs.
The judgement of the
magistrate at Petrus Steyn is set aside and substituted with the
following:
2.1 Judgment is granted
in favour of the plaintiff for such damages as plaintiff may prove to
have suffered at the trial in relation
to the quantum.
2.2 The defendant is
ordered to pay the costs of the trial on the merits.
_____________
S. EBRAHIM, J
I
agree.
________________
M.
MOLEMELA, AJ
On
behalf of appellant: Adv. M.W. Verster
Instructed by:
Rossouws Attorneys
BLOEMFONTEIN
On
behalf of respondent: Adv. P.C.F. van Rooyen
Instructed by:
Naudes
BLOEMFONTEIN
/em