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[2024] ZANCHC 12
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Van Wyk v Lambrechts (CA & R 12/2021) [2024] ZANCHC 12 (9 February 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN THE HIGH COURT OF
SOUTH AFRICA
(NORTHERN CAPE
DIVISION, KIMBERLEY)
Case No:
CA & R 12/2021
Court
a quo
case
no:
313/2018
Date
Heard
: 12 June 2023
Date Delivered:
9 February 2024
Reportable: YES /
NO
Circulate to Judges: YES
/ NO
Circulate to Regional
Magistrates: YES / NO
Circulate to
Magistrates: YES / NO
In
the matter between:
HANS
VAN
WYK
APPELLANT
and
JAN
STEPHANUS LAMBRECHTS
RESPONDENT
Coram:
Nxumalo J
et
Tyuthuza AJ
JUDGMENT
Per
Tyuthuza AJ
INTRODUCTION
1.
This is an appeal by Mr Hans Van Wyk, the
appellant, against the judgment and order dated 13 January 2021, by
Mr P. Mulder, the
Magistrate of Postmasburg, in which he upheld the
respondent’s claim on the merits.
2.
The respondent herein instituted an action
against the appellant, in which he claimed an amount of R164,991.66;
together with interest
and costs, arising out of damages which the
respondent had suffered for reasonable costs for repairs, towing
services and storage
costs of his vehicle.
3.
It is common cause that:
3.1.
On or about 3 December 2017 at about 20:15 on the R385 road outside
Postmasburg, a collision
occurred between the appellant’s cow
and the respondent’s vehicle.
3.2.
The respondent is the owner of the Toyota Hilux vehicle with
registration number
C[...] 0[...] N[...] and at the time of the
collision the respondent had been the driver of the vehicle.
3.3.
As a result of the collision the respondent’s vehicle was
damaged.
3.4.
The camp where the cattle are kept belongs to the appellant.
TRIAL
4.
Despite the appellant having denied that
the accident occurred as pleaded by the respondent in his particulars
of claim, this denial
was withdrawn and the only issues for
determination at trial related to the ownership of the vehicle and
the appellant’s
negligence.
5.
The respondent’s main contention is
that the collision occurred as a result of the sole negligence of the
appellant, in that:
- the appellant failed to take any reasonable
steps to prevent his cow from wandering onto the road; failed to warn
road users
of the cattle walking on the road and failed to take any
reasonable steps to prevent the accident.
6.
The appellant disputed the negligence as
well as the quantum of damages claimed.
MR VAN WYK
7.
The appellant testified that he is renting
the farm from the Tsantsabane Municipality, whereon he is keeping his
livestock in a
camp. The camp belongs to him, is well-fenced
with jackal proof wire and that he is responsible for the maintenance
of the
gate and fencing. He testified that the cattle could not
escape through the jackal proof wire.
8.
The appellant further testified that there
is one gate which grants access to the camp, the gate has an iron
frame and a padlock.
He stated that only he and two other
persons have the keys to the gate.
9.
Despite having initially testified in chief
that he did not employ anyone to look after the cattle by virtue of
the fact that the
cattle were in a camp and the fence is such that
the cattle could not escape, the camp, upon questioning by the
learned Magistrate,
he testified that his employee, who lives on the
plot, is responsible for closing the gate to the camp. He
testified that
the employee did not have a key to the main gate.
10.
He testified that he was at the farm on 2
December 2017. When questioned about the condition of the fence
and the gate on
the day, he replied “
Die
omheining was reg en die hek was toegesluit gewees.”
He testified that he locked the gate when he left the farm on 2
December 2017. When asked if the cattle have previously
escaped
the camp, he replied, “
Nee,
geensins want daar is genoeg water. Ek het ’n windpomp
daar. Ek het n solar pomp, so daar is nie ’n
manier dat
hulle kan uit kom nie
.” He
testified that there is no way that the cattle could escape the camp
in that the cattle had enough water.
11.
Under cross-examination, he testified that
he was responsible for the maintenance of the fence and the gate. He
further testified
that he is employed 70km from Postmasburg and works
12 hour shifts and is not at the farm every day.
12.
He testified that upon arriving at the camp
on the night of the accident, the fence was still in order and that
he did not check
to see if there were any openings in the fence.
13.
He testified that he took reasonable steps
to ensure that the cattle would not leave the camp, and that on 2
December 2017, when
he left the camp, the fence and the gate were in
good condition.
MR LAMBRECHTS
14.
The respondent testified that the collision
had occurred as a result of him being blinded by the headlights of an
oncoming vehicle
and, as a result, he was forced to dim his
headlights, which prevented him from seeing the cow which was now
only five to six metres
away. He testified that he tried to
apply his brakes but his vehicle hit the cow.
15.
He testified that he had no time to swerve.
He testified that he was driving between 60 km and 70 km per
hour, that the weather
conditions were fine and that the area had a
speed limit of 80 km per hour.
16.
He stated that at the time of the
collision, he did not know whom the cow belonged to but was later
informed that the cow belonged
to the appellant.
17.
He testified that there were no warning
signs to indicate that there are animals along the road, that the
area is urban and not
a farming area and that livestock was not
supposed to be roaming around.
18.
He testified that the cattle were roaming
around unattended.
19.
He testified that the collision caused
damages to the front on his vehicle.
THE MAGISTRATE’S
FINDINGS
20.
The Magistrate was of the view that someone
must have opened the gate to the farm and because they had failed to
shut it, the cattle
left the kraal.
21.
The Magistrate stated that the question the
Court had to answer was “
If Mr Van
Wyk acted like the reasonable man would have acted in the
circumstances to prevent the cattle from causing harm to the
property
of other people?
22.
The Magistrate was of the view that it is
unclear whether the cattle were let out of the gate or the cattle had
left the kraal by
themselves, and it is unknown to the Court what
happened.
23.
He stated that Mr Van Wyk, the Appellant,
did not reside on the farm and was not on the farm every day. He
mentioned that
in a situation where you have a farm with so much
cattle thereon, there was a greater duty on the farmer to ensure that
the cattle
remain within the camp and that there should be someone on
the farm who inspects his farm fences and gates every day.
24.
The Magistrate was of the view that Mr Van
Wyk should have done more to ensure that his cattle are kept safe or
do not stray.
25.
Despite the evidence led by the appellant
regarding the entrance gate and the fact that Messrs. Coetzee and
Hael drove through his
camp to exit their farms, the veracity of the
evidence is unknown or uncertain as Coetzee and Hael were not called
to testify to
confirm the state of the camp.
26.
That
it is so in our law that someone in the position of Mr Van Wyk, must
take steps to ensure that the cattle do not leave the
camp.
[1]
The
easiest and most cost-effective manner to ensure that the cattle do
not leave camp is to install a cattle grid.
27.
The Magistrate commented that Mr Van Wyk
should have installed a fence around his camp to separate same so
that Coetzee and Hael
need not drive through his land. He
stated that that would have been the easiest and most cost-effective
measure which a
reasonable man would have taken.
28.
A reasonable man would have insisted on
these measures in view of other people having access to his land and
having keys to the
gates. The appellant failed to take these
measures.
29.
The Magistrate was of the view that the
appellant had failed to put enough measures in place to ensure to
keep the cattle inside
the camp.
30.
The Magistrate found that the appellant was
negligent in this respect.
31.
The Court
a
quo
found that the respondent’s
claim succeeded on the merits and costs to stand over.
ISSUE FOR
CONSIDERATION IN THIS APPEAL
32.
Despite the plethora of grounds of appeal
raised by the appellant, the key issue for consideration in this
appeal is whether the
collision was caused by the negligence of the
appellant.
33.
In
essence, the question to be determined is “
whether
a reasonable person would have taken further precautions to prevent
his/her cattle from straying onto the public road.
”
[2]
34.
The plaintiff carries the
onus
to prove on a balance of probabilities that the damages he suffered
were as a result of the defendant’s negligent conduct.
35.
The
farm whereon the appellant’s camp is located borders a national
road. In the circumstances, I am of the view that
the appellant
had a legal duty to ensure that the fence is in a good state of
repair so that his cattle do not end up on the road
and to ensure
that the gate is kept locked at all times.
[3]
36.
It
is undisputed that the appellant had such a legal duty. This
legal duty included an obligation to regularly inspect both
the fence
and the gates, more especially because of the position of the farm in
relation to the national road.
[4]
37.
On the appellant’s version, he was
not the only person with the keys to the gate as Messrs Coetzee and
Hael were also in possession
of keys to the main gate. He
testified that he did not enquire from either of them whether they
had left the gate unlocked.
In the circumstances, it remains
unclear why he could be so certain that the gate had remained locked
after he left the farm.
38.
The appellant confirmed that the enclosed
camp belonged to him and that the farm was well-fenced. However,
and despite having
pictures of the camp and the gate which would have
verified the appellant’s version, these pictures were not
presented as
evidence.
39.
He testified in chief that he did not have
a herdsman looking after the cattle and that the fence is such that
the cattle could
not escape from it. This version later changed
when he testified that he had someone in his employ to look after his
cattle.
This person was also not called to testify.
40.
He testified that preceding the accident,
he attended to the farm on the morning of 2 December 2017, and that
the fence was in good
condition and further that he had locked the
main gate.
41.
Under cross-examination, he testified that
he was responsible for the maintenance of the fence and the gate. He
testified
that the fence is in good condition and that the gate is
always locked.
42.
He further testified that he is employed
70km away from Postmasburg, works 12 hour shifts and is not at the
farm every day.
43.
He testified that he was not aware that the
cattle had escaped from his camp and only became aware thereof when
informed by the
Police the evening of the accident. He
testified that upon arriving at the camp on the night of the
accident, the fence was
still in good order and that he did not check
to see if there were any openings in the fence.
44.
He denied being negligent in that he left
the cattle in the camp, and testified that he had taken reasonable
steps to ensure that
the cattle would not leave the camp and that the
fence and the gate were 100% secure.
WHETHER OR NOT THE
APPELLANT WAS NEGLIGENT
45.
In the matter of
Enslin
v Nhlapo
[2008] ZASCA 75
;
2008 (5) SA 146
(SCA), the
Court of appeal had to determine the same question before this court
namely: Whether a reasonable person would have
taken further
precautions to prevent cattle from straying onto the public road.
Ponnan JA, found that it was a reasonably
foreseeable
possibility that the gates might have been left open and that in the
circumstances, a reasonable person would definitely
have considered
further precautionary measures over and above those which the
defendant took. At paragraph 7, the learned
Judge stated as
follows:
“
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 from straying onto the public road.
...
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
”.
46.
Mr Kruger, for the appellant, submitted
that the respondent failed to discharge the
onus
which rested on him to prove negligence on the part of the appellant.
He also submitted that there was no evidence before
the Court
a
quo
that proved negligence on the part
of the appellant. He however conceded that the appellant is an
absent farmer and was not
on the farm at all material times.
47.
It was not disputed that the appellant had
a legal duty to take reasonable steps to ensure that the fence of his
farm is in good
state of repair, and that the gates are locked, so
that his cattle do not stray onto the public road. The
appellant had the
duty to ensure that he regularly inspected the gate
and fence, and he alleged to have done so. A reasonable person
in the
position of the appellant would thus have taken steps to
prevent the cattle from straying onto the public road, particularly
at
night.
48.
It was submitted that the appellant
conducted reasonable regular inspections and that the measures taken
by the appellant in installing
a jackal-proof wire and a fenced iron
gate were effective measures.
49.
On the appellant’s version, he locked
the gates on 2 December 2017, upon leaving the farm, but it is common
cause that the
Appellant was not the only person with keys to the
gate. Thus the fact that the appellant closed the gate does not
necessarily
mean that the gates remained locked. The two
persons with keys to the gate were not called as witnesses, even more
peculiar
is the fact that the appellant did not call them subsequent
to the accident to enquire if either of them had left the gate open.
50.
It is common cause that the appellant was
not at the farm at all material times. The appellant had in his
employ a herdsman,
whose responsibility it was to lock the gates. The
herdsman, however, was not called to testify. On the
appellant’s
own version, the herdsman did not have keys to the
gate.
51.
No evidence was led as to how the gates
came to be opened and the appellant failed to call as witnesses the
other two persons who
exercised control over the gate. The
appellant in exercising control over the gate, owed a duty to road
users to ensure that
the gate was closed to prevent the animals from
straying onto the road. Despite stating that he closed the gate
when leaving
the farm, the Appellant has adduced no evidence to show
that the gates remained closed after he had left the farm on 2
December
2017.
52.
He
failed to call witnesses who also exercised control over the gate or
his employee who was employed to look after his cattle,
and in the
absence of such evidence, an inference can be drawn that the
appellant could and should have reasonably ensured that
the cattle
were properly retained in the camp and prevented from straying onto
the road and that the Appellant failed in his duty
to do so and was
thus negligent, which negligence was a direct cause of the
collision.
[5]
53.
For
what it is worth, the Respondent could, in my view, have based his
claim in law on the
Actio
de pauperie.
This action makes an owner of a domesticated animal liable for
damage caused by that animal, without requiring negligence.
[6]
In
order to succeed with this action, the Plaintiff would have to allege
and prove the following: (a) the ownership of the animal
vested in
the defendant at the time of the infliction of the damage; (b) the
animal was a domesticated animal; (c) the animal acted
contrary to
the nature of domesticated animals generally (
contra
naturam sui generis
)
in causing damage to the plaintiff; (d) causation – in other
words, that the conduct of the animal caused the plaintiff’s
damage.
[7]
54.
When
put to Mr Kruger for the Appellant, he conceded that the requirements
for the
actio
de pauperie
were present and that the appellant could be liable based on the
principle. Despite the presence of the requirements of the
actio
de pauperie,
the respondent has based his claim on negligence and this Court is
required to make a determination based on the pleadings before
it.
[8]
55.
What the Court has before it is evidence
that the cow belonged to the appellant, that the appellant was the
owner of the camp, that
the appellant was not the only person with
control over the gate, that the appellant was not on the farm at all
material times,
that the appellant had installed a jackal-proof wire
on the fence and the gate, and further that the appellant’s cow
caused
damage to the respondent’s vehicle.
56.
The
onus
lay on the respondent to prove that the appellant as the cattle owner
was negligent in allowing the cattle to be on the road. The
appellant admitted that he owed a duty of care to prevent his cattle
from escaping onto the public road and that he was responsible
for
taking reasonable steps to prevent his cattle from escaping their
camp.
57.
The probabilities also point to the gate
having been negligently left open and the cattle having escaped
through it. On the
Appellant’s own version, he did not
enquire from Messrs. Coetzee or Hael if they had locked the gate,
neither has he led
evidence from the herdsman who allegedly was
employed to take care of the cattle. I am of the view,
therefore, that the gate
was negligently left open by one of the
persons in charge of the gate and in the absence of a cattle grid,
the cattle were able
to escape.
58.
Neither Messrs. Coetzee, Hael or the
herdsman were called to testify that they had indeed closed the gate
at all material times
hereto. The appellant was last on the
farm on the morning of 2 December 2017, a day preceding the accident,
and thus in these
circumstances, he is in no position to testify that
the gate was indeed locked on the evening of 3 December 2017.
59.
The appellant testified that he took
reasonable steps and effective measures, by installing a jackal
proof, padlocking the gate
and employing a herdsman. No
pictures were however presented in the court
a
quo
evidencing same. In any event, I am
of the view that the installation of a cattle grid would have been an
effective measure to prevent
the appellant’s cattle from
escaping, the installation of the jackal proof was not sufficient.
60.
The cattle found at the scene belonged to
the Appellant, thus it is clear that for the cattle to have escaped,
the gate should have
been left open, despite the evidence of the
Appellant that the cattle could never escape the camp. I find
that the probabilities
point to the gate having been negligently left
open and the cattle escaping.
61.
Numerous
case law dealing with similar matters have shown that livestock
owners owe a duty of care to the public and should take
additional
precautionary measures to ensure that their animals are kept in a
secure space if these additional measures can be achieved
easily and
inexpensively. I n 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.
62.
A reasonable part-time farmer who does not
live on the farm and who has given some persons access to the gate
keys, should have
foreseen the possibility of the gates being left
open and of cattle straying onto the road. The appellant should
have taken
extra precaution in installing a cattle grid at the
entrance to the camp.
The
appellant’s failure to take further precautions meant that he
had been causally negligent in relation to such damages
as may in due
course be proved by the plaintiff.
63.
In the result, the following order is made:
a)
The appeal is dismissed with costs.
T
TYUTHUZA
ACTING
JUDGE
OF THE HIGH COURT
NORTHERN CAPE DIVISION
I
concur.
APS NXUMALO
JUDGE OF THE HIGH
COURT
NORTHERN CAPE DIVISION
APPEARANCES:
On
behalf of the Appellant:
Adv
R.L Kruger
On
the instruction of:
Andre
De Beer Attorneys Inc.
On
behalf of the Respondent:
Adv
A. Stanton
On
the instruction of:
DGF
Attorneys Inc.
[1]
Kruger
v Coetzee
[1966]
2 All SA 490
(A).
[2]
Mkhwanazi
v Van Der Walt
[1995] ZASCA 4
;
1995 (4) SA 589
(A) at t 593F.
[3]
Jordaan
v Krone Broers and Others 1999 (3) All SA 57 (C).
[4]
Swartz
v Delport
[2002]
2 All SA 309
(A) at para 12; see also Coreejes v Carnarvon
Municipality and Another [1964] 2 All SA 527 (C)
[5]
Jamneck
v Wagener
1993
(2) SA 54
(C)
[6]
O’Callaghan
NO v Chaplin
1927
AD 310
[7]
Amler
’
s
Precedents of Pleadings, Animals:
Actio
de pauperie
,
2018
- Ninth Edition.
[8]
Biyela
v Minister of Police
2023
(1) SACR 235
(SCA), at para 8