IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case number : A189 /2023
Magistrate’s Court case number: 3/2022
In the matter between:
ROWAN SMITH Appellant
and
KLAWERVLEI SITRUS CC Respondent
JUDGMENT DELIVERED ON 11 MARCH 2025
MANGCU -LOCKWOOD J et VAN ZYL AJ:
Introduction
1. The mere presence of a d eceased animal on the road does not give rise to a
presumption of negligence. This is the conclusion to which we come in this
matter.
2. The appellant appeals against the judgment of the Clanwilliam Magistrate s’
Court handed down on 21 June 2023 in an action for delictual damages
instituted by the appellant, as plaintiff, against the respondent, as defendant.
The magistrates’ court granted absolution from the instance , with costs , after
the close of the plaintiff’s case .1
3. Absolution from the instance is granted where there is, for present purposes
at the close of the plaintiff’s case, not sufficient evidence upon which a court
might reasonably find for the plaintiff; in o ther words, where the plaintiff has
failed to make out a prima facie case (in the sense that there is evidence as
to all of the elements of the claim) .2 Absolution from the instance can only be
granted where the onus rests upon the plaintiff.3
4. The centra l issue s in the present matter are:
4.1 whether the maxim res ipsa loquitur4 applies in the circumstances ;
and
4.2 whether Regulation 313 of the regulations promulgated under the
National Road Traffic Act 93 of 19965 creates a statutory
presumption of liability in civil cases . The appellant contends that
the evidence presented by the driver of the plaintiff’s vehicle
presented a scenario which was prohibited by Regulation 313.
5. The appellant primarily relies on a judgment given on appeal from the
magistrates’ co urt by the Free State Division, namely Mofokeng v Moloi,6 in
support of his contentions that the Regulation does create such a
presumption, and that res ipsa loquitur in any event applies. The appellant
thus argues that the magistrate was wrong in grantin g absolution. He seeks
the remittal of the action to the magistrate’s court to allow the respondent to
1 The issues of merits and liabi lity ha d been separated from the issue of quantum by prior
agreement between the parties.
2 Gafoor v Unie Versekeringsadviseurs (Edms) Bpk 1961 (1) SA 335 (A) at 340A -C.
3 Schoem an v Moller 1949 (3) SA 949 (O) at 957.
4 Loosely translated, this means that the facts speak for themselves, that is, an inference of
negligence can be drawn from the occurrence itself.
5 National Road Traffic Reg ulations, 2000, p ublished under GN R225 in Government
Gazette 20963 of 17 March 2000 .
6 2014 JDR 1838 (FB).
give evidence in rebuttal of this presumption.
Condonation
6. At the outset, the a ppellant s ought condonation under Rule 27(1) for his
failure to prosecu te the appeal within the prescribed time period as provided
for in Rule 50(1) .
7. In our view, the delay was satisfactorily explained. The application was
unopposed, and condonation was duly granted.
The pleadings in the action
8. It is common cause that on 24 June 2021 a vehicle owned by the appellant
and driven by Mr Elim Basson , collided with a cow owned by the respondent
on the N7 national road. The cow was lying in the road, apparently already
dead.
9. In his particulars of claim the a ppellant relie d on two causes of action .
10. The ma in claim was formulated on the basis of the actio de pauperie.7 At the
trial, the appellant's legal representative conceded ( quite correctly, in our
view)8 that this was not a sustainable cause of action in the circumstances of
this matter. The appellant therefore abandoned this basis for his claim .
11. That left the alternative c ause of action, namely an Aquilian action based on
allegations of negligence against the respondent . The allegations were that
the respondent was “ negligent in one or more or all of the following respects ”,
in that he :
11.1 “failed to ensure that the cattle was (sic) contained properly on the
7 “The Defendant’s cattle as aforementioned acted contrary to its nature of its class by leaving
the Defendant’s p remis es and wandering onto the publ ic road, on which the Plaintiff was
travelling at the time” .
8 See the discussion in Jordaan v Krone Boers and others [1999] 3 All SA 57 (C) at 62b -9.
• property and out of the public road”;
11.2 “failed to take reasonable steps to prevent and deter the cattle from
breaking out of the premises and entering the public road along
which the Plaintiff was travelling”;
11.3 “failed to ensure that at the relevant time the premises, which is
adjacent to a public road, was properly secured”; and
11.4 “failed to ensure that the cattle did n ot constitute a hazard for road
users ”.
12. The respondent, in its plea, deni ed the allegations of negligence, and pleaded
that the appellant has failed to plead a legal duty in circumstances where he
relied on an omission .
13. In the pre -trial minute filed by the appellant in the magistrates’ court , the
appellant confirmed that negligence and liability remained in dispute , and
accepted that the o nus and duty to begin rested on him. At no point in the
pleadings or pre -trial minute did the appellant indicate that he would rely on
any legal presumption of negligence or a reversal of the onus .9
The evidence led at trial
14. The appellant d id not rely on any factual misdirection on the magistrate’s part,
but accept ed that she correctly summarised the evidence in her j udgment.
The appellant’s issue is with the fact that the magistrate did not find that the
evidence , as it was , had given rise to a presumption of negligence on the
respondent’s part.
15. The only witness to testify regarding the circumstances of the collisio n was
the driver of the appellant’s vehicle , Mr Elim Basson. Mr Basson testified that
9 Reliance on Regulation 313 was not pleaded.
, it was pitch black on the N7 when he was momentarily blinded by the bright
lights of an oncoming truck . He did not see the cow lying in the roadway , but
drove over the animal and crashed into another vehicle.
16. When asked who was to blame for the accident, Mr Basson answered that he
felt that the approaching truck had caused the accident by failing to dim its
lights. The truck had given him insufficient warning and space to avoid the
collision. He made n o mention of the respondent , as owner of the cow, in his
answer.
17. When asked specifically what the respondent could have done to ensure the
accident had not occur red, Mr Basson answered that he kn ew the
respondent’s membe r, Mr Jannie Smith , to be a responsible person who
would have done his best to avoid such an incident . He stated further that, if
someone had opened a gate at midnight while Mr Smith was sleeping, there
was not much that Mr Smith could have done .
18. The onl y evidence relating to fault in relation to the collision was in fact
exculpatory of the respondent.
19. When questioned directly on factual issues related to negligence, Mr Basson
testified that he had no idea how the cow got onto the roadway, but thought
that someone must have opened a gate. He did not see any gate open or any
break or gaps in the fence after the collision. H e knew nothing about fencing
and could not comment on the fences used by the respondent . He was
unable to say how the cow had ended u p in the road .
20. The magistrates’ court pointed out that the a ppellant "did not inspect the
fence at any time after the collision, he did not take photographs of the fence
or gates, he did not request the court to do an inspection in loco, he failed to
call witnesses, including expert witnesses, to give evidence about the
condition of the fence or gates. There is absolutely no evidence before this
court which would point to negligence on the part of the defendant."
21. On a consideration of the transcript of t he hearing, t his finding is
unassailable. The question then is whether, in the absence of any evidence
pointing to negligence , the appellant may nonetheless rely on a legal
presumption of negligence derived from the mere fact that the respondent' s
cow was lying in the roadway .10
22. The appellant relies on two arguments for the contention that the mere
presence of the respondent' s cow on the roadway creates a prima facie case
of negligence against the respondent .
22.1 First, the appellant relies on the notion of res ipsa loquitur to
establish a prima facie case which the respondent must rebut . The
appellant argues that such evidence as there is of itself presents a
prima facie case.
22.2 Second, the appellant relies on Regulation 313 to argue that a
statutory presump tion of negligence - in a civil – context - arises in
these circumstances.
23. We deal with these arguments in turn below
Res ipsa loquitur
24. The appellant argues in his heads of argument that “ res ipsa loquitur is of
application to the action before court, since a cow does not ju st end up on a
road, something must have gone horribly wr ong which led to this mistake and
only the Respondent was in a position to shed light on this ”.
25. We agree with the submission by the respondent ’s counsel that t he
appellant's r eliance on the maxim res ipsa loquitur in the present matter is
misplaced. Various cases, including a judgment of the Supreme Court of
Appeal, have specifically excluded the operation of this maxim in
10 Essentially reversing the onus.
circumstances such as the present .
26. In Swartz v Delpor t11 the Supreme Court of Appeal considered a case where
a motor vehicle had collid ed with a bull that had strayed onto the roadway.
The plaintiff in that case sought to argue that the mere fact that the bull was
on a public roadway created an inference of n egligence on the part of the
bull's owner. The S upreme Court of Appeal r ejected this argument, and held
as follows :12
"Na my mening is die onderhawige nie 'n saak waar res ipsa loquitur
toegepas kan word nie. Daar kan nie van die feit dat die bu l deur die draad
gekom het en op die pad beland het 'n afleiding van nalatigheid aan die ka nt
van die respondent gemaak word nie. Die appellant sou verder moes gegaan
het en, byvoorbeeld, bewys het dat die swak toestand van die heining
redelikerwys waarneembaar was of dat die respondent se voorkomende
instandhouding ontoereikend was. Sulke getuienis ontbreek. "
[Our translation: In my opinion this is not a case where res ipsa loquitor can
be applied. An inference of negligence on the part of the respondent cannot
be made from the fact that the bull had come through the fence and ended up
on the road. The appellant would have had to go further and, for example,
should have proved that the bad condition of the fence was reasonably
noticeable or that the respondent’s p reventative maintenance was
insufficient. Such evidence is missing.]
27. A similar argument was raised in this Division in Britz v Green and others .13 It
was argued that the maxim should be applied to assist a plaintiff who only
established that the defendan t's cow was on the public roadway. The court
discussed the applicable principles and case law , including Coreejes v
Carnarvon Munisipaliteit ,14 Jamneck v Wagener ,15 and Jordaan v Krone
11 [2002] 2 All SA 309 (A).
12 At para [16] of the unanimou s judgment.
13 2006 JDR 0998 (C).
14 1964 (2) SA 454 (C) .
15 1993 (2) SA 54 (C) .
Broers and others16 and, with reference to Swartz v Delport , held as foll ows:17
“Plaintiff produced no evidence to show from where the cow had escaped the
farm in a journey across the R43. There was no evidence other than that to
which I have made reference concerning the state of the fence. Unlike in
Jordaan , supra, no expert evidence was led as to the effectiveness of
defendant 's fence. "
28. It is clear from the se judgment s that some evidence pointing to negligence on
the respondent’s part was indispensable for the creation of a rebuttal onus ,
for example, that there was a gap in the fence,18 or that the respondent’s
fencing was inadequate.19 Res ipsa loquitur did not assist the plaintiffs in
these matters.
29. In Willemse and another v Whitney Farming Enterprises20 the court was
faced with similar arguments seeking to apply the maxi m despite a dearth of
evidence from the plaintiff. The court referred with approval to the unreported
decision in Van Zyl v Conradie21 in which the court had held that there is no
presumption of negligence which arises from the mere fact that the
defendant ' s cattle were found to be in the road , and that there was no room
for res ipsa lo quitur to apply. The court in Willemse found , similarly , that the
mere fact that the cattle were on the road did not give rise to any presumption
or inference of negligence . More was needed from the plaintiff to establish a
prima facie case :22
16 [1999] 3 All SA 57 (C) .
17 At p 9.
18 As was th e case in Coreejes supra at 457A -G, and Jamneck supra at 61J -63I.
19 Which was clear from the evidence led in Jordaan supra at 63b -i.
20 [2002] ZAECHC 4 (28 February 2002) .
21 Eastern Cape Division c ase number 1536/ 88, delivered on 14 March 1991 : “The def endant 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 loqu itur … 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 .”
22 Emphasis added. See also Rocky Lodge (Pvt) Ltd v Livie 1977 (3) SA 231 (RA) at 232E :
“The onus was on the plaintiff to establish positively that the presence of the cow on the road
was due to some act or omission amounting to negligence on the part of the defendant. See
the cases of Kruger v Coetzee, 1966 (2) SA 428 (AD), and Moubray v Syfr et, 1935 AD 199
…”
“ … the plaintiffs [argued] that, in the light of the weerleggingslas referred
to Jamne ck v Wagenaar supra, I should draw an adverse inference against
the defendant. … the plaintiffs have placed what information they can before
the court. It cannot reasonably be expected that they would b e able to prove
where on the farm the heifers had been grazing and how they got out of their
grazing camp and on to the road. On the other hand the de fendant has
always had the facts at its disposal. It is expected, in these circumstances, to
explain the circumstances of the collision and, in particular, to explain that the
collision is not attributable to fault on its part.
This argument is valid only if the plaintiffs are able to establish
a prima facie case of negligence against the defendant in the firs t place.
There can be no talk of a weerleggingslas if there is no prima facie case.
There can be no talk of an adverse inference that the defendant wa s indeed
negligent because it has failed to give an innocent explanation, in the
absence of a prima facie inference of negligence being a likely explanation.
To hold otherwise would be to place a real onus, and not merely
a weerlegginslas or rebuttal onus, on the defendant. The authorities cited
above are clear that it is not possible for me to conclude that t here is
a prima facie case of negligence from the mere fact that the defendant’s
heifers were on the national road at night. If I do not know how they got into
the road, whether through a hole in the fence or through a gate which had
been left open or in some other way from which an inference of fault might
reasonably be drawn, I have to speculate about how they got on to the road
and whether or not it was the defendant’s fault. Speculation can never
amount to proof on a balance of probabilities .”
30. The upsh ot of this is that the established test for negligence as set out in
Kruger v Coetzee23 continues to apply in matters such as the present , and
the plai ntiff must make out a prima facie case against the defendant to avoid
23 1966 (2) SA 428 (A) at 430E -G: “For the purposes of liability culpa arises if - (a) a diligens
paterfamilias in the position of the d efendant - (i) would foresee the reasona ble possibility of
his conduct injuring another in his person or property and causing him patrimonial loss; and
(ii) would take reasonable steps to guard against such occurrence; and (b) the defendant
failed to take such steps ”.
the grant of absolution from the instance.
31. Given this precedent one would have thought that that was the end of the
matter. The appellant nevertheless relies on two cases to argue that the
maxim should apply , namely the judgment of the Supreme Court of Appeal in
Enslin v Nhlapo ,24 and the d ecision in Mofokeng v Moloi .25
Enslin v Nhlapo
32. Enslin is not authority for the appellant's proposition . On the contrary, it
establishes the opposite. In Enslin extensive evidence was led about how
the defendant's bull had strayed onto the public roadway . It was accepted
that two gates had been left open, allowing the bulls to wander out. The court
accepted that the defendant had installed fencing an d gates, but found on the
evidence that the gates were used by various people for access, that the
defendant had no control over these movements , and that the defendant's
bulls had previously strayed on to the road. He had nevertheless not taken
steps to lock the gates.
33. On these fac ts, the court found that the defendant knew about the risk that
his cattle posed .26 He knew the risks of the unregulated gate access , and
ought to have taken the simple and inexpensive step of installing padlocks on
the gates :27
“[5] … It was thus a reasonably foreseeable possibility that both gates might
have been left open, particularly as the one was utilised by a neighbour and
his visitors to gain access to the adjoining property. Moreover, on the
defendant's own version, hi s cattle had strayed onto the public r oad on a prior
occasion. In those circumstances, it seems to me, that a reasonable person
would not have shrugged his/her shoulders in unconcern, as the defendant
appears to have done, but would definitely have conside red further
24 2008 (5) SA 146 (SCA).
25 2014 JDR 1838 (FB).
26 Enslin v Nhlapo supra at para [4].
27 At para s [5]-[7].
precautionary measures over and above those taken by the defendant in this
case.
[6] …
[7] 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. The defendant's objection to the use of a
padlock was that the one gate was shared by his neighbour as well. The
employment of a padlock, however, coul d quite easily have occurred in
consultation with his neighbour who could have been furnished with a key.
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 ca ttle
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. The
defendant's failure to take either precaution meant that he had been causally
negligent in relation to such damage as may in due course be proved by the
plaintiff. ”
34. The S upreme Court of Appeal did not apply any inference of negligence in
Enslin . It considered the evidence of the plaintiff ’s witnesses and found that
negligence had been established. Enslin is thus not authority for the
appella nt's contention in th e present matter, and the Supreme Court of
Appeal’s ju dgment in Swartz v Delport supra remains binding authority on the
point.
The judgment in Mofoken g v Moloi
35. The court in Mofokeng v Moloi also had occasion to consider a magistrates’
court ’s order of absolution in an action where a collision with the respondent’s
cow on a public road had caused damage to the appellant’s vehicle. The
court held that the magistrates ’ court should have refus ed absol ution because
the appellant had adduced sufficient prima facie evidence to establish causal
negligence on the part of the respondent and to place a duty of rebuttal upon
the respondent .28
36. It appears that t here was evidence in Mofokeng suggesting that the
defendant (as owner of the cow) had in fact been on the scene when the
accident occurred , but had left after the collision without offering assistance .29
It is not clear to what extent that evidence impacted on the court's reasoning
in Mofokeng concerning n egligence . To the extent that it was re levant, t he
facts of the present case are distinguishable in that, as Mr Basson testified ,
the owner of the cow was in bed asleep , and there was little he could do if
someone had let his cows out.
37. The parties are oth erwise agreed that , on the law, Mofokeng is the only
authority in support of the appellant’s case and, as a result, it is necessary to
consider th at judgment in detail. Regrettably, we are unable to agree with it,
for the reasons discussed below .
38. First, after setting out passages30 from Enslin v Nhlapo and Van Zyl v
Conradie , the court in Mofokeng found31 that the two decision s were “ clearly
not compatible ”. The passages were set out as follows:
“[24] In Enselin v Nhlapo 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 hav e taken further precautions to prevent the cattle from
28 Mofokeng supra at para [ 32].
29 Mofokeng supra at para [12].
30 Mofokeng supra at paras [24] –[25].
31 In para [26].
straying onto the public road. It is unfortunately a fact of life that,
even though most people act with reas onable care most of the
time, a normal degree of negligence is an everyday occurrence
(see Mkhwanazi v Van der Walt 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 caus ed 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 neglige nt and that
his negligent conduct caused damage to the plaintiff. ”
39. It must be remembered that in Enslin the defendant , a farm owner , gave
evidence in which he sought to exonerate himself from negligence, stating
that he was not the owner of the bull in qu estion. Once the S upreme Court of
Appeal was satisfied that the defendant was the responsib le person, and that
he had taken certain steps, it turned to look at “ whether a reasonable person
would have taken further precautions to prevent the cattle from str aying onto
the public road ”.32 It was in that context that the S upreme Court of Appeal
restated the sta ndard of the reasonable person test at paragraph [4] of its
judgment which is quoted in paragraph [24] of Mofokeng .
40. Far from exhibiting dissonance, the Supreme Court of Appeal was following
the accepted position which is summarised in the quoted p assage of Van Zyl
v Conradie , to the effect that a plaintiff can only succeed if it establish es
credible and acceptable evidence that the defendant was negligent . The two
judgments are squarely compatible : both re -assert the well -established
principle that the plaintiff must establish a prima facie case in evidence .
32 Enslin at para [5], and quoted in Mofokeng at para [ 24]. Emphasis added.
41. Accordingly, the finding in Mofokeng that the two judgments are incompatible
seems to be based on a misreading of the judgment in Enslin . The approach
in Van Zyl v Conradie has, moreover, now been approved by the Supreme
Court of Appeal in Swartz v Delport supra , as set out in paragraph 26 above .
Regrettably, the court in Mofokeng made no reference to Swartz v Delport ,
which remains the authority on the issue of res ipsa loquitor and the inference
of negligence in this context .
42. Second, t he court’s approach in Mofokeng appears to have been largely
influenced by its views on the applicability of Regulat ion 313. We are in
respectful disagreement with this approach, and return to a discussion of the
Regulation below.
43. Third, in reaching its conclusion the court in Mofokeng33 (and consequently,
the appellant in this case) relied on the decision of Jamneck v Wagener supra
for the contention that the respondent has an onus of rebuttal . However, the
judgment in Jamneck holds the opposite of what the appellant seeks to
contend .
44. In Jamneck , the plaintiff’s evidence established that the defendant's horse
had esca ped through a large hole in the fence adjacent to the roadway. The
question arose whether the fence had been inspected regularly and how long
the hole had been present . The court held34 that the plaintiff had established
a prima facie case by proving where and how the animals had come onto the
road. For that reason , the defendant had to explain how often he had
checked the fences, whether he knew of the hole in the fence , and whether
he had sought to remedy the problem. It was not the mere presence of the
horse on the road that gave rise to the rebuttal onus. Jamneck accordingly
did not afford any authority for the court’s conclusions in Mofokeng .
45. For these reasons, the appellant’s reliance on Enslin and Mofokeng does not
33 Mofokeng supra at para [27].
34 Jamneck v Wagener supra at 65G-66H.
assist him. T here is no room fo r the application of the maxim res ipsa loquitur
in the context of the present matter.
Regulation 313
46. The appellant contends in his heads of argument that the “ contravention of
Regulation 313 … was common cause from the outset of the matter, since it
was common cause that the cow was outside the border fence of the farm
and in the road when the colli sion occurred .
47. The matter is not so simple. Apart from the fact that a contravention of the
Regulation was never common cause, because the appe llant had n ot
pleaded reliance thereon but had referred to it for the first time in argument at
the trial, the question arises whether the Regulation is of any assistance to
the appellant at all.
48. Regulation 313 reads , in relevant part, as fo llows :
“313 Animal on p ublic road
(1) … 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 sha ll leave su ch animal in a place from where it may stray onto such
section of a public road.
(2) …
(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 subregu lation (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 enclosed along both sides even though
there is an opening provid ing access to such road in the fence or other
enclosure .”
49. Regulation 313(1) thus makes it a road traffic offence to leave or allow an
animal to be on a public road . R egulation 313(3) provides that in any
prosecution for such a contravention, in the absence of evide nce to the
contrary, it shall be presumed that the animal was left or allowed to be on the
road by the owner of the animal. This is the presumption which the appellant
seeks to elevate to a civil presumption of negligence on the authority of
Mofokeng v Mol oi supra .
50. Whether this is permissible depends on the proper interpretation of the
Regulation .35 The well -known dictum in Natal Joint Municipal Pension Fund v
Endumeni Municipality36 represents the current state of the South African law
regarding the interp retation of documents . In the more particularised context
of statutory interpretation, the Constitutional Court in Cool Ideas 1186 CC v
Hubbard and another37 articulated these principles as follows:
“A fundamental tenet of statutory interpretat ion is that the words in a statute
must be given their ordinary grammatical meaning, unless to do so would
result in an absurdity. There are three important interrelated riders to this
general principle, namely:
(a) that statutory provisions should always be interpreted purposively;
(b) the relevant statutory provision must be properly contextualised; and
(c) all statutes must be construed consistently with the Constitution, that
is, where reasonably possible, legislative provisions ought to be
interpreted to preserve their cons titutional validity. This proviso to the
general principle is closely related to the purposive approach referred
to in (a). ”
51. We are, on consideration of the issue, not in agreement with the appellant’s
contention that the Regulation gives rise to a civil presumption of negligence.
52. First, and perhaps most obviously, on the plain wording of the Regulation it
35 The Court in Mofokeng unfortunately did not set out the process of interpretative
interpretation that it had followed in coming to its conclusion as regards the civil impact of the
Regulation.
36 2012 (4) SA 593 (SCA) at para [18].
37 2014 (4) SA 474 (CC) at para [28].
operates in the context of a “ prosecution ”. There is no mention of negligence
in the Regulation . The offence created by the Regulation does not re quire
negligence to be present or p roved. The Regulation imposes a road traffic
obligation on the owners of anima ls, but does not imply negligence . A
prosecution for a contravention does not require negligence to be
established.
53. Secondly, the Regulatio n is of criminal or penal application, having been
promulgated within the criminal sphere. The penalty for a contravention of
the Regulation is a fine or imprisonment,38 and thus distinctly criminal in
nature. T he establishment of a statutory offence does not give rise to
concomitant delict at common law : " … a breach of a statutory duty created
by legislation regulating road traffic cannot simply be equated to negligence
... The provisions of the road traffic legislation do not provide for a civil
remedy a nd do not displace the common law test for negligence ..."39
54. Numerous judgments have reiterated that the breach of a statutory provision
does not equate to negligence in a civil setting . For example, i n S v
Rohrmann40 it was stated that the fact of a traffi c violation was no proof of
negligence for the purposes outside of the violation itself . In De Jongh v
Industrial Merchandising41 it was held that the mere breach of regulations
controlling speed limits was not proof of negligence. Similar stateme nts can
be found in Olivier v R ondalia Versekeringsmaatskappy van S uid-Afrika Bpk42
and Malherbe v Eskom .43 As pointed out in South African Railways v
Bardeleben ,44 the failure to c omply with a regulation does not establish
negligence any more than compliance with a regulation neutralises an
allegation of negligence .
38 Under section 75(5) of the National Road Traffic Act.
39 Klopper The Law of Collisions in South Africa (8ed) at pp 20 -21. See also Cooper Motor Law
(Vol. 2, 1987) at p 126: "The road traffic legi slation does not purport to provide a civil remedy
in the event of a breach of its provisions and the enactment of a legislative standard for
conduct for road -users does not supplant the common -law test for the determination of
negligence ..."
40 1967 (3) SA 411 (SWA) at 412G.
41 1972 (4) SA (R) at 445B.
42 1979 (3) SA 20 (A) at 30A.
43 2002 (4) SA 497 (0) at 505I.
44 1934 AD 473 at 481.
55. Third, the Court in Mofokeng appears to have relied on the judgment in Klaas
v Serfontein45 for the conclusion that Regulation 313 create s a statutory
inference of negligence in the civil setting . The Co urt states that:
“… the Road Traffic Regulation 313 of 1996 was clearly enacted to enhance
public protection from the foreseeable danger posed by stray animals 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 140 CPD 616 at 621)”46
56. Klaas v Serfontein is, however, not authority for the p roposition. In Klaas , the
Court found that the plaintiff had not furnished sufficient eviden ce to establish
negligence on the defendant’s part after the latter’s horse had strayed onto a
divisional road. The Court expressly declined to find that a particular
regulation (imposed by the Divisional Council) created “statutory negligence ”,
and left t he point unresolved . Some reservations as to the proposition
appear from the Court’s discussion in this respect:47
“In the view which I take of the evidence it becomes unnecessary to decide
how far such a regulation can be held binding upon a farmer … th rough
whose farms or camps a divisional road runs, and which the Council has
taken no steps to fence on both sides; and, even if it were binding, whether a
breach of such regulation constituted … “statutory negligence”. There must
be many farms of conside rable size within Divisional Council areas upon
which the owners … g raze stock, and through which unfenced divisional
roads run. To hold such a regulation binding would be placing a serious
limitation upon their rights as owners, for the effect might be e ither to prevent
them from grazing at all, or to compel them to employ a gang of servants to
keep their stock from straying across the road, or to compel them to fence the
road on both sides. And if such a regulation were to be regarded as binding
45 1940 CPD 616 at 621.
46 Mofokeng at para [26].
47 At 621. Empha sis added.
the fur ther question would arise as to whether the purpose of the regulatio n
was to prevent a nuisance, or whether it was enacted for the purpose of
protecting a particular class of persons against possible danger . In the la tter
alternative a breach of the regul ation might constitute statutory negligence.
These are difficult questions upon which I propose to offer no definite opinion.
It must be observed, however, that in this case the area through which the
road in question runs is private property and appears to form part of the
ordinary grazing of the owner of the farm ”.
57. It is clear that Klaas did not intend to, and does not, offer any authority for the
notion that a regulation such as Regulation 313 was intended to operate in
the civil sphere, effectively s o as to reverse the onus in matters where a
plaintiff is unable to furnish any evidence pointing to negligence on the part of
a defendant.
58. It follows that the bases for the findings in Mofokeng upon which the appellant
relies both in relation to its res ipsa loquitur argument and its reliance on
Regulation 313, are unsu stainable, and do not accord with the established
state of the law. Insofar as Mofokeng holds that Regulation 313 creates
statutory liability in civil cases, we respectfully do not agree, and we decline
to follow it.
Failure to take obiter remarks into account
59. We need to refer to one further ground of appeal raised by the appellant. As
a very last string to his bow the appellant contends that the magistrates’ court
failed to take into a ccount the obiter remarks in Mofokeng v Moloi48 to the
effect that the granting absolution from the instance in similar circumstances
as those before her may open the floodgates for similar cases, and set a bad
precedent :
“Absolution granted in the case in questio n may op en flood gates for other
48 Supra at para [33].
similar case s 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”.
60. As a ground of appeal this contention has no merit. Insofar as the remarks in
Mofokeng were obiter they were not binding on the magistrate.49
61. Of itself, the remark in any event does not assist the appellant. It seems to
us, rather, that the floodgates may be opened should absolution not be
granted instances such as the present, and should a plaintiff be allowed to
present no evidence suggesting negligence, but to rely on the defendant
effectively to disprove negligence. This is simp ly not in accordance with our
law as set out earlier in this judgment.
Conclusion
62. It follows that the magistrate’s court correctl y found that insufficient evidence
had been led to establish a prima facie case of negligence against the
respondent. In the absence of such a prima facie case, no inference of
negligence arises . Absolution from the instance was correctly granted.
Costs
63. The parties were agreed that the normal rule as to costs should be followed,
namely that costs should follow the event.
64. Given the importance of this matter in confirming the position as regards c ivil
liability in cases of animals on the road, at least as far as this Division is
concerned, we are of the view that counsel’s fees should be taxed on Scale C
as contemplated in Rul e 67A of the Uniform Rules of Court.
49 The Director -General, Department of Agriculture, Forestry and Fisheries and another v
Nanaga Property Trust (case number 4689/2014, unreported judgment of the Eastern Cape
Division, Grahamstown (per Hartle J) in an appl ication for leave to appeal, delivered on 21
April 2016) at para [6] , with reference to Jajbhay v Cassim 1940 TDP 182 at 185 .
Order
65. In the premises, i t is ordered as follows:
The appeal is dismissed, with costs, inclusive of counsel’s fees taxed
on Scale C.
___________________________
N. MANGCU -LOCKWOOD
Judge of the High Cour t
___________________________
P. S. VAN ZYL
Acting Judge of the High Court
Appearances :
For the appellan t: Mr K. Els, Van Breda & Herbst Inc.
Attorneys
For the respondent : Mr A. D. Brown , instructed by BBP
Attorneys