SAFLII Note: Certain personal/privat e 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
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGMENT
Not Reportable
Case no: 22323/2016
In the matter between:
D[...] D[...] PLAINTIFF
and
SAFAMCO ENTERPRISES (PTY) LTD DEFENDANT
Coram: BARENDSE AJ
Heard: 14 to16 October 2025 and 5 November 2025
Delivered: 19 November 2025
ORDER
1 The action is dismissed.
2 Plaintiff shall pay Defendant's costs on the party/party scale as
taxed or agreed, with the costs of counsel taxable on scale B;
3 The Defendant is liable for the wasted costs occasioned by the
postponement on 29 October 2024, and counsel's fees shall be taxed
on scale B.
JUDGMENT
Barendse AJ
[1] This is an action for payment of damages instituted by the Plaintiff as a
result of an incident that, according to him , occurred on 17 December
2003 at Klapmuts, Western Cape. Plaintiff was born on 12 December
1995, he was eight years old at the time of th e incident, and the action
was instituted during December 2016.
[2] The issues of merits/liability and quantum were separated by agreement
between the parties and the trial proceeded on the merits only. An
inspection in loco was conducted on day one of the trial, before any
evidence was led. The minute thereof was admitted into the record as
Exhibit C.
[3] In the Particulars of Claim ("POC"), the Plaintiff pleaded that:
(a) The Defendant was the owner of certain immovable property
situated at Merchant Street, Klapmuts, Western Cape, more fully
described as farm 744, portion 2, Paarl Road ("the farm").
(b) Defendant was the owner and/or lawful possessor in control of a
caterpillar machine which was being operated by one of its employees
at the farm to clear a portion of land on the farm.
Alternatively;
(c) Defendant engaged the services of a contractor, whose further
particulars are unknown to Plaintiff to operate the caterpillar to clear a
portion of, and on the farm with the caterpillar.
[4] Plaintiff further averred that on the date and in the circumstances
reflected in paragraph [1] above , he was injured when the caterpillar
collided with him and that his injuries were negligently and wrongfully
caused by the Defendant's employees, acting in the course and scope of
their employment with the Defendant.
[5] It was further pleaded that the clearing of a portion of land on the
farm by Defendant constituted construction work within the meaning of
Section 1 of the Construction Regulations promulgated in terms of the
Occupational Health and Safety Act, 85 of 1993 ("the Act").
[6] The Plaintiff alleged and relied upon the following grounds of
negligence on the part of the Defendant and/or its employees:
(a) they knew or ought to have known that children, in particular
the Plaintiff, had access to the portion of the farm where the
construction work was being carried out by the caterpillar;
(b) the operator of the caterpillar failed to ensure th at children,
in particular the Plaintiff, did not have access to the construction
site where the caterpillar was working when he could and should
have done so;
(c) they failed to take any or adequate steps to avoid the collision
when they could and should have done so;
(d) the operator of the caterpillar failed to keep a proper lookout;
(e) they breached the provisions of Section 9 of the Act by
failing to ensure that the plaintiff was not exposed to hazards
when they knew or ought to have known that it was dangerous to
allow the construction work to take place in circumstances where
they knew or ought to have known th at children, in particular,
the plaintiff, may be directly affected by the construction work
conducted by the caterpillar and thereby exposed the plaintiff to
hazards to his health and safety;
(f) they failed to prepare a health and safety specifications plan
for the work to be performed by the contractor or to require the
contractor to prepare a health and safety specification s plan for
the construction work to be carried out by the caterpillar as
required by Regulation 5 and 7 of the Construction Regulations
promulgated under the Act;
(g) they failed to discuss and negotiate with the contractor the
contents of the contractor 's health and safety plan as
contemplated in Regulation 7(1) of the Construction Regulations
and thereafter, to finally approve the health and safety plan for
implementation as required by Regulation 5 (1)(L) of the
Construction Regulations;
(h) they failed to stop the contractor from executing the work
when they knew or ought to have known that the work was not
being carried out in accordance with a suitable health and safety
plan and that the failure to do so posed a threat to the health and
safety of the plaintiff as required by Regulation 5 (1)(q) of the
Construction Regulations;
(i) they failed to ensure that the contractor managed and
supervised the construction work adequately or at all as required
by the provisions of Regulation 8 of the Construction
Regulations;
(j) they failed to ensure that the contractor had organized the
construction site in such a way that pedestrians, in particular, the
Plaintiff, could move safely and without a risk to health as
required by Regulation 23(2)(b) of the Construction Regulations;
(k) they breached the provisions of Regulation 2C of the General
Safety Regulations promulgated in terms of the Act by allowing
children, in particular, the plaintiff, to enter the construction site
where the health and safety of the children, in particular the
plaintiff, was at risk;
(l) they failed to ensure that notices were posted at the entrances
to the construction site prohibiting the entry of unauthorized
persons, more particularly the plaintiff, to such construction site.
[7] Four witnesses were called to testify on behalf of the Plaintiff. The
salient features of the evidence of these witnesses will be summarised in the
following paragraphs.
[8] Ms Seugnet Nelson testified that during 2004, she was employed as a
candidate attorney by Plaintiff's attorneys of record. Her principal at the time
was Ms Van Heerden who was and remained the Plaintiff's attorney of record.
On 23 March 2004 , some three months after the incident , Ms Van Heerden
handed her a Memorandum containing certain instructions .1 The instructions
included requests to visit the scene with the client, establish from the police
station at Klapmuts whether a docket had been opened, obtain the registration
1 The Memorandum is found at p78 of Exhibit A.
of the caterpillar, establish who the owner thereof was and to photograph the
scene at which the incident occurred and if possible, photograph the
caterpillar.
[9] The witness reported on her attendances in a handwritten file note.2 In
the note , she recorded that she visited the scene with Plaintiff's grandfather
and took photographs of the open field where the incident occurred. Plaintiff's
grandfather pointed the location of the scene out to her. Ms Nelson took seven
colour photos which are contained at p8A of Exhibit A . She took the photo s
while standing in Merchant Street.
[10] The witness mentioned that a cable stay that supports an upright electric
pole is faintly visible on the right side of photo 3. Photos one and two were
taken more towards, what was at the inspection and during the trial referred to
as the mountain s ide. Photos three and four were taken more towards what
was at the inspection and during the trial referred to as the N1 side. She also
pointed at a wired fence that is visible on photos one and two. This fence was
on the Merchant Street side of the open field. Her evidence in chief was th at
this fence was broken at places and "flat"/collapsed at some places . The
witness stated that there was no fence on the N1 side of the open field.
[11] Ms Nelson expressed the opinion that to her as a lay person, it appeared
that the open field was disturbed as it looked sandy and not natural. She
indicated that this was also visible on the photos.
[12] During cross-examination, the witness stated that she was unable to say
how the Plaintiff's grandfather knew the location of the incident. She also
admitted that the broken and collapsed sections of the fence were not visible
2 The note is at p80 of Exhibit A.
in the photos. It was put to her that the state of the vegetation could have been
caused by the summer season, which typically is a hot, dry season in the
Western Cape. The photos were taken during March, after the summer season.
The witness acknowledged that and admitted that she was not an expert on
this topic.
[13] Ms Nelson f urther testified with reference to a typed Memorandum
produced by her for Ms Van Heerden. 3 In this Memorandum , she recorded
that the Klapmuts police did not open a docket for the incident because it did
not occur on a public road. They also had no information on the caterpillar .
She established that the manager of the land on which the incident occurred
was a Mr John Lawson.
[14] Her Memorandum reflects that she visited Mr Lawson who told her that
he owned the land on which the incident occurred. He also told her that the
"implements" were not his property. This was a reference to the caterpillar.
Mr Lawson mentioned to her that a friend, one JJ Mouton from time to time
tested his machinery on his land /field and this was what happened on the day
of the incident. Mr Lawson provided a mobile telephone number for this Mr
JJ Mouton but she was unable to reach him on this number. She ass umed that
Mr Lawson provided her with a wrong telephone number.
[15] The second witness for the Plaintiff was his attorney, Ms Cornelia Van
Heerden. She read a typed file note made by her into the record .4 This note
was dated 23 October 2024 and related to a telephone call between her and
Mr Conrad Coetzee, the Defendant's attorney. The telephone call mainly
related to a supplementary discovery affidavit by the Defendant dated 21
October 2024. At that stage, the action was set down for trial on 29 October
3 The Memorandum is at p81 of Exhibit A.
4 The note is at p46 of Exhibit A.
2024. The supplementary discovery introduced document s relating to a
subdivision of a portion Farm 744 into two sections measuring 7.47ha and
13.88ha respectively, and the sale of the 7.47ha part thereof, by Defendant to
one Mr Francois Mouton. 5 It is not necessary to repeat the entire contents of
the note. Ms Van Heerden wanted to establish whether there was a dispute as
to who owned the land on which the incident occurred . The deed of sale ,
clause 61 provided for possession and risk t o pass to the purchaser upon
payment of a deposit of R50 ,000. Mr Coetzee intimated to Ms Van Heerden
that the two persons who concluded the deed of sale, Mr Neethling on behalf
of Defendant and Mr Mouton, the purchaser, passed away in 2005 and 2004
respectively. Mr Coetzee further indicated that the purchaser apparently paid
the deposit but passed away before the full purchase price was paid. Ms Van
Heerden stated that in view of the supplementary discovery and the dispute
around who owned the land on which the incident occurre d, she would
appoint a land surveyor to determine whether the location pointed out by her
client formed part of the larger portion (13.88ha) or the smaller portion
(7.47ha) of the farmland. This telephone call was followed up by a letter from
her to Defendant's attorney, confirming what was discussed on the call.6
[16] The witness further testified about a telephone call between her and Mr
Coetzee on 28 October 2024 during which he informed her that the incident
occurred on the smaller (7.47ha) portion. She referred to her file note for what
was discussed on the call.7
[17] The witness testified about her letter dated 24 April 2025 to Defendant's
attorney in which reference was made to a joint inspection held between the
5 The deed of sale is at p19 of Exhibit A and the diagram at p 32 thereof.
6 The letter is at p48 of Exhibit A.
7 At page 50 of Exhibit A.
parties on 23 April 2025.8 At this inspection, the Defendants pointed out that
the incident indeed occurred on the larger portion and not the smaller portion
of the land. Further, in an email of 25 April 2025 at 08:07 , the Defendant's
attorney informed Ms Van Heerden that it was admitted that the incident
occurred on Portion two of the land (the larger section).
[18] Ms Van Heerden also testified about a file note relating to her visit to
the premises of the Defendant on 1 October 2015.9 According to this note, she
spoke to unknown persons at Defendant's factory. They confirmed to her that
the land on which the incident occurred belonged to Mr John Lawson but they
did not know who owned the caterpillar. While on the premises , a person
called Mr Lawson and she spoke t o him. He mentioned on this call that the
caterpillar belonged to one Wouter and his business was called "J&J". The
said Wouter was testing the caterpillar /had it tested on the day and this was
how the incident occurred. He also mentioned that a "No Entry" sign was on
display and that the children w ere not allowed access to the area whe re the
incident occurred.
[19] During cross-examination, the witness was referred to two pages of a
RAF1 Claim Form at page 63 of Exhibit B. These pages were completed in
handwritten fashion and the witness stated that she was not aware who
completed this but that it was not her. These documents, completed during
March 2024 reflected the owner of the motor vehicle, the driving of which the
claim arose from, as "Mnr Lawson". It reflected the driver as Albert Kappa.
The motor vehicle was described as a "caterpiller" (sic) and no registration for
it was reflected. The witness indicated to the court that a claim against the
Road Accident Fund was not pursued.
8 Exhibit A, p75.
9 The note is at p83 of Exhibit A.
[20] Defendant's counsel referred the witness to the two pages of the
Occurrence Book of the South African Police Services at Klap muts.10 It
contained an entry about a report of the incident to a Sergeant Abrahams and
reflected that a yellow bulldozer collided with one D[...] D[...] on an open
field next to the SAFAMCO farm. The driver of the bulldozer was named as
one Albert Kappa. The witness was asked whether any steps were taken to
trace the said Albert Kappa. She indicated that some of her staff
unsuccessfully tried to trace the witness on Face Book but no other steps were
taken.
[21] The witness was , during cross examination, also referred to trace
information reports discovered by the Plaintiff in respect of one Elmaree
Lawson and John Lawson. 11 She conceded that no similar traces were done
for JJ Mouton or Albert Kappa and when JJ Mouton could not be reached on
the number supplied by Mr Lawson , no further efforts were made to trace
him.
[22] Plaintiff gave evidence too. He testified that he was born on 12
December 1995 and is currently 29 years old. At the time of the incident, he
was eight years old and in Grade 3. Him, his friends and other children in the
community regularly played on the open field in question. He lived nearby, at
2[…] M[...] Street. On Wednesday 17 December 2003, it was school holidays
already and him and 10 -12 friends aged between 8 and 10 years old w ent to
play on the f ield and when they got there, there was a caterpillar cleaning/
scraping the land. He identified the location where the caterpillar was working
with reference to ph otos one and two.12 According to him , the caterpillar
created heaps of sand which was then loaded onto a truck . These activities
10 P 65-67 of Exhibit B.
11 P 67-73 of Exhibit B.
12 Exhibit A p 8A.
carried on from the Monday 15 December through to Wednesday , including
Tuesday 16th December even though this was a public holiday.
[23] At first, they played soccer and later, they played on the sand heaps that
the caterpillar operator created. They covered themselves under the sand so
that the caterpillar driver would not see them and when the caterpillar
approached the sand heap, they would uncover themselves and run away. On
one occasion, when h is body was halfway covered in sand, he was unable to
free himself up and get out of the way and in the process, the caterpillar struck
him.
[24] He also testified that a t the time, there was a wir ed fence on the
Merchant Street side of the open field. This fence was broken at places and
flat at other places. They were able to walk over the flat part s without having
to climb over the fence. He pointed at photo one and indicated that the
incident happened to the left of the triangular pole that is visible in the photo.
[25] It was put to him that , according to the Defendant, there was a fence on
the N1 side of the open field at the time of the incident. He denied this. His
next memory after being struck by the caterpillar was being covered with a
blanket. He recalled that the caterpillar was running on chains, not wheels.
[26] He did not know the driver of the caterpillar . When the contents of p65
of Exhibit B was put to him, with specific reference to the entry that the
children were previously warned not to play on the fie ld, he denied that they
were ever so warned. During re -examination, he admitted that Mr Lawson
would chase them off the field when seeing them there . He also denied that
there was any warning signs posted in the area. He knew Mr Lawson and
regarded him as the owner of the land. He knew that it was wrong to climb
over a fence and enter the property of another without consent.
[27] Ms A[...] D[...], the Plaintiff's mother, also gave evidence. She pointed
at the aerial photo on page nine of Exhibit A and indicated that the building
marked with orange lines is a church and the buildings to the right of the
church are the building of Mr Lawson, the owner of the land. Mr Lawson
lived opposite the church at the time. She also testified that the children in the
area always used to play on the field.
[28] On Monday, 15 December 2003 , while on her way to work , she
observed a yellow caterpillar in th e area. It had blade wheels. When she
returned from work the evening, she saw that the part of the field was scraped.
The caterpillar continued working on Tuesday, 16 December. On Wednesday,
17 December and while she was at work, her father called her to s ay that she
had to come home immediately as D[...] got hurt badly.
[29] She was working in Durbanville at the time, and her employer took her
to Klapmuts. Upon her arrival, she found D[...] covered under a blanket. The
police were there, and the caterpillar was still on the scene. Mr Lawson was
also at the scene and was strongly reprimanding the driver of the caterpillar.
She testified that there was never a fence on the N1 si de of the field between
Merchant Street and the pole visible on the photos at pages 223 and 228 of
Exhibit B.
[30] Importantly, she testified that never before Monday 15 December 2003
was there any activity on this open field. It was never cultivated, it was never
used for farming, and it was never cleared. Since the incident , the land has
similarly never been used for any farming activities and remained unused as
before. After Ms D[...]' evidence, the Plaintiff's case was closed.
[31] Mr Adolf Neethling was the first witness for the Defendant. He testified
that his father , Francois Neet hling was the sole shareholder and director of
SAFAMCO. His father acquired the piece of land in question during the
eighties. It was purchased as an investment, and the land was initally vacant
and unused . His father was a building contractor, and they resided in
Kraaifontein at the time. At a stage during the nineties , his father asked his
sister, Elmaree and her husband , John Lawson to live on the propert y so that
there was someone to look after it. There was a building , later used as a
factory/workshop, and some labourer cottages on the property. During the
mid-nineties, his father had wooden pallets made on the premises and this was
sold to fruit exporters.
[32] Later, while Ms Elmaree Lawson and Mr John Lawson were living on
the property , a business manufacturing ste el window frames was started by
them. The witness moved to Bloemfontein during 1997. His father passed
away during 2005, and the witness returned to Cape Town during 2006. After
his father's death, Mr Neethling, his sister Ms Elmaree Lawson and mother ,
Ms Elizabeth Neethling became the shareh olders of SAFAMCO. He attended
to some of the administration of the business.
[33] Much of this witness' evidence and the cross examination by Plaintiff's
counsel centred around when and how the documents relating to the sub-
division and sale of a portion of the land to Mr Francois Mouton were
discovered and the lateness at which it was discovered during these
proceedings. Not much turns on this as the Defendant has conceded that the
incident occurred on the large ( 13.88ha) portion of the land , of which it was
the owner.
[34] The witness testified that while he was resident in Bloemfontein, he
would occasionally visit Cape Town and would then visit his sister and her
husband. He used to drive along the Old Paarl Road and mentioned that the
tractors and machinery of Mr Mouton were always visible from this road. His
father never owned tractors or caterpillars. He was not present when the
incident occurred as he was living in Bloemfontein at the time, but his
impression has always been that the incident occurred on the large portion of
the land.
[35] Mr John Lawson was then called as a witness for the Defendant . He
was the last witness in these proceedings. He testified that he married Ms
Elmaree Neethling, the daughter of the late Mr Francis Neethling during April
1999. Him and his wife then lived in Durbanville and moved to the
smallholding owned by SAFAMCO on 1 September 1999 at the request of his
late father-in-law. He pointed at the aerial photo on p9 of Exhibit A and
indicated that he and his wife occupied a house opposite the church to which
was referred in paragraph 27 above. His late father-in-law requested him and
his wife to move to the smallholding so that it wouldn’t stand vacant and they
were free to conduct any business of their cho osing on the pr emises. When
referred to the Memorandum by Ms Nelson , 13 he stated that by "…op sy
grond…" (his land) he meant not on his land but the land that Mr Mouton
purchased from h is father-in-law. The witness indicated that he did not own
the land in question.
[36] According to him, the Mr JJ Mouton whom he mentioned to Ms Nelson
never asked for permission to test his machinery on the land/open field. The
witness said that he had no independent recollection of the conversation with
Ms Nelson but did not deny talking to her.
13 Exhibit A p 81.
[37] When the witness was referred to the file note by Ms Van Heerden on
page 83 of Exhibit A, he indicated that the workers would not have been on
the premises on the day of the incident , as the business closed on 10
December every year and re opened on 10 January. He mentioned that it was
possible that he had the telephone conversation to which the file note refers
with Ms Van Heerden . He stated that the "Wouter" whom he may have
mentioned to her was a business associate of the Moutons. He further stated
that the late Francois Mouton to whom reference was made in paragraph 33
above was the father of JJ Mouton and this explains the reference to "J&J" in
the note. He testified that the Municipality erected a fence that ran parallel to
Merchant Street right up to where their factory was located. This was the
fence visible on photos one and two,14 and according to him, the Municipality
affixed "No Entry" sign s right along this fence. He also stated that children
would often climb over the fence and play on the open field. Whenever he
saw children doing this, he would chase them off the field , mainly to avoid
them making it a playground permanently.
[38] According to the witness , he was at home on the day of the incident.
Children came to call him, and he went to the scene. Upon his arrival, he saw
a boy lying there and he admitted that he reprimanded the driver of the
caterpillar for not paying attention to what he was doing. He did not know the
driver. The only person known to him who operated the machinery of the
Mouton's was one Nico.
[39] Under cross -examination, and when referred to the memorandum on
p81 of Exhibit A, the witness testified that people in the vicinity regarded him
as the owner of the land. He said it was possib le that he had told Ms Nelson
14 P 8 A of Exhibit A.
that he was the owner of the land. He admitted that he would have told her
that JJ Mouton used to test his machinery on this land. This expla ined the
reference to JJ Mouton in the Memorandum.
[40] He was cross-examined extensively on whether the incident occurred on
the small section or the large section of the land. The witness explained that
his late father-in law often mentioned that he sold "that" portion of the land to
Francois Mouton and would point in the direction of the smaller section. He
never saw maps of the l and and never knew exactly where the boundaries
were. The witness did not agree that the incident occurred at the location
pointed out by the Plaintiff. He was asked by Plaintiff 's counsel to mark on
the aerial map on page 9 of Ex hibit A where, according to him , the incident
occurred. He at first drew a red line and when prompted again, made a mark.
The mark made by him indicate d that the incident occurred on the large
portion. The red line appeared to depict the boundary between the s mall and
large portion of the land.
[41] Under cross examination, the witness stated that he did not believe that
Mouton would have crossed the area where he drew the red line and enter the
large section of the land without permission. He said that Mouton did not
have his permission and he did not know whether he had the late Mr
Neethling's permission.
[42] It was put to the wi tness that he must have known that the cat erpillar
worked on the open field because it was there for three days. The witness
denied that he was aware thereof . It was also put to him that the Defendant
appointed the person/s to clean the field. The witness denied this too. It was
further put to the witness that the appearance of the soil on photos one to three
and five to seven constituted uncontroverted evidence that the field was
cleaned. The witness did not admit this either. This concluded the evidence
for the Defendant and it closed its case.
Application in terms of Rule 28(10)
[43] The evidence was concluded on 16 October 2025, and the matter was
postponed to 5 November 2025 for argument. Upon resumption of the matter,
the Plaintiff applied for leave to amend the PO C in terms of Rule 28(10) as
follows:
(a) by adding at the end of paragraph 3.3 thereof 'alternatively
authorised and/or permitted the operation of the caterpillar to clear a
portion of land on the farm."
(b) by deleting paragraph 5 thereof and substituting it with the
following:
"5. The clearing of a portion of the land on the farm as aforesaid
constituted construction work within the meaning of Section 1 of the
Construction Regulations promulgated in terms of the Occupational
Health and Safety Act No. 85 of 1993.
(c) by deleting paragraph 6.2 and the substitution thereof with the
following:
"6.2 They failed to ensure children, in particular the Plaintiff. Did not
have access to the construction site where the caterpillar was working
when they could and should have done so."
[44] Plaintiff submitted that the amendment was aimed at aligning the
pleadings with the evidence, specifically the evidence referred to in paragraph
41 above. Defendant objected to the amendment on several grounds. One of
the disputes was whether the Court should allow an a pplication of this nature
and at this stage of the proceedings to be made orally from the bar without a
Rule 28(4) application that complied with Rule 6. The Court considered the
judgments in De Kock v Midd elhoven15; Booysen v Followers of Christ
Church16 and Swartz v Van DerWalt t/a Sentraten 1998 (1) SA 53(W). 17 It is
clear from these authorities that not every application for amendment has to
be brought formally in terms of Rule 6 but that the Court has a discretion that
should be exercised on a case by case basis, taking into the account the nature
of the amendment and the subject matter of the particular case.
[45] The Court held that in the circumstances of this case, it was incumbent
upon it to receive and consider the Plaintiff's application from the bar without
the need for a formal application. The application for amendment was then
considered but dismissed with costs , on the bases that t he amendment, if
allowed at this late stage, would grant to the Plaintiff an unfair tactical
advantage and would materially prejudice the Defendant. In particular, the
amendments would materially alter the case that the Defendant had to meet at
a stage when both parties had already closed their cases. The amendments, if
allowed would have imposed additional duties to rebut on the Defendant.
The Parties' cases
[46] During argument , counsel for Plaintiff conceded that the evidence did
not sustain the a llegations contained in paragraphs 3.2 and 3.3 of the POC.
These allegations pertained to Defendant having been the owner or lawful
possessor of the caterpillar which was being operated by one of its employees,
alternatively, that Defendant engaged a contractor whose particulars were
15 2018 (3) SA 180 (GP).
16 (6195/2019, 22079/2016 [2021] ZAWCHC 161.
17 1998 (1) SA 53 (W).
unknown, to operate the caterpillar. The effect of this is that the Plaintiff was
no longer contending for vicarious liability on the part of the Defendant on
the aforesaid grounds.
[47] Argument on behalf of the Pl aintiff was that the Defendant admitted to
ownership of the land on which the incident occurred , that the evidence by
Plaintiff's witnesses was that the caterpillar was being operated on
Defendant's property over a period of two and a half days , and that the
activities in which the caterpillar was engaged constituted "construction
work" as defined in regulation 1 of the construction regulations of 2003,
promulgated in t erms of the Occupational Health and Safety Act of 1993.
Plaintiff testified that these activities entailed creating heaps of sand/soil
which were loaded onto a truck and transported away. The aforesaid
regulations define ''construction work" as 'the moving of earth , clearing of
land, the making of excavation, piling or any other similar type of work."
[48] The land/open field in question was flanked by a residential area on two
sides and the evidence was that children regularly played on this land /field.
The POC contained allegations to the effect that the Defendant and its
employees were negligent in that they knew or ought to have known that
children, in particular the Plaintiff, had access to the portion of the farm
where the construction work was being carried out by the caterpillar, that they
failed to take any or adequate steps to avoid the collision when they could and
should have done so , and that they failed to stop the construction work when
they became aware of the presence of children , particularly the Plaintiff, in
close proximity to the caterpillar.
[49] The Plaintiff submitted that Mr Lawson would have been aware of the
caterpillar's presence on the farm and that it was inconceivable that he would
not have been aware of these activities being carried out over t wo and a half
days. It was further submitted that the site at which the caterpillar was
working was near Mr Lawson's house and because it was mid -December, it
was inconceivable that he would have remained indoors during that period.
The Court may add that Mr Lawson's house, as observed during the
inspection in loco was some distance away from the site of the incident, albeit
that this distance was not measured . There was no request by either party for
this distance to be determined.
[50] Plaintiff further submitted that Mr Lawson, as the person in control of
Defendant's property was , or ought to have been aware of the work being
carried out by the caterpillar, that he was aware that children frequented and
often played on the open field and that he was or ought to have been aware of
the dangers that the activities of the caterpillar posed to children.
Consequently, so the argument went, he was under a duty to prevent children
from entering the property or he had to stop the caterpillar from working. This
he failed to do, and these omissions were wrongful and negligent.
[51] Plaintiff referred the court to the judgment in Cape Town Municipality v
Paine,18where it was said that : ' The question whether, in any given situation,
a reasonable man would have foreseen the likelihood of harm and governed
his conduct accordingly is one to be decided in each case upon a
consideration of all the circumstances. Once it is clear that the danger would
have been foreseen and guarded against by the diligens paterfamilias, the
duty to take care is established and it only remains to ascertain whether it has
been discharged'.
18 1923 AD 207 at 216.
[52] Plaintiff's counsel further referred to Farmer v Robinson Gold Mining
Co. Ltd19 where, dealing with trespasse rs it was held that: ' It is not that the
fact of trespass deprives the wrongdoer of all right to protection. That cannot
be so, because if an owner is in fact aware of the presence of a trespasser, he
is bound to observe a certain de gree of care. The reason why an owner as a
general rule is not obliged to be careful in the case of a trespasser is that he
cannot be reasonably expected to anticipate his presence. The ordinary
reasonable man would under such circumstances, take no precautions and the
failure to take any could not constitute culpa '. It was then submitted that the
presence of the young boys as trespassers was reasonably foreseeable to Mr
Lawson, and he would have been under a legal duty to take steps to prevent
them from entering upon the place where the caterpillar was working.
[53] There was no evidence before the court that Defendant was the owner
or possessor of the caterpillar, that the Defendant employed the driver thereof
or that it appointed a contactor to carry out the work performed by the
caterpillar.
[54] Defendant argued that the Plaintiff had the onus to prove all the
elements of the delict on which it relied as a cause of action. It referred the
Court to the well-known case of Kruger v Coetzee in support of the
submission that even where a plaintiff succeeds in showing that the
reasonable person in the position of the defendant would have foreseen as a
reasonable possibility his conduct injuring the plaintiff and would have taken
steps to guard against such occurrence, the onus remains on plaintiff to show
that there were further steps that he could and should reasonably have taken.
Defendant submit ted that in the present case , Mr Lawson testified that the
municipality fixed the fence between Merchant Street and the open land. This
19 1917 AD 501 at 522.
fence was still visible on the photos taken Ms Nelson. Although Mr Lawson
testified about warning/no entry signs posted along the fence, it is apposite to
mention that these were not visible on the phot os and was disputed by
Plaintiff's witnesses. Plaintiff, under cross examination admitted that when Mr
Lawson occasionally drove past the area and saw them play ing on the field,
he would chase them off. For Defendant, it was argued that Plaintiff failed to
prove that there were further steps that Defendant should reasonably have
taken and that Plaintiff failed to discharge this onus.
[55] Both parties referred the Court to the case of Herschel v Mrupe 20. It is
apposite to quote the following passage appearing at page 490 thereof: ' After
all, law in a community is a means of effecting a compromise between
conflicting interests and it seems to me that according to the principles of
Roman Dutch law the Aquilian action in respect of d amnum in juria datum
can be instituted by a plaintiff against a defendant only if the latter has made
an inva sion of rights recognized by the law as pertaining to the plaintiff;
Apart from that, loss lies where it falls. I do not invade the recognized rights
of the burglar or the marauding boys; On the contrary they invade my rights.
I cannot understand how by th eir unlawful conduct they can virtually impose
a servitude upon my property. Whether the injury to them is foreseeable
therefore or not, they cannot - apart from dolus- sue me. The unwitting
trespasser who falls into a pit dug near the road is obviously in a different
position; the distinction is not relevant to the present inquiry and to pursue it
will take me too far afield. It is sufficient to say that the pit is a trap and a
man is not outlawed because he unwittingly and excusably deviates from a
path in the dark. By driving a motor car in the street, I exercise equal rights
with all other users of the road; but if I do so negligently and dangerously, I
with all other users of the road; but if I do so negligently and dangerously, I
invade the right s of other users by curtailing their equal rights. If I sell a
20 1954 (3) SA 464 (A).
powerful motorcycle to an impulsive young man, experience and the actuarial
tables tell me that there is not only a possibility but a distinct probability that
sooner or later he will be involv ed in a crash. As a reasonable man I can
foresee harm to him and to others . Responsibility for his accidents will be his
own, however not mine.'
Reasoning and Findings
[56] The Plaintiff's mother testified that for as long as she has lived in the
area where the incident occurred, she has never observed any activity of
farming, construction, or the like, on the open field in question. It is common
cause that the piece of land, although privately owned, is vacant and has never
been cultivated, developed or used by the owner. It is further common cause
that the children in the community have always used the field as a
playground, even at a time when it was fenced off. At the inspection in loco, it
was observed that the field is presently not fenced off and that portion thereof
is being used as an informal cricket pitch , presumably by the young people in
the community . This comes as little surp rise, given the lack of rec reational
facilities in this area.
[57] The Plaintiff 's attorneys made various efforts to identify the driver of
the caterpillar but were unable to do so. Efforts were made to establish details
of the caterpillar and the owner thereof, but the South African Police Services
did not obtain or record such details. Other than a reference to the driver as a
Mr Kappa, the occurrence book at the police station contained no details of
the driver or owner. As appears from paragraph [19], Plaintiff's attorneys even
contemplated a claim against the Road Accident Fun d at a stage on the basis
that Lawson was the owner and Kappa the driver of the caterpillar. This claim
was presumably not lodged because the caterpillar did not fall within the
definition of a motor in the Road Accident Fund Act, 56 of 1996 . A claim
against the owner and driver of the caterpillar would have taken on an entirely
different complexity, compared to the present action.
[58] The Defendant owns the land in question but it's activities always have
been confined to a very small portion thereof.21 Initially, there was a dispute
over whether the incident occurred on the larger portion owned by Defendant
or whether it occurred on the smaller portion that the late Mr N eethling had
sold off to Mr Mouton. Mr Adolf Neethling indicated that he was always
under the impression that it occurred on the larger portion. Mr Lawson at first
contended that it occurred on the smaller portion but later conceded that it
occurred on the Defendant's portion.
[59] Mr Lawson testified that he was and is still not sure where exactly the
boundaries between the large portion and the small portion were. He
conceded that the community always regarded him as the owner of both
portions. Plaintiff argued that the Court should reject Mr Lawson's evidence
in its entirety, save for concessions made by him. The grounds of
wrongfulness, negligence and causation on which Plaintiff relies require a
finding that Mr Lawson was aware of the caterpillar's activities or that he
commissioned these activities . There was no evidence to sustain such a
finding.
[60] The Court cannot on a balance of probabilities find that Mr Lawson was
aware of the work being carried out by the caterpillar or that he commissioned
this work. There was unchallenged evidence by Mr Neethling that the
machinery owned by Mouton were visible from Old Paarl Road , a road that
21 See paragraphs 31 and 32 supra.
he regularly used when visiting the Lawsons. Mr Lawson consistently, since
Ms Nelson and Ms Van Heerden spoke to him over 21 years ago, referred to
the caterpillar having been owned by Mouton. There was no evidence that
Defendant ever owned or used caterpillars. In the absence of evidence that Mr
Lawson commissioned the work or was aware thereof, the obligations under
the Occupational Health and Safety Act and Construction Regulations of
2003, applicable to a contractor, employer or agent as defined, were also not
triggered. Can it be held that Mr Lawson ought to have been aware of these
activities? His evidence was that he was not aware and there is no reason to
reject this. The mere fact tha t the activities were carried out over a few days
does not justify such a finding. His home was not in such proximity to the
scene that he ought to have become aware of the caterpillar's activities. One
must be careful not to impute the conduct of the driv er or owner of the
caterpillar to Mr Lawson.
[61] While Mr Lawson was not the best of witnesses, his evidence cannot be
rejected in its entirety. The Court did not accept his version of where the
incident occurred. His evidence that a fence and a gate on the N1 side of the
open land existed at the time of the incident was also not accepted . Plaintiff
suggested that Lawson's version about this fence and gate that existed and his
confusing evidence about the site of the incident justify the rejection of all his
evidence. His explanation for his uncertainty over the exact boundaries
between the properties was plausible one. His evidence about the fence
mentioned above was not supported by any of the other witnesses but given
that there was ultimately no dispute over where t he incident occurred not
much turned on this and this is not a basis on which to reject all his evidence.
His demeanour was also not that of a lying and evasive witness.
[62] Mere ownership of a piece of land located near a community and
accessible to children cannot, in the context of this case, clothe Mr Lawson or
the Defendant with the duties contended for by the Plaintiff. The Court cannot
find that this communal coexistence imposed such duties on the Defendant.
The position would have been different if the property posed potential hazards
such as animals or dangerous equipment. Further, the boni mores of society
permeated by our Constitution al values did not on the fact s of this matter
impose the stringent duties contended for by Plaintiff , on the Defendant,
merely based on ownership of land . In the absence of such legal dut ies,
omissions on the part of the Defendant to take steps to prevent the in cident
was not wrongful. The convictions of the community would not have
expected that the Defendant be visited with liability to the Plaintiff. For the
above reasons, the Court finds that the element of wrongfulness was not
established.
[63] Wrongfulness and negligence must be considered and determined
separately. In Minister of Safety and Security v Van Duivenboden ,22it was
held that negligence on its own is not inherently unlawful. In Gouda
Boerderye BK v Transnet, 23 it was held that: 'While conceptually the enquiry
as to wrongfulness might be anterior to the enquiry as to negligence, it is
equally so that without negligence the issue of wrongful ness does not arise,
for conduct will not be wrongful if there is no negligence' . Depending on the
circumstances, therefore, it may be convenient to assume the existence of a
legal duty and consider first the issue of negligence. It may also be convenient
for that matter, when the issue of wrongfulness is considered first, to assume
for that purpose, the existence of negligence'. Joubert, in The Law of South
Africa24 cautioned that the above approach is only tenable if it means that
22 2002 (6) SA 431 (SCA) at para 12.
23 2005 (5) SA 490 (SCA).
22 2002 (6) SA 431 (SCA) at para 12.
23 2005 (5) SA 490 (SCA).
24 Second Edition, Part 8 paragraph 59, p81-82.
negligence does not presuppose the material existence of wrongfulness. It is
also only tenable if it postulates a position that a person's conduct could only
be negligent, if it was wrongful too.
[64] The Court was mindful that while factors relevant to wrongfulness may
also be relevant to neg ligence that these enquiries are viewed from different
perspectives and for different purposes.25 It is indeed so in this matter that the
factors relevant to these two elements of delict intersect.
[65] In MTO Forestry (Pty) Ltd v Swart NO,26 we were reminded that '…the
reasonable man is not a timorous faintheart always in trepidation of harm
occurring but ven tures out into the world , engages in affairs and takes
reasonable ch ances. Thus, in considering what steps a reasonable person
would have taken, and the standard of care expected, t he bar, whilst high,
must not be set so high as to be out of reasonable reach.' On the facts of this
matter, the Court finds that the reasonable person in the position of the
Defendant and/or Mr Lawson would not have fo reseen this incident and the
harm caused thereby as a reasonable possibility and would accordingly not
have taken steps to guard against such occurrence. It follows that
wrongfulness and negligence were not established and the action is dismissed.
[66] Both counsel made submissions around costs. The matter was on 29
October 2024 postponed because of the late discovery by Defendant of the
documents relating to the sub-division and sale of the small portion of the
land. By agreement, the costs of that postponement stood over for later
determination. On 5 May 2025 , the matter was again on the roll for trial and
was " crowded out". Those costs were costs in the cause. The costs should
follow the result and the action is dismissed with costs, save for the wasted
25 Joubert supra at paragraph 59, p81.
26 2017 (5) SA 76 (SCA) at paragraph 45.
costs occasioned by the October 2024 postponement, which costs shall be
borne by the Defendant.
Order
(a) The action is dismissed;
(b) Plaintiff shall pay the Defendant's party/party costs as taxed or agreed,
with counsel's fees taxable at Scale B;
(c) The Defendant is liable for the wasted costs occasioned by the
postponement of 29 October 2024, and counsel's fees shall be taxed on
Scale B.
_____________________________
RD BARENDSE
ACTING JUDGE OF THE HIGH COURT
Appearances:
For plaintiff: RD Mc Clarty SC
Instructed by: Heyns & Partners
CS van Heerden
For defendant: M van der Berg
Instructed by: SDP Attorneys
C Coetzee