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[2012] ZAWCHC 65
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Manuel v Loubser and Others (10013/08) [2012] ZAWCHC 65 (20 March 2012)
Republic of South Africa
IN THE HIGH COURT OF SOUTH
AFRICA (WESTERN CAPE HIGH COURT, CAPE TOWN)
Case No.:
10013/08
In the matter between:
STANLEY
LAURENCE MANUEL
….....................................................................................
Plaintiff
and
PIETER
EDUARD LOUBSER
….................................................................................
First
Defendant
Identity No.
PE
LOUBSER BOERDERY (PTY) LTD
…............................................................
Second
Defendant
Registration No. 1992/002944/07
JACOB
ELIZA DE VILLIERS LOUBSER
…...........................................................
Third
Defendant
Identity No.
MOSSELBANK
PLASE (PTY) LTD
…....................................................................
Fourth
Defendant
Registration No. 1988/000843/07
MELT
JACOBUS LOUBSER
…..................................................................................
Fifth
Defendant
JUDGMENT: 20 MARCH 2012
MEER J.
[1] The plaintiff sues the
defendants for damages in the sum of Rl 007 628.00 allegedly
sustained as a consequence of a collision
between a motor cycle
driven by the plaintiff and a bull alleged by the plaintiff to have
been owned, possessed or controlled
by the defendants. The collision
occurred on 4 July 2005 at 19h30 on the Klipheuwel Public Road Road.
Durbanville, Western Cape
Province. As a result of the collision the
plaintiff suffered severe bodily injuries.
[2] The first, third and fifth
defendants are brothers who are directors of the second and fourth
defendant companies. The fourth
defendant owns Mosselbank Farm ("the
farm") which is adjacent to Klipheuwel Road where the collision
occurred. The
second defendant is the entity which conducts the
farming operations on the farm and the owner of all the cattle on
the farm.
The third defendant, Jacob Elisa De Villiers Loubser is in
charge of the farming activities on the farm.
[3] In his
particulars of claim the plaintiff alleged
inter
alia:
that the collision was caused
by the sole negligence of the defendants, alternatively of one or
more of the defendants' employees
who failed in their duty of care
to ensure that cattle owned by them and/or in their possession
and/or under their control
and/or grazing on land owned by the
defendants, did not stray onto the Klipheuwel Public Road;
that the defendants knew there
were no sign boards in the vicinity of Mosselbank Farm to warn of
cattle crossing, knew that
Klipheuwel Road did not have street
lights, and knew that the cattle in the vicinity of the farm had no
illuminating signs
to warn of their presence if they strayed onto
the road at night;
that the defendants knew that
if cattle strayed onto the Klipheuwel Public Road at night when it
was dark it was likely that
vehicles or motor cycles would collide
with such cattle;
that in breach of their duty
of care the defendants, alternatively one or more of their
employees left the gate on the farm
open which allowed the bull to
stray onto the Klipheuwel Road;
that the defendants,
alternatively, one or more of their employees failed to install a
cattle grid in the opening of the gate
of the farm; failed to
exercise reasonable control over the bull to prevent it from
straying onto the Klipheuwel Public Road
and/or failed to ensure
that the camp in which the bull was grazing immediately prior to
the accident, was enclosed by a fence.
[4] In their plea the
defendants admitted that they had a legal duty to take all
reasonable measures to ensure that any animal
under their control
did not gain access to the Klipheuwel Public Road. The defendants
denied any knowledge of the collision,
denied that they owned the
bull, had it in their possession or under their control and denied
further that the collision was
caused by their negligence.
[5] In the alternative and in
the event of it being found that the defendants' conduct was
negligent, the defendants in their
plea denied that any negligence
imputed to them caused the collision, but alleged that the collision
was occasioned solely by
the negligence of the plaintiff. In the
further alternative the defendants pleaded that the collision was
occasioned by the joint
negligence of the defendants and the
negligence of the plaintiff.
[6] It is common cause that on
Monday, 4 July 2005 at about 19:30 the plaintiff who was driving a
motor cycle, collided with a
black Angus bull on the Klipheuwel Road
in the vicinity of the gate to the farm. At the time the plaintiff
was travelling from
Malmesbury in the direction of Durbanville. His
friend. Mr. Adriaan Johan Jordaan was travelling on a motor cycle in
front of
the plaintiff. It is common cause that the gate to the
entrance of the farm Mosselbank, does not have a cattle grid. It is
also
common cause that there were no sign boards to warn of cattle
crossing, that there were no street lights and that the bull in
question did not have an illuminating sign affixed to it. The
details of the collision emerged from the testimony of the plaintiff
and that of his friend, Mr. Jordaan.
Testimony
of the Plaintiff
[7] The plaintiff testified
that it was dark and the lights of his motor cycle were on. The road
was dry. He was driving at approximately
100 km per hour near the
farm when he saw a black animal 20 metres away, crossing the road
from west to east, from the direction
of the gate of the farm. He
applied brakes but did not have time to swerve to avoid the
collision. He hit the rear leg of the
animal.
[8] The plaintiff fell to the
ground and remained there, seriously injured until he was removed by
ambulance. Whilst he was lying
there a lorry drove by and collided
with the bull. The plaintiff did not speak to the police after the
accident. He furnished
an affidavit to an assessor, Mr. O'Reilly, in
June 2006 concerning the accident.
Evidence
of Adriaan Johan Jordaan
[9] Mr Jordaan testified that
he drove in front of Plaintiff on the night of the accident with his
lights on bright. There was
visibility for about 70 metres in front
of him from the lights of his bike and he was about 20 kilometres
away from the bull
when he saw its eyes. It was walking directly
opposite a farm gate on the western side of the road. No person was
controlling
it. After the collision Jordaan had stayed with
Plaintiff until the ambulance arrived. A photograph. Exhibit A14
shows that the
collision occurred very close to an entrance gate (on
the western side of the road), which gains access to a field where
the
second defendant farms with Angus cattle.
Testimony
of Weimar O'Reilly
[10] Mr O'Reilly, the assessor
who investigated the collision, has 12 years experience as an
assessor. O'Reilly had approached
the plaintiff to investigate the
collision on a contingency basis, the understanding being he would
be paid if the plaintiff
succeeded with his claim. O'Reilly took
photographs at the accident scene on 30 July 2005, some 3/4 weeks
after the collision
and inspected the fence for approximately 800
metres from the entrance to the farm in both directions. He found
the fence to
be in good condition, with no indication that it had
been repaired.
[11]
O'Reilly testified that he interviewed the third defendant on 15
August 2005. The third defendant said that the bull involved
in the
accident was his, that he was insured and asked O'Reilly not to
trouble him about the incident. He directed O'Reilly to
his
insurers. The third defendant said that the bull had broken through
the fence which had subsequently been repaired by farm
workers. The
bull was bought at an auction before the accident. After speaking to
the third defendant O'Reilly
interviewed
two farm workers who said they had buried the bull on the farm
"Welgegund".
[12] O'Reilly interviewed the
third defendant again in November 2005. At this meeting the third
defendant changed his version
by disavowing ownership of the bull
that caused the collision. He said he had discovered three weeks
after the accident, (as
recorded in O'Reilly's handwritten notes of
the meeting), that all the bulls were on the farm and none were
missing. It was thus
not a bull from the farm that was involved in
the accident. He also said that one of the bulls had since been sold
and slaughtered
and showed O'Reilly a note attributed to such
transaction. O'Reilly said the note did not make sense. O'Reilly
emphasised that
during his first consultation with the third
defendant on 15 August 2005, (which was more than three weeks after
the accident),
the third defendant had made no mention of his
discovery three weeks after the accident that all five bulls were
present. Nor
had he referred to the slaughter. The notes made by
O'Reilly during this consultation record that Ice Kleynhans, a
worker, indicated
that the bull had been buried after the accident
on the neighbouring farm "Kyperskraal".
[13] O'Reilly also interviewed
Mr Hamman, the farm manager during the second visit to the farm in
November 2005. Hamman told O'Reilly
that he had accompanied the
third defendant to the scene of the accident. Hamman said he
accepted that the bull at the scene
was one of two bulls that had
arrived on the farm on the morning of the accident.
[14] The third defendant's
version was put to O'Reilly as follows: the bulls on the farm belong
to the second defendant. Even
though the third defendant had
inspected the gate and fence on the night of the accident and could
not understand how the bull
could have got out. he had accepted it
was one of his bulls. He had reported the accident to his insurers
thinking the bull was
his. At a later stage Mr. Hamman informed the
third defendant that all his bulls were in the camp. The
slaughtering of a bull
had occurred because it was the bull's time
to be slaughtered. O'Reilly could not comment on the third
defendant's version.
[15] During cross examination
O'Reilly conceded that he could not exclude the possibility that the
bull involved in the accident
could have come from one of the other
farms in the area but said this was unlikely as these farms were a
distance away.
[16] O Reilly said that on his
first visit to the farm on 30 July 2005 the gates were secured with
a lock and a chain. On 22 March
2006 he had again visited the scene
and noticed that the gate had been left open. He had made enquiries
in the area whether any
farmer had lost a black Angus bull but could
find nobody who claimed ownership of the dead animal. On 23 March
2006 he again
passed the scene and observed once more that the gate
was open. He took a photograph. He said he often drove along
Klipheuwel
Road past the farm. On one or two occasions he observed
cattle in the camp and that the gate was not locked but closed and
secured
with rope. The evidence of O'Reilly was not seriously
challenged and withstood cross-examination. He was a credible
witness.
Evidence of Bongani Brian
Lali
[17] Constable Lali of the
Durbanville Police Station arrived on the scene of the accident
shortly after the collision and prepared
the accident report form
dated 4 July 2005. The form records that the "cow"
belonged to "Loubser P.E.". Lali
testified that he got
this information from a Mr. Loubser who was at the scene. Loubser
informed him that he identified the "cow"
as his, from the
ear tag. The telephone numbers recorded by Lali on the accident
report form are those of the third defendant.
The form records the
residential address of the owner as Welgegund farm. Durbanville.
[18] During cross-examination
Constable Lali said he did not have an independent recollection of
what happened that evening and
had to rely on the accident report to
stimulate his memory. When it was put to him that Mr. P.E. Loubser
was not at the scene
but that the third defendant his brother was,
and that the latter claims not to have spoken to Lali, he responded
"if he
was the person that was at the scene of the collision,
then he is the person I spoke to". Lali was unable to identify
the
person who had told him he was P.E. Loubser, from those present
in Court. Constable Lali was a credible witness.
Testimony
of Johan Ackerman
[19] Mr Ackerman is the second
defendant's insurance broker. He testified to being in the insurance
business for over 40 years,
working at Malmesbury. At the time of
the collision the second defendant was insured against risks of
public liability. On the
evening of 4 July 2005, shortly after the
accident occurred, Mr Ackerman received a telephone call from the
third defendant informing
him that an Angus bull belonging to the
second defendant was involved in the accident. Thereafter, on 21
July 2005 Mr Ackerman
interviewed the third defendant for the purpose of completing a
Sentrasure Public Liability Claim Form.
Mr Ackerman completed all
the details that appear on the form in the presence of the third
defendant after obtaining the information
from him. The third
defendant thereafter signed the form. The form provides the
following information:
"Versekerde het nuwe bulle
aangekoop en is deur bestuurder die dag ± 12h00 daar in kamp
afgeiaai. 2 x nuwe bulle is
in kamp afgelaai - Vermoede is dat hulle
baklei het en dat een deur draad/konsertinahek gestamp is. Daar het
wel hare aan drade
gesit. Geen hekke was oop of drade stukkend me.'"
And:
"7. Is hekke en heinings in
goeie toestand? ± 12h00 is die nuwe bulle in die kamp
afgelaai - en een het die aand uitgekom
op die openbare pad."
[20] When asked if the third
defendant had any doubt about ownership of the Angus bull. Mr
Ackerman testified:
"U
Edele
ja, hy was redelik oortuig dit is sy dier, een van die bulle wat op
die pad beland het.
Daar was nie
enige twyfel daaroor nie... Nee. Nee.
The
evidence of Mr Ackerman was not seriously challenged during
cross-examination. He was a credible witness.
Testimony
of Stuart Collins
[21] Stuart Collins is an
insurance broker with Harnacks, the company that inured the
plaintiff s motor cycle. Mr. Collins testified
that he interviewed a
Mr Loubser, who identified himself as the owner of the bull that
caused the accident. The latter raised
the following possibilities:
that two new bulls were placed in a "kraal" with the cows.
The bulls got involved in a
fight. There may have been damage to the
fence which enabled the bull to escape or the gate might not have
been closed properly,
which also would have enabled the bull to
escape. The evidence of Mr Collins was not seriously challenged,
save that it was put
to Collins that the third defendant does not
remember speaking to him.
Testimony
of Gustav Kemp
[22] Mr Kemp, the plaintiffs
attorney testified that he had inspected the farm, Mosselbank on the
afternoon of 2 March 2011 and
observed the gate, fence and camp
where the Angus cattle are kept. After he entered, the gate was
secured with plastic bale string.
It was not locked. Mr Kemp was
taken to the camp where cattle were grazing. He observed that there
was no fence restricting the
movement of cattle to the gate.
[23] During cross-examination
Mr Kemp emphasised that the cattle had free access to the gate but
conceded that there were no cattle
in the vicinity of the gate. He
had not tested the strength of the plastic bale rope which secured
the gate.
Evidence
for the Defendants
Testimony
of Jacob Eliza De Villiers Loubser, the third defendant
[24] The third defendant as
aforementioned is responsible for the farming activities undertaken
by the second defendant on the
farm Mosselbank. He testified that
the farm is situated on both sides of the Klipheuwel Road and at any
given time itaccommodates
between 100 and 150 cattle. Mosselbank is
not the only farm in the area to keep Angus cattle. They can also be
found on a farm
2 to 3 kilometres away and on a feedlot, "Braams
Voerkrale", 500 metres away. The third defendant estimated that
50
% of all cattle in the area are of the Angus breed.
[25] On the evening of 4 July
2005 when the third defendant received a telephone message that
there had been a collision with
a bull, he assumed that the animal
was once again a stray bull. He testified that there were frequently
"rondloper"
bulls in the area which he had to identify on
many occasions. He estimated that 99 % of the animals he had to
identify were strays.
I pause at this juncture to mention that at
variance with this testimony, he later also testified with reference
to stray animals
that
this
occurred,
"van
tyd tot tyd"
1
and,
"dit
is nie 'n groot probleem nie"
2
and further
also "
ek was nog
nooit in "n situasie waar ek diere moes uitken tussen ander
diere, of wat ook al nie"
3
[26] The third defendant was
aware that at the time of the collision there were four or five
black Angus bulls on the farm in
a camp immediately adjacent to
Klipheuwel Road where the accident occurred. Two of these had been
bought shortly before the accident.
He drove to the accident scene
with his farm manager, Mr Hamman. They stopped at the spot where the
bull was lying at the side
of the road. The third defendant did not
alight but observed the bull from his vehicle. It was pitch dark,
there being no street
lights. He recognized the animal as an Angus
bull. According to him it had no identification. It did not look
like a '"rondloper"
but resembled a commercial bull. He
said it was very difficult for him to identify a dead animal but he
accepted that it could
have been his bull, explaining:
"Die feit dat dit 'n Angus
Bui was, en dat hy by daardie hek gele het het my aanvanklik laat
verstaan dat ek is seker dit
is my bul".
He was uncertain whether it had
crossed his mind that the bull could have belonged to another farmer
in the area.
[27] He could not
satisfactorily explain during cross-examination why, given his
avowed difficulty in identifying a dead animal,
he had not alighted
from the vehicle to examine the bull, more especially given his
evidence in chief about the many reports
he received of animals
roaming on the road. His response when asked about his inaction,
was:
" ek het nie gedink, ek het
nie die nodigheid van dit gesien nie".
[28] The third defendant was
questioned in some detail as to whether the bull was marked with an
ear tag from which its ownership
could be identified. His evidence
on this aspect was confusing and contradictory. On the one hand he
testified that his bulls
were unmarked but that even unmarked, he
was able to recognise his animals, as he did his children. On the
other hand he said
that even had he alighted and inspected the bull
he could not have identified its ownership because adult bulls
purchased are
not marked on the farm. When it was suggested that the
ear tag on the bull would have enabled him to link the animal with
the
farmer from whom he had purchased it, he replied:
"I don't
know.... 1 honestly don't know".
He
also testified
"dit
gaan my nie aan wat op die plaatjie van daardie bul gestaan het nie.
Vir my was dit van geen waarde nie"
4
and further
"die
inligting se vir my niks, ek weet nie wat op die plaatjie gestaan
het nie"
5
During cross
examination he testified that the bull at the scene did not have an
ear identification tag but later went on to say,
"Dit
kan wees dat hy 'n merk aangehad het"
6
[29] Ultimately the third
defendant conceded that the bull at the scene of the accident could
have had an ear tag belonging to
its previous owner, and a
reasonable person in his position would have alighted from the
bakkie, recorded the number on the ear
tag and then checked with
reference thereto if the animal was one of the two bulls purchased
shortly before the accident. Then,
at odds with this he went on to
say that the information on the ear tag would have meant nothing to
him as he did not record
such information about bulls he purchased.
A discovery affidavit by the third defendant recorded that he could
not find documentation
pertaining to the bulls he had bought shortly
before the accident. Nor could he find their transportation
certificates. During
cross-examination the third defendant admitted
that he had not complied with the provisions of the
Animal
Identification Act No 6 of 2002
and Regulations promulgated
thereunder pertaining to the marking of bulls for identification
purposes.
[30] After observing the bull
the third defendant stopped at the accident scene and offered to
help. A group had gathered and
clean-up operations were in progress.
The third defendant could not remember interacting with Constable
Lali. He testified that
he had absolutely no recollection that the
police had spoken to him at the scene. When asked from whom then.
Constable Lali would
have obtained the information on the accident
report form recording the owner of the "cow" as Loubser
PE, and third
defendant's telephone numbers and address, he replied
that this would have been furnished by farmworkers at the accident
scene.
[31 ] The third defendant
proceeded from the accident scene to inspect the gate to the farm,
which he was relieved to find was
locked with a chain and padlock.
He also inspected the fence at the scene and for about 1 km thence
in either direction. This
too he found to be in order.
Notwithstanding his observation of the locked gate, the third
defendant said he accepted the possibility
that the bull at the
scene of the accident could have come from the farm, and he had
assumed this to be so subsequent to the
incident.
[32] During cross-examination
it was put to him that if it was found that the dead bull belonged
to the farm, and it was accepted
that the gate was locked and the
fence in good order when he inspected it, then the only possibility
was that before he, the
third defendant had arrived at the scene,
the gate had not been locked with a chain and padlock and the bull
had escaped. It
was also pointed out that the third defendant could
not have known at the time that he received the accident report,
whether
the gate was open or not. His response was that the
probability that the gate had been open, was nil. Yet curiously the
insurance
claim form completed by the third defendant after the
accident does not record that the gate was locked with a padlock and
chain
as testified by him.
[33] It was
further put to the third defendant that when he saw that the gate
was locked and the fence in good order he must have
accepted that
the chance of the bull belonging to the farm, was nil. He responded
that on the way home from the scene he
accepted
that the chance of the bull being from the farm was small. However,
in the light of this he could not satisfactorily
explain why he had
reported, as recorded on the insurance claim form, that the bull was
his. He could moreover not explain why,
when he telephoned Ackerman,
his insurance broker, later that evening he informed him, as also
recorded on the claim form, that
he suspected that the two new bulls
he had bought that day had fought and one had escaped through the
gate. He conceded that
given his testimony that the chance of the
bull being his was slight, the statement on the claim form was
far-fetched. He conceded
also that he gave his broker a version
which was at odds with the impression he had formed, adding that for
insurance purposes
he wanted to cover himself.
[34] He further explained that
at the time he completed the insurance claim form he thought it was
possible that the bull was
his. Subsequently, when a head count of
cattle revealed that all the bulls were in the kraal he had reported
to his broker that
the bull involved in the accident was not his.
But he had not informed his advocate of this.
[35] It is apparent that the
third defendant's perceptions as to whether the bull at the scene
belonged to the farm or not, vacillated
and certainly did not tally
with his evidence that the gate was locked, fences were in good
order and accordingly one of the
bulls could not have escaped. Upon
receiving the report of the accident, his perception was that it was
a rondloper" bull.
On observing the animal his perception
changed. He thought it was a commercial bull and accepted it could
have been one of his.
After checking the gates his perception
changed again and he concluded the chances of this being so were
nil. Then inexplicably
he reported to his insurer shortly after
forming this conclusion not only that the bull belonged to the farm
but furnished a
theory about how it escaped. Given these
contradictions his evidence on this aspect is neither credible nor
reliable and cannot
be accepted.
[36] The probity of his
evidence is further compromised by the fact that the insurer.
Sentrasure was inexplicably not
informed in the claim form that the gate was locked
with a chain and padlock. Had
that in fact been the case Sentrasure would certainly
have been advised of this
crucial information. When the third defendant was asked
why he did not include this
information on the claim form, he replied:
"
Edelagbare, ek kan nie die vraag antwoord nie. Ek kan nie die vraag
antwoord nie"
7
It seems to me to be improbable
that if the gate was locked, this would not have been
recorded on the claim form.
Likewise, if the third defendant was certain that the bull at the
scene was not one of his, he would
have said so on the claim form.
[37] I pause to mention that on
page 2 of the claim form the third defendant used the term
"konsertinahek'* in reference
to the gate the bull went
through. During cross examination he however testified:
"Ja Edelagbare, ek het vir
die eerste keer in hierdie hofsaak met die term, konsertinahek.te
doen gekry.
Ek
het nooit geweet wat dit is nie, ek het dit nog nooit in my lewe in
landbou gebruik nie".
This too does not reflect well
on his probity as a witness. Nor does his evidence below
concerning the locking of the
gate to the camp in which cattle were grazing, on the
date of the accident.
[38] During evidence in chief
the third defendant testified that he had locked the gate with a
chain and lock. However in cross
examination he conceded that he had
not personally locked the gates:
"...ek
stel dit aan u dat u het visueel,persoonlik, nie waargeneem of die
hek gesluit al dan nie?— Nee ek het nie daardie
dag nie"
8
He also said that as he had not
been present when the bulls were delivered to the camp at noon on
the day of the accident, he
had not personally observed if the gates
were locked. He did not doubt that his manager, Mr Hamman who was
present at the time,
would have locked the gates. Mr Hamman,
however, was curiously not called to testify that he had indeed
locked the gate on the
day in question and there remains only the
somewhat contradictory evidence of the third defendant on this
aspect. The third defendant
admitted that on the night in question
there were no labourers in the camp to monitor that animals did not
stray onto the road.
[39] As to the general locking
of gates on the farm, the third defendant explained in some detail
the procedure for securing gates
with padlocks and chains. His
instructions are that camp gates must always be secured with locks
and chains whilst there are
animals within. Once animals leave, the
chain and lock are removed and used to lock the gate of the next
camp to which they are
moved. The gate to the empty camp is then
secured with a bale rope. It is only the third defendant and farm
manager Mr Hamman
who keep keys to the locks. Surprisingly there are
only 3 locks and chains but many more gates, even though the cost of
a lock
and chain, according to the third defendant, is between
R200,00 to R300.00.
[40] Surprising also was the
third defendant's testimony that he would never install a cattle
grid to the gate at Mosselbank,
as this is not a safe measure to
prevent animals escaping. The lock and chain method employed by him.
he said, was "300
% safer".
[41] The third defendant's
memory failed him when it came to recollecting each of the
interviews with witnesses O'Reilly and Collins
in which he is
alleged to have admitted ownership of the deceased bull. In similar
vein he could not remember the conversation
with Constable Lali in
which he is also alleged to have claimed ownership of the bull.
[42] His recollections of his
meetings with O'Reilly were vague. Initially he could remember
neither the first meeting in August
nor the second in November. He
then went on to recall only the November meeting, (at which he told
O'Reilly that all the bulls
were discovered to have been in the camp
after the accident), and not the August meeting, at which O' Reilly
testified that the
third defendant admitted ownership of the
deceased bull and explained how it escaped. It was however conceded
on behalf of the
third defendant that it cannot be excluded that the
August meeting occurred.
[43] It was not put to O'Reilly
that the third defendant could not remember the interview of 15
August and no explanation was
proferred for this omission. It must
be asked that if indeed it was discovered three weeks after the
accident that none of the
bulls on the farm were missing, why then
was this not disclosed to O'Reilly at the first meeting of 15 August
2005? That meeting
was more than three weeks after the accident.
[44] In the interview with
Collins which eluded the third defendant's memory, the third
defendant is alleged, apart from admitting
ownership, to have
furnished the same explanation of the bull escaping as he did on the
claim form and to O'Reilly during the
August interview. The
corroboratory nature of this evidence, together with that of Lali
about the third defendant's admission
of ownership is. in the
circumstances accepted over the unsatisfactory and vacillating
evidence of the third defendant on this
aspect, which I have
rejected.
[45] In yet another instance
which did not reflect favourably on the probity of his evidence, the
third defendant furnished three
contradictory versions about where
the dead bull was buried. His plea recorded that the bull was buried
on the farm Welgegund.
His reply to the Plaintiffs
Rule 36
(6)
Notice recorded that the carcass was buried on Mosselbank. His
testimony however was that the animal had in fact been buried
on the
farm Kyperskraal, owned by the fourth defendant. He could not
explain why the pleadings recorded different information,
but denied
that the burial place of the bull was concealed so as to prevent the
plaintiff from exhuming the animal and checking
its identity.
[46] All in
all the third defendant was an unsatisfactory witness. His probity,
credibility and reliability were severely compromised
by the
contradictory nature of his evidence on the crucial aspects of the
identity and ownership of the deceased bull, its tagging,
the
locking of the gates on the day of the accident and his selective
and perhaps opportunistic memory (concerning his failure
to recall
his alleged admission of ownership as corroborated by three credible
witnesses). He was often not able to
furnish
explanations during cross-examination, and tended to evade questions
by giving replies which were not relevant to the
questions asked.
[47] In assessing the
probabilities I come to the view that the bull that caused the
collision belonged to the second defendant
and was one of the bulls
under the control of the third defendant. I further find that the
animal could have been identified
from its ear tag.
[48] The probabilities also
point to the gate having been negligently left open and the bull
having escaped through it. I say
this because the margin for error
and straying animals would in my view seem to be considerable in the
absence of a cattle grid,
and given the cumbersome procedure
employed on the farm for the locking of gates as testified by the
third defendant. With not
every gate to every camp having its own
separate lock, and bale rope, (the strength of which was untested in
evidence), being
used as an alternative to locks, the pre-existing
margin for error becomes exacerbated. Also, it must be recalled from
the testimony
of Attorney Kemp, there was no fence restricting the
movement of cattle to the gate. From the evidence of O'Reilly it is
evident
that there are times when the gate to the public road is
left open. The probabilities are that the night of the accident was
just such a time. The gate was negligently left open by persons in
charge and in the employ of second defendant, and in the absence
of
a cattle grid the bull would have been able to escape.
[49] In
Mkhwanazi
v
Van
der Walt
[1995] ZASCA 4
;
1995
(4) SA 589
SCA at 594A it was said:
"Ongelukking
is dit 'n feit van die lewe dat alhoewel die meeste mense die meeste
van die tyd met redelike sorg optree, nalatigheid
van "n gewone
grad "n doodgewone verskynsel is. Die ooplaat van "n
plaashek val in daardie kategorie van nalatigheid.'"
These words resonate in this
case.
In
Enselin
v
Nhlapo
[2008] ZASCA 75
;
2008
(5) SA 146
SCA at 148 J to 149 A it was said:
"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 150 C-D,
" 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
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. 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
So
too the causal negligence in the instant case.
[50] It was agreed between the
parties that in the event of the plaintiff discharging the onus of
proof, as, given my findings
above, he now has, the second defendant
as the owner of the cattle on the farm Mosselbank would be the only
party to be held
liable. This is indeed so. Whilst the third
defendant referred at times to his ownership of the dead bull, it is
common cause
that he in fact does does not own the cattle on the
farm. No basis in fact or in law was established for the relief
sought to
be granted against any of the defendants other than the
second defendant. An order of absolution
from the instance must
therefore follow as a matter of course in respect of the other
defendants.
Costs
[51] Mr McLachlan for the
defendants submitted that the plaintiff should bear the wasted costs
for 14 February 2012, the date
to which the matter was postponed at
the previous hearing on 6 December 2011. On that latter date Mr De
Vos for the plaintiff
was cross examining the third defendant and
sought a postponement to enable him to have a further consultation.
On 14 February
2012 Mr De Vos however indicated that he had
completed his cross examination and continued no further. As neither
counsel had
prepared written heads for the 14 February hearing, on
the understanding that the trial would continue on that date, no
more
than five minutes was spent in court and the day was in effect
wasted. I am of the view that it is in the circumstances proper
for
the plaintiff to bear the wasted costs for that day. For had it been
timeously conveyed on behalf of the plaintiff that the
trial was not
to continue on 14 February, arrangements could have been made for
argument to be heard on that date.
[52] I accordingly grant the
following order:
1. The Second Defendant is
causally liable for any damages sustained by the plaintiff as a
consequence of the collision between
the motorcycle driven by the
Plaintiff and a bull on 4 July 2005;
2. Absolution from the instance
is granted against the First, Third, Fourth and Fifth Defendants;
3. The Second Defendant shall
bear the costs of the matter, save for the wasted costs occasioned
on 14 February 2012;
4. The Plaintiff shall pay the
wasted costs occasioned on 14 February 2012.
Y.S. MEER J.
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