Court name
High Court
Case name
Kaese v Theron
Media neutral citation
[2008] NAHC 147

















WALTHER
H. KAESE v F.D. THERON



CASE NO. (P) I 486/2004





2008/07/10





Maritz,
J.











DELICT


MOTOR
LAW


ANIMALS








Delict –
unlawfulness - duty of owner, lessee or occupier of farm along
proclaimed roads to maintain fence running along road – failure to
maintain and to restrict movement of stock





Motor law – respective duties of
farmers and motorists – duties of farmers to maintain fences and to
keep livestock from straying onto roads – duties of drivers to keep
lookout





Animals – delictual action for
damages caused by domesticated animals – duty of farmer to prevent
stock from straying onto roads











































CASE NO. (P) I 486/2004



IN THE HIGH COURT OF NAMIBIA






In
the matter between:






WALTER H. KAESE Plaintiff



versus



F.D. THERON Defendant







CORAM: MARITZ,
J.


Heard
on: 16 – 18 March 2004


Delivered
on: 10 July 2008




JUDGMENT



MARITZ, J.:





[1] The
issues in this delictual action for damages highlight the respective
duties of motorists and livestock farmers along national or trunk
roads in Namibia. With a developing economy placing increasing
pressure on the road infrastructure; improvements in the design and
surfacing of roads and advances in vehicle technology allowing
virtually all motorists to travel at the maximum permissible speed
along national and trunk roads, the days of the odd motor vehicle
negotiating a narrow gravel road in open country at a moderate speed
to get from one town to another are long gone. With increased traffic
volumes on roads, more and more emphasis is being placed on the
elimination or limitation of risks endangering the
safety
of road users. To enhance safety in the motoring environment,
national and trunk roads have been fenced off; objects and vegetation
plants which may impede the peripheral view of drivers have been
removed or reduced; roads have been surfaced; road signs and markings
have been put in place and the movement of livestock in road reserves
have been regulated. Livestock farmers along these roads have not
been isolated from these developments. The increase in traffic and
the permissible speed thereof has a natural and logical bearing on
the level of care required from them as reasonable persons towards
the safety of road users. At the same time, motorists must be mindful
that, with vast areas of extensive cattle farming operations in
Namibia and with game and predators abound, there is no measure which
effectively insulates roads from the danger of animals straying onto
them.








  1. It is either common cause or no longer disputed
    that the plaintiff, driving his 1994 Isuzu KB280 pickup with
    registration number N 38469 W in a Westerly direction on
    the main road between Okahandja and Karibib on the evening of 22 May
    2002, collided with a cow crossing the road from the South. As a
    result of the collision, the Plaintiffs vehicle was damaged and the
    fair, reasonable and necessary costs of repair thereof amounted to
    N$31 656.10. The plaintiff alleges that the cow belonged to the
    defendant and that he was negligent to allow the cow to stray onto
    the road. Pleading that the defendant’s negligence was the sole
    cause of the collision, the plaintiff is seeking from the Defendant
    payment of his damages suffered as a consequence.









  1. What remains in issue between the litigants is
    (a) whether the defendant had a legal duty to take measures to
    prevent the cow from straying onto the road; (b) if so, whether he
    was negligent in failing to take those measures thus causing or
    contributing to the collision and (c) whether the plaintiff’s
    negligence caused or also contributed to the collision. In what
    follows, I shall deal with these issues in that order.









  1. The
    first issue must be assessed objectively in accordance with what the
    Court
    conceives to be “society's
    notions of what justice demands”1
    in the peculiar circumstances which prevailed at the time of the
    incident. Whether the defendant had any legal duty to prevent the
    cow from straying onto the road raises mainly two ancillary factual
    issues: (i) Was the defendant obliged to maintain the fences running
    parallel with the road and separating the road reserve from the
    grazing areas on the farm and (ii) was the defendant obliged to
    restrict the movements of the cow to grazing areas outside the road
    reserve?









  1. It has been held that there is no general duty on farmers to fence
    off public roads traversing their properties2.
    As long ago as 1966 Williamson JA was already pressed to find that
    farmers should be obliged to fence off public roads.3
    He declined, holding that the time had not arrived for such a
    development. Whether “society's notions of what justice demands”
    have since changed - given the developments I have alluded to at the
    outset of this judgement – is also not necessary to answer in this
    case. It is now well settled law that “once a fence has been
    erected for the purpose of keeping animals from straying onto the
    road, there is a duty on a landowner to see that the fence is kept
    in order and free from holes or openings through which his or her
    animals can escape.”4
    This duty has also found favour with the Legislator: With the
    exception of fences erected along freeways, any fence erected along
    a proclaimed road must be maintained by “the owner, lessee or
    occupier of the farm on which or along the boundary of which” the
    fence has been erected5.









  1. The two farms, situated on either side of the road where the
    collision occurred, are known as Okauakondo-North No.10 and
    Okanapehuiri No.19, sometimes collectively referred to as “Okasise”
    - after a railway siding in the area. They were fenced off from the
    road. Both were owned by Ms. J.M.T. Tegethoff and leased from
    February 2000 to the Defendant, a neighbouring
    farmer, in terms of a relocated lease agreement. In terms of clause
    3 of the relocated agreement, the defendant was responsible to the
    lessor for the maintenance of the fences on the farms. Had it only
    been for these facts, the issue would not have arisen at all.
    Unfortunately, it is more complicated.









  1. The already strained relationship between the defendant and
    Tegethoff turned distinctly sour when she sold the farms during
    April 2000 to Mr. Gottfriedt Tsuseb. The defendant maintained that
    the relocation of the previous written lease agreement had also
    revived an earlier option which he had to purchase the farms on
    Tegethoff’s passing. He therefore sought and obtained an urgent
    interim interdict pending the outcome of a rule nisi calling
    upon Tegethoff to show cause why she should not be restrained from
    effecting transfer of the properties to Tsuseb. The rule was
    discharged on 23 February 2001 with costs. Dissatisfied with the
    outcome of the application, the defendant appealed against the
    discharge to the Supreme Court. The appeal was heard on 11 April
    2002. The defendant’s argument was apparently not well received
    during the hearing and, doubtful that the appeal would meet with any
    success, the defendant sought and obtained alternative grazing. He
    claims that, rather than waiting for the outcome of the appeal, he
    vacated the farms and moved his cattle to other pastures secured by
    agreement with a third party. He testified that he had moved his
    herds during the days following the appeal hearing and had vacated
    the farms completely by 22 April 2002 – that is, except for one
    heifer he had left behind because she was too wild to be driven
    along with the other cattle. He no longer leased or occupied the
    farms from that date on and had no further responsibilities towards
    the maintenance of the fences thereon – particularly not on the
    date, about a month later, when the collision occurred.









  1. The plaintiff’s case paints a different picture. He called in
    evidence Ms E.S. von Dewitz, the daughter of the 85 year old
    Tegethoff who had been managing her affairs in terms of a written
    power of attorney since 1999. She recalled that the defendant had
    occupied the farms with about 600 head of cattle until well after
    transfer of the farms was registered in Tsuseb’s name on 26 June
    2002 – the defendant’s appeal having been dismissed on 19 June
    2002 by the Supreme Court. According to her, the Defendant was the
    “legal lessee” until that date. As a matter of fact, she
    claimed, he still paid rent until June 2002. She flatly denied
    suggestions to the contrary, recounting that the defendant’s
    attorneys still wrote her a letter during that time offering that he
    would immediately vacate the farms if her mother would agree to pay
    her own costs in the appeal. She also remembered an argument she had
    with the defendant during July 2002 when she wanted to remove a
    pump. The defendant protested, saying that his cattle would die of
    thirst and threatened to hold her responsible.









  1. Her evidence that the defendant was still occupying the farms as a
    lessee when the collision occurred on 22 May 2002 is indirectly
    corroborated by the events which took place immediately after the
    incident. When, following a report to him by another farmer, the
    plaintiff phoned the defendant to inform him about the incident and
    about other cattle present in the road reserve, the defendant’s
    wife answered and promised to send her son to investigate. When the
    defendant’s son arrived, according to the plaintiff, he
    acknowledged that the cow was “theirs”. Defendant’s son,
    however, denied in evidence that he had acknowledged ownership and
    testified that what he had said was that it could have been one of
    his father’s cattle which had broken through a fence. I shall deal
    with this factual dispute later in the judgment. What is of
    significance at this stage of the enquiry, is that the defendant’s
    wife did not immediately deny that the cow or the other cattle
    present on the scene could be that of the defendant. One would have
    expected her to do so and not to put her son through the trouble of
    attending the scene had the defendant vacated the farms a month
    earlier. It is also common cause that the defendant’s son loaded
    the carcass on his vehicle and drove off with it to their homestead
    where the edible parts were distributed amongst their employees.









  1. I have no hesitation in rejecting the defendant’s evidence that he
    was no longer in occupation of the farms on the date of the
    collision. Whilst I am mindful that the ultimately unsuccessful
    litigation by the Defendant against her mother might have left Von
    Dewitz with a bitter taste about the affair, I have not gained the
    impression that she had coloured her
    evidence to paint the defendant black. She did not know the
    plaintiff and was only consulted shortly before the trial. Both her
    demeanour as a witness and the consistency
    of her evidence are beyond reproach. She impressed me as a credible
    witness and the spontaneity with which she recalled the lawyer’s
    compromise offer on costs of the appeal and the argument with the
    defendant about the pump, gave her evidence such a clear ring of
    truth that it must have pained the defendant listening to it.









  1. The defendant, on the other hand, did not impress me as credible. He
    occasionally contradicted himself and his evidence does not accord
    with that of his son in a number of respects. He, for example,
    denied that he had spoken to his son after the latter had returned
    from the scene. His son, on the other hand, testified that he had
    informed the defendant upon his return that he had brought the beast
    along and that the defendant had said to him that he no longer had
    cattle on the farms and that, because it was late, the workers and
    dogs could have the meat the next day. His evidence is also not
    supported by the probabilities: He did not bother to inform the
    police that the carcass had been removed by his son in error or
    offered to have it or the skin returned for ownership to be
    established; he apparently did not inform his wife at any time
    before the collision that he had removed his cattle (otherwise she
    would not have responded the way she did); neither did he inform his
    son nor Von Dewitz, etc.. I am satisfied that the evidence
    establishes on a balance of probabilities that the defendant was
    still the lessee of the farms on the date of the collision and the
    he had a legal duty to maintain the fences running parallel with the
    road in the vicinity where the collision occurred.









  1. I am also satisfied that the defendant was the owner of the cow
    involved in the collision. According to the Plaintiff and Traffic
    Officer Simon, Defendant’s son, who, on his own admission, was
    specifically sent out by Defendant’s wife to investigate whether
    it was one of their cattle, admitted on the scene that the cow was
    “theirs”. The plaintiff, who was apparently alive to the
    importance of ownership to any future claim to recover his damages,
    insisted during his evidence that if Theron Jr had not admitted
    ownership outright, he would have insisted on the hide of the beast
    being impounded to examine the brand mark thereon and identify the
    owner. The admission of the defendant’s son made in the presence
    of Officer Simon was the reason why he had been allowed to remove
    the carcass. I find it quite cynical that, after having removed and
    consumed or discarded the carcass, ownership thereof is denied for
    the first time when the plaintiff demanded payment of his damages on
    12 September 2002. Once they realised that
    the cow did not belong to the Defendant, why was the police not
    informed without delay and directions obtained from them? It would
    still have been possible at that stage to look for a brand mark. Why
    did the defendant not look for and note the brand mark6
    if, as he testified, he knew from the outset that it was not one of
    his cattle? I do not for a moment believe that the plaintiff would
    have allowed the severance and removal the hindquarters of the
    carcass before the arrival of the defendant’s son. It seems to me
    more likely that the son’s evidence to that effect is an invention
    in anticipation of uncomfortable questions about having failed to
    look for a brand mark on the hindquarters (where it must by law be
    applied) after he had “realised” it was not one of their cows.









  1. I also reject his denial that there were other cattle next to the
    road and that he was directed to remove them by officer Simon.
    Officer Simon had no interest in the matter and I did not get the
    impression that he slanted his evidence to favour any of the
    parties. I find his evidence both credible and reliable. His
    evidence corroborates that of the Plaintiff on the point. As a
    matter of fact, the presence of the other animals next to the road
    was specifically mentioned by Plaintiff to the Defendant’s wife
    during the telephone conversation he had with her shortly after the
    accident. This was not denied. By comparison, the evidence of
    defendant’s son did not strike me as credible. He was a poor
    witness. I find on the probabilities (not that it cannot be put
    higher) that his denial of the presence of other cattle next to the
    road was to avoid uncomfortable questions about their ownership;
    into which camps he had them herded; which brand marks they had and
    the like. It stands to reason that proven ownership of those cattle
    would have strongly suggested ownership of the one which had caused
    the collision. Given his discomfort and demeanour in Court and the
    inconsistencies and improbabilities inherent in his evidence and in
    comparison with others, I find that important parts of his evidence
    were devised in an attempt to extract the defendant from the
    damaging effect to the latter’s asserted defence brought about by
    his acknowledgement of ownership on the scene of the accident. I
    reject it and find that it has been established on a balance of
    probabilities that the cow belonged to the defendant – and not to
    Tsuseb or any other person as he suggested.









  1. By reason of the defendant’s legal tenancy and factual occupation
    of the farms adjacent to the road in the area where the collision
    with the cow occurred; the interests of society to create a safe
    driving environment for motorists along fenced-off public roads, the
    defendant had a legal duty to effectively limit the movement of his
    cattle by properly and regularly maintaining the fence separating
    the road from the grazing areas on the farms adjacent to the road
    where the collision occurred. Failure to comply with this legal duty
    is unlawful.









  1. The next enquiry is whether the defendant was
    negligent in failing to take those measures, thus causing or
    contributing to the collision. The plaintiff has the
    onus
    to prove negligence and causation on a
    balance of probabilities
    7
    and bears that burden throughout the trial
    8.
    The evidence establishes on a balance of probabilities that
    the defendant occupied the farms immediately adjacent to the road
    where the collision occurred; that the defendant had a legal duty to
    maintain the fences on those farms running alongside the road; that
    the duty to maintain the fences by necessary implication requires
    close inspections at reasonable intervals to detect and repair
    defects or damage to them; that the same applies to swing gates
    installed in those fences;9
    that the cow with which the plaintiff collided was the property of
    the defendant; that the defendant had the duty to take reasonable
    measures to restrict the movement of the cow so as to prevent it
    from straying onto the road and that there were about 14 other head
    of cattle close to the road in the same area.









  1. In addition, the plaintiff testified that the 5 strand fence in that
    area had many broken droppers and was in a poor state of repair.
    Although the evidence of the Defendant and his son was to the effect
    that the fences on the farms were generally well maintained, I did
    not understand any one of them to testify that he had conducted a
    close inspection of the fences near the scene of the collision
    shortly after the event. The suggestion by the defendant that he
    drove past there at a later stage and saw nothing wrong must be
    qualified by his later admission that one is unlikely to spot
    defects if driving along on the road at speed. In any event, I
    consider the Plaintiff credible and accept his evidence regarding
    the condition of the fence.









  1. Understandably, the plaintiff could not say when or how it came
    about that the cattle got into the road reserve or when the fence
    had last been inspected or repaired, but, in my view, he took the
    case as far as could have been reasonably expected of him and the
    cumulative effect of the aforementioned proven facts is such that it
    establishes at least a prima facie case of negligence against
    the defendant. When last the fence was inspected or repaired, by
    whom and what the nature of the repairs was, are all facts
    exclusively within the defendant’s knowledge. The weight of the
    plaintiff’s case created for the defendant an evidentiary duty to
    rebut the inferences of negligence and causation otherwise to be
    drawn from it.









  1. The defendant’s difficulty is self-inflicted: he shot himself in
    the foot by the defence he proffered on the other issues in the
    case, i.e. that of occupation of the farms and ownership of the cow.
    According to him, he vacated the farms by no later than 22 April
    2002 – a month before the incident. From that date onwards,
    according to him, he had no further interest in the farms or any
    duty to maintain the fences. Hence, any assertion that he had
    inspected the fences at any time during the month before the
    collision would have sounded rather contrived. As it were, the best
    he could do was to limp along with his testimony that he had last
    inspected the fences in question “a week or so” before he had
    left and that the fences had been in a good condition. By his own
    admission, he inspected the fences more than a month before the
    collision. That, in my view, falls significantly short of what a
    reasonable person would have done in the circumstances: A reasonable
    person in the position of the defendant would have foreseen that if
    the fences were not properly maintained and the gates adequately
    secured, cattle may stray onto the road causing accidents with
    resultant damages for road users and, therefore, would have taken
    reasonable steps to maintain and secure the fences and gates. This
    said, I hasten to note that I accept that the materials used in the
    construction of a fence, the design, nature and purpose of the fence
    and the age thereof are all factors which must be considered in
    determining the frequency with which one may reasonably require a
    landowner to inspect those running along a public road. I am
    therefore hesitant to lay down a measure which may be applied out of
    context in other cases. Suffice it to say that, with what appears to
    be an ordinary “government standard” 5 strand fence next to an
    important public road (such as the one between Okahandja and
    Karibib), one may reasonably expect inspections to be done more
    frequently than with one month intervals.









  1. Given the basis of his defence, the defendant could not even say
    that he had searched for or identified the possible cause for
    cattle’s intrusion into the road reserve. The best his son could
    do was to speculate about different causes. Speculation, however,
    does little to discharge the duty to rebut.









  1. The defendant’s failure to rebut the prima facie case that
    he was negligent in failing to effectively limit the movement of his
    cattle by properly and regularly maintaining the fence separating
    the road and adjacent farming area, justifies the conclusion that
    the plaintiff established negligence on a balance of probabilities.









  1. The final enquiry relates to causation and contributory negligence.
    According to the plaintiff, he was driving from Windhoek to his farm
    near Wilhelmstal along the Okahandja-Karibib road. He had building
    materials on his vehicle and the trailer it was a towing. It was
    already after the sun had set when he negotiated an incline about 50
    kilometers West of Okahandja at a speed of approximately 100 km/h.
    It was almost dark and he had already switched the headlights of his
    vehicle on. As his vehicle came over the summit of the rise, the
    beams of the headlights suddenly fell on a black cow in the middle
    of the road crossing it from left to right. He estimated the
    distance between his vehicle and the cow when he had seen it for the
    first time to be about 15 to 20 meters. At the speed he was driving,
    time before the collision did not even allow him to take evasive
    action. His vehicle collided with the cow, causing extensive damage
    to the right front section of the car. His evidence that his vehicle
    impacted with the cow approximately 20 meters from the summit of the
    rise was confirmed by Officer Simon. Simon was on patrol and the
    first to arrive at the scene.









  1. Whilst I accept that the rise was such that a driver may not be able
    to see beyond the summit if still at a distance, I am somewhat
    surprised that the plaintiff could not see further than 20 meters
    ahead of him as he approached and crossed the summit. No
    measurements have been taken and, without evidence to the contrary
    or an inspection in loco, I am unable to conclude that the
    plaintiff failed to keep a proper lookout or that he could have
    taken evasive action and that, consequently, he was partly or wholly
    to be blamed for the collision.









  1. I am therefore constrained to conclude that the evidence as a whole
    establishes on a balance of probabilities that the defendant’s
    unlawful and negligent failure to take reasonable measures to
    prevent his cattle from straying onto the road was the sole cause of
    the collision and the damages suffered by the plaintiff.









  1. In the result, the defendant is ordered to pay the plaintiff -










    1. 1. the sum of N$31 656.10;





    2. 2. interest on the sum of N$31 656.10 from the date of judgment to
      the date of payment calculated at the rate of 20% p.a. and









3. costs of suit.















MARITZ, J.









ON BEHALF OF THE PLAINTIFF: Mr. Z.J. Grobler


Instructed
by: Andre Louw & Co


ON
BEHALF OF DEFENDANT: Mr. J. Schickerling



Instructed by: Fisher, Quarmby & Pfeiffer



1
See:
Carmichele
v Minister of Safety and Security

2001 (4) SA 938 CC at 957B-C and

Minister of Law and Order v Kadir
,
1995(1) SA 303 (A) at 318E-G.




2
Compare:
Moubray
v Syfret,

1935 AD 199 at 203;
Van
der Merwe v Austin
,
1965 (1) SA 43 (T) at 47C-D.




3
Botes v Van Deventer,
1966 (3) SA 182 (A) at 195C-F.




4
LAWSA,
Vol. 1, 2
nd
ed., par. 484;
Coreejes
v Munisipaliteit van Carnarvon,

1964 (2) SA 454 (C) at 457B-C and
Jamneck
v Wagener
,
1993 (2) SA 54 (C) at 60D-I.




5
Section
42(1)(a)(i) of the Roads Ordinance, 1972 provides: “
Any
fence erected in accordance with or in terms of the provisions of
this Chapter and any other fence erected along or across a
proclaimed road, shall … be maintained properly … by the owner,
lessee or occupier of the farm on which or along the boundary of
which such fence has been erected.




6
C.f.
R v Maduna, 1946 EDL 334 to the effect that brand marks do not fade
completely.




7
See:
Jamneck v Wagener, supra, at 65B




8
South Cape Corporation (Pty)
Ltd v Engineering Management Services (Pty) Ltd

1977 (3) SA 534 (A) at 548B




9
Compare
also the meaning of “fences” in s. 42(1) of the Roads Ordinance,
1972