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.
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.
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.
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 mark 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.