WALTHER H. KAESE v F.D. THERON
In the matter between:
Heard on: 16 – 18 March 2004
Delivered on: 10 July 2008
 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.
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.
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.
The first issue must be assessed objectively in accordance with what the Court conceives to be “society's notions of what justice demands” 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?
It has been held that there is no general duty on farmers to fence off public roads traversing their properties. As long ago as 1966 Williamson JA was already pressed to find that farmers should be obliged to fence off public roads. 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.” 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 erected.
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.
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.
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.
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.
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.
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.
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 and bears that burden throughout the trial. 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; 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.
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.
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.
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.
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.
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.
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.
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.
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.
In the result, the defendant is ordered to pay the plaintiff -
1. the sum of N$31 656.10;
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
Instructed by: Andre Louw & Co
ON BEHALF OF DEFENDANT: Mr. J. Schickerling