Coetzee v Steenkamp (579/2009) [2010] ZANCHC 25 (18 June 2010)

IN

THE HIGH COURT OF SOUTH AFRICA

(Northern Cape High Court, Kimberley)

Case No: 579/2009

Heard: 13/05/2010

Delivered: 18/06/2010

In the matter between:

ANDRIES MARTHINUS COETZEE Plaintiff

v

KOBUS STEENKAMP Respondent

JUDGMENT

KGOMO JP:

[1] This action has its cause in an admittedly illegal hunting expedition that went horribly wrong when the vehicle in which plaintiff was a passenger capsized and he sustained the following injuries: a head injury; a fractured left maxillo and a fractured right orbit. The plaintiff now wishes to recover R493 000-00 as compensation from the defendant for his alleged negligent or reckless driving.

[2] On 18 August 2007 the plaintiff, an adult male (born on 08 July 1977 and currently employed at Anglo Platinum Mine in Rustenburg), and the defendant, an adult male (born on 09 August 1963), a farm manager, and five of their friends congregated on a farm called Farm Smythe, situated in Olifantshoek, district Kathu, Northern Cape Province, owned by Controdali Close Corporation.

[3] The evidence establishes that the congregation was impromptu in the sense that the non-farm dwellers were not invited by the defendant or Controdali CC to Smythe but that a friend who knew a friend invited that friend for an excursion to the farm. The plaintiff, in particular, accompanied his brother-in-law who was acquainted with the defendant. The purpose of the excursion remains obscure but immaterial. The group entertained themselves in typical South African summer outdoor fashion. It is at this juncture that the group decided to go spring-hare hunting. None of them had the permission of Controdali CC to hunt on its farm.

[4] It was common cause that the hunting expedition commenced around 20h30 during that evening (18/08/2007). In order to achieve their objective, as it turned out, they required and infact employed the following equipment:

4.1 Transport, in the form of a van (bakkie), which the defendant supplied and was the driver of;

4.2 Hunting riffles. Two of them were provided, at least one of which was owned by the defendant. It was common cause that the firearms were licensed;

4.3 A battery generated hunting search-light or shooting-lamp, which was also provided by the defendant. The battery was admittedly quite sizeable, apparently a car battery.

[5] The plaintiff and five others were seated at the back of the bakkie, on the canopy-less bed thereof which was equipped with grills (trallies), and the defendant and another were upfront. Although the plaintiff claims amnesia, induced by the accident on the question as to whether he shot any wild animal during the hunt, the acceptable evidence, which he did not dispute, is that he shot and killed one hare. He was, in the event, unquestionably a hunter.

[6] The defendant has raised the following defences to the claim:

6.1 He disclaimed negligent culpability, but in the alternative imputes contributory negligence on various grounds to the the plaintiff;

6.2 Volenti no fit iniuria or voluntary assumption of risk or that which is done with consent, within legal limits, is not wrongful or injurious. The defendant

pleads that the plaintiff, an adult in his full senses, consented to the hunting fully cognizant of the inherent dangers and risks

attendant to driving at night in rough terrain (abnormal conditions) in pursuit of their illusive quarry;

6.3 That the plaintiff is precluded in law to claim from the defendant in terms of the principle nemo ex suo delicto meliorem suam conditionem facere potest (Nemo ex suo delicto) or no one can improve his or her own condition by means of a crime or through a crime.

[7] At the inception of the trial, for good reason, the merits were agreed to be separated from the quantum, in terms of Rule 33(4) of the Rules of Court. There was a further preliminary intervention. During the opening address I enquired from Adv J G Gilliland, for the plaintiff, whether, if upheld the nemo ex suo delicto defence (para 6.3 above) would not be dispositive of the entire case. He was indulged a short adjournment to consider his position after which counsel mutually adopted the approach that sought to limit brief evidence to this issue only to lay a basis for legal argument. The understanding was that if the nemo ex suo delicto defence was unsuccessful evidence would be adduced on the rest of the issues. To this end only the plaintiff testified in support of his case and for the defend one Mr Marius M J Hatting testified.

[8] Apart from what has been captured as common cause or undisputed matters hereinbefore, the plaintiff testified that he grew up in a South African farming environment (rural tenements). He has, since 1995, hunted nocturnally four or five times prior to the Farm Smythe, Olifantshoek, expedition. These farms are, as he called them, Louis Trichardt (Makhado), Potgietersrus (Mokopane) – both in the Limpopo Province – and in Stella (district Vryburg), in the North West Province, where at the latter place he served as farm manager. He attained standard 8 (Grade 10) at school and acquired an agricultural extension officer’s or such-like agro-certificate.

[9] The plaintiff testified further that he did not obtain a hunting licence or permit for this adventure. The licence issue was not broached at all by anyone of the hunters. On his part he was blissfully ignorant of the fact that a permit was required by law to hunt game. This raw display of ignorance is devoid of all credence, particular regard being had to plaintiff’s curriculum vitae narrated by himself. When it comes to life’s experiences one can justifiably ask: Where does this man come from? Does he not listen to the radio or watch TV (50/50 programme) or read newspapers or other reading material related to his occupation or what is his farming background or agricultural training and experience worth? This is the sort of knowledge that less sophisticated people also glean from the mouths of the populace they interact with on a daily basis. I would have pondered a bit if plaintiff endeavoured to persuade me that he was a hunter-gatherer member of the khoisan group who have not come into contact with what we (who think we know better) would like to call “civilization”.

[10] Mr Gilliland latched onto this convoluted ignorance by his client to urge upon me to find that the plaintiff, in the premises, did not act wrongfully and cannot be said to have been in pari delictum. The Appellate Division had this to say on the maximum “ignorance of the law is no excuse” in S v De Blom 1977(3) SA 513 (A) the Court decided, as captured in the head note at 514E-F :

“At this stage of our legal development it must be accepted that the cliché that "every person is presumed to know the law" has no ground for its existence and that the view that "ignorance of the law is no excuse" is not legally applicable in the light of the present day concept of mens rea in our law. But the approach that it can be expected of a person who, in a modern State, wherein many facets of the acts and omissions of the legal subject are controlled by legal provisions, involves himself in a particular sphere, that he should keep himself informed of the legal provisions which are applicable to that particular sphere, can be approved.”

At 515F-H the summary of the Court’s decision reads in part in the head note:

“In the interpretation of the definition of a statutory offence it is presumed, until the contrary appears, that the Legislature did not wish to make an innocent illegal act punishable ---. In such a case it must be accepted that, when the State has led evidence that the prohibited act has been committed, an inference can be drawn, depending on the circumstances, that the accused willingly and knowingly (i.e. with knowledge of the unlawfulness) committed the act. If the accused wishes to rely on a defence that she did not know that her act was unlawful, her defence can succeed if it can be inferred from the evidence as a whole that there is a reasonable possibility that she did not know that her act was unlawful; and further, when culpa only, and not dolus alone, is required as mens rea, there is also a reasonable possibility that juridically she could not be blamed, i.e. that, having regard to all the circumstances, it is reasonably possible that she acted with the necessary circumspection in order to inform herself of what was required of her in connection with the question of whether or not permission was required to take money out (of the country). Should there be, on the evidence as a whole, i.e. including the evidence that the act was committed, a reasonable doubt whether the accused did in fact have mens rea, in the sense described above, the State would not have proved its case beyond a reasonable doubt.” See also S v Hlonza 1987(1) SA 25(A) at 31H to 32H.

I therefore conclude that the plaintiff cannot invoke his professed ignorance of the law to excuse his illegal hunting.

[11] THE

STATUTORY PROVISIONS CONTRAVENED OR RELEVANT TO THE NEMO EX SUO

DELICTO DEFENCE

11.1 Section 29 of the Northern Cape Nature and Environmental Conservation Ordinance No 19 of 1974, insofar as it is relevant provides that:

“29. Prohibited ways of hunting. – No person shall unless he is the holder of a permit authorizing him to do so, hunt any wild animal-

(b) with the aid of artificial light;

(e) during the period one hour after sunset on any day and one hour before sunrise on the following day;

(h) by means of a fire-arm which discharges a rim-fire cartridge of a caliber less than five comma six millimeters;

(j) by means of a set gun or any similar contrivance;”

11.2 Conduct in contravention of s85 is criminalized and s86 provides the penalties – hefty ones.

11.3 S2 defines the following concepts as follows:

“Hunt” – in relation to any wild animal means by any means whatsoever to hunt or search for, to kill, capture or attempt to kill or capture, or to pursue, follow or drive with intent to kill or capture, or to shoot at, poison, lie in wait for or willfully

disturb.

“Licence” – means a licence issued under this ordinance.

“Permit” – means a permit issued under this ordinance.

“Wild animal” – means any live vertebrate or invertebrate animal --- belonging to a non-domestic species and includes any such animal which is kept or has been born in captivity.

It was common cause that a spring-hare is a wild animal.

[12] Mr Gilliland realizing the tenuous nature of the plaintiff’s ignorantia lex defence fought the following rearguard action: The nemo ex suo delicto principle is aimed at preventing a wrongdoer from gaining a benefit from his OWN wrongdoing, he contended, relying on Stauffer Chemicals Chemical Products Division of Chesebrough-Ponds (Pty) Ltd v Monsanto Co 1988(1) SA 805(T) at 812. He argued that the plaintiff’s alleged criminal act of illegal hunting must be distinguished from

the defendant’s delictual act of driving negligently. According to him the plaintiff was a mere passenger on the defendant’s van, driven by the defendant and was not party to the delictual act and that the confluence or coincidence with the illegal hunting is a non sequitur – of no consequence. He relies inter alia on the following dictum in Adam and Another v Latiff 1970(3) SA 253 (N) at 255H – 256A:

“In the present case the right to compensation does not flow from any delict or offence committed by the passenger. It flows from the negligent act committed by the driver, and the driver alone. It cannot be said that the passenger is a particeps criminis in relation to the cause of this action. He certainly made himself a party to committing an offence by paying the unlawful fee, and while being carried by the driver he can be said to be aiding and abetting the driver in the commission of an offence, but the cause of this action does not arise from the illegal acts on the part of the passenger. It arises solely from the negligent act, the negligent driving, of the driver of the vehicle.”

[13] The Monsanto case (supra) and the line of cases in the same vein are clearly distinguishable from the case at hand in the following respects: The plaintiff (Mr Coetzee) conspired with the entire group of hunters to hunt a particular species of wild animal. They did not have a permit or licence to hunt. The plaintiff indeed hunted and shot one spring-hare. The hunting could not take place without the vehicle

that capsized. The vehicle had to be driven to ferry the hunters, their rifles and the hunting shooting-lamp which was monitored to a heavy battery. The search-light was manually swivelled by plaintiff and those at the back of the van to focus the light on fleeing or stationary quarry. It is these various components or elements of equipment that made the hunt possible. Jettison one set, least of all the vehicle, and you end up with a farce.

[14] I am satisfied that the plaintiff was not a passive passenger, in the same way that a cash-in-transit robber armed with a fire arm and who is not a driver, cannot conceivabley have recourse to the driver who speeds away to avoid the police with their ill-gotten spoils. If of course the defendant harmed the plaintiff intentionally it would be an entirely different matter.

[15] Adv A H Burger, for the defendant, has drawn attention to Wimbledon Lodge (PTY) Ltd v Gore NO and Others 2003(5) SA 315 (SCA) and submitted that it finds application in this case. At 321F-I (paras 10 ) the following is stated:

“[10] Can this situation be countenanced? I think not. I am content to start with the Roman law. In D50.17.134.1 Ulpian tells us 'Nemo ex suo delicto meliorem suam conditionem facere potest', rendered in Watson's translation as: 'No one is allowed to improve his own condition by his own wrongdoing.' This fundamental principle has been applied expressly at least twice in this Court, in Principal Immigration Officer v Bhula 1931 AD 323 at 330 and Parity Insurance Co Ltd v Marescia and Others 1965 (3) SA 430 (A) at 433 and 435. It finds exact application to this case. Scharrighuisen, through his corporations, by means of his fraud, obtained at least apparent ownership of the contested sections. That carried with it the apparent right to direct the votes of the owners of those sections. This vote was then used to smother an attempt to reverse the consequences of the fraud; ie his successors, the liquidators, in casting their votes were using his estate's strengthened position, obtained by fraud, to maintain the hold over those sections.”

[16] I am satisfied that in this matter the plaintiff sought from this Court to accord him its imprimatur to benefit from his own wrongful act, which the Supreme Court of Appeal has enjoined a person cannot do, and which precedent binds this Court. In Brooks v Minister of Safety and Security 2009(2) SA 94 (SCA) at 100E –F (para 16) in a different context but on the same principle Ponnan JA remarked:

“[16] It is true that in matters of human behaviour we are often told not to judge by results, but in law, when considering whether a contention is well founded, the absurdity of the results to which it will give rise is not an immaterial consideration. That a person in the position of Brooks could by his own intentional wrongful act create in favour of his dependants a cause of action that would not otherwise exist is nothing short of preposterous; indeed in my view that would be a dangerous proposition. After all it is a trite principle of our law, that a person should not be allowed to benefit from his/her own wrongful act.”

(My emphasis).

[17] I accordingly decide the issue of Nemo ex suo delicto meliorem suam conditionem facere potest (No one is allowed to improve his own condition or to benefit by his own condition) in favour of the defendant with costs, which costs follow the result.

ORDER

I make the following order:

1. The preliminary issue that “No one is allowed to improve his own condition or to benefit by his own condition” (Nemo ex suo delicto meliorem suam conditionem facere potest), is decided in favour of the defendant (Mr Kobus Steenkamp).

2. The plaintiff’s action is dismissed with costs on a party and party scale.

________

F

DIALE KGOMO

JUDGE

PRESIDENT

Northern Cape High Court, Kimberley

On behalf of the Applicants: Adv J G Gilliland

Instructed by: Haarhoffs Inc

On behalf of the Respondent: Adv. A J Burger

Instructed by: Van Der Wall & Vennote