MEC Department Police Roads & Transport, FS Province v Roberts and Another (A116-2019) [2020] ZAFSHC 23; 2020 (3) SA 478 (FB) (13 February 2020)

IN THE HIGH COURT OF SOUTH AFRICA,

FREE STATE DIVISION, BLOEMFONTEIN

Appeal No.: A116/2019

In the appeal between:-

MEC DEPARTMENT POLICE ROADS & TRANSPORT,

FS PROVINCE Appellant

and

WERNER ROBERTS 1st Respondent

JAMES HARRY ROBERTS 2nd Respondent

CORAM: MUSI, JP et REINDERS, J et LOUBSER, J

JUDGMENT BY: C. J. MUSI, JP

HEARD ON: 02 DECEMBER 2019

DELIVERED ON: 13 February 2020

[1] This appeal, which is with the leave of the Supreme Court of Appeal, is against a judgment of a single Judge of this division. In the judgment, the Court a quo held the appellant liable for the full extent (100%) of the respondents’ proven or agreed damages arising from the first

respondent’s collision with a kudu on 26 July 2015. The issues pertaining to the merits and quantum were separated in terms of rule 33(4). Therefore this judgment, like the judgment of the Court a quo, deals only with the merits of the dispute.

[2] On 26 July 2015, at approximately 11:30am, the first respondent, who was a high school learner, drove a motor vehicle on the R59 road between Dealesville and Hertzogville (road). While driving, he suddenly saw an airborne object on the left side of the car and immediately thereafter collided with it. The object turned out to be a kudu that was decapitated in the process. He sustained serious injuries as a result of the collision. It was not clear whether his former girlfriend, who was a passenger in the vehicle, sustained any serious injuries.

[3] The respondents subsequently issued summons against the appellant to recover the damages suffered as a result of the collision. The second respondent is the first respondent’s father. His claim was only in respect of the past hospital and medical expenses that he incurred, with regard to the hospitalization and treatment of his son.

[4] The respondents alleged that the appellant had a legal duty to control the growth of vegetation in the road reserve adjacent to the road so that the vegetation would not pose a safety hazard for motorists and to take reasonable steps to avoid the risk of collisions, caused by motorists having restricted visibility. They further alleged that the collision was caused by the wrongful and negligent omission of the Department’s employees to clean or control the vegetation on the road reserve, in breach of their legal duty to do so. They also alleged that the vegetation obscured the first respondent’s view and prevented him from seeing the kudu until it entered the road.

[5] The appellant admitted that it was under an obligation to maintain the road reserve adjacent to the road. It further admitted that it knew that motor vehicles traversed the road; that vegetation grew in the road reserve adjacent to the road and that animals were able to traverse the veld adjacent to the road and to enter upon the road.

[6] The appellant denied liability. It pleaded that the failure to control the growth of vegetation in the road reserve could not

restrict the view of reasonable motorists using the road and thereby endangering such motorists as a result of reduced visibility. It further pleaded that the failure to control the growth of vegetation in the road reserve was neither negligently or wrongfully the cause of the alleged loss suffered by the respondents. Furthermore, that the loss suffered was too remote and insufficiently linked to the omission in order to attract liability.

[7] The Court a quo found that the omission of the appellant was wrongful, negligent and caused the loss.

[8] It concluded that, based on public and legal policy consistent with our constitutional norms, the appellant had a legal duty as alleged by the respondents and that its omission should attract legal liability if the elements of negligence and causation are proven on a balance of probabilities.

[9] It applied the well-known test for negligence, as espoused in Kruger v Coetzee[1], and concluded that a ‘diligens paterfamilias in the position of the defendant, acting through its employees, would foresee the reasonable possibility of its omission causing injury to another and would take reasonable steps to guard against such occurrence, and defendant failed to take such steps’.

[10] Regarding the issue of factual causation, it distinguished the facts of the present case from those in Crafford.[2] It stated that in Crafford:

[10.1] the collision occurred at night; the driver’s range of sight was therefore restricted;

[10.2] the driver suffered from amnesia and could not recall how the collision occurred;

[10.3] the driver was au fait with the particular road and had on several occasions prior to the collision seen kudu next to the road;

[10.4] the road passes through very thick bushveld and the court accepted that kudus are likely to abound in such area;

[10.5] there were road signs that warned against the possible presence of kudus; and

[10.6] there was no evidence relating to the direction from which the kudu came.

[11] It took judicial notice of certain facts in order to reach some conclusions, with regard to factual causation. The learned Judge said the following:

‘judicial notice can be taken of the fact that antelope such as kudu in particular are shy and avoid humans. Kudu are likely to be found in thick bushveld as Leach, JA held in Crafford supra and seldom venture into the open veld. Therefore, if the road reserve was cleared of dense vegetation, the kudu would probably have avoided the road reserve, unless it wanted to cross the road to the other side. In all probabilities the kudu bull was grazing between the trees and shrubs next to the road where he was obscured by the much taller trees and shrubs from Werner’s view. The more plausible and reasonable inference to be drawn from the proven facts is that the kudu, whose vision would have been impaired as well, was frightened by the oncoming vehicle and tried to flee, causing him to jump into the direction of the approaching Ford driven by Werner. In my view such inference can be legitimately drawn from the proven facts. It would be highly speculative to suggest that the kudu was inside the adjacent camp and then all of a sudden started to run or trot in the direction of the road, jumping the stop fence, going down the embankment, and making a beeline for the road in order to cross it right in front of the Ford. In my view factual causation has been proven.’

[12] Although the appellant challenged all the Court a quo’s findings, the strongest if not exclusive challenge was against the Court a quo’s finding regarding factual causation. Mr. Snellenburg, on behalf of the appellant, devoted most of his time to the contention that the Court a quo erred in finding that factual causation was proved. He contended that the Court a quo took judicial notice of facts that are not commonly or generally known and that its conclusion is based on speculation and not inference.

[13] Mr. Mullins, on behalf of the respondents, correctly pointed out that the appellant for all intents and purposes conceded negligence. He further contended that wrongfulness is not debatable in this matter because the appellant accepted that it had a duty of care and that it omitted to act in accordance with that duty. He also spent most of his time defending the court a quo’s finding with regard to factual causation.

[14] In my view, a positive or negative finding on the issue of factual causation would dispose of the dispute in this matter. I will assume that wrongfulness and negligence were proven. It must however be remembered that:

‘Our law has always recognized that the ‘but-for’ test should not be applied inflexibly. A court ultimately has to make a finding as to whether causation was established on a balance of probabilities on the facts of each case. Causation will not always follow whenever a wrongful and negligent omission is shown.’[3]

[15] The respondents bore the onus of proving, on a balance of probabilities, that the breach, in this case the omission, was a

factual cause of the loss. They had a duty to establish that the outcome would not have occurred if the wrongful and negligent

omission had not occurred. In Crafford it was said that:

‘The classical formulation for deciding whether an omission caused the loss suffered is the so-called ‘but for’ test. This involves an inquiry as to whether, but for the omission, the loss probably would not have occurred. In this regard, the question is not one of mathematical percentage but, rather, what is more likely…’[4]

[16] Was the Court a quo entitled to take judicial notice of the behavior and reaction of kudus? Put differently is the behavior of kudus so clearly

established and common knowledge or so easily ascertainable that it renders adducing evidence relating thereto unnecessary?

[17] In Tager[5] it was said that:

‘the doctrine of judicial notice is, by all the authorities on the law of evidence which I have consulted,… still today rightly confined within very narrow limits. Thus Phipson says that judges and juries can only take notice of matters “so notoriously or clearly established that evidence of their existence is unnecessary… Although, however, Judges and juries may, in arriving at decisions, use their general information and that knowledge of the common affairs of life which men of ordinary intelligence possess … they may not… act on their own private knowledge or belief regarding the facts of the particular case.

In this sphere of facts his (the Judge’s) duty is to judge whether the facts have been proved or not, and he may not add to nor take away from that evidence, even though he should have other knowledge of the case. Hence arises the old moot question, whether a judge who has sure information, other than what has been proved by the parties, may frame his judgment on such knowledge, contrary to the evidence given in the action. It seems hard on the one side that a judge should have to decide contrary to his own cognizance; but on the other side he just cannot be allowed freedom to decide merely according to the secret knowledge of their own mind without regard to evidence, for that would be the way to make all legal proceedings capricious, and moreover this knowledge of the judge, on which his judgment would be based, could not be taken into consideration on appeal.’

[18] The digital age has made it easier to ascertain certain facts. The advent of technology such as the internet has broadened the issues about which a Judge may take judicial notice. This however does not mean that there are no limits anymore. The question is whether those facts are readily available and reliable. In Grootkraal[6] it was put thus:

‘The court may take judicial notice of such material when it is readily available and reliable, however it may come to the court’s

attention. Emphasis must be on the material’s availability and reliability, recognizing that in our technological era information

that could in the past have been unearthed only after lengthy investigation, may now be readily available from reliable sources in digitized form. Where necessary, in the interests of procedural fairness, the parties must be apprised of the existence of such

material and its relevance to the case in hand to enable them to deal with the either at a factual level, if it is disputed, or in their submissions.’[7]

[19] The behavior of kudus generally, and specifically when frightened, is not a matter that is general information or knowledge which a person of ordinary intelligence would possess. It is something that must be proved by way of expert evidence. This was not done. The behavior of kudus is also not something that one can say is readily and reliably available. It is at the best of times difficult to definitively find that a human being would act in a particular way under particular circumstances without expert evidence. Is it easier to find that a kudu will react in a particular way when frightened? I think not.

[20] What is more, the parties were not given an opportunity to address the Court on the issues pertaining to the behavior of kudus or this specific kudu. This was procedurally unfair.

[21] In my view the Court a quo should not have taken judicial notice of the behavior of kudus. Expert evidence should have been presented about that fact or the

learned Judge should have informed the parties about his knowledge and invited them to address the Court on the issue.

[22] The Court a quo correctly distinguished the facts of Crafford from those in this matter. The distinguishing factors are relevant but not vital to the determination of whether factual causation was proved, in this matter. The vital question here, as in Crafford, is where was the kudu immediately before the collision? This question was formulated as follows in Crafford:

‘…What has to be considered is whether the scenario advanced by the appellant, namely, that the kudu emerged into the roadway from a position in which it had been obscured by the long grass in the road reserve at a time when it was too late to take effective avoiding action, has been factually established as being what probably occurred.’[8]

[23] The only witness who could assist to answer the vexed question is the driver of the vehicle. His evidence, essentially, is that immediately before the collision he caught a glimpse of the airborne object from the corner of his eye, approaching from the left. He could not take any evasive action; it was impossible for him to do so because he was driving between 120km/h and 130km/h in a 100km/h zone.

[24] As he was approaching the point of impact, he did not see anything between the beginning of the road surface and the bushes on the left. He further confirmed that if there was an object in the open space he would have seen it. It must therefore be accepted that he did not see the kudu in the road or in the road reserve. It must also be accepted that he does not know where the kudu was immediately before the collision.

[25] It was common cause that there were bushes on the road reserve as well as on the farm or land adjacent to the road reserve. That farm or land does not belong to the appellant. The undisputed evidence of the appellant’s expert witness, Mr Grobbelaar, is that this matter is further complicated by the fact that there is an embankment from the stock fence into the adjacent land, which was approximately between 100m and 150m before the point of impact. In order to make sense of the factual scenario which was presented to him he had to conjure up, at least, three possible scenarios of how the collision could have occurred.

[26] The Court a quo summarized his evidence as follows:

‘Mr. Grobbelaar measured the road reserve from the edge of the tarred road to the stock fence and found it to be 12.5 m wide. The stock fence was 1.2 m in height. He calculated stopping distances based on the vehicle speed at 100, 120 and 140 km/h, taking into consideration reaction time and calculated the stopping distances to be 98, 131 and 169 metres respectively and stopping time to be 5.5, 6.4 and 7.2 seconds respectively. He also relied on the speed of a kudu when walking, trotting and bolting as between 3.6 to 7.2, 30 to 40 and 50 to 60 km/h respectively and testified about the time it would take from the fence to the road in each case.

Based on the calculations in the previous paragraph Mr. Grobbelaar considered three possible scenarios, accepting that there was no significant vegetation in the road reserve on the western side obscuring Werner’s view. If the kudu was walking from the fence towards the road, there would have been sufficient time for Werner to avoid a collision. If the kudu was trotting from the farm, obscured by vegetation on the farm as well as the embankment, and jumped the fence and trotted towards the road, it is improbable that Werner would have been able to avoid a collision as the kudu would have crossed the road reserve within 1.1 to 1.5 seconds. Scenario is based on the assumption that the kudu trotted in a straight line towards the road and in such instance Werner would not even have time to react. The third scenario is worse for the plaintiff’s case. If the kudu bolted from the farm at a speed of between 50 to 60 km/h, jumped over the fence and ran directly towards the road it would’ve taken him a mere 0.7 to 0.9 seconds to cross the road reserve during which time he would be visible to the oncoming Werner. Obviously, there would be no time to avoid a collision. Mr. Grobbelaar conceded that it was unknown and impossible to establish where the kudu was at any given time prior to it jumping towards the road. He conceded that a kudu can jump into the air from a stationary position.’

[27] Mr. Grobbelaar explained that he could not make precise calculations because of the imponderables. That is the reason why he had to look at three possible scenarios. This was so because he did not know from where the kudu came. It was unknown whether the kudu ran and jumped over the stock fence. It was also unknown whether the kudu stood next to the road and jumped into the road. The only known fact was that it moved from the left to the right, when it was airborne.

[28] It is clear that the ‘inference’ the Court a quo drew was not fact-based. It speculated on what could have happened and used that speculation and not facts in order to draw an inference. The speculation was based on the behavior of the kudu, i.e. that the kudu was frightened by the oncoming vehicle and tried to flee causing it to jump into the direction of the motor vehicle. There was simply no factual matrix from which to reach this conclusion. In Crafford it was pointed out that:

‘Of course it is necessary at all times to distinguish between speculation on the one hand and factual inference legitimately drawn

from proven objective facts on the other. An inference of fact can only properly be drawn if the other proven facts justify doing so. If they do not, the inference sought to be drawn becomes mere speculation.’[9]

[29] It is equally impermissible to draw an inference by inadmissibility taking judicial notice of certain facts. There can, under such circumstances, be no justification for drawing such an inference. A proper factual foundation for the inference would be lacking.

[30] The Court a quo found definitively that the kudu was in the road reserve immediately prior to the collision. The facts of this case do not support such a finding. That is one of the speculative possibilities. The kudu could have approached the road running perpendicular to the movement of the car from the adjacent farm or land. It could have jumped from the bushes on the adjacent farm into the road reserve and attempted to run across the road. The driver’s view would have been obscured by the bushes on the adjacent farm causing him not to see the kudu as it jumped onto the road reserve and ultimately into the road. It could have been in the road reserve and jumped into the road.

[31] In the final analysis, taking into consideration all the speculative possibilities, the Court a quo’s finding that had the road reserve been properly controlled the collision would not have occurred, cannot be supported. In my judgment there are insufficient facts to infer that the collision would not have occurred had the vegetation on the road reserve been cut short.

[32] The appeal ought to succeed. There is no reason why the costs should not follow the success. The appellant and the respondents employed two counsel.

[33] I accordingly make the following order:

The appeal succeeds and the order of the Court a quo is set aside and substituted with the following:

1. The claim is dismissed with costs.

2. The respondents are ordered to pay the costs of the appeal, jointly and severally the one paying the other to be absolved, such costs to include the costs of two counsel.

___________________

C.J. MUSI, JP

I concur

C. REINDERS, J

P.J. LOUBSER, J

Appearances:

For the Appellant: Adv Snellenburg SC assisted by Adv Bomela

Instructed by State Attorneys

Bloemfontein

For the Respondent: Adv Mullins SC assisted by Adv Zietsman

Instructed by Honey Attorneys

[1] Kruger v Coetzee 1966 (2) SA 428 (AD) at 430E-G.

[2] Crafford v The South African National Roads Agency Limited (215/2012)[2013] ZASCA 8 (14 March 2013).

[3] Lee v Minister of Correctional Services 2013 (2) SA 144 (CC) at para 73.

[4] Ibid at para 7.

[5] R v Tager 1944 A.D 339.

[6] Grootkraal Community v Botha NO 2019 (2) SA 128 (SCA).

[7] Ibid para 21.

[8] Ibid at para 12.

[9] Ibid at para13.