Mofokeng v Moloi (A106/2014) [2014] ZAFSHC 140 (4 September 2014)

Mofokeng v Moloi (A106/2014) [2014] ZAFSHC 140 (4 September 2014)

The appellate court found that the magistrate erred in granting absolution from the instance, as the appellant had established a prima facie case of negligence against the respondent. The evidence showed that the respondent's cow was on a fenced public road, which is prohibited by Regulation 313 of the National Road Traffic Act. This regulation creates a statutory presumption of negligence, shifting the onus to the respondent to rebut the inference. The respondent failed to lead any evidence or seriously challenge the appellant's version. The court held that absolution should not be granted lightly and only in clear cases. The matter should have proceeded to allow the respondent to answer...

Citation
[2014] ZAFSHC 140
Parties
Appellant: Fallo Samuel Mofokeng; Respondent: Phineas Letlatsa Moloi
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
4 September 2014
Case Number
A106/2014
Procedural Posture
Civil Appeal / Appeal Against Magistrate's Order of Absolution From the Instance
Outcome
Appeal upheld; order of absolution from the instance set aside; matter remitted to trial court.
Judges
E. K. Tsatsi, M. H. Rampai
Legal Topics
Absolution From the Instance, Negligence, Road Traffic Regulation 313, Liability for Stray Animals
Civil Procedure Delict Absolution From the Instance Negligence Road Traffic Regulation 313 Liability for Stray Animals

Case Brief

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Parties

Fallo Samuel Mofokeng

Appellant

Phineas Letlatsa Moloi

Respondent

Procedural Posture

Civil Appeal / Appeal Against Magistrate's Order of Absolution From the Instance

Legal Issues

  1. 1 Whether the appellant established a prima facie case of negligence against the respondent.
  2. 2 Whether absolution from the instance was correctly granted by the magistrate.
  3. 3 Whether Regulation 313 of the National Road Traffic Act creates a presumption of negligence for owners of stray animals.

Ratio Decidendi

The appellate court found that the magistrate erred in granting absolution from the instance, as the appellant had established a prima facie case of negligence against the respondent. The evidence showed that the respondent's cow was on a fenced public road, which is prohibited by Regulation 313 of the National Road Traffic Act. This regulation creates a statutory presumption of negligence, shifting the onus to the respondent to rebut the inference. The respondent failed to lead any evidence or seriously challenge the appellant's version. The court held that absolution should not be granted lightly and only in clear cases. The matter should have proceeded to allow the respondent to answer...

Court Disposition

Appeal upheld; order of absolution from the instance set aside; matter remitted to trial court.

Orders

  • The appeal is upheld.
  • The order of the court a quo is set aside and substituted with: 'The defendant’s application for absolution from the instance is refused.'