Tomasi v Bhangazi Horse Safaris CC (8496/2007) [2009] ZAKZHC 11 (20 February 2009)

IN THE HIGH COURT OF SOUTH AFRICA

DURBAN AND COAST LOCAL DIVISION

CASE NO: 8496/2007

In the matter between:

DICKY

TOMASI APPLICANT

and

BHANGAZI

HORSE SAFARIS CC RESPONDENT

______________

JUDGMENT

VAN HEERDEN AJ

On the 2nd March 2006, during the course of the morning, plaintiff, Mr. Dicky Tomasi and his companion Orrietta Callegaro found themselves at a public car park, immediately adjacent to the beach at St. Lucia, KwaZulu Natal. They were from Italy and on holiday in South Africa, for the third time in so many years. They had arrived in St. Lucia two weeks earlier and the day before, whilst walking on the beach, they encountered a number of people enjoying a horse ride. Plaintiff was interested and approached the lady who, to him, appeared to be in charge of the ride. She explained to plaintiff that he and his companion were welcome to join a ride scheduled for the following day and, if they were inclined to do so, should be at the car park at a specified time. Arrangements were then made to that effect.

In the event the next day, as arranged, plaintiff and his companion arrived at the car park. All of this is common cause. It is also common cause that not long afterwards plaintiff had sustained a serious injury in the process of which he lost his right eye when kicked in the face by a horse named Chester. Almost all of the other events preceding and leading up to the accident are by and large in dispute. It is common cause, however, that immediately after the accident plaintiff, then a pensioner aged 68, was taken to hospital in Empangeni where his right eye was removed. He was the following morning transferred to Entabeni hospital in Durban where further neuro surgery was performed on him.

Plaintiff in due course instituted action against the owners of the horse, Bhangazi Horse Safaris CC, who conducts and operates horse back safaris and rides in the greater St. Lucia Wetland Park, Northern KwaZulu Natal. In his particulars of claim plaintiff alleges that he was kicked by Chester and by doing so Chester acted contra naturem sui generis or because of some inner vice. In the alternative plaintiff alleges that defendant attracted an ex delicto duty of care in respect of plaintiff to, inter alia, properly and skilfully supervise and oversee plaintiff’s interaction with

Chester and to render such assistance as was necessary at the time plaintiff attempted to mount the horse. It was further alleged that the duty of care which defendant allegedly attracted extended to the taking of reasonable and necessary steps to prevent the risk of injury to plaintiff in consequence of possible panic, excitement and/or agitation on the part of the horse occasioned by the unruly and aggressive behaviour of three dogs (under control of defendant’s servants) in it’s immediate vicinity at the time plaintiff attempted to mount the horse. Plaintiff alleged that defendant failed in its said duty in both aforesaid respects.

Defendant denied the aforesaid allegations and alleged, in return that plaintiff prior to the accident, in any event, indemnified the defendant in writing from liability for the kind of liability and damage respectively alleged and claimed by plaintiff.

In his opening address Mr Pammenter, who appeared for plaintiff, confirmed the intention of the parties to proceed on liability only and I duly made such an order in terms of the provisions of Rule 33(4). He also confirmed that plaintiff would indeed proceed with the matter on the basis foreshadowed in the pleadings.

The plaintiff’s ex delicto claim.

In his evidence plaintiff mentioned that four people were to go on the horse ride that fateful morning. He said there was a French couple, his companion and him. He testified that the French couple mounted their horses first whereupon he, together with employees of defendant, assisted Ms Callegaro to mount her horse. Plaintiff testified that he thereafter attempted to mount his horse but failed in his first attempt because the stirrups were adjusted too high. He testified that as he was about to do so again, three dogs which he had noticed on the beach the previous day in the company of the riders, arrived at the scene. He testified that they were involved in what to him appeared to be a play fight, growling and barking and in the process landed up underneath Chester. At that point in time, plaintiff said, he was standing next to the horse, on its left-hand side, and facing it. He said that as he was bending slightly forward and to his right to see what was going on underneath his horse, Chester made a sudden movement with his left rear leg and kicked him in the face, causing the injury alluded to above.

Ms Callegaro, plaintiff’s companion, corroborated plaintiff’s version in every respect, more specifically in relation to the dogs landing up beneath Chester, growling and barking. I should add that both plaintiff and Ms Callegaro testified that when they arrived at the car park, the dogs were present but keeping themselves busy some distance away from where the horses were waiting to be mounted.

Ms Rebecca Sebag-Montefiore, now 25 years old, testified for the defendant. She said she was employed by defendant as a Horse Manager approximately three years before the incident took place. She confirmed that she was the person the plaintiff had spoken to the previous day on the beach. She confirmed that on that day her three dogs accompanied her on the ride, as they did on almost a daily basis. She described the dogs as a Jack Russell and a Fox Terrier, two small but fully grown animals, and a cross Wiemaraner puppy of about six months. She conceded that the dogs were present at the car park on the day in question but testified that they were sniffing around some overflowing rubbish bins, some distance away from where the horses were gathered. She denied that they were play fighting anywhere near the horses. Ms Montefiore testified that she was so positioned at the time of the incident that she could clearly see the events unfold. She mentioned that by the 2nd March 2007 she had already given notice of her resignation to defendant and that the person she was teaching to take over as horse manager from her, Mr Sakhile Mthabela, was to manage the ride that morning under her supervision. She confirmed that plaintiff failed in his first attempt to mount Chester and that he attempted to do so again. At that stage, according to her, Mr Mthabela was holding the reins of Chester and

standing in front of the horse. Another assistant, one Themba Khubeka, was standing on the off- side (right hand side) of Chester, holding the stirrup on that side in order to stabilise the saddle so as to ease the passage of plaintiff onto the horse. Ms Montefiore described how Chester, at the moment plaintiff was in the process of mounting, suddenly moved forward and bucked slightly. She testified that plaintiff in the process lost his balance and fell backwards to the ground. It was during this that the left rear hoof of Chester made contact with the plaintiff’s face and caused the injury. She testified that the whole incident took place in a short space of time and that she was unsure of whether, in the process of bucking, Chester’s hoof made contact with the plaintiffs face as it was going up or coming down. She said the incident happened too fast for her to be certain. Ms Montefiore was however adamant that at the critical time the dogs were nowhere near Chester and most definitely not barking and growling in a mock-fight directly underneath Chester.

Mr Mthabela corroborated the evidence of Ms Montefiore in almost every material respect. He testified, however, that as plaintiff landed near Chester’s left rear leg the latter gave a “small kick” to the side, which resulted in Chester’s left rear hoof making contact with plaintiff’s face. Mr Mthabela, like Ms Montefiore, was however adamant that at the time of the incident no dogs were present in Chester’s immediate vicinity and he was certainly not startled by them.

It soon became apparent that the whereabouts of the dogs in question became an issue in the determination of the question whether defendant attracted any delictual liability. In this regard the court is faced with mutually destructive

versions. The thrust of plaintiff’s case in this regard is that the dogs were present directly underneath Chester and that they played a critical roll in the conduct and reaction of Chester. Defendant’s version is that the dogs were nowhere near Chester at the critical moment and played no part in the unfortunate incident.

The said mutually destructive versions cannot co-exist. In the matter of National Employers’ General Insurance Co Ltd versus Jagers 1984(4) 437 (ECD) guidance is given on how to determine issues in such circumstances. At 440 D-G the full bench, through Eksteen AJP expressed itself as follows:

”It seems to me, with respect, that in any civil case, as in any criminal case, the onus can ordinarily only be discharged by adducing credible evidence to support the case of the party on whom the onus rests. In a civil case the onus is obviously not as heavy as it is in a criminal case, but nevertheless where the onus rests on the plaintiff as in the present case, and where there are two mutually destructive stories, he can only succeed if he satisfies the Court on a preponderance of probabilities that his version is true and accurate and therefore acceptable, and that the other version advanced by the defendant is therefore false or mistaken and falls to be rejected. In deciding whether that evidence is true or not the Court will weigh up and test the plaintiff’s allegations against the general probabilities. The estimate of the credibility of a witness will therefore be inextricably bound up with a consideration of the probabilities of the case and, if the balance of probabilities favours the plaintiff, then the Court will accept his version as being probably true. If however the probabilities are evenly balanced in the sense that they do not favour the plaintiff’s case any more than they do the defendant’s, the plaintiff can only succeed if the Court nevertheless believes him and is satisfied that his evidence is true and that the defendant’s version is false.”

Wessels JA in National Employer Mutual General Insurance Association versus Gany 1931 AD 187 at 199 was perhaps more briefly to the point in stating that:

“where there are two storeys mutually destructive, before the onus is discharged, the court must be satisfied upon adequate grounds that the story of the litigant upon whom the onus rest is true and the other false”.

Dealing with the matter at hand Mr Pammenter correctly conceded that plaintiff is saddled with the burden of proving the liability of the defendant on a delictual basis. In the present matter this also involves proving the presence of the dogs in the immediate vicinity of Chester at the critical moment. Mr Pammenter in argument emphasized the point that it was improbable that Chester would have behaved in this manner, if it hadn’t been startled or provoked by dogs in its immediate vicinity. This argument, at first, seemed attractive. However, one needs to keep in mind where the plaintiff was standing, on his version, when he was kicked. The evidence indicates that plaintiff, a man about 1.7 metres tall, was standing on the left hand side of Chester, about to mount the horse for a second time. (According to Ms Montefiore a horse is mounted at its girth, which is just behind the front legs), In any event as plaintiff was about to mount Chester he noticed the dogs approaching, barking and growling, and disappearing underneath Chester. In his evidence he said that he bent his knees slightly in order to see what was happening underneath the horse. In the witness box he demonstrated that in the process he also bent his upper body slightly forward and to his right. Be that as it may it was clear that plaintiff’s head must have been more than one metre above the ground when he, on

his version, was kicked in the face. Mr Glyn Redgrave, an equine behaviourist, who gave evidence for plaintiff, explained that for Chester’s right rear hoof to have made contact with plaintiff’s face at this height, Chester would have had to buck quite aggressively and in the process execute what he termed a cow-kick and which he described as a kick to the side and back. Mr Redgrave did not elaborate on the extent a horse would be able to elevate his rear legs to the side in order to execute such a kick. Ms Montefiore, whose extensive experience with and knowledge of horses went unchallenged, in describing the extent to which a horse would be able to execute a kick to its side, said:

“there is a very very very small limited amount of movement to the side and a very low movement”.

I have no reason to disbelief her evidence in this regard nor do I have any reason to disbelief Mr Redgrave’s evidence. The fact remains though that for Chester’s hoof to have made contact with plaintiff’s face, it would have had to buck quite extensively. In this regard it is significant that neither plaintiff nor his companion described such conduct on the part of Chester. How both of them could have missed such aggressive and violent conduct on the part of Chester remained unexplained. On the other hand, the defence version that plaintiff fell over backwards and landed near the left rear leg of Chester ties in with Mr Mthabela’s version that it was a small sideways kick by Chester which made contact with plaintiff’s face.

In all I am satisfied that the balance of probabilities do not favour plaintiff’s version that the dogs were in the immediate vicinity of Chester at the critical moment or that Chester was somehow provoked by them into reacting in the manner he allegedly did. I am also of the view that the balance of probabilities does not favour plaintiff’s version on how it happened that he was allegedly kicked in the face by Chester. On the contrary, I find defendant’s version in this regard more probable. I am further of the view that the aforesaid balance of probabilities was not somehow affected or disturbed by the credibility, or the lack of it, on the part of anyone of the witnesses who testified on these aspects. Both Mr Pammenter and Mr Jeffreys, who appeared on behalf of the defendant, conceded in argument that the credibility of none of the aforesaid witnesses could be validly attacked. This is also my view.

Mr Pammenter argued, in the alternative, that even on the defendant’s version there was room for a finding of negligence on the part of those employed by defendant to assist plaintiff in mounting Chester. His reasoning is that Chester should have been prevented from moving forward in the mounting process. He argued that it was this forward movement of the horse that caused plaintiff to lose his balance and set in motion the chain of events which culminated in plaintiff’s injury. Mr Redgrave was extensively questioned on specifically this tendency. He testified that it was generally a bad habit of horses to sometimes move forward in the mounting process and he said that they would continue to do so until taught otherwise. He explained that a horse could also be prevented from moving forward by positioning someone in front of the horse to hold the reins. Mr Redgrave said in this scenario such person would then be in position to “reprimand” the horse should it motion to move forward. He

explained this as follows:

“Where everyone gets on, gets off. If that horse had motioned to move forward, then that person would have seen that that horse was moving slightly forward, because I mean our body language is where all the answers to all the problems lie. If the horse had motioned to move forward then that person would have reprimanded the horse to “stand”.

Mr Redgrave testified that in the absence of a mounting block to assist inexperienced riders (as was the case in this present instance) there should either be someone on the left hand side (near side) of the horse giving the rider a so-called leg-up or someone on the off-side of the horse holding down the stirrup to counter balance the weight. On being asked whether there should be anybody there to prevent the horse moving forward he answered:

“depending on the horse, my Lord. If it’s a high spirited horse, then someone should be holding the front and someone to help the person mount, so then that required two people. A very calm horse may not require anyone to mount.”

Ms Montefiore described the horses which they arranged on the day in question as calm, easy to manage and obedient. She said they were called “anybody’s

horses” because anyone could get on and ride them. She testified that she knew Chester well, and had often used him herself because she enjoyed riding him. She said that prior to him being used for rides by defendant he was used at the Umfolozi Bird Park for pony rides and children’s lessons. She further confirmed that on the day in question Mr Mthabela and Mr Mthembu helped the guests onto their horses and that Mr Mthabela was positioned in front of Chester, holding the reins just below the bit and that Mr Mthembu was on the off side of the horse holding the stirrups when plaintiff attempted to mount Chester on both occasions. She said Chester had never been involved in such an incident.

The question however remains whether defendant’s employees were somehow negligent in the exercise of their control over Chester on the day in question and, if so, whether such negligence caused or contributed to plaintiff’s injuries.

The classic test for negligence was set out in Kruger versus Coetzee 1966(2) SA 428 (AD). Holmes JA said the following at 430 E – H:

“For the purposes of liability culpa arises if -

(a) a diligens paterfamilias in the position of the defendant -

(i) would foresee the reasonable possibility of his conduct injuring another in his person or property and causing him patrimonial loss; and

(ii) would take reasonable steps to guard against such occurrence; and

the defendant failed to take such steps.

This has been constantly stated by this Court for some 50 years. Requirement (a) (ii) is sometimes overlooked. Whether a diligens

paterfamilias in the position of the person concerned would take any guarding steps at all and, if so, what steps would be reasonable,

must always depend upon the particular circumstances of each case. No hard and fast basis can be laid down. Hence, the futility, in general, of seeking guidance from the facts and results of other cases”.

As already indicated above Ms Montefiore was the manager of the defendant’s horses and Chester was well known to her. She said that he was a calm and obedient horse, easy to ride and had never before made himself guilty of the conduct he displayed on the day in question. To her, Chester’s conduct was unexpected. In other words, unforeseen. Her evidence in this regard was not seriously challenged, if at all. I therefore have no hesitation in accepting her version to this effect. The question still is whether it was reasonable on her part not to have foreseen the kind of conduct displayed by Chester on the day in question. The test is, after all, what the reasonable person in the shoes of Ms Montefiore would have foreseen in relation to Chester’s conduct. Even if measured against the conduct of such reasonable person I remain unconvinced that Ms Montefiore was, somehow, at fault in not having foreseen the possibility of Chester reacting the way he did. Even if I am wrong in this regard I am nevertheless of the view that the steps taken by defendant to manage and control the horses, and in particular Chester, were reasonable in the circumstances. The slight movement forward by Chester, as the plaintiff attempted to mount him for the second time, was a movement which, in my view, could not reasonably have been prevented in the circumstances. Mr Mthabela testified that he stood in front of Chester at the critical time, holding him by the reins specifically to prevent Chester from moving forward. He testified that he did his job properly but that Chester nevertheless managed to move slightly forward in the mounting process, not more than a half a metre or so, and that he was unable to do anything more to prevent this. It was unfortunately this slight sudden

forward movement which in my view triggered the sequence of events which resulted in plaintiff’s injuries. In my view it was just one of those unforeseen little things that do happen, from time to time, against which the reasonable man cannot be expected to guard.

I accordingly find that no negligent conduct on the part of defendant or its employees caused, or contributed to, plaintiff’s injuries.

Actio de Pauperie

20) Plaintiff’s action against defendant was in the alternative based on the Actio de Pauperie, a Roman remedy introduced into the South Africa Law by De Villiers CJ in the matter of Graham v Viljoen 1878 C (8B) 126, who held that an owner is liable if his animal caused an injury “which [it] could not have been reasonably expected to commit, and without fault on the part of the owner”. Since then this remedy became well established in the South African Law (O’Callaghan NO v Chaplin 1927 AD 310) notwithstanding strong criticism against its tenure (Loriza Brahman v Dippenaar 2002 SA 477 (SCA); Johan Scott Die action de pauperie oorleef ‘n woeste aanslag 2003 TSAR 194.

21) In order to succeed in an action for damages based on pauperie the onus is on plaintiff to prove that the domesticated animal concerned acted contrary to its nature (contra naturam) for that specific kind of animal (sui generis). This remedy is therefore often referred to as the actio de pauperie sui generis.

22) What constitutes contra naturam behaviour on the part of a domesticated animal formed the subject matter of a note by PMA Hunt “Bad dogs” (1962) 79 SALJ 326 where the learned author at 328 expressed himself as follows:

“De Villiers CJ (at 10) in Edward’s case spoke of behaviour “not considered such as is usual with a well-behaved animal of the kind”. “Well-behaved” imports an objective element going beyond “natural” behaviour. Much the same may be said of Laurence J’s formulation in Cowell v Friedman & Company (1888) 5 HCG 22 at 53: “some vicious, perverse, or unwarrantable behaviour”. The contra naturam concept seems, in fact, to have come to connote ferocious conduct contrary to the gentle behaviour normally expected of domestic animals. This imports an objective standard suited to humans. It is far more refined than behaviour literally natural to that species of animal. It is what Voet, 9.1.4, means when he speaks of animalia mansueta feritatem assumunt.”

23) The aforesaid passage was specifically approved by Potgieter JA in Solomon & another NNO v De Waal 1972(1) SA 575 (A) at 582 B. (See also Thysse v Bekker 2007(3) SA 350 (SECLD) at 356 C; Lawrence v Kondotel Inns (Pty) Ltd 1989(1) SA 44 (D & CLD) at 51 B).

24) Van der Merwe in Joubert et al “The Law of South Africa, second ed. Vol. 1 at 351 said the following:

“that domestic animals have been under the influence of man for such a long time that a minimum standard of good behaviour can be expected from them. Thus it is considered contra naturam for a dog to bite, an ox to gore, or a horse to kick or to bolt spontaneously when harnessed to a cart or with a rider on its back.”

25) Potgieter JA in the Solomon’s matter (Supra) at 582 E – F held a similar view:

“It is expected of such animals, because they have become domesticated, that they should be able to control themselves, and if they do not, they are regarded as having acted contra naturam sui generis, a fortiori, in my view, if a stallion attacks a person on horseback, it act contrary to the nature of its class, and that is despite the fact

that the attack takes place while the stallion is in the company of mares”.

26) The question which obviously falls to be determined is whether Chester behaved contrary to the nature of a domesticated horse and not, necessarily, whether his behaviour had been contrary to his own particular nature. (Loriza Brahman en ‘n ander v Dippenaar (Supra) at par 18, p 485.

27) By reason of the findings made above the factual sequence of events culminating in plaintiff’s facial injuries falls to be determined

on defendant’s version. Briefly, again, this version is that in the process of attempting to mount Chester for the second time,

plaintiff fell over backwards when the horse moved forward slightly. Almost the same time Chester bucked. Both defence witnesses, Ms Montefiore and Mr Mthabela, said everything happened so quickly (in the blink of an eye according to Ms Montefiore) so as to make it difficult to state categorically whether plaintiff’s fall triggered Chester’s behaviour, or the other way around. The fact remains though that Mr Mthabela, who was holding Chester’s reins at the time of the incident, testified that Chester thereupon kicked the plaintiff. His evidence in this regard was as follows upon being asked what happened as the plaintiff was falling:

“I can’t really recall because everything happened so fast, but what I can say is that the horse did kick him”.

28) He elaborated on this and said:

“I don’t think the horse kicked him from the back because if it did that he would have died. It was just a small kick to the side.”

29) Ms Montefiore, in turn, testified that she did not actually see how the injury was inflicted, i.e. the moment of impact. Thus, not excluding the possibility that “a small kick to the side” could have caused plaintiff’s injuries. To me it seems more probable than not that Chester’s slight movement forward and buck might well have caused plaintiff to fall over backward; and that when he landed with his head near Chester’s left rear leg Chester executed his “small kick to the side”. There is no reason for me not to believe that Chester’s kick found its intended target. Indeed Mr Redgrave’s evidence was that a horse has incredible peripheral vision with only a .08% blind spot behind it. In all probability, accordingly, Chester would have been aware of the exact position of plaintiff’s body and head when it kicked. That the kick, albeit “a small kick”, was well timed cannot be in doubt. The force of the kick dislodged plaintiff’s right eyeball completely, so much so that it was left hanging suspended onto his cheek. It was a horrible injury. However, the question remains whether Chester acted “contra naturam”. Ms Montefiore testified that Chester’s conduct was completely unexpected and something she did not anticipate. However, this still begs the question. The Supreme Court of Appeal in Loriza Brahman en ‘n ander v Dippenaar (supra) at par. 18 page 485 was at pains to point out that the test is not directed at whether the specific animal had acted contrary to its own particular nature, but whether it acted contrary to the normal conduct expected of animals belonging to the genus in question, in the present instance, domesticated horses.

30) It is common cause that Chester belonged to defendant, and in my view, plaintiff proved that Chester was a domesticated animal; and that Chester kicked plaintiff in the face, causing him serious injury. Proof that Chester kicked plaintiff in the aforesaid circumstances gives, in my opinion, rise to the prima facie inference (at least) that Chester acted contrary to the nature of its kind. (Thysse v Bekker (supra) at 354 A – C). The issue then remains whether defendant had done enough to discharge the onus of displacing this inference. (O’Callogham v Chaplin (supra) at 329). In my view it had not. On the contrary Ms Montefiore, whose integrity and knowledge of horses I respect, conceded in cross-examination that what Chester did was against his nature. From time to time defendant’s witnesses or counsel suggested that Chester’s conduct might have been triggered by some “outside force”, such as a tsetse fly bite, or a toe in the tummy or a girth pinching him. However, these suggestions never gathered any momentum and in the end amounted to nothing more substantial than mere speculation.

31) In the result I find that plaintiff has discharged the onus of proving that Chester acted contra naturam. Whether defendant is liable to compensate plaintiff for the consequences of his injuries brings me to the next issue.

The Indemnity Clause

32) It is common cause that plaintiff, prior to the eventually aborted horse ride, completed a form which was during the trial referred to as “the indemnity” or the “indemnity form”. The original document was handed up as Exhibit B. It consists of a single page headed by the name of defendant. Immediately underneath the heading appears a sub-heading titled “Conditions of the Riding Safari”. Underneath that in seven numbered paragraphs appear these conditions. Only the last two conditions are relevant for present purposes. They read as follows:

“6) Bhangazi Horse Safari’s are not liable for any damages, losses of injuries that may occur before, during or after a ride.

7) Signing this indemnity form below is proof that you have read the agreement and are willing to abide by the conditions within.”

Directly underneath that appear five blocks each of which require to be completed the name, address and e-mail address of each rider and the time and date of the ride. To the right of each block appears a space where one could indicate whether the ride would be a one or two or two and a half hour beach ride or a one hour or a half day game ride.

Directly underneath the last block appear the contact details of the defendant.

33) It is common cause that plaintiff completed the information requested in the last two blocks of the form. In the last block he inserted the required details of his companion Orrietta Callegaro. Neither the plaintiff nor Ms Callegaro appended their signatures next to their respective names, or anywhere else in the block or on the form. In fact, nowhere within a specific block or anywhere else on the form did the form expressly provide a space where potential riders were expected to append their signatures. The first three blocks were completed by other people, apparently the previous day, because the date of the ride in each instance was given as 1 March 2006. What distinguishes what appears in the first three blocks of Exhibit A from what appears in the two blocks completed by the defendant is the aforesaid absence of their signatures in the case of the plaintiff and his said companion. The people who completed the information in the first three blocks all appended their signatures, somewhere in their respective block, next to the information they furnished as requested in the block.

34) In its plea, the defendant pleaded that if the horse were found to have acted contra naturam sui generis then it averred, on the strength of Exhibit B, that the parties contracted out of pauperie liability. Plaintiff replicated, in turn, and denied that Exhibit B constituted an agreement between the parties. In this regard plaintiff specifically alleged that Clause 7 provides that a binding contract would only come about upon plaintiff signing the form, and that he at no stage did so.

35) In argument Mr Jeffreys referred me to Harpur NO v Govindamall and another [1993] ZASCA 110; 1993 (4) SA 751 (A) where it was held that in ordinary usage the word “signature”, used without qualification, meant signature by writing one’s name or signature

by making one’s mark. Mr Jeffreys therefore submitted that by writing down his name on the form in the place where he was so

requested, plaintiff signed the form as contemplated in Clause 7. Mr Pammenter, in turn, submitted that Clause 7 is a classic case of an offerror (the defendant) nominating in the offer the method by which the same must be accepted and that in order for the contract to come about, it must be accepted in the nominated manner. He submitted that the question therefore is whether the plaintiff ever did sign Exhibit B and that this entails a consideration of what constitutes “signing” or “signature”. With reference to what Flemming DJP had to say in the matter of Chisnall and Chisnall v Sturgeon and Sturgeon 1993(2) SA 642 (W) he submitted that signing is achieved by a mark intended to represent the relevant party if such mark is made with the function of making the document an act of the writer; of signifying the assent of the writer to that which is embodied in the document. He submitted that an enquiry concerning assent must not be into what the signatory subjectively planned (intended) but was his acts signify to the other party. Mr Pammenter argued that the question to be asked in the present matter is, therefore, whether plaintiff made a mark on Exhibit B which defendant could reasonably have understood that by doing so plaintiff assented to the terms embodied in that document..

36) It is defendant’s case, because it was so pleaded, that the contract between the parties was partly oral and partly in writing, Exhibit B being the written portion thereof. It is also important to note, specifically, that at no stage was it contended by defendant that Exhibit B was intended to be a document simply recording, for record purposes, an already valid and binding oral agreement between

the parties. Had that been the intention of the parties then the fact that Exhibit B was signed or not would have been of no consequence. On the contrary it is defendant’s version that Exhibit B constituted the written portion of the contract between the parties.

37) It is well established law in South Africa that once the parties have decided to reduce their contract to writing and that they would be bound by its terms then the contract comes into existence when, and only when, the written document has been signed by both parties, or in certain types of contracts, such as promissory notes, mortgage bonds, etc., signed by one party only. (RH CHRISTIE “The Law of Contract in South Africa, 5th Edition, P 107).

38) At this stage of the judgment, for present purposes, I will accept that Exhibit B was a written document that needed to be signed by plaintiff only in order to achieve the status of a valid and binding contract.

39) What accordingly falls to be decided is simply whether plaintiff signed Exhibit B. If he did, then, so Mr Pammenter correctly conceded, the indemnity clause in Exhibit B would be binding on plaintiff and both his claim based on the action de pauperie and his delictual claim will consequently fail.

40) Mr Jeffreys submitted that by writing down his name on Exhibit B, in the space where the printed matter on the form required of the plaintiff to furnish his full name, the plaintiff “signed” Exhibit B. Whether there is any merit in this submission depends on the meaning of the words “sign” (verb) and “signature” (noun).

41) In the Harpur NO matter, at 757, Nicholas AJA, who delivered the majority judgment, referred to the matter of Goodman v J Eban Ltd [1954] 1 QB 550 (CA) and remarked that the importance of that case lies in the recognition that the ordinary, popular meaning of the verb sign is “sign” or “sign by mark”. He noted that such a meaning accords with the relevant definitions given in The Shorter Oxford English dictionary of “sign” namely, inter alia, “to attest or confirm by adding ones signature”; “to affix ones name to a document”; “to place some distinguishing mark upon a thing”; “to write or inscribe one’s name as a signature” and “signature” namely, inter alia, “the name of a person written with his or her own hand as an authentication of some document or writing”.

42) Black’s Law Dictionary, 5th edition at 1239 gives as the definition of sign:

“to affix one’s name to a writing or instrument, for the purpose of authentication or executing it, or to give it effect as one’s act. To attach a name or cause it to be attached to a writing by any of the known methods of impressing a name on paper. To affix a signature to . . . To make any mark, as upon a document, in token of knowledge, approval, acceptance, or obligation”;

and of signature:

“The act of putting one’s name at the end of an instrument to attest its validity; the name thus written . . . And whatever mark, symbol, or device one may choose to employ as representative of himself is sufficient”.

43) Nicholas AJA also remarked at page 763 I – J, that “… the word “signature”

“does not bear a technical or legal meaning, but must be interpreted in its ordinary, popular sense. In that sense there are two ways of signing: signing by writing one’s name and signing by making one’s mark.”

44) In the matter of Van Niekerk v Smit and others 1952 (3) SA 17 (T), at 25 D-E, Murray J said the following:

“Signature does not necessarily mean writing a person’s Christian and surname but any mark which identifies it as the act “of the party” – Morton v Copeland [1855] EngR 539; 16 CB 517 per Maule J at 535. To sign, as distinguished from writing one’s name in full is to make such a mark as will represent the name of the person signing. (In re Trollip 12 SC 243 at 246, per Lord de Villiers.)”

45) Judging from the aforesaid authorities it would appear that a contracting party can validly sign the relevant document merely by writing down his name thereon or by making his mark, as long as it represents the name of the person signing the document.

46) The dictionary definitions, in turn, mention the purpose for signing a document as being to “authenticate” or “execute” same; “to attest its validity” or “a token of knowledge, approval, acceptance or obligation”.

47) Having regard to the present situation it would appear to me that the information requested on Exhibit B was for the purpose of establishing the contact details of the riders and the nature of the ride intended to be undertaken. This is also in line with the evidence given by plaintiff. According to plaintiff Mr Mthabela was in the process of taking down such information, himself, but struggled with the Italian names of the plaintiff and his companion. According to plaintiff, Exhibit B was then handed to the plaintiff to complete the requested information concerning himself and his companion. When this was done, Exhibit B was handed back to Mr Mthabela. According to plaintiff he did not sign Exhibit B, as was done by those who completed the form the previous day, simply because he was not requested to do so. In any event, plaintiff testified, he was not authorised to sign the document on behalf of his companion, Ms Callegaro.

48) The evidence of Ms Montefiore and Mr Mthabela did not take matters much further. Ms Montefiore in essence confirmed that Mr Mthabela was the person tasked to attend to the completion of Exhibit B. Mr Mthabela confirmed that he simply handed the form to plaintiff to complete and that plaintiff duly did so on his and his companion’s

behalf. Neither Ms Montefiore nor Mr Mthabela testified that the purpose or the contents of the form was explained to plaintiff or his companion. Plaintiff testified that by completing the required information on Exhibit B he thought he was filling in some kind of register required for fiscal purposes, as he put it

49) What is in my view clear ex facia Exhibit B, as well as from the evidence is that it was never intended by plaintiff, when filling in his name, to thereby authenticate its contents.

50) In my view, accordingly, plaintiff did not sign Exhibit B. In the result this said document simply did not achieve the status of a valid and binding contract.

51) Mr Jeffreys argued further that Clause 7 of Exhibit B did not specifically provide that for a binding contract to come about it was necessary for plaintiff to sign the form. This argument has no merit. A document needs to be signed by the parties thereto before it can achieve the status of a binding contract, whether the provisions contained in such a document require so or not. This is trite law.

52) Mr Jeffreys finally argued, in the alternative, that the principles of the so-called “ticket cases” should find application in this matter. The so called “ticket cases” referred to by Mr Jeffreys include, for instance, train tickets (Central SA Railways v McLaren 1903 TS , 727; Central SA Railways v James 1908 TS 221); receipts in respect of articles received for washing or dry cleaning (Dyer v Melrose Steam Laundry 1912 TPD 164); and programmes sold at sport meetings (Rosevare v Auckland Park Sporting Club 1907 TH 230). The principle being that a person who holds a ticket with conditions printed thereon and does not sign such ticket is nevertheless held bound to such conditions (Natal Motor Industries Ltd v Crickmay 1962 (2) SA 93 (NPD) at 96 F – H) if his attention was specifically drawn to such conditions (Frocks Ltd v Dent and Goodwin (Pty) Ltd 1950 (2) SA 717 (C) at P 725) on the basis of actual or quasi mutual assent (Durban’s Water Wonderland (Pty) Ltd v Botha and another 1999 (1) SA 982 (SCA) at 991 D - J).

53) I am afraid I cannot agree with the aforesaid submissions made by Mr Jeffreys. The so-called ticket cases evolved to regulate the contractual relationships between members of the public and companies or public bodies or similar entities that provide a service to such members in circumstances where it would be impractical if not impossible to obtain signatures from them. (Christie (supra) at 179). These ticket cases did not evolve and are not designed to provide a back stop for those who failed to sign a document which they ought to have signed.

54) In the present matter, Exhibit B was supposed to have been signed by the defendant’s customers. Its wording even foreshadows this. Quite apart from this the nature of the interaction between those representing defendant and plaintiff was personal, one on one, and not of the kind normally associated with or encountered in the so-called ticket cases. It was also certainly not necessary for defendant to rely on the “assistance” the principles of the so-called ticket cases provide, for it to conduct and run its horse back safaris in a cost effective manner. Defendant was a small enterprise which dealt with small groups of people once or twice a day, on a personal basis.

53) In the result I find that the defendant was not contractually exempted from compensating the plaintiff for such damages as he may

subsequently proof.

54) I make the following order:

Defendant is ordered to pay to plaintiff such damages as he may subsequently proof.

Defendant is ordered to pay the costs of action to date hereof.

VAN

HEERDEN AJ