Van der Merwe v East Cape Karoo Holdings CC and Others (1383/2012) [2016] ZAECGHC 7 (10 March 2016)

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

NOT REPORTABLE

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION, GRAHAMSTOWN)

Case no: 1383/2012

Date heard: 4, 7 March 2016

Date delivered: 10 March 2016

In the matter between

HENDRICK JACOBUS VAN DER MERWE

Plaintiff

vs

EAST CAPE KAROO HOLDINGS CC

First Defendant

EDWARD L LUPPNOW

Second Defendant

HERBERT H ADAMS

Third Defendant

THERMEDA BOERDERY

Fourth Defendant

JUDGMENT

PICKERING J:

[1] At approximately 19h30 on 23 October 2009 and on the R367 tarred road between Queenstown and Sterkstroom, at a distance of some 3 kilometres from Sterkstroom, plaintiff, then a 25 year old motorcycle mechanic, was riding his Suzuki 1100 cc motorcycle, number [.......], in the direction of Queenstown, with his girlfriend as his pillion passenger, when he collided with a cow which was standing in the centre of the lane in which he was travelling.

[2] In consequence of the collision plaintiff sustained certain severe bodily injuries. Uncertain of who the owner of the cow was, plaintiff instituted action against three defendants in the alternative, namely, East Cape Karoo Holdings CC, the first

defendant, a close corporation in respect of which second and third defendants are the members; Edward Luppnow, second defendant, and Herbert Adams, the third defendant. It is further common cause that at the time of the collision the second and third defendants were in partnership together. It has also become common cause that the cow was at the time of the accident owned by the erstwhile partnership between second and third defendants.

[3] The three defendants were granted leave to join Thermeda Boerdery as a third party. I will deal hereunder with the issue relating to the third party which did not enter an appearance to defend this matter. It is not in dispute that the aforementioned

partnership leased the farm on which the cow was kept from Thermeda Boerdery.

[4] Plaintiff testified that on the night in question he was travelling from Sterkstroom to Queenstown to attend the Agricultural show which was being held there. He stated that he was travelling on his Suzuki motorcycle at a speed of approximately 80 kph. The night was clear and the road surface was good. The speed limit was 100 kph.

[5] He stated that he had previously encountered animals on the road such as springhares, duikers and, on occasion, cows. Because of this he was keeping a careful lookout, scanning the sides of the road.

[6] The lights of the motorcycle were on bright. They illuminated the road ahead for approximately forty metres. As plaintiff was travelling in the centre of his lane, at a point which he said was approximately five kilometres from Sterkstroom, he saw a dark shape on the road ahead in his lane. It is now common cause however that the accident occurred 3,3 km from Sterkstroom. Plaintiff did not realise at the time that it was a cow. He immediately applied both the hand and foot brakes of the motorcycle but, so he said, he had to be careful not to over-brake and cause the motorcycle to slide, more especially as he had a pillion passenger. Despite this, the back wheel of the motorcycle locked and the motorcycle skidded. He was unable to avoid a collision with the cow and struck it amidships in the region of its stomach. His passenger was catapulted over his head and, in so doing, broke his helmet into two pieces. He stated that he could not swerve to the right because of the weight of the motorcycle. If he had gone off the road to the left into the bushes he might have hit a rock and been even more seriously injured than he was.

[7] He lost consciousness and woke up in hospital. Approximately a month later he returned to the scene and took certain photographs.

An album of photographs, Exhibit A, was handed into Court by consent. These photos depict, inter alia, a skid mark which it is common cause was eighteen metres long, in the middle of the lane in which he was travelling, leading up to the point of impact which is depicted on photographs A2 and 3.

[8] According to plaintiff, on his return to the scene he inspected the fencing and gates in the area. He stated that the gate depicted on photograph A2 was opposite where the cow had been standing. That gate had no lock or chain and was merely held closed by what appeared to be a piece of wire. He stated that the gate depicted on photograph A29 was approximately 500 metres from the gate on photograph A2 and was similarly not locked. Reference was also made to certain other photographs of fencing and gates that were taken during 2014. In the view that I take of the matter it is not necessary to deal therewith.

[9] That then was the evidence tendered on behalf of plaintiff.

[10] Mr. Luppnow, the second defendant, testified on behalf of the defendants. He stated that apart from being an auctioneer he had been a farmer for approximately forty eight years. He confirmed that at the time of the collision he and third defendant

had been in partnership together. They later formed the first defendant close corporation for tax purposes. The partnership

leased the farm from the third party. He stated that the leased property straddled both sides of the R367 tarred road. A large storm water drain connecting both sides of the property ran under the road through which cattle could be moved from one side to the other when required. He stated that all the external gates of the property save for two were kept padlocked. There was, on each side of the road, a so-called “transit” camp, each such camp bordering on the road reserve, in which cattle were kept preparatory to them being moved from one side of the farm to the other. The external gates of the transit camps, leading onto the road reserve, were not locked because the cattle merely passed through when required and were not kept in those camps for grazing purposes. He stated that the collision had in fact occurred a mere 500 to 750 metres from Sterkstroom and that the cow in question had been kept in a camp on the opposite side of the road to that alleged by plaintiff.

[11] Mr. Luppnow’s evidence as to the situation of the various camps in which the cattle were kept at the time of the accident was somewhat confused. It is not necessary to deal therewith in any detail, however, as counsel for both plaintiff and defendants were agreed that it appeared ultimately therefrom, after cross-examination, that the cattle, including the cow in question, were at the time being kept in an internal camp which was separated from a transit camp by another camp and that neither of the internal

gates of these two camps nor the external gate of the transit camp were locked. In these circumstances it is not necessary to attempt to resolve the disputes between plaintiff and the defendants, although Mr. Luppnow’s insistence that it had occurred 500 to 750 metres from Sterkstroom, whereas in fact it was at a distance of 3,3 km, must cast considerable doubt on the reliability of his evidence as to the state of the gates and fencing in the actual vicinity of the accident scene.

[12] Mr. Luppnow stated that on every Saturday he drove to the farm from Queenstown and checked from his bakkie as he drove that the fences and gates were in good order and were closed or locked as the case might be. One of his own employees, a certain Mr. Xangalani, was also tasked with looking after the fencing. Mr. Xangalani in fact possessed the keys to all the locked gates and was also the chief herdsman in charge of the cattle.

[13] Mr. Luppnow stated that he was advised of the accident on the same evening that it occurred. The following day he drove to the farm and inspected all the fences and gates. They were in order and the gates were locked and closed. He ascertained that the cow which had been killed had calved approximately a week before and its calf was still in the camp in which the cow had been kept.

[14] He stated that he was quite unable to furnish an explanation as to how the cow in question could have come to find itself on the R367 road. He speculated that the cow might have been stolen from the camp although he conceded that there had never previously been any theft of any of the partnership stock over the three years from 2006 to 2009.

[15] He conceded that had the gates of the internal camps been locked it would not have been possible for the cow to access the road from the transit camp either through the gates being left open or through somebody opening the gates and driving the animal through it. He stated in this regard that it was not practicable to construct grids in the internal camps. He also averred that nobody in the district locked gates to internal camps.

[16] Plaintiff was, in my view, an excellent witness. He was at the time of the collision, an experienced motorcyclist who had never before been involved in a collision. His evidence, which was not seriously disputed, confirmed that the presence of the pillion passenger affected his ability to stop or swerve. As he put it, one did not turn the handlebars as one would a motor vehicle steering wheel but rather steered by weight and balance.

[17] It is common cause that at a speed of 80 kph he would have travelled 22,2 metres per second.

[18] It is so that in certain cases the courts have accepted half a second as being a reasonable reaction time. On the other hand a reaction time of as much as one and a half seconds has been accepted as being reasonable. In Bignals Transport (Pty) Ltd v Catholic Diocese Port Elizabeth unreported case no CA322/2004 delivered 3 March 2005 I stated as follows:

It is correct that in certain cases the Courts have accepted half a second as being a reasonable reaction time. On the other hand, a reaction time of as much as one and a half seconds has been accepted by the Courts as being reasonable. Reference may be had in this regard to, inter alia, cases such as Pretorius v African Gate & Fenceworks 1939 AD 567 at 575; Hoffman v South African Railways & Harbours 1955 (4) SA 467 (A); Coetzee v Shield Insurance Company 1980 (4) SA 621 (C); President Insurance Company v Tshabalala 1981 (1) SA 1016 (A); Rodrigues v SA Mutual General Insurance Company 1981 (2) SA 274 (A); Viriri v Wellesley Estate 1982 (4) SA 308 (Z); Santam Insurance Ltd v Aspeling unreported ECD case no CA325/97.

In South African Railways v Symington 1935 AD 37 the following was stated at page 45:

‘One man may react very quickly to what he sees and takes in, whilst another man may be slower. We must consider what an ordinary,

reasonable man would have done. Culpa is not to be imputed to a man merely because another person would have reacted more promptly and acted more quickly. Where men have to make up their minds how to act in a second or in a fraction of a second, one may think this course the better whilst another may prefer that. It is undoubtedly the duty of every person to avoid an accident, but if he behaves reasonably, even if by justifiable error of judgment he does not choose the very best course to avoid the accident as events afterwards show, then he is not on that account to be held liable for culpa.’

In Sifhago v Santam Insurance Company Limited 1969 (1) PH J1 (A), Jansen JA stated:

‘It is common knowledge that when a person is suddenly and unexpectedly called upon to make a decision, his reaction time is longer than when he is alerted and expecting the emergency. (Cf. Mazengarb’s Negligence on the Highway, 4th ed..p. 541) In considering what the reasonable driver would have done in the one second available to him, allowance must be made for the limitations imposed by the inevitable time lag between observation and reaction, as affected by the agony of the moment, the element of surprise, the likelihood of momentary indecision…’”

[19] As was submitted by Mr. Cole, who appeared for the plaintiff, in circumstances where plaintiff’s motorcycle left an eighteen

metre skid mark it is clear that he had reacted immediately and had braked as hard as was possible. As also submitted by Mr. Cole it was never suggested to plaintiff that he might have been able to see the cow earlier.

[20] Ms. Beneke, who appeared for the defendants, submitted, however, that plaintiff was clearly negligent in that he was well aware of the presence of not only smaller animals such as springhares and duikers which often crossed the road but also of cattle. She submitted that in the light of this knowledge of the conditions of that road and the foresight of the reasonable possibility of animals in the road, he was driving at a speed that was excessive and which did not allow him to come to a halt within his range of vision. She submitted therefore that had he been travelling at a lower speed he would have had time to react and brake or to take measures to avoid the impact.

[21] In my view, however, Ms. Beneke’s submissions cannot be upheld. In my view plaintiff was travelling at a reasonable

speed in the circumstances and it cannot be said that he was in any way negligent.

[22] I turn then to consider the issue as to whether in the circumstances it has been proved by plaintiff that the defendants had been causally negligent in relation to such damages as plaintiff may prove in due course.

[23] As set out above, the evidence of Mr. Luppnow was to the effect that Mr. Xangalani not only had the keys to such locks as there were on the farm but was also the chief herdsman. It is accordingly a matter of considerable surprise that Mr. Xangalani, who was available to testify, was not called to do so. It was suggested that the failure to call a crucial witness such as Mr. Xangalani should give rise to an adverse inference against defendants. In my view this would not be appropriate. In the circumstances however, the fact is that there is no evidence whatsoever as to what transpired on the farm from the time Mr. Luppnow last inspected the fences on the preceding Saturday until six days later when the accident occurred. In particular, there is no evidence to the effect that the gates of the internal camps leading into the transit camp were in fact closed and secured on the night in question by Mr. Xangalani. Similarly, there is no evidence to the effect that the gate leading from the transit camp to the road reserve was closed and secured at that time. The fact that it was closed when Mr. Luppnow visited the scene over 12 hours later does not, in my view, in the absence of evidence from Mr. Xangalani, assist the defendants. By that time the dead cow had already been removed from the scene and any open gates would, in all probability, have been closed. In my view therefore the most plausible inference to be drawn from the fact of the presence of the cow on the road is that it must have escaped through gates that were left open.

[24] In Mkhwanazi v Van der Walt [1995] ZASCA 4; 1995 (4) SA 589 (AD) a collision occurred between plaintiff’s minibus and three of defendant’s horses which had strayed through open farm gates onto the national road bordering the defendant’s farm. The evidence disclosed that there were three swing gates between the camps where the horses grazed and the national road. The gate at the national road was normally left open but the other two gates were normally secured by way of chains. On the night of the accident the defendant himself had closed two of the gates but they had been opened again later, probably by visitors to defendant’s farm employees. Howie JA held that the leaving open of farm gates was an everyday occurrence and that it was reasonably foreseeable that the gates might be left open. He stated that in the circumstances the reasonable farmer would have definitely considered further precautions over and above the provision of chains for the first two gates. He held that the use of a padlock would have been an easy, cheap and effective measure to prevent the gate being opened and prevent the horses from straying. Furthermore, a grid could have been installed. These precautions, a chain and lock, or a grid, were, so the learned Judge stated, so easy and inexpensive to take that any reasonable person would have taken one of them. The defendant’s failure to have taken either precaution meant that he had been causally negligent in relation to the alleged damage.

[25] In Enslin v Nhlapo [2008] ZASCA 75; 2008 (5) SA 146 (SCA) the grazing camp in which a Brahman bull belonging to the defendant had been kept was separated by a fence from an access road that ran from the public road to a neighbouring property. Two gates had been installed. The first, a wired gate led from the camp to the access road. The second, a steel gate, led from the access road to the public road. As was

stated by Ponnan JA, for the cattle to have strayed onto the public road both gates had therefore necessity to have been open.

According to the defendant he had instructed his employees to keep both gates closed and an employee had testified that he had in fact done so on the evening in question. Ponnan JA stated that the gates had therefore probably been opened thereafter – by whom and in what circumstances, did not emerge on the evidence.

[26] In paragraph 5 Ponnan JA stated that the “real question ... is whether a reasonable person would have taken further precautions to prevent the cattle from straying onto the public road.” The learned Judge found that it was a reasonably foreseeable possibility that the gates might have been left open and that in the circumstances a reasonable person would definitely have considered further precautionary measures over and above those which defendant took.

[27] At paragraph 7 the learned Judge stated as follows:

“The use of a padlock to secure the steel gate or the installation of a cattle grid on the access road shortly before joining the public road would have been easy, inexpensive and effective measures to prevent the cattle from straying onto the public road. ... Considering the respective interests of the defendant on the one hand and the road users of the public road on the other, the use of a padlock or a cattle grid as precautions were so easy and relatively inexpensive to take, that a reasonable person would have taken at least one if not both of them. The defendant’s failure to take either precaution meant that he had been causally negligent in relation to such damages as may in due course be proved by the plaintiff.”

[28] In the present matter it is abundantly clear, as was submitted by Mr. Cole, that a reasonable farmer in the position of the defendants must have foreseen the possibility of the gates being left open and of cattle straying onto the road and would have taken the precaution of putting a chain and lock on all gates on the farm, including the internal gates or, if this were too bothersome, would have erected cattle grids. Furthermore, even if the cow was the object of an attempted theft, the locking of the gates would have prevented the entire incident. This was correctly conceded by Mr. Luppnow.

[29] Ms. Beneke submitted that inasmuch as the assets and liabilities of the erstwhile partnership had been taken over by the first defendant, then in the event of plaintiff’s claim succeeding, judgment should be given against first defendant. In my view, however, Mr. Cole is correct in his submission that, if successful, judgment should be granted against second and third defendants as erstwhile partners at the time of the accident. In my view therefore the second and third defendants’ failure to take the above precautions means that they have been causally negligent in relation to such damages as may in due course be proved by the plaintiff.

[30] There is one final matter to consider. As stated above Thermeda Boerdery was joined as a third party at the instance of the defendants. The basis for this was that, in terms of the aforementioned lease agreement between the defendants and the third party, the third party had indemnified the defendants against a claim such as the present one.

[31] In this regard the clause of the lease agreement provided that the third party indemnified the defendants in respect of any loss or damage sustained by any person “in or about the leased property.”

[32] In my view there is no merit in the above contention. The defendants, in terms of the clause, are indemnified against damage arising “in or about” the leased property. Properly construed the indemnity in my view encompasses only damage which is sustained in consequence of an occurrence on the leased property itself. The Concise Oxford English Dictionary defines “about” inter alia, as follows:

“Used to indicate movement within a particular area or location in a particular place.”

[33] It is clear therefore that the indemnity clause was never intended to relate to a claim such as the present and the third party is therefore not liable.

[34] The following order will issue:

1. It is declared that the second and third defendants, as erstwhile partners, jointly and severally are causally liable for any damages sustained by the plaintiff as a consequence of the collision between the motorcycle driven by the plaintiff and a cow, which occurred on 23 October 2009 on the road between Sterkstroom and Queenstown.

2. First defendant is absolved from the instance.

3. The defendants’ conditional third party claim against the third party is dismissed with costs.

4. Second and third defendants, jointly and severally, the one paying the other to be absolved, are ordered to pay the costs of the action including the costs of plaintiff’s photographs.

____________________

J.D. PICKERING

JUDGE OF THE HIGH COURT

Appearing on behalf of Plaintiff: Adv. S. Cole

Instructed by: Cloete and Company Attorneys, Mr. Cloete

Appearing on behalf of Defendants: Adv. Beneke

Instructed by: Netteltons Attorneys, Mr. Nettelton