Elgin Fireclays Limited v Webb

• Jurisdiction: South Africa
• Judge: Watermeyer CJ, Tindall JA, Centlivres JA, Greenberg JA and Schreiner JA
• Judgment Date: 07 October 1947
• Citation: 1947 (4) SA 744 (A)
• Hearing Date: 17 September 1947
• Court: Appellate Division

Watermeyer, C.J.:

This is an application for leave to appeal against a judgment for £45 damages given against the applicant by the Transvaal Provincial Division in a case which came before that Court on appeal from the magistrate's court for the district of Springs.

It appears from the record that in September, 1945, the applicant,

Watermeyer CJ

which carries on a brickmaker's business at West Springs, wished to extend its works and, for that purpose, to acquire the lease of some land adjoining its works which belonged to the Rand Selection Corporation. Before entering into any agreement of lease it wished to ascertain whether there were any suitable deposits of fireclay on the property and, for that purpose, obtained permission from the owners of the land to open prospecting pits.

In pursuance of the permission given it dug two holes. One of them is of importance in this case; it was 6 feet square and 10 feet deep, and was situated 37 yards from a public road. Sheep and cattle belonging to various persons habitually passed over the land surrounding this pit and lawfully grazed there, and this fact was well known to the applicant's manager.

On 10th March, 1946, a cow belonging to the respondent, which was lawfully on the land, fell or slipped into the hole in some unexplained way. At that time there had been recent heavy rain and the hole was full of water; the cow when found, was submerged with its feet stuck fast in the mud in the hole, and when it was dragged out it was found to be dead. The respondent thereupon made a claim upon the applicant for the value of the cow, and, when the applicant refused to pay more than £20, sued the applicant for the amount of £45 in the magistrate's court.

In the course of the hearing the applicant admitted that it had dug a hole at the place where the cow was found, but set up the case that it had filled in the hole and that no hole existed at that spot on 10th March, 1946. The magistrate, however, rejected the evidence denying the existence of a hole and found that the cow had fallen or slipped into a hole full of water and that the applicant had made the hole and either had not filled it in at all or had filled it in in such a manner that on 10th March it had become a source of danger in the sense that animals might fall or slip into it. The existence of the hole was clearly proved by the evidence of a witness who said that the head of the cow was under water and that he had taken off his clothes and gone into the hole to extricate the cow's feet from the mud under the water, in which they were held fast. The magistrate came...