Kruger v Coetzee

• Jurisdiction: South Africa
• Judge: Beyers ACJ, van Blerk JA, Botha JA, Holmes JA, Wessels JA
• Judgment Date: 17 March 1966
• Citation: 1966 (2) SA 428 (A)
• Hearing Date: 04 March 1966
• Court: Appellate Division

Holmes, J.A.:

In the early hours before dawn in the month of August the plaintiff's husband was driving her car along the main tarmac road A between Norvalspont and Venterstad, which is fenced on both sides. As he came over a rise he saw a horse emerging from the darkness on to the road. He braked hard and managed to avoid the animal. Then a second horse appeared, dark of colour, walking across the road. There was a collision and the car was damaged. This was in the year 1964.

The plaintiff sued the owner of the horse for damages. She averred that B the collision was caused by his negligence in allowing his horse to be at large on a public road, unattended or not under proper control. She also averred, as a ground of negligence, that he allowed the gate of a camp in which his horses grazed to remain open, that the gate led on to the main road, and that thereby he could not exercise proper control over his animals.

C The plea admitted ownership of the horse but denied any negligence. At the conclusion of the case the magistrate ordered absolution from the instance, upon the ground that it would be unreasonable to expect the defendant to maintain a guard at the gate by day and night.

On appeal, the Eastern Cape Division reversed the magistrate's decision, D altering the order to one of judgment in favour of the plaintiff for R494.40 with costs, upon the ground that a reasonable man in the position of the defendant would have realised that his horses might stray through the gate on to the main road, and would have taken steps to prevent this. The Court did not indicate what steps would have been reasonable.

E 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)

F would take reasonable steps to guard against such occurrence; and

(b)

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 G 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...