Moubray v Syfret

• Jurisdiction: South Africa
• Judge: Wessels CJ, Beyers JA and De Villiers JA
• Judgment Date: 02 April 1935
• Citation: 1935 AD 199
• Hearing Date: 22 March 1935
• Court: Appellate Division

Wessels, C.J.:

The respondent, the defendant in the court below, is the owner of a farm. "The Springs" in the Salisbury district. Over this farm rum an unfenced public read. The plaintiff is a mining engineer and also a farmer on a fairly large scale and experienced in cattle. On the 21st April of last year, the plaintiff, his son, Duncan, and a native, Wilson, were driving in a motor car on the road running through "Springs" when they encountered a herd of cattle belonging to the defendant. The appellant was driving the car. The herd was scattered, but there was a proportion of the herd strung out along the crown of the road. The herd was moving in the same direction as the car and was being driven to the cattle dip of the owner, Mr.

Wessels, C.J.

Syfret. The appellant, Mr. Moubray, tells us that he pressed the hooter several times and then he called out to a herd boy in charge of the herd and asked him to move the cattle off the road to allow the car to pass. The boy did not comply with the request but stood and grinned at him. Moubray then got out of the car and so did his native boy Wilson, and between them they drove the cattle off the road. He paid no attention as to whether there was or was not a bull in the herd; he was only concerned with driving the cows off the road. Having done this, Moubray walked to the back of the car and relieved his bladder. Whilst so doing a bull rushed out from among the cows and tossed the appellant doing him considerable injury. He claimed £500 damages from the defendant for the injuries so caused. The learned Judge apparently came to the conclusion that the bull was vicious for he states that he was satisfied that no strange person could approach anywhere near this bull with impunity. That in consequence the bull should not have been allowed on a public road without adequate control and that the native herd boys did not constitute such control. He therefore found that the defendant was negligent (1) in allowing a vicious bull to be on the public road running over big farm, and (2) in not providing proper control for such bull whilst on the public road. The learned Judge, however, found against the plaintiff on the ground that he contributed to the accident by acting in a rash and imprudent manner. He ought to have scanned the herd and seen whether there was a bull amongst the cows and sought to avoid it.

The plaintiff's case is based on the negligence of the defendant in having a vicious bull on a public road not under proper control. In order to determine whether the defendant was or was not negligent we must take into account all the surrounding circumstances. It has repeatedly been said in: this Court that in order to determine whether in a particular case there was or was not negligence, we must take into account all the surrounding circumstances, time, place, custom, local habits, as well as the special and peculiar facts of the case. What you can do in the daytime you may not be able to do at night, and what you can do in the open country you cannot do in a populous town; what is customary in one place may not be customary in another, and so on. The incident occurred on a public unfenced road running through Syfret's cattle farm in the Salisbury district where it

Wessels, C.J.

appears from the evidence there are several cattle farms in close proximity to one another, Rhodesia is admittedly a cattle country with large open spaces. Prima facie the owner of a farm is entitled to allow his cattle to roam over his farm, so that at times they may be found straying on the public road. In a country where cattle ranching is an important industry we must see that we do not make it intolerable for the owner by imposing upon him unnecessarily onerous conditions, and we must assume that persons who use public roads running through cattle farms are acquainted with the ordinary conditions appertaining to such farms. In other words, that a person who uses a public road passing over a cattle farm will know that he may encounter cattle on the road and that there may be bulls among the cattle, and if he is a motorist he must act prudently and not disregard the obvious customs and habits of the country. On the other hand the owner of cattle which are apt to stray on a public road must must use reasonable care to see that he does not on his farm expose the travelling public to dangers from his cattle which he ought both to foresee and to avoid. An owner of a bull which he knows to be, ferocious is not entitled to allow that bull to roam at large over his farm so that it may stray on to a public road which crosses his farm and injure a person lawfully using that road. On the other hand a normal bull which is not...