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• Introduction
• The Extent Of The Problem
• The Legal Duty To Erect A Fence Along A Public Road: The Position In Common Law With Reference To Reported Judgments

3.THE PROBLEMS

Introduction

3.1 The problems were highlighted by the submission made by the South African Agricultural Union (SAAU) to the Commission.

3.2 Stock-farmers complain that fences along public roads are increasingly wilfully removed, damaged or destroyed, resulting in animals straying into the roads and causing accidents.

3.3 The fencing laws as set out in Chapter 2 reflect a lack of uniformity, This is regarded as the cause for a great deal of confusion and legal uncertainty – particularly in rural areas - in respect of liability in respect of broken fences.

3.4 The existing statutory provisions in respect of fences do not contain any express provisions on who is liable for damages caused when animals stray into public roads.

3.5 It is apparent that the following aspects are of vital concern to especially stock-farmers:

• Who is responsible for the erection of fences?
• Who is responsible for the maintenance of existing fences?
• Who is responsible for any damages incurred by animals straying into roads because fences are broken, damaged or destroyed?

3.6 Stock-farmers are also concerned about the various differing arrangements concerning the responsibility for the cost of erection and maintenance of fences.

The extent of the problem

3.7 The SAAU submits that stock-farmers are increasingly exposed to claims for damages arising from accidents caused by animals straying on to public roads and that the current legal position places an unduly heavy burden on stock-farmers which burden is exacerbated by the judicial system as the courts are currently more inclined to hold the stock-farmer responsible for such damages.

3.8 According to the legal opinion obtained by SAAU the person in control of the fence will ordinarily be held liable for damages incurred as a result of the fence being removed or being in disrepair and causing animals to wander into public roads.

3.9 There is currently no express provisions in national legislation or provincial ordinances relating to liability for damages caused by animals straying into public roads because of damaged fencing.

3.10 The SAAU submission primarily concentrates on the stock-farmers’ possible liability for damages and the submission is made that the current legal position places an unduly heavy burden on farmers.

3.11 Stock-farmers and landowners in KwaZulu-Natal enjoy some assistance from the local government as far as the erection of fences along provincial main roads and the maintenance thereof is concerned.

3.12 Generally, in instances where fencing is wilfully removed or damaged, the landowner - be it for example a municipality or a stock-farmer - bears the responsibility to repair such fencing. This appears to be the position in the whole of the Republic.

3.13 However, as will be discussed infra, in the absence of legislation, the questions are regulated by the common law. The courts take cognisance of all the facts and circumstances of a specific case and have established the principle that the person in control of the fence is obliged to repair and maintain a fence.

The legal duty to erect a fence along a public road: the position in common law with reference to reported judgments

3.14 A legal duty to erect and maintain fences may be established by circumstances.

3.15 In Moubray v Syfret 1935 AD 199 at 202 it has been held:

"(T)hat 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."

3.16 In R v Venter 1959 (2) SA 520 (E) at 525 the court considered the English law and after having regard to the authorities concluded that in English law a landowner is under no duty to maintain a fence to prevent his or her animals from straying on the road: nor can he or she be held liable if cattle are negligently allowed to stray on the highway and there collide with a vehicle.^[9]

3.17 The court further relied on the following passages in Searle v Wallbank 1947 A.C. 341 at 356:

“Much if not most of our country was unfenced, and indeed a not unsubstantial portion still is, and passers along the highway had to take it as they found it and run such risks of traffic as are inevitably imposed on those who use it. They too must take reasonable care to avoid what they find on the road, and the obligations of the owners of beasts or the users of the highway are not, in my view, altered by an increase in the fencing of the country or by an increase in the speed of traffic.”

And further at 361:

“The truth is that, at least on country roads and in market towns, users of the highway, including cyclists and motorists, must be prepared to meet from time to time a stray horse or cow just as they must expect to encounter a herd of cattle in the care of a drover. An underlying principle of the law of the highway is that all those using the highway, or land adjacent to it, must show mutual respect and forbearance. The motorist must put up with the farmer's cattle: the farmer must endure the motorist.”

3.18 In Brook v Richards 1951 (1) K.B. 529 at 534 the court stated:

"It must now be taken to be clearly established that there is no obligation upon the owner or occupier of a field adjacent to a highway to maintain a fence on the border of a highway. And it is clear, in my judgment, that the law is founded upon our ancient social conditions and is in no way related to, or liable to be qualified by, such matters as the relative levels of fields and highway, the nature of the highway, or the amount of traffic upon it.'in the absence of statutory provisions the owner of a farm is under no obligation to erect fences along a public road on his property.”

3.19 The following passage from the judgment of Chief Justice Wessels in Moubray v Syfret (supra) has often been referred to:^[10]

“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 acquinted 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 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 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.”

3.20 In Van der Merwe v Austin 1965 (1) SA 43 (T) the court held that the owner of the farm in a cattle area through which a national road runs and where it can be expected that cattle could be found on and along the road has no obligation towards traffic in respect of any of his horses which may for no reason run across the road in an unusual manner.

3.21 In Van der Merwe supra at 47C-D the court held:

“Daar bestaan geen wetgewing, sover as wat ek kon vasstel, wat 'n boer verplig om die nasionale pad oor sy grond af te kamp nie. In die Transvaal kom so 'n plig alleen totstand waar die Administrateur in terme van art. 77 van die Padordinansie, 22 van 1957, optree.”

3.22 In S v Kasselman 1977 (3) SA 1064 (T) the appellant was convicted of contravening section 125 (1) of the Road Traffic Ordinance No. 21 of 1966 (T) Section 125 (1) provides:

"Subject to the provisions of sub-sec. (2), no person shall leave or allow any bovine animal, horse, ass, mule, sheep, goat, pig or ostrich to be on any section of a public road where that section is fenced or in any other manner enclosed along, both sides, and no person shall leave such animal or ostrich in a place from where it may stray onto any such section of a public road."

3.23 In Kasselman supra at 1064 the court held that the effect of the use of the words "leave" and "allow" was to make applicable the test of reasonableness. Thus in order to find a conviction it must be shown that the farmer acted negligently. In terms of the Ordinance however the onus of disproving such negligence rests on the farmer.

3.24 In Coreejes v Carnarvom Munisipaliteit en ‘n ander 1964 (2) SA 454 (C) the court held that where the owner of a farm erected a wire fence alongside a public road the duty vests in the owner of that fence to see that the fence is effective in so far as this can reasonably be achieved. Thus where the fence is damaged or broken and animals enter the road causing road accidents the owner of the fence is negligent and bears the liability for the damage caused. The owner has to take all reasonable steps to ensure that the fence serves the purpose for which it was erected. The court held further:

"Doen hy dit nie, dan skep hy 'n wanindruk by die publiek wat daardie pad gebruik; die publiek wat die pad gebruik en sien dat dit omhein is, is geregtig om aan te neem dat dit doeltreffend omhein is in soverre dit deur 'n redelike versigtige man gedoen sou word.”

3.25 The court in Coreejes supra further considered that the factors which should be taken into account would change from time to time and place to place with regard to all the circumstances in the case, in particular the road, the area, where the collision occurred, the kind of animal involved in the accident and the distance of the fence from the roads.^[11]

3.26 In Jamneck v Wagener 1993 (2) SA 54 (C) the full bench of the Cape Provincial Division held the person who was in control of a fence (but not the owner of either the fence or the animal which caused the damage) liable in an action for damages sustained when a horse strayed through a damaged fence into a public road causing an accident.

3.27 The court found on the facts that the person who exercised control over the fence, in the circumstances of this case, had a legal duty towards road users to take such steps as were necessary and reasonably possible to maintain the fence in such a condition that it would fulfil its function of keeping animals grazing on the leased property out of the road.

[9] Charlesworth on Negligence, 3rd ed. paras. 190 and 191; Mazengarb, Negligence on the Highway, 3rd ed. pp. 72 - 73; Heath's Garage Ltd v Hodges, 1916 (2) K.B. 370; Searle v. C Wallbank, 1947 A.C. 341; Brook v Richards, 1951 (1) K.B. 529; Wright v Callwood, 1950 (2) K.B. 515 as cited in R v Venter supra.

[10] See also Botes v Van Deventer 1966 (3) SA 182 (A) at 188H; Van der Merwe v Austin 1965 (1) SA 43 at 47F.

[11] at 458A-C.