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4.CONCLUSIONS

4.1 A public road is fenced to protect users of the road as well as livestock. It is obviously not only stock-farmers who benefit from such a fence.

4.2 The person in control of a fence is ordinarily regarded as the person responsible for the maintenance of the fence.

4.3 It is important to remember that modern traffic conditions, the customs and habits of the country, the expectations and perceptions of the modern motorist, the motorist’s knowledge of prevailing farming conditions and modern considerations of policy may well have changed dramatically since 1935.

4.4 The common law raises the question whether a legal duty to erect a fence should in fact be established by circumstances (location, farming activity, whether a danger is created etc) which would dictate that a farmer should clearly be obliged to ensure that his activities do not create a new danger or source of danger. ^[12]

4.5 In Botes v Van Deventer 1966 (3) SA 182 (A) the defendant submitted that the owner of the farm (plaintiff) could have fenced the road, thereby protecting both his horses and users of the public road. In dealing with this contention, Van Blerk JA remarked as follows at 189H:

“Of dit redelikerwys van eiser verwag kon word om enigeen van die hierbo genoemde stappe te neem hang af van die besondere omstandighede van die geval. Eiser het verduidelik dat hy nie die perde snags in een van sy ander kampe kon jaag nie want die ander kampe was kaal gewei, en as die swaardragtige merries na 'n kaal geweide kamp verskuif word sal dit, soos hy dit uitdruk, 100 persent nadelig wees vir die diere. Wat die afkamping van die pad betref sou dit 'n onbegonne taak wees om dit aan te durf vanweë al die draaie en hoeke in die pad. Wat meer is, 'n verlegging en herbelyning van die pad was destyds al 'n uitgemaakte saak. Nie alleen sou 'n afkamping van die pad vanweë die onkoste verbonde daaraan nie redelikerwys van eiser verwag kan word nie, maar sou dié maatreël des te meer onredelik wees omdat dit slegs van tydelike nut sal wees.”

4.6 It is apparent that a court will only find that a legal duty to fence a specific road exists after careful consideration of all the relevant facts and circumstances. Depending on the facts and circumstances, a court may therefore rule that either the landowner or the relevant authority is obliged to erect a fence along a public road.

4.7 Therefore, it may well be undesirable and difficult to impose a general statutory obligation on either landowners or the authorities to erect fences along public roads.

4.8 From the Jamneck case supra it is apparent that the court did not consider that the legal duty to maintain a fence in a reasonable condition was an unduly onerous duty.

4.9 It is also apparent that the onus which generally rests on the farmer/owner/tenant to prove that he or she was not negligent in maintaining the fence is not a particularly onerous burden. The plaintiff on the other hand would have to prove that the animal was on the road; that the fence was damaged; that the specific animal probably strayed through the damaged fence into the road and that the farmer/owner/tenant was in fact in control of the fence. Furthermore, the plaintiff will have to show that the damage to the fence was of such a nature that the farmer/owner/tenant should have been aware of the damage had he or she inspected the fence properly or regularly.

4.10 Thus, if the farmer/owner/tenant is able to place evidence before the court regarding the manner in which he or she had attempted to comply with this duty and the court is satisfied that he or she had taken reasonable steps in this regard, the plaintiff’s claim will fail.

4.11 Legislation regulating the fencing of national roads may have very little impact on the position of stock-farmers. The vast majority of public roads are not national or even provincial main roads.

4.12 The extent and exact nature of the problem from the perspective of stock-farmers and the SAAU is unfortunately not clear. The contention that the courts are currently more inclined to hold the stock-farmer responsible for such damages is not borne out by the reported case law.

4.13 It is also unclear how changes to the national legislation in respect of national roads will in any way alleviate the problem.

4.14 It may well be that the primary concern is about the financial implications of the maintenance of existing fences, rather than the liability which arises from accidents which occur as a result of animals straying into roads. The extent of the financial implications is not known.

[12] In Rabie v Kimberley Munisipaliteit 1991 (4) SA 243 (NC) the local authority by its failure to properly investigate problems in a traffic light system, was held to have created a dangerous situation for road users, resulting in an accident and responsibility for damages to a vehicle.