Communal farmers to fork out for damages caused by livestock

Communal farmers whose free-roaming livestock are involved in accidents with vehicles on the country’s public roads could be liable for damages sustained on the vehicle.

Ezekiel Kaukuetu, a farmer at Jakaalsdraai village located some 110km south-east of Gobabis in the Omaheke region, in a judgement on 8 March, was ordered to pay over N$45 000 in damages his cow caused to a vehicle.

This is after a cow belonging to Kaukuetu allegedly strayed onto the road and was hit by a vehicle belonging to the plaintiff in the matter, Lucia Tebele.

Tebele successfully sued Kaukuetu for damages to her vehicle, which at the time of the accident was driven by Charles Kawana.

Kawana testified that he tried to avoid a collision with the cow after realising that animals had encroached onto the road. As it was dark, he could do little to avoid colliding with the cow, which he said obstructed the road.

ROADSIDE VILLAGES

The accident occurred on the C22 road that connects Gobabis and Aminuis at the village of Jakaalsdraai.

Jakalsdraai is among at least 10 other villages that are located along the road leading to Aranos through Aminuis, covering a total distance of 220km. Most of these villages have households on both sides of the road. As such, livestock roam freely between these villages.

Unlike many other major public roads passing through a communal area, this portion of the C22 is not fenced on either side of the road to ward off livestock encroaching onto the road.

In her submission to the court, Tebele argued that she suffered damages amounting to more than N$65 000 in repair costs and tow-in fees for her vehicle following the accident.

She said Kaukuetu breached applicable legal and statutory duty by, among other things, failing to take the necessary precaution to ensure that the cow does not stray onto the road.

Tebele said Kaukuetu, as owner of the concerned cow, had a legal duty of care towards road users. Among others, she said it was Kaukuetu’s duty to ensure his cow would not roam onto the road surface and become an obstruction to traffic on the road.

FENCING OFF OF COMMUNAL LAND

In his defence, Kaukuetu stated that there is no general duty on farmers in the communal areas to fence off public roads traversing their properties.

He said the cow in question and others are kept in a kraal at his homestead, which he said is gated and well maintained.

On the day of the accident, the animals were let out for grazing in the commonage. Later that afternoon – between 16h00 and 18h00 – the farm worker at the homestead went out to look for the livestock as they were due for vaccination the next morning. He could, however, not retrieve the full herd and about 15 to 20 animals remained in the commonage.

The cow in question was among those that had not been returned to the kraal.

In her ruling, judge Hannelie Prinsloo said while she agrees that the communal farmers had no duty to fence off public roads, the defendant showed negligence by not properly keeping the livestock contained at night as they are mostly left to roam around.

“This is despite acknowledging that this practice of leaving animals in the field can be dangerous to motorists, especially at night, when the animals tend to stray onto the road. A relief to the defendant, however, came in the form of the judge only awarding 70% of the initial claim to be paid by the defendant, while the rest was to be covered by the plaintiff herself.

“This is a proper case where the court should find that the plaintiff’s driver contributed casually to the damages suffered by the plaintiff.

Therefore, the doctrine of contributory negligence arises. Where a person is part author of his or her injury, he or she cannot call on the other to compensate him or her in full,” she said.

Therefore, of the N$65 151,86 damages claimed by the plaintiff, the defendant will have to pay N$45 606,30, and the plaintiff covers the remaining balance herself in light of this rule.

ROAD CONCERNS

Aminuis constituency councillor Peter Kazongominja, during president Nangolo Mbumba’s state of the nation address in February, raised the issue of farmers losing livestock to speeding vehicles along the said road.

He used the opportunity to bemoan the expectations from motorists whose vehicles are damaged in accidents to be paid, noting that such expectations were not fair.

“How do I pay you for damages if you are the one that hit my cow, probably even killing it? That is unfair,” he said.

Mbumba, responding to Kazongominja, said the matter need to be taken up with experts in the field to determine the right cause of action.

“It does appear strange that the farmer has to pay for that, but we probably need to take this up and get advice of the best course of action,” he said.