Is the behaviour of kudus so clearly established and common knowledge or so easily ascertainable that it does not require evidence to be proved? No.
A trial court’s decision to take judicial notice of the behaviour and reaction of kudus was overturned on appeal. A court takes judicial notice of a fact without hearing evidence on the point if the fact is clear to all or notorious. The trial court, in its judgment on a motor collision case where the vehicle collided with a kudu, found that kudus are shy and generally avoid humans.
The doctrine of judicial notice is confined within very narrow limits. Even though the digital age has made it easier to ascertain some facts, matters must be ‘so notoriously or clearly established that evidence of their existence is unnecessary’ for judicial notice to be taken of them.
In this case the court found that the behaviour of kudus generally, and specifically when frightened, is not a matter that is general information or knowledge which a person of ordinary intelligence would possess.
‘It is something that must be proved by way of expert evidence. This was not done. The behaviour of kudus is also not something that one can say is readily and reliably available. It is at the best of times difficult to definitively find that a human being would act in a particular way under particular circumstances without expert evidence. Is it easier to find that a kudu will react in a particular way when frightened? I think not.’
It was also procedurally unfair that the parties were not given the opportunity to address the court regarding its views on the behaviour of the kudu in question.
Therefore the appeal court found that the trial court should not have taken judicial notice of the behaviour of kudus. Expert evidence should have been presented about that fact and the learned judge should have informed the parties about his knowledge and invited them to address the court on the issue.
The case is MEC Department Police Road & Transport, Free State v Roberts & Another.
