In a March 2025 judgment of the high court, the court found that the mere presence of a dead animal on the road does not establish negligence of the owner of the animal, and the claimant failed to present sufficient evidence to support their claims.

The claimant’s vehicle collided with a dead cow lying on the N7 national road and owned by the defendant. The claimant argued that the respondent was negligent in allowing the cow to be on the road, which caused the accident and consequent damages.

The primary legal issues in this case were whether the maxim “the thing speaks for itself” (res ipsa loquitur) applied and whether Regulation 313 of the National Road Traffic Act (which deals with animals on public road) created a statutory presumption of liability in civil cases. The claimant relied on these arguments to establish negligence on the part of the respondent.

The court’s analysis focused on the evidence presented by the claimant, including the testimony of the driver of the claimant’s vehicle. The court found that the evidence was insufficient to establish negligence on the part of the respondent. The court also considered previous case which excluded the application of the res ipsa loquitur maxim in similar circumstances.

The court concluded that the claimant had failed to make out a prima facie case of negligence against the respondent. The mere presence of the cow on the road did not create a presumption of negligence, and the claimant’s reliance on Regulation 313 was misplaced. As a result, the court dismissed the claim.

Smith v Klawervlei Sitrus CC (A 189/2023) [2025] ZAWCHC 98 (11 March 2025)