THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

REPORTABLE
Case no:  418/06

In the matter between
STEPHANUS WESSELS

APPELLANT

and

BENJAMIN CHRISTOFFEL PRETORIUS

RESPONDENT

Coram:
SCOTT, HEHER and VAN HEERDEN JJA

Heard:
28 AUGUST 2007

Delivered: 20 SEPTEMBER 2007

Summary: Negligence – father permitting sixteen year old son to drive motor
vehicle without supervision – reasonably foreseeable that peer pressure would
lead to son overstepping bounds of reasonable behaviour – father’s conduct
negligent – resultant injury to passenger foreseeable – father personally liable.

Neutral citation: This judgment may be referred to as Wessels v Pretorius [2007]
SCA 108 (RSA).
____________________________________________________________________

HEHER JA

HEHER JA:
[1] On Saturday, 2 March 2002 Benjamin Pretorius was a matric student just short
of his seventeenth birthday. On the afternoon of that day he was one of four teenage
passengers on the open back of a truck (a ‘bakkie’) belonging to the appellant and
driven by his son Albert (then aged 16 years and 10 months), an unlicensed driver.
The vehicle had just left the appellant’s farm and entered the Mareetsane road in the
Lichtenburg area. It was travelling at about forty kilometres per hour when Albert
performed a manoeuvre known as a ‘handbrake turn’. That apparently requires a
sudden application of the handbrake with a simultaneous drag on the steering wheel.
If skillfully executed on a loose surface – the Mareetsane road was sand or gravel –
the vehicle will slew to a stop in its original direction of travel after having turned a
full circle. Such a stunt excites the youth, no doubt because of the inherent hazard that
it involves. The trial judge (Landman J) seems to have accepted that immediately
before the incident Albert warned Benjamin and the other passengers of his
intentions. Benjamin, unfortunately, either did not hear or did not respond
appropriately because he was not holding on to the roll bars (or any other part of the
bakkie) at the critical moment. He was thrown off and suffered grievous injuries. By
the time of the appeal all the aforegoing facts were common cause.
[2] Stephanus Wessels (the appellant), the father of Benjamin, caused two actions
to be instituted in the Bophuthatswana Provincial Division of the High Court. In the
first, Benjamin, duly assisted by his father, sued the appellant in his representative
capacity for damages caused by Albert in the course of his alleged negligent driving

of the vehicle. In the second, Benjamin, again duly assisted, claimed damages from
the appellant in his personal capacity, seeking to hold him liable on various grounds.
The only ground of importance for the purposes of the appeal was that the appellant
negligently allowed Albert to drive the vehicle without supervision, and when it was
reasonably foreseeable that he would drive without reasonable care. All these
allegations were denied by the appellant in his pleadings.
[3] The actions were consolidated. At the trial an order was made for a separation
of the issues with the quantum of damages to stand over until questions of negligence
and liability had been decided.
[4] After hearing evidence for all parties – but not the version of Benjamin who
was unable to testify by reason of his injuries – Landman J found that Albert had been
negligent and that his negligence had been a contributing factor to the damages
suffered by Benjamin. He apportioned fault between Albert and Benjamin at 65 : 35.
He further held that the appellant exercised a power and duty to oversee the conduct
of Albert and his friends on the day in question, that he allowed and perhaps
encouraged Albert to use the vehicle when it was reasonably foreseeable that Albert
would not exercise proper care in driving it and that injury to the passengers was a
foreseeable consequence. He ordered the appellant to pay pro tanto to the
apportionment the costs of the proceedings including the costs of two counsel.
[5] The learned judge granted the appellant leave to appeal against the orders made
against him in his personal capacity. There was no cross-appeal.
[6] Before proceeding to a consideration of the merits of the appeal it is necessary

to set out in greater detail the factual findings made by Landman J:
‘[5]
Albert woon by sy ouers en suster op die plaas Wienan in die distrik van Mareetsane,
Noordwes Provinsie. Hy het sy maats Gerhardt, Wouter en Bennie uitgenooi om die naweek
op die plaas vanaf 1 tot 2 Maart 2002 deur te bring. Die seuns het Vrydagmiddag by die
Wesselse se plaas aangekom. Bennie het ‘n bottel brandewyn saamgebring.
[6] Die aand wou die seuns vir Bernice Bloem gaan kuier omdat Magriet ook daar oornag het.
Ongeveer 19:00, met mnr Wessels se toestemming, het Albert en die seuns met sy pa se
bakkie tot by die Bloems se plaas gery. Die Bloems se plaas is sowat 15 km ver van
Wienan. Albert was te jonk om’n bestuurderlisensie te bekom. Twee seuns het agterop die
bakkie gery. Toe die seuns daar aangekom het, het mnr Wessels hulle deur middel van radio
gekontak om seker te maak dat hulle veilig aangekom het. Die seuns het by die meisies tot
ongeveer 21:00 gekuier en hulle is toe weer terug na die Wesselse se plaas saam met
Marnus, wie hulle by die Bloems gekry het.
[7] Albert het huis toe bestuur. Die volgende oggend, Saterdag 2 Maart, het die seuns aan tafel
vir mev Wessels genoem dat hulle springhase op ‘n ander maat, Marnus Bothma, se plaas
wil gaan jag. Mev Wessels het hulle goed laat verstaan dat mnr Wessels nie Albert sal
toelaat om sy bakkie te gebruik nie. Albert het slegs eenkeer in die verlede sy pa se bakkie
sonder toestemming geneem en raas gekry.
[8] Albert het Saterdagoggend in Lichtenburg rugby gaan oefen. Die ander seuns is opgelaai en
het die oggend op Bothma se plaas deurgebring. Mnr en mev Wessels het vertrek om’n
huweliksplegtigheid op Ottosdal te gaan bywoon. Albert en sy suster het tuisgebly. Albert sê
dat hy het sonder toestemming die bakkie se sleutels van die rak geneem en die seuns by
Marnus gaan haal het.
[9] Op pad terug het hulle by ‘n winkel stilgehou en ‘n pak van ses biere gekoop. By die huis
gekom, het hulle telefonies met die meisies kontak gemaak. Hulle is daarheen met mnr

Wessels se bakkie. Albert het bestuur. Bernice het die bakkie na die Wesselse se plaas
terugbestuur. Die meisies het ‘n bottel rosé wyn saamgebring.
[10] Die seuns het geswem en daarna vleis gebraai. Toe Albert ‘n bier drink, het sy suster
gedreig om haar ouers daarvan te vertel. Wouter het twee biere gedrink. Bennie en Gerhardt
het brandewyn gedrink. Die meisies het wyn, met Schweppes gemeng, gedrink. Niemand
was besope nie. Volgens die getuies was hulle daaraan gewoond om te drink. Bennie se
toestand is as “vrolik” beskryf.
[11] Die meisies moes terugkeer na die Bloems se plaas. Albert het bestuur. Bennie en Gerhardt
het vir die passasier se sitplek binne die kajuit gewedywer. Die eer het Gerhardt te beurt
geval. Magriet het agter op die bakkie aan die agterkant van die passasiers se plek gestaan
en aan die rolstaaf vasgehou. Wouter het agter haar gestaan en met sy arms om haar ook vas
gehou.
[12] Bernice het langs Magriet op die regterkant van die bakkie gestaan dws agter Albert, die
bestuurder. Bennie het agter Bernice gestaan en ook aan die rolstaaf vasgehou. By die T-
aansluiting van die plaaspad en die openbare pad (‘n grondpad) het Albert stilgehou en
Bennie beveel om vas te hou.
[13] Albert het regs uit die plaaspad gedraai en ongeveer 130 meter verder is die “handbrake
turn”, met tragiese gevolge, uitgevoer.’
[7] The learned judge went on to consider the various accounts concerning the
circumstances under which Benjamin was flung off the bakkie. Having assessed the
evidence he continued:
‘[23] Bennie het nie getuig nie. Ek bevind dat hy genoeg alkohol ingeneem het in so ‘n mate dat
hy “vrolik” voorgekom het. Dit was vir Albert nodig om by die T-aansluiting stil te hou om
hom [te] maan om te sit en vas te hou. Bennie moes daarvan bewus gewees het dat
passasiers agterop ‘n bakkie aan meer gevaar blootgestel word as passasiers wat binne die

kajuit sit. Hy wou voor sit. Hy het geweet dat Albert nie ‘n voertuig op ‘n openbare pad
mag bestuur nie.
[24] Albert het die bakkie bestuur. Hy beskik nie oor ‘n bestuurderslisensie nie omdat hy te jonk
is om een te bekom. Hy het betreklik min ondervinding om op openbare paaie te bestuur. Hy
het meer gedrink as wat hy bereid was om te erken. Tog was hy in ‘n nugterder toestand as
Bennie. Hy het immers Bennie se optrede dopgehou en die bakkie tot stilstand gebring om
hom aan te sê om te sit en vas te hou. Die bespreking onder die seuns (Bennie inkluis) ten
opsigte van die uitvoering van ’n “handbrake turn” sou sekerlik groepsdruk op hom
uitgeoefen het.
[25] ’n “Handbrake turn” is ’n gevaarlike beweging. Dog een wat wel nut het in sekere
omstandighede. Maar dit is nie ‘n beweging wat die gewone alledaagse bestuurder moet
uitvoer nie. Die uitvoering daarvan met ‘n klomp passasiers op ‘n oop bakkie was ‘n
onbesonne daad. Albert het in ieder geval te min waarskuwing van sy voornemens gegee.
Hy het ook nie seker gemaak dat sy passasiers sy bevele gehoorsaam het voordat hy die
beweging uitgevoer het nie. Alles in ag genome skat ek Bennie se nalatigheid op 35% en die
van Albert op 65%.’
[8] The court a quo analysed the case against the appellant and concluded that he
had granted permission to Albert to drive the vehicle on the day in question. The
correctness of this finding was debated at length before us on appeal. It was common
cause that the appellant had submitted a claim to the insurer of the vehicle under the
public liability section of the policy in his favour. For the purpose of completing the
claim form the insurer’s representative, one Rossouw, had visited the appellant at his
farm. There he filled in the required details in accordance with information imparted
to him by the appellant. The appellant signed the completed form. In addition, at the

request of Rossouw, he signed those divisions of the form which contained answers
ostensibly furnished by him relating to the driver of the vehicle and the description of
the accident respectively. (It was not in dispute that that description was false due to
no fault of the appellant but because the five young people in and on the vehicle,
excluding Benjamin, had concocted a version designed to protect Albert which they
only recanted shortly before the trial started.) According to the details on the form the
name of the driver was Albertus Johannes Wessels, scholar, born on 7 May 1985.
This, the appellant admitted, was information that Rossouw derived from him and
was correct. So also the replies in relation to the driver’s telephone number, purpose
for use of the vehicle (‘privaat’), whether the driver was in his employ (‘nee – seun’),
previous motor vehicle offences (‘geen’), physical infirmities (‘geen’) and details of
previous accidents (‘geen’).
[9] However, between the questions about the use and the employment the
following question appeared on the form: ‘Het hy/sy met u toestemming bestuur?’
against which Rossouw wrote ‘Ja’. He testified that he did so in accordance with an
answer furnished by the appellant to a direct question put to him in conformity with
that on the form. Cross-examination by counsel for the appellant did not succeed in
changing or materially weakening his testimony.
[10] The appellant, by contrast, testified that Albert not only drove the vehicle on
the Saturday without his permission but also in despite of a standing instruction that
he was not to use the vehicle without the appellant’s permission, and in the face of an
express prohibition against such use communicated by him to Albert on the Saturday

morning. Therefore, the appellant surmised, he must have misunderstood Rossouw’s
question ‘Did the driver have your permission to drive the vehicle?’ as ‘Did Albert in
fact drive the vehicle?’ or a question to that effect.
[11] But, as the court found, such a misunderstanding was incomprehensible since,
as the appellant well knew, the earlier question and answer had unequivocally
identified Albert as the driver and his reply left no sensible room for a repetition
shortly thereafter. The finding that the appellant’s explanation was unsatisfactory
cannot be faulted. But counsel on appeal attempted to persuade us that the totality of
the evidence given by the appellant, his wife, and Albert about the standing
instruction, the evidence of the appellant and Albert concerning the former’s express
ban and that given by Albert and his mother (and supported by Albert’s friend Philip
de Vos) concerning the express prohibition laid down by her, jointly or severally
outweighed or at least balanced the existence of the ‘admission’ in the claim form.
Therefore, counsel submitted, the overall probabilities negated both the likelihood
and the accuracy of such an admission. This proposition requires a reconsideration of
the evidence and probabilities.
[12] I consider first the value of the evidence of the appellant and his wife relating
to the imposition of their respective express prohibitions. It seems to me that the
objective probabilities against both are strong.
1.
No express prohibition was pleaded. This silence is significant in context. The
plaintiff had alleged in his particulars of claim that before and at the time of the
accident the defendant had the duty and right to control and limit the manner in which

Albert drove the vehicle in various ways, inter alia
‘8.4.1 Hy het die voertuig tot Albert Wessels se beskikking gestel terwyl hy bewus was van die feit
dat Albert Wessels nie oor ’n geldige rybewys beskik het nie, en passasiers op gemelde voertuig sou
vervoer;
. . . .
8.4.3 Verweerder in bovermelde omstandighede Albert Wessels se beheer en toegang tot die
voertuig moes beperk deur hom te verbied om die voertuig te bestuur en sy toegang tot die
voertuigsleutels te ontneem of te beperk.’
The appellant’s plea to these averments was as follows:
‘6.3
Behalwe om te erken dat Verweerder die reg gehad het om Albert die gebruik van die
voertuig te verbied, word iedere en elk van die bewerings in paragraaf 8.4 nadruklik ontken en word
Eiser tot bewys van sodanige bewerings geplaas.’
2.
In cross-examination of Rossouw counsel put it to him that
‘indien dit nodig is sal hy sê dat sy begrip was nooit . .  dat sy seun toestemming gehad het om te
bestuur nie. Hy het geweet sy seun het bestuur maar hy sê hy was nie eers daardie dag daar op die
plaas gewees nie. Hy het eers daarna uitgevind van die voorval. So hy het dit nooit in sy kop
verstaan dat die seun toestemming het nie.’
This suggests that counsel had not been apprised of any express prohibition by the
time he faced up to Rossouw.
3.
The appellant did not mention to Rossouw during the completion of the claim
form that he had forbidden Albert to drive the vehicle or that he required consent
which had not been given.
4.
The evidence of the appellant and his wife was that Albert was an honest,
reliable and obedient son. There is no reason to doubt their veracity in this regard. It

seems highly unlikely that he would deliberately have flouted express instructions
which either or both parents had only hours before impressed on him. While one may
readily understand the bravado which led him to perform the unfortunate stunt under
the eyes of his peers, cynical disregard of respected authority is much less explicable.
5.
The appellant allowed Bernice Bloem to drive the vehicle from her home to the
appellant’s farm, a distance of about fifteen kilometers, over public roads, although it
must have been obvious to him that she did not possess a licence (she was under age).
He meanwhile travelled on the back of the truck with the boys. In this instance also,
so egregious a flouting of his parents’ authority is inconsistent with his known
character.
6.
Albert could never seriously have believed that his use of the vehicle would not
be revealed to his parents as his teenage sister was left behind at home and was well
aware of his comings and goings. (As may be seen from para [6] above she had that
same afternoon threatened to report Albert for drinking beer.) According to his
evidence and that of his mother he had expressly been ordered to remain at home in
order to look after his sister in the absence of his parents and to study for
examinations. If that was the case his dereliction of duty would have invited prompt
exposure.
7.
The appellant gave various reasons for his express prohibition. Neither singly
nor cumulatively are they persuasive given that he had allowed Albert to drive in the
dark carrying passengers over the same roads on the preceding evening and that his
only means of ‘control’ had been contact over a mobile radio. According to the

uncritical testimony of his mother Albert had long been accustomed to driving on
the roads in the area.
8.
If there existed a firm, clear and immutable standing rule governing the use of
the vehicle then an express prohibition served no purpose, given that neither parent
had reason to think Albert would disobey the rule. The evidence of his mother was
‘En so is dit aan hom seker honderd maal gesê die middag voor ons gery het, julle bly in die huis. Jy
gaan nêrens.’
That too does not accord with long and materially unbroken observance of a standing
instruction which neither parent believed he would breach again.
[13] The probabilities to which I have referred point towards consent. They
strengthen the likelihood that the appellant’s reply to Rossouw was correctly
recorded. Seen as a whole the evidence provided a strong case in favour of actual
consent. Albert, as a witness, was less than convincing. He showed a marked
propensity to fabricate where that suited his defence on the aspect of the
circumstances which gave rise to the incident and a willingness to cover up
afterwards. All of this led the trial court to be understandably disinclined to accept his
say-so at face value. Mrs Wessels possessed a very material interest in the outcome of
the case and, for the reasons already traversed, her account of the instructions given to
her son must be taken with more than a pinch of salt. The trial judge did not attach
much, if any, weight to the evidence of Philip de Vos and counsel did not submit that
we should do so. The appellant’s credibility, as I have pointed out, is open to serious
question.

[14] Weighing all these considerations I am satisfied that the respondent
succeeded in establishing on a balance of probability that Albert in fact possessed the
appellant’s permission to use the vehicle on the afternoon of 2 March 2002. Whether
that consent was granted expressly one does not know; it was certainly the subject of
an unspoken understanding between father and son which was sufficient to overcome
whatever limitation generally prevailed on such use.
[15] That of course is not an end of the matter. The respondent had to prove that the
appellant was negligent in allowing Albert to drive the vehicle and such negligence
was causally connected to the injuries suffered by Benjamin (see, eg, De Beer v
Sergeant 1976 (1) SA 246 (T) at 251D-G; Godfrey and Others v Campbell 1997 (1)
SA 570 (C) at 577E-580I). Counsel for the appellant argued that both parents knew
Albert to be a competent driver and that the conduct which gave rise to the claim was
not reasonably foreseeable by them in the circumstances. But the conclusion does not
follow from the premise. The performing of the stunt did not detract from Albert’s
skill as a driver. Nor did it per se matter that he was, to the knowledge of the
appellant, not in possession of a licence to drive on public roads. The appellant’s
negligence lay rather in giving unrestricted access to the vehicle to a boy who lacked
both maturity and judgment in circumstances where it should have been obvious that
peer pressure might adversely influence his decisions in driving that vehicle. The
conduct of the appellant was, it seems to me, no different in principle from the case of
a person who has control of a dangerous object (eg a firearm, a motor vehicle or a
bottle of poison) and gives such control into the hands of another whom he ought to

know is ill-equipped, by reason of physical or mental infirmity, lack of insight or
self-control, to exercise proper or sufficient supervision over that object to prevent
harm being caused to himself or others. Such abandonment of control is culpable and
the person who allows it is liable for damage which results (within the confines of
legal remoteness).
[16] In the present instance the appellant admitted in cross-examination that he was
aware that teenagers are not always obedient, sometimes behave badly and take
chances. Although he did not believe that his son would behave irresponsibly, he
conceded that he would not go so far as to say he thought that would never happen. It
is notorious that when groups of teenage boys (with or without girls) come together in
circumstances where there is opportunity to show off or assert themselves, the
potential for overstepping the bounds of reasonable behaviour is present. Misuse of a
motor vehicle by speeding or acting the daredevil is an easily foreseeable hazard in
such an environment. A prudent father would have taken the steps reasonably
necessary to prevent his son from falling into either the temptation or the danger,
either by withholding consent or by securing the keys. The appellant did neither.
[17] I conclude therefore that the respondent succeeded in proving that the appellant
negligently made his vehicle available to his son in circumstances in which he ought
reasonably to have foreseen that the boy might use it so as to cause harm to himself or
others. The damage which resulted was causally connected to his negligence. That
was sufficient to impose personal liability on the appellant.
[18] The issue in the appeal was a matter of the most serious concern for the future

welfare of the victim. The employment of senior counsel was prudent in the
circumstances.
[19] The appeal is dismissed with costs including the costs of two counsel.

__________________
J A   HEHER

JUDGE OF APPEAL

SCOTT JA

)Concur
VAN HEERDEN JA
)