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Botswana: High Court Dismisses Farmer's P92,000 Claim
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Mmegi/The Reporter (Gaborone)
12 March 2008
Posted to the web 12 March 2008
Bame Piet
Lobatse
The High Court has dismissed, with costs, an application made by Herbst Feeds claiming damages amounting to P91,977.50 from Tebogo Radithotse.
Louis Herbst, the owner of the company, took Radithotse to court complaining that between January and October 2005, Radithotse's cattle feasted on his crops - cattle grass and lucerne - at his Tsinani Farm without his consent.
Herbst told the court that on several occasions he sent his workers to inform Radithotse that his cattle were in the habit of entering his farm and destroying crops, but to no avail. He further told the court that one Sunday in October 2005, he saw Radithotse driving cattle out of his farm.
Herbst told the court that Radithotse admitted liability that his cattle had damaged his crops, and he made him sign a document saying so. Radithotse's cattle invaded the farm again a week later, Herbst said.On how he calculated the P92,000 amount, Herbst said he worked out the amount on the basis of the stock feed that he lost. His returns for the period when Radithotse's cattle invaded was less than what he usually makes for the same period.
The VAT forms were produced as an exhibit in court. Presiding Justice, Key Dingake, noted that there were no other specific dates on which Radithotse's cattle invaded Herbst's farm and destroyed crops apart from the one reflected in the letter.He also captured the question and answer session below between Radithotse's Attorney, Yul Moncho and Herbst.
Moncho: Was it only Radithotse's cattle that had the skill to break and enter your fields?
Herbst: No.
Moncho: How many other people do you know whose cattle entered into your fields?
Herbst: About four to six who I ended up summoning to the customary court.
Moncho: How many cattle belonging to the defendant entered your field?
Herbst: At one stage it was between 100 and 130. You can't really count them they run around.
Moncho: Are you referring to Radithotse's cattle only or were they mixed with other people's cattle?
Herbst: I would say they were mixed. The other people's cattle other than his were 4,5,6 or perhaps 10, but they were not many.
Moncho: Radithotse says at that stage he had only 30 cattle including calves. What do you say to this?
Herbst: I don't know.
Moncho: Besides defendant's cattle, were there instances where other people's cattle entered your field without Radithotse's cattle?
Herbst: Yes.
Moncho: Just to clarify, we are talking about the period under which you are claiming?
Herbst: Yes.
Moncho: I am told that there are wild animals like Kudus that feast on your crops?
Herbst: That is true.
Justice Dingake said that Herbst had called two other witnesses, his employees, but they were not of much assistance to his case. It was at this point that Moncho made an application for absolution. Justice Dingake upheld the application saying Herbst had failed to establish prima facie that Radithotse's cattle entered his farm and caused the damage amounting to P92,000.
"No evidence has been led, whatsoever, with respect to the quantities of the crops that the Radithotse's cattle destroyed and the estimated value per unit or whatsoever measurement may be used," Dingake found.
"There was also no evidence led about how the damage was apportioned to various other people whose cattle were part of Radithotse's cattle when they entered Herbst's farm for the period under consideration, being January to October 2005.
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"Nor was there any evidence led of the damage that was occasioned by wild animals which Herbst conceded used to feast on his crops," Justice Dingake said, dismissing the case with costs.
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