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Zorada Temmingh

Dogs provide companionship and may also provide protection. Owners should be aware of the attendant risks and responsibilities of owning and keeping a dog or other animal. Particularly important is the potential liability for damage caused by the animal, even if the owner was not at fault. The recent case of Van Meyeren v Cloete (639/2019) [2020] ZASCA 100 (11 September 2020) illustrates this risk.

In this case the Supreme Court of Appeal (“the Court”), found Mr van Meyeren (the owner, referred to as “Appellant”) to be liable to Mr Cloete (the injured person, referred to as “Respondent”), for damage caused by and arising from a dog attack.

The facts.

The Respondent, an itinerant gardener and refuse collector, was walking to a grocery store when he was attacked in a public street by three dogs, without any warning or any apparent reason. He sustained serious injuries which resulted in the amputation of his left arm. The dogs were owned by the Appellant, and they gained access to the street by way of an open gate on the Appellant’s premises.

Neither the Appellant, nor his family, were present on the premises at the time the attack occurred. The Appellant argued that an unknown intruder might have attempted to gain access to the premises by breaking the two padlocks of a locked gate, which left the gate open or in such a state that the dogs could break it open.

The claim.

The Respondent instituted a claim under the actio de pauperie to recover damages from the Appellant. The actio de pauperie is an action deriving from Roman law, based on the principle that the owner of a domesticated animal that attacks a person who was lawfully at the place where the attack occurred, and who neither provoked the attack nor by negligence contributed to the attack or injury, is liable to compensate the injured person for the damage suffered. The actio de pauperie is therefore an action based on strict liability of the owner of the animal. The claimant is not required to prove that the owner was at fault (negligent).

The legal principles.

The legal question was whether the owner could rely on the negligence of a third party who was not in control of the animal at the time the attack occurred (the intruder in this case), as a defence against liability under the actio de pauperie.

The Court compared South African law to English common law, where the so-called “scienter” (knowledge) test is applied, so that the owner of an animal is liable only if aware of the animal’s tendency to cause harm. The result is sometimes referred to as the “one free bite” rule. The Court held that this rule is not applicable in South Africa. The Court referred to the well-known judgment of Kotzé JA in the case of O’Callaghan NO v Chaplin 1927 AD 310:

It is satisfactory to find that the actio de pauperie still forms part of our law… I think the conclusion is a sound one and just, for if a man chooses to keep an animal, and injury or damage is caused by it to an innocent person, he must make adequate compensation. The owner of the animal and not the person injured must bear the loss.”

The Court noted that an element of anthropomorphism is sometimes apparent in the application of the actio de pauperie. This means that the self-constraints generally required of human beings are also applied to animals, so that an owner of an animal is held liable only if an element of “fault” can be attributable to the animal.  The Court confirmed that the test to be applied to the behaviour of the animal is that of comparing the general nature of domesticated animals to the behaviour of the animal that caused the harm. If the behaviour is contrary to the nature of domesticated animals (contra naturam sui generis), the element of “fault” is present. Therefore, if the animal acted as a result of being provoked, frightened, or in pain, the behaviour was not contra naturam sui generis and liability is not imposed on the owner.

The other defences that can be raised by an owner to avoid liability under the actio de pauperie, as accepted in the case of O’Callaghan NO v Chaplin, are the following:

  • The injured party did not have a legal right to be on the premises where the attack occurred. Unlawful presence of the injured person provides a defence for the owner. A person has a legal right to be on premises, for example, if there was permission or an invitation to be there.
  • Where the animal was restrained and the injured party ventured within reach, such an action by the injured party would also provide a defence. However, if the attack occurred in a public place, the owner will still be held liable.
  • The Court further referred to the case of Lever v Purdy 1993 (3) SA 17 (A), where it was decided that the owner can raise as a defence that a third party was in charge or control of the animal at the time of the attack, and that the third party negligently failed to prevent the animal from causing harm.

In the present case the Appellant argued that defence (c) should be extended by developing the common law to exempt the owner from liability where the harm would not have occurred but for the negligent conduct of a third party, irrespective of whether the third party had custody or control of the animal. The Appellant further argued that he took appropriate steps to ensure that the dogs could not escape from the premises, and that he should therefore not be held liable. The Appellant also argued that, given the high levels of crime in South Africa, people are entitled to protect their persons and homes against criminals.

The Court did not agree, and decided as follows:

Deterrence or restraint of an intruder is one thing. Killing or seriously injuring them is another. Only in extreme circumstances is it permissible to shoot and kill an intruder in self-defence. Why then should it be permissible to keep a dog that, irrespective of the level of threat, may kill or maim them?

The Court found that, because the dogs attacked an innocent passer-by on a public street, and not on the Appellant’s premises, the Appellant’s argument that the dogs were kept for protection was irrelevant and invalid.

The Court further found it to be contrary the interests of justice to develop the common law and extend the defences to the actio de pauperie to include negligence of a third party who was not in control of the animal at the time an attack occurred. The Court held that a person who decides to own an animal for companionship or protection also agrees to the obligations and responsibilities of the ownership. A domesticated animal can cause harm to people and property, and when such harm is caused to an innocent injured party, the interests of justice require that the owner of the animal should be held liable.

The Court further held that an extrinsic cause such as leaving a gate open and allowing animals to escape from the owner’s property is also irrelevant to the behaviour of those animals once they have escaped. Should there have been an intruder, responsibility did not pass from the Appellant to the intruder in respect of the dogs. The Appellant continued to be the person who carried the responsibility, as owner of the dogs. The Court went on to say:

Mr van Meyeren does not dispute that the requirements of pauperien liability were satisfied. He sought to escape liability on the basis that what occurred here was not his fault. But absence of fault has never been a basis for avoiding pauperien liability. It proceeds on the basis of strict liability arising from ownership of the animal that caused harm. Absence of fault is a ground for resisting Aquilian liability, not a claim under actio. ”The appeal of the owner, Van Meyeren, was therefore dismissed with costs.

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