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[2011] ZAGPPHC 166
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Mahlase v Wakefield (A 159/2008) [2011] ZAGPPHC 166 (15 September 2011)
NOT
REPORTABLE
IN
THE HIGH COURT OF NORTH GAUTENG,
PRETORIA
(REPUBLIC OF SOUTH AFRICA)
CASE
NO: A 159/2008
DATE:15/09/2011
In
the matter between:
S
M
MAHLASE
................................................................................................................
Plaintiff
and
S
WAKEFIELD
............................................................................................................
Defendant
JUDGMENT
Ismail
J :
[A]
Condonation ( Non- compliance with Rule 50(7)
[1]
The appellant seek an order to re-instate the appeal in this matter;
and she also seeks condonation for the non-compliance with
the
provisions of Rule 50(7). The appellant tenders the costs of the
application save if the application is opposed.
[2]
To this end the appellant deposed to an affidavit setting out the
reasons for the non-compliance with Rule 50 (7).
[3]
Rule 50 (7) of the Uniform Rules of Court stipulates as follows:
"
(a) The applicant shall simultaneously with the lodging of the
application for a date for the hearing of the appeal referred
to in
subrule (4) lodged with the registrar two copies of the record:
Provided that where such an appeal is to be heard by more
than two
judges, the applicant shall upon the request of the registrar, lodge
a further copy of the record for each additional
judge.
(b)
such copies shall be clearly typed on foolscap paper in double
spacing, and the pages thereof shall be consecutively numbered
and as
from second January 1968, such copies shall be so typed on A4
standard paper referred to in rule 62 (2) or on foolscap paper
and
after expiration of a period of twelve months from the aforesaid date
on such A4 standard paper only. In addition every tenth
line on each
page shall be numbered."
[4]
The appellant in her affidavit furnishes reasons which caused a delay
in her complying with the provisions of rule 50(7). Her
reasons being
that she was traumatized after the event and that she could not fully
understand the judgment which was handed down
in afrikaans. The
judgment had to be translated for her in order for her to appreciate
and understand it. Furthermore she iost
her employment and she
experienced financial difficulties in order to execute the appeal.
[5]
The factors which a court should consider when there was a failure to
comply with the rules in prosecuting an appeal is dealt
with by
Erasmus -Superior Court Practice at B1 -366/7.
[6]
The appellant had from the outset considered to appeal the judgment
against her and for one or other reason was not able to
do so
timeousiy. In Meiane v Santam Insurance Co Ltd
1962 (4) SA 531
(A) at
532H "Among these are the factors that the subject-matter of the
appeal is substantial and of importance to the petitioner,
who has
suffered grievous injuries; that he has throughout desired to
prosecute his appeal and has at no time departed from that
standpoint; and on the other hand that the respondent's interest in
finality merits some consideration. With that prelude I tend
to what
seems to me to be the most important factor in this case, namely an
assessment of the prospects of success on appeal..."
[7]
Considering the factors referred to above I am of the view that the
Appellant's failure to prosecute the appeal expeditiously
in this
matter should be condoned.
[B]
The Merits
[8]
This is an appeal against the judgment of an order given by a
magistrate at Wonderboom dismissing the appellants claim with
costs.
[9]
The appellant (plaintiff in the court a quo) instituted proceedings
against the respondent (defendant in the court a quo) for
injuries
she sustained on the 19 December 2004. The injuries arose as a
consequence of the respondent's dog, a bull mastiff, attacking
and
biting the appellant.
[10]
The respondent pleaded that she was not liable as she left the dogs
in the care of her domestic helper. Furthermore, her property
was
separated in such a manner that the bull mastiff and the great Dane
dogs were to be kept at the back of the property. There
was a gate
which was to be locked at all times, in order not to allow the dogs
to get to the front of the property.
[11]
During the trial various witnesses testified on behalf of the
appellant / Plaintiff. The respondent also testified.
[12]
According to the appellant she was attacked by both the bull mastiff
and the Great Dane. Some of the other witnesses including
Mr Zuma
testified that it was only the bull mastiff which bit the appellant.
[13]
It was common cause that the appellant was bitten on the day in
question by the bull mastiff which belonged to the respondent's
late
husband. Initially it was contended and pleaded that the dog did not
belong to the respondent, however, this defense was a
superficial one
as the respondent when she testified referred to the dogs as being
her dogs.
[14]
The court a quo dismissed the claim with costs. In a judgment which
constituted no more than two pages. The crux of the magistrate's
judgment was that the appellant did not impress him as a witness and
that the gate which separated the dogs from the front was
not locked,
in his judgment the magistrate stated the following:
"
Eiseres het nie 'n goeie indruk op die hofgemaak nie, sy wou nie in
kruisondervraging vrae antwoord nie, en wou geen toegewings
maak nie.
Sy ontken of die verweerderes op die toneel was of by die hospital,
terwyl haargetuie MnrZuma verweerdered gestaaf het
dat sy wel op die
toneel was en larter ook by die hospital en was ook aangebied om die
kostes te betaal... ".
Verweerderes
ontken dat die honed haar eiendom is, en getiug verderdat die honed
agter 'n hek toegesluit word, wat net Winnie en
die huurder Danie
gebruik word.."
[15]
The dogs were presumed to have been Socked at the rear of the
premises and on that day the respondent returned from a weekend
away
from
her home and used the remote control to open the driveway gate and
suddenly the bull mastiff ran out onto the street and attacked
the
appellant.
[16]
The respondent's defense was that she left the dog in the care of
Winnie, who left the premises after she went away for the
weekend.
[17]
Of importance in Miss Mahlangu (Winnie) evidence was that she
testified that the gate was never locked with a pad lock. A lock
was
used but it was merely clipped over the chain as there were no keys
for the lock. Only after the appellant was attacked by
the dogs was a
lock purchased and she was given a key and instructed to lock the
gate. The significance of this evidence being
that the two dogs
according to the evidence often banged against the gate when they saw
other dogs. Miss Mahlangu testified that
she followed the procedure
applicable at the time.
[18]
If the dogs banged against the gate as they did and in so doing the
lock was displaced it merely needed force in order to open
the gate.
Once the gate was open the two larger dogs would have access to the
front of the property bordering the street.
[13]
Once the dogs are in the front of the property and the remote control
is used in order to access the opening of the gate, the
canines have
free movement to the street and the public at large.
[20]
There are only two possibilities whereby the dogs could find
themselves at the front of the property. The first being that
the
gate was left open for them to have free movement alternatively the
dogs banged against the gate and managed to open the gate
in that
manner.
[21]
This matter must be distinguished from those matter where a person is
entrusted the dogs to walk them in a park where the dogs
are tied to
a leash. The handler in such an instance be responsible if he cannot
manipulate the leash and the dog bites a third
party. The owner
cannot be held responsible for the actions of the dog. It is also
distinguishable from the matter of Lever v Purdy
1993 (3) SA 17
(AD).
[22]
In Lever's matter the dog was left in the care of one C who was left
in charge of the home in the appellant's absence. Respondent
who
requested C to lock the dog away when he visited the premises. C
undertook to do so and when the respondent came to visit he
was
bitten by the dog as C had not locked the canine as he had undertaken
to do.
[23]
In the matter before us if Miss Mahlangu had done what she was
instructed to do and despite that the dogs got to the front
because
the gate was not properly bolted but the lock was merely used to hold
the two ends of the chain together. Would that amount
to Miss
Mahiangu's fault ? Clearly not.
[24]
The respondent when she gave evidence stated that she would use her
remote control in order to open the driveway gate when
she was at her
neighbour's house. She did this as she feared that if she were to use
the electronic device whilst in front of her
driveway she could be a
potential target for hijackers. The gate would therefore be opened
before she could view her premises in
order to establish whether the
dogs were in front of her property or not. She followed this routine
and on the day in question
when the bull mastiff bit the appellant
she could not see the dog patrolling or running around at the front.
[25]
In my view the respondent had a duty to ensure that when she opened
the driveway gates that the dogs would not run out onto
the street
thereby causing a threat to pedestrians or to passing motorists. The
respondent's failure to ensure that it was safe
for her to enter her
premises without the dogs bolting onto the road amounted to
negligence on her part which resulted in the appellant
sustaining
injuries caused by the attack by the dog.
[261
The respondent also pleaded that she was not the owner of the buli
mastiff. She testified that the dog belonged to her late
husband.
However, whilst testifying and as the appellant's counsel rightly
pointed out she continuously referred to the dog as
her dog. See
record page 132 lines 8-14 where the following appears:
"
...ek het glad nie gesien my honde is voor nie want ek het nogal
redefik struike voor en as ek gesien het my groot honde
is voor sou
ek nooit my hek oopgelos het, ag oopgemaakhet"-
From
the aforementioned passage it is ciear that she acknowledges that the
dogs are hers. .
See:
Fourie v Naranjo and Another
[2007] 4 All SA 1152
( C) para [5] at
1153i-j.
[27]
The facts of this matter are distinguishable from that of the Lever
matter. In Lever's case the owner left the house in the
care of a
third party who was left in charge of the house and the canine. The
dog bit another person when the third party was in
charge. The third
party failed to secure the dog when he had undertaken to do so.
[28]
Mr Brand acting for the respondent in the appeal submitted that the
appellant did not plead vicarious liability and therefore
the
respondent could not be held culpable for the actions of the domestic
assistant's failure to ensure that the gate was secured.
According to
him such negligence cannot be imputed to the respondent as she was
away for the weekend
and
she expected the gate to have been locked.
[29]
Mr Brand also submitted that it could not be expected of a reasonable
man placed in the same circumstances as the respondent
to assume that
the gate would be opened thereby allowing the dogs access to the
front of the property. There was no reason for
the respondent to
believe that the gate would be left opened, in my view the respondent
failed to take reasonable steps to ensure
that when she pressed her
remote control in order to open the driveway gate the inner gate on
her property was at least closed.
By her own admission she opened the
driveway gate prior to her getting to her own property, namely whilst
she was alongside the
adjacent property from where she could not see
the inner gate on her property.
[30]
In my view in the light of the respondent's absence from the premises
for the weekend, she should have taken the care to ensure
that when
she returned and opened the driveway gate it was safe for her to do
so. In other words that the dogs were where they
were supposed to be
and that they would not bolt out of the premises onto the street.
See
Kruger v Coetzee 1996(2) SA 428 at 430 E-F where Holmes JA stated:
"
For the purposes of liability culpa arises if-
(a)
a diligence paterfamilias in the position of the defendant-
(i)
Would foresee the reasonable possibility of his conduct injuring
another
in his person or property and causing him patrimonial loss;
(ii)
would take reasonable steps to guard against such occurrence; and
(b)
The defendant failed to take such steps."
There
was a duty on the respondent to ensure that whenever she returned to
her house be it from shopping or absence for a longer
period she
should at least have ensured that it is safe for her to open her
front gates prior to driving onto her premises. Her
failure in
ensuring that the inner gate was closed in the circumstances is what
makes her culpable for the actions that followed.
[31
] This is particularly so as both the dogs, the bull mastiff and her
daughter's dog, the great Dane, were large dogs and were
not of a
docile and friendly temperament. They were known to pose a threat to
the respondent's smaller dogs.
[32]
In the circumstances I am of the view that the appeal against the
magistrate's judgment should succeed.
[33]
Accordingly I would recommend that the following order be made:
(I)
the appeal succeeds;
(ii)
the order made by the magistrate is set aside and replaced with an
order that the appellant's action succeeds with costs.
M
H E Ismail
Judge
of the High Court Gauteng North, Pretoria
I
agree
T.
J Kruger
Acting
Judge of the High Court Gauteng North, Pretoria
APPEARANCES:
For
Appellant: Adv De Klerk instructed by Dyason Inc, Attorneys,
Pretoria.
For
Respondent: Adv J Brand instructed by Andre Grobler Attorneys,
Pretoria North.
Date
of Appeal: 11 August 2011
Judgment
delivered : 15 September 2011