About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Gqeberha
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Gqeberha
>>
2023
>>
[2023] ZAECQBHC 40
|
|
Rafu v Van Rensburg (760/2022) [2023] ZAECQBHC 40 (18 July 2023)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE
DIVISION, GQEBERHA)
Case No: 760/2022
In
the matter between:
SOLOMZI
ANTHONY RAFU
Plaintiff
And
HUGO
VAN RENSBURG
Defendant
JUDGMENT
BESHE J:
[1]
This is an action for general damages for injuries suffered by the
plaintiff as a result of having
fallen in the process of avoiding
defendant’s two dogs.
[2]
At the commencement of the proceedings, having heard the parties, a
separation order in the following
terms was made:
“
1.
The issues relating to the defendant’s alleged liability are to
be separated from the issues relating to the quantum of
the
plaintiff’s claim.
2. The matter is to
proceed first in relation to:
2.1 Particulars of
claim: paragraphs 1 – 4; paragraph 5 excluding the following
words “in the process incurring a fracture
of the distal radius
of the right arm”; paragraph 6 – 8; and paragraph 9
excluding the following words “which
in fact he did and
incurred a fracture of the distal radius of the right arm”;
2.2 Plea: paragraphs 1
– 6.
3. That the remaining
issues relating to the quantum of the plaintiff’s claim and the
corresponding paragraphs of the defendant’s
plea, are to stand
over for later determination.”
[3]
Plaintiff was also granted leave to amend paragraph 3.1 of his
particulars of claim to reflect the
date of the incident as the 8 May
2020 instead of 18 May 2020.
[4]
Plaintiff pleaded that on the said date and at or near […]
R[..] M[…], S[…] Street,
Swartkops, Gqeberha, he was
walking along the pavement when a vehicle driven by defendant’s
wife approached a motorised gate,
which opened. Two dogs ran out of
the premises through the said gate. The dogs ran towards the
plaintiff, giving him the impression
that he was being attacked. In a
bid to escape the dogs he stepped backwards or retreated and fell in
the process. The basis of
plaintiff’s claim against the
defendant, so it is pleaded, is that as the owner of the dogs he had
a duty of care
vis-a-vis
the public and the plaintiff in
particular in that:
He had to keep the dogs
under control and supervision;
Prevent the dogs from
escaping into the public area and charging and or attacking
pedestrians and the plaintiff in particular.
He should have ensured
that should anybody open the motorised gate the dogs do not escape.
Further that the conduct of the defendant
was unlawful and negligent
in that he breached the duty of care by allowing the dogs to escape,
failing to keep them under proper
or adequate control, failing to
control the dogs from attacking or giving the impression that they
were attacking pedestrians that
were passing by. Furthermore, on the
basis that it was reasonably foreseeable that in the event of a
breach of duty to care mentioned
earlier, plaintiff can suffer harm.
[5]
In resistance of plaintiff’s claim, defendant pleaded
inter
alia
that:
It is admitted that
plaintiff was at or near the pavement of the pleaded address just
before the incident occurred. Defendant admitted
allegations relating
to the motorised gate opening as the vehicle driven by his wife was
approaching the gate. The two dogs were
Jack Russels. He denied that
the dogs attacked the plaintiff and pleaded that they ignored the
plaintiff. Further that plaintiff
reacted without assessing the
situation, overreacted to a benign situation to dogs that were
greeting his wife. He failed to stand
still when the dogs exited the
premises, failed to look where he was stepping, failed to avoid the
occurrence of the incident when
he could or should have done so by
exercising reasonable care.
In the alternative,
defendant pleaded that plaintiff acted negligently when he acted in
the manner described above and that his
negligence caused or
contributed causally to the incident.
Evidence
[6]
As would appear from the pleadings, it is common cause that on the
day in question plaintiff was walking
on the pavement next to
defendant’s address when the motorised gate leading to the
residential complex opened, and defendant’s
two dogs came out.
This was also confirmed in evidence by the plaintiff and defendant’s
wife
Ms Karen Van Rensburg
. As to what happened after the dogs
came out through the gate, the witnesses give the following accounts.
[7]
According to the plaintiff,
Mr Rafu
, as he was walking towards
the gate in question, a motor vehicle stopped in front of the gate.
We know now that defendant’s
wife was the driver of the said
motor vehicle. The gate opened and two dogs came out. All this before
he could reach the gate or
go past the gate but was not far from the
gate. Even though the dogs were heading for
Ms Van Rensburg’s
motor vehicle, upon seeing him, they changed their direction and
started barking and came running towards him. He was still standing
at that stage but upon seeing that the dogs were aggressively coming
towards him and fearing that they were going to bite him he
waved
them away. They were at that stage not far from reaching his feet and
seemed to be intent circling him. Waving and shooing
the dogs away
did not elicit any response from both the dogs and
Ms Van Rensburg
who was still inside the motor vehicle. In a bid to make sure that
both dogs remained in front of him he moved backwards, he tripped
and
fell in the process. He could not get up even with
Ms Van
Rensburg’s
help because his right wrist was injured during
the fall. Plaintiff asserted that had the dogs not come out of the
gate, he would
not have been injured. Plaintiff confirmed during
cross-examination that the dogs did not bite him. He denied that the
dogs ignored
him. He stated that he did not know that the two dogs
were not in the habit of chasing pedestrians and insisted they
charged at
him.
[8]
The following emerged from
Ms Van Rensburg’s
evidence.
She stated that the two gates needed to open before she could drive
into the yard, their two dogs came out running towards
her motor
vehicle as they always do. They started running in a circle next to
the motor vehicle on her side of the motor vehicle.
They were not
aggressive and did not chase the plaintiff. The dogs were not in the
habit of chasing pedestrians. She testified
that plaintiff must have
gotten a fright when he saw the dogs running towards her motor
vehicle and circling next to it. She did
not see plaintiff waving his
arms. That to be able to access their unit easily, they open both the
outer gate leading to the complex
and the one leading to their unit.
It also transpired that the defendant was home at the time and in
control of the dogs. She conceded
that defendant failed to control
the dogs.
[9]
Mr Hugo Van Rensburg
, the defendant, testified that the two
dogs are kept inside their apartment. They do venture into public
spaces during some mornings
and before they go to bed apparently in
their company and the safety of the public has never been a problem.
He was at home on
the day of the incident but did not witness the
incident. His attention was drawn thereto by his wife who had been
away. He was
not aware that she had returned home. He asserted that
they had no option but to open both gates to access their property.
To do
otherwise would result in a “terrible mission”. It
would involve driving further up the premises and then having to
reverse into their unit if they opened one gate and waited for it to
close before opening the second one. Asked whether they opened
the
gates simultaneously regardless of the consequences, he answered
“yes”. Even if it means the dogs would go out.
He
conceded that he was not in control and supervising the dogs as he
was busy in the kitchen. He also conceded that had the door
been
closed, the dogs would not have gone out of their unit and go out
through the main gate of the complex.
Discussion
[10]
Plaintiff’s cause of action is that of negligence on the part
of the defendant. Contending that he
owed him (plaintiff) a duty of
care, that he breached the duty by failing to act in a reasonable and
careful manner. This, by failing
to keep his dogs under proper or
adequate control thus preventing them from attacking or causing the
impression that they were
attacking passerby.
[11]
Defendant’s defence is that of a denial. It is denied that the
dogs attacked or ran towards the plaintiff.
It is contended that the
dogs merely ignored the plaintiff. This was confirmed by
Ms Van
Rensburg
in his evidence. That the dogs remained next to her
motor vehicle.
[12] it
is clear from what has been said above that the parties presented
divergent versions only in so far as
whether the dogs charged at the
plaintiff. There seems to be an acknowledgement by the defendant and
his witness, his wife that
the plaintiff fell as a result of having
been frightened by the dogs running out of the premises. Of course,
plaintiff goes on
to say that they headed towards him in an
aggressive manner.
Ms Van Rensburg
denies that the dogs were
barking even though she conceded that they do bark. More about this
aspect later.
[13]
Plaintiff asserts that the defendant is liable for
the damages she suffered as a result of having fallen
because he
breached his duty of care towards him. In
Van
Eeden v Minister of Safety and Security
[1]
it
was stated that:
“
An
omission is wrongful if the defendant is under a legal duty to act
positively to prevent the harm suffered by the plaintiff.
The test is
one of reasonableness. A defendant is under a legal duty to act
positively to prevent harm to the plaintiff if it is
reasonable to
expect of the defendant to have taken positive measures to prevent
the harm”.
Defendant’s
case amounts to a concession that plaintiff fell as a result of being
frightened by defendant’s dogs. It
was however argued that the
incident was not foreseeable and therefore a reasonable man could not
have done anything to prevent
the incident. This because, it was
submitted the dogs were not in the habit of chasing pedestrians. They
had no history of chasing
passersby. Reliance was placed on a number
of decided cases in this regard. I must say that in argument
defendant’s case
went far beyond what was pleaded and presented
by defendant’s witness in evidence. For example, in defendant’s
written
heads of argument supplementing the oral argument delivered
earlier, it was submitted that defendant had no expectation that
anyone
would be on the street as it was Covid lockdown alert level 4.
This was not part of defendant’s pleaded case. It was however
also submitted that due to the long history of the
Van
Rensburg’s
owning these dogs and the dogs’ known circling conduct and
their obedient nature, it was unforeseeable that an incident of
the
nature described would play out. The dogs being small Jack Russels
aged 12 and ± 10 years old respectively. Again, this
was not
defendant’s pleaded case. I am not going to go through all the
allegations that are made during argument by defendant’s
counsel, yet they were not part of defendant’s pleaded case or
evidence. This, in my view was done to place the case under
consideration within the parameters of remarks made in a matter
referred to in
Deysel
v Karsten
[2]
on which reliance was placed by the defendant. In that matter a motor
cyclist was injured after having collided with the defendant’s
puppy which had run across the road. Defendant had apparently taken
reasonable care to prevent the dog from running into the street.
It
was not clear who had let the puppy out. It was held that a
reasonable owner would as a rule foresee that if his dog was allowed
to roam free, it would run into the street and cause damage to
passing motor vehicles. But because the owner of the dog had taken
reasonable care to prevent the dog from running into the street he
was absolved from liability. This decision was confirmed on
appeal.
It was further held that a reasonable dog owner would as a rule
foresee that, if his dog was allowed to wander freely,
it could cause
damage – although this would not be the case where the dog was,
for example, too old, too young, too sick
or too well disciplined. It
is the latter remarks made in
Deysel
matter that in my view, it is sought to fit defendant’s case
into these exceptions by extending the facts of the case beyond
what
was pleaded by the defendant and in some instances not even part of
his evidence.
[14]
Turning to the divergent versions of the parties. In my view, in
light of the common cause factors, the
only material fact to be
considered in this regard is whether after running out of the gate of
the residential complex the dogs
upon seeing the plaintiff moved
their attention from
Ms Van Rensburg
to the plaintiff and
whether or not they were barking. It is in these material respects
that there is no congruence between the
parties.
[15]
In
SFW
Group & Another
[3]
the technique to be employed by courts in resolving factual disputes
where there are two unreconcilable versions was said to be
the
following:
“
[5]
On the central issue, as to what the parties actually decided, there
are two irreconcilable versions.
So, too, on a number of peripheral
areas of dispute which may have a bearing on the probabilities. The
technique generally employed
by courts in resolving factual disputes
of this nature may conveniently be summarised as follows. To come to
a conclusion on the
disputed issues a court must make findings on
(a)
the credibility of the various factual witnesses;
(b)
their reliability; and
(c)
the probabilities. As to
(a)
,
the court’s finding on the credibility of a particular witness
will depend on its impression about the veracity of the witness.
That
in turn will depend on a variety of subsidiary factors, not
necessarily in order of importance, such as (i) the witness’s
candour and demeanour in the witness-box, (ii) his bias, latent and
blatant, (iii) internal contradictions in his evidence, (iv)
external
contradictions with what was pleaded or put on his behalf, or with
established fact or with his own extracurial statements
or actions,
(v) the probability or improbability of particular aspects of his
version, (vi) the calibre and cogency of his performance
compared to
that of other witnesses testifying about the same incident or
events. As to
(b)
,
a witness’ reliability will depend, apart from the factors
mentioned under
(a)
(ii),
(iv) and (v) above, on (i) the opportunities he had to experience or
observe the event in question and (ii) the quality, integrity
and
independence of his recall thereof. As to
(c)
,
this necessitates an analysis and evaluation of the probability or
improbability of each party’s version on each of the
disputed
issues. In the light of its assessment of
(a)
,
(b)
and
(c)
the
court will then, as a final step, determine whether the party
burdened with the
onus
of proof has succeeded in discharging it. The hard case, which will
doubtless be the rare one, occurs when a court’s credibility
findings compel it in one direction and its evaluation of the general
probabilities in another. The more convincing the former,
the less
convincing will be the latter. But when all factors are equipoised
probabilities prevail.
”
Similarly
and much earlier, the following was said regarding instances where a
court is faced with mutually destructive versions
in
National
Employers’ General Insurance v Jagers
[4]
:
“
It
seems to me, with respect, that in any civil case, as in any criminal
case, the
onus
can ordinarily only be discharged by adducing credible evidence to
support the case of the party on whom the
onus
rests. In a civil case the
onus
is obviously not as heavy as it is in a criminal case, but
nevertheless where the
onus
rests on the plaintiff as in the present case, and where there
are two mutually destructive stories, he can only succeed if
he
satisfies the Court on a preponderance of probabilities that his
version is true and accurate and therefore acceptable, and
that the
other version advanced by the defendant is therefore false or
mistaken and falls to be rejected. In deciding whether that
evidence
is true or not the Court will weigh up and test the plaintiff's
allegations against the general probabilities. The
estimate of the
credibility of a witness will therefore be inextricably bound up with
a consideration of the probabilities of the
case and, if the balance
of probabilities favours the plaintiff, then the Court will accept
his version as being probably true.
If however the probabilities are
evenly balanced in the sense that they do not favour the plaintiff's
case any more than they do the
defendant's, the plaintiff can
only succeed if the Court nevertheless believes him and is satisfied
that his evidence is true and
that the defendant's version is false.
”
It is with these dicta in
mind that I am going to approach the versions presented by the
plaintiff and the
Van Rensburgs
in this regard.
[16]
Plaintiff who is an adult male person (born on 2[…] F[…]
1968), painted a clear picture of
what occurred before two dogs came
out. It does not seem as though he was suddenly startled by the
appearance of the dogs. He had
seen
Ms Van Rensburg’s
motor vehicle park in front of the gate. He had stopped to give way
to her motor vehicle. He observed the gate open. He saw two
dogs come
out and head towards the motor vehicle. They however turned their
attention to him when they saw him. According to the
plaintiff the
dogs were barking when they charged at him. He had to walk backwards
to avoid them reaching him. If the dogs had
remained close to
Ms
Van Rensburg’s
motor vehicle and circled next to her door,
what would have caused the plaintiff to move from where he was
standing waiting for
Ms Van Rensburg’s
motor vehicle to
drive into the complex? Why did he retreat? We know the two dogs were
of a small breed, not big menacing dogs.
We do know however that the
dogs do bark according to
Ms Van Rensburg
, although according
to her they do not bark when going to meet her motor vehicle. We also
know that they came out of the complex
running. In my view, it seems
improbable that the plaintiff would have moved from where he was
standing to give way to
Ms Van Rensburg’s
motor vehicle
if the dogs had not charged at him. It is improbable that he would
have made a hasty retreat as it seems he did, resulting
in him
tripping and falling if the dogs did not charge at him in the manner
he described. I am satisfied that plaintiff’s
version is true
and accurate and therefore acceptable.
[17]
Does the defendant’s conduct of failing to keep his dogs under
a proper or adequate control and thus
prevent them from attacking the
plaintiff or causing the impression that they were attacking him,
amount to negligence on his part?
In my view, the answer is yes. The
test for negligence was stated to be the following in the matter of
Mukheiber
v Raath and Another
[5]
:
“
For
the purposes of liability
culpa
arises if‒
(a)
a reasonable person in the position of the
defendant‒
(i) would have foreseen
harm of the general kind that actually occurred;
(ii) would have foreseen
the general kind of causal sequence by which that harm occurred;
(iii) would have taken
steps to guard against it, and
(b)
the defendant failed to take those steps.
”
In my view, defendant’s
conduct falls squarely within this exposition of what amounts to
negligence.
[18]
For the reasons set out above, I am of the view that defendant should
be held liable for any damages suffered
by plaintiff as a result of
falling on the day in question. This on the basis that he owed
plaintiff a duty of care to protect
him and other passersby from
being attacked or made to believe that they were being attacked by
his dogs. Defendant breached this
duty by not keeping the dogs under
his control and supervision resulting in them escaping into the
public area.
Costs
[19]
Plaintiff’s counsel agitated for an order for costs on a
punitive scale, namely, attorney and client
scale of costs. The basis
for praying for punitive costs was, in
Mr Jooste’s
submissions that the opposition to the action was frivolous. That
defendant did not have a defence. Conceded that had the dogs
not be
allowed to exit the complex gate unattended plaintiff would not have
fallen. Cross-examination was protracted and amounted
to a fishing
expedition. I agree that cross-examination of the plaintiff was
protracted and rather aimless ranging from impugning
the date of the
incident, to suggesting defendant’s wife did not leave the
house because of Covid due to her ill health,
to introducing past
conduct of the dogs which was not part of the pleadings. The
topography of the area where the incident took
place was also thrown
into the mix, it being suggested that the plaintiff did not pay
attention to where he was stepping. I however
do not think that a
punitive costs order is warranted. I do not think that the defendant
or his counsel conducted themselves in
a vexatious or reprehensible
manner.
Order
[20] The
defendant is declared liable to compensate the plaintiff in such sum
as may be agreed or determined in due
course.
[21] The
defendant is liable for payment of plaintiff’s costs.
N G BESHE
JUDGE OF THE HIGH
COURT
APPEARANCES
For
the Plaintiff:
Adv:
P E Jooste
Instructed
by:
GREGORY
CLARK & ASSOCIATES INC.
9
Buffelsfontein Road
Mount
Pleasant
GQEBERHA
Ref:
G C Clark/Vicki
Tel.:
041 – 367 3489
For
the Defendant :
Adv:
A du Toit
Instructed
by:
BDP
ATTORNEY (GQEBERHA)
C/o
PAGDENS ATTORNEYS
18
Castle Hill
Central
GQEBERHA
Ref:
Jan Jan Eksteen/Helen Dalldorf
Tel.:
041 – 502 7240
Date Heard:
22 and 23 March 2023
Date Reserved:
23 March 2023
Date
Delivered: 18
July 2023
[1]
2003 (1) SA 398
(SCA) [9].
[2]
1994 (1) SA 447 (A).
[3]
SFW Group Ltd & Another v Martell et Cie & Others
2003 (1)
SA 11
at 14 [5].
[4]
1984 (4) SA 432
at 440 D-G.
[5]
1999 (3) SA 1065
(SCA) at 1077 E-F [31].