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2023
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[2023] ZAECQBHC 64
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Gerber v Adams-August (2926/2019) [2023] ZAECQBHC 64 (14 November 2023)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
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FLYNOTES:
PERSONAL INJURY – Dog bite –
Ownership
of dog
–
Defendant
signed form for impounding of dog after attack on plaintiff –
Defendant had from inception advised that she
was not owner –
Claimed that it belonged to her son – Accepted that dog
escaped through negligence of defendant’s
daughter –
Plaintiff failed to establish that defendant owned the dog –
Court invited to develop common law so
as to extend concept of
ownership of animal in pauperien claims and deem that the dog
belonged to defendant – Failure
to raise the issue in
pleadings or at any stage during trial – Claim dismissed.
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, GQEBERHA)
Case
No.: 2926/2019
In
the matter between:
GIDEON
GERBER
Plaintiff
And
EVRIL
OLIVIA ADAMS-AUGUST
Defendant
JUDGMENT
EKSTEEN
J:
[1]
On 21 October 2016 the plaintiff, Mr Gideon
Gerber, was attacked and savagely mauled, for no reason and without
any warning, by
a large dog described as a Pitbull Terrier, while he
was standing in the driveway of his property at […]1 V[…]
Street,
Mosel, Kariega. In and as a result of the attack he
sustained severe bodily injury and suffered damages. He
contended
that the defendant, Mrs Adams-August, was the owner of the
dog and he sought to recover damages in the amount of R2 433 875,65
from her.
[2]
Mr Gerber’s claim was pleaded under the
actio de pauperie,
and
in the alternative, in negligence. In her plea Mrs Adams-August
denied that she was the owner of the Pitbull Terrier that
attacked Mr
Gerber, or any other dog. It was pleaded that her son, who was
temporarily absent to seek employment in Gauteng
at the time of the
incident, owned a brown Pitbull Terrier (Gustav) that he had left in
the care of herself and her daughter, Mikayla,
while he was away.
She proceeded to explain in her plea that she had been away from home
and at work at the time of the incident.
Gustav, it was
alleged, was securely tied to a pole on a leash behind the house on
her property at […]2 V[…] Street
which had been
appropriately secured so that he could not escape. Accordingly,
she denied that it was Gustav that had attacked
Mr Gerber.
[3]
By agreement between the parties a separation of
issues was ordered. The separated issues in dispute that call
for decision
in this trial are whether:
(a)
It was Gustav that had attacked Mr Gerber;
(b)
Mrs Adams-August was the owner of Gustav; and
(c)
if Gustav was not her dog, she as owner of the
property, had been negligent in failing to take reasonable and
necessary steps to
prevent the risk of injury to Mr Gerber.
[4]
At the commencement of the proceedings there was
considerable confusion relating to the scene where the events
occurred and the
street numbers of the various properties in V[...]
Street. An inspection-in-loco was held during the course of the
plaintiff’s
case which clarified these issues and resolved a
number of disputes which arose during the course of the
cross-examination of the
first witnesses on behalf of the plaintiff.
It is instructive at this stage to sketch briefly the scene which
existed at
the time. As I have said, Mr Gerber resided at
[...]1 V[...] Street. V[...] Street is a short street which
runs from
south to north linking P[…] Street, at the southern
end, and H[…] Street, at its northern end, with a T-junction
on either end. Mr Gerber’s property is situated on the
western corner of V[...] Street and H[…] Street with the
driveway leading to his garage facing onto V[...] Street. There
are two metal gates which open manually at the entrance to
the
driveway. On the opposite corner, on the eastern side of V[...]
Street, is a large property, number […]3 V[...]
Street, which
apparently stretches over two erven so that there is no number […]4
in V[...] Street. Mr Japie Nel was
Mr Gerber’s next door
neighbour on the western side of the street and he lived at number
[…]5 V[...] Street.
[5]
The home of Mrs Adams-August, number [...]2 V[...]
Street, is situated on the eastern side of the street and, because
there is no
number […]4, is the third home from the corner of
H[…] Street. The homestead on her property is situated
approximately
in the middle of the erf with an enclosed front garden
and an open driveway entrance on either side. The front garden
is
enclosed by a face brick wall which varies in height as V[...]
Street proceeds down a hill. On top of the wall there is
palisade
fencing interspersed between various brick pillars. Of
significance to the evidence is the pillar on the extreme northern
side of the garden enclosure which was measured at the
inspection
-in-loco
to
a height of 1,4m. Approximately in the middle of the garden
wall is a metal palisade garden gate which opens onto a pathway
that
leads directly to the front door of the home. The ground floor
of the home is raised with an enclosed verandah three
steps higher
than the garden level. There is a security gate across the
entrance to the verandah as one approaches the front
door.
[6]
As I have said, there is an open driveway entrance
on either side of the property. On the northern side, set back
from the
street, there is a large, corrugated iron sheet fixed into a
concrete frame which extends from the edge of the house all the way
across the driveway onto the boundary of the property, thus
preventing entry into the back yard. The uncontradicted
evidence
is that the corrugated iron barrier is a fixture, but there
is a small pedestrian gate in the corrugated iron which is
permanently
locked.
[7]
On the southern side of the property there is a
garage which extends from the edge of the house in a westerly
direction towards
V[...] Street. It has a large white double
garage door built into the concrete frame at the entrance of the
garage and extending
across the entire width of the driveway onto the
verge of the property, thus again preventing entry into the back
yard, save through
the garage door. At the southern corner of
the house, where the garage wall extends in a westerly direction,
there is a small
wooden door leading into the garage and the evidence
of Mrs Adams-August was that it, too, is locked with a padlock on the
inside.
[8]
The
southern boundary of the property consists of a vibracrete wall of
substantial height
[1]
extending
from the garage all the way to the eastern boundary at the back of
the property. Ms Adams-August said that the
wall was higher
than her head and it has not been suggested by anyone that Gustav
could have escaped over that wall. At the
rear of the property
there are certain out buildings, described as apartments, which were
untenanted at the time, and the kitchen
door of the main house
leading to these apartments has a security door across its width.
The vibracrete wall, of similar
height, extends across the rear of
the property and along the northern boundary to the corrugated iron
barrier. Immediately
behind the corrugated iron barrier,
however, there is a stretch of the vibracrete wall which is
substantially lower. Mrs
Adams-August said that some
considerable time prior to the events in issue Gustav had indeed
jumped across the lower portion of
the wall into the property of her
next door neighbour, one Lobjoint. Mr Lobjoint had reported the
incident to her and threatened
to shoot the dog should it ever enter
his yard again. This prompted Mrs Adams-August to reinforce
that portion of the boundary
wall by the erection of a barbed wire
barrier to the same height as the higher portion of the vibracrete
wall. Mrs Adams-August
said that Gustav was unable to escape
thereafter and it did not happen again.
[9]
On 15 October 2016, approximately a week before
the attack on Mr Gerber, one Johnny Rossouw was attacked by Gustav in
H[...] Street.
Mrs Adams-August explained that her daughter,
Mikayla, had been home on that particular day when her father, Mrs
Adams-August’s
estranged husband, had come to visit her.
Gustav had been enclosed behind the house and both the front door and
the front
gate had been open as her husband was arriving. At
this stage Mikayla had briefly opened the back door, thus, accidently
permitting Gustav to rush past her, through the house and out of the
front gate. When Mrs Adams-August learnt of the attack
on Mr
Rossouw she immediately purchased a leash and chain and she said that
Gustav remained tied up to a pole in the back yard
thereafter to
avoid the repetition of such an event.
[10]
On the morning of 21 October 2016, she said that
she had been at work at her place of employment. She explained
that she had
left the home, together with her grandson, C[…],
at approximately five minutes to seven and had dropped Connor at
school.
Mikayla, she said, had obtained temporary employment in
Port Elizabeth and had left before she did. She said that she
had
secured all entrances to the yard and the home before departing
and that Gustav had been firmly tied up in the back yard, from which
he could not escape. When she returned from work in the late
afternoon, she found the house as she had left it and Gustav
tied up
in the back yard. Thus, she denied that it had been Gustav that
had attacked Mr Gerber.
[11]
As adumbrated earlier, Mr Gerber said that he was
attacked by a brown Pitbull Terrier whilst he and a friend, Mr Theuns
Blignaut,
were standing in the driveway on his property. The
attack was entirely unprovoked and he described the behaviour of the
dog
as vicious. After he had managed to free himself and closed
the gates of his driveway, he explained that the dog continued
to
endeavour to obtain entry by biting at the gates. Thereafter it
ran down the hill to the house of Mr Nel who had emerged
from his
house as a result of the cries of Mr Gerber. There, the dog
attempted to gain entry to the property of Mr Nel and
he described
the dog as apparently vicious. Both described how this dog had
proceeded to jump up over the most northerly
pillar of the garden
wall into the front garden of Mrs Adam-August’s home.
Neither could see the dog thereafter by
virtue of the walls that
obscured their views.
[12]
As I have said, Mr Gerber sustained severe bodily
injury and his friend, Mr Blignaut, proceeded to take him to the
Cuyler Clinic
in Kariega for medical treatment. They proceeded
down V[...] Street and drove past the home of Mrs Adams-August.
Mr
Gerber said that the front door of the house was open although the
security gates on the verandah were closed. He did not
see any
people. Mr Nel, too, confirmed both that the front door was
open and the security gate locked.
[13]
Mrs Emerentia Gerber said that she had not been
home at the time of the incident and proceeded directly to the Cuyler
Clinic when
she received news of her husband’s injury.
She returned home later in the morning. When she was at home,
there
was a further incident where a brown Pitbull Terrier caused a
commotion at the gates leading to her driveway and she proceeded
outside. She said that she noticed a young lady standing at the
entrance to the verandah at [...]2 V[...] Street who called
the dog.
The dog responded and ran back to number […]2 jumping over the
most northerly pillar of the garden enclosure
and then proceeded up
the stairs onto the verandah and into the house where the lady had
been standing. Mrs Gerber was uncertain
whether it was the same
dog that had attacked her husband, but she did call the police and
members of the SPCA. She said
that when the police were
present, and while she was speaking to the policemen, they noted two
young ladies walking down the street.
One was the same lady who
had called the dog. One of the policemen present called the
lady by her name, Mikayla. He
requested Mikayla ‘to come
and sort out this nonsense of this dog’. However, Mrs
Gerber said that Mikayla declined
and the two ladies walked off.
[14]
Mr Hein Whitebooi is a municipal official and he
accompanied members of the SPCA to V[...] Street in response to the
call by Mrs
Gerber. Mr Whitebooi testified that upon arrival at
number [...]2 V[...] Street he found a young lady who identified
herself
as Mikayla. He confirmed that Mikayla was uncooperative
and in reaction to his approaches Mikayla, together with another
young lady, got into their car and left.
[15]
None of the witnesses who testified were without
blemish, however, Mrs Adams-August, Mr Gerber and Mr Whitebooi all
made a favourable
impression in the witness box. Neither Mr
Gerber nor any of the witnesses called on his behalf are able to
contradict the
evidence of Mrs Adams-August in respect of the issues
set out earlier. Mr Gerber did attempt, tentatively, to suggest
that
the apartments behind the house of Mrs Adams-August had been
occupied by tenants at the time, however, he was constrained to
acknowledge
that he has no knowledge thereof. Both Mr Gerber
and Mr Nel asserted that Mrs Adams-August kept two Pitbull Terriers
on her
property and their evidence finds support from Mr Whitebooi.
Mrs Adams-August denied this. However, it is not necessary
to
resolve this dispute that can have no bearing on the material issues
in the matter. The uncontradicted evidence of Mrs
Adams-August
in respect of the enclosure of the property, the restriction of
Gustav and her securing her house upon her departure
that morning
must be accepted.
[16]
By parity of reasoning Mrs Adams-August is unable
to contradict the evidence of Mr and Mrs Gerber, Mr Nel and Mr
Whitebooi set out
earlier. She was not home during the course
of the day. As I have said, Mr Gerber’s observation that
the dog
returned to number [...]2 V[...] Street and that the front
door of the house was open upon his departure is corroborated by Mr
Nel. Mr Whitebooi and Mrs Gerber’s observation of
Mikayla’s presence at the house is uncontradicted. There
are a number of significant contradictions between the evidence of
Mrs Gerber and Mr Whitebooi relating to Mikayla’s presence
in
the street, the time of the observation and the manner in which she
departed from the scene. However, both confirm that
Mikayla was
home late in the morning and that she had a lady friend with her.
Had these witnesses colluded one would not
have expected the obvious
contradictions to which I have referred. The evidence of her
being home during the morning must
be accepted.
[17]
The irresistible conclusion to be drawn from these
considerations, as was submitted by Mr Van Rooyen, on behalf of Mr
Gerber, is
that Mikayla had indeed returned home during the course of
the morning, after the departure of Mrs Adams-August, that she had
freed
Gustav from his leash, and that Gustav had escaped through the
front door of the house. It also compels the conclusion that
Mr
Gerber was attacked by Gustav.
The
actio de pauperie
[18]
That
brings me to Mr Gerber’s main claim. The
actio
de pauperie
has
its origins in Ancient Roman Law and was recognised in the Roman
Dutch Law. In
O’Callaghan
NO v Chaplin
[2]
the
Appellate Division confirmed that it still formed a part of our law
in South Africa
[3]
.
[19]
In order to succeed in a claim under the
actio
de pauperie
a plaintiff must allege and
prove that:
(a)
The
defendant was the owner of the animal when the damage was
inflicted;
[4]
(b)
the animal was a domesticated animal;
(c)
the animal acted contrary to the nature of a
domesticated animal generally in causing damage to the plaintiff; and
(d)
the conduct of the animal caused the plaintiff’s
damage.
The
requirements under (b), (c) and (d) have been established and are not
in dispute. The matter turns on ownership.
In
O’Callaghan
NO
[5]
Innes CJ (with whom De Villiers JA concurred) emphasised:
‘
By
our law, therefore, the
owner
of
a dog that attacks a person who was lawfully at the place where he
was injured, and who neither provoked the attack nor by his
negligence contributed to his own injury, is liable,
as
owner
,
to make good the resulting damage. … It is confined of course
to cases where
liability
is based upon ownership alone
.
Actions may be founded under appropriate circumstances on
culpa
,
and they will be governed by the ordinary rules regulating Aquilian
procedure. The conclusion is satisfactory for two reasons
especially.
In the first place it provides a remedy in cases where otherwise
persons injured would be remediless. Instances must
occur where a
dog, a bull, or other domesticated animal inflicts damage under
circumstances which make it impossible to bring home
negligence to
the owner. Yet of two such persons it is right that the owner, and
not the innocent sufferer, should bear the loss.
And in the second
place the adoption of
culpa
as
the sole basis of liability would inevitably lead us towards the
scienter
test
. . . which it is common cause is not the test which our law applies
in cases of this kind.’
(My
underlining)
[20]
In
South
African Railways and Harbours v Edwards
[6]
De
Villiers CJ
[7]
thought it useful
to summarise the relevant principles in relation to the remedy in
which he again emphasised:
‘
(1)
The
actio
de pauperie
is
in full force in South Africa. … (2) The action is based upon
ownership. … (3) The action lies against the owner
in respect
of harm done by domesticated animals, … acting from inward
excitement. ... (5) Dating back as this form of remedy
does to the
most primitive times, the idea underlying the
actio
de pauperie,
an
idea which is still at the root of the action, was to render the
owner liable only in cases where so to speak the fault lay with
the
animal. …’
[21]
Thus,
both in Roman Law and that of Holland, the responsibility for damage
done by one’s animal is founded on ownership.
[8]
Possession and control over the animal is insufficient to found a
claim under the
actio
de pauperie
[9]
.
Thus,
in
Moubray
v Syfret
[10]
where
a plaintiff had been injured on a public road by a bull which had
been acquired by the defendant under a hire-purchase agreement,
the
action failed as the defendant was, under the law of hire-purchase,
not yet the owner.
[22]
As
adumbrated earlier, Mr Gerber, as plaintiff, bore the onus to prove
the ownership of Gustav. Mrs Adams-August denied that
she was
the owner. She said that Gustav had been acquired by her
husband, from whom she is now estranged, at a time when
they still
lived together with their family. He gave Gustav to her son
Rivaro, as a gift, when she and the children moved
out of the common
home to take up residence in V[...] Street. She contended that
Rivaro, an adult man at the time, accepted
the gift and it was at all
times his dog. At the time of the incident Rivaro had
temporarily gone to Gauteng in order to
seek work and had left the
dog in the care of his sister, Mikayla.
[11]
[23]
When this proposition was put to Mr Gerber and to
Mr Nel they were constrained to concede that they had no knowledge of
the ownership
of the dog. However, Mr Whitebooi said that he,
together with a representative of the SPCA, had returned to the home
of Mrs
Adams-August on 24 October in order to impound the dog.
There Mrs Adams-August was required to sign a document headed
‘ADMISSION,
ASSESSMENT AND HISTORY RECORD’. This
document formed the cornerstone of Mr Gerber’s case in respect
of ownership.
[24]
The upper half of the document contains the
particulars of the dog and Mr Whitebooi acknowledged that he had
completed that portion
of the form there, in the presence of Mrs
Adamas-August. The middle section of the document contains the
particulars of Mrs
Adams-August and that was completed in the
handwriting of the official from the SPCA. She did not testify,
but Mrs Adams-August
said that only the top section had been
completed when she was asked to sign. Her signature
appears at the foot of
the page below the section headed ‘STATEMENT
OF SURRENDER’. The document is a pro forma printed form
which provides
for various alternatives. In order to emphasise
the alternatives chosen certain words had been encircled and having
regard
to words encircled the material portion reads:
‘
I
do hereby certify that I do … own the animal described above,
that … it is not a stray and I do … know where
it comes
from.’
Mr Whitebooi signed as a
witness to her signature.
[25]
Mrs Adams-August testified that the form was
signed in her home before Mr Whitebooi had impounded Gustav.
Mikayla was present
and she had resisted the impoundment of Gustav.
She was emotional and Mrs Adams-August had endeavoured to console her
and
to persuade her to permit Gustav to be impounded. She said
that her attention had been primarily on consoling Mikayla.
In
these circumstances the document was placed before her and she was
requested to sign it. Upon an enquiry as to what it
is that she
was signing for they had advised her that her signature was required
for them to impound Gustav. She explained
that she had told Mr
Whitebooi that she was not the owner of Gustav and that it belonged
to her son. At the insistence of
the lady from the SPCA she had
signed the form, and she said that she had requested them to note on
the form that she was not the
owner of the dog. The document
does not reflect the note and Mrs Adams-August explained that they
had not left her a copy
of the document when they left. Thus,
she was not aware of the omission.
[26]
The account given by Mrs Adams-August paints the
picture of an emotional scene that prevailed and she said that she
did not, in
the circumstances, read the document before she signed
it. However, she was emphatic that she did not encircle the
words,
nor did she see any circles on the document when she signed
it. She remained adamant that she had told Mr Whitebooi that
she did not own Gustav.
[27]
The account of Mr Whitebooi lends credence to her
evidence. He admitted in cross-examination that Mrs
Adams-August had indeed,
on this first occasion that he saw her, told
him that Gustav was not her dog and that it belonged to her son who
was temporarily
away. He also acknowledged that she had advised
him that Gustav had been left in the care of Mikayla. He
confirmed
that Mikayla was emotional and had initially resisted the
removal of Gustav. When Mikayla ultimately accepted Gustav’s
fate she went outside with Mr Whitebooi where the dog was found tied
to a pole with a leash and a chain. Mikayla freed Gustav
and
she guided him to their vehicle where she loaded him. Mr
Whitebooi was unable to say who had encircled the words on the
form
nor when it had been done.
[28]
Later, on 2 November 2016, when it had been
resolved by the municipal authorities to euthanize Gustav, Mr
Whitebooi returned to
[...]2 V[...] Street to deliver a notice of the
intention to euthanize him. Again Mrs Adams-August explained to
him that
she did not own Gustav and that the owner was not available
in the Eastern Cape at the time. On this occasion a note was
indeed made on the notice and the communication recorded. Mr
Whitebooi again confirmed her evidence in this regard.
[29]
In consequence of the attack on Mr Gerber a
petition had been drafted, at the initiative of Mrs Gerber, to have
Gustav removed.
Mr Gerber said that early in November Mrs
Adams-August approached him and Mrs Gerber at their home to request
that they withdraw
the petition because her son was in ‘rehab’
and she was afraid that he was going to get a shock if he were to
hear
that Gustav had been removed. The visit to the Gerbers is
not in dispute and Mrs Gerber confirmed Mr Gerber’s account.
Mrs Adams-August denied that she had pleaded for the withdrawal of
the petition or that her son had been in rehab at the time.
She
said that she had just learnt that it had been alleged that it was
Gustav that had attacked Mr Gerber and she approached them
to confirm
this. On a conspectus of the evidence I think that the account
of Mr Gerber is to be preferred. However,
in the context of the
dispute in respect of ownership of Gustav Mr Gerber’s evidence
of this meeting militates in favour
of Mrs Adams-August’s
contention that Gustav belonged to her son, hence her concern for his
reaction.
[30]
In cross-examination of Mrs Adams-August she
acknowledged that her son, Rivaro, had at all times been unemployed
but she said that
he did perform odd jobs from time to time and
earned small amounts. She admitted that Gustav had been
resident at number
[...]2 V[...] Street from the time that her family
had taken up occupation there and that she had contributed to the
purchase of
dog food from time to time. It was suggested to her
that Gustav was in fact a ‘family dog’, a suggestion
which
she dismissed. She did, however, acknowledge that she had
paid for the enhanced security to apply the barbed wire across the
lowered section of the vibracrete wall adjoining the property of Mr
Lobjoint.
[31]
Accordingly, Mr van Rooyen argued that I should
find that in fact Mrs Adams-August was the true owner of Gustav.
He suggested
that her evidence that Gustav did not belong to her was
‘a calculated ploy’ to avoid liability in the matter.
I am unable to find any foundation to support the conclusion
contended for. As adumbrated earlier she had, from the
inception,
and long before there was any suggestion of litigation,
advised Mr Whitebooi that she was not the owner of the dog and that
it
belonged to her son. It is not a recent fabrication and the
support which is found in the plaintiff’s own case for this
contention leads ineluctably to the finding that the plaintiff has
failed to establish that Gustav was Mrs Adams-August’s
dog.
[32]
Appreciating
this difficulty Mr van Rooyen invited me to develop the common law so
as to ‘extend the concept of ownership
of an animal in
pauperien claims and deem that Gustav belonged to the Defendant’.
I shall accept, for purposes of this
judgment, that there may be
scope of the development of the principles of pauperien law in an
appropriate case.
[12]
The difficulty for the plaintiff in this matter, as adumbrated
earlier, is that the pleaded case in the main claim is founded
exclusively on ownership. On numerous occasions during the
cross-examination of Mrs Adams-August Ms Ntsepe, on behalf of
Ms
Adams-August, objected to Mr van Rooyen’s cross-examination on
the basis that it was not relevant to the question of ownership.
She restricted his cross-examination, and her re-examination, to the
pleaded case.
[33]
In his
pleadings Mr Gerber made no reference to the power of the court to
develop the common law
[13]
nor
did he attempt to formulate the development that would be contended
for. The first suggestion of a development of the
common law
arose during the argument of the matter. In
Prokureursorde
van Transvaal v Kleynhans
[14]
Van Dijkhorst J emphasised that procedural fairness demanded that
constitutional points, like any other points of law, should be
properly pleaded so that they may be fully explored in evidence.
[15]
This is not a technical issue. It is essential for the defendant to
be advised of the proposed development of the common
law that will be
contended for to enable the defendant to present evidence which may
be relevant thereto and to prepare to cross-examine
the plaintiff’s
witnesses in respect thereof. The failure to raise the issue in
the pleadings, or at any stage during
the trial, renders it
inappropriate for me to rule upon the issue.
Negligence
[34]
I turn
to the alternative claim based on the alleged negligence of Ms
Adams-August. I have described the enclosure of the
back yard
at number [...]2 V[...] Street earlier and, as I have said, Ms
Adams-August said that Gustav had been tied up to impede
his free
movement in the back yard when she left that morning. Mr van
Rooyen accepted at the conclusion of the trial, correctly
in my view,
that Gustav had escaped through the house in consequence of the
negligence of Mikayla and that he had accordingly not
established
negligence on the part of Ms Adams-August which may have contributed
to the escape of Gustav.
[16]
He did not persist in this claim.
[35]
In the result, the plaintiff’s claim is
dismissed with costs.
J
W EKSTEEN
JUDGE
OF THE HIGH COURT
Appearances:
For
Plaintiff:
Adv C
van Rooyen
Instructed
by:
Lessing
Heyns & Van der Bank Inc, Gqeberha
For
Defendant:
Adv N
Ntsepe
Instructed
by:
Goldberg
& De Villiers Inc, Gqeberha
Date
Heard:
6
November 2023
Date
Delivered:
14
November 2023
[1]
Ms
Adams-August estimated it to be 1,8m.
[2]
1927
AD 310.
[3]
See
also
Loriza
Brahman en ‘n ander v Dippenaar
2002
(2) SA 477
(SCA) 482-485;
Van
der Westhuizen v Burger
2018
(2) SA 87
(SCA) at para 25.
[4]
O’Callaghan
NO
at
330; and
Solomon
and Another NNO v De Waal
[1972]
2 All SA 112 (A), 1972 (1) SA 575 (A).
[5]
At
329-330.
[6]
1930
AD 3.
[7]
At
9-10.
[8]
O’Callaghan
NO
at
344; and
Van
der Westhuizen
para
27;
Van
der Walt and Midgley: Principles of Delict
(4
th
ed)
47.
[9]
Neethling
and Potgieter: The Law of Delict
(8
th
ed)
436;
Maree
v Diedericks
1962
(1) SA 231
(T) at 238H.
[10]
Moubray
v Syfret
1935
AD 199.
[11]
As
adumbrated earlier in the judgment the pleaded case was that the dog
had been left in her care and that of Mikayla.
[12]
See
J
Neethling and J M Potgieter: Die hoogste hof van appèl
bevestig die bestaansreg van die Actio De Pauperie
2003
TSR 590; and
Van
der Merwe: Skade Veroorsaak deur Diere
266.
[13]
Section
173 of the Constitution.
[14]
1995
(1) SA 839
(T) at 849A-B.
[15]
See
also
Le
Roux v Direkteur-Generaal van Handel en Nywerheid
1997
(4)
SA
174
(T) at 185B-H.
[16]
See
Deysel
v Karsten
[1993] ZASCA 117
;
1994
(1) SA 447
(A) at 457D-H.