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[2023] ZAFSHC 357
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Tshabalala v Moekoena (5566/2021) [2023] ZAFSHC 357 (12 September 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
THE HIGH COURT OF SOUTH AFRICA
FREE STATE PROVINCIAL DIVISION
Reportable: yes/no
Circulate to other Judges: yes/no
Circulate to Magistrates: yes/no
Case Number: 5566/2021
BONGANI
DUNCAN TSHABALA
Plaintiff
and
THABO
JUSTICE MOEKOENA
Defendant
CORAM:
BERRY, AJ
HEARD
ON:
20 MARCH 2023
DELIVERED
ON:
12 SEPTEMBER 2023
JUDGEMENT
BY:
BERRY,
AJ
JUDGMENT
[1]
Quantum and merits are separated by agreement between the parties.
[2]
The Plaintiff was bitten by two pit bull dogs on the night of 21
August
2021 at around 23:45.
[3]
The Plaintiff travelled on his bicycle to his home from his business.
[4]
The incident occurred in Makhobo Street, Phahameng, Bethlehem.
[5]
It is not disputed that the incident occurred, but the Defendant
denies
that it was his dogs that bit the Plaintiff, as his property
is fenced in, and his dogs cannot escape from the property.
[6]
The Plaintiff testified that he saw two dogs in front of house number
[…], Makhobo Street.
[7]
As he passed them, they chased after him and attacked him.
[8]
The one dog is brown and identified in the photo marked Exhibit A.
This
photo is crucial to the finding in this matter.
[9]
The Plaintiff fell from his bicycle and managed to get hold of the
collar
of the brown dog depicted in Exhibit A, but he could not fend
off the attack and suffered injuries to his lower left leg and calve,
right arm, right ear, and right foot.
[10]
The attack was stopped when members of the public intervened and
chased the dogs away.
[11]
The Plaintiff was hospitalised for 12 days.
[12]
After the Plaintiff’s release from hospital, he approached the
community members
that assisted him, and they informed him that the
SPCA took the dog into its care after the attack.
[13]
The Plaintiff met up with Mr. Motloung, an employee of the SPCA who
helped him to identify
the owner of the dog.
[14]
Mr Motloung took a photo of the dog he took into the care of the
SPCA. The photo was accepted
as evidence and marked as Exhibit A.
[15]
The Plaintiff identified the one dog that attacked him from the photo
taken by Mr Motloung
(Exhibit A). A brown dog with a leather collar
with metal studs.
[16]
The photo of the dog shown in Exhibit B was obtained from Facebook by
the Plaintiff.
[17]
The Plaintiff testified that the Facebook photo is the second dog
that attacked him.
THE EVIDENCE OF MR MOTLOUNG (SPCA)
[18]
Mr Motloung is employed for ten years by the SPCA, and his duties
entail interacting with
the community to prevent animal cruelty.
[19]
He knows the Defendant as he assisted the Defendant to take the brown
dog identified in
Exhibit A to the veterinarian on 13 August 2021,
eight days prior to the incident.
[20]
He was requested to assist, as the Defendant could not manage the dog
by himself.
[21]
He had to use a catching pole, as the dog was aggressive.
[22]
The dog shown in Exhibit A was identified by Mr Motloung, as the dog
he took to the veterinarian
and the dog he rescued on 22 August 2021.
[23]
Mr Motloung testified that the dog wore the same brown leather collar
with metal studs
as shown in the picture, when he took it to the
veterinarian.
[24]
The Defendant also had another pit bull at his property when he
assisted with the brown
dog.
[25]
The Defendant called him on the morning of 22 August 2021 and
requested his assistance
to look for both dogs as they escaped from
his premises.
[26]
Mr Motloung testified that the Defendant told him that somebody left
the gate open and
that both his dogs escaped.
[27]
As Mr Motloung has seen both dogs before, he knew what they looked
like.
[28]
He received a call from the community members on Sunday 22 August
2021 to assist with the
rescue of a dog. The community wanted to kill
the dog because it attacked a person the previous evening.
[29]
On his arrival he took the dog to the local shelter.
[30]
He identified the dog he took into his care, as the dog in Exhibit A.
[31]
Mr Motloung testified that he personally took the photo marked as
Exhibit A.
[32]
He did not take another dog into the care of the SPCA as he only
found the brown dog depicted
in Exhibit A.
[33]
On Monday 23 August 2023 he contacted the Defendant and advised that
the dog depicted in
Exhibit A was in the care of the SPCA.
[34]
He only found the brown dog depicted in Exhibit A.
[35]
The Defendant came to fetch the dog but did not complete any
paperwork.
[36]
Under cross examination Mr Motloung testified that a male dog would
typically be fully
active five days after being neutered and that
five kilometres are not far for a dog to travel.
[37]
I accept that Mr Motloung is not qualified to give an opinion on the
period it would take
a male dog to become fully active after being
neutered, but the opinion was solicited by the Defendant.
EVIDENCE FOR THE DEFENDANT
[38]
The Defendant testified that the distance between his home and the
place where the attack
occurred is five kilometres.
[39]
As his male dog was neutered eight days prior to the incident, his
dog would not have been
able to walk the distance to the place where
the attack occurred.
[40]
The Defendant disputes that the photos of the dogs presented in
evidence, are his dogs.
[41]
The Defendant testified that he placed the photo of the dog (Exhibit
B) on his Facebook
profile, as it is a beautiful specimen and nothing
more.
[42]
The dogs in the photos are collared with leather collars, whilst he
uses choke chains on
his dogs.
[43]
The Defendant denied that it was his dog that was rescued by Mr
Motloung.
[44]
The Defendant denied that he fetched the dog from the SPCA.
ANALYSIS
[45]
The evidence of Mr Motloung is telling.
[46]
He first met the brown dog eight days before the incident, and he
rescued the same dog
when the public wanted to kill it.
[47]
The identification of the second dog via Facebook leaves doubt, but I
accept that the brown
dog identified in Exhibit A, belongs to the
Defendant.
[48]
This is a case where the attack did not occur on the premises of the
owner, thus it presents
difficulties in proving ownership of the
dogs.
[49]
I accept the evidence of Mr Motloung linking the brown dog with the
Defendant as owner
of the dog.
[50]
The probabilities of the Plaintiff being attacked by a brown dog and
the identified dog
being rescued by Mr Motloung the next morning
outweighs the denial of ownership of the dog by the Defendant.
[51]
Mr Motloung testified that the Defendant phoned him and requested his
assistance to look
for his dogs as someone left his gates open.
[52]
Therefore, the Defendant is liable for damages to be proven by the
Plaintiff.
ORDER
[53]
The following o
rder is made:
1.
The Defendant is liable for the damages
suffered by the Plaintiff.
2.
Damages stand over for later
adjudication.
3.
The Defendant is ordered to pay the cost
of the trial to date.
AP BERRY, AJ
APPEARANCES:
For
the Plaintiff:
Adv.
J Van Der Merwe
Instructed
by:
HL
Buchner
Honey
Attorneys
BLOEMFONTEIN
For
the Defendant:
Adv.
S Janse Van Rensburg
Instructed
by:
HARRINGTONS
INC
C/O
B Blair Attorneys
BLOEMFONTEIN