Mtokwana v Trollip (564/2015) [2021] ZAECMHC 42 (30 November 2021)

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[2021] ZAECMHC 42
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Mtokwana v Trollip (564/2015) [2021] ZAECMHC 42 (30 November 2021)

IN
THE HIGH COURT OF SOUTH AFRICA

[Not
Reportable]
[EASTERN
CAPE LOCAL DIVISION, MTHATHA]
CASE
NO: 564/2015
In
the matter between:
SONWABILE
MTOKWANA

Plaintiff
and
REGINALD
TROLLIP

Defendant
JUDGMENT
NHLANGULELA
DJP
[1]
These are action proceedings in which the plaintiff sues the
defendant for payment of damages
arising from an alleged biting by
the dog belonging to the defendant.  The plaintiff’s claim is
premised on
actio de pauperie
.  Therefore, in terms of
the case of
Loriza Brahman v Dippenaar
2002 (2) SA 477
(SCA)
the plaintiff bears onus to prove the existence of the ingradients of
actio de pauperie
, which are the following:
(a)
the defendant is the owner of the dog that bit the plaintiff;
(b)
the dog is a domesticated animal;
(c)
the dog acted contrary to the nature of domesticated animals
generally (
contra naturum sui genesis
) in causing damages to
the plaintiff;
(d)
the conduct of the dog caused the plaintiff’s damage.
See
:
Harms:
Amler’s Precedents of Pleadings
9
th
Ed at pages 40-41.
[2]
The task at hand is to determine the issue of liability as the issue
of
quantum
was separated by agreement of the parties in terms
of the provisions of Rule 33 (4) of the Uniform Rules of this Court.
[3]
In this case the defendant pleaded that the plaintiff was bitten by
certain dogs, not his
dog.  Therefore, the plaintiff is saddled
with onus to prove all the ingredients of
actio de pauperie
against the defendant
.
[4]
On the one side, the plaintiff and Ms Phumeza Mnqwazana, his witness,
testified.  On
the other side, the defendant and Mr Trevor
Cornwell, his witness, testified.
[5]
The background facts are that on 30 October 2013 and at Stinkwood
Street, Hillcrest, Mthatha,
the plaintiff was bitten by a dog(s)
which caused him bodily injuries, and certain sequelae thereof.  The
defendant took the
plaintiff to
St Mary’s Hospital
on his
bakkie and paid a fee in the sum of R400,00 that was required by the
Hospital, which the plaintiff was unable to pay.
The plaintiff
was admitted and detained there for a period of approximately one
week for the purposes of medical treatment.
[6]
The plaintiff testified that he resides at No. 60 Rosewood Street,
Hillcrest, Mthatha.
On 30 October 2013 he left his place of
employment to get home.  It became necessary for him to walk
past Stinkwood Street in
order to reach home in Rosewood Street.
The time was about 7:30 pm.  It was already dark and raining.
He had an
umbrella in his possession.  When he reached the
section of Stinkwood Street that is adjacent to the house of the
defendant,
and just opposite the gate, which was open, a dog emerged
from the gate, charged at him and upon contact with the dog he was
felled
into a pothole that was filled with rain-water.  The dog
persisted in its attacking mode as the plaintiff was lying on his
back
helplessly.  He could only scream asking for help.
The screaming drew the attention of the number of ladies whose
attempt
to remove the dog from the plaintiff was thwarted by the
angry and growling dog that would not let loose of the plaintiff.
It took Mrs Trollip to come to the scene who managed to remove the
dog from the plaintiff and ordered it back into her premises.
According to the plaintiff the brutality of the attack and biting by
the dog caused him serious bodily injuries on the legs, hands
and
chest.  Having been relieved from the attack certain children,
who had also been attracted to the scene helped him to call
his
friend by the name of Willie to rush to the scene.  The
defendant too, whose bakkie had been seen by the plaintiff parked
infront of the gate, arrived to give assistance.  After Willie
had lifted the plaintiff from the ground and placed him into
the
defendant’s bakkie, the defendant took the plaintiff to Dr
Malinga’s surgery and, thereafter, to
St Mary’s Hospital
where he was admitted for a week.  The plaintiff told the Court
that there was never an occasion whilst he was lying down and
bitten
by the defendant’s dog when one Mr Trevor Cornwell came to his
rescue by pelting the dog with stones to chase it away.
[7]
When the plaintiff was cross examined he denied that she told the
magistrate of the criminal
court during trial that he did not notice
“from which homestead the dog was coming from.”   He
agreed with the defendant
that a group of women at the scene shouted
“Baby-Boy, Baby-Boy!” (a reference to the defendant) to alert him
that the plaintiff
was being mauled by a dog(s).  He denied that
the defendant’s bakkie was parked inside the premises of his house
at the time
when the dog was attacking him.
[8]
With regard to the identity of the dog(s) that caused the damage the
plaintiff was confronted
with the record of criminal proceedings at
page 2, line 3 which reads:
“
I met a big dog
which was approaching me from the front. This dog did not bark when I
met it and it attacked and bit me.
I
did not notice from which homestead the dog was coming from
.”
(underlining is for emphasis}
However,
on the same page the following appears at lines 15 – 24:
“
[The residents]
intervened but in vain and they called the owner of the dog.
A female person arrived and apparently, she
was accused’s wife.
The lady arrived and took her dog and left.  The dog is a big
one and had a big head.  It was
about +/- 60cm tall.  The
lady took her dog and did not come back, and the coloured people
phone her, and she came back.
The dog had no belt on its neck.
The lady was called by coloured people, and they told her to take me
to hospital.  They
asked her how her dog got out of the yard and
why was she not tying he dog up as the dog had been biting people.”
[9]
The plaintiff denied that the evidence he gave against the defendant
in the criminal court
exonerates the defendant from liability because
it soon came to light that the dog that bit him came from the
premises of the defendant.
[10]
Ms Mnqwazana is the wife of the plaintiff.   Other than to
confirm that she got to the place
after the dog(s) had bitten the
plaintiff, and that she was present at
St Mary’s Hospital
when the plaintiff was admitted in a ward to be treated for dog
biting, the evidence of Ms Mnqwazana is based on the report given
to
her by Mrs Trollip, the wife of the defendant.  She testified
that she arrived at the scene after the plaintiff had been
injured
and when he was being taken into the vehicle of the defendant to be
conveyed to hospital.  At that time Mrs Trollip
approached and
informed her that the plaintiff had been bitten by a dog belonging to
her and the defendant.  Mrs Trollip told
her that her dog had
left the premises through the gate; and she had thereafter found it
at the scene biting the plaintiff.
At that time, there was also
a group of women present at the scene.  Although she met Mrs
Trollip for the first time, Mrs Trollip
introduced herself as the
wife of the defendant, and that she worked at a hardware shop near
Bucca Star Café, Mthatha.  They
later on exchanged cell phone
numbers for the purposes of discussing about progress made by the
plaintiff whilst under treatment
at St Mary’s Private Hospital, and
to negotiate settlement of damages.  Ms Mnqwazana also told the
Court that the defendant
gave her a lift from
St Mary’s Hospital
to her house at Rosenwood Street.  On the way the defendant made
the undertaking to compensate the plaintiff for damages that
were
caused by his dog.  Based on Mrs Trollip’s report, Ms
Mnqwazana denied the version of the defendant that it was not his
dog
that bit and caused the plaintiff serious bodily injuries.
[11]
Mr Trevor Cornwell was the next witness to testify, doing so to
bolster the defendant’s case that it
was not the dog of the
defendant that attacked and injured the plaintiff.  He told the
Court that at about 7:30 pm, he and about
four other persons were
standing in the open space of the premises of Charmaine, his cousin.
The cousin’s house is situated
in Stinkwood Street, Hillcrest,
Mthatha, and is removed from the defendant’s house.  He stated
that it was not yet dark.
He heard dogs barking and screams
emanating from the street.  They picked up stones, left the
premises and threw stones at 7-8
dogs, chasing them away towards the
lower side of the street.  Then he saw the defendant’s dog
jumping over the wall fence
of the defendant’s premises and threw
stones at it to prevent it from attacking the plaintiff.  The
next thing he saw was
the defendant driving out of his yard until he
stopped it near the place where the plaintiff was lying down.
When asked the
question: “What about the keys?”, he replied that
he saw the defendant going back to his house and coming out with keys
and unlocking
the gate.  Thereafter, he and his companions
reverted to the house of his cousin.
[12]
Under cross examination Mr Cornwell stated that the dog of the
defendant emerged at a time when the 7-8
dogs were still mauling the
plaintiff and, as it were, it assisted him in chasing the dogs away.
He did not see the women standing
across the street, opposite the
defendant’s house, and shouting: “Baby-Boy, Baby-Boy…!”
He also stated that he did
not see the defendant picking-up the
plaintiff from the street.
[13]
Mr Trollip, testified that at about 7:30 pm he and his wife heard
dogs barking from outside, and then
heard voices of people shouting
his nick-name: “Baby-Boy, Baby-Boy…!”  He and his wife
decided to respond to the call
by going outside.  As the gate of
his house was locked, he stood near the fence where he was informed
by four women and few
men standing not far from his house, that his
dog had jumped over the wall.  On that information he was
prompted to get back
into the house to fetch gate keys in order to
open the gate.  After doing so, his wife alone went out of the
yard as he had
to get back to the house to fetch keys for his
bakkie.   On his way back he heard his wife asking him to
hurry up to the
street where the plaintiff was lying down.  He
then started the bakkie and drove it on the reverse gear out of the
yard until
he stopped it near the plaintiff.   Realizing
that the plaintiff was injured he lifted him up and placed him into
the bakkie.
The people who had called him to the scene were too
old to assist him to carry the plaintiff into the bakkie.  He
drove the
plaintiff to, firstly, Dr Malinga’s surgery and, after
that, to
St Mary’s Private Hospital
where the plaintiff was
admitted.  He told the Court that he paid a sum of R400,00 to
the Hospital because the plaintiff was
unable to pay for himself.
He denied that he had made an undertaking to pay for the damages as
alleged by Ms Mnqwazana.
[14]
The defendant told the Court that after his wife had opened the gate
she shouted for his dog to return
to the yard, and it responded.
However, the defendant stated under cross examination that there was
never an occasion during
his presence on Stinkwood Street when he had
to chase dogs away.  But he later retracted this statement and
said that he did
see many dogs on the street.
[15]
When Mr Trollip was asked about the type of a dog he was keeping in
his yard, he stated that it was a
domesticated animal, not a vicious
dog such as a pit-bull.  He stated further that his dog was kept
by him for the purpose of
preventing thieves who had been used to
trespassing into his premises and stealing his diesel and motor
vehicle tyres.  For
that purpose, he would routinely keep his
dog under a chain during the day and remove the chain at night time.
[16]
According to Mr Trollip the reason why he took the trouble of taking
the plaintiff to the hospital was
because he was merely rendering
help to the plaintiff who could not go to hospital on his own due to
dog-bite injuries he had sustained.
He disavowed the claim made
by the plaintiff’s wife that he had done so because his dog had
bitten the plaintiff.
[17]
Mrs Trollip did not testify, yet she is the co-owner of the dog that
allegedly bit the plaintiff.
[18]
It is common cause that the parties have presented evidence of
conflicting versions; the plaintiff stating
that the vicious dog
belonging to the defendant mauled him.  On the other hand, the
defendant’s case is that, the plaintiff
was injured by dogs that
did not belong to him.  For this reason, the Court should assess
the credibility and reliability of
each of the witnesses who
testified and weigh that up against the overall probabilities of the
entire evidence that was led.
This approach is articulated in
the cases of
Stellenbosch Farmers’ Winery Group Ltd and Another
v Martell Et Cie and Others
2003 (1) SA 11
(SCA) para [5];
Santam
Bpk v Biddulph
[2004] 2 All SA 23
(SCA) at para [6] and
National
Employers General Insurance v Jagers
1984 (4) SA 437
(E) at
440D-G.
[19]
As I understand the direct evidence of the plaintiff, the dog that
bit him emerged from the premises
of the defendant and it attacked
him from the front.  He had not provoked it, and at the time
there were no dogs present in
Stinkwood Street.  His belief that
the dog belonged to the defendant is shown in lines 15 – 24 of the
criminal record and
it is confirmed by the words and conduct of the
defendant’s wife.  The evidence that women who were present on
the Street
called for the defendant to stop his dog from attacking
the plaintiff is not neutral.  It corroborates, inferentially,
the fact
that the dog was generally known to be the property of the
defendant.  The evidence of the defendant does not discredit the
plaintiff’s evidence with regard to the identity of the dog that
caused harm to the plaintiff.  On his own showing, his wife
shouted for his dog that was outside the yard and occupying Stinkwood
Street, to come back into the premises of the defendant.
Although the defendant did not see what his dog did in the street,
the shouting for his intervention alerted him to the presence
of his
dog in the street at all material times relevant to the dog attack
upon the body of the plaintiff.  The attempt to impeach
the
credibility of the plaintiff by the statement he made in the
magistrates’ court did not succeed because, having denied that
he
did not know where the dog came from, he explained in this trial that
the dog came from the premises of the defendant.  His
explanation is supported by the evidence set out on page 2, lines
15-24.  I do not see contradictions between the evidence adduced
in the magistrates’ court and in this Court.
[20]
The gist of the evidence adduced by Ms Mnqwazana is that a report
given to her by Mrs Trollip implicated
a dog belonging to the
defendant.  Her evidence established the fact that Mrs Trollip
is the wife of the defendant.  The
evidence of the defendant
does confirm the presence of his wife at Stinkwood Street, as well as
that his wife called his dog back
to the yard after opening the gate
and taking a look at the place where the shouting ladies had drawn
her attention to, the place
where the plaintiff lay into the pothole
that was filled with water.  According to Ms Mnqwazana the
report was given to her
by Mrs Trollip that she saw her dog biting
the plaintiff and she was the person who removed it from the
plaintiff.  This evidence
is not inadmissible hearsay in nature
by reason that the provisions of
s 3
(c) of the
Law Of Evidence
Amendment Act 45 of 1988
permit the Court to admit the evidence of Ms
Mnqwazana in the interest of justice.  The Court was not told by
the defendant
that his wife was impeded from testifying in order to
contradict the evidence that she saw her/defendant’s dog biting the
plaintiff.
It would be prejudicial to the plaintiff, and the
Court, to exclude the hearsay evidence of Ms Mnqwazana in the
circumstances.
Ineluctably, the inference to be drawn is that
Mrs Trollip saw her dog biting the plaintiff.
[21]
The defendant’s contention is that because he did not see his dog
biting the plaintiff, therefore,
the plaintiff’s evidence that he
was bitten by his defendant’s dog should be rejected.  For
this theory to be believed,
he chose to introduce Mr Cornwell to
supplement his evidence.  But the evidence of Mr Cornwell is not
cogent.   The
contradictory evidence of the defendant
concerning presence or absence of many dogs in the street does not
make his poor evidence
any better.
[22]
Mr Cornwell’s evidence does not accord with the general
probabilities of this case.  He told this
Court that when he
left the premises of his cousin he, and 4 unidentified persons, threw
stones at 7-8 dogs chasing them away from
the plaintiff until they
disappeared down the street.  He stated further that he saw the
plaintiff’s dog jumping over the
wall fence at the same time that
7-8 dogs were biting the plaintiff.   He also stated that
the defendant’s dog assisted
him by chasing the dogs away.
Although the evening of 30 October 2013 was, according to him, not
dark he did not see the people
who called the defendant to the
scene.  He also did not see Mrs Trollip removing the dog from
the plaintiff and it returning
to the yard.  That the
defendant’s dog did not reach the plaintiff is negated by the
evidence that the defendant’s dog chased
7-8 dogs down the street;
the evidence of the defendant that he did not see dogs in the street;
and the evidence that Mrs Trollip
removed the dog from the plaintiff
contradict the evidence of Mr Cornwell and, generally, impugn his
credibility and the reliability
of his evidence.
[23]
It appears that Mr Cornwell arrived at Stinkwood after the plaintiff
had been attacked by the defendant’s
dog.   Had that not
been the case, Mr Cornwell would have seen Mrs Trollip ordering the
dog back to the yard (the version
of the defendant).  For this
reason, the version of the defendant that his wife called the dog
back to the yard cannot co-exist
with the version of Mr Cornwell that
the dog assisted him to chase away 7-8 dogs down the street.
Based on this material
contradiction in the defendant’s case, the
evidence of Mr Cornwell that he saw the defendant’s dog jumping
over the wall fence
cannot be sustained.  The defendant, and the
plaintiff, told the Court that the evening was dark.  Mr
Cornwell said it
was not dark. This contradictory evidence does mean
that his ability to see defendants dog biting the plaintiff was
compromised by
darkness.  I do not even believe Mr Cornwell’s
evidence that he saw the defendant fetching keys is correct given
that, according
to the defendant, the gate was still closed when he
went to fetch the keys.  In my opinion the entire evidence of Mr
Cornwell
bears the hallmarks of a made-up story and it, therefore,
falls to be rejected.
[24]
It was not available to the defendant to say that his dog did not
reach the plaintiff because he and
his wife heard screams from the
street the people shouted to attract his attention towards the
plaintiff who was lying on the street,
and bitten by a dog as his
wife asked him to hurry up to the scene, and that his wife shouted
for his dog to leave the street and
return to the yard.
[25]
In my opinion, the evidence of the plaintiff is simple and
straight-forwardly true.  That includes
the identification of
the dog and the uncontradicted evidence of Ms Mnqwazana that Mrs
Trollip admitted to her that the dog that
bit the plaintiff was the
property of the defendant.  The evidence of the defendant and Mr
Cornwell is not probable if regard
is had to the acceptable evidence
of the plaintiff that he screamed for help after the sudden mauling
by the defendant’s dog that
had ensued.  The women and men who
alerted the defendant of the damage caused by his dog must have been
triggered by the dog
attack that had already ensued.  An
analysis different from that would be completely out of touch with
the probabilities of
this case.
[26]
In this case the evidence establishes all the essential elements of
actio de pauperie.
A finding that the defendant is
liable does not depend on existence of fault on his part for the
damage caused by his dog.
The case of
O’Callaghan NO v
Chaplin
1927 AD 310
, applied in the case of
Van Meyeren v
Cloete
2021 (1) SA 59
(SCA), is in point.  More may be said
about the domesticated dog of the defendant.  It is quite clear
from the evidence
that the dog was not used as a pet.  It
provided security required by the defendant, for use by the owner,
against thieves.
In order to strengthen the fighting
capabilities of his dog, the defendant chained it during the day and
released it to patrol the
premises during the night. It is common
knowledge that even domesticated dogs that are chained and/or
tethered for long periods can
become highly aggressive.
The defendant’s dog is not an exception. The premises of the
defendant were fenced by a building
block-wall.  The gate was
kept under lock and key at all times.  Evidently, the gate was
open when the dog, without provocation,
sneaked out of the yard and
pounced at the plaintiff as he was walking past the house.  For
the domesticated dog that the defendant’s
dog obviously was, the
behaviour exhibited by it on Stinkwood Street during the evening of
30 October 2013 was
contra naturam sui generis
.  The
existence of such behaviour attracts liability on the part of the
owner for the damage caused by his dog.
The rationale for
liability of the owner is stated in
Van Mayeren v Cloete
in
para [33] as follows:
“
[33]
The
underlying reason for the existence of the
actio
de pauperie
is
that as between the owner of an animal and the innocent victim of
harm caused by the animal, it is appropriate for the owner to
bear
the responsibility for that harm. Dekker, in a note to the passage
from Van Leeuwen's
Commentaries
dealing
with the
actio
de pauperie
,
said:
‘…
there
is no absurdity in obliging him to make compensation whose animal has
caused the damage, or who has excited and goaded it on
to the damage
of another …’.
This
rationale is almost precisely the same as that of Innes CJ and
Kotzé JA in
O'Callaghan NO v Chaplin
, namely that,
in general, ownership of an animal should carry with it strict
liability for any harm done by the animal. In other
countries,
hampered by the English common law
scienter
rule,
that position has been enshrined in statute for nearly two
centuries.”
[27]
In
the result the following order shall issue:
1.
The defendant be and is hereby held liable to pay the plaintiff such
sum of damages
as may be proved at the trial in due course.
2.
The defendant to pay costs of the trial on the liability issue.
Z.
M. NHLANGULELA
DEPUTY
JUDGE PRESIDENT OF THE HIGH COURT
MTHATHA
Attorney
for the plaintiff     :
Mr Pangwa
c/o
Caps Pangwa & Ass
MTHATHA.
Attorney
for the defendant  :
Mr A.S. Zono
c/o
Messrs A.S. Zono & Ass
MTHATHA.
Heard
on: 09, 10 and 11 November 2021
Delivered
on:  30 November 2021