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[2018] ZAECMHC 10
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L.M v Tati (1111/16) [2018] ZAECMHC 10 (20 February 2018)
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IN
THE HIGH COURT OF SOUTH AFRICA
[EASTERN
CAPE LOCAL DIVISION, MTHATHA]
CASE
NO: 1111/16
Heard
on: 31/01/18
Delivered
on: 20/02/18
In
the matter between:
L.
M.
Plaintiff
and
SABELO
TATI
Defendant
JUDGMENT
NHLANGULELA
DJP
[1]
The Plaintiff’s child, a boy aged 16 years, was bitten by four
dogs on 22 March 2015 at Nothrcrest, Mthatha. The
son sustained
some serious bodily injuries. As a result the Plaintiff instituted a
claim for damages against the Defendant, it
being alleged that the
Defendant was the owner of the dogs.
[2]
The Plaintiff bears the overall
onus
to prove the elements of
action de pauperie
, namely: (
a
) that the Defendant is
the owner of the dogs; (
b
) the dogs were domesticated animals;
and (
c
) the dogs acted contrary to the nature of domesticated
animals generally in causing damage to the son of the Plaintiff.
The
case of
Loriza Brahman En ʼn Ander v Dippenaar
2002
(2) SA 477
(SCA) is in point.
[3]
In this case only element (
a
) is in contention, elements (
b
)
and (
c
) being conceded in the oral evidence that was adduced.
In the plea the Defendant denies that he is the owner of the dogs
that attacked and injured the boy. The basis for the denial is
alleged to be that the Defendant’s dogs would not have
left the
premises of Defendant’s house as they were securely fenced with
a gate that is remotely controlled and always locked.
[4]
The Plaintiff testified that on 22 March 2015 he only received a
report from his wife that their son had been bitten by dogs
belonging
to the Defendant. On 26 March 2015 the Plaintiff thereupon
visited the Defendant at his place of employment in
Mthatha to report
the incident. That he did after having laid a charge against
the Defendant and seeing that the Defendant
was not being neighbourly
in not making an effort to make contact with the parents of the
victim. Later on the same day the
Defendant visited the
Plaintiff at his house. The Plaintiff stated that the Defendant
tendered an apology for what had happened.
The Defendant denied
this when he testified.
[5]
Plaintiff’s son,A. M., testified that he resides at No. 12
Raziya Street near the house of the Defendant at No. 16 Noah
Street.
It is common cause that both streets are situated in Northcrest
Township. A. knew the Defendant and his dogs.
On 22 March
2015 and between 4 pm and 5 pm whilst walking on Noah Street from a
shop known as Nolusapho heading towards home he
had to walk past the
gate of the Defendant’s house. He saw a dog as he was
about to walk past the gate.
It was standing on the
street opposite the gate. It barked at him. At that
juncture he saw three other dogs standing
on the gate line of the
open gate, also barking at him. He identified the four dogs as
those of the Defendant which he had
known over a period of
approximately two months. The gate was wide open at that time.
Unsuspecting any danger to himself
he went on but as he passed the
gate all four dogs attacked him aggressively causing him to flee to
safety. The dogs gave
chase until he felled down to the ground
of the pathway of an open erf that is between house No. 13 and side
of the Defendant’s
house. That pathway was a route that
he frequently used to get home whenever he was sent by his parents to
go to the shop.
The dogs bit him as he lay down, causing him
injuries on the left leg and his body.
[6]
The Plaintiff’s witness, one Mr Mfana Mqina, testified
effectively corroborating the version of A. concerning the identity
of the dogs and their attack upon A.. According to Mr
Mqina, he is the neighbour to both the Plaintiff and the Defendant.
His house is situated near the pathway that was referred to by A.,
and within a visible distance of the place where A. had fallen.
Seeing the attack he decided to intervene using a garden spade that
helped him chase the dogs away then they would without it.
According to Mr Mqina the dogs that he chased away ran back on a
route going towards the house of the Defendant. He had known
that the dogs he saw were those owned by the Defendant.
[7]
A. described the four dogs as big animals of approximately 0,8 metres
in height, with the exception of one of the dogs which
was shorter.
Mr Mqina described the same dogs as the type of dogs which bark at
humans most of the time and that they were
of a peculiar breed.
Both witnesses told the Court that those dogs were well known to the
local people, who had been attracted
to the scene of attack, as being
the animals belonging to the Defendant.
[8]
During cross-examination it was put to A. and Mr Mqina that the
Defendant had 5 dogs comprising two big dogs, the parents, and
their
progeny of three smaller dogs. There was a suggestion that the dogs
that attacked and injured the boy belonged to someone
else. It
was also put to witnesses that the gate was locked, the house was
fenced on all sides and the height of the fencing
wall was high
enough to have prevented the Defendant’s dogs to jump over the
fence and attack any person. The witnesses
re-iterated their
evidence in chief.
[9]
The Defendant testified that in the two meetings he had with the
Plaintiff on 25 March 2015 he did not admit liability but sympathised
with the fact that A. had been attacked and injured by some dogs.
The version he put before the Court was that on 22 March
2015 he left
his house at about 8 am to go to another house of his in Tshandu
Street that he used as a shebeen. He returned
to the Noah
Street house at 4 pm to feed his dogs with bone meal and, without
entering the house, went back to the Tshandu Street
house where he
stayed until 7 pm. He told the Court that he left the gate
locked with his dogs being inside the premises.
At 4 pm he
opened the gate, and again locked it after feeding the dogs.
When he finally came back to retire for the day after
7 pm he still
found the gate locked as he had left it. He stated that his
nephew, one Mbasa, had remained in the house where
he left it at 8
am, leaving him with a house and a gate remote control gadget that he
(Mbasa) used when he left the house after
2 pm of that day and
delivered those keys to the Defendant at Tshandu Street house.
He told the Court that Mbasa had been
a visitor in his house and he
did not return to the Noah Street house after delivering the keys.
According to the Defendant
he never received a report from
anyone about A.’s ordeal until the Plaintiff made a report on
26 March 2015. Having
been informed, he later on investigated
the facts from certain children who were used to play in Noah Street
and found out that
no child was ever seen being attacked by his
dogs. He stated under cross-examination that the allegation
that his dogs had
bitten A. was a lie.
[10]
Mr Sixolile Ayanda Gift Ludidi was called by the Defendant to
testify. Mr Ludidi told the Court that alternatively, he
knew
the Defendant but had no relationship with the Defendant. He
would meet him in Northcrest, but infrequently. He
told
the Court that seeing the Defendant at shops and in the streets of
Northcrest in his motor vehicle driving, and at some instances
greeting him as an elder and respectful “big brother” of
the area provoked interest in him to tell about the dogs he
had seen
attacking a child.
[11]
Mr Ludidi told the Court that the dogs he saw were occupying Noah
Street near the Defendant’s house. According to him
he saw the
dogs just after he had turned the corner of Noah Street and a street
that runs opposite Nolusapho Shop. He saw the dogs
on the Street in
front of him, barking and charging at the child approaching from the
opposite direction of Noah Street.
The child turned and took to
his heels. The dogs followed the child to an open erf that is
situated at Noah Street.
He could not see if the dogs did catch
up with the child because, fearing that the dogs might turn towards
him, he decided to proceed
down Noah Street and passing the bushy
area hurriedly. However, he noticed that certain people
intervened to rescue the child
who had ran and fell into the bushy
area of the open erf.
[12]
When asked in chief about how and what he knew about this case Mr
Ludidi answered that one friend of his asked him to explain
to the
Defendant the events that he witnesses at Noah Street. Asked
further to describe the house of the Defendant he stated
that it is a
different house that stands out from others in that the grounds are
covered in paving brick, well fenced, and having
a beautiful sliding
gate that is “different from the rest.”
[13]
Mr Ludidi stated under cross-examination that he did not know the
date when he witnessed the dogs attacking a child in Noah
Street in
2015. When confronted with the version of the Plaintiff the
witness conceded that his version of events is a different
one.
[14]
It is difficult to tell which of the conflicting versions of the
parties should prevail. In the circumstances the guiding
principles as laid down in the case of
Stellenbosch Farmers’
Winery Group Ltd and Another v Martell et Cie And Others
2003 (1)
SA 11
(SCA) must be applied. They are stated as follows at para
[6]:
“
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….”
[15]
It is common cause that the Defendant did have dogs on 22 March 2015
which he kept in his premises. It is not disputed
that the
Defendant’s house was situated on the route that many children
from Raziya Street sent to Nolusapho Shop used frequently.
The
house of the Defendant was as described in the evidence. It is
also not disputed that A. was attacked by dogs as described
by him
and Mr Mqina. The Plaintiff’s case that the dogs came
from the premises of the Defendant and were owned by him
the
Defendant is disputed.
[16]
A. is the only person who gave account that the dogs that attacked
him came from the premises of the Defendant. Mr Mqina
only saw
the dogs attacking A. as he lay down on the ground of the open erf
adjoining the house of the Defendant. But those
dogs were
identified by Mr Mqina as being the properties of the Defendant which
he had seen before the date of the incident.
He even stated
that the same dogs had attacked another child in the recent past, the
evidence that was not challenged pertinently
under cross-examinations
as well as when the Defendant and his witness testified. A. had
known the dogs for some time.
There are no factual basis for
disbelieving the evidence that A., Mr Mqina and other local people
who intervened on behalf of A.
knew that the Defendant was the owner
of the dogs.
[17]
The Defendant was not present at his house or scene of the attack.
Mr Ludidi cannot be said to have witnesses the incident
of 22 March
2015 as he himself conceded under cross-examination that the version
he gave about dogs that attacked a child at Noah
Street was different
in material respects from the version of A.. Mr Mqina may be
regarded as an objective witness in that
he did not seize an
opportunity, which was available to him, to say that the dogs he saw
emanated from the premises of the Defendant.
I find the
analysis of the entire evidence to be supportive of the conclusion
that Mr Ludidi’s version differs from that
of A..
[18]
A.’s evidence as a whole rests on direct evidence. A. was able
to give a clear and straight forward account, he showed
understanding
that he had to speak the truth and he did not contradict himself when
he testified. He came across as a reliable
witness who spoke
about the events that he knew very well. His power of
observation is not in doubt. Although he broke
down in tears in
the witness box he still did not give me the impression that he was
fabricating facts in order to prejudice the
Defendant, or to please
his mother who was sitting at the gallery. Neither did he give
the impression that he was seeking
the sympathy of the Court.
He maintained a proper eye contact with the Court.
[19]
The evidence of the Defendant may be described as indirect to the
extent that he was not present when A. was attacked by dogs,
or as
re-constructed evidence premised on improbable factual account.
In accepting the version of A., the Defendant’s
evidence,
becomes comparatively improbable. Mr Mqina’s evidence
that I regard as reliable, does corroborate A.’s
evidence on
the issue that the Defendant is the owner of the dogs. Mr
Ludidi’s evidence is woefully imaginative
to the extent that he
could not make out if the dogs he saw were those that belong to the
Defendant or not. Showing biasness,
he displayed readiness to
disconnect the dogs that bit A. from the dogs of the Defendant.
Most unfortunately for him he was
failed by his own admission that
his version related to the date that he could not even remember.
This factor and many others
that emerged from his evidence result in
his version being improbable.
[20]
Much as I do believe that fencing of the premises and the automated
lock system of the gate of the Defendant are the necessary
precautions taken by him to restrain the movement of his dogs and to
protect the members of the public from attacks such precaution
cannot, without more, be elevated to certainty that the gate did not
open to release the dogs from the premises on 22 March 2015
between 4
– 5 pm. I say these things because the version of the
Plaintiff is neutral nor presumptuous. It is
rooted on hard and
probable facts that carry a strong force of persuation that it is the
truth.
[21]
On the consideration of all the evidence the Plaintiff has succeeded
to prove that the Defendant is liable to pay damages as
claimed.
The costs of these proceedings shall follow the outcome of the
hearing.
[22]
In the result the following order shall issue:
1. The Defendant is
held liable to compensate the Plaintiff with such quantum of damages
as may be proved in due cause.
2. The Defendant to
pay the costs of the proceedings on the issue of liability.
_________________
________________________
Z.
M. NHLANGULELA
DEPUTY
JUDGE PRESIDENT OF THE HIGH COURT
MTHATHA
Counsel
for the Plaintiff : Adv.
D.C. Botma
Instructed
by
: Mdledle-Malefane & Ass
MTHATHA.
Counsel
the Defendant : Mr M.
Mantyi
:
c/o Mantyi Attorneys
MTHATHA.