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[2017] ZAGPPHC 130
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Makhubela v Deyzel (94956/15) [2017] ZAGPPHC 130 (28 March 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION PRETORIA)
DATE:
30/3/2017
CASE
NO: 94956/15
In
the matter between:
JOYCE
MAKHUBELA
Plaintiff
And
S
DEYZEL
Defendant
JUDGMENT
[1]
This is an action for damages resulting from the injuries sustained
by the plaintiff and her minor child who were bitten by
a dog. The
claim is based on actio de pauperie
and in the alternative
on actio
legis aquliae. The merits and quantum have
been separated by agreement.
[2]
It is common cause that on the 13 January 2013 at approximately
07:20, the plaintiff, carrying her baby was walking on
a path
towards Rooiwal Supermarket ("the shop") when a dog
attacked and bit her and her child. The child was rescued
during the
attack and she eventually managed to escape with injuries and was
taken to a hospital by an ambulance.
[3]
It is further common cause that
3.1
1 The defendant was the owner of the two Boerbull dogs, redish and
the other white in colour. The one was male and
the other
female.
3.2
One of the mentioned dogs bit the plaintiff and her minor child.
3.3
The dog acted contra naturam sui generis.
[4]
I must add that, from the evidence before court, it is common cause
that both dogs were domesticated.
[5]
The defendant raised a defence of provocation and alleged that the
dogs must have been annoyed or excited by the burglars either
by
doing something to them or by allowing them to exit the secured
premises contrary to what they were used to.
[6]
The parties agreed that the defendant has the duty to begin as
she bears the onus of proving her defence. In so
far as actio de
pauperie is concerned, the defendant has to
prove that indeed the
dogs were
annoyed and excited by the burglars. In so far as action legis
aquliae, the defendant has to prove that she
did not Act negligently.
DEFENDANT
VERSION
-
MS. SUSAN
DEYZEL
[7]
She is employed at a local supermarket as a cashier. She is the owner
of two dogs, a redish and a white boerbull which are about
a year and
two months old. She kept these dogs at the shops in a kennel during
the day and behind the 1 .8 m high fence and locked
gate at night.
She could not keep the dogs at her house because the roof was
damaged by storm and was forced
to seek shelter
elsewhere. Her current home does not have a fence.
[8]
She has in the past bred the same type of dogs. She has a prior
knowledge of the behaviour of such type of dogs. However she
was not
familiar with the behaviour of her dogs mentioned above because she
had just had them for about a year and two months.
[9]
The night before the 13 January 2013, the fence and the gates at the
shop's premises were in good condition and the gate was
locked. The
next day she drove to work in her Toyota conquest and parked in front
of the shop. The time was about 7:00 in the morning.
She noticed that
the dogs were outside of the yard, the fence at the gate was damaged
leaving a hole to the fence.
[10]
She was surprised to see the dogs outside the yard. She called both
dogs intending to take them back into the kennel but they
did not
respond positively. The male dog then started to run pass her, when
she turned to look, she saw a woman with a baby on
her back. She
called the dog but it did not follow the command. In the past the
dogs would always obey her command.
[11
] The dog jumped onto the plaintiff and started bitting her. The shop
owner tried to help in removing the dog from the plaintiff
but it
refused. The shop owner managed to remove the child from the
plaintiff and away from the dog to a safe place. She fetched
a chain
from her car, placed it on the dog and pulled it away from the
plaintiff, According to her; it was only one dog that attacked
the
plaintiff and her child.
[12]
She thereafter tried to assist the plaintiff by taking her to
hospital but the bystander refused her. The ambulance arrived
and
took the plaintiff to hospital. She followed the ambulance to
hospital. After the plaintiff was discharged from hospital, she
contacted her and offered to help.
[13]
She further testified that when she arrived at work on the day of the
incident, she noticed that the dogs seemed confused.
She was asked by
her Counsel why she thought that way. Her answer was
"I
think after I saw that the gate fence was cut. I think the people had
to do with dogs' behaviour."
[14]
It was established during cross examination that the size of the
Kennel was 2 metres by 2 meters and both dogs were kept in
it from
approximately 8:00 to 20:00 daily. The thieves broke into this
container the night before the 13 January 2013 and stole
some goods.
Although there is no direct evidence that the thieves are the ones
who cut the fence, she infers from the circumstances
that it must
have been the thieves.
[15]
According to her the dogs were not vicious and had never bitten
anyone before. If the break in did not happen, this incident
would
not have occurred. Before the break in the fence was high enough to
keep the dogs behind it. There was no other witness called
to testify
and her case was closed.
THE
PLAINTIFF VERSION
[16]
She was carrying her baby and walking on a footpath towards the
shops. She saw the defendant and the shop owner opening the
gate.
There were two dogs with them. They walked to the shop and the dogs
followed them. The dogs moved away from them running
towards her. She
tried to run away but tripped and fell. The dogs came and bite her
and her child. The shop owner came with a spray
and applied it on the
dogs. The one dog ran away. She managed to get hold of the other dog
and pushed it away. She managed to run
to the taxi which was
reversing towards her in order to assist. The defendant never took
her into her (defendant' s) Car and never
contacted her after the
incident.
[17]
During cross examination, the contents of her statement made to the
police were put to her; she admitted each and every allegation.
She
conceded that she did not mention in her statement that the defendant
and the shop owner walked with the dogs to the gate.
She further
stated that she was surprised when the dogs attacked her and did not
know what really happened. She was in a state
of shock resulting from
the attack by the dogs.
[18]
She further conceded that she does not remember well what happened on
that day because she was shocked. A written statement
by Solomon
Chauke was put to her, she denied its contents. I shall not refer
further to this statement because it is hearsay and
therefore
inadmissible. She was adamant that the defendant never spoke to her
on that day and thereafter. She was used
to going to
the said shop but never at any stage saw dogs at the
shop' s premises, or heard them barking. She
was also not aware
that the gate fence was damaged. She was adamant
that she remembers what happened
before the attack.
[19]
It was put to her that the dogs were not aggressive and vicious. She
denied and said ;
"If
they were not aggressive and vicious, they would
not have run to the street to attack me".
It
was further and immediately put to her that:
"Except
if someone did something to the dogs" She replied: yes.
[20]
She was further referred to a written statement made by warrant
officer Mahlangu. She denied the contents thereof. The contents
of
the said statement constitute hearsay and accordingly inadmissible.
PLAINTIFF'S
WITNESS -
MR.
WILLIAM CHARLES
[21]
He is a taxi driver operating between Hammskraal and
Pretoria. He did not know the plaintiff before this incident.
He
normally drives pass the shop in question on daily
basis and has never seen dogs on the premises. When
he stops
nearby the shops, it is for
purposes of picking up
passengers.
[22]
On the day of the incident, he was driving his taxi and was near the
shop vicinity waiting for passengers. He saw the defendant
and the
shop owner at the stoep of the shop and two dogs were with them. He
thought that they were ready to open the shop.
[23]
He then saw these two dogs running towards the tarred road. He did
not focus on the dogs but on looking for passengers. Suddenly
a
passenger shouted to alert him that a person was being bitten by the
dogs. The shop owner came with a spray and applied it to
the one dog
in order to repel it and the dog ran away. Another man came and took
the child. There was one dog remaining but the
plaintiff pushed it
away and jumped into his taxi through the sliding door.
[24]
During cross examination he denied that the defendant offered to
assist the plaintiff. He did not know that the fence at the
gate was
damaged. He reiterated that the defendant and the shop owner were not
taking the dog into the kennel. According to him
it would not make
sense because he saw both of them standing on the stoep before the
dogs attacked the plaintiff. That concluded
his testimony and the
plaintiff closed her case.
ACTION
UNDER
ACTIO
de
PAUPERIE
[25]
The essentials
which
need to
be proved
to sustain
a claim
based on
the action
de
Pauperie,
are
[1]
a.
The defendant is the owner of the dogs
b.
The dogs were domesticated
c.
The dogs acted contrary to their nature as domesticated animals
d.
The conduct of animals resulted in damages suffered by the plaintiff.
[26]
All the essentials have been conceded and are common
cause. The only issue to be dealt with is the defence
raised by
the defendant. The defendant alleges that the dogs were annoyed or
excited by the burglars who left a hole to the gate
and the gate
slightly open. That caused the dogs to behave the way they did. The
dogs seemed confused. The defendant further claimed
that the burglars
were in control of the dogs at the time of the burglary.
[27]
In
Lever
v
Purdy
[2]
, the
respondent
had
been
bitten
by
a
dog
owned
by the
appellant.
The
appellant
was
overseas
and
had left
C
to
be in
charge and
control
of
the
dog.
Whilst
away,
C
invited
the
respondent
into
the
house.
C
had
prior
to
the
arrival
of
the
respondent
given
an
undertaking
to
the
respondent
that
he
would
lock
the
dog
away
because
it
was known to be
vicious.
However
he
failed to
do
so.
Upon
his
arrival the respondent
was
bitten
by the
dog. The
court
held that
C was at
all relevant
times
in
charge
of
and
had
control
of
the
dog,
that
he
knew
the
propensities and nature of the dog
and he
knew
when the
respondent would
arrive.
His
conduct
was
held to
be
negligent
"The
second
category
of
texts
clearly
establishes
the
principle
of
law
that
the
owner
of
a
domesticated
animal,
which
contra
naturam
sui
generis
harmed
a
victim, may
successfully
avoid pauperien
liability
by
proving
as
a
defence
that
the
harm
was caused
by the
controller's
negligence
in his
control
of
the
animal.
[3]
"
In
the present case the defendant has alleged as a defence that, the
burglars broke into the shop premises and damaged the fence
and the
gate. They were in control of the dogs at that time. They must have
done something to annoy or excite the dogs.
In
Green
v
Naidoo
and
Another
[4]
, a
four
year
old
boy was
bitten
by
a dog.
He
had
interfered
with
the
dog
while
it
was
eating.
The
plaintiffs
Action
de
pauperie
failed
because
the
child
had
provoked
the
dog
by touching
or pulling it while it
was eating.
In
Thysse v Bekker, a ten year old boy was bitten by a dog and severely
injured. The defendant relied on the opinion of an animal
behavioural
scientist to discharge the onus of proving that the dog must have
been provoked. The court held that the defendant
failed to discharge
the onus of displacing the inference that the dog had acted contra
naturam sui generis by proving that it had
been provoked.
[28]
What distinguishes the facts of the present case from the decided
case I have referred to above is the fact that, in the present
case
there is no direct evidence indicating that the dogs were indeed
annoyed or excited, and that the cause thereof was the burglars.
The
defendant draws an inference from the fact that there was a burglary
at the shop premises where the dogs were kept. However
her evidence
was that the dogs seemed confused that morning and shortly before the
incident.
[29]
With regards to circumstantial evidence in civil proceedings, the
defendant referred me to the following
"The
onus
of
proof
in
civil
proceedings
is
on
a
balance
of
probabilities.
This
is
a
lower
standard
of proof
than
that
applied in
criminal
proceedings.
The
second
rule in R
v
Blom is
therefore
not applicable
as the
court
need
only choose
the most
reasonable
inference
that
corresponds
with
the proved
facts and
not
the
only
reasonable
inference.
As a
result,
the
rule
for civil
cases
is that:
'The
proved
facts
should
be such
as
to
render the
inference
sought
to
be
drawn
more
probable
than any other reasonable inference. If they
allow for
another
more or
equally
probable
inference, the inference
sought
to
be
drawn
cannot
prevail"
[5]
When
I apply the enunciated principle to the facts of the present case, I
cannot come to a conclusion that the inference drawn from
the facts
is more probable than any other reasonable inference.
[30]
There is no evidence indicating where exactly were the dogs at the
time of the burglary, what were they doing and whether there
was
anything done to them. We also do not know whether the dogs were
awake or sleeping when the burglary took place shortly after
20H00. I
do not know whether the dogs remained annoyed or excited the whole
night and the next morning. The evidence is that the
dogs were
confused but not annoyed or excited as pleaded by the defendant.
[31]
There
mere
fact
that
there
was
a
burglary
is
not
an
adequate
basis
to
draw
the
inference
which
the
defendant
seeks
to
do. There
are
inherent
dangers in
doing
so more
specially
in
the
light
of
all
the
unanswered questions
I referred
to
above
(para 30).
The
defendant
has to
prove that
at the time
of
the
attack
[6]
,
the
burglars
were
in
charge
or
in control
of
the dogs.
I
have
already
expressed
my
reservations
about
the
defendant's
submissions.
There is no
indication of
the time of
the
burglary.
However it is common cause that
at the time
of
the
attack, the defendant was present
and
witnessed
the
attacked.
The
burglars
were
nowhere
to
be seen.
[32]
The plaintiff's evidence is that she saw the defendant and
the shop owner with the dogs at the
gate. They
thereafter walked to the shop with the dogs following them.
The plaintiff's witness corroborated plaintiff's
version when
he said he saw the defendant and the shop owner
standing at the door of the shop. The dogs were
with them at that
time. This evidence, if true, would confirm that the defendant was in
charge and control of the dogs.
[33]
The defendant has disputed this evidence and insisted
that the dogs were already outside the yard when
she saw
them that morning. However, she failed to call the shop owner as her
witness to corroborate her version. In his address,
defendant's
counsel informed the court that the shop owner refused to come and
testify. The owner of the container which was broken
into was also
not called to testify.
[34]
The evidence of the shop owner who was at all material times together
with the defendant and also witnessed the incident would
have been of
great assistance. If the defendant believed that these witnesses
would have advanced her defence, she would have taken
all the
reasonable steps to secure their attendance by at least issuing
subpoenas. The inference to be drawn from her failure to
call the
witnesses is that they would most probably not have supported
her defence.
[35]
I am not persuaded that the defendant has succeeded
in discharging the onus of proving that the dogs were
provoked by the
burglars. I find that the plaintiff has succeeded on a balance of
probabilities to prove the liability of
the defendant based on
Actio de Pauperie.
[36]
In so far as the plaintiff ' s claim which is based on actio legis
aquiliae is concerned, I do not wish to burden the record
unnecessarily in light of my findings based on the actio de Pauperie.
[37]
I therefore make the following order
(I)
The defendant is liable to pay 1003 of the proven or agreed amount of
damages in respect of the plaintiffs claim in her personal
capacity
and in her representative capacity on behalf of her minor child.
(ii)
The defendant is liable to pay plaintiffs' costs.
________________________________
N.
NKOSI
ACTING
JUDGE
OF THE GAUTEN,
PRETORIA
HEARD
ON: 13 MARCH 2017
FOR
THE PLAINTIFF: P.J COETSEE
INSTRUCTED
BY: PHUKUBYE ATTORNEYS (PRETORIA)
FOR
THE DEFENDANT: HS GOOSEN
INSTRUCTED
BY: MOLDENHAUER ATTORNEYS (PRETORIA)
[1]
Thysse
v
Bekker 2007 (3)
SA350,
Lever v Purdy
1
993
(3) S
1
7
(AD
[2]
Lever v Purdy
1
993
(3) SA
1
7
AD per Joubert ACJ
[3]
Lever v Purdy (subra) at 22 G-H
[4]
Green v Naidoo and Another 2007 (6) SA 372
[5]
The Law of Evidence in South Africa Basic Principles, Adrian
Ballenger etal ,Oxford University Press 2013, p 203; Macleod v Reuns
1
997
(3) SA 1039
(E) p
1
049
[6]
Neetling
,
Potgiter
,
Visser
-
Law
of
order
Delict
6
ed