About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2017
>>
[2017] ZASCA 178
|
|
Van der Westhuizen v Burger (204/2017) [2017] ZASCA 178; 2018 (2) SA 87 (SCA) (1 December 2017)
Links to summary
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case No: 204/2017
In
the matter between:
G
S VAN DER
WESTHUIZEN
APPELLANT
W
J BURGER
RESPONDENT
Neutral
citation
:
Van
der Westhuizen v Burger
(204/2017)
[2017] ZASCA 178
(1 December 2017)
Coram
:
Ponnan,
Majiedt and Swain JJA and Mokgohloa and Mbatha AJJA
Heard
:
17 November 2017
Delivered:
1
December 2017
Summary:
Actio
de ferris
–
defence
of provocation – ostrich provoked – owner not liable.
ORDER
On
appeal from:
Gauteng
Division of the High Court, Pretoria
(Olivier
AJ sitting as court of first instance):
1
The appeal is upheld with costs.
2
The order of the court a quo is set aside and replaced with the
following order:
‘
The
claim is dismissed with
costs.’
JUDGMENT
Swain JA (Ponnan and
Majiedt JJA and Mokgohloa and Mbatha AJJA concurring):
[1]
An
ostrich owned by the appellant, Mr Gerhard van der Westhuizen, which
chased the respondent, Mr Willem Burger, gave rise to an
action
instituted by the respondent as plaintiff, against the appellant as
defendant, in the Gauteng Division of the high court
(Pretoria). The
respondent alleged that in an attempt to escape from the ostrich he
tripped over a piece of wood, tore his Achilles
tendon and as a
result suffered damages in the amount of R6 750 000.
[2]
By
agreement between the parties, the court a quo (Olivier AJ), ordered
that the merits of the claim be separated from the quantum
of
damages, in terms of rule 33(4) of the Uniform Rules of Court. After
hearing evidence, the court a quo found that the appellant
was liable
to pay to the respondent such damages as he was able to prove in due
course, together with the costs of the action.
The appeal is with the
leave of the court a quo.
[3]
The
cause of action pleaded by the respondent was the
actio
de ferris
in
terms of which the bringing of wild or dangerous animals on or into a
public place, or a place to which members of the public
have access,
was prohibited. The cause of action is based upon ownership and
strict liability is imposed upon the owner of the
animal, for the
consequences of the animal’s behavior. The victim is
accordingly absolved from alleging and proving negligence
on the part
of the owner, which is presumed.
[4]
The
respondent alleged that the incident occurred on a farm owned by the
appellant and that the appellant had ‘introduced
certain wild
ostriches which do not naturally occur’ onto the farm,
alternatively, the appellant ‘tamed and domesticated
an ostrich
who roamed close to the dwelling on the farm, which in attacking the
plaintiff. . . acted contrary to animals of its
class’.
[5]
Save
for admitting ownership of the farm and that ‘undomesticated
ostriches inhabit the farm’, which amounted to an
admission
that the ostriches on the farm were wild, the appellant denied the
remaining averments. On the evidence, however, it
was common cause
that the appellant had invited the respondent to his farm, where the
respondent was chased by an ostrich owned
and introduced onto the
farm, by the appellant.
[6]
Only
two of the defences raised by the appellant require consideration for
the determination of the appeal. First, the appellant
raised the
defence of provocation, alleging that the respondent ‘provoked
and harassed the ostrich/ostriches on numerous
occasions prior to the
alleged incident’. Second, the appellant denied that in an
attempt to escape from the ostrich, the
respondent ran towards the
dwelling on the farm and in doing so, tripped over a piece of wood
and tore his Achilles tendon. The
respondent therefore had to prove
that the behaviour of the ostrich was the cause of his injury.
[7]
The
court a quo dismissed the defence of provocation on the ground that:
‘
.
. . only if the provocation was the immediate catalyst for the
resulting injury, would it qualify as a defence. In my opinion
there
was no immediate provocation.’
It
also held that causation had been proved because, the ‘injury
would not have occurred had it not been for the plaintiff
escaping
the ostrich’s attack in the first place’.
[8]
In
order to decide whether the court a quo was correct in dismissing
these defences, the evidence of the manner in which the respondent
teased the ostrich on previous occasions, as well as the conduct of
the respondent immediately prior to being chased by the ostrich,
must
be examined.
[9]
Mr
Andre de Lange and Mr Martinus Steyn described how the respondent had
teased a male ostrich on the appellant's farm on several
occasions.
The respondent would entice the ostrich to approach him with mielie
pips in his hand. Whilst the ostrich was busy eating
out of his hand
he would grab it by the neck and push its head down. The ostrich
would then, according to these witnesses, flap
its wings and perform
comical ‘dance steps’ and when the respondent released
its head, the ostrich would stagger backwards,
much to the amusement
of those watching. Mr Pieter Kotze described an incident where the
respondent said that he had worked with
ostriches and knew how to
catch an ostrich. He took a hat from one of the bystanders, placed it
on the head of the ostrich, grabbed
it by the neck and said this was
how it was done.
[10]
Mr
Hendrik Gerber gave evidence of a conversation with the respondent
concerning the respondent’s painful foot, which he had
injured
in the incident. The respondent described in terms identical to that
of the appellant’s witnesses, how he had teased
the ostrich. He
admitted it was his fault that the ostrich chased him. The appellant,
when giving evidence, added that he had asked
the respondent on
numerous occasions to leave the ostrich alone, because he made it
angry.
[11]
The
respondent, however, denied ever grabbing the ostrich by its neck or
feeding it from his hand. He maintained he only threw food
on the
ground for the ostrich, because he was scared of it. He acknowledged
he had owned ostriches, but emphasised he was very
scared of them and
gave them away. His evidence that he was scared of ostriches, is,
however, inconsistent with his description
of what he maintained had
occurred when he arrived on the farm with the appellant, the night
before the incident. He said he saw
a male ostrich near the house
flapping its wings and snapping its beak. Its beak and knees were red
and he realised from his experience
with ostriches that it was very
angry and dangerous. The ostrich walked towards them so he quickly
grabbed the ostrich by its head
and pushed it down. After the
appellant had gone to the door of the house, he quickly released the
ostrich and ran behind a swing
to shield himself from the ostrich. He
explained this was how an angry ostrich had to be handled. The
appellant, however, denied
the incident saying it was dark when they
arrived on the farm and ostriches do not walk around in the dark.
[12]
When
it was put to the respondent that witnesses would give evidence that
they had seen him teasing the ostrich, he queried what
ostrich they
were talking about. He maintained that the ostrich that injured him
was not yet on the appellant's farm at the time
of the incident. In
similar vein, the only substantive challenge by respondent's counsel
to the evidence that the respondent had
teased the ostrich, was to
put the proposition to the appellant’s witnesses, that they
were unable to distinguish between
the male ostriches on the farm.
They were accordingly unable to say that the ostrich which the
respondent had allegedly teased,
was the ostrich which chased him.
[13]
This
proposition was, however, inconsistent with the respondent’s
pleaded cause of action. It was alleged that the appellant,
‘tamed
and domesticated an ostrich who roamed close to the dwelling on the
farm, which in attacking the plaintiff. .
. acted contrary to
animals of its class’. In other words, the male ostrich which
roamed close to the house and was tame,
had attacked him. When giving
evidence, he conceded that this ostrich was familiar with people and
moved around the camp. In my
view, when due regard is had to the
respondent's own evidence as to how he dealt with the ostrich when it
was aggressive, the evidence
of the appellant's witnesses,
established on a balance of probabilities that the respondent had
previously teased this ostrich
which came near the house on a regular
basis, and that this was the ostrich that chased him.
[14]
It
is against this background that the evidence of the respondent as to
how the incident occurred, as well as the evidence of Mr
Pieter Kotze
who witnessed it, must be examined. The respondent said he was
assisting the appellant to load blue wildebeest into
a trailer when
he suddenly noticed the ostrich standing on the other side of the
bakkie. At this stage he was standing near the
back of the trailer
and the ostrich walked towards the front of the bakkie. The ostrich
was watching him whilst it approached and
when asked to describe its
demeanour he said that ‘. . . hy het net gewoonweg geloop’.
However, in cross-examination
he maintained that the ostrich was
snapping its beak, and was in a dangerous mood. It was not flapping
its wings, but was warning
him. He then moved to the front of the
bakkie to scare it away, but was unsuccessful and it continued
approaching him. He then
ran for the door of the house because the
ostrich was close to him. Near to the door of the house was a slight
incline where he
slipped and fell. Whilst lying on his stomach he saw
the ostrich nearby watching him and it took two steps. He then jumped
up,
started running and accidentally stepped on a small wooden paling
situated between the plants at the door, which caused the injury
to
his Achilles tendon.
[15]
The
respondent denied that anybody was present when the ostrich chased
him or that Mr Kotze was in the vicinity. He was emphatic
that he was
alone and maintained that Mr Kotze could not have been there. It was
put to him that Mr Kotze would testify that the
ostrich was there all
the time, eating out of a food trough between the bakkie and the
house, which he denied. It was then put
to him that Mr Kotze would
state that the respondent walked from the bakkie towards the house,
which meant that he had to walk
past the ostrich. He then saw the
respondent bend down and pick up something which he threw at the
ostrich. The respondent then
admitted that he had thrown a small
stone towards the ostrich.
[16]
Mr
Kotze gave evidence that he was in the camp, sitting by the fire,
drinking coffee and waiting for the farm workers to arrive.
He saw
the respondent walking from the bakkie towards the house, whilst the
ostrich was feeding at the trough. When the respondent
saw the
ostrich he threw something at it and the ostrich then chased him. The
respondent ran towards the front door of the house
and fell. When he
stood up he looked around, saw the ostrich looking at him and quickly
ran into the house. The ostrich did not
peck or kick the respondent
and he was not aware that the respondent had been injured.
[17]
There
are two important aspects in the evidence of the respondent which
illustrate the improbability of his version of the incident.
When
giving evidence in chief he stated that the ostrich was behaving
normally, whereas in cross-examination he described its behaviour
as
dangerous, adding that it was snapping its beak. More importantly he
failed to disclose he had thrown a stone at the ostrich,
and it was
only after he was confronted with the evidence of Mr Kotze, that he
admitted this. His denial that anybody else was
present, is also
refuted by this evidence.
[18]
The
inherent improbability of the respondent’s version of the
incident is revealed when the evidence that he teased the ostrich
on
numerous occasions, is considered. Obviously, this evidence cannot be
used to infer that the ostrich harboured a grievance against
the
respondent. This would constitute the impermissible attribution of
human emotions to the ostrich, whereas its significance
lies in
revealing the attitude of the respondent to the ostrich. He was not
fearful of the ostrich and had mercilessly teased it.
On his evidence
when it had approached the previous night in a far more aggressive
manner, he confidently dealt with it, repulsing
any threatened
attack. It is therefore improbable that having initially described
the behaviour of the ostrich as normal, he would
be frightened simply
because it looked at and walked towards him. Seen in this context it
is probable that the respondent admitted
to Mr Gerber, that it was
his fault that the ostrich chased him. The court a quo accordingly
erred in rejecting the evidence of
Mr Gerber on the basis that it ‘.
. . was sketchy and lacking in convincing detail’.
[19]
The
appellant accordingly discharged the onus of proving on a balance of
probabilities that the respondent’s conduct in throwing
a stone
at the ostrich, provoked its behaviour in chasing him. The court a
quo therefore erred in dismissing the defence of provocation
on the
basis that there was no immediate provocation of the ostrich by the
respondent. In dealing with this defence, the court
a quo, however,
noted that although provocation was not listed as a specific defence
to strict liability arising from the attack
of a wild animal in the
case law, it was a defence to the
actio
de pauperie
,
and it would therefore be considered for the sake of completeness.
[20]
In
Bristow
v Lycett
1971 (4) SA 223
(RA) at 234, the defences to a claim for damage
caused by a wild animal were said to include where ‘the
plaintiff's contributory
negligence contributed to his injury’.
Provocation of the wild animal by the plaintiff was not expressly
included as a defence.
However, there can be no basis in principle or
logic to recognise as a defence the case where the negligent conduct
of the victim
contributed to his or her injury, but not where the
victim’s intentional conduct provoked the attack. The defence
was recognised
in
Klem
v Boshoff
1931 CPD 188
and
Hanger
v Regal & another
[2014]
ZAFSHC 236
;
2015 (3) SA 115
(FB) para 5.
[21]
This
conclusion renders it unnecessary to examine the issue of causation.
This is because the appellant cannot be liable for an
injury
sustained by the respondent in attempting to escape from the ostrich,
where the respondent provoked the chase. I will do
so, however, for
the sake of completeness. The evidence of the respondent and Mr Kotze
was that after the respondent had fallen
and was at the mercy of the
ostrich, it did not attack him. They both described how the ostrich
stood looking at him whilst he
was lying on the ground and when he
stood up to run into the house. The ostrich therefore did not display
any aggressive behaviour
towards the respondent after he had fallen,
and his injury was not caused by the pursuit. I accordingly disagree
with the conclusion
of the court a quo that ‘. . . it was one
continuous event; the fall did not interrupt the flight, and the
resulting injury
would not have occurred had it not been for the
plaintiff escaping the ostrich’s attack in the first place’.
[22]
In
the result the following order is made:
1
The appeal is upheld with costs.
2
The order of the court a quo is set aside and replaced with the
following order:
‘
The
claim is dismissed with costs.’
K G B Swain
Judge of Appeal
Ponnan
JA
[23]
I have had
the benefit of reading the judgment of Swain JA. I agree with his
conclusion that the appeal must succeed with costs.
It has been said
that there ‘can be few branches of the law which are more
complex and confusing than the liability for damages
caused by
animals’.
[1]
I am thus
rather more trepidatious as to the reasons for my concurrence in the
outcome of the appeal.
[24]
The
complexity centres largely around the liability for
pauperies,
meaning damage ‘done without legal wrong on the part of the
doer’.
[2]
As long ago as
1930, De Villiers CJ observed in
South
African Railways & Harbours v Edwards
[3]
‘that South African decisions had not been harmonious, which is
not to be wondered at seeing that hardly two commentators
agree on
the interpretation to be placed upon the law’.
[4]
The Chief Justice, was there referring to the
actio
de pauperie
,
which had been carefully considered some three years earlier in
O’Callaghan
NO v Chaplin.
[5]
He thought it useful to lay down the relevant principles in relation
to that remedy, which he summarised thus:
‘
(1)
The
actio
de pauperie
is
in full force in South Africa. But the right to surrender the
offending animal in lieu of paying damages
---
noxae deditio ---
is
obsolete with us. (2) The action is based upon ownership. The English
doctrine of
scienter
is
‟not a portion of our law. (3) The action lies against the
owner in respect of harm
(paeperies)
done
by domesticated animals, such for instance as horses, mules, cattle,
dogs, acting from inward excitement
(sponte
feritate commota) i
f
the animal does damage from inward excitement or, as it is also
called, from vice, it is said to act
contra
naturam sui generis
;
its behaviour is not considered such as is usual with a well-behaved
animal of the kind. (4) On the other hand, if the act was
not due to
vice on the part of the animal but was provoked-in other words if
there has been
concitatio,
the
action does not lie. (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. In other words for the owner to be liable, there must be
something equivalent to
culpa
in
the conduct of the animal. (6) Hence if the fault lies with the
injured person himself he cannot recover, as he would have only
himself to blame. If for instance he has provoked the animal, or has
acted in such a way that the outburst could reasonably have
been
foreseen. (7) But stroking or petting a horse is not considered to be
provocation
(concitatio).
If
a horse kicks when petted, its behaviour is due to vice. The fault
lies with the horse, not with the man who petted it, unless
he had
reason to know that the horse might kick. The learned Judge in the
present case is of opinion that if the attentions of
a person who
stroked or petted a mule were met with a kick, such person would only
have himself to blame for doing such a foolish
thing. The kick, in
the case of a mule, could have been foreseen. (8) Alfenus gives the
following instance. A groom was leading
a horse into a stable. The
horse sniffed at a mare which thereupon kicked the groom on the leg.
The jurist holds that the action
lies against the owner of the mare.
In other words the incitement did not justify the mare in kicking.
This case has been much
debated. But whether Alfenus was right or
wrong, in his view the solicitations of the horse were not considered
to excuse the behaviour
of the mare. She was said to have acted from
innate perverseness. (9) The action does not lie if the animal was
provoked by a third
party, if for instance the animal was struck by a
goad and kicks out. (10) Nor does the action lie if the injury was
due to pure
accident
(casus);
here
nobody is considered to blame . . .’
[6]
[25]
The
actio
de pauperie
is available against the owner of a domestic animal that has caused
damage. Liability is based purely on ownership of the animal.
Some
academic writers have argued against the notion of liability based
purely on ownership and advocated for a shift to the risk
principle.
[7]
In terms of the
risk principle a person who keeps or controls an animal in his own
interest is liable without fault because he
creates an increased risk
of harm.
[8]
In
Loriza
Brahman v Dippenaar,
[9]
this court refused to declare the remedy obsolete, holding that the
action
de
pauperie
still served its purpose and that it was neither
contra
bonos mores
,
nor unconstitutional. Since the action is based on the principle that
the owner of a domestic animal is liable for damage only
when it
caused damage whilst acting
contra
naturam sui generis
,
the remedy is traditionally restricted to domestic animals. The
contra
naturam
requirement requires some kind of attack or unpredictable action from
the animal, actions that are to be expected as part of the
animals’
natural behaviour do not qualify.
[10]
[26]
According
to
Le
Roux and others v Fick
[11]
‘[i]n the course of time the action
de
pauperie
was extended by means of the
actio
utilis
to all animals, and for a long time it appears to have been the only
law applicable to cases of damage from animals. When a wild
animal
inflicted damage there appears to have been no other remedy till the
lex
Aquilia
and the edict [the
edictum
de feris
]
were promulgated. .. . The result . . . seems to have been that
an
actio
de
pauperie
lay
in all cases of damage caused by animals when the damage was brought
about through the fault of the party using the animal or
of some
third party. The owner could free himself from all pecuniary
liability by delivering the animal where there had been no
fault on
his part, and when the damage done was contrary to the natural
disposition of the animal. If a man allowed his dog or
wild animal to
be in a public place he was liable to be sued for a penalty equal to
double the amount of damage he might cause,
and also to have an
action
de
pauperi
brought
against him. If damage was caused by a wild animal in any other than
a public place, the owner could apparently free himself
from
liability upon abandoning the animal, and would incur no further
liability unless he had been in fault, as in not having fastened
the
animal up properly.’
[27]
The
edictum
de feris
has
its genesis in Republican Rome, when many individuals kept wild
animals.
[12]
On account of the
risk posed by these animals, the edict was enacted, which prohibited
the bringing of wild or dangerous animals
on or into a public
place.
[13]
According to
Ashton-Cross, to admit of an action under the edict, ‘the
animal must have been owned at the time it caused
the damage; must
itself have been either on a place of public passage or near enough
to injure a person or property in such passage;
and the damage must
have been done
qua
vulgo iter fit
,
on
the public way’.
[14]
The
language of the edict is wide, and includes any animal of a vicious
propensity calculated to do harm.
[15]
The mere breach of the edict rendered the owner responsible.
Negligence was presumed; the rationale being that the owner of an
animal, who allowed it to stray onto a public street contrary to the
principle of the edict, was considered to be guilty of
negligence.
[16]
The
actio
de pauperie
and that under that edict were concurrent remedies.
[17]
Liability in these actions resulted from the ownership of the animal,
apart from any
dolus
or
culpa
on the part of the owner. Thus both in the Roman Law and that of
Holland, the responsibility for damage done by one’s animal
is
founded on ownership and not on negligence.
[18]
[28]
It will
entirely depend on the circumstances of each particular instance,
whether an action
de
pauperie
or one under the edict is the suitable remedy.
[19]
The distinction in principle between these two remedies have not
always been kept in mind. In
O’Callahan’s
case
Kotze
JA stated that the ‘action
de
pauperie
will be available against the owner of a dog biting an innocent
person, that is a person who was lawfully at the place where he
was
bitten, is beyond doubt, both in the law of Holland and of South
Africa.’
[20]
Although
Innes CJ said that he would guard against being taken to imply that
the edict is not part of our law, one finds no positive
statement in
respect of the
actio
de feris
in
the course of the judgment.
[21]
Uncertainty has accordingly been expressed as to whether the
actio
de feris
is still recognised in modern South African law.
[22]
Barry Nicholas describes the provision in the Edict as ‘ostensibly
a police regulation forbidding the keeping of certain
animals in
certain places and imposing liability for the consequences of any
breach of the regulation’.
[23]
In that regard, Wessels JA made the point in
O’Callaghan
that: ‘[i]n fact we know very little indeed about this Edict
and we have no idea exactly what the conditions were in Rome
when the
Edict was proclaimed nor the mischief which was aimed at. It seems
likely that the Edict was intended as a general provision
against
bringing any ferocious animal on to the market place or in places
where people were in the habit of walking and that the
words dog,
boar, lion were only added by way of explanation to point out the
kind of animals that were not to be brought there.’
[24]
[29]
In
Parker
v Reed
,
[25]
De Villiers CJ said:
‘
The
presumption is that the law relating to
pauperies
is still in force, but this presumption cannot prevail in the absence
of any recognition, judicial or otherwise, of the existence
of such a
law, and in the face of repeated decisions which require proof of
some degree of
culpa
in order to attach liability to the ownership, custody or use of
property.’
It
is true that
Parker’s
case
has been overruled. But, as Beadle CJ observed in
Bristow
v Lycett
,
[26]
‘this passage from the “Old Chief’s” judgment
seems sound enough’.
[30]
The
‘judicial recognition’, such as it is, seems to have come
from the then Rhodesian Appellate Division. In
Bristow
v Lycett
,
Beadle CJ framed the rule in the following terms (at 234-5):
‘
1.
In the case of damage by a wild animal kept in captivity negligence
on the part of the owner is presumed, and it is unnecessary
for the
plaintiff to plead or prove it.
2.
The defendant can, however, escape liability by proving either –
(a)
the
plaintiff was a trespasser or the plaintiff’s contributory
negligence contributed to his injury; or
(b)
the
damage was caused by the unlawful act of a third party or the third
party’s animal; or
(c)
The
damage was caused by
casus
fortuitus
or
vis
major
.
3.
The above principles are not affected by the fact that the wild
animal concerned may have been reduced to a state of semi-domesticity
or that it did not act with any ferocious intent.’
[31]
Beadle CJ
observed (at 232G-233B):
‘
I
have stressed the history of the disappearance of the
actio
utilis de pauperie
at
some length because its disappearance helps to determine the precise
liability for
pauperies
committed
by a wild animal under the
lex
Aquilia
as
we know it today. This liability is, as I have attempted to show,
coincident with that under the old
actio
utilis de pauperie.
The
history of the disappearance of the
actio
utilis de pauperie
is
therefore more than a matter of antiquarian interest because, by
understanding the ambit of this old action and the reasons for
its
disappearance, it is possible to arrive at a reasonably precise
definition of the liability of an owner for damage done by
his wild
animal under the modern law. For how long the
actio
utilis
under
the
lex
Aquilia
has
existed in its present form, and precisely when the
actio
utilis de pauperie
became
a legal antiquity is, however, now purely a matter of antiquarian
interest. If, however, I am wrong in assuming that the
actio
utilis de pauperie
has
been absorbed by the
actio
utilis
under
the
lex
Aquilia
,
then the
actio
utilis de pauperie
must still survive today, as there is no ground for holding that the
legal principles which it enforced have become obsolete. Whether
the
action under the
lex
Aquilia
now
provides the same remedy as that formerly provided by the
actio
utilis de pauperie
,
or whether the two actions still exist side by side, is really only a
matter of academic interest, because in either event the
liability of
an owner for
pauperies
committed
by his wild animal will be the same, and, as I will show later, as a
matter of procedure, provided the relevant facts
are pleaded, it is
unnecessary to plead whether the case is brought under one action or
the other.’
[32]
The
judgment of Beadle CJ has not escaped criticism (see Carey Miller
1972
SALJ
176).
[27]
Miller, who
criticises the judgment both for certain historical limitations and
theoretical shortcomings,
suggests
that the learned Chief Justice erred in the formulation of the rule.
[28]
To
be fair to
Beadle
CJ, he did acknowledge that little is said in the books about
pauperies
committed by a wild animal. Most modern day writers, so observed the
Chief Justice, have little to say on this subject, confining
themselves to the injured party’s remedy to the
actio
utilis
under
the
lex
Aquilia
.
He observed that he could find no reported case in South Africa in
which the
actio
utilis de pauperie
was
invoked when the owner of a wild animal was sued
for
pauperies
committed
by his wild animal. The case nearest in point, so he said, was the
case of
Le
Roux and Others
v
Fick
.
In that case a dog, apparently acting
secundum
naturam sui generis
,
killed an ostrich in a public street. It was held that there was
no
culpa
on
the part of the owner, but that he was liable for
the
pauperies
committed
by his dog under the old Aedilitian action, which made the owner of a
fierce dog or wild animal liable for
pauperies
committed
by that animal in any public place. Accordingly, so held Beadle CJ,
‘[t]he old Aedilitian action must therefore
be considered as
having been imported into the Cape and . . . it would seem,
therefore, that the Aedilitian action is still part
of our law’.
He added: ‘[i]f an old Roman action which made the owner of a
wild animal liable
qua
owner
for that animal’s
pauperies
committed
in a public place is still part of our law, it can be argued with
some force that logically a similar old action which
made him
liable
qua
owner
for
pauperies
committed
by his animal in other places should also be still in force.’
Van der Merwe observes that aside from
Le
Roux v Fick
there
is no other decision directly on the point.
[29]
[33]
It may be,
as Miller notes, that it is probably not a matter of great practical
importance to discover the true basis of the Roman-Dutch
law rule.
But, he does rightly opine
‘
conceivably,
it could be argued that if the basis is solely Aedilitian then the
remedy, with the edict,
has
fallen into desuetude
’
.
Indeed, support for his view is to be found in the judgment of
Wessels JA in
O’Callaghan
,
who expressed very grave doubt as to whether ‘this police
regulation of the Romans’, ‘can be said to have force
under our present conditions’.
[30]
He added: ‘[t]he whole liability is based on the transgression
of a public measure.’ Those observations are undoubtedly
cogent.
[34]
It has been
suggested that the edict could be replaced by the Aquilian action as
supplemented by the
actio
de pauperie
in the case of damage by ferocious dogs.
[31]
But, this view, so it has been asserted, ‘overlooks
the fact that the
edictum
de feris
lies
for a breach of the edict and that consequently the defences of
contributory negligence, provocation, negligence of a third
party or
vis
maior
will not apply once the animal has been taken to the public place by
the defendant’. Here, as well, there appears to
be no
consensus by our academics. The defence that the plaintiff was
unlawfully on the premises has however been mentioned by the
courts
and it has been suggested that the other defences to the
action
de pauperie
should also be regarded as applicable to the edict.’
[35]
In
concluding this part of the judgment, I must say that it would
probably require someone with a more profound knowledge of this
area
of the law to pronounce on the possible obsolescence of the remedy.
Importantly, Innes CJ did remind us though (
O’Callaghan
at 327) that ‘[i]t is the duty of a Court – especially of
an appellate tribunal – so as to administer a living
system of
law as to ensure – without the sacrifice of fundamental
principles – that it shall adapt itself to the changing
conditions of the time. And it may be necessary sometimes to modify,
or even discard doctrines which have become outworn’.
On my
reading, everything appears to point to an action based on the edict
being unsuited to modern conditions. Happily though,
for present
purposes it is unnecessary for me to resolve this problem. Miller
wonders whether the time has not come for a comprehensive
modern
statute to replace ‘the rules which are largely historical in
origin and sometimes difficult to apply’. There
is much to
recommend such a course, which he suggests, has been followed in
England.
[36]
Against
that backdrop, I turn to the present appeal. As was repeatedly
pointed out by Innes CJ in his judgment in the
O'Callaghan's
case,
the owner of an animal is not liable to another when that other
person is himself the cause of his injury. The learned Chief
Justice
referred to
Storey
v Stanner
1
HCG 40, where Laurence J is reported to have said: ‘[b]y the
ancient and modern civil law, and by the present law of this
Colony,
the owner of a dog, or other dangerous animal, is responsible for
injuries or
pauperies
committed
by that animal . . . provided there is no negligence or improvidence
on the part of the person injured, or other impropriety
of conduct on
his part which directly caused or mainly contributed to cause the
injury’.
[32]
The Chief
Justice added (at 329): ‘I also agree with Laurence J, in
thinking that there must have been no ‟substantial
negligence
or imprudence” on the part of the person injured --- by which I
understand no unreasonable conduct contributing
to the injury. The
basis of that limitation of the owner's liability is to be found in
the
Digest
.
If the injury were due to provocation by the injured person no
compensation could be claimed
de
pauperie
.
. . . So that there is direct authority for the application
in
pauperien
actions
of the fundamental principle that no man can recover damages for an
injury for which he has himself to thank.’
[33]
[37]
As more
fully set out in the judgment of my colleague Swain JA, when the
respondent first saw the ostrich that morning it was ambling
along,
minding its own business. In its direct path to him lay the bakkie
and trailer. For reasons that remain unexplained, he
moved from the
relative safety of that position to the front of the bakkie. In so
doing he also brought himself closer to the ostrich.
Nor, was the
respondent able to explain why he did not simply climb onto the
trailer or seek refuge within the confines of the
bakkie, thereby
removing himself from what he then subjectively perceived to have
been harm’s way. What is more, he then
armed himself with and
threw an object at the ostrich. Until that point, there was nothing
in the conduct of the ostrich that,
objectively viewed, constituted a
danger to him. Only then, did the ostrich direct its attention to the
respondent. That, it would
seem, prompted him to run toward the
house. Even when he lost his footing and fell on the first occasion,
he was still not attacked
by the ostrich. Instead, it stopped and
looked at him. The respondent then picked himself up and once again
attempted to make his
way into the house. That is when he stepped
awkwardly and snapped his Achilles tendon. Even then, he was still
not attacked by
the ostrich, which eventually turned and simply
walked away. Thus, even on an acceptance that the
actio
de feris
availed
him, the respondent, to borrow from Innes CJ has himself to thank for
his injury. It follows that that the appeal must succeed
as his claim
ought to have been dismissed with costs by the trial court.
V M Ponnan
Judge of Appeal
Appearances:
For
the Appellant:
T Potgieter SC (with J L Mÿburgh)
Instructed by:
Prinsloo Bekker Inc.,
Pretoria
Symington & De Kok
Attorneys, Bloemfontein
For the Respondent:
T P Kruger SC
Instructed by:
Marais Basson Attorneys,
Pretoria
Albert Attorneys,
Bloemfontein
[1]
Bristow v Lycett
1971
(4) SA 223
(RAD) at 227A.
[2]
Bristow
at
227B.
[3]
South African Railways &
Harbours v Edwards
1930 AD 3
at 9.
[4]
Ibid.
[5]
O’Callaghan NO v Chaplin
1927 AD 310.
[6]
South African Railways
supra fn 3 at 9-10.
[7]
According to J Neethling et al
Law
of Delict
5ed (2006) at
330, the risk or danger theory means that ‘where a person’s
activities create a considerable increase
in the risk or danger of
causing damage, that is, an increased potential for harm, there is
sufficient for holding him liable
for damage even in the absence of
fault. Whether an increase in risk is “considerable”
enough in a specific case,
is difficult to ascertain. For this
reason the danger theory has been subject to much criticism’.
[8]
Neethling supra fn 7 para 2.1.1.4.
[9]
Loriza Brahman en 'n ander v
Dippenaar
2002 (2) SA 477
(SCA).
[10]
A J Van der Walt, The Law of
Neighbours
Dangers and
threats posed by neighbours
1
st
ed (2010), Chapter 7 at 333.
[11]
Le Roux & others v Fick
(1879)
9 Buch 29 at 36.
[12]
Lawsa
3ed para 424.
[13]
Neethling supra fn 7 at 334 para
2.1.1.3.
[14]
DIC
Ashton-Cross
Liability in
Roman Law for damage caused by animals
(1951-1953) Cambridge Law Journal II at 396-397.
[15]
O’Callaghan
supra fn 5 at 346.
[16]
Ibid at 368.
[17]
Ibid at 340.
[18]
Ibid supra fn 5 at 344.
[19]
Ibid supra fn 5 at
366.
[20]
Ibid at 366-367.
[21]
At 330.
[22]
See Visser
(2006) 697 THRHR 304
–
306, who cites several South African academics who express
uncertainty with regard to the existence of the
edictum
de feris
in modern South
African law. See also J C Van der Walt & J R Midgley
Principles
of Delict
4ed (2016) at 49
par 34; Neethling supra fn 7 para 2.1.1.3. See also
Hanger
v Regal & another
[2015] ZAFSHC 63
;
2015 (3) SA 115
at 334.
[23]
Nicholas ‘Liability for Animals
in Roman Law’ 1958
Acta
Juridica
at 185.
[24]
O’Callaghan
supra
fn 5 at 371
.
[25]
Parker v Reed
21
SC 496.
[26]
Bristow
supra fn 1 at 230A.
[27]
D L Carey Miller
Damage
by Wild Animals – Choice of Touchstone
(1972) 175 SALJ at 176.
[28]
See also Nicholas supra fn 23 at 185
and Ashton Cross supra fn 14 at 396-397.
[29]
C/f Visser supra fn 22 at 304.
[30]
O'Callaghan
at
377. Innes CJ did describe the edict as something more than a
mere municipal bye-law.
[31]
Lawsa
3ed para 308.
[32]
O'Callaghan
supra fn 5 at 326.
[33]
Harmse v Hoffman
1928 TPD 572
at 574-575.