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[2016] ZAGPPHC 1194
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Brown v Selane (68230/2014) [2016] ZAGPPHC 1194 (22 September 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 68230/2014
22/9/2016
Reportable:
No
Of
interest to other judges: No
Revised.
In
the matter between:
MARLENE
JULIA BROWN obo
JAY-DREW
ROMEO MICHAEL BROWN
Plaintiff
and
MONICA
PHUTI
SELANE
Defendant
JUDGMENT
MBONGWE,
AJ:
INTRODUCTION
1.
This is an action for damages claim arising from an incident wherein
the plaintiff's minor son was bitten by dogs allegedly belonging
to
the defendant while walking on the street. The plaintiff based the
claim on the Common Law principle that, in attacking and
biting her
son, the dogs acted contrary to the nature of domesticated dogs. In
the alternative, the plaintiff grounds the claim
on alleged
negligence on the part of the defendant for her failure to have and
maintain reasonable measures to prevent the dogs
from attacking her
son. The defendant denies liability on both the main and alternative
claims.
THE
FACTS (appear from the evidence)
2.
The plaintiff's son, Jay-Drew Brown (hereinafter referred to as "the
victim") was the first witness to give evidence.
He was eight
years old when he and his friend, Zweli, were walking on the street
passing the defendant's house on the 6 January
2013 when a BMW motor
vehicle approached the plaintiff's entrance gate. The plaintiff's
daughter, whom he described as a child,
opened the gate for the car
to drive in. Zweli ran on seeing the car approaching the gate. The
victim was told by the plaintiff's
daughter, as she opened the gate,
not to run otherwise the dogs will chase him. Two dogs, one black and
one white, came out of
the open gate as the car drove in and attacked
and bit him. The defendant's daughter had closed the gate once the
car drove in,
leaving the dogs outside. Describing the dogs, the
witness stated that the black dog was bigger than the white one which
had lots
of hair. Both dogs had full length tails.
3.The
witness testified that he walks past the defendant's house daily on
his way to school or the stores. His home is approximately
100 to 150
metres away from defendant's. He has previously observed these dogs
chasing other children as they walked past the defendant's
house and
that him and his friends have been chased by these dogs before. He
has no recollection of the dogs having bitten anyone.
The witness
testified that the white dog bit him on the thigh and the black one
on the inner part of his upper arm. He was rescued
by his friend,
Zweli, who also helped him walk home. He denied that he or his friend
had provoked the dogs thus causing the attack.
He described the
defendant's dogs as dangerous.
4.
Getting home, he related the incidence to his mother who then took
him and his friend in a bakkie and drove to the defendant's
house. On
arrival he noticed the two dogs lying in front of the gate outside
the premises. His mother hooted and the defendant's
daughter opened
the gate. The dogs got in and his mother spoke to the defendant's
daughter before the defendant was called. He
was later taken to
hospital by his parents. He denied that the defendant accompanied him
and his parents to hospital stating that
the defendant came to visit
in hospital a few days later.
5.
The second witness, Zweli, echoed the evidence of the victim, save
that he was able to see that the defendant was the driver
of the BMW
as it approached entrance the gate. This witness knew both the
defendant and her daughter and pointed them out in court.
He ran as
the car stopped because he anticipated that the dogs would come out
and chase them. He had previous experience of the
defendant's dogs
chasing children walking on the street. He saw the plaintiff's
daughter opening the gate and heard her telling
the victim not to
run. He stopped a few metres away, looked back and saw the
defendant's dogs emerging from the defendant's gate
and attacking the
victim. The latter screamed as the dogs were biting him. The witness
picked a stone, walked towards the victim
and the dogs and threw the
stone at the dogs and also kicked them to chase them away. He managed
to rescue the injured victim and
walked with him to his (victim's)
home.
CROSS
EXAMINATION
6.
The aspects relevant to the case in the cross examination of the two
witnesses mainly pointed to either a denial that it was
the
defendant's dogs that attacked and bit the victim and, alternatively,
that the dogs had been provoked by the victim and his
friend by
throwing stones at them . The witnesses denied that they provoked the
dogs. Describing the dogs, the witnesses maintained
that one was
black and the other white. The cross examination of the witnesses
about the colour of the defendant's BMW at the time
was extensive.
The defendant had admitted having owned a BMW at the time, the only
difference being the particular colour of her
car at the time. This
little detail was insignificant in the bigger scheme of the case.
EVIDENCE
OF VICTIM'S MOTHER
7.
Ms Brown testified that the victim was her son. She was at home on
the 61 January 2013 when she heard children screaming on the
street.
She went to Investigate and saw children bringing her son who was
bleeding and crying. Having established what had transpired
and that
the dogs concerned belonged to the defendant who lived in the same
street at the corner house, she took the victim and
his friend on her
bakkie and drove to the defendant's house. She hooted at the gate and
noticed two dogs lying opposite the defendant's
gate on the other
side of the street. The defendant's daughter opened. The witness
enquired if the defendant was present. The defendant
was then called.
8.
On her arrival the defendant called the dogs into the premises. The
witness told her that her dogs had attacked and bitten her
son. Both
the defendant and her daughter seemed surprised by her report. The
defendant asked what she was going to do about it.
She told the
defendant that the child needed to be taken to hospital. The
defendant responded by telling her that she would follow
in her car.
The witness drove back to her house where she took another vehicle, a
BMW, and was joined by her husband driving to
hospital. At the
hospital the defendant and her daughter remained outside the
emergency room while the victim was being examined.
The victim was
eventually admitted to hospital late that night.
COSS
EXAMINATION
9.
The cross examination of this witness revealed the following: she did
not witness the incident and could, therefore, not tell
which dog bit
her son; she denied that her husband had accompanied her to the
defendant's house; she had seen the defendant's dogs
before as she as
drove past the defendant's house daily on her way to and from
work ; she had previously seen the dogs chasing
passing children and
cars, including hers; that the defendant had admitted to her that it
was her dogs that bit the victim; she
disputed her son's version that
the dogs were lying in front of the defendant's gate when she went to
report the incidence to the
defendant.
APPLICATION
FOR ABSOLUTION FROM THE INSTANCE
10.
The defence counsel applied for an order for absolution from the
instance at the close of the plaintiff's case. Guided by the
principle in
OOSTHUIZEN v STANDARD GENERAL VRESEKERINGS MAATSKAPPY
BPK 1981 (A) at 1035H - 1036A,
namely, that" If at the end
of the plaintiff's case there is not sufficient evidence upon which a
reasonable man could find
for the him or her, the defendant is
entitled to absolution". In the present case there is reasonable
evidence in favour of
the plaintiff which calls for responses from
the defendant. On this basis the application was refused whereupon
the defence called
its witnesses.
DEFENDANT'S
EVIDENCE
11.
The defendant testified that on the 6 January 2013 she spent the day
at home with her daughters. At about 16h00 she drove out
to take one
of her daughter to her house. Her daughter, Nthabiseng, had opened
the gate as she drove out an then closed it. On
her return around
18h00, Nthabiseng came to open the gate and the defendant drove in.
She rushed to the bathroom. While there she
heard a hooter and the
dogs barking. Her daughter went to investigate and shortly returned
to tell her that the plaintiff was at
the gate and wanted to talk to
her.
12.
The defendant proceeded to the gate where she found and greeted the
plaintiff. She asked the plaintiff how she was and the plaintiff
said
she was not okay because the defendant's dogs had attacked and bitten
her son. The plaintiff had arrived in a BMW car. Upon
enquiring where
the injured was, the plaintiff told her that her husband will be
bringing the boy in a bakkie. The bakkie arrived
and the defendant
was able to see the victim. The defendant, after establishing that
the plaintiff did not have medical aid cover,
offered to take the
victim to her doctor in Vosloorus, but the plaintiff refused
insisting that the victim be taken to hospital.
The defendant
suggested that they first go to pharmacy as there was a doctor there,
but her suggestion fell on deaf ears.
13.
The defendant and her daughter, Nthabiseng, followed the plaintiff to
hospital where they remained while the victim was receiving
medical
attention. At about 24h00 the victim's father suggested that the
defendant and her daughter go home. She exchanged contact
numbers
with him before leaving.
SUBSEQUENT
EVENTS
14.
The day after the incident the defendant telephoned the victim's
parents to find out how the victim was doing. She was advised
that
the victim was admitted to hospital. She subsequently sent her
daughter to deliver a "sorry and get well soon" card
as
well as a chocolate to the victim's home. The defendant testified
that she attempted to make further contact with the victim's
parents
with the view "to assist with medical care", but they did
not take her calls. This led to her concluding that
the victim's
parents
"did not want to come to the party".
She was
shortly contacted by the police regarding the matter and, subsequent
thereto, the plaintiff commenced these proceedings.
IDENTIFICATION
OF THE DOGS AND THE DEFENCE
15.
With regards to the dogs, the defendant testified that she had two
female dogs at the time of the incident; one was black and
the other
fawn. Male dogs frequented her house as a result. The big male dogs
were able to jump over the boarder wall and into
her premises while
those that could not jump over mainly remained in front of her
entrance gate which was made of solid steel and
prevented sight of
the premises from the street and vice versa. She had to open the gate
for the visiting big dogs to leave her
premises.
CROSS
EXAMINATION
16.
The defendant disputed the plaintiff’s allegation that she had
called her dogs in when she went to meet the plaintiff
at her gate
stating that
"I do not know which dogs she was referring to.
There is no way I could have closed the gate while the dogs were
outside".
She testified that the address purporting to be
hers and contained in the plaintiff's statement to the police was not
hers. She
admitted that her dogs do run to the street and that the
colour of the fawn dog can also be described as dirty white. She
never
allowed her dogs to stray. No strange dogs had jumped over the
wall and into her premises on the day of the incident. There were
other dogs in her neighbourhood that roamed the street. She had seen
children provoking her dogs and at times she would find stones
in the
premises - an indication that stones had been thrown at her dogs.
EVIDENCE
OF NTHABISENG
17.
She was the second witness for the defence and the daughter of the
defendant, Nthabiseng. She was 21 years old at the time of
the
incident, despite the victim and Zweli repeatedly referring to her as
a child in their evidence. This witness testified that
she opened the
gate on the afternoon of the 6 January 2013 when the defendant drove
out to take her sister to her house and closed
it completely
thereafter. Her mother phoned her a couple of hours later for her to
open the gate. She did so. Her mother drove
in and she closed the
gate. Before she could get back to the house she had to remove items
from the boot of the car. It was at
that stage that she heard someone
hooting at the gate. It was the plaintiff who requested to talk to
the defendant. She heard the
plaintiff saying she was not fine as the
defendant greeted her. A few minutes later the defendant asked her to
accompany her to
hospital. She insisted that the dogs were inside the
premises when she opened the gate on the return of her mother. As the
latter
drove in, the dogs followed the car. She denied Zweli's
evidence that the dogs ran out when she opened the gate for the
defendant
to drive in. She also denied the allegations that the dogs
were outside the yard when the plaintiff came to report the dogs'
attack
of the victim. She testified that her friend who came to visit
had advised her that she had seen the gate slightly opened and boys
provoking the dogs. It is noted that this friend was never called as
a witness.
18.
In response to a question, the witness testified that she had seen
the victim in the neighbourhood and knew that he lived about
five to
six houses away from her home. She has never had any form of
encounter with the victim. She did not see anyone outside
the gate
when she opened it and did not tell the victim to stand still and did
not know when the dog attack occurred. The witness
testified that she
always ensured that the dogs were inside whenever she closed the
gate.
PROOF
REQUIRED AND THE BURDEN OF PROOF
19.
For the plaintiff to succeed, she needed to prove that the defendant
was the owner of the dogs concerned and that the dogs either
acted
contrary to the nature of domesticated dogs or the dogs' attack of
the victim was due to the negligence of the defendant.
In
DA SILVA
v COETZEE 1970 (4) All SA 46 (T)
it was held that an
allegation and proof that a dog attacked a person was sufficient to
establish that the dog acted contrary to
its nature. Proof of
ownership of a dog and that the dog attacked a person has been held
to be sufficient to establish the liability
of its owner (Strict
liability). No fault on the part of the dog's owner plays a role or
need be proved. A third basis for a dog
owner's liability is the
owner's knowledge of the vicious propensities of his animal.
20.
It is trite that the plaintiff bears the burden of proving its claim
against the defendant on a balance of probabilities. Where
there are
mutually destructive versions, as it seems to be the situation in
this case, the courts generally look into other factors
that may
assist in arriving at a decision.
Factors such as the credibility
of the various factual witnesses, their reliability and the
probabilities of their versions, including
the witness's extra curial
statements or actions.(see
STELLENBOSCH WINERY GROUP LTD and
ANOTHER v MARTEL Et CIE and OTHERS 2003(1) SA 11 (SCA).
FACTS
CONSIDERED IN THIS CASE
21.
In light of the mutually destructive versions of the parties in this
case I have considered three key aspects in this case emanating
from
the evidence, namely; ownership of the dogs, the description of the
dogs and the conduct of the defendant. I deal with these
aspects
individually hereunder.
OWNERSHIP
22.
It is noted that the defendant denied that the address stated in the
plaintiff statement to the police was hers. She, however,
did not
deny that the house shown in the victim's rough sketch and from which
the dogs allegedly emerged was her house. The incorrect
address does
not, in the circumstances of this case, suggest that the dogs could
have emerged from a house other than the one shown
on the sketch. It
is necessary to reiterate the evidence of the defendant's daughter
that the parties live about five or six houses
apart on same street
and the undisputed evidence that the victim and the plaintiff pass
the defendant's corner house on their way
to the shops, school and to
work. They had seen the defendant's dogs previously chasing passing
children and cars. The second plaintiff's
witness testified that he
had seen that the defendant was the driver of the car for which the
gate was being opened. He also pointed
out both the defendant and her
daughter seated among other people in court at the hearing. This
witness's testimony that he ran
on seeing the defendant's car
approaching the entrance gate in anticipation that the dogs would
come out, indicates not only that
he knows the defendant and her
house, but also the presence and the behaviour of the defendant's
dogs. The defendant herself conceded
that her dogs do run out of her
premises and onto the street once the gate is opened. She also
testified that no strange dogs had
entered her premises on the day of
the incident for which she would have had to open the gate so they
could exit. It follows that
only her dogs could have emerged as her
daughter opened the gate. On this basis I find that the house from
which the dogs emerged
as well as the dogs belonged to the defendant.
CONDUCT
OF THE DEFENDANT UPON RECEIVING REPORT
23.
One of the aspects indicated in the case of Oosthuizen cited above as
a deal breaker, is extra curial statements and actions
of a witness
or party. In my view, the statements and conduct of the defendant
described in paragraph 14 are conclusive proof of
her acceptance of
liability. She could not gone as far as she did had she genuinely not
accepted that her dogs had indeed attacked
and bit the victim. I find
it impossible not to accept the plaintiff's evidence that the
defendant had initially accepted that
it was her dogs that had
attacked and bitten the victim.
DEFENDANT'S
FOLLOW UP AND PURPOSE THEREOF
24.
The defendant's follow up enquiries on the condition of the victim
and her plan to visit him in hospital , her sending of a
"sorry
and get well soon" card and a chocolate to the victim's family,
ostensibly for the victim; her evidence that she
made attempts at
talking to the victim's family with a view to assisting them with the
victim's medical care/costs, in my view,
could not be the ordinary
concern and generosity of a good Samaritan, but that of a person
driven by a feeling to own up or take
responsibility for the
occurrence. The defendant's evidence that the victim's parents
subsequently and persistently ignored her
follow up calls, resulting
in her concluding that "
they did not want to come to the
party",
again, in my view, is indicative of her acceptance
of liability as opposed to her being merely lending a hand. I find
that defendant's
allegation that the purpose of her follow up calls
was merely to establish how the incident had occurred is inconsistent
with her
evidence and conduct described above and stands to be
rejected.
CONCLUSION
23.
In light of all the findings in this judgment, I find that the
defendant is liable for the damages suffered by the plaintiff
both in
her personal and representative capacities.
24.
The parties have neither applied for a separation of the issues in
terms of Rule 33 nor did they lead evidence on quantum. This
judgment
is, therefore, limited to the determination of the merits or
liability.
25.
Resulting from the above findings, the following order is made:
1.
The defendant is liable to compensate the plaintiff for the damages
she may prove and resulting from her cause of action in this
case.
2.
The defendant is to pay the costs the scale whereof shall be
determined when quantum is decided upon.
M
MBONGWE
ACTING
JUDGE OF THE GAUTENG DIVISION
PRETORIA
Heard
on: 25-27 July 2016
Date
of Judgment
:22 September 2016
For
the Plaintiff
: Adv GF JANSEN
Instructed
by
: Gert Nel Inc, Pretoria
For
the Defendant
: Adv R B Mphela
Instructed
by
:
Tsebane Molaba Inc, Pretoria