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[2020] ZASCA 100
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Van Meyeren v Cloete (636/2019) [2020] ZASCA 100; [2020] 4 All SA 358 (SCA); 2021 (1) SA 59 (SCA) (11 September 2020)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
no: 636/2019
In
the matter between:
CHRISTIAAN
JACOBUS VAN
MEYEREN APPELLANT
and
GERALD
CLOETE RESPONDENT
Neutral
citation:
Van Meyeren v Cloete
(636/2019)
[2020] ZASCA 100
(11
September 2020)
Coram:
CACHALIA, WALLIS and MOCUMIE JJA and LEDWABA and
WEINER AJJA
Heard
:
2 September 2020
Delivered
:
This judgment was handed down electronically by circulation to the
parties’ representatives by email, publication on the
Supreme
Court of Appeal website and release to SAFLII. The date and time for
hand-down is deemed to be 09h45 on 11 September 2020.
Summary:
Actio de pauperie –
defences – whether to be extended to include
negligence of a third party not in control of animal – no
extension justified.
ORDER
On
appeal from:
Eastern Cape Division of
the High Court, Port Elizabeth (Lowe J, sitting as court of first
instance):
The
appeal is dismissed with costs, such costs to include the costs
consequent upon the employment of two counsel.
JUDGMENT
Wallis
JA (Cachalia and Mocumie JJA and Ledwaba and Weiner AJJA concurring)
[1]
At about 3.00 pm on Saturday, 18 February
2017, the respondent, Mr Cloete, an itinerant gardener and refuse
collector, was
on his way to the shops pulling the trolley in which
he collects refuse down R Street in Rowallan Park, Port
Elizabeth, after
completing a job. For no reason, and without any
warning, he was attacked by three dogs owned by the appellant,
Mr van Meyeren.
The dogs were cross-breeds, with a
significant component of pit bull terrier. They savaged Mr Cloete
to such an extent that
neighbours who came to the scene thought he
was dead. He survived, but his left arm was amputated as a result of
his injuries.
The present action is to recover damages from
Mr van Meyeren.
[2]
Mr Cloete’s claim was pleaded under
the
actio de pauperie
and, in the alternative, in negligence. The parties agreed to
separate the issue of liability from quantum and the trial was heard
before Lowe J in the Eastern Cape Division of the High Court,
Port Elizabeth. He upheld Mr Cloete’s claim and granted
a
declaratory order and costs. Leave to appeal was refused but granted
on application to this court.
The
facts
[3]
These can be taken largely from the judge's
summary. Mr Cloete
was in R Street minding his own
business. As he passed Mr van Meyeren’s home he heard
the sound of the dogs behind
him and was then attacked and pulled to
the ground. He had done nothing whatsoever to cause or provoke the
attack and was lawfully
present at the place where it occurred. He
was unable to ward off the dogs, but a passer-by, Mr van Schalkwyk,
fought the dogs
off him and chased them away, while help was sent
for. Ultimately the dogs also attacked Mr van Schalkwyk. They were
finally chased
away by the police firing shots at them.
[4]
The three dogs rejoiced in the names Mischka, Zeus and Coco.
Mischka was the mother of the other two, but all three were fully
grown.
Mr van Meyeren described them as housedogs that had
the run of his home and garden and at night slept on his son’s
bed. The garden could be accessed from the street through the front
door of the house, a gate adjacent to the garages and, potentially
at
least, another gate adjacent and at right angles to the front door.
It was through the latter gate that the dogs gained access
to R
Street before the attack. Photographs taken after the attack show the
one half of the gate open.
[5]
Mr van Meyeren had been away from home in
Sunday’s River since the previous Wednesday and Mrs van Meyeren
had gone to a family
party. Their son and his girlfriend, Ms Meyer,
were there on Saturday morning, but were out at the time, Ms Meyer
having been
the last to leave shortly before two in the afternoon to
attend the same party as Mrs van Meyeren.
[6]
Mr and Mrs van Meyeren testified that the
gate through which the dogs escaped was customarily kept closed and
locked with two padlocks.
Mrs van Meyeren said that, if her husband
needed to open it, he would simply lift it off its hinges. Be that as
it may, the photographs
taken on the day of the incident showed that
the one half of the gate (the left hand side when viewed from inside
the property)
was open, while the right hand half appeared to be shut
and closed by a bolt located on the pillar of the central frame and
fastened
into a socket in the ground. None of these photographs
showed any padlocks or other fastenings for the gates.
[7]
A close-up photograph, said by Mr van
Meyeren to have been taken on the following Monday, showed the lower
half of a gate with a
bolt held in place by two heavily rusted
padlocks. The shackle of one of these was bent inwards so that it
could not close and
the other one apparently did not lock, although
the reason for this was not explained. It could be shut, but could
simply be pulled
open. Both locks were open in the photograph. The
gate was constructed from unpainted circular tubular steel, with a
single bolt
on the left hand side when looking outwards from the
inside of the property. The bolt had a long elliptical shackle at the
top
that fitted over an eye attached to the central gate post on the
right hand side of the gate. Like the padlocks, both the shackle
and
the eye were heavily rusted. The padlocks were hooked through the
eye. The indication was that the bolt fitted into a socket
in the
ground. A tubular steel bar crossed the gate about half way up
roughly level with the bolt. The one vertical bar shown in
the lower
section of the gate was covered with chicken wire, but neither it nor
the chicken wire extended above the cross bar.
[8]
Mr van Meyeren’s photograph was
difficult to reconcile with the photographs on the day of the
incident. None of the features
appearing from his photograph were
visible on the photographs taken on the Saturday, although counsel
said he could see them on
his copy of the photographs. Even the bolt
holding the one half of the gate closed in the Saturday photograph
appeared to be in
the reverse position to that in Mr van
Meyeren’s photograph. A more careful exploration of the factual
position in regard
to the gates and padlocks should have been
undertaken at the trial in order to resolve these issues.
[9]
There are other difficulties with the
suggestion that the padlocks shown in Mr van Meyeren’s
photographs were in position,
locked and holding the gates closed
when he and his wife left the property on the Wednesday and Friday
respectively before this
incident. The shackle of the one padlock was
so bent that it could not fit into the locking hole of the padlock.
It is difficult
to conceive of how any interference with it could
have left it in that situation. Mr van Meyeren was asked how this
could have
happened and said he did not know. The extent of the
corrosion and rust on the shackle suggested that it had been in that
condition
for some time. As to the other padlock there was no
explanation for it not remaining locked when closed. It too was
extensively
rusted and corroded and did not appear to have been
closed for some time. But, if it could close, there was no
explanation for
it not remaining closed.
[10]
All this bore upon the acceptability of
Mr van Meyeren’s explanation of how the dogs came to
escape from the property
through gates that were securely locked. The
explanation was entirely a matter of speculation. Its only evidential
base was the
claim by him and his wife that the gate was locked with
these two padlocks when they left the property, although they did not
say
that they had checked the two padlocks. Based on their having
been closed and locked, Mr van Meyeren said that an unknown intruder
must have attempted to gain access to the property via the gates and
in doing so damaged the two padlocks in the manner shown.
In turn
this enabled the dogs to escape, either because the gate was left
open or because it enabled the dogs to open it.
[11]
How a potential intruder could have done
this through the chicken wire and without attracting the attention of
the dogs, which were
not afraid to be aggressive as subsequent events
were to prove, is a mystery. Ms Meyer said in her evidence that she
saw the dogs
there as she left the house. Why would they not have
confronted an intruder? Why would the intruder force open these gates
which
did not lead into the house, instead of the front door? Ms
Meyer said that the front door was ‘broken open’ when she
arrived home, but in the photographs the front door is shown closed
and apparently undamaged. Having forced open the gates, why
did the
intruder not carry on inside instead of disappearing? Had the
intruder taken fright because of the dogs, one would have
expected
either that the dogs would have attacked the intruder, or that
someone would have seen them fleeing the scene. Mr Cloete
said that
he did not see anyone else walking in the street. Nor did he hear
anything unusual. Other than an endeavour to suggest
that he was
intoxicated at the time this was not challenged. If the gates were
opened as a result of some endeavour by an unidentified
person to
intrude it was remarkable that this occurred without the dogs being
alerted and without anyone seeing the intruder.
[12]
The intruder explanation also posed difficulties with the time line
of events. Ms Meyer left the property at about 2.00 pm
and the
incident occurred at about 3.00 pm. During the intervening period a
neighbour, Mr Visser, from [...]9 R Street, went
to borrow a
tool from Mr van Meyeren at [...]8 R Street and observed
that the gates were closed. He knocked on the front
door, but
received no response. There was no suggestion that as he crossed the
road from his own house a possible intruder was
seen by him leaving
the vicinity. When he discovered that Mr van Meyeren was not home he
went back down the road to his own home
and spoke to his father. He
then came out again and went to the home of another witness Mrs van
der Merwe who lived at [...]1 R Street.
There he obtained
the tool that he was seeking and returned home. As he started work on
his car he heard a commotion in the street
and went to investigate.
He found Mr Cloete lying injured in the road. Other neighbours had
come out to see what caused the commotion.
The three dogs were
further down the road. At most a few minutes had passed since he was
in the road. However, there was no suggestion
that anyone who might
have been the supposed intruder was about and when he had gone to the
Van Meyeren home the gate was still
shut. No neighbour came forward
to say they had seen some other person in the street. How then did an
intruder manage to open the
gate, or least break both padlocks,
within what was at most a few minutes and then vanish? If there was
an intruder he appears
to have been as elusive as the Scarlet
Pimpernel.
[1]
[12]
Notwithstanding these difficulties and the
fact that neither Mr van Meyeren nor his wife were
impressive witnesses, the
judge said that he was unable on the
probabilities to reject the evidence that the gates had been locked
and that they must have
been broken open by an intruder. In doing so
he was particularly influenced by his view that, given crime
statistics in urban areas,
gates accessing a road are usually kept
locked. This was not something of which he could properly take
judicial notice. Nor was
his view supported by the fact that three
large and potentially dangerous dogs were being kept from the road by
the very same gates.
The fact that there were large and potentially
dangerous dogs roaming the garden could equally well conduce to a
lack of concern
to lock the gates in the belief that the dogs would
protect against intruders.
[13]
The
approach to this unsatisfactory and speculative evidence was
incorrect. It overlooked the fact that the onus of proof rested
on
Mr van Meyeren. There is no obligation on a court to accept
an improbable explanation of events merely because no
other positive
explanation is proffered, or the alternative seems to the judge even
less probable.
[2]
There were at
least two possibilities. The one was that the gates were
insufficiently secured to keep the dogs inside the Van Meyeren
property. The other was the Van Meyerens’ explanation that
there must have been an intruder. The fact that the judge did
not
feel able to reject their evidence did not mean that he was obliged
to accept it. The issue was whether on a balance of probabilities
theirs was the only explanation for the dogs escaping. Unless that
conclusion could be reached Mr van Meyeren did not
discharge the onus of proof and the defence should have failed.
[14]
Mr van der Linde SC, who appeared in this
court for Mr Cloete, but not at the trial, said he was arguing the
appeal on the basis
of the judge's factual findings. It is
accordingly necessary, notwithstanding my qualms about the premise of
the hypothetical intruder,
to determine whether the judge was correct
that these did not constitute a defence to the pauperien action.
The
actio de pauperie
[15]
I
trust legal historians will forgive me for not commencing the
discussion by going back to the roots of the
actio
de pauperie
in
the Law of the Twelve Tables and the relevant passages in the Digest
of Justinian. I refrain from doing so not simply because
this has
become overworked terrain,
[3]
but because the task was undertaken by this court in
O’Callaghan
NO v Chaplin
,
[4]
where Innes CJ (with whom De Villiers JA concurred) in his customary
lucid fashion, summarised the law as follows:
[5]
‘
By
our law, therefore, the owner of a dog, that attacks a person who was
lawfully at the place where he was injured, and who neither
provoked
the attack nor by his negligence contributed to his own injury, is
liable, as owner, to make good the resulting damage.
The same
principle applies to injuries inflicted by a dog on another animal,
and to injuries inflicted by any animals falling within
the operation
of the pauperien law. It is confined of course to cases where
liability is based upon ownership alone. Actions may
be founded under
appropriate circumstances on
culpa
, and they will be governed
by the ordinary rules regulating Aquilian procedure. The conclusion
is satisfactory for two reasons
especially. In the first place it
provides a remedy in cases where otherwise persons injured would be
remediless. Instances must
occur where a dog, a bull or other
domesticated animal inflicts damage under circumstances which make it
impossible to bring home
negligence to the owner. Yet of two such
persons it is right that the owner, and not the innocent sufferer,
should bear the loss.
And in the second place the adoption of
culpa
as the sole basis of liability would inevitably lead us towards the
scienter
test . . . which it is common cause is not the test
which our law applies in cases of this kind.’
[16]
The
reference to the
scienter
test was a reference to the doctrine of the English common law that
strict liability follows the owner of an animal if the owner
was
aware of the animal’s proclivity to engage in the conduct that
caused the harm. Thus if an owner was aware of their dog’s
tendency to bite people, the owner would be liable if the dog bit
someone. In the result it is sometimes referred to as 'the one
free
bite' rule. If the owner was aware that the dog has a tendency to
chase cyclists and the dog chases a cyclist causing them
to fall off
their bicycle and injure themselves, the owner will be liable.
[6]
In South Africa there is no such requirement and strict liability is
imposed on the owner of the animal.
[17]
In
a clear statement of the policy justification for the continued
existence of the pauperien action, notwithstanding that the original
provision of the Roman Law that an owner could discharge their
liability under the action by surrendering the offending animal
to
the injured party
[7]
had fallen
into desuetude, Kotzé JA (with whom Stratford AJA concurred)
arrived at the same conclusion as the Chief Justice,
and said:
[8]
‘
It
is satisfactory to find that the
actio de pauperie
still forms
part of our law . . . I think the conclusion is a sound one and just,
for
if
a man chooses to keep an animal, and injury or damage
is caused by it to an innocent person, he must make adequate
compensation.
The owner of the animal and not the person injured must
bear the loss.’
[18]
Three
years later De Villiers JA, giving the judgment in
SAR
& H v Edwards
[9]
said:
‘
The
action lies against the owner in respect of harm (
pauperies
)
done by domesticated animals . . . if 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.’
The
endeavour in
Loriza Brahman
to
persuade this court to abolish the pauperien action failed.
[19]
An element of anthropomorphism underlies the pauperien action. It
attributes to domesticated animals the self-constraints that
are
generally associated with human beings and attaches strict liability
to the owner on the basis of the animal having acted from
internal
vice. As De Villiers JA said:
‘
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.’
This
anthropomorphism is reflected in the concept of the animal acting
contra
naturam sui generis
.
That is well described as follows:
[10]
‘
The
contra
naturam
concept seems, in fact,
to have come to connote ferocious conduct contrary to the gentle
behaviour normally expected
of domestic animals. This imports an
objective standard suited to humans. It is far more refined than
behaviour literally
natural
to
that species of animal. It is what
Voet
,
9.1.4, means when he speaks of
animalia
mansueta feritatem assumunt.
’
If
the conduct of the animal that caused the harm was due to its being
frightened, or in pain, or provoked and it acted as any animal
would
in the circumstances, then it has not acted
contra
naturam
and the owner is not liable.
[11]
The onus of establishing this rests on the owner of the animal.
[12]
[20]
In
O'Callaghan
NO v Chaplin
two circumstances were identified in which the owner would not be
liable. The first was where the injured party was in a place
where
they were not entitled to be. The obvious example would be that of a
housebreaker bitten by a watch dog. Another would be
where the animal
was chained to restrain it and the injured party ventured within
reach. However, in general, if the harm occurred
in a public place,
such as a public street, the owner would be liable.
[13]
The second exception was the relatively obvious one where the injured
party or a third party provoked the attack by goading or
provoking
the animal. The application of these defences where children are
involved may create problems, for example, where a child
enters a
neighbouring garden to retrieve a lost ball, or where one child
teases a dog and the dog bites another child. I would
also be
hesitant to say that the homeowner was free from liability because
the intruder was in the wrong place, if a watchdog savaged
the
intruder in the way these three dogs savaged Mr Cloete. However,
these problems do not arise in this case and can be left for
consideration when such a case arises.
The
exception to pauperien liability in
Lever v Purdy
[21]
That
brief outline of the pauperien action in South African law brings me
to the decision of this court in
Lever
v Purdy
,
[14]
a
dog bite case, where a third exception was recognised to the strict
liability of the owner of a domestic animal. It is best to
start with
its facts. Mr Lever was the owner of a dog that bit Mr Purdy. At the
time of the incident Mr Lever was overseas
and Mr Cohen was
living in his home and looking after Mr Lever's admittedly vicious
dog. At Mr Cohen’s request Mr Purdy
came to the house to
adjust a television set. He was told about the dog and asked Mr Cohen
to lock it away before his arrival.
Mr Cohen did not do so. When Mr
Purdy reached the house at between 6:30 pm and 7:00 pm he walked up
the path, put his hand on the
gate and shouted for Mr Cohen. At this
point the dog suddenly appeared and bit him, pulling him through the
gate. When Mr Cohen
emerged, he took control of the dog. After Mr
Lever’s return Mr Purdy sued him for damages.
[22]
The
question was whether Mr Lever could escape liability on the grounds
of Mr Cohen’s negligence, even though he had not provoked
the
dog to attack Mr Purdy.
[15]
The court said that he could. In this case Mr van Meyeren
contended that the defence recognised in
Lever
v Purdy
should
be extended to exempt the owner from liability for harm caused by the
animal where the harm would not have occurred but for
the negligent
conduct of a third party, irrespective of whether the third party had
the custody or control of the animal. That
requires in the first
instance an analysis of what was decided in
Lever
v Purdy.
There
were two judgments, one by Joubert ACJ and another by Kumleben JA,
both reaching the same conclusion. I will analyse each
in turn.
[23]
Joubert
ACJ, in the majority judgment, considered the Roman Law of pauperien
liability as contained in Justinian's Digest. Referring
to various
texts in D 9.1 he dealt with those instances in which the
culpable conduct of a third party caused a domesticated
animal to act
contrary to the nature of its class in injuring the victim, with the
result that the animal's owner was exempted
from pauperien liability.
These he divided into two categories. The first category consisted of
cases where the culpable conduct
of an outsider by way of some
positive act, such as, provoking, striking, wounding, scaring or
annoying the animal, caused the
animal to inflict the injury upon the
victim.
[16]
The second
category related to those instances where a third party, in
charge or control of the animal, by negligent conduct
failed to
prevent the animal from causing harm to the victim.
[17]
The difference between these two categories was this. In the first
category the positive act of the third party caused the animal
to
injure the victim. In the second the third party's negligent failure
to prevent the animal from injuring the victim created
the
opportunity for the animal to injure the victim, without causing it
to do so. In both cases the conduct of the third party
attracted
liability under the Aquilian action and exonerated the owner from
pauperien liability. After a survey of the Roman-Dutch
writers,
Joubert ACJ concluded that their law was the same as that set out in
the Digest. As Mr Cohen's conduct fell in the second
category, Mr
Lever was not liable to compensate Mr Purdy for his injuries.
[24]
Kumleben
JA adopted a different approach. He agreed that in the first category
of cases, where the third party incited or provoked
the animal to
behave
contra
naturam sui generis
by
striking, wounding, scaring or annoying it, the conduct of the third
party caused the harm and pauperien liability was excluded.
He
identified what he described as a 'wider exception'
[18]
whether fault on the part of a third party causatively contributing
to the injury caused by the animal would also constitute a
defence.
He illustrated this with the example of a visitor leaving a gate open
thereby enabling a vicious dog to escape and attack
some innocent
passer-by, suggesting that there was some authority in support of
such a defence.
[19]
However,
he added that this question did not need to be decided as the only
question in the case was whether the negligence of
a person to whom
the owner had entrusted the custody and control of an animal relieved
the owner of pauperien liability.
[25]
Neither judgment cited any clear authority in favour of the existence
of the exception. The closest to it was D 9.1.1.5 (a
text by Ulpian),
which in Watson's translation reads:
‘
Take
the case of a dog which, while being taken out on a lead by someone,
breaks loose on account of its wildness and does some
harm to someone
else: If it could have been better restrained by someone else or if
it should never have been taken to that
particular place, this action
will not lie and the person who had the dog on the lead will be
liable.’
[20]
Joubert
ACJ's judgment in
Lever
v Purdy
was
based solely on his reading of these texts. In his view they showed
that a person having the custody or control of an animal,
who through
negligence failed to control it resulting in it injuring the victim,
was liable under the Aquilian action and this
constituted a defence
exonerating the owner from pauperien liability.
[21]
[26]
Kumleben
JA relied on the same authority as recognising the exception. He
accepted that a feature of pauperien strict liability
was that the
owner was the source of risk to the injured party. However, the main
considerations influencing his conclusion that
the exception existed
appear from the following passage:
[22]
‘
It
must also be borne in mind that liability without fault runs counter
to fundamental legal precept, though in certain instances
considerations of social policy no doubt justify its existence. Where
the owner of an animal has taken care to entrust it to another
as its
custodian, the former has
ex
hypothesi
no means of exercising
control over it. Competing interests are plainly at stake. Should the
owner in such a case be held liable
in the absence of any fault on
his part or should the injured person be restricted to an action
against the negligent custodian?
Dictates of fairness and justice, to
my mind, favour the owner and warrant the recognition of the
exception in issue.’
A
wider exception?
[27]
Apart
from the passing reference to the 'wider exception' at the outset of
Kumleben JA's judgment, nothing in
Lever
v Purdy
provides
any support for the wider exception for which Mr van Meyeren
contended. Counsel referred us to various passages
in Joubert ACJ's
judgment, but they all fell to be considered in the specific context,
reiterated several times, that he was
concerned with a third party in
charge or control of the animal.
[23]
They cannot be taken as shedding any light on the present situation.
[28]
The
case of
Le
Roux v Fick
hardly takes the matter further. The owner of a dog was proceeding in
a cart along a public road and his dog was walking along
the road
with him. Some ostriches were grazing on a commonage beside the road
and the dog, together with another one that had attached
itself to
the party, chased the birds, causing one to fall into a sluit and
injure itself so badly that it died. After a full consideration
of
the authorities Smith J said:
[24]
‘…
an
action
de pauperie
lay in all cases of damage caused by
animals when the damage was not brought about through the fault of
the party using the animal
or of some third party
’ (My
emphasis.)
Those
few words provide but slender support for the proposition that fault
on the part of a third party in circumstances such as
the present
case exonerates the owner from liability.
[29]
The
passage from Van Leeuwen is likewise of little help. It reads:
[25]
‘
I
said
aut culpa hominis
(or
negligence on the part of a human being) because if there is
negligence on the part of the owner or
of
anyone else
, this action lapses and
a suit is brought under the
Lex
Aquilia
, for example if a mule does
damage because of the unevenness of the road, or the
negligence of the muleteer, or
because it was too heavily loaded or
was provoked by someone, or if the animal acted in some way on
account of human inexperience
or negligence or when aroused by
pain.’ (My emphasis.)
The
example of the muleteer is clearly not an example of the mule acting
contra
naturam sui generis
.
Nor is the example of the animal being aroused by pain.
[26]
Provocation by the victim or a third party has always been recognised
as providing a defence. The reference to the animal acting
in a way
caused by human inexperience or negligence is too vague and general
to be helpful.
[30]
The
current edition of
Lawsa
is
inconsistent on the subject. When dealing generally with the defences
available to the owner of an animal sued under the
action
de pauperie
it
says that culpable conduct on the part of a third party avoids
liability. However, in the section dealing with fault on the part
of
a third party it goes no further than
Lever
v Purdy
,
without suggesting that the exception in that case should be
extended.
[27]
In the first
edition cited by Kumleben J the author gave two examples of negligent
conduct by a third party exonerating the owner
from liability. The
one was where the third party provoked or injured the animal and the
other where a person having control of
the animal was negligent.
Neither supported an exception from liability extending any further
than that recognised in
Lever
v Purdy
.
[31]
At
best it seems to me that these rather cryptic references in and to
the old writers on the Roman-Dutch law provide no clear authority
in
favour of extending an owner's exemption from liability for harm
caused by their animal to instances where a third party's negligence
is involved without the third party having the custody or control of
the animal. Voet
[28]
mentions
one example that appears to be inconsistent with the extension. He
said that where A is persuaded by B's fraud to approach
a horse that
B knows is apt to kick, and A is kicked even though B did not provoke
the horse, A's action is correctly brought against
the owner on
pauperies
,
although B may also be sued. But overall any development of the
principles governing pauperien liability and the defences available
to an owner is best sought in modern principles and circumstances,
rather than obscure references to ambiguous authorities drawn
from a
different era in a very different society.
[32]
Mr
van Meyeren wished us to develop the common law by extending the
exception to liability under the pauperien action recognised
by this
court in
Lever
v Purdy
.
This is a power vested in the high court, this court and the
Constitutional Court by s 173 of the Constitution. It is to
be
exercised in accordance with the interests of justice. When
exercising the power, we are enjoined by s 39(2) of the
Constitution
to promote the spirit, purport and objects of the Bill
of Rights. Before adopting any development it is incumbent on a court
to
(a)
determine exactly what the common law position is; (b) then consider
the underlying reasons for it; and (c) enquire whether
the rule
offends the spirit, purport and object of the Bill of Rights and thus
requires development. Furthermore, it must
(d) consider
precisely how the common law could be amended; and (e) take into
account the wider consequences of the proposed change
on that area of
law.
[29]
[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:
[30]
‘…
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.
[34]
Counsel for Mr van Meyeren said that he did not rely on any specific
provision of the Bill of Rights. He did not suggest that
the existing
more limited exceptions offended the spirit, purport and objects of
the Bill of Rights. In that he was correct because
the only relevant
provisions of the Bill of Rights point in the opposite direction.
They are the right to bodily integrity in s 12(2),
the right to
dignity in s 10 and, as the facts of this case demonstrate, the
right to life in s 11. These are the rights
that the
actio
exists to protect and it is right that we prefer to develop the
actio
in ways that afford protection to them.
[35]
Counsel
submitted that given the level of crime in South Africa people are
entitled to protect their persons and homes against criminals.
[31]
That is a proposition that would be uncontroversial even were the
crime level lower. He went on to submit that not all the population
can afford to live in gated and secure estates, or to install state
of the art alarm systems. They may be compelled to rely on
their dogs
to guard their homes against criminals. Thus far the submission
cannot be faulted, subject to the reservation mentioned
earlier as to
the degree of harm that a dog may do to an intruder. Deterrence or
restraint of an intruder is one thing. Killing
or seriously injuring
them is another. Only in extreme circumstances is it permissible to
shoot and kill an intruder in self-defence.
Why then should it be
permissible to keep a dog that, irrespective of the level of threat,
may kill or maim them? Innes CJ spoke
only of a trespasser being
bitten by a watchdog.
[32]
However, that question does not need to be answered in this case.
[36]
The problem arises at the next stage of the argument. These dogs did
not harm an intruder in their owner's home or premises,
within
whatever limits may be permissible in law. They escaped from the
premises and attacked an innocent passer-by. However extensive
may be
the right to keep dogs for protection in the home, it is irrelevant
to cases where the dog causes harm outside the home.
Mr van
Meyeren does not dispute that the requirements of pauperien liability
were satisfied. He sought to escape liability
on the basis that what
occurred here was not his fault. But absence of fault has never been
a basis for avoiding pauperien liability.
It proceeds on the basis of
strict liability arising from ownership of the animal that caused the
harm. Absence of fault is a ground
for resisting Aquilian liability,
not a claim under the
actio
.
[37]
Where the actions of the victim or third parties are held to
exonerate the owner of an animal from pauperien liability, it
is
because those actions directly caused the incident in which the
victim was harmed in circumstances where the owner could not
prevent
that harm from occurring. That is why provocation of the animal by
the victim or a third party exonerates the owner. It
is also why in
Lever v Purdy
the negligent failure by a third party to
control an animal in their custody and under their control exonerated
the owner. The result
in that case would have been no different if Mr
Lever had placed the dog in kennels for the duration of his absence.
These causes
are not extrinsic to the conduct that caused the harm.
They are directly linked to it. An extrinsic cause such as leaving a
gate
open and allowing animals to escape from the owner's property
has nothing to do with the behaviour of those animals once they have
escaped. If they are naturally vicious or dangerous, as appears to
have been the case with the dogs in this case, that merely creates
a
wider opportunity for that characteristic to manifest itself in
harming innocent persons.
[38]
The assumed intruder in this case had no responsibility to
Mr van Meyeren in relation to his dogs. They did nothing
in
relation to the dogs. They interfered with the locks on the gate
thereby enabling the dogs to go into the street and attack
Mr Cloete.
But responsibility for the dogs had not passed from Mr van Meyeren to
the intruder in the way in which it had passed
from Mr Lever to Mr
Cohen. It still resided squarely with him as the owner of the dogs.
It was contended on his behalf that he
should not be held liable,
because he took appropriate steps to ensure that the dogs could not
escape from the premises.
[39]
I repeat that stripped of everything else Mr van Meyeren's argument
is nothing more than a claim that Mr Cloete's injuries
were not his
fault. Counsel recognised this, as he first sought to persuade us
that control of the animal by the person whose negligence
allowed
them to escape, was not a requisite for the extended exception to
operate. In my view that cannot be accepted as it is
destructive of
the need for there to be a direct link between the third party's
conduct and the behaviour of the animal that caused
the harm in order
for the owner to be exonerated from liability. While the third
party's conduct might be causally linked to the
harm, it stands at
one remove from it, in that it may be a necessary condition for the
harm to occur, but the harm would not necessarily
occur as a result
thereof. For example, if the owner came home and rounded the dogs up
before they could do any harm it would be
avoided. That is not the
case in the instances where a third party's conduct exonerates the
owner from liability.
[40]
Kumleben
JA laid store on the principle of our law of delict that liability
goes hand in hand with fault. However, the principle
is by no means
universal in its application. In the field of vicarious liability the
nature of the relationship between the wrongdoer
and the party sought
to be held liable is what determines liability. The fault of the
wrongdoer for all practical purposes is treated
as if it were the
fault of the party being held liable. Under some statutes, especially
those dealing with environmental matters,
civil liability is imposed
irrespective of fault.
[33]
There are criminal statutes that impose strict liability. For nearly
two hundred years in South Africa owners of animals have been
held
strictly liable for harm done by domesticated animals. This court has
rejected the argument that this should be abolished
because it was
not based on fault. It would in my view be inappropriate to undermine
the principle of strict liability for harm
caused by domesticated
animals by extending the exception in
Lever
v Purdy
.
[41]
Kumleben JA also took the view that in
considering the competing interests of the owner who had not been at
fault and the injured
party who had a claim based on negligence
against the custodian of the dog, considerations of fairness and
justice favoured the
owner. I am unconvinced that this was a correct
balancing of interests if one takes the interests of justice into
account in accordance
with the constitutional values already
mentioned. In
Lever v Purdy
the
injured plaintiff's claim based on negligence was worthless as it was
settled without any amount being paid to Mr Purdy. Many
people go on
holiday and leave their homes in the care of house sitters. Those may
be friends, the children of friends, students,
retirees or young
people seeking to supplement their income. Their financial ability to
meet a claim for damages arising from the
family dog biting a
passer-by will probably be limited. The same is true of the dog
walkers postulated by counsel, although if
they are negligent the
owner may be vicariously liable. By contrast the dog's owner is
likely to be able to obtain insurance cover
against the risk of the
animal biting someone as part of a conventional household insurance
policy.
[42]
Many people in South Africa choose to own
animals for companionship and protection. That is their choice, but
responsibilities follow
in its wake. Whatever anthropomorphic
concepts underpin pauperien liability, the reality is that animals
can cause harm to people
and property in various ways. When they do
so and the victim of their actions is innocent of fault for the harm
they have caused,
the interests of justice require that as between
the owner and the injured party it is the owner who should be held
liable for
that harm. In taking that view I find myself in the
company of the majority of this court in
O'Callaghan
NO v Chaplin
. Nothing has occurred in
over ninety years since that case was decided to change the view of
the interests of justice taken in
that case. The endeavours to
suggest that they have changed in more modern times is misplaced. If
anything with the growth of urban
living, the vastly increased number
of pet animals, especially dogs, in our towns and cities and the
opportunities for harm that
they pose, that view of where the
interests of justice lie has been strengthened. People are entitled
to walk our streets without
having to fear being attacked by dogs
and, where such attacks occur, they should in most circumstances be
able to look to the owner
of the dog for recompense.
Result
[43]
In the result the appeal is dismissed with
costs, such costs to include those consequent upon the employment of
two counsel.
_________________
M J D WALLIS
JUDGE OF APPEAL
Appearances
For
appellant: D J Coetzee
Instructed
by: BDP Attorneys, Tyger Valley;
Honey
Attorneys, Bloemfontein
For
respondent: H J van der Linde SC (with him N Barnard)
Instructed
by: Lessing, Heyns, Keyter & Van der Bank Inc, Uitenhage
Van
Wyk & Preller Inc, Bloemfontein.
[1]
Baroness
Orczy
The
Scarlet Pimpernel
Chapter
12.
[2]
Rhesa
Shipping Co SA v Edmunds (The Popi M)
[1985]
2 All ER 712
(HL). In that case a ship sank in calm waters and fair
weather. At the trial two alternative explanations were proffered
for
this, namely, that it had struck a submarine object, or that its
plates ruptured due to prolonged structural wear and tear. The
judge
regarded the former as inherently improbable and the latter as
virtually impossible and found for the plaintiff. On appeal
the
House of Lords pointed out that there is no obligation on a court
faced with two improbable versions to select the least
improbable.
It is always open to it to hold that the onus of proof has not been
discharged. It rejected the notion that the court
must follow
Sherlock Holmes’ dictum from
The
Sign of Four
by
Sir Arthur Conan Doyle that ‘when you have eliminated the
impossible, whatever remains, however improbable, must be the
truth.’ The issue is not which of several possibilities is the
least unlikely, but whether any one of them is on a balance
of
probabilities the correct one.
Datec
Electonics Holdings Ltd and Others v United Parcel Services Ltd
[2007]
UKHL 23
; [2007] 2 Lloyd's Rep 114 (HL) paras 48 and 50.
[3]
Loriza
Brahman and Another v Dippenaar
2002
(2) SA 477
(SCA) (
Loriza
Brahman
)
para 12.
[4]
O’Callaghan
NO v Chaplin
1927
AD 310.
[5]
O’Callaghan
NO v Chaplin
at
329-330.
[6]
Gallant
v Slootweg
2014
BCSC 1579.
For a full treatment of the doctrine see the working
paper of the Law Reform Commission, Ireland on Civil Liability for
Animals,
chapter 2, available at
https://publications.lawreform.ie/Portal/External/en-GB/RecordView/Index/30539
.
The rule was sufficiently problematic that various statutes were
passed in Ireland, England and Scotland in the 1800's to impose
liability apart from the common law. See
Le
Roux and others v Fick
[1879]
9 Buch 29 (
Le
Roux v Fick
)
at 34-35.
[7]
This
was called noxal surrender.
[8]
O’Callaghan
NO v Chaplin
at
365-366.
[9]
South
African Railways and Harbours v Edwards
1930
AD 3
at 9-10.
[10]
P
M A Hunt 'Bad Dogs' (1962) 79
SALJ
326
at 328 quoted in
Solomon
and Another NNO v De Waal
1972
(1) SA 575
(A) at 582A-C.
[11]
In
Loriza
Brahman
para 19 Olivier JA expressed this as follows:
‘
As
die skadestigtende optrede egter veroorsaak is omdat die dier
skrikgemaak is, of leed of pyn aangedoen is of geprovokeer is,
dan
is die optrede nie
contra
naturam
nie, maar juis
ooreenkomstig die aard van 'n dier omdat alle diere so sal optree;
en is daar geen aanspreeklikheid nie.’
‘
If
the harm-causing occurrence was truly caused because the animal was
frightened, or is suffering or in pain, or was provoked,
then the
occurrence was not
contra naturam
, but accords with the way
in which all animals would behave and there is no liability.’(My
translation.)
See
by way of example
Cowell v Friedman &
Co
5 HCG 22.
[12]
Da
Silva v Coetzee
1970
(3) SA 603
(T) at 604A-B approved in
Loriza
Brahman
para
20.
[13]
Le
Roux v Fick
;
Solomon
and Another NNO v De Waal
ibid
at 582C-F.
[14]
Lever
v Purdy
1993
(3) SA 17 (A).
[15]
Lever
v Purdy
at
20H-I.
[16]
Lever
v Purdy
at
21F-H.
[17]
Lever
v Purdy
at
21H-24B.
[18]
Lever
v Purdy
at
26F-I.
[19]
Van
Leeuwen
Censura
Forensis
1.5.13.1;
Le
Roux and Others v Fick
op
cit fn 15,
Lawsa
Vol
1, para 378.
[20]
Joubert
ACJ also relied on Johannes Voet
Commentarius
ad Pandectas
(Gane's
translation) 9.1.6, which is almost verbatim the same, namely:
‘
Then
again, if a dog,
when he was
being led by someone
, escaped
through his own rough temper and did damage to somebody, or
killed another person's sheep, hens or geese,
and
if he could have been more firmly held in by another
or
ought not to have been led over such a spot, this action
on
pauperies
falls
away but there is room for a beneficial Aquilian action
against
the leader
.’ (Emphasis by
Joubert ACJ). No regard appears to have been had to this in the case
of
Carelse v City of Cape Town (Eksteen
and another as third parties)
[2019] 2
All SA 125
(WCC), where the owner of the dog was held liable, even
though the dog had been in the care of his son at the time.
[21]
Lever
v Purdy
at
25I-26A.
[22]
Lever
v Purdy
at
29G-I.
[23]
See
Lever
v Purdy
at 20H-I, 21F-I, 23H-J; 24B-C and E-F; 25D-G.
[24]
Le
Roux v Fick
at
37.
[25]
Simon
van Leeuwen,
Censura
Forensis
1.5.13.3
(translated by Margaret Hewett, 1991). There is no corresponding
passage in the discussion of pauperien liability in
his
Commentaries
on Roman-Dutch Law
.
[26]
See
Cowell
v Friedman & Co
,
op cit, fn 13.
[27]
LAWSA
Vol
1 (3 ed, 2013) per C G van der Merwe and M A Rabie, paras 407 and
410. The first of these paragraphs was cited in the heads
of
argument, but not the second.
[28]
Voet
9.1.5, Gane's translation, Vol 2, pp 539-540.
[29]
Mighty
Solutions (Pty) Ltd t/a Orlando Service Station v Engen Petroleum
Ltd and Another
[2015]
ZACC 34
;
2016 (1) SA 621
(CC) para 38.
[30]
Van
Leeuwen's
Commentaries
on Roman-Dutch Law
3.39.5
and 3.39.6 in the edition revised and edited by Decker (Kotzé's
translation, 1923) Vol 2, pp 319-320 fn (c).
[31]
Dorland
and Another v Smits
2002
(5) SA 374
(C) at 384.
[32]
O’Callaghan
NO v Chaplin
at
329.
[33]
See
for example
s 28
of the
National Environmental Management Act
107 of 1998
; Section 9 of the Marine Pollution (Control and Civil
Liability) Act 6 of 1981.