SAFLII Note: Certain personal/private det ails of parties or witnesses have been redacted from this
document in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGMENT
Not Reportable
Case No: 17913/2020
In the matter between:
DANIEL CEBO BOTTOMAN PLAINTIFF
and
NIZAAM ROSSIE FIRST DEFENDANT
SHIYAAM ROSSIE SECOND DEFENDANT
Neutral citation:
Coram: Mgengwana; AJ
Heard: 14 May 2026
Delivered electronically: The judgment is handed down electronically
by circulating to the parties or legal representatives by email. The date for
the handing down of the judgment is deemed to be, 2 September 2026.
Summary: Delict – Actio de pauperie- Strict Liability - Defence thereto
– Onus to begin - Negligence.
_____________________________________________________________
ORDER
1 Plaintiff’s claim is dismissed with costs inclusive of counsel’s fees on
Scale B.
JUDGMENT
MGENGWANA; AJ
Introduction
[1] This is an actio de pauperie that has been brought by the Plaintiff for
damages allegedly suffered by h im as a result of being bitten on the mouth
by a dog named King owned by the Defendants on the Day of Reconciliation
of 2018 while he was at or near 2[...] T[...] Street, Thornton, Western Cape
(the incident).
[2] In seeking to persuade this Court to find the Defendants liable , the
Plaintiff pleaded as follows:
(a) That at the time of the incident, King acted contrary to the nature of
domesticated dogs.
(b) That in the event of this Court finding that King had not acted contrary to the
nature of domesticated dogs, then in that event, the P laintiff alleges the incident
was caused by the negligence of the Defendants in that they:
(i) Failed to ensure that the dog remained inside the premises
situated at 2[...] T[...] Crescent, Thornton in the Western Cape
(the premises).
(ii) Failed to keep King away from the boundary wall, when they
knew the dog was able to jump higher than the wall.
(iii) Failed to increase the height of the wall when they knew that
the height of the wall was insufficient in keeping King within the
boundaries of their premises.
(iv) Failed to avoid the incident when, by exercise of reasonable
care, they could and should have done so.
[3] In response to Plaintiff’s claim, t he First Defendant pleaded he is the
owner of King, a watchdog together with two other dogs. Although the First
Defendant admitted that the Plaintiff was bitten by King, but he denied the
rest of the allegations outlined above and in amplification of that denial he
pleaded as follows:
(a) That the incident took place when the Plaintiff, without permission
and consent from the Defendants and without him have the legal right
to do so, entered the premises of the Defendants by protruding his
head over the boundary wall that is between the properties of the parties to
this litigation (the parties) , and looking into the property of the
Defendants.
(b) That the Plaintiff was intoxicated and appeared to intimidate the
dogs of the First Defendant.
(c) That the Plaintiff’s head was protruding onto the property of the
Defendants, while the Plaintiff saw the First Defendant’s dogs in the
vicinity and next to the boundary wall.
(d) That it was at this time that King bit the upper lip of the Plaintiff
while the Plaintiff’s head was inside the property of the Defendants.
[4] The First Defendant accordingly denied that King acted contrary to
the nature of his class. The First Defendant averred further that the Plaintiff
(whenever he was intoxicated) had a habit of leaning over the property of the
Defendants despite being warned continuously and on numerous occasio ns
by the First Defendant not to do so.
Preliminary issue
[5] At the begin ning of hearing, there was a dispute between the legal
representatives of both parties as to which party had the onus and the duty to
begin. The Plaintiff therefore mo tioned an application in terms of Rule
39(11) of the Rules of this Court which provides as follows:
“Either party may apply at the opening of the trial for a ruling by the court upon the
onus of adducing evidence, and the court after hearing argument may give a ruling
as to the party upon whom such onus lies: Provi ded that such ruling may thereafter
be altered to prevent prejudice”
[6] In support of Plaintiff’s application, Plaintiff’s counsel submitted that
because the First Defendant had already admitted in his plea that the
Plaintiff was bitten by a domesticated dog owned by him , actio de pauperie
has been established by the Plaintiff . If the First Defendant believes that he
has a defence against Plaintiff’s claim, then the onus of establishing this
defence rests on him as an owner of the animal. According to Plaintiff’s
counsel, this is in line with the court’s findings in Da Silva v Coetzee 1 and
which Boshoff J found as follows:
“The onus is prima facie discharged when the plaintiff has proved that his wife was
attacked and bitten by the dog without apparent cause. To escape liability the
defendant, as the owner , must then prove that it was the fault of the plaintif f’s wife
or that the dog had been provoked by some extrinsic cause . If the defendant fails to
prove that, then the plaintiff must succeed.”
This Court notes that this approach was also followed by our Supreme Court
of Appeal in Brahman and Another v Dippenaar 2 and Van Meyeren v
Cloete3.
[7] In opposition to the above counsel for the Defendant submitted that
the actio de pauperie has not been established as it is disputed that King
acted contrary to the nature of its class . She submitted further that even if it
is alleged that the question of res ipsa loquitor arises in this matter, the duty
to begin and onus does not shift. In support of her last submission, this Court
1 Da Silva v Coetzee 1970 (3) SA 603 (T) at 604A - B
2 Brahman and Another v Dippenaar 2002 (2) SA 477 (SCA) at para 20
3 Van Meyeren v Cloete 2021 (1) SA 59 (SCA)
was referred to the case of Goliath v MEC for Health, Eastern Cape 4 in
which Ponnan JA found as follows while writing for the majority.
“[10] Broadly stated, res ipsa loquitur (the thing speaks for itself) is a convenient
Latin phrase used to describe the proof of facts which are sufficient to support an
inference that a defendant was negligent and thereby to establish a prima facie case
10 against him. The maxim is no magic formula ( Arthur v Bezuidenhout and Mieny
1962 (2) SA 566 (A) at 573E). It is not a presumption of law, but merely a
permissible inference which the court may employ if upon all the facts it appears to
be justified ( Zeffert & Paizes ‘The South African Law of Evidence’ 2ed at 219). It is
usually invoked in circumstances when the only known facts, relating to negligence,
consist of the occurrence itself (see Groenewald v Conradie; Groenewald en Andere v
Auto Protection Insurance Co Ltd 1965 (1) SA 184 (AD) at 187F) - where the
occurrence may be of such a nature as to warrant an inference of negligence. The
maxim alters neither the incidence of the onus nor the rules of pleading ( Madyosi v
SA Eagle Insurance Co Ltd 1990 (3) SA 442 (A) at 445F) – it being trite that the onus
resting upon a plaintiff never shifts ( Arthur v Bezuidenhout and Mieny at 573C).
Nothing about its invocation or application, I daresay, is intended to displace
common sense. In the words of Lord Shaw in Ballard v Northern British Railway Co
60 Sc LR 448 ‘the expression need not be magnified into a legal rule: it simply has its
place in that scheme of and search for causation upon which the mind sets itself
working’ (cited with approval in Naure NO v Transvaal Boot and Shoe Manufacturing
Co 1938 AD 379 and Arthur v Bezuidenhout and Mieny at 573F-G).”
4 Goliath v MEC for Health, Eastern Cape 2015 (2) SA 97 (SCA)
[8] In Muller v De Waal and Another5 Fortuin J also stated the following:
(15448/17) [2023] ZAWCHC 173
“[17] The plaintiff bears the onus of showing that Bentley acted contrary to the
nature of an animal of its kind. This onus is prima facie discharged once the plaintiff
shows that she was bitten without apparent cause.”
[9] The above submissions having been made, this Court was called upon
to make a determination in terms of Uniform Rule 39(11) as to which party
has a duty to begin in the proceedings . Subsequently, this Court made a
determination that the Defendant is the one who has the duty to begin as he
is the one who now has the onus to prove his defence against the actio de
pauperie as the Plaintiff has made out a prima facie case on the papers in
that he alleged that he has been bitten by King, a domesticated dog owned
by the First Defendant for no apparent cause. It must be remembered that the
First Respondent has already admitted in his plea that the Plaintiff was
indeed bitten by King who is owned by him . It must also be kept in mind
that in an actio de pauperie the liability of the owner is based on ownership
alone and fault on his /her part is not a requirement, strict liability is imputed
to him/her by virtue of being an owner of a domesticated animal. This is not
a shifting of an onus; the decision is based on the acceptance of the averment
that the Plaintiff has made out a prima facie case against the Defendant .
After the ruling, the First Defendant was called to the witness box to give
evidence.
5Muller v De Waal and Another (15448/17) [2023] ZAWCHC 173
The evidence
[10] In addition to what has already stated in his plea, t he First Defendant
testified as follows:
(a) The incident took place on his birthday , so he was not present at
home when the Plaintiff was bitten by King as he had been taken out
by family for breakfast, so he only saw the incident on a video footage
which was presented and played in court without any objection from
the Plaintiff. The footage did not have an audio , but it clearly showed
the Plaintiff’s head protruding into the yard of the Defendants while
the entire body of the Plaintiff was in his own yard. While the head of the
Plaintiff was still protruding, King could be seen jumping upwards
and contacting the face of the Plaintiff. It was at this point that the
Plaintiff was bitten by King on his mouth.
(b) Before the incident, he had spoken to the Plaintiff on more than
one occasion wherein he had requested him to refrain from seeking
to talk to his dogs or/and play with them because every time he does
so the dogs get agitated and start barking loudly and thereby making
noise. In these instances, he would have no option but to call the dogs
into the house to prevent them from making noise and being more
agitated. At some point he had to tell him to leave his dogs alone and should
not concern himself with them as they are not his and therefore, none of
his concern.
[11] The Second Defendant testified as follows:
(i) That King was bought by the First Defendant as a watchdog that
was regarded as a family member of the Defendants’ household. King is
calm but would bark if there were people at the gate, if he was hungry,
needed something or when Plaintiff came to the perimeter wall.
(ii) That the tendency of the Plaintiff to come to the perimeter and
seek to play with the dogs occurred in the afternoons while Plaintiff was
drinking alcohol and playing loud music. She said on more than one
instance the First Defendant had asked him not to interfere with the
dogs as doing same worked the dogs up. She also said that King had a
good relationship with the people in the house and would listen to the
instructions of the First Defendant.
(iii) According to her, when they returned from breakfast , they were
incorrectly told by the wife and the son of the Plaintiff t hat King had
jumped into their yard, bit the Plaintiff and jumped back into his yard.
[12] After the Defendants led their evidence and Defendants’ counsel
closed Defendant’s case, counsel for the Plaintiff asked for judge ment in
Plaintiff’s favour without closing her case. She submitted that Uniform Rule
39(6) permits her to do so. This Court stood the matter down to enable the
parties to make submissions supported by relevant authority in this regard .
After the submissions were made the Court adjourned the matter to the next
day for a consideration and the determination on issue. The Court is very
much indebted to both counsels for the well-considered and well researched
submissions in this regard.
[13] As a point of departure , this Court had to consider Rule 39(6) which
provides as follows:
“At the close of the case for the plaintiff, the defendant may apply for absolution
from the instance , in which event the defendant or one advocate on his behalf may
address the court and the plaintiff or one advocate on his behalf may reply. The
defendant or his advocate may thereupon reply on any matter arising out of the
address of the plaintiff or his advocate.”
Prima facie, absolution from the instance , is an option that is only open to
the Defendants but not the Plaintiff.
[14] In the Second Edition of Erasmus Superior Court Practice the
following is stated at D1–534A:
“If the defendant adduces his evidence first, because he bears the burden of proof or
because, by reason of an admission or presumption, the duty to adduce evidence is
on him, there can be no question of absolution from the instance being granted . If
the defendant fails to discharge the burden of proof or the duty to adduce evidence,
the proper order would be judgement for the plaintiff. If onus is on the defendant ,
the court cannot, after he has led his evidence, give judgment for the plaintiff unless
and until the plaintiff closes his case. Earlier cases in which absolution was granted
in such circumstances must now be regarded as incorrect.”6
[15] In Government Employees’ Pension Fund v VR & L Rental (Pty) Ltd
t/a Dros Fried Chicken7 and Basson J held as follows therein:
“[13] Absolution from the instance may only be granted at the end of a plaintiff's
case it there is no sufficient evidence upon which a reasonable person could find for
him or her. The defendants (the respondents in this matter) would only have been
entitled to judgment if they discharge the burden of proof. In such circumstances the
judgment would be a dismissal and not an absolution of the instance. If a defendant
fails in discharging the onus, then the plaintiff will be entitled to judgment. As the
court affirmed in Ramnath v Bunsee:4 "The truth turns upon para (c) of section 48 of
the Magistrate's Court Act. This reads: The court may, as a result of the trial of an
action, grant absolution from the instance, if it appears to the court that the
action, grant absolution from the instance, if it appears to the court that the
evidence does not justify the court in giving judgment for either party" Speaking of
6 Van Loggrenber, Erasmus Superior Court Practice 2 ed vol 2 (2023) at D1 – 534A
7 Government Employees Pension Fund v VR & L Rental (Pty) Ltd GP (A203/2020) [2021] ZAGPPHC
675
the identical section 46 (c) of the 1917 statute, Matthews, J., in Subakka v
Moonigadu, supra said: "The provisions of that action do no more than state the
course which should be observed in all courts where a judicial officer in unable to
satisfy himself on which side truth lies" Paras. (a) and (b) of section 48 relate to
judgement for the Plaintiff and the Defendant respectively, in so far as he has proved
his case. As to paragraph (c), clearly if the evidence does not justify the court in
giving judgment for the Defendant because he has not proved his case, when the
onus is upon him to do so, that very fact justifies the court in giving judgment for the
Plaintiff, having regard to the logical principles relating to onus. It cannot be said
that the evidence does not justify the court in giving judgment for the Plaintiff, in
those circumstances. Consequently there is no room for an absolution'.
[14] Similarly, in Sentraalwes Personeel Ondernemings (Edms) BPK v Nieuwoudts , the Court
held:
"Die laaste grond waarop aansoek om absolusie gedoen is, was dat daar weers
wanvoorstelling deur die eiser se agent aangaande die betekenis van klousule 21
van die kontr ak geen wilsooreenstemming end us geen kontrak tussen die partye
tot stand gekom het nie. Dis n feitevraag waarna die bewyslas op die verweerderes
gerus het...Daar was dus geen ruimte vir die bevel van absolusie van die instansie
nie. Sien Arter v Burt 1922 AD 303 te 306. Die Landdros behoort dus die aansoek
om absolusie van die instansie van die hand te gewys het. Die appel slaag gevolglik
met koste wat insluit die koste van twee advokate".”
[16] In Underberg Dairy (Pty) Ltd v The Dairy Boys ( Pty) Ltd and
Others8, Motha AJ found as follows:
“12. To the extent that the Appellant insisted on its position being analogous to the
position of a Defendant applying for an absolution from the instance at the close of a
Plaintiff’s case, it is incorrect.
Plaintiff’s case, it is incorrect.
8 Underberg Dairy (Pty) Ltd v The Dairy Boys (Pty) Ltd and Others (193/2021) [2022] ZAGPPHC 894
13. To further clarify the legal position, I can do no better than to refer to the Court a
quo’s judgment on leave to appeal, in paragraph 3 thereof, where it was stated:
“It is of utmost importance to point out that if the Defendant adduces evidence first,
either because he bears the burden of proof or because by reason of an admission or
presumption like in casu, the duty to adduce evidence is on him, there can be no
question of absolution from the instance being granted. See Scheepers v Video &
Telecommunications Services 1981 (2) SA 49OE at491H-492A; Arter v Burt 1922
AD 303 at 306 and Hirschfeld v Espoch 1937 TPD 19. Therefore, absolution from
the instance when the burden is on the Defendant is an unviable proposition.””
[17] The genesis of the above finding s is the decision of Van den Heever
who found as follows in Schuster v Guether9:
“Mr. Goldblatt wishes to move for judgement without closing his case. This I think he
cannot do; it is entirely within the discretion of the plaintiff as to whether, and if so,
what evidence he wishes to tender. He may, therefore, close his case at this stage
and move for judgement, but it seems to me that he cannot ask the Court to judge on
a substantial issue between the parties before the Court is in poissession of all the
evidence which the parties propose to tender. I rule therefore that it is not
competent for the plaintiff to move for judgement without closing his case.”
[18] After considering submissions made by the respective counsels and
the above authority which was brought to th is Court’s attention by Ms.
Sprighton, counsel for the Defendants, this Court had no alternative but to
dismiss Plaintiff’s application for judgement without closing his case . After
the above, dismissal counsel for the Plaintiff then procee ded to close her
case without leading the evidence of the Plaintiff and requested judgement in
favour of the Plaintiff which judgement was then reserved.
9 Schuster v Guether 1933 SWA 114 at page 115 - 116
Applicable legal principles
[19] The following is said at paragraph 32 of Volume 15, Third Edition of
LAWSA about the actio de pauperie:
“The actio de pauperie is a form of strict liability which has its origin in Roman Law.
It was thought that the action had been abrogated by disuse, but the Appellate
Division confirmed its existence in O’Callaghan v Chapli n. In SAR&H v Edward s De
Villiers CJ noted: “The action lies against the owner in respect of harm (pauperies)
done by domesticated animals , such for instance as horses, mules, cattle, dogs ,
acting from inward excitement (sponte feritate commota). 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”10
[20] In the same paragraph the following is said:
“In modern law there are six essential elements of the action:
(a) harm,
(b) conduct by a domesticated animal;
(c) a causal link between conduct and harm;
(d) the defendant must have been the owner of the animal at the time of the injury;
(e) the animal must have acted contrary to the nature of its kind – contra naturam
sui generis; and
(f) the animal must have acted from inward excitement or vice – sponte feritate
commota.” 11
[21] In the same paragraph the following is said:
“The following defences are available:
10 56 Lawsa 3 ed para 32 referring to O’Callaghan v Chaplin 1927 AD 310 and SAR&h v Edwards 1930
AD 3
11 Ibid
That the plaintiff was to blame for the animal’s action; there was negligence on the
part of the controller; someone else or something else provoked the animal, that is,
it did not behave from inward excitement or vice; the Plaintiff was not lawfully on the
premises; and volenti non fit iniuria.”12
[22] In O’Callaghan NO v Chaplin, Innes CJ (with De Villiers concurring)
gave the following description of the actio de pauperie:
“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.”13
[23] In SAR & H v Edwards, De Villiers JA stated the following:
“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.”14
[24] Wallis JA found as follows in Meyeren v Cloete:
“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
12 57 Lawsa 3 ed para 32
13 O’Callaghan NO v Chaplin 1927 AD at 329
14 South African Railways and Harbours v Edwards 1930 AD at 10
caused the harm. Absence of fault is a ground for resisting Aquilian liability, not a
claim under the actio.”15 (My underlining)
[25] Wallis JA also made the following finding in the same case:
“[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. 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.”16
[26] The classic test for negligence is articulated by Holmes JA in Kruger
v Coetzee 1966 (2) SA 428 (A) as follows:
‘For the purposes of liability culpa arises if –
(a) a diligens paterfamilias in the position of the defendant –
(i) would foresee the reasonable possibility of his conduct injuring
another in his person or property and causing him patrimonial loss;
and
(ii) would take reasonable steps to guard against such occurrence; and
15 Van Meyeren v Cloete 2021(1) SA 59 (SCA)
16 Ibid
(b) the defendant failed to take such steps.’17
[27] In Pillay v Krishna18 at 951-2, a three-legged approach was stated as
follows with regards to burden of proof:
‘The first principle in regard to the burden of proof is … If one person claims
something from another in a Court of law, then he has to satisfy the Court that he
is entitled to it. But there is a second principle which must always be read with it
… Where the person against whom the claim is made is not content with a mere
denial of that claim, but sets up a special defence, then he is regarded quoad that
defence, as being the claimant: for his defence to be upheld he must satisfy the
Court that he is entitled to succeed on it … But there is a third rule , which Voet
states in the next section as follows : “ He who asserts, proves and not he who
denies, since a denial of fact cannot naturally be proved provided that it is a fact
that is denied and that the denial is absolute.’
[28] All that the Defendants have to show in this action is that the Plaintiff
was bitten by King due to his own negligence or due to provocatio n or some
other extrinsic cause.19
Submissions made on behalf of the parties
[29] In her written and verbal submissions counsel for the Plaintiff
submitted that in their evidence, the Defendants dismally failed to prove
provocation, trespassing and voluntary assumption of risk as these words are
17 Kruger v Coetzee 1966 (2) SA 428 (A) at 430E-F.
18 Pillay v Krishna 1946 AD 946 at 951-2
19 Muller v De Waal and Another at par 17
used in law reports and law textbooks . To advance her argument in this
regard, she posited that non e of the Defendants used the word s “provoke or
provocation” when they were presenting their evidence in court or in the ir
plea. So, the defence of provocation is not available to the Plaintiffs.
[30] Counsel for the Plaintiff submitted further that the Plaintiff had instead
used the word “intimidate” to describe the conduct of the Plaintiff shortly
before being bitten by King . According to counsel for the Plaintiff
“intimidation” is not a known defence to the actio de pauperie because one
cannot “intimidate” an animal. In fact, according to counsel for the Plaintiff ,
imputing the word “intimidate” to an animal would constitute the
impermissible attribution of human emotions to King as was found in Van
der Westhuizen v Burger . 20 So intimidation cannot come to Defendants
assistance as well according to counsel for the Plaintiff.
[31] Counsel for the Plaintiff also submitted that the Plaintiff cannot be
accused of trespassing for merely protruding his head into the Defendants
yard whilst his body was firmly in Plaintiff’s yard . She also submitted that
the defence of volenti non fit iniuria is also not available to the Defendants
as they have dismally failed to satisfy the requirements thereof.
[32] On the other hand, counsel for the Defendant submitted first and
20Van der Westhuizen v Burger 2018 (2) SA 87 (SCA) para 18.
foremost that the evidence presented by the Defendants in this Court should
be accepted because it has not been controverted as no evidence was
presented to court by the Plaintiff or on his behalf.
[33] She also submitted that Plaintiff’s conduct was evidently negligent as
he had been previously warned not to put his head over the boundary wall as
he may be bitten by the dogs. The Plaintiff had also been the Defendants’
neighbour for over a year and he knew that the First Defendant had large
dogs. The Plaintiff had never been introduced to the dogs and had only ever
been received aggressively by King.
[34] She also submitted that t he Plaintiff, having full knowledge of the
potential harm that may be caused by King , an American bulldog which is a
guard dog, and acting in appreciation of the risk, voluntarily assumed the
risk of harm when he protruded his head into the Plaintiff’s yard and
accordingly cannot claim in terms of the actio de pauperie.
[35] She submitted further that c ounsel for the Plaintiff made much of the
fact that the word “provoked” was never used in Defendants’ pleadings .
According to her , t his is neither here nor there, as evidence that
demonstrated the alleged provocation was presented to court . It is evident
from the pleadings, as well as the joint practice note, that the Defendants
relied on a defence of provocation.
Application of the Law to the facts
[36] As a point of departure, this Court has taken judicial notice of the fact
that the Plaintiff had decided not to testify in his case even though he was
present in court and had listened to the presentation of Defendants’
evidence. His decision not to testify in court despite hear ing what was said
about what transpired on the date of the incident and about his behaviour in
general towards the dogs after allegedly consuming intoxicating liquor has
resulted in this Court drawing an adverse inference against him . Therefore,
the evidence that that was presented to this Court by the Defendants is
accepted as it was not controverted . Th e findings that will made by this
Court will therefore be based on this evidence and the dictates of trite law.
[37] The salient facts of this case are that the incident that is the subject of
this litigation took place when the Plaintiff p rotruded his head into the yard
of the Defendants . These facts are corroborated by a video clip of the
incident that was played in court. The viva voce evidence and the video clip
clearly show that Plaintiff’s conduct of protruding his head into the yard of
the Defendants was the precursor to the incident.
[38] After viewing the aforementioned video clip , the question of w hether
Plaintiff’s conduct constituted provocation or not pales into insignificance as
what is important is that it is Plaintiff’s conduct that invited a reaction from
King and it is this reaction that has caused Plaintiff’s harm. Plaintiff’s
conduct when he decided to protrude his head into his neighbour’s yard for
no apparent reason is exactly what Judge Fortuin refers to as “some other
extrinsic conduct” in the case of Muller v De Waal. This conduct does not
have to be labelled as “provocation” or “trespassing” to be recognised in law
as these labels do not assist the court in its endeavour to establish whether
the Defendants have established a defence or not to the actio de pauperie .
Having said the above, this Court therefore finds that the First Defendant has
succeeded in proving that King was reacting to Plaintiff’s haphazard
protrusion of his head into Defendants’ yard when he bit his mouth off.
[39] Moreover, the submission made by Plaintiff’s counsel that imputing
the word “intimidate” to an animal would constitute the impermissible
attribution of human emotions to an animal was a finding made in paragraph
18 of Van der Westhuizen v Burger is incorrect . Swain J A was making
reference to the idea that an animal can harbour a grievance when he made
that finding.
[40] This Court also finds that the incident that is the subject of this
litigation was solely caused by the sole negligence of the Plaintiff . It cannot
be in dispute that the incident would not have taken place if the Plaintiff had
not decided to poke his head into the Defendant’s yard . The incident would
have also not taken place if the Plaintiff had heeded First Defendant’s
warning that he should refrain from seeking to concern himself with the
wellbeing of the dogs as the dogs are none of his concern . Even if the
Plaintiff was trying to establish a close relationship with the dogs, he should
have, as a reasonable person , recognised that his overtures were not being
reciprocated with friendly gestures by the dogs and he should have kept a
distance from them . His failure to do so portrayed a high level of
recklessness on his part.
[41] Lastly the Plaintiff who knew that the Defendants dogs , which were
guard dogs , would always be agitated and bark loudly when the Plaintiff
approached the border of the two houses to interact with them. He therefore
voluntarily assumed the risk of being bitten by the dogs when he decided to
protrude his head into the Defendants yard while knowing very well that
agitated dogs that bark loudly have the capacity to inflict injury on one . The
Plaintiff can therefore not blame anyone for voluntarily assuming the risk of
being bitten by King.
[42] Based on what this Court has found in the preceding paragraphs, this
Court finds that the Defendants have been successful in mounting several
defences against the actio de pauperie instituted by the Plaintiff.
[43] In the alternative to the actio de pauperie , the Plaintiff instituted a
claim against the Defendant based on lex aquilia. A litigant who seeks to
rely on lex aquilia needs to prove fault on the part the alleged wrongdoer to
succeed with his or her claim. The Plaintiff can however not suc ceed with
his claim as he has failed to discharge the onus that has been placed on him
as he has failed to testify in court in order to prove fault on the part of the
Defendants.
[44] In the result I make the following order:
(a) Plaintiff’s claim is dismissed with costs inclusive of counsel’s
fees on Scale B.
______________________________
TJ MGENGWANA
Acting Judge of the High Court
APPEARANCES:
For the plaintiff: Ms. R. Van Wyk
Instructed by: DSC Attorneys
Mr. J. Potgieter
For the defendant: Ms. J.V. Sprighton
Keith Sutcliffe & Associates Inc.
Mr. K.J. Sutcliffe